[Congressional Record Volume 151, Number 49 (Thursday, April 21, 2005)]
[Senate]
[Pages S4041-S4042]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. THUNE. Mr. President, I rise today in morning business to speak 
about a matter of great importance, and that is our broken judicial 
nomination and confirmation process. As Senators, we have sworn to 
support and defend the Constitution, and on the issue of judicial 
nominations the Constitution is straightforward. It states that the 
President nominates judges and the Senate has the duty to give its 
advice and consent on those nominations. For over 200 years, that is 
exactly how it worked, regardless of which party was in power.
  Over the past 2 years, the Democrat minority has attempted to change 
the rules and stand 200 years of Senate tradition on its head. The 
Democrat minority now thinks that 41 Senators should be able to dictate 
to the President which judges he can nominate. The minority also thinks 
that it should be able to prevent the rest of the Senate from 
fulfilling its constitutional duty of voting up or down on judicial 
nominees.
  The Democrats' position is contrary to our Constitution, our Senate 
traditions, and the will of the American people as expressed at the 
ballot box this past November. It must stop.

[[Page S4042]]

  The advice and consent provision in the Constitution has served us 
for over 214 years up until the last Congress. That meant that the 
Senate should vote, and for over 200 years no nominee with majority 
support has been denied an up-or-down vote in this body, zero.
  The Democrats have said that they have confirmed 98 percent of the 
President's nominees. The actual number is 89 percent. But even at 
that, are we to say that we are only going to follow the Constitution 
89 percent of the time? Furthermore, this Senate's record on dealing 
with the President's appellate court nominees is the worst for any 
President in modern history. This President's record of having his 
appellate court nominees voted on is 69 percent, which ranks him lowest 
of any President in modern history.
  It would be one thing if these nominees did not have the votes for 
confirmation, but they do. These nominees will have 54 or 55, 56, 57 
votes for confirmation. It is wrong to deny them what the Constitution 
says they deserve and for us to ignore our constitutional 
responsibility to see that they have an up-or-down vote in this body.
  The Democrats have said that it is their prerogative to debate. Well, 
that is great. Let us debate them on the floor of the Senate. But 
before they can be debated, a nomination has to be brought to the 
Senate floor for debate. We have a right to debate under the 
Constitution in the Senate.
  They have also suggested that judges ought to have broad support; 
that they ought to have more than the necessary 51 votes for the simple 
majority that has traditionally been the case in the Senate. There is 
nothing in the Constitution about filibustering judges. There is 
nothing in the Constitution about requiring a super-majority to confirm 
judges. If the Founders had wanted judges to get a super-majority vote, 
they would have put that in there. They did it for treaties, for 
constitutional amendments, and for overriding a Presidential veto. 
Clearly, that was not the case with judges. It was the Founders' 
intention that the Senate dispose of them with a simple majority vote.
  The Democrats in the Chamber have said that what we are trying to 
accomplish is ``the nuclear option,'' suggesting that somehow this is a 
radical process that we are trying to implement. Well, simply, that is 
not true. There is nothing nuclear about re-establishing the precedent 
that has been the case, the practice, and the pattern in this Senate 
for over 200 years.

  What is nuclear is what is being discussed by the Democrats in this 
body, and that is shutting the Senate down over the issue of judicial 
nominees, which means important legislation to this country, such as 
passing a highway bill that will create jobs and growth in this 
economy, could get shut down, or an energy policy which is important in 
my State of South Dakota. We have gas prices at record levels, we have 
farmers going into the field, the tourism industry is starting its 
season, so we need to do something to help become energy independent. I 
am very interested in the issue of renewable fuels. I want to see as 
big a renewable fuels standard as we can get on the Energy bill, but we 
have to get it on the floor to debate it first. We cannot have these 
attempts, these threats--and I hope they are just that: threats--
because it would be tragic, it would be nuclear, if the other side 
decided to shut this Senate down over the issue of judicial nominees.
  The Democrats in this Chamber have tried to confuse the issue of 
legislative and judicial filibusters, clearly trying to confuse the 
public about what this means. Well, what we are talking about is simply 
the narrow issue of judicial nominees. It is part of this Senate's 
constitutional responsibility and duty, and we must take it very 
seriously. However, in the last Congress that became extremely 
politicized.
  What we are talking about again is simply the issue of judicial 
filibusters. Incidentally, it was the Democrats who last voted on the 
filibuster in the Senate to do away with it back in 1995. It was a 76-
to-19 vote. It had to do with the whole issue, not just judicial but 
legislative filibusters as well. Many of those Democrats who voted to 
end the filibuster still serve in this institution today.
  The American people see this as an issue of fundamental fairness. 
They understand that this body's constitutional obligation, 
responsibility, and duty is to provide advice and consent, and that 
means an up-or-down vote in the Senate.
  The Democrats in the Senate have said that this President's nominees 
are extreme. There are going to be a couple of them reported out of the 
Judiciary Committee today. Janice Rogers Brown received 76 percent of 
the vote the last time she faced the voters in California, which is not 
exactly a bastion of conservatism. Her nomination in this Senate has 
been stalled out for 21 months. Priscilla Owen will also be reported 
out today. She received 84 percent of the vote the last time she faced 
the voters in Texas. She has been waiting around for 4 years in the 
Senate to get an up-or-down vote on her nomination. She was endorsed by 
every major newspaper in the State of Texas. These nominees are not 
extreme. What is extreme is denying these good nominees a vote, and it 
betrays the role and responsibility the Founders gave the Senate.
  So as we embark upon and engage in this debate that is forthcoming on 
judicial nominees, let us keep in sight and in focus the facts, and the 
role and responsibility this institution has to perform its duty. And 
that is to make sure that when good people put their names forward for 
public service, they at least are afforded the opportunity that every 
nominee with majority support throughout this Nation's history has had, 
and that is the chance to be voted on in the Senate.
  I fully support what the other side is saying about wanting to debate 
these nominees. Let us do it. I am certainly willing and hopeful that 
we will be able to engage in a spirited and vigorous debate. Let us 
debate, but then let us vote.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Democratic leader is 
recognized.

                          ____________________