[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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