[Congressional Record Volume 151, Number 53 (Wednesday, April 27, 2005)]
[Senate]
[Pages S4442-S4443]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           FILIBUSTER HISTORY

  Mr. DURBIN. Mr. President, I know it is late, and I will be very 
brief. I want to make a quick response to my colleague and friend from 
Pennsylvania, Senator Santorum. I am sorry I had to leave the floor 
while he was speaking.
  What I am about to say I would be happy to say with Senator Santorum 
in the Chamber and would be happy to respond to tomorrow. The Senator 
from Pennsylvania made the point that he thinks the golden rule here 
is, the principle here is that every judicial nominee is entitled to a 
majority vote up or down.
  That is an interesting idea, and it might be appealing to some people 
if they do not know the rules of the Senate. For 214 years, we have 
said if you bring an amendment, a bill, or a nomination to the floor of 
the Senate, it is subject to Senate rules. And Senate rules are very 
clear. Any Senator can take the floor and begin a debate and hold the 
floor as long as that Senator physically can, unless 60--now 60 members 
of the Senate--vote otherwise. So you need an extraordinary majority--
60 Senators--to stop a filibuster. That is the way it has always been.
  In the beginning it was different. Senators could not stop a 
filibuster until 1919. In 1919 it took 67 votes; a few years back we 
changed that to 60 votes. But it has always taken more than a majority 
to stop a filibuster.
  In ``Mr. Smith Goes to Washington,'' Jimmy Stewart is on the floor, 
holding the floor as long as he did. That is the Senate. That is the 
tradition of the Senate.
  The Senator from Pennsylvania says it has always been a majority 
vote. Sadly, he is mistaken. There has always been the opportunity for 
filibuster on a nomination.
  So he was mistaken in that assertion.
  The second thing the Senator from Pennsylvania was mistaken about was 
his oft-repeated comments that never, ever, not once in the history of 
the Senate--we hear it from the Senator from Pennsylvania and others 
has a filibuster been used on a judicial nomination. It has never been 
done until the Democrats recently did it to a number of President 
Bush's nominees.
  Unfortunately, again, history is not on the side of the Senator from 
Pennsylvania. On 12 different occasions, beginning in 1881, filibusters 
have been used to stop judicial nominations. In 1881, it was Stanley 
Matthews to be a Supreme Court Justice; 1968, Abe Fortas to be Chief 
Justice of the Supreme Court was subjected to a filibuster; right on 
down through the Clinton administration, when, in fact, on two 
different occasions--maybe more, as I look at this list--there were 
filibusters applied to Clinton nominees. So for the Republican side of 
the aisle to consistently state what history tells us is not true is 
unfortunate.
  I ask unanimous consent to have printed in the Record this history of 
filibusters and judges so anyone who follows congressional proceedings 
can read the names and circumstances for each and every judge who has 
been subjected to a filibuster in the history of the Senate.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   History of Filibusters and Judges

       Prior to the start of the George W. Bush administration in 
     2001, the following 11 judicial nominations needed 60 (or 
     more) votes--cloture--in order to end a filibuster:
       1881: Stanley Matthews to be a Supreme Court Justice.
       1968: Abe Fortas to be Chief Justice of the Supreme Court 
     (cloture required \2/3\ of those voting).
       1971: William Rehnquist to be a Supreme Court Justice 
     (cloture required \2/3\ of those voting).
       1980: Stephen Breyer to be a Judge on the First Circuit 
     Court of Appeals.
       1984: J. Harvie Wilkinson to be a Judge on the Fourth 
     Circuit Court of Appeals.
       1986: Sidney Fitzwater to be a Judge for the Northern 
     District of Texas.
       1986: William Rehnquist to be Chief Justice of the Supreme 
     Court.
       1992: Edward Earl Carnes, Jr. to be a Judge on the Eleventh 
     Circuit Court of Appeals.
       1994: H. Lee Sarokin to be a Judge on the Third Circuit 
     Court of Appeals.
       1999: Brian Theadore Stewart to be a Judge for the District 
     of Utah.
       2000: Richard Paez to be a Judge on the Ninth Circuit Court 
     of Appeals.
       2000: Marsha Berzon to be a Judge on the Ninth Circuit 
     Court of Appeals.
       Because of a filibuster, cloture was filed on the following 
     two judicial nominations, but was later withdrawn:
       1986: Daniel Manion to be a Judge on the Seventh Circuit 
     Court of Appeals Senator Biden told then Majority Leader Bob 
     Dole that ``he was ready to call off an expected filibuster 
     and vote immediately on Manion's nomination.''--Congressional 
     Quarterly Almanac, 1986.
       1994: Rosemary Barkett to be a Judge on the Eleventh 
     Circuit Court of Appeals ``. . . lacking the votes to sustain 
     a filibuster, Republicans agreed to proceed to a confirmation 
     vote after Democrats agreed to a daylong debate on the 
     nomination.''--Congressional Quarterly Almanac, 1994.
       Following are comments by Republicans during the filibuster 
     on the Paez and Berzon nominations in 2000, confirming that 
     there was, in fact, a filibuster:
       ``. . . it is no secret that I have been the person who has 
     filibustered these two nominations, Judge Berzon and Judge 
     Paez.''--Senator Bob Smith, March 9, 2000.
       ``So don't tell me we haven't filibustered judges and that 
     we don't have the right to filibuster judges on the floor of 
     the Senate. Of course we do. That is our constitutional 
     role.''--Senator Bob Smith, March 7, 2000.
       ``Indeed, I must confess to being somewhat baffled that, 
     after a filibuster is cut off by cloture, the Senate could 
     still delay a final vote on the nomination.''--Senator Orrin 
     Hatch, March 9, 2000, when a Senator offered a motion to 
     indefinitely postpone the Paez nomination after cloture had 
     been invoked.
       In 2000, during consideration of the Paez nomination, the 
     following Senator was among those who voted to continue the 
     filibuster: Senator Bill Frist--Vote #37, 106th Congress, 
     Second Session, March 8, 2000.

  Mr. DURBIN. Mr. President, the Senator from Pennsylvania is very 
discreet in how he explains his view of dealing with judges, that every 
judge should be allowed a majority up-or-down vote. That is not a bad 
concept if that really was what the Senator from Pennsylvania could 
point to in his own record. Under President Clinton's administration, 
nine of the President's judicial nominees to the Commonwealth of 
Pennsylvania were confirmed by the Senate, while eight were never even 
given hearings before the Judiciary Committee. So the Senators who are 
now begging for majority votes and majority rules thought nothing of 
closeting and burying these judicial nominees under the Clinton 
administration, to the point where they had no possibility of being 
confirmed.
  Let me be specific. John Bingler was nominated by President Clinton. 
Senator Santorum exercised his discretion over nominations in his State 
and held up this nomination for 2 years, until Mr. Bingler withdrew.
  Robert Freedberg, another nominee by President Clinton. Senator 
Santorum delayed the entire slate of judicial candidates, saying the 
President didn't honor an earlier agreement to nominate a particular 
Pittsburgh attorney whom he, Senator Santorum, wanted.
  Lynette Norton. As was reported by the Pittsburgh Post Gazette on 
July 22, 2000:

       Sen. Rick Santorum insisted yesterday the Senate will not 
     act on any nomination for the U.S. District Court here until 
     next presidential administration . . .

  He was very clear on what his agenda was: it was to hold up 
nominations that were going to be filled by President Clinton until, 
hopefully, in his

[[Page S4443]]

eyes, a Republican President was elected.
  Repeatedly, Senator Santorum used his own form of a filibuster to 
deny even a hearing or a vote in the Senate to these judicial nominees. 
Now he stands aghast, appalled, incredulous, that anyone would oppose a 
judicial nominee of President Bush.
  We should stand by the traditions of the Senate. Let's not change the 
rules in the middle of the game. Let's not violate the time-honored 
principle of checks and balances which says the Senate as an 
institution will have the last word on lifetime appointments to the 
Federal bench.
  Even though President Bush has been successful with over 95 percent 
of his nominees being approved by the Senate, mark my words, a few of 
them should not have been approved for lifetime appointments. Our view 
on our side of the aisle, both liberal and conservative, a handful went 
too far. Their positions on the role of Government in protecting our 
health and safety, the role of Government in protecting our 
environment, the rights of women, privacy under our Constitution, their 
views were so extreme and so radical they were not deserving, at least 
to the mind of many of my colleagues, to have a lifetime appointment to 
the Federal bench.
  It is best when in doubt to stick with the Constitution. It is best 
when in doubt to stick with the traditions of the Senate. It is best 
when in doubt to stick with the filibuster, which requires compromise, 
requires bipartisanship, and moves us to a point where we can and must 
work together to achieve goals of this Nation and to serve the people 
who were kind enough to give us this great opportunity.

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