[Congressional Record Volume 149, Number 69 (Friday, May 9, 2003)]
[Senate]
[Pages S5983-S5985]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. REID. Mr. President, I know the schedule of the majority leader 
is burdensome. I do wish to say a few words while he is here regarding 
the proposed rule change.
  First of all, I have said, on a number of occasions in recent weeks, 
that I understand the intensity of the feeling of members of the 
majority--some members, not all--on the Miguel Estrada nomination and 
that of Priscilla Owen. But I do say, that for people to lament that 
the process is broken regarding judges is simply without foundation or 
fact. Mr. President, 124 judges have been approved for President Bush--
124. Two have been held up.
  The number of cloture motions that have been filed, for those of us 
who have served in the Senate for some time, is somewhat meaningless. 
The reason you continually file new cloture motions is if there is a 
change in the vote. And for Priscilla Owen and Miguel Estrada, there 
has not been a single vote change--not one. They are all the same. So 
filing those cloture motions is just for show; it has no basis in 
substance.
  Now, I do say to the leader that I think this is being approached in 
a proper fashion. I think that to go to seek a rules change is the way 
it should be done. If you don't like what is going on here, try to 
change a rule.
  I have been personally--and I am sure it has not gone without the 
notice of others--concerned about some of the statements made by 
Members of the majority saying they are going to have this rule changed 
regardless of what the Rules Committee does; that if it does not work 
out in the Rules Committee, they are going to come here and have the 
Presiding Officer just say what we have been doing is unconstitutional.
  Now, one of the newspapers announced that this would be nuclear. I 
think, legislatively, nuclear is the proper term.
  I have no problem--I say this to the majority leader--seeking to 
change the rules. If the rules are changed by a procedure we have 
always used here in the Senate, I will go along with that. But to have 
something done, that is to say suddenly that you cannot have a 
filibuster because it is unconstitutional, creates many different 
problems. Does that mean if 11 members of the Judiciary--a majority--
holds up a judicial nominee, that that is unconstitutional and it can 
come immediately to the floor? I think not.
  So I recognize--I have been as frustrated as anyone trying to get 
cloture motions filed and cloture determined on a vote. I can remember 
when I was a relatively new Member of the Senate--I was not too new 
then--during the Clinton administration and we were trying get grazing 
changed in the western part of the United States. We had four or five 
cloture motions filed. We got up to 57 or 58 Senators on that occasion. 
And we were moving, filing the cloture motions that seemed to be 
gaining status.
  Then suddenly George Miller from the House and Harry Reid from the 
Senate were called to the White House, and the President of the United 
States, Bill Clinton, said: We are not going to support you on this 
anymore. It is over with. He had made some arrangements with House 
Members, and our trying to get cloture invoked on something we believed 
was very important was, in effect, pulled out from under us. I can 
still remember that.
  But in those, I say to the majority leader, when cloture motions were 
filed by Senator Byrd, we kept gaining votes. In relation to Miguel 
Estrada and Priscilla Owen, that is not the case.
  So again, I say, that the majority leader is approaching this in the 
Senate way, the right way. I do say--and I know he has had 
conversations with the Democratic leader, and I have spoken to other 
Members on the other side--I hope it will be done in that fashion and 
not by some jury-rigged fashion to change the rules by some 
``constitutional'' matter.
  I even understand one of the Republican Senators is filing a lawsuit. 
Fine. More power to them. Let them file a lawsuit. I think that is the 
way it should be determined. But don't change the Senate rules in some 
other fashion because it would really damage our ability to move 
forward on legislation.
  The PRESIDENT pro tempore. The majority leader.
  Mr. FRIST. Mr. President, just in closing, on my behalf, the whole 
purpose of submitting this resolution today is to further elevate the 
debate in recognition that things change in

[[Page S5984]]

the Senate over time. As we look back over the cherished history we all 
share--and it is our heritage--things today are different, and there 
are times for the rules to change. When you even contemplate changing 
the rules, you have to give a great deal of thought and debate and 
discussion, and that is what is underway today in submitting this 
resolution. I believe it is a reasonable, commonsense way of addressing 
an approach to addressing the issue.
  I look forward to the continued debate, in referring it to the 
appropriate committee, where that debate can begin. And we can be 
commenting on the floor itself.
  Again, this proposal is a bit different from the others that have 
been submitted in the past. It is similar in many ways in drawing upon 
previous legislation. It is different in the fact that it is narrow and 
applies to nominations; that there is this 12-hour period to give 
adequate time to have the debate and discussion; to start off with a 
threshold that is 60 votes, but over a period of 4 steps comes down to 
ultimately what is a majority vote of those present. The only other 
difference is the cloture votes would be filed sequentially. You have 
to dispose of one cloture vote before you go to the next, again to make 
sure we do not cut off adequate time to have a debate, but also to 
assure, at the end of the day, that the right of every Senator to 
express themselves in an up-or-down vote will be present.
  So I am very excited about the resolution itself. Again, we are 
trying to do it in a very deliberate, a very focused, a very 
disciplined way. That is the purpose of the submission of the 
resolution today. I do hope it provokes discussion and debate on this 
floor and in committee so we can bring this, what is unprecedented in 
terms of partisan filibusters, to an end as it applies to judicial 
nominees.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Chafee). The Democratic leader is 
recognized.
  Mr. DASCHLE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DASCHLE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DASCHLE. Mr. President, I was not in the Chamber until just a few 
moments ago. I didn't have the luxury of hearing the distinguished 
majority leader. His comments have been reported to me, and I have now 
had the opportunity to see the text of his remarks.
  I welcome the introduction of his resolution. A Senator is within his 
rights and certainly a majority leader is within his rights to suggest 
changing the rules. If we are to change rules, there is a procedure. 
And I respect the majority leader's interest and determination to 
suggest ways that the rules could be changed with regard to filibusters 
or, for that matter, any rule involving Senate procedure.
  He joined me in opposing this proposal when it was offered by 
Senators Harkin and Lieberman about 10 years ago. But obviously, over 
the course of 10 years, we all have a right and an expectation that we 
will change our points of view from time to time. He has on this 
matter.
  As in most parts of this country, slogans and phrases sometimes have 
more wisdom than one might see on the surface. There is an old slogan 
or saying in South Dakota that I am sure is repeated in other States: 
``If it ain't broke, don't fix it.'' It ain't broke.
  Anytime you can confirm 124 judicial nominees in the course of 2\1/2\ 
years, I don't see much broken. That is a 98.4-percent confirmation 
rate. Any baseball player standing at home plate would settle for 500 
percent, 400 percent, 300 percent. Any quarterback would love to have a 
98-percent rate of completion on passes. I don't know of another 
administration that has enjoyed the success in confirmations of its 
judges that this administration has: 124 to 2; that is the score; 124 
circuit judges, district judges; 124 nominees who have worked their way 
through hearings, through a committee vote in the Judiciary Committee, 
and on to the floor in 2\1/2\ years; 124 to 2.
  Those two, Miguel Estrada and Priscilla Owen, have unique 
circumstances. In the case of Mr. Estrada, it is a matter of asking him 
with all deference to fill out the application form for the job.
  I have many employees. I am fortunate to have such good ones. But 
nobody would work in our office if they refused to fill out pages 3 and 
4 and 5 of a 5-page application. If they said: I will fill out the 
first two pages but not the last three, I would say: Find another job. 
You are not going to work here.
  That is really what Mr. Estrada is saying to us. In spite of the fact 
that Mr. Bork, Mr. Rehnquist, Mr. Civiletti, and so many other nominees 
who have had similar circumstances have provided the very information 
we are asking of Mr. Estrada, Mr. Estrada and his supporters in the 
administration are saying: No, we will not comply. We will not fill out 
the job application.
  Our response is: Fill out the job application and you will get a 
vote. It is that simple. In the case of Ms. Owen, we have a record that 
is very disconcerting, a record of putting her own views ahead of the 
law. We cannot accept that either. If she would comply with the law and 
interpret the law, it would be one thing; but to ignore the law and to 
use her own views as she applies her decisionmaking authority is not 
something that is acceptable as well. So you have those two nominees.
  I know some of my colleagues have lamented this notion that 
filibusters could be employed, but we had a filibuster in the 106th 
Congress of a man of incredible stature and standing, Richard Paez. He 
was a nominee to be U.S. Circuit Judge in the Ninth Circuit during the 
106th Congress. This was a filibuster. I find it interesting that the 
majority leader was one of those who voted against cloture. He 
apparently felt at the time that cloture was inappropriate, or he would 
not have voted against it. In other words, he voted to extend the 
filibuster during that debate on Mr. Paez.
  But Senator Frist certainly is not alone. There were 14 people who 
voted to continue debate on Mr. Paez. Senator Hatch, as recently as 
1994, said the filibuster is--using his words--``one of the few tools 
that the minority has to protect itself and those the minority 
represents.'' Senator Hatch made the statement during a filibuster to a 
Clinton nominee to the Third Circuit. In 1997, 3 years later, Senator 
Hatch stated:

       Determining which of President Clinton's nominees will 
     become activists is complicated and it will require the 
     Senate to be more diligent and extensive in its questioning. 
     . . .

  Senator Smith of New Hampshire--no longer with us in the Senate--also 
came to the floor to argue forcefully in support of filibustering 
judicial nominees. His quote:

       So I do not want to hear that I am going down some trail 
     the Senate has not gone down before by talking about these 
     judges and delaying. It is simply not true. Don't pontificate 
     on the floor and tell me somehow I am violating the 
     Constitution . . . by blocking a judge or filibustering a 
     judge that I don't think deserves to be on the court. That is 
     my responsibility. That is my advise and consent role, and I 
     intend to exercise it.

  So, first, on the basis of the record, 124 to 2, and second, on the 
basis of past precedent, both with regard to Republican positions 
relating to these judges, as well as to the advocacy of the filibuster 
in prior years, makes me question: Why now, with that record, would 
anybody be concerned about the rights of the minority, the rules of the 
Senate, or the longstanding practice every Senator has been the 
beneficiary of with regard to using the rules of the Senate to advance 
his or her arguments?
  Mr. President, I guess I will simply reiterate the admonition many 
South Dakotans oftentimes use: If it ain't broke, don't fix it. Mr. 
President, it ain't broke.
  The Federalist Papers are those papers we turn to with some frequency 
as we attempt to interpret the intentions of our Founding Fathers as 
they considered the institutions of the Senate and the House, our 
democracy. Federalist 63 says:

       The people can never willfully betray their own interests; 
     but they may possibly be betrayed by the representatives of 
     the people; and the danger will be evidently greater where 
     the whole legislative trust is lodged in the hands of one 
     body of men, than where the concurrence of separate and 
     dissimilar bodies is required in every public act.


[[Page S5985]]


  Well, the key word in Federalist 63 is the word ``dissimilar.'' We 
are not the House of Representatives. We are the body where 
deliberative, extensive, unlimited debate is protected. That is the 
essence of the Senate. I sometimes don't know that we live up to the 
moniker ``the greatest deliberative body in the world.'' Sometimes I 
don't think we are particularly deliberative. But we are rooted in the 
traditions of unlimited debate. That has been the essence of this body 
for well over 200 years.
  I hope we never minimize the importance of our distinctions, our 
dissimilarities with the House, the intentions of the Founding Fathers 
when it comes to the protections, traditions, and the usefulness of the 
rules of the Senate, just as they applied over 200 years ago. That, in 
essence, is what is at stake.
  As I said at the beginning, the majority leader is certainly within 
his right to propose rules changes. That has happened by leaders and 
Senators on both sides of the aisle for hundreds of years. We will 
always examine ways with which to make the Senate work more 
functionally and perhaps more efficiently. I don't want to give up the 
tradition of the very essence and meaning of the body for the sake of 
efficiency, for the sake of moving things along because, indeed, that 
was not the intent or the expectation of our Founding Fathers.
  Let me finish by restating the score: 124 to 2. It ain't broke.

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