[Congressional Record Volume 151, Number 52 (Tuesday, April 26, 2005)]
[Senate]
[Pages S4228-S4230]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. BUNNING. Mr. President, I rise to talk about the broken 
confirmation process for Federal judges. The Senate faces an 
unprecedented crisis and is failing the Constitution and the American 
people.
  For the first time in the Senate's history, a minority of Senators is 
twisting the rules of the Senate to block the will of the majority. 
They are taking for themselves a power granted only to the President of 
the United States, the power of nominating judges. Just as disturbing 
is the fact that the minority is also threatening to shut down the 
Senate and the people's business if the majority acts to restore Senate 
tradition and fulfill our constitutional responsibility.
  Make no mistake about it, we will restore the Senate tradition of 
taking up-or-down votes on the President's nominees. Hopefully, the 
minority will support the nomination process the Senate has practiced 
for more than 200 years and end the filibuster of judicial nominations. 
But if the majority of the Senate must act to restore that tradition, 
we will do so.
  Like many Senators, I spend a lot of time in my home State. I meet 
with constituents, give speeches to civic groups, and tour 
manufacturing plants. I have heard a lot about the war in Iraq and 
Social Security. People talk about gas prices and the economy, 
education, and health care. But the topic I hear about the most is the 
importance of confirming judges.
  Last November, election day came and the American people spoke. 
President Bush won reelection by receiving the most votes ever cast for 
a Presidential candidate. A majority of the American people clearly 
endorsed his policies and his leadership. So when this Congress 
convened, I had high hopes that the crisis of judicial nominations was 
behind us.

  I hoped the Senators who obstructed the Senate's business over the 
past 2 years realized the errors of their ways. After all, they lost 
seats in the Senate, and their minority leader also was defeated in the 
last election. I hoped we could turn to voting on President Bush's 
nominations to the Federal bench. I hoped we would return to the Senate 
tradition of giving nominees an up-or-down vote.
  But it did not take long to realize that was not going to be the 
case. The minority proudly boasts about their filibustering the 
President's nominees. And if the majority acts to restore Senate 
tradition, they say they are going to expand their obstructionism to 
the entire business of the Senate and shut down the Government.
  In article II, section 2 of the Constitution, the President is given 
the power to nominate judges. And upon advice and consent of the 
Senate, those nominees shall be placed on the bench.
  So the President alone has the power to pick judges. And the Senate 
has the responsibility to render its advice and consent. That leads to 
the question of what does ``advice and consent'' mean? Fortunately, I 
am not a lawyer or a constitutional scholar. But I can read. And the 
Framers were pretty clear when they spoke.
  First, they said the Senate as a whole is to give its advice and 
consent. When the Constitution speaks of the Senate as a whole body, it 
means a majority of the body. The Supreme Court has even stated as 
much.
  Second, the Framers were pretty clear when they required more than a 
majority to act. For example, they required a two-thirds vote to amend 
the Constitution. They required a two-thirds vote to convict and remove 
from office an impeached President or Federal official. But even more 
telling, in the very same sentence of the Constitution that gives the 
Senate the duty to render advice and consent on nominations, the 
Framers also required a two-thirds vote to approve a treaty.
  Now, if Framers meant that a supermajority vote was required to 
approve

[[Page S4229]]

a nominee, they would have clearly stated so. The supermajority is 
something the Constitution rejects for nominees, but that is exactly 
what the minority is saying when they filibuster a nominee. The 
minority is attempting to shift the balance of power away from the 
executive to the legislative branch. That is nothing more than 
rewriting the Constitution and the separation of powers the Framers 
designed more than 200 years ago.
  What the Constitution does give every Senator a right to do is to 
express his or her opinion on a nominee and on the nominee's 
qualifications. That right is to speak in support of or in opposition 
to, and vote for or against a nominee. But no Senator has the right to 
prevent the whole Senate from voting on judicial nominees if they are 
unable to convince enough Senators to join in their opposition.
  It is the duty of Senators to speak their objections and then vote 
yes or no. They may make the ultimate statement against a nominee by 
voting against him or her, but they may not prevent the rest of the 
Senate from giving the same ultimate statement. They must not block an 
up-or-down vote on the nominee. In fact, for more than 200 years, this 
is how the Senate has considered nominations: with an up-or-down vote. 
Debate has taken place, and then the nominee has been given a vote.
  Never before the 108th Congress was a nominee with majority support 
denied a vote on the Senate floor. Never before the last Congress had 
the rules of the Senate been twisted to prevent such a vote. Previous 
Senates had not even considered filibustering nominees as an option. 
The rules do not explicitly prohibit it because Senate tradition has 
always been to allow the nominee, no matter how controversial, an up-
or-down vote.
  I remember a situation in the 106th Congress. A group of Republicans 
opposed several of President Clinton's nominees to the Ninth Circuit 
Court of Appeals. Some Senators wanted to do everything within their 
power to stop those nominees from reaching the bench. But the majority 
leader at the time, Senator Trent Lott, said this was wrong and filed 
cloture himself to move the nominations forward. Cloture was invoked, 
and both nominees were confirmed, with many more Senators opposing the 
nominations than cloture.
  Today, President Bush's nominees, who all have majority support, are 
being denied a vote by a partisan filibuster led by the Democratic 
Party leadership. That is unprecedented and must come to an end.
  Just years ago, many Senators who now champion the filibuster of 
President Bush's nominees stated that judicial nominees should receive 
an up-or-down vote. Some even advocated abolishing the filibuster 
altogether. In fact, 19 members of the minority who are still serving 
today voted to abolish all filibusters. And now some of those Senators 
are the loudest voices in the Senate for filibustering President Bush's 
nominees.
  Some of my colleagues across the aisle have spoken out against 
filibustering nominations. For example, the senior Senator from New 
York said, in 2000:

       We are charged with voting on the nominees.

  The junior Senator from California said, in 1997:

       It is not the role of the Senate to obstruct the process 
     and prevent numbers of highly qualified nominees from even 
     being given the opportunity for a vote on the Senate floor.

  The current minority whip said, in 1998:

       If, after 150 days languishing on the Executive Calendar 
     that name has not been called for a vote, it should be. Vote 
     the person up or down.

  And the senior Senator from Massachusetts said, in 1998:

       We should resolve these disagreements by voting on these 
     nominees--yes or no.

  It is amazing how some easily forget their own words. Or maybe I 
should say, conveniently and selectively forget their own words.
  Well, Republicans did give President Clinton's nominees an up-or-down 
vote. And now the minority should allow the same courtesy to President 
Bush's nominees.
  Something we have heard over and over from the minority is how many 
of President Bush's nominees they have allowed to be confirmed. Let's 
talk about that. The minority likes to talk about all nominations, but 
all nominations are not equal in their impact within the judiciary. 
District court judges, while they are very important, are not as 
powerful as circuit court judges. President Bush's nominees to the 
circuit court have the lowest confirmation rate since the Roosevelt 
administration at 69 percent. President Clinton's circuit court 
nominees were confirmed at a rate of 77 percent, far above President 
Bush.
  And not all circuit courts are equal. The DC Circuit is the most 
important. For that court, only 33 percent of President Bush's nominees 
have been confirmed. President Clinton's nominees were confirmed 78 
percent of the time. Those differences are staggering and support the 
fact that our judicial confirmation system is broken because of the 
obstruction tactics of the minority.
  Something must be done to fix this crisis. The solution can be up to 
our colleagues on the other side of the aisle. The simplest, fastest, 
and most desirable option is for the minority to agree to drop its 
obstructionist ways and allow an up-or-down vote on all judicial 
nominees. Unfortunately, that does not appear likely to happen.
  Last Congress, the current minority leader was asked how much time 
his side needed to present their case against a nominee. He replied 
that there was ``not a number in the universe'' that they would accept.
  So where does that leave us? The only answer I could see is to 
restore Senate tradition through a change in the rules of the Senate. 
Article I, section 5 of the Constitution reads:

       Each House may determine the Rules of its Proceedings . . .

  That means a majority of the Senate can act to change the rules. It 
is the responsibility of the majority of Senators who want to fulfill 
the Senate's constitutional duty to take action necessary to do so. 
Majority action to set the rules of the Senate is not unprecedented, 
nor is it an assault on the body.
  It cannot be an attack on the Senate to act to restore 200-plus years 
of Senate tradition and allow the Senate to fulfill its constitutional 
obligations. The senior member of the Senate Democratic caucus himself 
has taken such action. Not once, not twice, but four times in a 10-year 
period, the senior Senator from West Virginia changed the application 
of the Senate rules through a majority vote, and all four times his 
actions were aimed at limiting Senators' rights to debate or 
filibuster. Senate history is filled with other examples of majority 
action resulting in a change to the Senate rules to restrict the 
filibuster.
  Let me make something very clear: We are not talking about changing 
the legislative filibuster. In fact, the only Senators I have heard 
advocating elimination of legislative filibusters are on the other side 
of the aisle. Not only does the legislative filibuster have a place in 
the Senate's tradition and history, it is fundamentally different from 
the filibuster of judicial nominees. Writing legislation is solely 
within the power of the legislative branch, and the Senate is empowered 
by the Constitution to set its own rules.
  In the case of nominations, the nominating power is the power of the 
President, and the Senate can only accept or reject those nominees. The 
purpose of a legislative filibuster is to force changes in the 
legislation. However, no number of Senators can amend nominations; we 
can only accept or reject them. There is a place for the legislative 
filibuster within the Constitution, but there is not for the filibuster 
of judicial nominations.
  So I urge my colleagues on the other side of the aisle to take a deep 
breath and step back from the line in the sand that they have drawn. 
Offer us a compromise that guarantees each nominee a vote. Give us a 
set of time for debate. Let's take a vote. This issue is too important 
for the majority of the Senate to ignore anymore. We cannot and will 
not let a minority of this body rewrite the Constitution and destroy 
the Senate's traditions. We must vote, and we will vote.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.

[[Page S4230]]

  Mr. INHOFE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________