[Congressional Record Volume 151, Number 53 (Wednesday, April 27, 2005)]
[Senate]
[Pages S4439-S4442]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                SENATE TRADITION ON JUDICIAL NOMINATIONS

  Mr. SANTORUM. Mr. President, I had the opportunity to listen to the 
Democratic leader for a few moments talking about the House of 
Representatives and the compromise the House of Representatives just 
achieved on their ethics consideration.
  Three comments about that compromise: No. 1, it is interesting that 
``compromise'' means the Republicans do what the Democrats insisted 
upon them doing. That is a compromise, No. 1.
  No. 2, that compromise meant the House went back to the way the House 
has always done things when it came to ethics. The compromise was to go 
back to the precedent and rules of the House they have always used.
  Third, that compromise means--and the Senator from Oklahoma has had 
experience over in the House, as have I--the rules of the House will 
continue to be that if a Member has an ethics claim filed against them 
by someone--and the Ethics Committee is equally divided--particularly, 
if it is a Member where there happens to be political value in having 
an ethics claim filed against them, if the other side decides, 
politically, they are simply not going to hear the case, it stays on 
the docket forever, for as long as the session lasts, with no need to 
dispose or rule on that. So the ethics charge hangs out there without a 
decision. It automatically goes forward, in other words, unless there 
is a decision on the part of a bipartisan majority to end the 
discussion.
  I think what we have seen in the past--and I know Members of the 
House are concerned about this--is

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that there has been an abuse, a politicization of the ethics process. 
We all know how damaging it is because the only thing we have in this 
body and before our constituents is our word and our reputation. They 
are intangible things that are easily affected and certainly are 
affected when ethics charges are filed. That does not mean ethics 
violations have been found but simply that ethics charges have been 
filed.
  The mere fact a charge has been filed is a very damaging thing to the 
reputation of a Member. To have that out there, without any need for 
disposition, I think is very dangerous and has proven to be--and I 
think will continue to be--a bad precedent.
  But that is compromise. I make the argument that capitulation is not 
compromise. But I will agree on the second point I made, that going 
back to the way we have done things in the past is usually a pretty 
good idea when you really aren't sure how to deal with things. So I too 
say I am glad that the speaker, the leader, and others in the House 
have broken this logjam, and they have done so in a way they can at 
least move the process forward in the House. I too commend the 
Republican leadership for trying to move it forward.
  I will say the same thing could be done here in the Senate. If we 
have a sincere disagreement as to how we should proceed with respect to 
judicial nominations, we could look to the example of the House of 
Representatives and go back to the way we did things for years and 
years and years. The way we have done things for years and years and 
years, 214 years prior to the last session of Congress, was that 
nominations that came to the floor of the Senate received an up-or-down 
vote.
  It was very interesting. The Senator from Nevada criticized one of 
our Republican Members who suggested that we would be willing to 
compromise by not including all executive nominations, just including 
certain executive nominations. When that was proffered, the Senator 
from Nevada criticized this compromise and said: It is disingenuous 
because it is not intellectually consistent. Lots of compromises 
aren't. But that was for the sake of compromise, to say that we 
believe--and 214 years of history have shown, and the tradition and the 
precedent of the Senate is--when executive nominations arrive on the 
floor of the Senate, they receive an up-or-down vote. That is the 
precedent. There is not one instance in which someone who had majority 
support here on the floor of the Senate for a judicial nomination did 
not receive an up-or-down vote and get confirmed, not one precedent 
until 2 years ago. Then things changed.
  So we have suggested we would like to go back to that 214-year 
precedent that served this country very well. We didn't have the 
acrimony we see here today. The Senator from Nevada repeatedly talked 
about how the public wants us to get things done. Then don't change the 
rules of the game and then complain the public is angry with the fact 
that we are not getting things done. Look at the cause of the 
controversy.
  The cause of the controversy lies with the previous leader of the 
Democrats, who put forward a strategy, a plan, a scheme to 
fundamentally shift the power away from the President to 41 Members of 
the Senate to determine what nominees will be confirmed in the Senate. 
That could have been done. I would agree with the Senator from Nevada 
and everybody else here. It could have been done 200 years ago. It 
could have been done 100 years ago. It could have been done 10 years 
ago. But it never was done. We showed restraint. I showed restraint.
  The Senator from Nevada talked about how I could look back at the 
Clinton administration and see how President Clinton's nominees were 
disadvantaged. Let's look back to the Clinton administration. I can 
think of two people I recall very clearly to whom I was adamantly 
opposed. They had records as judges that were deplorable in my mind. 
They didn't follow the law. They were activists on the court. They put 
their interpretation and their views ahead of the law repeatedly. 
Richard Paez and Marsha Berzon were their names. They were nominated 
for the circuit court.
  I adamantly opposed them. They were bad judges and, in my opinion, 
this country would be in worse shape by having them on the circuit 
court. I wanted them defeated. They were against a lot of what I 
strongly believed was bad for this country. That is what they were for, 
things which I strongly believed were bad for the country.
  There were a lot of groups outside, a lot of conservative groups, 
just as they are hearing from a lot of liberal groups, who said: Do it, 
block their nomination. Yes, they have majority support, but block 
their nomination because they will do so much damage. They are bad. 
That is what these outside groups were saying: These folks will 
undermine the judiciary.
  There is always a temptation to let the current fury cloud your 
judgment and to think about the immediate political posture or the next 
election or the folks who brought you here and do what they ask you to 
do.
  We had a leader, at that time, in Trent Lott, and we had a chairman, 
in Orrin Hatch, who said: I understand how you feel. I oppose these 
judges too. But there is something more here in the Senate than the 
passions of the day. There is something more than the groups who may 
support your campaigns today. When we do things that change the 
precedent of the Senate, it ripples, maybe forever, and can 
fundamentally change the balance of power, the way the judiciary 
functions, the way the executive functions and, as you have seen in the 
last 2 years, the way this body functions or ``misfunctions'' as a 
result.
  So for that moment in which I really wanted to block their 
nominations, when Trent Lott and Orrin Hatch filed cloture on those two 
nominees to move the vote forward, not to block their nomination, but 
to move their vote forward, I voted along with 85 of my colleagues. A 
vast majority of Republicans and all the Democrats voted to allow their 
vote to come. Richard Paez did not get 60 votes when his confirmation 
came up. In other words, had we wanted to filibuster Richard Paez, we 
would have been successful. He would not have gotten 60 votes. He would 
not be a judge on the circuit today had we wanted to block his 
nomination.
  But my belief is--and the vast majority of Republicans' belief was at 
that time--as much as we opposed the nomination, we supported the 
tradition and the precedent of the Senate because we are but stewards 
of this place. We don't own this institution. Yes, we say we run this 
institution. We don't run this institution. We are simply stewards. We 
are passersby. When we crack the foundation of the way things have been 
done and worked for this country for 200-plus years, we leave behind a 
foundation that may not sustain us as a people.
  To stand before the Senate, as my colleagues on the other side of the 
aisle have done repeatedly over the last few weeks, and talk about how 
they are being aggrieved by what the Senate Republicans are trying to 
do and calling this the nuclear option repeatedly, and suggesting 
somehow or another this is destroying the filibuster, when it was never 
used--underscore that, never used--to block a judge on the floor of the 
Senate prior to the last session of Congress, when the Democratic 
minority decided they could not resist, they had to put politics over 
process. They had to put partisanship over the stability of this 
institution for the long term.
  I suspect there are a lot of folks on the other side of the aisle who 
regret that happening, and they probably regret it today. Where are the 
statesmen? Where are the folks who quietly whisper to one another that 
this was wrong? Where are they to stand up and set it straight?
  I desperately hope we do not have to cast this vote on the floor of 
the Senate to return the precedent of the Senate to the way it has been 
for 214 years because it would show what two sides were able to do for 
214 years. I say to the Presiding Officer from Oklahoma, think about 
all of the conflicts and passions that have occurred through all of the 
great debates in the Senate. People were shot in the Senate, and there 
were fisticuffs and beatings. The passions must have been incredible at 
certain times. But we always were able to understand that there were 
some things bigger than the passion of the moment. This institution is 
one of

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them. The way this institution functioned to balance powers was one of 
them. What the other side of the aisle is doing, I say to the Senator 
from Illinois, is fracturing the foundation of this institution.
  So I hope we don't have a vote. I hope we don't have a vote. I hope 
there will be some on both sides of the aisle who would look to the 
214-year precedent when, in spite of strong disagreements, the Senate 
was able to find comity to get things done.
  We need to get things done. I know the Democratic leader has 
threatened to shut down the Senate--his words, not mine, ``shut down 
the Senate''--if they don't get their compromise. What is their 
compromise? They want to continue to do what they did in the last 
session of the Congress. That is their compromise. I find it somewhat 
remarkable that the Senator from Illinois praised the Senator from 
Nevada for his ``compromise.'' His compromise says if the ten judges 
they were blocking from the last session--they have successfully 
blocked three because they have been withdrawn, and now they are 
suggesting they want to block at least three more. They don't care 
which ones they are. I know this was all driven by pure concern about 
each and every one of these, but for some reason they can pick which 
three. Some might suggest this is less about the individual and more 
about politics, but now we are sort of in this compromise and, fine, 
let's compromise. Fine. We will take ten, we get to kill six, and you 
get to pick the four we move forward with. That is compromise. Oh, and 
by the way, we reserve the right to continue to do this in the future. 
This is the great Henry Clay type of statement that we see before the 
Senate: Of the ten that we have blocked--against every precedent of the 
Senate--we will take six, and these fine individuals, all well 
qualified by the ABA--the ``gold standard,'' in Senator Leahy's words, 
not mine--we will take these fine upstanding people in the community 
and tarnish their reputations for the rest of their lives.
  By the way, you pick the three we are going to tarnish, and we will 
let you have four nominees. By the way, you can go ahead and expect 
that we will block others in the future.
  That is their compromise. That is the great olive branch: We will 
continue to abuse 214 years of history.
  I ask anyone if you can point out one nominee for the court on the 
floor of the Senate who had majority support who was blocked by 
filibuster. Name one who had majority support. It never happened. So 
what is the compromise? The compromise is that six judges who had 
majority support on the floor of the Senate will be denied 
confirmation, and we will do so to others in the future if we so 
desire. That is the compromise. I don't think most people objectively 
looking at that would see that as much of a compromise.
  The Senator from Illinois said another remarkable thing. I will go 
back and check the record. I find it hard to believe. He said Senator 
Frist came to the floor yesterday and said he would not be a party to 
any negotiation on this issue. That is what the Senator from Illinois 
said.
  Let me review the record. Senator Frist, in the last session of 
Congress, offered a compromise with Zell Miller called the Frist-Miller 
approach. It was a compromise. It is still a compromise that is out 
there. I know for a fact--and I suspect others on the other side of the 
aisle do, too--that Senator Frist has repeatedly offered compromises to 
the Democratic leader.
  I know also for a fact that the Senate majority leader, Senator 
Frist, is very much open to negotiation and compromise, to return the 
precedent of the Senate and find a way in which we get back to what was 
just lauded by the other side of the aisle--returning, as the House 
just did, to the way they have always done things. So, too, would we 
like to do that--return to the way we have always done things. But that 
is too much of a reach, I suspect, for some because we have partisan 
agendas. We have, even more so, I suggest, not just partisan agendas 
because I think in part it is driven by partisanship, but I think it is 
mostly driven by ideology.

  What I think is sadly true is that the agenda of the other side of 
the aisle--which we have not seen a whole lot of as far as solutions; 
we have seen a lot of obstruction, not a whole lot of ideas but a lot 
of obstruction--is not accomplished in democratic forums anymore. It is 
accomplished through the courts. So I think what we are seeing is a 
gasp of saying that we can no longer win elections on our agenda. We 
can no longer win votes on the floor of the Senate with our agenda--the 
most radical elements of our agenda, anyway--so we must hold on to the 
courts. We must hold on and make sure those individuals who are willing 
to be activists on the court and overturn the will of the Congress, 
create new rights in the Constitution, bypass the democratic process, 
amend the Constitution through court edict, as opposed to the 
traditional way laid out by our Founders, we want to make sure that we 
still have the ability to enact our agenda on the courts.
  Another point I will make is that I am very much for the filibuster. 
I believe the filibuster is exactly what our Founders intended when it 
comes to legislation--absolutely what they intended, that the Senate 
would be a place where the hot tea would be poured into the saucer and 
cooled. I support it and, in fact, I voted to support it because when I 
was first elected to the Senate, some Democratic Members offered a 
change to the rules that would have eliminated the filibuster and gone 
to a simple majority on all legislative matters.
  This was interesting because at the time, as I said, the Republicans 
were in the majority, and yet Democrats were offering this rather 
savory morsel out there for those of us who recently came to the Senate 
and wanted to get a lot of things done and understood how difficult it 
would be. We had a Contract With America, we may recall--the House was 
moving forward and wanting to pass a lot of bills. We had a lot of 
momentum over here. There was a part of me that said: That would be 
great, we could get rid of this. I said: No, the Founders had it right, 
the traditions of the Senate are right. We do not need to change this 
institution because of the whims of the moment, because of the passions 
of the day, because of the interest groups off Capitol Hill that would 
want us to do so.
  No, we have a higher duty. We have a higher duty. That duty is to 
this institution because this institution is the bulwark of this 
democracy that protects us from doing rash and sometimes irrational 
things in which at times the public gets swept up. No, that is what 
this institution is for when it comes to legislative passions.
  By the way, there were 19 people, 19 Democrats who voted to end the 
legislative filibuster, but not one Republican. Not one. So the 
legislative filibuster is important, and it will remain in place as a 
result of anything we do over the next few weeks with respect to 
judicial nominations.
  I close by saying I am hopeful we can find a compromise, but what I 
keep hearing from the other side is this incredible spinning that 
somehow or other what has gone on here in the last 2 years was part of 
the normal course, and the fact that this was done in previous 
Congresses, as the Senator from Nevada mentioned, in committee, in 
committee these nominations were killed.
  Were these nominations killed? Some nominations were held and 
defeated in committee, that is right. By whom? By the majority--by the 
majority. The majority on the floor of the Senate has defeated 
nominations. The majority in committee has defeated nominations. But 
never before has the minority in committee defeated a nomination. Never 
before has the minority on the floor defeated a nomination. Never 
before has the minority been able to dictate to a President who they 
will nominate either for their Cabinet or for some of the most 
important positions in the judiciary. Never before until now.
  This is taking power away from a popularly elected President who, 
under the Constitution, has the right to nominate people. President 
Clinton, I believe, had over 350 judges confirmed. I think I voted 
against maybe 5, 6, something like that; less than 10, I know that. I 
did not agree ideologically with probably more than 10, but as I went 
home and had to face some of my constituents who were upset with me for 
voting for one judge or another because they did not like their 
politics, I said: You will have to take it up with the American people 
because President

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Clinton won the election, and he has a right to nominate who he wants 
as long as they are within the mainstream. That does not mean they are 
going to agree with me philosophically. There are a lot of people in 
the mainstream who are center and left of center who have a right to 
serve, as people who are right of center have a right to serve, and I 
am not going to impose my ideology on somebody else's nominees.
  That is what is going on today. It is an ideological litmus test, and 
it is now infecting this body to the detriment of the Senate.
  I hope cooler heads will prevail, and that those of us who showed 
restraint and did not vote for filibusters, voted for cloture on 
nominees we did not like--that there will be those who will stand up 
and do the same on the other side of the aisle in the future.
  Mr. President, I yield the floor, and suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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