[Congressional Record Volume 149, Number 69 (Friday, May 9, 2003)]
[Senate]
[Pages S5981-S5983]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         AMENDING SENATE RULES

  Mr. FRIST. Mr. President, with some regret but determination, and 
along with 11 Senators, I submit today--let me read the list of 
Senators at this juncture who are cosponsors of this resolution, a 
resolution to amend the Senate rules. The cosponsors are: Senators 
Miller, McConnell, Stevens, Santorum, Kyl, Hutchison, Allen, Lott, 
Hatch, Cornyn, and Chambliss.
  I submit a resolution to amend the Senate rules. At this point I will 
send the resolution to the desk. I ask it be referred to the 
appropriate committee.
  The PRESIDENT pro tempore. The resolution will be received and 
appropriately referred.
  Mr. FRIST. Mr. President, this amendment will change the way the 
Senate concludes debate on Presidential nominees. No longer will it be 
necessary to overcome a 60-vote barrier before Senators can exercise 
their power to consent to a nomination.
  Five months into the 108th Congress, we confront multiple filibusters 
of highly qualified and intellectually superior judicial nominees, 
filibusters that are unfair to the nominees, unfair to the President, 
and unfair to the majority of Senators--Senators who are ready to 
confirm them.
  Of course, we all fully respect and honor the views of any Senator 
who differs from our own assessment on the quality of any particular 
nomination, and I think if he or she finds a particular nominee unfit 
for any reason, they should vote to reject. But by denying the right of 
an up-or-down vote on a nominee and choosing, rather, to filibuster, 
they deny the Senate and each Senator the right to vote at all.
  The remedy is filibuster reform. Over time, many Democrats as well as 
many Republicans have proposed changes to

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introduce greater fairness in the Senate rules. It is to these 
proposals that I have looked in crafting this resolution.
  My proposal is similar to S. Res. 85, proposed in March by my 
distinguished Democratic colleague from Georgia, Senator Zell Miller. 
It also tracks a recommendation offered in 1995 by the distinguished 
Democratic Senators from Iowa and Connecticut, Tom Harkin and Joe 
Lieberman. Both the Harkin-Lieberman and the Miller resolutions provide 
for declining cloture requirements of 60, 57, 54, and 51 on successive 
cloture motions. They represent a wholesale reform of the cloture rule, 
applying to every debatable proposition.
  My resolution is different. My resolution, by contrast, is more 
narrowly tailored, tailored to respond to the problem at hand. My 
resolution applies only to nominations. It leaves the rest of rule XXII 
unamended. It addresses the very specific defect that needs repair.
  There are other differences, however minor, from these other cloture 
reform efforts. Unlike these earlier proposals, mine would not allow a 
cloture motion to be filed until a nomination had been pending before 
the Senate for at least 12 hours. This provision tracks language that 
the distinguished Democratic leader inserted into S. Res. 8, the power-
sharing resolution he introduced in the last Congress.
  I share his purpose to ensure that there exists an adequate 
foundation of debate before cloture is sought.
  My resolution also provides for a step below constitutional majority 
of 51 votes on the fourth cloture attempt. Under my proposal, further 
cloture motions will require a majority of all Senators present and 
voting. This provision is included in response to colleagues who 
believe that supermajority voting requirements on nominations are 
unconstitutional. If 95 Senators are present, a 51-vote threshold is 
still a supermajority. Cloture by a majority of Senators present and 
voting has deep historical roots among Senate Democrats.
  In past years, such a change was offered by eminent and distinguished 
Senators such as Hubert Humphrey of Minnesota, Paul Douglas of 
Illinois, and Wayne Morse of Oregon. These Senators proposed to reach 
all Senate debate, not just nominations.
  Under the proposed new procedures, cloture cannot be precipitously 
invoked. Not only is there a 12-hour waiting period, but in addition, 
the resolution tracks the provision from the Harkin-Lieberman and 
Miller initiatives that one cloture motion cannot be filed until 
disposition of the prior cloture vote. This is contrary to the present 
operation of rule XXII which permits multiple cloture motions to be 
advanced without waiting for the outcome of the cloture motion 
previously filed. Between the time a nomination is brought to the floor 
and the moment that it can be confirmed by a simple majority vote, the 
elapsed time would be 13 session days.
  I stated that I regret having to introduce this resolution. The right 
to debate is not unlimited but, indeed, it is precious and important. 
My first vote as a U.S. Senator was in 1995 to table the Harkin-
Lieberman resolution even though I was a freshman in a newly elected 
majority, and the cloture amendment they proposed would have advanced 
our party. By contrast, in the Senate today are nine Democratic 
Senators who voted in favor of the sweeping Harkin-Lieberman reform. I 
ask: Will they now support my more narrow remedy?
  I was presiding when the distinguished Democratic Senator from West 
Virginia, Robert Byrd, took to the floor to contend that Harkin-
Lieberman was unnecessary because it was primarily aimed at controlling 
filibusters on motions to proceed. ``No need to change the rules,'' 
said the Senator, ``because a leader could avoid such filibuster by 
offering nondebatable motions in the morning hour.'' The Senator did 
not argue the absence of a problem but, rather, the presence of an 
alternative solution, a safety valve so further limiting of debate was 
not required.
  I was persuaded by his logic. I opposed then, and would oppose now, 
comprehensive change in rules governing Senate debate.
  However, in the case of nominations, the safety valve of an 
alternative solution is not as readily at hand. Under existing cloture 
rules, the filibuster of a nomination is the last word and it is fatal.
  Filibustering nominations is a relatively new phenomenon, even as to 
the nominees for the executive branch, and it has emerged in this 
Congress as a particular problem relative to Federal judges. Prior to 
this year, the record number of cloture votes on any nominee was three, 
and on a judicial nominee the record was two. Already, we have had six 
cloture votes on the nomination of Miguel Estrada to the District of 
Columbia Circuit Court of Appeals, two cloture votes on the nomination 
of Priscilla Owen to the Fifth Circuit Court of Appeals, and indeed 
threats from the minority for additional filibusters on other nominees. 
Clearly, we have entered upon a new era, damaging to the Senate as an 
institution, where a majority will be denied its right to consent to a 
nomination because a minority will filibuster to hold that nomination 
hostage.

  The need to reform the filibuster on nominations is obvious, and it 
is now urgent. Many will contend that the Senate should not rubberstamp 
Presidential appointments. I fully concur. The Senate's responsibility 
under article II to advise and consent is critical to maintaining the 
checks and balances of our constitutional system. For reasons 
sufficient unto itself, the Senate may reject any nominee. Brought 
forward to a vote, the Supreme Court nominations of Clement Haynsworth, 
G. Harrold Carswell, and Robert Bork all failed on the Senate floor, 
and not by filibuster. Scholars may argue whether these nominees should 
have been turned aside, but no one can dispute the Senate's right to 
reject them. The Senate's constitutional role must never be diminished.
  In the case of Miguel Estrada and Priscilla Owen, it is plain that 
the votes to confirm are present. They have the support of a majority 
of Senators. But the votes to confirm cannot be taken because these 
debates have been tainted by filibuster. Without filibuster reform, a 
disciplined minority can cast an ever-lengthening shadow over the 
confirmation process. Through reform, we will respect the right of all 
Senators to act upon a nomination brought to the floor. In so doing, we 
will strengthen the Senate as an institution and enhance its 
constitutional purpose.
  It is unfortunate that we have come to this point. I would have far 
preferred that nominations be given a floor vote after full and free 
debate. As the filibuster strategy emerged, I tried many times without 
success to secure agreements to vote at a time certain. Wanting to 
respect minority rights and, indeed, the right of all Senators, I 
withheld filing for cloture on the Estrada nomination until it had been 
pending for 13 days.
  But just as I act with regret, I act with determination. For almost 
all our Nation's history, filibustering nominations was unheard of and 
unknown. It was unknown when the cloture rule was adopted in 1917. It 
was unknown when the rule was extended to nominations in 1949. The 
renowned filibusters of the 1950s and 1960s never involved 
filibustering a judge. Senator Richard Russell of Georgia led both 
filibusters, but even in the face of glowing judicial activism neither 
he nor his allies ever filibustered a judge.
  Obviously, some respected traditions have changed. Senate rules are 
not immutable. Senate norms have altered over time, and our rules have 
changed in response. The initial cloture rule of 1917 was a reaction to 
cumulative and growing consternation over years of uncontrolled 
filibusters. The 1949 expansion reflected frustration that the original 
rule was too narrow and applied only to pending measures. In 1959 and 
1975, the rule was amended because the hurdle for cloture was thought 
to be too high. In 1979, Senator Byrd successfully amended the rule to 
eliminate the abuse of postcloture filibuster. Before the practice of 
filibustering nominations takes deeper root and damages the Senate even 
more, it is time to amend our rules again. I act now as a first step to 
ensure we have a confirmation process that is fair to the nominees, 
that is fair to the President, and that is fair to all Senators. If we 
achieve that, we will also be fair to the American people.

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