[Congressional Record Volume 151, Number 54 (Thursday, April 28, 2005)]
[Senate]
[Pages S4463-S4465]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. FRIST. Mr. President, throughout the judicial obstruction debate, 
emotions have run high on both sides. This should remind us all, once 
again, of the need to return to civility in our Nation's Capitol. The 
American people want their elected leaders to work together to find 
solutions. To them, doing what is Republican or Democrat matters far 
less than doing what is right for America.
  Let me briefly discuss how we got here. Never, in 214 years--never, 
in the history of the Senate--has a judicial nominee with majority 
support been denied an up-or-down vote until 2 years ago. In the last 
Congress, the President submitted 34 appeals court nominees to the 
Senate. A minority of Senators denied 10 of those nominations and 
threatened to deny another 6 up-or-down votes. They would not allow 
votes because they knew the nominees would be confirmed and become 
judges. The nominees had the support of a majority of Senators.

[[Page S4464]]

  Now, in this new Congress, the same minority says it will continue to 
obstruct votes on judges. Even worse, if they don't get their way, they 
threaten to shut down the Senate and obstruct Government.
  Throughout this debate, we have held firm to a simple principle: 
Judicial nominees deserve up-or-down votes. Vote for them, vote against 
them, but give them the courtesy of a vote. Yet judicial nominees have 
not been given that courtesy. They have gone 2, 3, or even 4 years 
without a vote. Now, 46 seats on the Federal bench are vacant as case 
after case and appeal after appeal stack up.
  One nominee, Priscilla Owen, has served 10 years as a justice on the 
Texas Supreme Court. She won reelection with 84 percent of the vote in 
Texas. Yet she can't get the courtesy of a vote to be confirmed by the 
Senate.
  Judicial nominees are being denied; justice is being denied. The 
solution is simple. Allow the Senators to do their job and vote.
  In a spirit of civility, and with sincere hope for solution, I make 
an offer. This offer will ensure up-or-down votes on judicial nominees 
after fair, open, and some might say exhaustive debate. It is a 
compromise that holds to constitutional principles.
  First, never in the history of the Senate had a judicial nominee with 
majority support been denied an up-or-down vote until 2 years ago. 
However, it was not unprecedented, either for Republicans or Democrats, 
to block judicial nominees in committee. Whether on the floor or in 
committee, judicial obstruction is judicial obstruction. It is time for 
judicial obstruction to end, no matter which party controls the White 
House or the Senate.
  The Judiciary Committee will continue to play its essential oversight 
and investigative roles in the confirmation process, but the committee, 
whether controlled by Republicans or Democrats, will no longer be used 
to obstruct judicial nominees.
  Second, fair and open debate is a hallmark of the Senate. Democrats 
have expressed their desire for more time to debate judicial nominees. 
I respect that request and honor it. When a judicial nominee comes to 
the floor, we will set aside up to 100 hours to debate that nomination. 
Then the Senate, as a whole, will speak with an up-or-down vote. The 
Senate operated this way before we began to broadcast debates on 
television in 1986. This would provide more than enough time for every 
Senator to speak on a nominee, while guaranteeing that nominee the 
courtesy of a vote.
  Third, these proposals will apply only to appeals court and Supreme 
Court nominees. Judges who serve on these courts have the awesome 
responsibilities of interpreting the Constitution. So far, only up-or-
down votes on appeals court nominees have been denied. I sincerely hope 
the Senate minority does not intend to escalate its judicial 
obstructions to potential Supreme Court nominees. That would be a 
terrible blow to constitutional principles and to political civility in 
America. I hope my offer will make it unnecessary for the minority to 
further escalate its judicial obstruction.
  Fourth, the minority of Senators who have denied votes on judicial 
nominees are concerned that their ability to block bills will be 
curbed. As majority leader, I guarantee that power will be protected. 
The filibuster, as it existed before its unprecedented use on judicial 
nominees in the last Congress, will remain unchanged.
  The Democratic leader and I have been talking on this issue almost 
every day. I am hopeful he will accept my offer as a solution. It may 
not be a perfect proposal for either side, but it is the right proposal 
for America. For 70 percent of the 20th century, the same party 
controlled the White House and the Senate. Yet no minority ever denied 
a judicial nominee with majority support an up-or-down vote until the 
last Congress. These minorities showed self-restraint. They treated 
judicial nominees with fairness, and they respected the Senate's role 
in the appointments process, as designed by the Framers of the 
Constitution. Resolving the judicial obstruction debate for me is not 
about politics. It is about constitutional principles. It is about 
fairness to nominees. It is about Senators doing their duty and doing 
what is right for our country.
  Arbitrarily voting on just a few judicial nominees, as some have 
proposed, will fail to restore the Senate's 214-year practice of up-or-
down votes for all judicial nominees who come to the Senate. Senators 
have a duty to vote up or down on judicial nominees. Confirm them or 
deny them but give them all the courtesy of a vote.
  I yield the floor.
  The PRESIDING OFFICER. The Democrat leader.
  Mr. REID. Mr. President, first, I express my appreciation to the 
distinguished Republican leader for his proposal. I am happy to see we 
are working toward a solution to this very difficult issue that now 
faces the Senate.
  I say to my distinguished friend, no matter how many times you say 
it, if something is wrong, it does not become true. Over the course of 
this country's history there have been many filibusters of judges from 
the very beginning of our Republic. Until 1917, there was no way to 
stop a filibuster, so a number of judges fell by the wayside as a 
result.
  As I said previously, in 1917, the Senate changed its rules, and two-
thirds of the Senators elected could stop a filibuster. Then, in 1964 
at the height of the civil rights battle, it was changed to 60 on most 
everything. Only one thing is still different, and that is as it relate 
to rules where it takes 67. Without getting into the numbers game, 
there have been a lot of filibusters of judges where a majority of the 
Senators liked a nominee. Abe Fortas is a good example of that. We do 
not need to reinvent history. It is simply the way it is. I am not 
going to get into the individual judges. We can do that, we can go over 
them one by one, but I don't think that is what the country needs at 
this stage.
  We have heard in the Senate that 69 judges of President Clinton never 
made it to the Senate. We continually hear my friends on the other side 
of the aisle say: We need a vote on these judges. They had a vote in 
keeping with the rules of the Senate.
  I agree with my friend, the distinguished Senator from Tennessee, for 
whom I have so much respect and admiration. He said that the circuit 
court and Supreme Court are more important than the lower courts. I 
believe that, in fact, is the case. That being so, we need to focus 
more attention on them rather than less.
  You have to break the rules to change them in this instance because 
if you follow the rules, you cannot do it with a simple majority. If 
you can break the rules to change the rules on a judge, then what about 
the other nominations of the President? We have a matter in the Senate 
now that is in the newspaper every day, regarding a man by the name of 
Mr. Bolton. I don't know him. I recognize him because he has a very 
uncharacteristic mustache, which I kind of like. My point is, that may 
be something that people will wish to talk a long time on. I don't know 
that to be the case. The hearings have not been completed. But I do 
know that the administration really likes this man. The Secretary of 
State likes him. She has said so. Does that mean the rules will be 
changed because this is one of the President's fair-haired persons he 
wants to become his ambassador to the United Nations? We cannot go down 
that slippery slope.
  This proposal of Senator Frist is not exactly new. We had a proposal 
like this last Congress by my friend, the distinguished Senator from 
Georgia, Zell Miller. It was very similar to this proposal. I don't 
mean to demean the proposal, and I will take a close look at it and see 
if there is a way we can work with it. I would say, for lack of a 
better description, it is a big fat wet kiss to the far right. It just 
is not appropriate. The rules are the rules.

  It is unacceptable for a number of reasons. First, this is slow-
motion nuclear option. After 100 hours, the rights of the minority are 
extinguished. This has never been about the length of the debate. This 
is about constitutional checks and balances.
  No. 2, this is probably worse than the nuclear option because it also 
speeds up the committee's consideration. I am happy to look at that. As 
the distinguished majority leader knows, I talked to him earlier about 
trying to do something in the committee system to make it better. I am 
happy to take a look at that. We will talk in more detail. I don't 
think this is appropriate.

[[Page S4465]]

  Third, this deals with only half of the advice and consent. We have 
to deal with the pesky little document called the Constitution. This is 
something you take as a whole. This is very short, but we have to stick 
with this and advise and consent.
  We have failed to recognize we have the future ahead of us, not what 
went on in the past. I am not here to criticize what went on in the 
Clinton years. I am not here to condone or criticize what went on in 
the last 4 years. I am here to look forward.
  I say to my friends on the other side of the aisle, any proposal I 
have made said let's look forward. Let's take this nuclear option off 
the table, and let's work on these judges we have ahead of us. I can 
never say there will never be a filibuster because I cannot say that, 
but I don't think this Senate is in the mood for a number of 
filibusters. I don't think Members feel like it. We should go forward.
  I told my distinguished friend, the Senator from Kentucky, I told my 
distinguished friend--and I say ``friend'' in the true sense of the 
word--from Tennessee, if we somehow fail on the good faith, and they 
think we filibuster too much, talk too much, you always have the next 
Congress. Let's try to look forward. Let's not look back.
  I want to leave here today or tomorrow--whenever we leave--with a 
good feeling. People get locked in: this is not good enough. I am not 
going to berate him for this offer he has made. It is an offer. I 
appreciate that. It is the first offer we have had. I have had one. He 
has had one. Legislation is the art of compromise.
  While this is not truly legislation, it is in keeping with what we do 
here. We try to build consensus. We try to work toward an end that is 
satisfactory. I hope we can do that. I hope calmer heads prevail. I say 
that on my side as well as the other side of the aisle. If we did it 
right, we would take his suggestion to the Rules Committee, have them 
come back on it, and we would vote on it here. That is how we change 
rules.
  I had the good fortune--and I say that without hesitation or 
reservation--to serve for many years on the Ethics Committee. I was 
chairman; I was vice chair. Senator Bob Smith from New Hampshire and I 
worked a full year, we worked hard, trying to change the very difficult 
rules we have in the Ethics Committee, which is part of the Senate 
Standing Rules. We brought it to the Senate after our staff worked 
hundreds of hours. Bob Smith and I worked on it many hours. We were 
rejected. I felt so bad because I personally believe the Senate did the 
wrong thing. But they did it. We tried to comply with the rules. That 
is what we should do here. We both tried to make our case to the 
public. And I will speak for a while this afternoon, not specifically 
on the leader's proposal but about things in general. In the very worst 
way, I want to try to work our way through this.
  Again, I do not really like the proposal given, but I am not going to 
throw it away. I am going to work on it and see if I can come back with 
something that is in keeping with what I think is the ``Mr. Smith Goes 
to Washington'' scenario. Because I really do believe that even though 
we are in the minority now--and I have thought about this a lot. I have 
thought about this. If someday in the future--and it will happen; I 
hope I am around to be part of that--I became the majority leader, I 
would not want this rule. I would not want this rule. I do not know if 
I would have the integrity, intellectual integrity to change it so that 
you folks could do what I thought was in keeping with the rules. But I 
have thought about that.
  We are not always going to be in the minority here. I believe very 
seriously that this is something that every party should have. I say to 
my friends, and everyone within the sound of my voice, test us. Let's 
see how we can do in the future. I cannot say there will not be any 
filibusters, but I think we are going to have a much better situation. 
People are very concerned about the Supreme Court, and they should be. 
They should be. But let's not direct our attention to changing the 
Senate rules for fear of something that may never happen.
  I repeat, what I would like to do is say there is no nuclear option 
in this Congress, and then move forward on this. And, as I say, they 
always have the power. I would like to think that a little miracle 
would happen and we would pick up five seats this time. I guess 
miracles never cease. But I say, respectfully, to everyone, I think the 
Republican Senators would have this power next Congress as they do now.
  So I appreciate my friend making this offer. We have so much to do. 
We have the highway bill to work on today and finish when we come back. 
We have the budget, we have the supplemental appropriations bill. We 
need good feelings around here.
  As we have indicated, there has been some talk about my closing down 
the Senate. I have recognized since the Newt Gingrich days that does 
not work very well. But I do think we would be working as much off our 
agenda as the majority's agenda--a big clash of heads. We would be 
talking about things we want to talk about and they want to talk about. 
I would hope we can get past that and go on to do some real legislative 
work in the months to come.
  I would hope that the legacy I leave and that Bill Frist leaves is 
that we had two leaders who, in spite of their tremendous political 
differences--and we have some different political philosophies--I hope 
people can look back at us and say: Those are two men who worked very 
hard to try to get this institution to work.
  I am saying this in good faith. I want the other side, in good faith, 
to trust what we are going to do on the judges in the future. That is 
all I ask.
  Mr. President, I ask unanimous consent that after I suggest the 
absence of a quorum I then be recognized when the quorum call is called 
off.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, what is the order now before the Senate?
  The PRESIDING OFFICER. The Senator has the right to recognition.
  Mr. REID. Mr. President, under the order previously entered, it is my 
understanding when I have completed my remarks, Senator Wyden will be 
recognized. Is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. REID. Mr. President, I have finished my remarks.
  Thank you, Mr. President.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Oregon is recognized for 10 minutes.
  Mr. WYDEN. Thank you very much, Mr. President.
  (The remarks of Mr. Wyden pertaining to the introduction of S. 946 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')

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