Mr. President, I think the facts are clear. You have heard this many times. Almost everything has been said, but not everybody has said it. I want to go over some of the facts I think are very important. For 214 years judicial nominations…
Mr. President, I think the facts are clear. You have heard this many times. Almost everything has been said, but not everybody has said it. I want to go over some of the facts I think are very important.
For 214 years judicial nominations have come to the Senate floor and have been considered without filibuster. It is a courtesy extended by my fellow Senators to the President. By resorting to filibustering judicial nominees who have the support of a majority of Senators, which began in 2003 by colleagues on the other side of the aisle, they are throwing overboard 214 years of Senate courtesy and tradition.
The Constitution of the United States does not contain a word about filibusters. The Federalist Papers do not contain the word ``filibuster.'' Rather, the Constitution lays out the standards for confirming judges. It does not require a 60-vote majority for confirmation. It requires a majority vote to confirm members of the Federal judiciary.
The Democrats in this Chamber have taken it upon themselves to rewrite the rules for confirming justices. They now demand 60 votes for confirmation to a circuit court or potentially a Supreme Court position.
For the first time, judicial nominations with clear majority support are denied an up-or-down 51-vote, Senate majority vote on the Senate floor through the unprecedented use of the filibuster.
There is no constitutional authority for their demands, and it is an abandonment of the tradition of this Chamber. We are perfectly within our rights and history is on our side as we prepare to take steps to ensure the confirmation of judges with majority support.
In an attempt to cloud these rather clear facts, the Democrats have put forward a parade of dubious arguments to support their filibusters, obfuscation to justify political obstructionism.
One of the facts they overlook is their obligation to check the President--and our very system of checks and balances gives them authority and
demands action. But the Senate has the ability to check the President, not a minority of the Senate willing to pervert the rules of this body. The majority, therefore the Senate as a body, and representing a separate branch of Government, has spoken on these nominations. These nominees enjoy the support of the majority body's Members. The President has made his nominations and made his case for the nominations. Supporters and opponents of the nominees have made their case before the Senate on these nominations. From the votes we have taken we have seen that a majority of the Senate agrees with the President and supports his nominations. Under the system to check the President, as laid out clearly in the Constitution, the President has carried the issue and won the support of the body that has the authority to register its disapproval.
It has not disapproved. The Constitution says nothing on the subject of a filibuster, and it says nothing of the power of a minority to defeat the President's judicial nominations. It is the product of a rule of the Senate passed many years after the ratification of the Constitution. This rule does not derive from the authority of the Constitution. Furthermore, the rule is being used in a manner never used before. It is a perversion of the intent of the Constitution and, if its use in this manner is not abandoned, then we must take steps to wipe it from the books.
Let me go back to statements made about this process. Democrats are trying to change the constitutional standard for confirmation from a simple majority to a 60-vote standard. That is why we see the claim of the distinguished senior Senator from West Virginia that the nominations were rejected because they did not get 60 votes for cloture in the 108th Congress. Senators from Nevada, New York, Wisconsin, and Massachusetts have said they were rejected. A 60-vote standard is contrary to the Constitution. The Constitution spells out clearly where a supermajority is required: For veto overrides, constitutional amendments, treaty ratification, expelling a Member, convictions for impeachment. Judicial confirmation is not one of them.
It is also a double standard based on past treatment of a Democratic President's nominees. For example, Clinton nominees Richard Paez and Susan Molloway and William Fletcher were all confirmed with fewer than 60 votes, as were Carter nominees Abner Mikva and L.T. Senter.
It is said that justice delayed is justice denied. These filibusters of judicial nominations have slowed the consideration of cases in the Federal appeals court, especially in the Sixth Circuit, where Democrats have blocked four qualified nominees. As my colleague from Mississippi has pointed out, these good people who have devoted their life to law and the judiciary have been subject to interminable delays, personal vilification, without giving them the right to an up-or-down vote which this body has already demonstrated they would give them.
Look at what they have said. Back in 1975 in the Congressional Record of February 20:
The filibuster has been the shame of the Senate and the
last resort of special interest groups. Too often, it has
enabled a small minority of the Senate to prevent a strong
majority from working its will and serving the public
interest.
So spoke the senior Senator from Massachusetts.
Then, in 1998, June 18, a statement from the Congressional Record:
I have stated over and over again on this floor that I
would . . . object and fight against any filibuster on a
judge, whether it is somebody I opposed or supported.
That was the senior Senator from Vermont.
He also said:
I do not want to get [to] having to invoke cloture on
judicial nominations. I think it is a bad precedent.
Congressional Record, September 16, 1999.
Another quote:
If we want to vote against somebody, vote against them. I
respect that. State your reasons. I respect that. But don't
hold up a qualified judicial nominee . . . I have stated over
and over again on this floor that I would . . . object and
fight against any filibuster on a judge, whether it is
somebody I opposed or supported; that I felt the Senate
should do its duty.''
Same Senator from Vermont, June 18, 1998.
Here is another one from the Congressional Record March 19, 1997:
But I also respectfully suggest that everyone who is
nominated ought to have a shot, to have a hearing and have a
shot to be heard on the floor and have a vote on the floor .
. . It is totally appropriate for Republicans to reject every
single nominee if they want to. That is within their right.
But it is not, I will respectfully request, Madam President,
appropriate not to have hearings on them, not to bring them
to the floor and not to allow a vote . . .
That was the distinguished senior Senator from Delaware, March 19, 1997.
Here is another good quote:
The Chief Justice of the United States Supreme Court said:
``The Senate is surely under no obligation to confirm any
particular nominee, but after the necessary time for inquiry
it should vote him up or vote him down.'' Which is exactly
what I would like.
The distinguished senior Senator from Massachusetts, Congressional Record, March 7, 2000.
Mr. President, the minority had the opportunity to win their argument long before it reached the Senate. They had a chance to win at the ballot box. They argued that the American people could send Members of the Senate who agreed with their legislative agenda and their view of the role of the judiciary. The American people did not agree with the minority and sent an increased majority of Members to the Senate who agree with the President on the role of the judiciary, the type of individuals who should occupy these positions, and the need to give them an up-or-down vote.
On two occasions, my colleagues on the other side of the aisle had the chance to win the argument on judicial nominations and had a chance to win this argument at the ballot box. They did not. They had a chance to convince a majority of the Members of the Senate that the nominees are unsuitable to sit on the Federal bench. They were unable to do so. So they have resorted to turning a Senate rule on its head and insisting on an application never used before to win a debate they could not win by a simple 51-vote majority.
Now our Democratic colleagues come to the floor and say the view of the majority of the Senate and the view of a President, who won the most votes ever by any President, is out of the mainstream. A minority is now demanding their view--which is the minority opinion in this body, and apparently from the opinion polls and our contacts, the minority opinion in the country--should carry the day as to what is and what is not in the mainstream. Once again, this line of thought would seem to turn logic on its head.
To cloud further the unprecedented nature of their attack on the President's nominations, my Democratic colleagues are blowing their own horn about confirming 208 of the President's nominees versus only defeating 10; a stellar record of cooperation they claim, evidenced by confirming 95 percent of the President's nominees. By confirming the President's district court nominees they are attempting to hide a blatant attack on the President's nominees for higher court, appellate courts, courts of appeal.
The circuit courts of appeals are the second most important courts in the land behind only the Supreme Court of the United States. When it comes to confirmation of the President's nominees, their record is not one of cooperation but one of unprecedented assault. Nearly one in three of President Bush's nominees for the Federal court of appeals has been targeted for defeat. This is not by accident. We know two days after the Senator from Vermont switched parties and changed the balance of the Senate in June of 2001, a number of extreme left-leaning groups met to plot the defeat of circuit court nominees. Their analysis showed a Republican President would surely nominate judges with a philosophy consistent with the President, strict construction of the Constitution, rather than the extreme leftwing judicial legislation views of their own. The left-leaning groups saw their balance on the court decreasing, and their plan was to defeat circuit court nominees. Their plan was not to argue for judges in the mainstream or to defeat district court nominees. Their objective was to defeat, by any means, circuit court nominees of President Bush.
Yesterday we saw this outline in the Washington Times. These groups, in
turn, met with Senate Democrats to target certain nominees. Surprisingly, the nominees the groups decided to target seemed to be neatly in line with those ultimately targeted by Senate Democrats. So, actually, the minority has been outsourcing their decision as to who is and who is not in the mainstream to outside liberal groups such as People for the American Way, which a glance at any of their material reveals they are not exactly in the mainstream.
Here are a couple of excerpts from the Washington Times article yesterday:
In a November 7, 2001, internal memo to Sen. Richard J.
Durbin, who is now the minority whip, an aide described a
meeting that the Illinois Democrats had missed between groups
opposed to Mr. Bush's nominations and Sen. Edward M. Kennedy,
Massachusetts Democrat and member of the Judiciary Committee.
The memo goes on to State:
Based on input from these groups, I would place the
appellate nominees in the categories below . . . listing 19
nominees as ``good,'' ``bad'' or ``ugly.''
Four of the 10 nominees who Democrats have since
filibustered were deemed either ``bad'' or ``ugly.'' None of
those deemed ``good'' by the outside groups was filibustered.
Among those listed as ``ugly,'' was Texas Supreme Court
Justice Priscilla Owen, whose nomination will be brought to
the floor today by Majority Leader Bill Frist, Tennessee
Republican.
In a June 4, 2002, memo to Mr. Kennedy, staffers advised
him that Justice Owen would be ``our next big fight.''
``We agree that she is the right choice--she has had a bad
record on labor, personal injury and choice issues, and a
broad range of national and local Texas groups are ready to
oppose her,'' the aides wrote.
I ask unanimous consent this be printed in the Record after my statement.
As I believe has been stated many times before, Justice Owen has won overwhelming support, more than three-quarters support of the majority of Texas and the endorsement of major leading newspapers, the Bar Association, but the left-leaning groups did not like her.
Our colleagues in the minority want congratulations for the fact that nearly all of the President's trial court judges have been confirmed. I respect greatly the men and women on the Federal district court. In the eyes of the Senate Democrats, however, clearly, all judgeships are not created equal.
We see the contrast between the way the Democrats are conducting business and the way business has been conducted by tradition. Nearly one of three of the President's nominees to the appellate court, the circuit court are being filibustered. Prior to the Democrats embarking on this path, 2,372 nominees were confirmed without a filibuster; 377 of President Clinton's nominees were confirmed without a filibuster. Judges were confirmed for 214 years without there being a filibuster. So the minority has turned over the determination as to who is and who is out of the mainstream to a number of out-of-the-mainstream groups, and they let these groups lead us down the path of destroying Senate tradition of 200 years. Not a record, in my view, that warrants a hardy pat on the back.
In a thoughtful opinion piece in today's Washington Times, majority leader Bob Dole recalls there were a few nominations made by President Clinton that were clearly objectionable to most Republicans. He said:
I recall two judicial nominations of President Clinton's
particularly troubling to me and my fellow Republicans
members when I was the Republican Leader in the Senate.
Despite our objections, both received an up-or-down vote on
the Senate floor. In fact, I voted to end debate on one of
these nominees while voting against his confirmation.
Republicans chose not to filibuster because it was considered
inappropriate for nominations to the federal bench.
Senator Dole goes on to say:
By creating a new 60-vote threshold for confirming judicial
nominees, today's Senate Democrats have abandoned more than
200 years of Senate tradition.
For the first time, judicial nominees with clear majority
support are denied an up-or-down vote on the Senate floor
through an unprecedented use of the filibuster. This is not a
misrepresentation of history; it's a fact.
I ask unanimous consent that be printed in the Record after my remarks.
We have heard a lot of statements and posturing from the other side about the President trying to pack the courts and how this is a nuclear option.
Let me tell you what the nuclear option is. The Democrats say if we go back to the tradition of confirming judges by a 51-vote up-or-down majority in the Senate, they are going to blow up the Senate. They are going to bring everything to a halt. They are going to destroy this body because we insist on what Democrats, prior to 2001, agreed with us; that is, judicial nominations brought to the floor deserve to be confirmed by a 51-vote up-or-down majority.
Already, we have seen the Democrats' stall tactics. ``Stall ball'' is being played. For people not in this body, you may not know that any Senator has a right to object to committee hearings being conducted 2 hours after the Senate goes in session. Even though this is regular order, this is standard procedure, we have had the Democratic side object to holding hearings.
Yesterday, we were scheduled to have a very important meeting in our Intelligence Committee to go over current threats, the intelligence of the dangers that our troops in the field face and the dangers we in the homeland face. That meeting was canceled because the Democrats objected.
The Energy Committee is trying to write a very important bill dealing with energy. We have not had an energy policy in a decade and a half. Gas prices have gone through the roof. We are seeing shortages. We are paying at the pump. We are paying in our home heating bills, paying with jobs going overseas because of the unnatural, artificial restrictions on the development of sources of energy in the United States--natural gas, oil, and even renewable fuel--while demand artificially is being increased for natural gas by the requirement that rules require it be used in electric utilities. And yet by objecting to committee hearings, the Democrats are limiting the Energy Committee to 2 hours a day and a markup.
It is not the President who is distorting rules to forward his nominations. It is not the President who has abandoned tradition and courtesy in forwarding his nomination. It is not the President who is attempting to rewrite the Constitutional standard for confirming judges. The other side of the aisle thinks if they can muster 41 votes, they ought to stop anybody that their leftwing, liberal interest groups target for blocking from confirmation. The President is exercising his constitutional role to appoint members of the Federal judiciary, and he is doing so following his decisive victory last fall after winning more votes than any other president in history, promising to appoint good, well-qualified, highly qualified, highly respected judges and attorneys to the courts of appeal. Who is and who is not in the mainstream of American thought?
I believe it is clear that the President and the majority in the Senate have a right to give these well-qualified nominees an up-or-down 51-vote majority vote on the floor of the Senate.
Mr. President, I thank the Chair and yield the floor.
Exhibit 1
[From the Washington Times, May 19, 2005]
Memos Reveal Strategy Behind Judge Filibusters
(By Charles Hurt)
The ``nuclear'' showdown that is expected to begin
unfolding in the Senate today has its origins in closed-door
discussions more than three years ago between key Senate
Democrats and outside interest groups as they huddled to plot
strategies for blocking President Bush's judicial nominees.
In a Nov. 7, 2001, internal memo to Sen. Richard J. Durbin,
who is now the minority whip, an aide described a meeting
that the Illinois Democrat had missed between groups opposed
to Mr. Bush's nominees and Sen. Edward M. Kennedy,
Massachusetts Democrat and member of the Judiciary Committee.
``Based on input from the groups, I would place the
appellate nominees in the categories below,'' the staffer
wrote, listing 19 nominees as ``good,'' ``bad'' or ``ugly.''
Four of the 10 nominees who Democrats have since
filibustered were deemed either ``bad'' or ``ugly.'' None of
those deemed ``good'' by the outside groups was filibustered.
Among those listed as ``ugly'' was Texas Supreme Court
Justice Priscilla Owen, whose nomination will be brought to
the floor today by Majority Leader Bill Frist, Tennessee
Republican.
The internal Democratic memos, downloaded from Democratic
computer servers in the Judiciary Committee by Republican
staffers, offer a unique look into the early stages of the
filibuster campaign, when Democrats were clearly doubtful
that they could succeed in blocking any of the nominees.
In the 14 memos obtained in November 2003 by the Wall
Street Journal and The Washington Times, Democratic staffers
outlined the concerns held by outside groups about Justice
Owen's ``hostile'' position toward abortion and her ``pro-
business'' attitude.
In a June 4, 2002, memo to Mr. Kennedy, staffers advised
him that Justice Owen would be ``our next big fight.''
``We agree that she is the right choice--she has a bad
record on labor, personal injury and choice issues, and a
broad range of national and local Texas groups are ready to
oppose her,'' the aides wrote.
Another nominee discussed often in the memos is Miguel
Estrada, a Washington lawyer who became the first
filibustered nominee and who withdrew his nomination to the
U.S. Court of Appeals for the D.C. Circuit after waiting two
years for a final vote.
In the 2001 memo to Mr. Durbin, the staffer explained the
concerns that the outside groups had about Mr. Estrada.
``They also identified Miguel Estrada (D.C. Circuit) as
especially dangerous because he had a minimal paper trail, he
is Latino, and the White House seems to be grooming him for a
Supreme Court appointment,'' the aide wrote.
The memos also reveal the close relationship between
Democrats and the outside groups.
In a June 21, 2002, memo to Democrats Mr. Kennedy, Mr.
Durbin, Sen. Charles E. Schumer of New York and Sen. Maria
Cantwell of Washington, a staffer urged delaying a hearing
for Mr. Estrada to ``give the groups time to complete their
research and the committee time to collect additional
information.''
One nominee who wasn't filibustered was Judge Timothy
Tymkovich, who now sits on the U.S. Court of Appeals for the
10th Circuit. But Democrats opposed moving him until all the
groups had given their approval.
``[I]t appears that the groups are willing to let Tymkovich
go through (the core of the coalition made that decision last
night, but they are checking with the gay rights groups),''
staffers wrote Mr. Kennedy in a June 12, 2002, memo.
But even as late as early 2003, Democrats appeared
concerned that they would not succeed in mounting a full-
scale filibuster against their first target.
In a January 2003 meeting between Democrats on the
Judiciary Committee and Democratic leaders in the Senate,
Democrats agreed to attempt a filibuster against Mr. Estrada.
``All in attendance agreed to attempt to filibuster the
nomination of Miguel Estrada, if they have the votes to
defeat cloture,'' the judiciary aides wrote. ``They also
agreed that, if they do not have the votes to defeat cloture,
a contested loss would be worse than no contest.''
Mr. President, I seem to recall that. I thought it was a very statesmanlike and accurate portrayal of the traditions of this body and the requirements of the Constitution, and I once again commend our colleague from Utah, who at that time was in a position where he obviously could have mustered 41 votes to block the nominee. It was the view of those of us who agreed with the Senator from Utah that we should not do that because the people of America elected a President who has--we know and he knows--the power to nominate judges. And it is necessary to maintain a well-staffed judiciary that we give prompt and up-or-down votes to these nominees.