Fairness In The Consideration Of Judicial Nominations
Mr. President, on Wednesday the Judiciary Committee favorably reported to the full Senate the nomination of Alabama Attorney General William Pryor for the Eleventh Circuit Court of Appeals. It has been more than 6 weeks since General…
Mr. President, on Wednesday the Judiciary Committee favorably reported to the full Senate the nomination of Alabama Attorney General William Pryor for the Eleventh Circuit Court of Appeals. It has been more than 6 weeks since General Pryor's confirmation hearing, and I am pleased that the full Senate will now have the opportunity to consider his nomination.
Nevertheless, we will no doubt hear over the course of this debate many allegations from some of our Democratic colleagues as to why they believe that Bill Pryor's nomination does not deserve an up or down vote by the full Senate. I want to make perfectly clear right now that there is no valid reason to delay this body's consideration of the Pryor nomination.
All we ask is that there be an up-or-down vote. Vote against him if you don't like the man personally--although there is little room to vote against him because of his record.
Despite these efforts by committee Democrats to erect a procedural roadblock to voting on the Pryor nomination in spite of fact that I had set five markups, I finally was able to have a markup on his nomination. They wanted to revive a debate over the interpretation of committee rule IV. This rule, entitled ``Bringing a Matter to a Vote'', was clearly intended to serve as a tool by which a determined majority of the committee could force a recalcitrant chairman to bring a matter to vote. In fact, the rule provides, ``The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote.''
Clearly, it was a rule by which you could force a chairman to have a vote. All you had to do was get a majority of the Senators on the committee with one from the minority side and you could force a chairman to call for a vote.
On Wednesday there was no motion to bring the matter before the committee to a vote. In fact, there was an objection to voting, which I overruled. Thus, on its face, rule IV was inapplicable to the Pryor nomination.
Despite claims to the contrary, there has been no inconsistency in my interpretation of this rule. First of all, I have checked with two Parliamentarians, and both said I could interpret the rule. I believe I have interpreted it correctly.
During the Clinton administration, in an effort to prevent the defeat in committee of a controversial Justice Department nominee, I was chairman and I wanted to bring the nomination to a vote. We had enough votes to defeat the nominee in committee. It would have been a 9-9 tie, and the nominee would have gone down to defeat. The Democrats then started to filibuster their own nominee. In deference to them, I chose not to exercise the inherent powers I and all committee chairmen have to bring a matter to a vote.
I have been condemned for that ever since as though I acknowledged that you should just have filibusters in the committee any time you want to. President Clinton ultimately made a recess appointment of their nominee. In retrospect, my reliance on rule IV to accomplish this was admittedly not the best course of action. I was wrong to say they could filibuster. But I was trying to be gracious to my colleagues on the other side who clearly did not want to vote on the record defeating their nominee. Since I respected and liked the nominee himself, but not for the particular position he was nominated for, I would have supported him for any other position. And I had good reason to be against him for this position. I agreed to allow their filibuster to cause me to pull down his nomination rather than to have a vote that would have been embarrassing to him and to the Democrats. And that is why they were filibustering their own nominee. Now they cite that as the reason why I am wrong here. But there is no reason for that.
I nevertheless believed then, and I do now, that I had the power to bring that matter to a vote, and that I used the discretion of the chairman to decide not to do so. It was a matter of showing decency and kindness to my colleagues on the other side and to the nominee so he would not have a vote that defeated him in committee.
The fact of the matter is I don't believe there should be filibusters in the Judiciary Committee. We have had at least two instances now where my colleagues on the other side have tried to filibuster. In addition, the Democrats now complain they weren't given enough time to do an investigation. We have given them all kinds of time to do an investigation. Since their investigation was proving to be fruitless because they couldn't find one thing to criticize Attorney General Pryor on, they wanted to have a fishing expedition to do further investigation.
I want to make clear that at no time did I agree to modify my interpretation of rule IV in connection with the Cook, Roberts, or Sutton nominations, which is the last context in which this debate arose. I did agree to bring Roberts back in to the committee and have one more day of hearing. I did not agree to bring Cook back or Sutton back. But at no time did I agree my interpretation of rule IV which I made at that time was in error. It certainly was not.
I can't imagine any committee chairman agreeing to give up his or her right to call for a vote in committee after there has been a sufficient debate. No chairman is going to give up that right because that means the minority could control the committee any time they wanted to. The argument which they make on this is ridiculous.
But, be that as may, at no time did I agree to modify my interpretation of rule IV in connection with the Cook, Roberts, or Sutton nominations, which is the last context in which this debate arose. To have adopted the interpretation my Democratic colleagues advanced both then and now would have constituted an unprecedented curtailment of the chairman's inherent authority to bring a matter to vote, and would have given the authority to control the committee to the minority. I don't think they would want that when they are in the majority, and I certainly don't want it now that we are in the majority. No other chairman I know of who has any brains at all would have allowed that type of interpretation. Yet you hear all of the screaming and shouting that they were mistreated.
In short, there was no violation of committee rules or process in bringing the Pryor nomination to a vote on Wednesday, and any argument to the contrary is merely a last-ditch effort to prevent the full Senate from considering that nomination.
Another complaint we will hear is there was an open investigation into General Pryor's activities on behalf of the Republican Attorneys General Association at the time of the vote. Here are the facts:
When our Democratic colleagues brought to our attention documents they obtained pertaining to RAGA, we joined with them to conduct a bipartisan investigation to determine the authenticity of the documents, whether they reflected any wrongdoing on the part of General Pryor. Committee staff interviewed several witnesses in connection with this investigation, with two notable exceptions. First, the Democrats' source of these documents has not answered key questions about when the documents were drafted, who drafted them, and who has had access to them. Second, Democratic staff asked General Pryor no questions about the documents, despite his willingness to answer whatever questions they may have had.
Nevertheless, our Democratic colleagues have insisted on pressing forward with an investigation, over Republican objection, based on unauthenticated and unreliable documents provided to them by a source who refuses to talk to Republican staff, whose former employer stated under oath that she stole the documents, and who has yet to disclose the details of when and how she first provided the documents to Democratic staff.
Some on our side wanted the committee to conduct an investigation of Democratic staff. I am certainly not going to do that. Frankly, Democratic staff, I think, have an obligation if they get documents to look at them and to present them to us. However, these documents weren't presented to us until the last minute.
Frankly, it is just another pattern of practice of delaying as long as they can and making it miserable for people like Bill Pryor to get a vote up or down. All we want is a vote up and down.
Democratic staffers have interviewed 20 persons but have found nothing inconsistent with General Pryor's testimony. There is simply nothing to indicate General Pryor was anything less than truthful about the material facts of his participation in the Republican Attorneys General Association. What is going on here is a classic game of ``beltway gotcha.'' That is no reason to delay consideration of General Pryor's nomination.
We even had members say we want to have another hearing for General Pryor after all that we have had. His was one of the longest hearings I can recall having in my 27 years on the Judiciary Committee. It was a very difficult hearing with a lot of moaning and groaning and screaming and shouting. Frankly, it was one in which I don't think he was treated as fairly as he should have been treated, nor do I think he has been treated fairly since. I think there are reasons for that. One of them is he is so forthright about his testimony and that he has conservative beliefs that I think some on the other side are afraid that even though his whole record is one of following the law, he might not follow the law if he gets on the Eleventh Circuit Court of Appeals--even though he is an honest man and said he will follow the law regardless of his personal viewpoint.
That is all you can ask of these people. When you have a person of the integrity and the ability and the capacity of William Pryor who says he will follow the law, you had better believe it, in my opinion. If we get to the point where we have to second-guess people who have an impeccably honest reputation around here, it is going to get to where nobody who has any views is going to be able to serve on the Federal courts of this land. That is wrong.
I felt like I needed to come here today and say some of these things, because in all honesty I think we have had too many of these type of ridiculous battles in the Senate Judiciary Committee.
I am trying to bring some decency to the committee. I have tried to work as closely with my colleagues who differ with us on our side as I possibly can, and I am going to continue to do that, and try to work in a decent, honorable, good way with my colleagues. But I do personally resent some of the accusations that have been made, some of the mischaracterizations that have been made, some of the things that have been done to besmirch some of these excellent people whom the President of the United States has nominated, and a continuation of filibustering on the floor of the Senate.
Having said that, I am going to conclude with these remarks: Never in the history of the Senate--before Miguel Estrada, Priscilla Owen; and now there is some indication there is going to be a filibuster of William Pryor, the attorney general of the State of Alabama--never has there been a filibuster, a true filibuster against anyone.
Now, I thought--and I have said it on the floor--I thought there was a filibuster of the Fortas nomination, but I was corrected by none other than the Senator who led the fight against Fortas--and that was Robert Griffin of Michigan--in a Republican policy meeting, where he said: I only need to correct Senator Hatch on one statement that he made; and that is, that having led the fight against Fortas--for a variety of what he believed were appropriate reasons; and apparently a majority of the Senate did--he said: We were never filibustering Abe Fortas. And the reason we were not is because we had the votes to defeat him up and down.
But the Democrats called for a cloture vote, which was narrowly won by Fortas, with 12 Members absent at the time, many of whom would have voted against Abe Fortas.
So never in the history of this body has there been a filibuster against any Federal judicial nominees until this year. And now we have two--and a potential of three. And I hope they are not going to filibuster Kuhl. And I hope they are not going to filibuster Holmes. And I hope they are not going to filibuster Judge Pickering when he comes out of the committee, and others.
It is a dangerous thing to do. It is a wrong thing to do. It flies in the face of senatorial history. In the end, this body is going to be very saddened if that is the way all of these nominations wind up, without an up-and-down vote on the floor of the Senate.
What is wrong with having up-and-down votes on the floor of the Senate for these nominees? Whether it is a Democrat President or a Republican President, once they are brought to the Senate floor, they deserve an up-and-down vote. That is all we are asking for.
I yield the floor.