Congressional Record, Volume 149 Issue 164 (Wednesday, November 12, 2003)

[Congressional Record Volume 149, Number 164 (Wednesday, November 12, 2003)]
[Senate]
[Pages S14528-S14531]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

JUDICIAL NOMINATIONS

The PRESIDENT pro tempore. The hour of 6 o'clock having arrived, the
majority leader is recognized.
Mr. FRIST. Mr. President, tonight we embark upon an extraordinary
session for the next 30 hours. Republicans and Democrats will debate
the merits of three judicial nominees. We will be considering the
meaning of our constitutional responsibility to advise and consent on
nominations. We will discuss whether there is a need to enact
filibuster reform so that nominations taken to the floor can get a
vote.
At the end of this time, the Senate will either vote on the nominees
or we will try to break the minority's filibusters through cloture
votes. Our goal is very simple: It is an up-or-down vote on these
nominees. People can vote them up or they can vote them down. Just give
us a vote.
We hold this extraordinary session for truly extraordinary reasons.
In the history of this Senate, through 107 Congresses, the filibuster
was never used to block confirmation of judicial nominees enjoying
majority support. When the Senate has refused to confirm a nominee
brought to the floor, it has done so on an up-or-down vote. Permitting
a vote was fair to the nominees and fair to the President who sent them
to us. In theory, the filibuster has always been available as a tool to
derail a nomination, but until this Congress it has not been
successfully used.
On rare occasions, confirmation filibusters were attempted, but the
Senate always thwarted them. Up until now, no judicial nominee has ever
failed on a filibuster. For the past 200 years, no judicial nominee has
ever failed on a filibuster.
This year, in this Congress, those norms have been shattered. A
partisan filibuster destroyed the nomination of Miguel Estrada, an
immigrant from Honduras. Mr. Estrada is a superb lawyer, a great
American success story. He served with distinction in both the Clinton
administration and the Bush administration. The American Bar
Association gave him its highest rating. Senate confirmation by an
ample majority was assured. But a filibuster blocked action and the
Senate was denied the opportunity for an up-or-down vote.
The remedy for the filibuster is a cloture vote. Before filing a
cloture motion on the Estrada nomination, we waited several weeks.
During that time, the nomination was debated on the floor for many
hours. On more than 20 occasions we asked unanimous consent for a time
certain to vote. Every time we did, the minority objected. They
obstructed a simple up-or-down vote. From their standpoint, Mr. Estrada
would never get a vote, not in a week, not in a month, not in a month
or two, and not even for the whole Congress.
When it became clear that consent was impossible and the filibuster
would not voluntarily end, cloture was the only resource left. Until
this Congress, the record number of cloture votes on a single judicial
nomination was two. On the few occasions a filibuster had gotten that
far, bipartisan majorities in both invoked cloture, shut it down, and
immediately thereafter those nominees were confirmed. Not so for Miguel
Estrada. Seven times--not two, seven times--we initiated cloture; seven
times cloture failed. Each time more than a majority in this body voted
to end the filibuster but never did we get 60 votes. The minority
obstruction did prevail, but Mr. Estrada would never get an up-or-down
vote. This body never gave Miguel Estrada an up-or-down vote.
Finally, Mr. Estrada asked the President to withdraw his nomination.
Who could blame him? He left the field with dignity. Meanwhile, the
Federal courts--indeed, I would argue, therefore, the American people--
were denied the service of a brilliant intellect, and the Senate's
confirmation process was tarnished with unfairness.
Sad to say, Miguel Estrada was not an isolated case. Filibusters have
also been mounted against Priscilla Owen, William Pryor, and Charles
Pickering. In each of these instances, a majority of the Senate will
confirm, a majority will confirm, but we cannot get 60 votes for
cloture to allow the vote. Under Senate rules, the Presiding Officer
cannot put the question to a vote if any Senator holds the floor or
seeks to speak. If debate does not end, we cannot vote. To conclude
debate, we must secure cloture, but cloture requires 60 votes. If a
minority determines to obstruct, they never permit the Chair to put the
question, and they withhold the votes for cloture to stop the
filibuster.
On Miguel Estrada, on Priscilla Owen, on William Pryor, and on
Charles Pickering, the full Senate has been denied the right to vote on
confirmation. And no amount of debate and no amount of time is
sufficient so the opponents' obstruction thus far has prevailed.
This week, I fear yet two more nominees may fall victim to the
filibuster. Carolyn Kuhl and Janice Rogers Brown are able and talented
candidates for the Federal bench. Either could be confirmed if they
were ever given a vote. Will Senators be able to take those votes or
will disciplined obstruction prevail yet again? I would like to be
proven wrong, but I am not optimistic.
We will hear in this debate over the next several hours that the
Senate has confirmed over 168 Bush nominees, and only 4 have thus far
been blocked. Some Senators will argue these numbers demonstrate
fairness to the nominees overall and to the President. We hear again
and again the Senate is not a rubber stamp.
I am unimpressed with that argument. It uses a scorecard of a sort to
mask the real issues. Can Senators vote up or down on a nominee? Or
will obstruction by filibuster deny them that right to vote? Will
Senators be held accountable for their vote? Will all nominees brought
to the floor be treated fairly and get a vote? Will we be denied our
right to give advice and consent? If Senators wish to oppose a nominee,
that is their right. They may vote against him or her if they wish. If
they can command a majority, the nominee simply will not be confirmed.
That is how things should be. But that simple logic seems no longer to
apply. Because of the filibuster, the majority is allowed to vote only
if the minority consents.
Filibustering judicial nominations breaks dangerous new ground. It is
unprecedented. These filibusters are not business as usual.
Obstructionists have eroded two centuries of Senate tradition. Those
who obstruct have changed the ground rules by which the Senate votes on
confirmations. Some contend the minority has no choice. These left-wing
activists and special interests claim the minority must use every
available tool to oppose even if it changes forever how the Senate does
business. Only then, they say, can the separation of powers be
vindicated.
But let's look to history because history shows us a very different
and a better path. For 70 percent of the 20th century the same party
controlled the

[[Page S14529]]

White House and the Senate. Franklin Roosevelt sent liberal nominees to
a Senate dominated by Democrats. So did John Kennedy, Lyndon Johnson,
and Jimmy Carter. Ronald Reagan sent conservative nominees to a Senate
controlled by Republicans. The Senate confirmed most of those nominees
and rejected some others. But nominations brought to the floor got a
vote and never died due to a filibuster.

All during those times the Senate had vigorous debate, effective
debate. They had vigorous and effective minorities who sometimes
filibustered legislation but never filibustered judges. Was Senator
Dirksen's minority derelict in some way in not using the filibuster
against Kennedy's and Johnson's nominees? What about the minority that
served with Senator Baker but did not filibuster Carter judges, the
minority that served with Senator Byrd but did not filibuster Reagan
judges, or the minority that served with Senator Dole but did not
obstruct Clinton judges? Because they did not filibuster judges, did
those minorities abdicate their confirmation responsibilities? I think
not.
But now a different tradition has been launched. It is the
obstruction of judges by a minority. This obstruction sets a novel
threshold for confirmation: Nominees who are singled out because they
fail someone's ideological test or because they showed general promise
must have 60 votes to break a filibuster. The Constitution says that a
simple majority is enough to confirm, but somehow that majority is no
longer sufficient. Confronted with a filibuster and disciplined
obstruction, the majority cannot vote at all. They are being denied a
simple up-or-down vote on those nominees.
Under the Constitution, the Senate has a confirmation veto; a
majority can vote a nominee down but obstruction by filibuster is veto
by a minority. Never did the framers envision that anti-democratic
outcome.
The American people are going to learn a lot about cloture over the
next 30 hours. Cloture has applied to nominations since 1949 when the
rule was expanded to address every debatable question except for
motions to proceed to rules changes. The inclusion of cloture was
merely incidental to a broader reform. In 1949, the change was
controversial. It was well debated but not a word in all of that debate
in 1949 was about nominations. The omission is not surprising because
nominations simply were not filibustered then.
For three decades thereafter many proposals surfaced to change the
cloture rule, and in 1959, 1975, and 1979 major amendments were, in
fact, adopted. In all those debates not a word was said about
nominations.
Mr. GREGG. Will the majority yield for a parliamentary inquiry? Isn't
the sign across the aisle in violation of rule XVII?
The PRESIDENT pro tempore. The Parliamentarian will make a report to
the Chair.
The majority leader is recognized.
Mr. FRIST. Many proposals surfaced to change the cloture rule. Major
amendments were adopted. In all those debates, not a word was mentioned
about nominations. Why should the debate have focused there?
Nominations were not filibustered.
What is happening now breaks sharply with Senate tradition in ways
that are corrosive for this institution. To restore those traditions, I
have proposed filibuster reform. Along with Senators Zell Miller and
nine additional cosponsors, I introduced S. Res. 138 in May. Our
proposal was heard, reported by the Rules Committee in June, and now
awaits Senate action.

The Frist-Miller proposal will alter the way the Senate concludes
debate on nominations. By progressively declining cloture requirements
of 60 votes, then 57 votes, then 54 votes, then 51, and finally, with a
simple majority of Senators present and voting, we can end the practice
of filibustering nominations if the Senate has the will to do so.
Every effort to reform the cloture rule, whether successful or not,
has been debated in its entirety. Frist-Miller is different. It reforms
the cloture process only for nominations and leaves cloture for the
remainder of Senate debate alone. We fix only what is broken.
Mr. GREGG. Mr. President, I am sorry to interfere, but that sign is
clearly in violation of rule XVII and should be removed.
The PRESIDENT pro tempore. The Chair has asked for a review of that,
and the Chair will report to the Senate when we get that report.
The majority leader is recognized.
Mr. FRIST. Mr. President, a nomination filibuster by a minority
whenever it may coalesce is different from legislative filibusters. On
legislation, there is a potential safety valve that a troubled measure
may be offered elsewhere as a nongermane amendment or somehow be
addressed by the House or in conference. No such possibility exists on
a nomination. There is no safety valve on a nomination. Filibustering
nominations is obstruction in its most potent and virulent form. Even
if a majority of Senators stand ready to confirm, nomination
filibusters are fatal.
Frist-Miller is a narrow remedy that addresses a real problem. It
permits substantial debate but allows the full Senate to work its will.
The Senate must halt the emerging and unwelcome practice of obstructing
nominations. No change in the rules is needed if those who have
filibustered will relent and permit the nominations to have a vote. If
they do not, then amending the rules is imperative. We have sought
consent for a time certain to vote on each of the nominees. Met with
objection, we filed for cloture. Without either consent or cloture, the
obstruction will continue and incessant demands for reform will grow
louder.
These demands will include the exercise of the Senate's
constitutional rulemaking power to amend rules or precedents to end
filibusters on nominees.
Various proposals go far beyond the Frist-Miller filibuster reform. I
would not support these efforts now but I reserve the right to support
them later.
During these recent days, the majority has come under vocal criticism
from our colleagues on the other side for scheduling this executive
session tonight and these cloture votes. The debate is a waste of time,
they contend, because the Senate has many urgent matters to address,
and we are short on time to address them. Indeed, our agenda is
crowded. But the question of how this Senate discharges its
constitutional responsibility on nominations is among the most
important issues we can discuss. It affects how we relate to two
coordinate branches of government. It concerns whether Senate
traditions will be upheld or discarded. It involves the meaning and
future of the confirmation process. Such deliberations are plainly
worth the Senate's time and the close attention of the American people.
In closing, by unanimous consent, time during these 30 hours has been
equally divided between the two parties. This will allow for balanced
arguments, good debate, a chance to focus on these issues without
distraction. We have entered this consent agreement in good faith to
foster a serious dialog on a serious subject. This means sticking to
the subject and not undermining or trivializing this session by wasting
time through meaningless quorum calls and other obstructionist tactics.
The debate we launch tonight is fundamental to restoring fairness to
our confirmation process and reaffirming two centuries of Senate
tradition.
The majority is here, prepared to do business. We want to meet our
constitutional responsibility to advise and consent. Whenever the
opposition ceases to obstruct, we are ready to vote. What we ask for is
to be able to vote, up or down. Just give us a vote.
The PRESIDENT pro tempore. The Chair will make a report on the
suggestion of the Senator from New Hampshire. Rule XVII of the Rules
for Regulation of the Senate wing of The United States Capitol and
Senate Office Buildings provides that:

Graphic displays in the Senate Chamber are limited to the
following:
Charts, photographs, or renderings:
Size--No larger than 36 inches by 48 inches.
Where--On an easel stand next to the Senator's desk or at
the rear of the Chamber.
When--Only at the time the Senator is engaged in debate.
Number--No more than two may be displayed at a time.
This sign was on display prior to the time the Senator has been
recognized. I would ask that the Senator be prepared to use his sign
when he is recognized and the signs not be displayed until the Senator
is recognized.
Several Senators addressed the Chair.
The PRESIDENT pro tempore. The majority leader still has the floor.

[[Page S14530]]

Mr. FRIST. Mr. President, once I run through these unanimous consent
requests, I will yield the floor.

Unanimous Consent Agreement--Executive Calendar

Mr. President, I now ask unanimous consent that the Senate proceed to
executive session for the consideration of Calendar No. 86, the
nomination of Priscilla Richman Owen to be a United States Circuit
Judge for the Fifth Circuit.
The PRESIDENT pro tempore. Is there objection?
Mr. BYRD. Mr. President, reserving the right to object.
The PRESIDENT pro tempore. The Senator reserves the right to object.
Mr. BYRD. I shall not object, but I ask for this recognition for the
purpose of asking the distinguished majority leader a question.
Before I do that, may I say to the distinguished majority leader that
I have no intention to become involved in this game back and forth. And
I do not say it is a game just indulged in by one side. I have nothing
to do with it. I have had nothing to say in it thus far. And at the
moment, I do not anticipate having anything to say.
My interest is this: I am the ranking member of the Appropriations
Committee of the Senate. I have been on that Appropriations Committee
longer than any Senator in history. I have been on it 45 years. I would
like to see us get one more appropriations bill passed.
When I was chairman of the Appropriations Committee for 7 years, I do
not believe there was a year in which we did not get all 13 regular
appropriations bills passed. We have passed 10 appropriations bills
already this year.
The distinguished chairman of the Appropriations Committee, Mr.
Stevens, who is the President pro tempore of the Senate, and who now
presides, has worked hard and has worked with me, but he has done most
of the work in getting those 10 appropriations bills passed. I
discussed this matter with him during the vote just preceding the hour
of 6 o'clock, and I indicated to him I would like to see us try to
finish this appropriations bill, the VA-HUD appropriations bill. And he
indicated to me--he is in the chair--he indicated to me he would be
glad to work toward that.
So here we are. We have finished floor action on 10 of the 13 regular
appropriations bills. Only three are left. Those three are VA-HUD; DC
appropriations; and CJS, Commerce-Justice-State--three appropriations
bills. We are almost finished on VA-HUD.
When I came to the floor, my interest was in trying to get that bill
finished, making it 11 appropriations bills. So I came to the floor,
and I asked the manager on this side, Senator Mikulski, if we could
finish it, and how long it would take, in her judgment. She thought it
would take perhaps 2 more hours. And I believe, in discussions with
Senator Bond, it was also indicated that we might finish that bill in 2
hours.
Now, I hoped the majority leader would be in the Chamber prior to the
hour of 6 o'clock. I was made aware of his request that he be
recognized 2 minutes before 6--5:58 or some such. I was hoping that--
and it was with considerable trepidation, certainly reluctance, that I
sought to impose a unanimous consent request that would, for 2 hours,
have delayed action on the then-pending unanimous consent--Senate
request--the unanimous consent request. I get my tongue a little
twisted at age 86. That is my problem.

But I waited, hoping the majority leader would come to the floor. I
know the demands on him, and I understand that. But I hoped he would be
here so that I could make this request prior to this, what I call a
game that is going on.
Please forgive me if--I am interested in getting the appropriations
bills passed. I am not interested in participating in this other matter
at all--right now. I have some ideas. I do not thoroughly agree--I do
not completely agree with the distinguished majority leader on his
interpretation of the Constitution with respect to nominees, but that
is for another time.
But I have taken the floor now in the hope that we might, on this one
day after Veterans Day--and my mother died on Armistice Day, 1918. I
was 1 year old back then, lacking a week or something.
We have men and women dying in Iraq now. We have veterans by the
scores coming back to this country who are injured and who will carry
for life the signs of their service in Iraq.
I wanted to ask the distinguished majority leader--and I did not want
to interrupt his speech, but I want to ask him, with great respect, if
he would be willing to let the Senate go, let's say, until 8 o'clock,
and then renew the previous order, with the understanding that we
finish action on the VA-HUD bill by 8 o'clock, that the time
intervening be equally divided between Mr. Bond and Senator Mikulski,
and that we enter the order to complete that bill at 8 o'clock.
That is all I am asking, that we go another hour and a half, complete
that bill, which would make us have 11 bills finished as far as floor
action is concerned, with only 2 remaining. Let's get that bill passed.
That is important.
I was a participant in the filibuster against Abe Fortas. I know
something about filibusters. And I just am not willing to enter into
one personally right now. But I would like to get this appropriations
bill finished.
Mr. FRIST. Mr. President, responding, through the Chair, there is
nobody on the floor of the Senate now--and I do appreciate this many
people being here to debate the issue of our judicial nominations and
the process, the process that the distinguished Senator from West
Virginia probably understands better than anybody; that is cloture and
the history of cloture--nobody understands better the challenges to me
as majority leader than the distinguished Senator from West Virginia on
the scheduling of this body.
I know there are people questioning why we are working tonight, and
even through the night. We tried to spend a full day this Monday on the
floor of the Senate, which was not a Federal holiday--never has been a
Federal holiday--but when I made it clear we were here to do
appropriations, a specific appropriations bill, and then, yes, on
Veterans Day had us here--and I know the distinguished Senator had
wished we were not here on that day, but being here on Veterans Day,
and talking about the Department of Defense authorization and military
construction and preparing for the bill that we addressed today, we
made it very clear we would be using this time from 6 o'clock tonight,
a long time ago, weeks ago, to your side and my side--not weeks ago,
probably last week--after we try to finish up our business.
I put a huge priority on appropriations, a huge priority. We are
going to kill ourselves to finish all these bills. I pledge to you by
the end of next week is my goal to fully address all of the
appropriations bills because I respect the process, and I have tried to
bring every bill out. And as of today, we have brought every single
bill to the floor. And for various reasons--not pointing fingers too
much to either side--we have not been able to finish several of them.
Thus, I am going to respectfully say that no, I am going to stick
with the schedule because we have people here to talk about an issue
that many believe equally important, some more important; that is, our
responsibility to handle these judicial nominations responsibly,
respectfully, and that is what people are here to debate.
Then I would be happy to discuss how we complete this appropriations
process with you and with the distinguished Presiding Officer because I
am going to need your help to finish these in an orderly way.
But for now, I think we need to progress with addressing another
important issue that is the schedule I set out. I would ask your
consideration for setting that schedule out and that we can figure out
how to do these appropriations bills.
Mr. REID. Mr. President, reserving the right to object.
The PRESIDENT pro tempore. The Senator from Nevada.
Mr. REID. Mr. President, I say, through the Chair to the
distinguished majority leader, we started at 6 o'clock, and he spoke
for 22 minutes or something. We have not gone into executive session
yet. I would ask consent that your time be counted in the first hour so
that we do not get behind in the 30 hours.
Does the leader understand my request?

[[Page S14531]]

Mr. FRIST. I do. And then we are going to subtract the time from the
questions.
Mr. REID. Yes, I understand.
Mr. FRIST. That is fine, my 22 minutes apply, or whatever the time
was I was actually speaking, to our first-hour agreement.
I still have some unanimous consent requests.
Mr. REID. I certainly understand.
Mr. FRIST. But for the length of my speech, it would be fine to apply
that time to the first hour since we will be splitting the hours.
The PRESIDENT pro tempore. Is there objection to the request?
Mr. BYRD. Mr. President, further reserving the right to object.
The PRESIDENT pro tempore. The Senator is recognized for a question.
Mr. BYRD. And I do not intend to object, Mr. President.
May I say to the distinguished majority leader, 4 million veterans
receive health care through the veterans health care system funded by
the VA-HUD bill. How should we explain to these veterans that the bill
is being set aside?
Mr. FRIST. Mr. President, through the Chair, I have had the wonderful
opportunity of working in veterans hospitals myself for the last--until
I got to this body--for 15 years, every day operating, giving care to
veterans in medicine. So I appreciate veterans hospitals. I worked in
veterans hospitals. I have probably spent more time than anybody in
this Chamber in veterans hospitals--from early in the morning through
many nights, just as we are going tonight. I care about hospitals. We
are going to address them.

What I would ask, in response, is if the Senator from West Virginia
would agree to a 2-hour unanimous consent to finish this bill, VA-HUD,
on Friday--on Friday--so we can answer your question. If we can do
that, we will be able to do exactly what you want to accomplish, to
finish that bill, and it allows me to keep a commitment to a packed
Chamber right now where we can debate the issues that people are here
to debate. And then, within 48 hours, we have accomplished my objective
and your objective. Two hours, we will do it Friday, as soon as we
finish the cloture votes?
Mr. BYRD. Will the Senator yield for me to respond?
Mr. FRIST. Yes, sir.
Mr. BYRD. Mr. President, I have long admired the distinguished
Senator from Tennessee.
[Disturbance in the Galleries.]
Mr. FRIST. Thank you, sir.
Mr. BYRD. I do not say that facetiously.
The PRESIDENT pro tempore. The Gallery will be warned, no response
from the Gallery is permitted in the Senate.
Mr. BYRD. Some people are serious when they say things. But I have
admired the Senator as a great physician. He speaks of his long service
to veterans. I speak of a long service to veterans--more than 51 years
in this Congress. I was here when the Veterans Administration was
created. About Friday--Friday----
Mr. FRIST. Yes, sir.
Mr. BYRD. I am the recipient of the Franklin Delano and Eleanor
Roosevelt Award for Freedom from Fear. I will receive that award on
Saturday. I am not in a position to drive up on Saturday morning and
receive that award. My wife is invited also with me. She cannot go. So
I have to go on Friday, and the train leaves at 1 o'clock. As far as I
am personally concerned, I would be happy to come in and finish those 2
hours and get the--I believe there are four votes that are going to be
scheduled on clotures that morning.
Well, I have cast more rollcall votes than any living Senator, any
deceased Senator, any Senator in the history of this Republic, any
other Senator. I have 16,627 or 8 or 9--somewhere along there.
I say all that to say this: I do not want to miss any rollcall votes
on Saturday. I take great pride in my rollcall record extending over 45
years in the Senate. It is 98.7 percent. So I missed less than 2
percent of the votes.
Could we agree then--I do not want to put myself in the position of
my own leaders, as I did not want to put myself in the position of the
distinguished majority leader on the other side. I would like to be
able to make the four votes on Friday, catch my train at 1 o'clock, and
go up and receive this very prestigious award.
Could we work something out to that effect?
Mr. FRIST. Mr. President, what I would like to do, because it is
going to affect everybody's schedule, is to address this. If we can go
through the remainder of the unanimous consent request, then try to
address it.
I just want to restate I would love to finish this bill, the
appropriations bill on VA-HUD, and I would love to be able to work it
out if we can on Friday.
The PRESIDENT pro tempore. Is there objection to the request?
The regular order is to report the nomination at this time. The
clerk----
Mr. BYRD. No. I reserved the right to object. May I have another
minute? I am not participating in this whatever you call it--marathon,
talkathon, blame-athon, or whatever it is. That is not of my interest
right now. I am interested in the appropriations bill. It can be passed
in 2 hours or less. As far as I am concerned, we could pass it now,
just have a rollcall vote on it, the VA-HUD, but that would depend upon
the two managers.
I am not going to impose on the time of the Senate and the majority
leader, but I ask the majority leader, would he please put the request
in some form to finish this bill within the next hour, have a vote up
or down within the next hour?
Mr. FRIST. Responding, once again through the Chair, I will not be
making that request tonight. Tonight we are going to stay on the
judicial nominees. But I would like to discuss with you and the
managers of the bill, and the Presiding Officer, the chairman of the
Appropriations Committee, how we can best resolve that as quickly as we
possibly can.
Mr. BYRD. Thank you, Mr. President. I remove my reservation and thank
the majority leader.
The PRESIDENT pro tempore. Did the majority leader submit a unanimous
consent request?
Mr. REID. Yes, he did. He did.
The PRESIDENT pro tempore. Without objection, it is so ordered. The
request is granted.

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