Executive Session
EXECUTIVE SESSION -- (Senate - May 19, 2005)
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Mr. McCONNELL. If I could reclaim the balance of my brief time, what we have is a further effort to make it impossible to do the people's business in the Senate. The normal way we do business is for action to be going on on the floor, and additional action in committees at the same time. As a result of these objections, we have thwarted progress. We have thwarted progress on an energy bill, on a JOBS bill, on a disaster relief bill. Yesterday, an Intelligence Committee meeting had to be cancelled. Here we are in the middle of the war on terror and the Intelligence Committee was not allowed to meet.
Today's objections will shut down our meetings on the Energy bill, a closed CIA briefing on terrorism and proliferation of weapons in Iran, the Foreign Relations Committee, on strengthening America's workforce over at the Labor Committee, another Intelligence Committee shutdown by this action and, of course, the Judiciary Committee will not be able to continue its markup of the asbestos bill.
We are following the regular order. The majority leader simply called up a judicial nominee to be considered by the Senate. There is nothing irregular in any way about the procedure that is being followed, and yet our friends on the other side of the aisle are shutting down the business of the Senate by making it impossible for committees to do the work of the American people on everything from intelligence matters to passing an energy bill when gas prices are at record highs. This is an incredibly irresponsible approach to the majority's efforts simply to move the people's business along by following regular order and moving toward a vote on the President's nomination for the court of appeals.
I yield the floor.
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Mr. McCONNELL. Reserving the right to object, and I will object, let me say to my good friend from Illinois, this is a scheduling issue. His party was in the majority for 18 months between 2001 and 2002. Then, Majority Leader Daschle got to decide the order of matters to be considered in the Senate. That is the prerogative of the majority leader.
I am certainly pleased to hear of the enthusiastic support of my good friend from Illinois for the nominee, Griffith. Nevertheless, the majority leader, Senator Frist, is charged with the responsibility of determining the order in the Senate. We are on a nomination that enjoys bipartisan support, a majority of bipartisan support, and that is Texas Supreme Court Judge Priscilla Owen.
I am of the belief that some of the efforts to shut down the activities of the Senate may be coming to a close, and I will seek the floor for the purpose of offering a unanimous consent to allow the Foreign Relations Committee to at least meet, which is good news. Unfortunately, other committees are still shut down by not following the normal procedure in the Senate where committees are busily at work while action is occurring on the Senate floor. As a result of actions in the last 2 days, the Energy bill is thwarted, the JOBS bill is thwarted, disaster relief is thwarted, and a closed intelligence meeting was not held again today. The Energy bill, the HELP Committee is out of action today. Asbestos is not going forward.
All of these efforts to delay activity in the Senate, to shut down the Senate are not necessary. It is routine in the Senate for committees to be doing work while we have debate on the floor. Nothing extraordinary is happening on the floor. We are following regular order. The majority leader, as is his right, had called up a nomination, and we are debating it.
We will get around to Mr. Griffith, and I am certainly pleased to hear that the assistant minority leader is in favor of him. That is good news. That is one, when we turn to him, I look forward to confirming with not a great deal of debate.
With regard to the current consent agreement, I object.
The PRESIDING OFFICER. The objection is heard.
Mr. DURBIN. Mr. President, let me say it is clear now this is not about moving judges forward because I have offered an opportunity for the Republican majority to move a circuit judge in Utah forward on a bipartisan basis, as most of President Bush's nominees have been moved forward. It is about the fact that President Bush has not had every single nominee he sent to Congress approved. More than 95 percent have been approved.
There is another controversy relating to the State of Michigan--and I see my colleague, Senator Stabenow, is here--a controversy that goes back to the Clinton administration when a systematic effort was made to deny any nominee, virtually any nominee sent by the Clinton White House to the Senate Judiciary Committee, the opportunity for a hearing and fair consideration.
Naturally, the Senators from Michigan were upset that very qualified men and women were not given a chance to present their credentials and to come to a hearing and have a committee vote. Over the years they have expressed that concern and asked there be some balance in the nominations to fill the vacancies.
At this point, I ask unanimous consent we set aside the pending business of the Senate, discharge the Senate Judiciary Committee from further consideration and immediately consider the nomination of Michigan Circuit Court nominees Griffin, McKeague, and Neilson.
Mr. McCONNELL. Reserving the right to object, and I will object, once again, it is good news to hear the Senator from Illinois is going to be supportive of three circuit judges from Michigan who have been denied an opportunity to have an up-or-down vote for many years. The majority leader certainly has on his list for very near future consideration all of those judges, and I am pleased to hear they will be in all likelihood approved when they are brought up at a time of the majority leader's designation.
Let me repeat, all we are looking for is an up-or-down vote. We are not looking for a guaranteed outcome. But my friend from Illinois is probably suspicious that there will be success if up-or-down votes are granted because all of the judges who have been pending have bipartisan majority support.
We will look forward to dealing with all of the judges the Senator from Illinois would like to schedule, instead of the majority leader, in the very near future, but in the meantime we are dealing with the nomination of Justice Priscilla Owen to the Fifth Circuit.
Mr. President, I object.
Mr. DURBIN. Let me close briefly and say if the argument is being made by the Republican side that there is committee activity that should go on that is more important than this constitutional debate on the floor of the Senate, I would also make the argument that there is important floor activity that just could have taken place. We could have approved four more judges for President Bush at the circuit level, moved forward on a bipartisan basis, and done it before lunch.
It was the decision on the Republican majority side that rather than bring this to a vote, bring it to closure, make progress, show we are working together on a bipartisan basis, instead they are going to continue to press for the so-called nuclear option so that Vice President Cheney can wipe away a 200-year tradition in the Senate with the wave of a hand. Unfortunately, that is a sad commentary on where we stand today.
I yield the floor.
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Mr. McCONNELL. Mr. President, I want to say this to my good friend from Oregon before he leaves the floor. I listened intently to his extremely well-crafted and reasoned arguments, and I congratulate him for his important contribution to this momentous, significant debate we are having in the Senate, trying to get ourselves back to the way we comfortably operated for 214 years. I thank my colleague for his contribution.
Because of the unprecedented obstruction of our Democratic colleagues, the Republican conference intends to restore the principle that, regardless of party, any President's judicial nominees, after full debate, deserve a simple up-or-down vote.
I know that some of our colleagues wish that restoration of this principle were not required. But it is a measured step that my friends on the other side of the aisle have unfortunately made necessary. For the first time in 214 years, they have changed the Senate's ``advise and consent'' responsibilities to ``advise and obstruct.''
Our Democratic friends did not bring us here by accident. For 4 years, they have steered the Senate toward this unfortunate path. In April of 2001, Senate Democrats held a private weekend retreat in Farmington, PA, to hatch a plan of attack against the President's judicial nominees. According to the New York Times, one participant at the meeting said, quote, ``it was important for the Senate to change the ground rules, and there was no obligation to confirm someone just because they are scholarly or erudite.'' And, thus, we embarked on this uncharted course.
Until the last Congress--the 108th Congress--it had been standard procedure not to filibuster judicial nominees. That changed on February 11, 2003. On that day, Senator Hatch, chairman of the Judiciary Committee, sought consent to consider Miguel Estrada's nomination to the DC Circuit Court. My friend, Senator Dodd, refused. Senator Hatch offered to increase the amount of time for debate by 10 hours and was refused again. He offered 20 hours. He offered 40 hours. He offered even 50 hours of debate, an unprecedented amount of time. Senator Dodd said as follows:
This is not about the amount of time.
We have heard the repeated argument on the other side that this is about the right to speak. Senator Dodd said that this is not about the amount of time.
Remember that, Mr. President. The next time you hear any one of our Democratic colleagues complain that when we restore the norms and traditions of the Senate, we will be limiting their right to speak or cutting off debate, they themselves say it is not about that. Such claims actually don't withstand scrutiny. I could not agree more with my friend from Connecticut when he said this current impasse is not about the amount of time available to debate.
The Democratic leader, my friend, Senator Reid from Nevada, also agrees with me. When Senator Bennett requested an agreement to consider the nomination of Justice Priscilla Owen to the Fifth Circuit, Senator Bennett also bent over backward to give the minority whatever number of hours for debate it needed.
Senator Reid responded:
There is not a number in the universe that would be sufficient.
``There is not a number in the universe that would be sufficient.'' Clearly, it must not have been about getting enough time. Our Democratic friends went on to block several more reasonable requests to consider circuit court nominations.
So it is clear the Democrats do not want more time to debate. The minority leader indicated there was not enough time in the universe for that. Rather, a minority of Senators are rejecting the opportunity to debate because they want to kill qualified judicial nominations with clear majority support.
These nomination have gone for 2, 3, even 4 years--the current justice pending on the calendar has been up for 4 years--without a vote, while vacancies on the Federal bench pile up.
Let's take, for example, Justice Priscilla Owen, who is the pending business of the Senate. She was nominated, as I just indicated, by the President 4 years ago to sit on the Fifth Circuit. Justice Owen has served with honor for 10 years on the Texas Supreme Court. She won reelection with a whopping 84 percent of the vote, far more than most of our colleagues who oppose her. She has the support of both Democrats and Republicans from Texas who know her best. She has endured 4 years of slanderous attacks from partisan groups with grace and poise.
All of that meant nothing once she landed in the crosshairs of the Senate's obstructionist minority. We devoted 17 legislative days to discuss her qualifications--17 days--and we have held four cloture votes on Justice Owen's nomination in order to allow the entire Senate to pronounce its collective judgment on her qualifications. But a minority of Senators is determined to deny the Senate the exercise of its constitutional duty. All four cloture votes have failed.
On May 1, 2003, cloture failed on the Owen nomination by a vote of 52 to 44. One week later, it failed 52 to 45. On July 29 of that year, it failed 53 to 43, and on November 14 of that year, it failed 53 to 42. For every one of those votes, Justice Owen had a clear majority and, in fact, bipartisan support. But some continued to do the unthinkable. They continued to set the precedent that only 41 Senators should have the right to dictate to the President who he or she can and cannot appoint to our Federal courts.
Justice Owen is not the only person they have obstructed. In the 108th Congress, an obstructionist minority blocked the Senate from giving its advice and consent a record 20 times. Twenty votes on judicial nominees were held, and 20 times a minority of Senators refused to let the Senate discharge its constitutional duty to render advice and consent. Twenty times, Mr. President, in the 108th Congress they stopped a judicial nominee who clearly had majority bipartisan support from receiving the courtesy of an up-or-down vote. They filibustered 10 different circuit court nominees within 16 months. This is completely without precedent, and it is also not fair. Any President's judicial nominees should receive careful consideration, but after that debate, they deserve a simple up-or-down vote.
Despite the Democrats' power grab, we offered them several compromises that allowed for extended debate but still give nominees the courtesy of an up-or-down vote. They rejected every one. For instance, in May 2003, the majority leader, along with Senator Zell Miller of Georgia, a Democrat, proposed S. Res. 138, the Frist-Miller cloture reform proposal.
The Frist-Miller proposal was narrowly tailored after a much broader Democratic proposal from 10 years ago that would have completely eliminated the filibuster in its entirety. The Democratic proposal would have eliminated the filibuster from legislation, to which it has been historically confined, as well as for judicial nominations, where it had not been used until the last Congress.
Interestingly, all Republicans, every single one, voted against the Democratic proposal because it would have eliminated the legislative filibuster. In fact, it was the first vote that Majority Leader Frist cast in the Senate. The only Senators who voted for that proposal were our friends on the other side of the aisle, nine of whom are still serving in this body today, singing a different tune, I might add.
I have heard several of my friends on the other side of the aisle warn ominously that if the Senate votes to reestablish the norms and traditions of this body with respect to judicial nominations, this could somehow lead to the infringement or even abolishment of a filibuster as applied to legislation. What nonsense. That will not happen because certainly nobody on this side is in favor of this, and I gather now nobody on the other side is in favor of it, even though nine of them were for it 10 years ago.
When the Democrats proposed to do away with the legislative filibuster 10 years ago, nobody on this side of the aisle supported it, and I am confident nobody on this side of the aisle would support it today. What is remarkable about that is back in 1995 when our friends on the other side were proposing eliminating the filibuster, it was right after our party came to the majority. We would have been a big winner of that had it passed, but yet not a single one of us voted for it. What did we do? We exercised restraint.
So back to the Frist-Miller proposal which, as I said, was a narrowly focused version of the Democratic--I stress ``Democratic''--bill to eliminate the filibuster altogether. The Frist-Miller proposal was much more moderate, much more measured. It would have applied only to nominations, not to legislation. It would have allowed Senators after 12 hours of debate to file successive cloture motions with declining requirements to achieve cloture. The final cloture threshold would be a majority of Senators present and voting.
The Frist-Miller proposal would have allowed the minority sufficient time for debate while reestablishing the Senate's 214-year history of allowing nominees with majority support to receive the courtesy of an up-or-down vote. It was a good proposal. Unfortunately, our Democratic colleagues rejected it.
In April 2004, a little over a year ago, the majority again reached out to our Democratic colleagues. We suggested another approach to break this impasse on judicial nominations. This time the chairman of the Judiciary Committee, Senator Specter, took the lead by offering S. Res. 327, the Specter protocol. Under the Specter protocol, judicial nominees would receive a committee hearing, a committee vote, and a floor vote within a reasonable amount of time regardless of which party controlled the Senate and the White House.
The chairman of the Judiciary Committee would agree to hold hearings for the nominees within 30 days of the submission of their names by the President. The chairman would set a date for the full committee to vote within 30 days of those hearings. And the majority leader would set an up-or-down vote on the Senate floor within 30 days after the nominee was reported out of committee. It was pretty simple.
As I indicated, these timetables would apply whether Democrats or Republicans were in charge of the Senate, whether the same party controlled the White House and the Senate, or whether the two parties split the control.
I bet to the vast majority of people listening, that sounds like an extremely fair, bipartisan solution. I agree with them. Again, unfortunately, our Democratic friends have not embraced it.
At this point, most people would throw up their hands and give up. We do not have the luxury of doing that, however, because the American people elected all of us to act on these issues that confront the country. Restoring Senate tradition and thereby restoring the proper balance of power between the executive and legislative branches is one of our responsibilities, and we need to do it.
We Republicans redoubled our efforts and patiently tried again. In the interim, though, we had an election. President Bush and several candidates for the Senate, many of whom serve here today, met thousands of mainstream ordinary Americans who were angry at the obstructive attempts to disfigure the filibuster. Thousands of Americans told President Bush and their Republican candidates for the Senate that they do not believe the President's nominees are out of the mainstream, and they do not like a minority of the Senate preventing the Senate from discharging its constitutional duty.
Millions of them turned out to reelect President Bush, giving him more votes than any Presidential candidate in American history. And millions voted to increase the majority's number in this body from 51 to 55.
Given those results, many of us had hoped that the politics of obstruction would have been dumped in the dustbin of history. Regretfully, that did not happen.
Recently, we Republicans tried again to reach an accommodation with our Democratic colleagues. Last month, the majority leader offered a comprehensive, thoughtful, and fair-minded solution. It is called the fairness rule. My Democratic colleagues had repeatedly complained that some of President Clinton's nominees were never reported out of the Judiciary Committee, and that is a valid point. They had a point. So to address the concern, the Frist fairness rule guarantees that every nominee would be reported out of Judiciary--presumably some of them maybe not with majority support--preventing any nominee from getting blocked in committee, which is the principal complaint the Democrats have about how they had been treated when our party controlled the Senate and their party the White House.
The Frist fairness rule guarantees every nominee would be reported out of Judiciary, preventing any nominee from getting blocked in committee. The principal complaint we have heard repeated so often out here is that the Republicans were simply doing in committee under Clinton what the Democrats are doing on the floor under Bush. We will deal with that.
In addition, my Democratic colleagues complain they need to have the right to debate judicial nominees protected.
This complaint is incongruous with Senator Reid's comment that there was not enough debate time ``in the universe'' to allow a vote on Justice Priscilla Owen. It must not have been about time because he said there was not enough time in the universe.
Nevertheless, the Frist fairness rule guarantees up to 100 hours of debate on every nominee, allowing every member to have his or her say. This is more time than has been devoted to most Supreme Court nominees.
Finally, the Frist fairness rule guarantees up-or-down votes for every circuit court or Supreme Court nomination, regardless of which party controls the Senate or the White House. So the fairness rule could not have a more appropriate name. It guarantees a full and comprehensive debate. It guarantees every Senator a constitutional right to cast a fair up-or-down vote for every judicial nominee. It guarantees every President that their judicial nominees will get through committee and get a vote on the Senate floor and, of course, it would not apply to legislation at all.
Once again, our Democratic colleagues quickly rejected this proposal.
To recap, the majority in the Senate has had weeks of debate. We have tried multiple and generous time agreements. We have offered the Frist-Miller proposal. We have suggested the Specter protocols. We have offered the Frist fairness rule. Unfortunately, our Democratic colleagues have rejected all of these efforts at accommodation.
We have reached the point in this debate where not a lot of new things are being said, but not everybody has yet said it. But I want to make a point that I believe has not been made by anyone today. For 70 percent of the 20th century, the same party controlled both the White House and the Senate. For 70 percent of the 20th century, the same people running the White House were running the Senate. Most of the time, the people in the minority in the Senate were people of my party. Yet Republicans did not filibuster, for example, the judicial nominees of Franklin Delano Roosevelt, even though he appointed eight Justices to the Supreme Court and elevated another to Chief Justice.
More recently, the Republican minority did not filibuster the judicial nominees of Presidents Carter and Clinton because we were in the minority for 2 years under President Clinton and all 4 years under President Carter, even though several of these nominees were extremely controversial and did not enjoy supermajority support.
To be fair, when Senator Byrd was the minority leader, he did not lead his Democratic caucus in the Senate to filibuster President Reagan's judicial nominees either, and Senator Byrd should be commended for that. That was an extraordinary act of statesmanship. He could have done at the time he was in the minority when President Reagan was in the White House what has been done in the previous Congress.
When Senator Byrd was minority leader, he did not lead his Democratic Caucus in the Senate to filibuster President Reagan's judicial nominees. Not until 2 years ago has a Senate minority ever decided to filibuster a President's judicial nominations on a repeated partisan and systematic basis when they clearly enjoyed majority support.
To correct this abuse, the majority in the Senate is prepared to restore the Senate's traditions and precedents to ensure that regardless of party, any President's judicial nominees, after full and fair debate, receive a simple up-or-down vote on the Senate floor. It is time to move away from advise and obstruct and get back to advise and consent.
The stakes are high. The Constitution of the United States is at stake. Article 2, section 2 clearly provides the President and the President alone nominates judges.
The Senate is merely empowered to give advice and consent, but our Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation.
In effect, they would take away the power to nominate from the President and grant it to 41 Members of the Senate. In other words, there would be the distinct possibility and in fact great likelihood, if this continues, that 41 Members of the Senate will dictate to the President of the United States who may be a member of the Supreme Court and other courts.
We have made every effort to reach out and compromise, but our colleagues at least so far have refused. The only choice that remains is to hold a vote to reaffirm the traditions and precedents that have served this body so well for the last 214 years. Let us vote.
I yield the floor.
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