[Congressional Record Volume 151, Number 46 (Monday, April 18, 2005)]
[Senate]
[Pages S3770-S3773]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         CHANGING SENATE RULES

  Mr. NELSON of Florida. Mr. President, I have had the pleasure of 
working with the Senator from Arizona in the finest tradition of the 
Senate, in bipartisanship. We are working together on an issue that is 
of great concern to the country, and that is the estate tax and whether 
it should be eliminated; if not totally eliminated, we are working on 
the prospect of having a significant exemption and doing something 
about the balance of a taxable estate as to what would be the actual 
rate at which the remainder of the estate would be taxed.
  I raise this issue, although this is not the subject of my statement 
to the Senate, because I am following the distinguished junior Senator 
from Arizona. It has been my privilege to work with him in trying to 
achieve a bipartisan consensus. What I wish to talk about is achieving 
consensus in a town that is increasingly polarized by excessive 
partisanship and excessive ideological rigidity. This is a town in 
which it has gotten to the point, as told by Lesley Stahl, the CBS 
reporter, the other night, of an experience she had at a dinner party 
with nonelected officials--just normal folks at a dinner party in New 
York. The discussion turned to matters having to do with the subjects 
we are dealing with here in the Congress, and all of a sudden the mood 
in that salubrious dinner party turned hostile. People were starting to 
shout at each other, and any sense of civility was suddenly gone.
  I worry about that here in the most collegial of all parliamentary 
bodies in the world--this one, right here, the Senate. It has been such 
a great privilege for me to be a part of it. Yet, as I see, as the 
debate is approaching, everything is so partisan and everything starts 
to take on the tinge of ``it's either my way or the highway.'' That is 
not only not how this Nation has been governed under the Constitution 
for 217 years, that is, indeed, the very birthright we have had in this 
Nation--compromise, compromise, and bringing together consensus in 
order to have a governing ability to function. That was how we came out 
with the Constitution that we did in that hot summer session of the 
Constitutional Convention in Philadelphia back in 1787. Yet I wonder if 
we are losing some of that glue that brings us together and has us 
start drawing up consensus by reaching out to the other Senators and 
molding our ideas together in order to govern a very large country, a 
broad country, a diverse country, a complicated country.
  You can't do it with just one opinion.
  I have heard some of the statements when I have been interviewed on 
programs such as CNN and FOX. There were other Senators on these 
programs with me. I shake my head, wondering how someone could say 
those things.
  It is this question this Senate is going to face, whether the rules 
of this body are going to be changed in order to cut off the ability of 
a Senator to stand up and speak for as long as he or she wants on a 
subject of importance to that Senator, and whether that ability, known 
as a filibuster, is going to be taken away from us.
  What is the history of the filibuster? If you think about how the 
filibuster works in the Senate, 217 years ago there was no limitation 
on a Senator being able to stand up and speak. For over a century, the 
rules provided a Senator could not be cut off. Early in the last 
century, that was changed so that if 67 Senators voted to cut off 
debate, then the debate would be closed. That was a supermajority.
  Later on--sometime, I believe, in the 1960s--that threshold of 67 was 
lessened to 60. That is the rule we operate under now. A Senator can 
stand up and talk and talk and talk. The ability to speak in this body 
is such that the filibuster helps to encourage compromise. It is saying 
to the majority that because they have an idea, they can't force that 
idea unless they get 60 votes, and that causes the majority to have to 
listen to the minority. It brings about encouragement of compromise.
  I don't think we ought to do away with the filibuster. Yet that is 
what the Senate is about to do, if the rules are amended.
  Interestingly, the rules of the Senate say it takes 67 Senators to 
amend the rules. But we all have been told of a plan whereby the 
Presiding Officer, the Vice President of the United States--and the 
majority leader would make a motion and the Chair, the Vice President, 
the President of the Senate, would rule, and a 51-vote majority would 
change the rules of the Senate. It is my understanding that the 
Parliamentarian of the Senate has in fact stated you can't change the 
rules that way. Yet it looks as though the majority leader, encouraged 
by the majority, is going to try to change the rules--not according to 
the Senate rules. In other words, it seems the majority is breaking the 
rules in order to change the Senate rules.
  I don't think that is right. I don't think we ought to be changing 
the rules in the middle of the game. I don't think it is right to 
overrule the Parliamentarian of the Senate, who is not a partisan 
official.
  I think this starts to verge on the edges of riskiness, if we start 
operating this Senate under those kind of rules, rules that are 
breaking the rules in order to change the rules.
  Another way you could put it is that we talk about the majority is 
threatening to break the rules to win every time. Is that what the 
Senate is all about? Isn't the Senate about the majority having to 
consult the minority, because under the rules of the Senate, minority 
rights are protected so the majority cannot completely run over the 
minority? Isn't that what is the history and precedent of 217 years in 
the Senate? I think the history of this body would show that is the 
case, especially if we get to the point that this body is going to 
overrule the Parliamentarian. I think that is verging on an abuse of 
power of the majority.
  Remember also a truth--that today's majority will be tomorrow's 
minority, and the minority should always be protected.
  There is another reason; that is, this group of political geniuses 
who happened to gather in Philadelphia back in that hot summer of 1787 
created a system that had indeed separation of powers--that no one 
institution or one person in the Government of the United States could 
become so all powerful as to mow over other persons in the institution.
  In that separation of powers of the executive from the legislative 
and from the judicial, they also created checks and balances inherent 
in the Constitution so that power cannot accumulate

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in any one person's hands. Thus, in the Congress they created a House 
of Representatives which represents the population, and a Senate, which 
was the Great Compromise in the Constitutional Convention of 1787--the 
Senate that represented each State equally with two Senators. In the 
rules that evolved from that body, the checks and balances arose to 
protect the minority.
  Let us look in the separation of powers, the executive, the 
legislative, and the judicial. What was created, and created over time, 
was the value of an independent judiciary, a judiciary that was going 
to be appointed in a two-step process. A one-step process that the 
Constitutional Convention rejected was that the appointment be only by 
the President. The Constitutional Convention created a two-step process 
in which the President nominates and the Senate confirms or rejects. 
That is part of the checks and balances.
  I must say, as a senior Senator from Florida, I have been absolutely 
bewildered at statements I have heard on the floor of the Senate as 
well as I have heard from some of my colleagues when we have been 
interviewed on these news programs in which it is claimed we are 
rejecting all of these judges. Let me tell you what this Senator from 
Florida has done. Of the 215 nominations before the Senate, this 
Senator has voted for 206 of them. That means there are only 9 this 
Senator has not voted for. In other words, under the administration of 
President George W. Bush, I have voted for 206 of his 215 nominations. 
That is 96 percent I voted for.

  Does that sound as though this Senator is not approving all of the 
conservative judges? Every one of those judges who have come forth to 
us was a conservative judge. I have voted for 96 percent of them. I can 
tell you that the 9 I have not voted for--by the way, I voted for one a 
majority of my party voted against, and that was Miguel Estrada. But I 
had reasons, because I called him in and asked him if he would obey the 
law as a court of appeals judge. He said he would. I said that is good 
enough for me. But the remaining nine, I have plenty of reasons why I 
do not think they are entitled to a lifetime appointment as a Federal 
judge.
  That is my prerogative as a Senator, and it is also my prerogative as 
a Senator under the rules of the Senate to stand up and to speak as 
long as this Senator has breath in order to get that opinion across.
  I have been amazed to hear some of my colleagues say here on the 
Senate floor as well as in some of these television interviews that we 
have done--and sometimes done together--that utilizing the filibuster 
has never been used, they say, against a judge nominee. My goodness, 
all you have to do is look at history. In 1881, Stanley Matthews was 
nominated by President Hayes to be a Justice of the Supreme Court, and 
he was filibustered. In 1968, Abe Fortas was nominated by President 
Johnson to be Chief Justice of the United States Supreme Court, and he 
was filibustered.
  Since the start of the George W. Bush administration in 2001, 11 
judicial nominations have needed 60 votes for cloture in order to end a 
filibuster. That is before President Bush's term which started in 2001.
  How people can come with a straight face and say a filibuster has not 
been used on judicial appointments, I simply don't understand. It 
defies the historical record of the Senate.
  I think there are several principles that are very important as we 
consider this. It is my hope--and I have reached out to colleagues, 
dear personal friends who are friends regardless of party--that we can 
avoid this constitutional clash which should not be and changing the 
rules by breaking the rules.
  Remember, a filibuster is to help encourage compromise. We shouldn't 
be changing the rules in the middle of the game. The underlying 
principle I want our Senators to remember as we get into this debate--
hopefully it will be headed off by cooler minds. As the Good Book says, 
come now and let us reason together. Remember these principles.
  The Constitution stands for an independent judiciary. There are very 
necessary checks and balances in our form of government to keep the 
accumulation of power from any one agency, or executive branch, or 
person's hands.
  We should not be overruling the Parliamentarian. We must encourage 
compromise. To change the rules in the middle of the game is bordering 
on an abuse of power. Surely the Senate can rise above this partisan, 
highly ideological set of politics and come together for the sake of 
the Nation.

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I will speak in morning business to the point 
discussed by my colleague from Florida. I understand another Senator 
was going to be here; when he arrives, I will yield the floor.
  It is important for my colleagues and for the American people to 
appreciate a little bit of the background of this issue with respect to 
judges. My colleague from Florida makes a point that he has voted for 
most of the President's judicial nominees. Indeed, that has been the 
case with every Senator for every President.
  But until the last 2 years, we have voted both for district court 
nominees and circuit court nominees. Two years ago, the Democratic 
minority began filibustering circuit court nominees. That is why 
President Bush has had a lower percentage of his nominees approved than 
any President since Franklin Roosevelt for the important circuit court 
positions. In fact, a third of President Bush's circuit court nominees 
were filibustered or could not be brought to a vote because they would 
have been filibustered; fully 17 out of around 35.
  So when our colleagues on the other side of the aisle talk about the 
large number of judges they have approved, they are folding in all of 
the Federal district court nominees everyone has always voted for. That 
is not the appropriate measure. The question is, how many circuit court 
nominees? Never before, in the history of our country, have we seen 
circuit court nominees or district court nominees, for that matter, but 
circuit court nominees filibustered in this manner--ten separate judges 
we could not come to a final up-or-down vote, seven more who would have 
had the same fate had they been voted for. That has never happened 
before in the history of the country.
  Our colleague from Illinois was discussing the fact that a former 
Senator from New Hampshire had, in this Senate, talked about 
filibuster, following a couple of judges for the Ninth Circuit Court of 
Appeals. In fact, that Senator had said that. The interesting point is, 
even though he, a single Senator, wanted to filibuster the nominees--
their names were Berzon and Paez--the Republican leader, Trent Lott 
from Mississippi, made an arrangement with the then-Democratic leader, 
Daschle from South Dakota, that they would not be filibustered, and we 
filed cloture, which is the petition to bring the matter to a close so 
we could take a final vote. Senators on both sides of the aisle 
supported the cloture motion, so they supported getting to a final vote 
on those two judges. Of course, cloture was invoked, meaning they were 
not filibustered.
  They were brought up for a vote. Some voted against them--I voted for 
Berzon and against Paez--but the net result is they are both sitting on 
the Ninth Circuit Court of Appeals today. They were not filibustered. 
So there is no case of a filibuster of the circuit court judge. None.
  Second, the only other situation in which it is alleged a filibuster 
occurred was with Abe Fortas, whose name was withdrawn by Lyndon 
Johnson the day after a cloture vote failed to succeed. As Senator 
Griffin from Michigan, who was then leading that opposition to Abe 
Fortas, has told me and others, there was no effort to filibuster 
because they had the votes to kill the judge. They simply had not had 
time to debate him, which is why they voted against the cloture, but as 
a result of the President acknowledging he had no support in the 
Senate, his name was withdrawn.
  There has never been a filibuster of a Supreme Court or circuit court 
judge in the United States--it simply is erroneous to suggest there has 
been--nor is it correct to say we have been voting on all of these 
different judges. If you take the district court judges out, about whom 
there is no controversy, there is a huge issue because fully a third of 
the President's circuit court

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nominees were not voted on because of this new filibuster by the 
Democratic minority.
  We need to have some perspective. Who is changing the rules? Until 2 
years ago, all the judges got up-or-down votes. Judges that could not 
even get out of the Judiciary Committee with a majority vote were 
granted the privilege or courtesy of a vote in the Senate. During the 
debate when Clarence Thomas was being confirmed, several leading 
Democratic Senators came to the Senate to oppose Judge Thomas. They 
said they actually had thought about trying to filibuster his 
nomination but that would be wrong because filibustering judicial 
nominees is wrong. Senator Leahy, Senator Kennedy, and others came to 
this floor and said, we do not know whether we will defeat Clarence 
Thomas or not, but we are not going to defeat him with a filibuster 
because that would be wrong.
  Sure enough, they were correct. They lost the vote, 48-52. He was 
confirmed. I admired them because they stood for principle. The rule 
and the tradition of this body had always been we give the nominees an 
up-or-down vote, but if they could get 51 votes for confirmation, they 
became a circuit court judge or a Supreme Court justice. That is what 
happened in the case of Clarence Thomas.

  Now, all of a sudden, it has been turned around, and the Democratic 
minority, almost to a person, has said they believe judges should be 
filibustered, and the President's nominees are not going to get an up-
or-down vote if they decide they want to filibuster a particular 
nominee.
  As I said, at least a third of these circuit court nominees so far 
have been filibustered. It is our understanding that practice will 
continue unless we can get back to the way it has always been, the 
traditional role of the Senate in providing advice and consent with a 
majority vote, up or down.
  It has also been suggested the President is nominating a new, wild 
variety of lawyers and judges to be circuit court judges, way out of 
the mainstream kind of people. This, of course, is absolutely 
ludicrous. The kind of people that President Bush has nominated are 
respected jurists or lawyers.
  The American Bar Association, which used to be the Democrat's gold 
standard for approving the judicial nominees, has judged all of these 
candidates qualified. Yet somehow some of our colleagues on the left 
say they are out of the mainstream. My colleague on the Judiciary 
Committee, the Senator from New York, for example, has made this charge 
on several occasions.
  I ask, who is probably more representative of the mainstream? A 
single Senator from a State, for example, like New York? Or the 
President of the United States who had to get elected with support from 
all over this country? I don't think anyone would say George Bush is 
out of the mainstream, that President Bush is out of the mainstream of 
this country.
  Who are some of the people he has nominated? Some are judges who have 
had to stand for election, for example, in California and Texas, and 
have received supermajorities, 70 or 80 percent. I have forgotten the 
exact numbers of support from the citizens of their States. One is a 
blue State. One is a red State. When well over 50 or 60 percent of the 
citizens in this State vote to support these judges to continue in 
office on their State supreme court, you would hardly say these 
nominees are out of the mainstream. Yet those two particular judges, 
Janice Rogers Brown from California and Percilla Owen from Texas, are 
the ones for whom this filibuster has been applied.
  It does not make sense to suggest a tradition of this Senate to give 
people an up-or-down vote is going to be overturned because all of a 
sudden a President is proposing people who are wildly out of the 
mainstream.
  What has the Republican majority at least considered doing? Simply 
returning to the way it has always been, to going back to the 200 
years--before 2 years ago--and giving people an up-or-down vote. 
Members can still vote against the nominee. Members do not have to vote 
for the nominee, but at least give them an up-or-down vote. We do that 
based upon the precedence that has been set by the then-majority leader 
of this Senate, the Senator from West Virginia, who, on not fewer than 
four separate occasions, utilized the precedence of this body to ensure 
that dilatory tactics could not prevail in this Senate and that we 
could move forward with the business of the Senate.
  It is the very same precedent that would be used to reestablish the 
up-or-down vote which has been the tradition of this Senate all along. 
That is not rubberstamping. That is giving due consideration to these 
nominees and giving them an up-or-down vote at the end of the day.
  When Americans look at this sort of intramural battle occurring in 
the Senate, they have to wonder why this is happening, why it is so 
important. I suspect it may have something to do with the fact there 
might be a vacancy on the Supreme Court, and our friends on the other 
side of the aisle are so afraid President Bush might nominate someone 
who could gain majority support they are prepared to actually refuse 
that nominee an up-or-down vote. That would be unprecedented in the 
history of this body. I don't think it is right.
  Some people have called this the nuclear option because they 
threatened to blow the Senate up if we try to return to the traditional 
rule of an up-or-down vote in the Senate. That is a very unfortunate 
name and a very unfortunate threat. No one should be threatening to go 
nuclear or blow the place up or prevent the Senate from doing its 
business. Our constituents sent us here for a reason, to get work done, 
to pass a budget, to pass the appropriations bill, to pass the bill 
that is before the Senate right now, the supplemental appropriations 
bill that will literally fund our troops' effort in Afghanistan and 
Iraq, to pass an energy bill, to pass a defense authorization bill, all 
of the other important things they want us to do here.
  Yet we have some colleagues suggesting, if they do not get their way 
on these judges, like a school-yard bully who has a call go against him 
by the referee and picks up his ball and goes home so the rest of the 
kids cannot play. Is that the threat here; pick up your ball and go 
home so the rest of us cannot do the business we were sent here to do?

  Let me make one final prediction. Last time we met as members of the 
Judiciary Committee, we could not get a quorum to do business. Not one 
member of the minority party showed up. We have to have at least one 
for a quorum. This was not the last meeting but the penultimate 
meeting. They said there were three members going to the funeral of the 
Pope; 3 out of 9. I predict, at another meeting on Thursday--and we 
need to pass the judges out to consider them on the floor--they will 
not give a quorum then, they will not show up or, if they do show up, 
they filibuster it so we cannot get the judges adopted. I predict right 
now the judges that are on the agenda for that meeting this coming week 
will not be passed out. They might pass out one or two, but they are 
not going to allow us to pass all of those judges so they can be 
considered by the full Senate.
  It was Members of the minority party who complained, while 
Republicans never filibustered, they did keep some of President 
Clinton's judicial nominees bottled up in committee. We will see 
whether they are willing to pass these nominees--I think there are 6 or 
7 pending--we will see whether or not they are willing to show up for 
the meeting so there is a quorum and enabling the committee to pass 
them out to the full body so we can debate the nominees or whether they 
talk and talk and talk until the meeting has to end, no one else is 
around, and we no longer have a quorum or they simply do not show up 
for a quorum.
  We will see what they do. I predict right now my colleagues are not 
going to allow us to get those judges to the Senate so we can begin the 
debate and the consideration of whether they should be confirmed. That 
will be a real shame and, again, a violation of what this Senate has 
always done in the past, even when we did not particularly think a 
nominee should receive an affirmative vote on the floor. I believe 
Clarence Thomas was in this situation. The committee passed him to the 
Senate to see what the full body would do to give its advice and 
consent which is what the Constitution calls upon us to do.
  I close by urging my colleagues not to confuse this discussion with 
erroneous information or talk about things

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that are in a history that never was but, rather, to approach it on the 
basis of moving forward, in a bipartisan way, to fill our 
constitutional responsibilities to grant these judges an up-or-down 
vote by our advice and consent so we can put people on the court in 
these very important positions to serve the American people.
  Mr. CHAMBLISS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Burr). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. 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. LEAHY. Mr. President, I ask unanimous consent to speak in morning 
business for not to exceed 14 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont.

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