Nomination of Priscilla Richman Owen to be United States Circuit Judge for the Fifth Circuit--Continued--Part 2

Nomination of Priscilla Richman Owen to be United States Circuit Judge for the Fifth Circuit--Continued--Part 2

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Mr. GRASSLEY. So when we just came back into the majority, after the 1994 election, there was an effort by Democrats to eliminate the filibuster?

Mr. McCONNELL. Entirely.

Mr. GRASSLEY. For everything, including legislation.

Mr. McCONNELL. Right.

Mr. GRASSLEY. We were the new majority.

Mr. McCONNELL. Right.

Mr. GRASSLEY. And we would have benefited very much from that. It would have given us an opportunity to get anything done that we could get 51 votes for doing, with no impediment, and we voted against that?

Mr. McCONNELL. Unanimously. And interestingly enough, it was the first vote cast by our now-Senate majority leader, Senator Frist, here in the Senate. The very first vote he cast, along with the rest of us on this side of the aisle, was to keep the filibuster.

Mr. GRASSLEY. So I think that ought to make it clear we are just talking about the unprecedented use of the filibuster within the last 2 years. We are not talking about changing anything in regard to filibusters on legislation because we understand that is where you can work compromises. You cannot really work compromises when it comes to an individual--is it either up or down. But you can change words, you can change paragraphs, you can rewrite an entire bill to get to 60, to get to finality, on any piece of legislation.

Mr. McCONNELL. My friend from Iowa is entirely correct. The filibuster would be preserved for all legislative items, preserved for executive branch nominations, not for the judiciary. It would be preserved even for district court judges, where Senators have historically played a special role in either selecting or blocking district judges. All of that would be preserved. If we have to exercise the constitutional option tomorrow, it will be narrowly crafted to deal only with future Supreme Court appointments and circuit court appointments, which is where we believe the aberrational behavior has been occurring in the past and may occur in the future.

Mr. GRASSLEY. And maintain the practice of the Senate as it has been for 214 years prior to 2 years ago.

Mr. McCONNELL. That is precisely the point. My friend from Iowa is entirely correct.

Mr. GRASSLEY. I thank the Senator.

Mr. HATCH. Will the assistant majority leader yield for a question?

Mr. McCONNELL. Yes.

Mr. HATCH. Just to make it clear, there are two calendars in the Senate. One is the legislative calendar and the other is the Executive Calendar; is that correct?

Mr. McCONNELL. That is correct.

Mr. HATCH. The legislative calendar is the main calendar for the Senate, and it is solely the Senate's; is that correct?

Mr. McCONNELL. That is correct.

Mr. HATCH. But the Executive Calendar involves nominations through the nomination power granted by the Constitution to the President of the United States, and the Senate has the power to advise and consent on that nomination power, is that right, to exercise that power?

Mr. McCONNELL. That is entirely correct.

Mr. HATCH. What we are talking about here is strictly the Executive Calendar, ending the inappropriate filibusters on the Executive Calendar and certainly not ending them on the legislative calendar?

Mr. McCONNELL. My friend from Utah is entirely correct.

Mr. HATCH. Well, our Democratic friends argue--just to change the subject a little bit here--they argue we have to institute the judicial filibuster to maintain the principle of checks and balances as provided in the Constitution. But unless my recollection of events is different, this contention does not fit with the historical record.

Isn't it the case that the same party has often been in the White House and in the majority in the Senate, such as today, but in the past, while the same party has controlled the White House and been a majority in the Senate, neither party, Democrats or Republicans, over the years, has filibustered judicial nominations until this President's term?

Mr. McCONNELL. My friend is entirely correct. The temptation may have been there. I would say to my friend from Utah, the temptation may have been there.

Mr. HATCH. Right.

Mr. McCONNELL. During the 20th century, the same party

controlled the executive branch and the Senate 70 percent of the time. Seventy percent of the time, in the 20th century, the same party had the White House and a majority in the Senate. So I am sure--by the way, that aggrieved minority in the Senate, for most of the time, was our party, the Republican Party.

Mr. HATCH. You got that right.

Mr. McCONNELL. We are hoping for a better century in the 21st century. But it was mostly our party. So there had to have been temptation, from time to time, and frustration, on the part of the minority. Seventy percent of the time, in the 20th century, they could have employed this tactic that was used in the last Congress but did not.

Senator Byrd led the minority during a good portion of the Reagan administration. Actually, during all of the Reagan administration, 6 years in the minority, 2 years in the majority, Senator Byrd could have done that at any point. He did not do it, to his credit. To his credit, he did not yield to the temptation.

As I often say, there are plenty of things we could do around here, but we do not do it because it is not good to do it, even though it is arguably permissible. So when our friends on the other side of the aisle say the filibuster has been around since 1806, they are right. It is just that we did not exercise the option because we thought it was irresponsible.

Mr. HATCH. Not quite right because the filibuster rule did not come into effect until 1917.

Mr. McCONNELL. No. The ability to stop the filibuster did not come about until 1917. The ability to filibuster came about in 1806.

Mr. HATCH. Well, Senators had the right to speak, and they could speak.

Mr. McCONNELL. Absolutely.

Mr. HATCH. So in a sense it was not even known as a filibuster at that time. Nevertheless, they had the right to speak.

To follow up on what you just said, we heard repeatedly from liberal interest groups that we must maintain the filibuster to maintain ``checks and balances.'' My understanding of the Constitution's checks and balances is that they were designed to enable one branch of Government to restrain another branch of Government. Are there really any constitutional checks that empower a minority within one of those branches to prevent the other branch from functioning properly?

Mr. McCONNELL. Well, my friend from Utah is again entirely correct. The term ``checks and balances'' has actually nothing to do with what happened to circuit court appointments during the previous Congress. The term ``checks and balances'' means institutional checks against each other, the Congress versus the President, the judiciary versus both--the balance of power among the branches of Government. It has nothing whatsoever to do with the process to which the Senate has been subjected in the last few years. It is simply a term that is inapplicable to the dilemma in which we find ourselves now.

Mr. HATCH. One last point. The 13 illustrations that the Democrats on the other side have given that they have said are filibusters, if I recall it correctly, 12 of those 13 are now sitting on the Federal bench, as you have said; is that correct?

Mr. McCONNELL. I say to my friend from Utah, as far as I can determine, for every judge who enjoyed majority support, upon which there was subsequently a filibuster, cloture was invoked, and all of those individuals now enjoy the title ``judge.''

Mr. HATCH. In other words, they are sitting on benches today?

Mr. McCONNELL. Because they ultimately got an up-or-down vote. I would say to my friend from Utah, we will have an opportunity tomorrow, in the late morning, to handle the Priscilla Owen nomination the way our party, at your suggestion and Senator Lott's suggestion, toward the end of the Clinton years, handled the Berzon and Paez nominations. They had controversy about them, just as this nomination has controversy about it.

How did we deal with controversy? We invoked cloture. And I remember you and Senator Lott saying, to substantial grief from some, that these judge candidates had gotten out of committee, and they were entitled to an up-or-down vote on the floor. Senator Lott joined Senator Daschle and filed cloture on both of those nominations, not for the purpose of defeating them but for the purpose of advancing them. They both got an up-or-down vote. They both are now called judge.

Mr. HATCH. So the cloture votes in those instances were floor management devices to get to a vote so we could vote those nominations to the bench?

Mr. McCONNELL. For the purpose of advancing the nominations, not defeating them.

Mr. HATCH. So they were hardly filibusters in that sense?

Mr. McCONNELL. They were not. They were situations which do occur, from time to time, where a nominee has some objection. And around here, if anybody objects, it could conceivably end up in a cloture vote.

Mr. HATCH. And spend a lot of time on the Senate floor.

Mr. McCONNELL. Yes. It does not mean the nomination is on the way to nowhere. It could mean the nomination is on the way to somewhere because you invoke cloture and then you get an up-or-down vote. And I remember you, as chairman of the Judiciary Committee, advocating that step, even though we all ended up, many of us, voting against those nominations once we got to the up-or-down vote.

Mr. HATCH. Advocating the step that we should invoke cloture and give these people a vote up or down?

Mr. McCONNELL. Precisely.

Mr. HATCH. One last thing. As to the 13, 12 of them are sitting on the bench.
The 13th that they mentioned was the Fortas nomination. In that case, there was the question of whether there was or was not a filibuster. But let's give them the benefit of the doubt and say there was a filibuster, since there are those who do say there was, although the leader of the fight, Senator Griffin, at the time said they were not filibustering, that they wanted 2 more days of debate, and they were capable and they had the votes to win up or down--

Mr. McCONNELL. He withdrew, didn't he?

Mr. HATCH. He did. But what happened was there was one cloture vote, and it was not invoked. But even if you consider it a filibuster, the fact is, it was not a leader-led filibuster. It was a nomination that was filibustered--if it was a filibuster--almost equally by Democrats and Republicans.

Mr. McCONNELL. And isn't it also true, I ask my friend from Utah, that it was apparent that Justice Fortas did not enjoy majority support in the Senate and would have been defeated?

Mr. HATCH. That is right.

Mr. McCONNELL. Had he not withdrawn his nomination.

Mr. HATCH. The important thing here is it was a bipartisan filibuster against a nominee by both parties, and in these particular cases, these are leader-led partisan filibusters led by the other party.

Mr. McCONNELL. I thank my colleague.

Mr. SESSIONS. Mr. President, will the Senator yield?

Mr. McCONNELL. I am happy to yield.

Mr. SESSIONS. I hope Senator Hatch will remain because he has been, much of the first years of my career in the Senate, chairman of the Senate Judiciary Committee. I think it is important to drive home what you have been discussing. I think it is so important.

First, I will say to the distinguished assistant majority leader how much I appreciate his comprehensive history of debate in the Senate. I think it is invaluable for everyone here. But I remember the Berzon and Paez nominations. Both of those were nominees to the Ninth Circuit. Judge Paez, a magistrate judge, declared that he was an activist himself, as I recall, and even said that if legislation does not act, judges have a right to act. And the Supreme Court had reversed the Ninth Circuit 28 out of 29 times one year and consistently reversed them more than any other circuit in America. And here we had an ACLU counsel, in Marsha Berzon, and Paez being nominated.

There was a lot of controversy over that. We had a big fuss over that. We had an objection. I voted for 95 percent of President Clinton's nominees, but I did not vote for these two. I remember we had a conference.

I will ask the assistant majority leader--we were having House Members saying: Why don't you guys filibuster? People out in the streets were saying: Don't let them put these activist judges on the bench. We had our colleagues saying it. I did not know what to do. I was new to the Senate. Do you remember that conference when we had the majority in the Senate, and President Clinton was of the other party and we were not in minority like the Democrats are today--we had the majority--and Senator Hatch explained to us the history of filibusters, why we never used them against judges, and urged us not to filibuster those Clinton nominees?

Mr. McCONNELL. I remember it well. I would say, our colleague from Utah got a little grief for that from a number of members on our side of the aisle who were desperately looking for some way to sink those nominations. And he said: Don't do it. Don't do it. You will live to regret it. And thanks to his good advice, we never took the Senate to the level--never descended to the level that the Senate has been in the previous Congress.

Mr. SESSIONS. Let me ask this, with the presence of the distinguished former chairman of the Judiciary Committee in the Chamber. At that very moment when it was to the Republican interests to initiate a filibuster, if we chose to do so, at that moment, when he was, on principle, opposing it, the very Members of the opposite party, leading Senators on that side--Senator Leahy and Senator Kennedy and Senator Feinstein and Senator Boxer--were making speeches saying how bad the filibuster was and how it should not be done.

Mr. McCONNELL. I would say to my friend that is why we have been quoting them so much in all of our speeches on this side of the aisle. You could just change the names, and they could have been giving our speeches as recently as 1998, 1999, and even 2000.

Mr. SESSIONS. I could not agree more. A half-dozen years ago, the people who are leading the filibuster were the very ones objecting to it. But Senator Hatch and the Republicans, isn't it fair to say, have been consistent?

Mr. McCONNELL. Absolutely. Let's just be fair here. I would say to both of my colleagues, without getting into the details of any particular nomination, that I think the Democrats have arguably a legitimate complaint--it has a patina of legitimacy--when they argue that we simply did in committee what they are doing on the floor.

The PRESIDING OFFICER. The time controlled by the majority has now expired.

Mr. McCONNELL. Mr. President, I ask unanimous consent for an additional 5 minutes.

Mr. LAUTENBERG. I didn't hear that.

Mr. McCONNELL. I ask unanimous consent for 5 more minutes.

Mr. LAUTENBERG. No objection.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. McCONNELL. They argue that we simply did in committee what they are doing on the floor, and that there is not a dime's worth of difference between holding up a nominee in committee and holding up a nominee on the floor. I think there are some distinctions to be made.

It is not entirely the same thing, but granting that that might have some legitimacy, the majority leader offered these Specter protocols with which the former chairman of the Judiciary Committee is intimately familiar, which would have guaranteed some kind of procedure to extricate those nominations from committee and bring them out to the floor and give them an up-or-down vote. We are in the majority, and we volunteered to give up the ability to routinely kill nominations in committee. Yet they turned that down, too.

Mr. HATCH. Will the Senator yield on that point?

Mr. McCONNELL. I yield for a question. Mr. HATCH. The fact is, there have always been holdovers at the end of every administration. There were 54 holdovers at the end of the Bush 1 administration, and he was only there 4 years. We didn't cry and moan and groan and threaten to blow up the Senate over that. We recognized it was part of the process.

I have to say with regard to the holdovers that were there at the end of the Clinton administration, there were some which they could have gotten through, but there were like 18 that were withdrawn. Ten withdrew their names. Some were not put up again between the two administrations. There is no question that I tried to do the very best I could to give President Clinton every possible edge.

But this has always been the case. It isn't just this time. It happened with Democrats in control of the Senate and Republicans in control of the White House. I think that point needs to be made. I have heard a lot of moaning and groaning. I know my colleagues know I did everything in my power to accommodate them and help them.

Mr. McCONNELL. I believe that is entirely correct. The only point I was seeking to make was if that criticism had any validity whatsoever--and the former chairman has pointed out that it has very little legitimacy--the distinguished majority leader offered to make that essentially impossible, and yet that was rejected as well.

Mr. SESSIONS. Will the Senator yield for one more question?

Mr. McCONNELL. Yes.

Mr. SESSIONS. Isn't it true that Trent Lott, the Republican majority leader, sought cloture to give Berzon and Paez an up-or-down vote, and those of us who opposed Berzon and Paez, as the Senator from Kentucky did, voted for cloture to give them an up-or-down vote and then voted against them when they came up for the up-or-down vote?

Mr. McCONNELL. The Senator is entirely correct. That is the way I voted. I believe that is the way he voted. That is the way the Senate ought to operate.
That is a good model for how we ought to behave tomorrow. We will have a cloture vote on Justice Priscilla Owen. If the Senate wants to operate the way it used to, we will invoke cloture on Justice Owen and then give her the up-or-down vote which she richly deserves.
I yield the floor.

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Mr. McCONNELL. Mr. President, before he leaves the floor, I want to extend my congratulations to the majority leader for moving us to this point. Obviously, human nature, being what it is, had we not had a deadline, had the Priscilla Owen nomination not been brought up, had the debate not begun, we would not be where we are today. Senator Frist, in a tireless and persistent manner, has been working on this issue since shortly after the election last year, talking to Senator Reid.
I also want to compliment the Democratic leader. I suspect there is no issue upon which Senator Frist and Senator Reid have had discussions more frequently than this one, going back for the last 6 months.
I think there was bipartisan unhappiness in the Senate with the degree to which the Senate had deteriorated in the last Congress--this sort of random, mindless killing of nominees, 10 of them.
I think what has happened tonight is a result not only of the steadfastness of our majority leader, BILL FRIST, but also this coming together of the group of 14, led in large measure on our side by Senator McCain and Senator Warner from Virginia, one of the real true supporters of this institution. They have allowed us to sort of step back from the brink. As I read this memorandum of understanding, signed by the seven Democrats and seven Republicans, all options are still on the table with regard to both filibusters and constitutional options. But what I also hear from these 14 distinguished colleagues is that they do not expect this to happen. We have marched back from the brink, hopefully taken the first step, beginning tomorrow with cloture on Justice Priscilla Owen, to begin to deal with judicial nominations the way we always have prior to the last Congress. Sure, there were occasional cloture votes, but they were always invoked. They were always for the purpose of getting the nominee an up-or-down vote.
I want to thank Senator Warner and his colleagues for making it possible for us to get back to the way we operated quite comfortably for 214 years. So even though this is not an agreement that I would have made or that the majority leader would have made--because he and I both believe that all nominees who come to the floor are entitled to an up-or-down vote--it is certainly a good beginning. And three very, very distinguished nominees, whose nominations have been languishing for a number of years, are going to get an up-or-down vote. I think that is something we can all celebrate on a bipartisan basis.
So I do indeed think this has been a good night for the Senate. And I am optimistic that for the balance of this Congress, we will operate the way we did for 214 years prior to the last Congress.
Mr. President, I yield the floor.

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