[Congressional Record Volume 151, Number 60 (Tuesday, May 10, 2005)]
[Senate]
[Pages S4798-S4801]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. HATCH. Mr. President, yesterday marked the fourth anniversary of 
President Bush's first judicial nominations, a group of 11 highly 
qualified men and women nominated to the U.S. courts of appeals.
  As I said in the East Room at the White House on May 9, 2001: I hope 
the Senate will at least treat these nominees fairly. Many of our 
Democratic colleagues instead chose to follow their minority leader's 
order issued days after President Bush took office, to use ``whatever 
means necessary'' to defeat judicial nominees the minority does not 
like.
  While the previous 3 Presidents saw their first 11 appeals court 
nominees confirmed in an average of just 81 days, today, 1,461 days 
later, 3 of those original nominees have not even received a vote, let 
alone been confirmed. Three have withdrawn.
  In 2003, the minority opened a new front in the confirmation conflict 
by using filibusters to defeat majority-supported judicial nominees. 
This morning I will briefly address the top 10 most ridiculous judicial 
filibuster defenses. Time permits only brief treatment, but it was 
difficult to limit the list to 10.
  No. 10 is the claim that these filibusters are part of Senate 
tradition. Calling something a filibuster, even if you repeat it over 
and over, does not make it so. These filibusters block confirmation of 
majority-supported judicial nominations by defeating votes to invoke 
cloture or end debate. Either these filibusters happened before or they 
did not.
  Let me take the evidence offered by filibuster proponents at face 
value. Let me refer to these two charts. These two charts list some 
representative examples of what Democrats repeatedly claim is 
filibuster precedence. The Senate confirmed each of these 
nominations. As ridiculous as it sounds, filibuster proponents claim, 
with a straight face, by the way, that confirming these past 
nominations justifies refusing to confirm nominations today.

  Some examples are more ridiculous than others. Stephen Breyer is on 
the Democrats' list of filibusters, suggesting that the Senate treated 
his nomination the way Democrats are treating President Bush's 
nominations today. The two situations could not be more different. Even 
though President Carter nominated now-Justice Breyer but then attorney 
Breyer, law professor Breyer, in November 1980, after losing his bid 
for reelection--that is when he nominated him--and after Democrats lost 
control of the Senate, we voted to end debate and overwhelmingly 
confirmed Stephen Breyer just 26 days after his nomination. And I had a 
lot to do with that. The suggestion that confirming the Breyer 
nomination for the party losing its majority now justifies 
filibustering nominations for the party keeping its majority is, well, 
just plain ridiculous.

[[Page S4799]]

  No. 9 on the list of the most ridiculous filibuster defenses is that 
they are necessary, they say, to prevent one-party rule from stacking 
the Federal bench. Now, if you win elections, you say the country has 
chosen its leadership. If you lose, you complain about one-party rule. 
When your party controls the White House, the President appoints 
judges. When the other party controls the White House, the President 
stacks the bench--at least that seems to be the attitude.
  Our Democratic colleagues say we should be guided by how the 
Democratic Senate handled Franklin Roosevelt's attempt to pack the 
Supreme Court. It is true that FDR's legislative proposal to create new 
Supreme Court seats failed, and without a filibuster, I might add. But 
as it turned out, packing the Supreme Court required only filling the 
existing seats. President Roosevelt packed the Court all right, by 
appointing no less than eight Justices in 6 years--more than any 
President, except George Washington himself.
  This chart is an answer to FDR's court packing without a filibuster. 
Now, let me just make some points. As the chart shows, during the 75th, 
76th, and 77th Congresses, when President Roosevelt made those 
nominations, Democrats outnumbered Republicans by an average of 70 
Democrats to 20 Republicans. Now, that is one-party rule. Yet the 
Senate confirmed those Supreme Court nominees in an average of just 13 
days, one of them on the very day it was made and six of them without 
even a rollcall vote. That is not because filibustering judicial 
nominations was difficult. In fact, our cloture rule did not then apply 
to nominations. A single Member of that tiny, beleaguered Republican 
minority could have filibustered these nominations and attempted to 
stop President Roosevelt from packing the Supreme Court--just a single 
Member could have.
  The most important number on this chart is the number right at the 
bottom: the number of filibusters against President Roosevelt's 
nominees--zero.
  No. 8 on this list is the claim that without the filibuster the 
Senate would be a patsy, nothing but a rubberstamp for the President's 
judicial nominations. To paraphrase a great Supreme Court Justice: If 
simply stating this argument does not suffice to refute it, our debate 
about these issues has achieved terminal silliness. Being on the losing 
side does not make one a rubberstamp.
  For all of these centuries of democratic government, have we seen 
only winners and rubberstamps? Was the famous tag line for ABC's Wide 
World of Sports ``the thrill of victory and the agony of 
rubberstamping''? Democrats did not start filibustering judicial 
nominations until the 108th Congress. Imagine the history books 
describing the previous 107 Senates as the great rubberstamp Senates. 
Did Democrats rubberstamp the Supreme Court nomination of Clarence 
Thomas in 1991 since they did not use the filibuster? That conflict 
lasting several months and concluding with that 52-to-48 confirmation 
vote did not look like a rubberstamp to me.
  Some modify this ridiculous argument by saying this applies when one 
party controls both the White House and the Senate. They make the 
stunning observation that Senators of the President's party are likely 
to vote for his nominees. The assistant minority leader, Senator 
Durbin, recently said, for example, that Republican Senators are 
nothing but ``lapdogs'' for President Bush.
  Pointing at others can be dangerous because you have a few fingers 
pointing back at yourself. Counting both unanimous consent or rollcall 
votes, more than 37,500 votes were cast here on the Senate floor on 
President Clinton's judicial nominations. Only 11 of them, just a 
teeny, tiny, three one-hundredths of 1 percent, were ``no'' votes from 
Democrats--only 11 of 37,500. Were they just rubberstamping lapdogs in 
supporting President Clinton?
  The Constitution assigns the same roles to the President and the 
Senate no matter which party the American people put in charge of which 
end of Pennsylvania Avenue.
  In the 1960s, the Democrats were in charge, yet Minority Leader 
Everett Dirksen refused to filibuster judicial nominees of Presidents 
Kennedy or Johnson. Was he just a rubberstamp?

  In the 1970s, the Democrats were in charge, yet Minority Leader 
Howard Baker refused to filibuster President Carter's judicial 
nominees. Was he just a rubberstamp?
  In the 1980s, the Republicans were in charge, yet Minority Leader 
Robert Byrd did not filibuster President Reagan's judicial nominees. 
Was he just a rubberstamp?
  And a decade ago, the Democrats were again in charge, yet Minority 
Leader Bob Dole refused to filibuster President Clinton's judicial 
nominees. Was he a rubberstamp?
  To avoid being a rubberstamp, one need only fight the good fight, win 
or lose.
  No. 7 on the list of most ridiculous judicial filibuster defenses is 
that these filibusters are necessary to preserve our system of checks 
and balances. That is an argument we have heard from the other side.
  Mr. President, any civics textbook explains that what we call 
``checks and balances'' regulates the relationship between the branches 
of Government. The Senate's role of advice and consent checks the 
President's power to appoint judges, and we exercise that check when we 
vote on his judicial nominations.
  The filibuster is about the relationship between the majority and 
minority in the Senate, not about the relationship between the Senate 
and the President. It actually interferes with being a check on the 
President's power by preventing the Senate from exercising its role of 
advice and consent at all.
  Former Majority Leader Mike Mansfield once explained that by 
filibustering judicial nominations, individual Senators presume what he 
called ``great personal privilege at the expense of the 
responsibilities of the Senate as a whole, and at the expense of the 
constitutional structure of the federal government.''
  In September 1999, the Senator from Massachusetts, Mr. Kennedy, 
expressed the same view when he said:

       It is true that some Senators have voiced concerns about 
     these nominations. But that should not prevent a roll call 
     vote which gives every Senator the opportunity to vote 
     ``yes'' or ``no.''

  Those were the words of our colleague from Massachusetts, Senator 
Kennedy: Give every Senator the opportunity to vote yes or no.
  That was then; this is now.
  In case anyone needs further clarification on this point, I ask 
unanimous consent that the definition of ``checks and balances'' from 
two sources, ``congressforkids.net'' and ``socialstudieshelp.com,'' be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Definition of checks and balances from 
     www.congressforkids.org.
 ``By creating three branches of government, the delegates 
     built a `check and balance' system into the Constitution.''
       Definition of checks and balances from 
     www.socialstudieshelp.com.
 ``In this system the government was to be divided into 
     three branches of government, each branch having particular 
     powers. Not only does each branch of the government have 
     particular powers, each branch has certain powers of the 
     other branches.''

  Mr. HATCH. No. 6 on the list is that these filibusters are necessary 
to prevent appointment of extremists.
  What our Democratic colleagues call ``extreme'' the American Bar 
Association calls ``qualified.'' In fact, all three of the appeals 
court nominees chosen 4 years ago who have been denied confirmation 
received the ABA's highest ``well qualified'' rating. Now, that was the 
gold standard under the Democrats when Clinton was President. The same 
Democrats who once called the ABA rating the gold standard for 
evaluating judicial nominees now disregard it and call these people 
extreme.
  Did 76 percent of Californians vote to keep an extremist on their 
supreme court when they voted to retain Justice Janice Rogers Brown, an 
African-American woman, a sharecroppers' daughter, who fought her way 
all the way up to the Supreme Court of California?
  Did 84 percent of all Texans and every major newspaper in the State 
support an extremist when they reelected Justice Priscilla Owen to the 
Texas Supreme Court--84 percent?
  The Associated Press reported last Friday that the minority leader 
reserves the right to filibuster what he

[[Page S4800]]

calls ``extreme'' Supreme Court nominees. Now, that is quite an escape 
hatch, if you will, since the minority already defines any nominee it 
does not like as ``extreme.'' This is simply a repackaged status quo 
masquerading as reform.
  If Senators want to dismiss as an extremist any judicial nominee who 
does not think exactly as they do, that certainly is their right. That 
is, however, a reason for voting against a confirmation, not for 
refusing to vote at all. As our former colleague, Tom Daschle, said:

       I find it simply baffling that a Senator would vote against 
     even voting on a judicial nominee.

  No. 5 on this list of most ridiculous judicial filibuster defenses is 
the claim that these filibusters are about free speech and debate. If 
Senators cannot filibuster judicial nominations, some say, the Senate 
will cease to exist, and we will be literally unable to represent our 
constituents.
  The same men who founded this Republic designed this Senate without 
the ability to filibuster anything at all. A simple majority could 
proceed to vote on something after sufficient debate. Among those first 
Senators were Oliver Ellsworth of Connecticut, who later served on the 
Supreme Court, as well as Charles Carroll of Maryland and Richard Henry 
Lee of Virginia, who had signed the Declaration of Independence. When 
they ran for office, did they know that they would be unable to 
represent their States because they would be unable to filibuster?
  These filibusters are about defeating judicial nominations, not 
debating them. The minority rejects every proposal for debating and 
voting on nominations it targets for defeat.
  In April 2003, my colleague from Utah, Senator Bennett, asked him, 
the minority leader, how many hours Democrats would need to debate a 
particular nomination. Now, just take a look at chart 4. His response 
spoke volumes:

       [T]here is not a number [of hours] in the universe that 
     would be sufficient.

  Let me just refer to chart 5.
  Later that year, he said:

       We would not agree to a time agreement . . . of any 
     duration.

  Let me go to chart 6. Just 2 weeks ago, the minority leader summed up 
what really has been the Democrats' position all along:

       This has never been about the length of the debate.

  He is right about that. This has always been about defeating 
nominations, not debating them. If our Democratic colleagues want to 
debate, then let us debate. The majority leader said we will give 100 
hours for each of these nominees. Let's debate them. Let us do what 
Democrats once said was the purpose of debating judicial nominations. 
As my colleague from California, Senator Boxer, put it in January 1998:

       [L]et these names come up, let us have debate, let us vote.

  No. 4 on the list is that returning to Senate tradition regarding 
floor votes on judicial nominations would amount to breaking the rules 
to change the rules. As any consultant worth even a little salt will 
tell you, that is a catchy little phrase. The problem is that neither 
of its catchy little parts is true.
  The constitutional option, which would change judicial confirmation 
procedure through the Senate voting to affirm a parliamentary ruling, 
would neither break nor change Senate rules. While the constitutional 
option has not been used to break our rules, it has been used to break 
filibusters.
  On January 4, 1995, the Senator from West Virginia, the distinguished 
Senator, Mr. Byrd, described how, in 1977, when he was majority leader, 
he used this procedure to break a filibuster on a natural gas bill. 
Now, I have genuine affection and great respect for the Senator from 
West Virginia, and he knows that. But let me just refer to chart 7. 
Since I would not want to describe his repeated use of the 
constitutional option in a pejorative way, let me use his own words. 
Here is what he said back in 1995, the distinguished Senator from West 
Virginia:

       I have seen filibusters. I have helped to break them. There 
     are few Senators in this body who were here [in 1977] when I 
     broke the filibuster on the natural gas bill. . . . I asked 
     Mr. Mondale, the Vice President, to go please sit in the 
     chair; I wanted to make some points of order and create some 
     new precedents that would break these filibusters. And the 
     filibuster was broken--back, neck, legs, and arms. . . . So I 
     know something about filibusters. I helped to set a great 
     many of the precedents that are on the books here.

  Well, he certainly did. I was here. And using the constitutional 
option today to return to Senate tradition regarding judicial 
nominations would simply use the precedents the distinguished Senator 
from West Virginia put on the books.
  No. 3 on the list of most ridiculous judicial filibuster defenses is 
that the constitutional option is unprecedented, or should we call it 
the Byrd option. In 1977, 1979, and 1987, the then majority leader, 
Senator Byrd, secured a favorable parliamentary ruling through a point 
of order and a majority of Senators voted to affirm it. He did this 
even when the result he sought was inconsistent with the text of our 
written rules.
  In 1980, he used a version of the same procedure to limit nomination-
related filibusters. Majority Leader Byrd made a motion for the Senate 
to vote to go into executive session and proceed to consider a specific 
nomination. At the time, the first step was not debatable but the 
second step was debatable. A majority of Senators voted to overturn a 
parliamentary ruling disallowing the procedural change Majority Leader 
Byrd wanted.
  Let me refer to chart 8. Seven of these Senators serve with us today, 
and their names appear on this chart. They can explain for themselves 
how voting against restricting nomination-related filibusters today is 
consistent with voting to restrict them in 1980. As you can see, they 
are illustrious colleagues.
  No. 2 on the list is that preventing judicial filibusters will doom 
legislative filibusters. As you know, there are two calendars in the 
Senate. One is the legislative calendar. I would fight to my death to 
keep the filibuster alive on the legislative calendar to protect the 
minority. But then there is the executive calendar, which is partly the 
President's in the sense that he has the power of appointment and 
nomination and sends these people up here and expects advice and 
consent from the Senate. Advice we give. Consent we have not given in 
the case of these nominees who have been filibustered, or so-called 
filibustered.
  No. 2 on the list is that preventing judicial filibusters, they 
claim, will doom legislative filibusters. That's pure bunk. Our own 
Senate history shows how ridiculous this argument really is. 
Filibusters became possible by dropping the rule allowing a simple 
majority to proceed to a vote. The legislative filibuster developed, 
the judicial filibuster did not. What we must today limit by rule or 
ruling we once limited by principle or self-restraint--for 214 years, 
that is. The filibuster is an inappropriate obstacle to the President's 
judicial appointment power but an appropriate tool for exercising our 
own legislative power. I cannot fathom how returning to our tradition 
regarding judicial nominations will somehow threaten our tradition 
regarding legislation. The only threat to the legislative filibuster 
and the only votes to abolish have come from the other side of the 
aisle. In 1995, 19 Senators, all Democrats, voted against tabling an 
amendment to our cloture rule that would prohibit all filibusters of 
legislation as well as nominations. As this chart shows, nine of those 
Senators still serve with us and their names are right here on this 
chart.
  I voted then against the Democrats' proposal to eliminate the 
legislative filibuster, and I oppose eliminating it today. The majority 
leader, Senator Frist, also voted against the Democrats' proposal to 
eliminate the legislative filibuster. In fact, that was his first vote 
as a new Member of this body. I joined him in recommitting ourselves to 
protecting the legislative filibuster. I urge my friends on the other 
side, the Democrats, to follow the example of our colleague from 
California, Senator Boxer, who recently said that she has changed her 
position, that she no longer wants to eliminate the legislative 
filibuster.
  In 1995, USA Today condemned the filibuster as ``a pedestrian tool of 
partisans and gridlock meisters.''
  The New York Times said the filibuster is ``the tool of the sore 
loser.'' I hope these papers will reconsider their position and support 
the legislative filibuster.
  The No. 1 most ridiculous judicial filibuster defense is that those 
wanting

[[Page S4801]]

to filibuster Republican nominees today opposed filibustering 
Democratic nominees only a few years ago. In a letter dated February 4, 
1998, for example, the leftwing urged confirmation of Margaret Morrow 
to the U.S. District Court for the Central District of California. They 
urged us to ``bring the nomination to the Senate, ensure that it 
received prompt, full and fair consideration, and that a final vote on 
her nomination is scheduled as soon as possible.'' Groups signing this 
letter included the Alliance for Justice, Leadership Conference on 
Civil Rights, and People for the American Way. As we all know, these 
leftwing groups today lead the grassroots campaign behind these 
filibusters that would deny this same treatment to President Bush's 
nominees. Their position has changed as the party controlling the White 
House has changed.
  Let me make it easy for the ``hypocrite patrol'' to check out my 
position on the Morrow nomination. In the February 11, 1998, 
Congressional Record, on page S640, three pages before that letter from 
the leftwing groups appears, I opened the debate on the Morrow 
nomination by strongly urging my fellow Senators to support it. We did, 
and she is, today, a sitting Federal judge, as I believe she should be. 
The same Democrats who today call for filibusters called for up-or-down 
votes when a Democrat was in the White House.
  Let me refer to chart 10 here. I will just give some illustrations. 
In 1999, my dear friend from California, Senator Feinstein, a person I 
have great love and respect for, a Member of the Senate Judiciary 
Committee, said of the Senate:

       It is our job to confirm these judges. If we don't like 
     them, we can vote against them.

  She said:

       A nominee is entitled to a vote. Vote them up, vote them 
     down.

  Let me go to chart 11. Another committee member, Senator Schumer, 
properly said in March 2000:

       The President nominates and we are charged with voting on 
     the nominees.

  He was right.
  Let me refer to chart 12. I have already quoted the Senator from 
California, Senator Boxer once, but in 2000 she said that filibustering 
judicial nominees:

     . . . would be such a twisting of what cloture really means 
     in these cases. It has never been done before for a judge, as 
     far as we know--ever.

  I appreciate what another member of the Judiciary Committee, Senator 
Kohl, said in 1997:

       Let's breathe life back into the confirmation process. 
     Let's vote on the nominees who have already been approved by 
     the Judiciary Committee.

  Well, let me go to chart 14. The Senator from Iowa, Senator Harkin, 
who fought so strongly against the legislative filibuster in 1995, 
said, 5 years later, about the judicial filibuster:

       If they want to vote against them, let them vote against 
     them. But at least have a vote.

  The same view comes from three former Judiciary Committee chairmen, 
members of the Democratic leadership. Let me refer to chart No. 15. A 
former committee chairman, Senator Biden, said in 1977 that every 
judicial nominee is entitled:

       To have a shot to be heard on the floor and have a vote on 
     the floor.

  Former chairman, Senator Edward Kennedy, said in 1998:

       If Senators don't like them, vote against them. But give 
     them a vote.

  And my immediate predecessor as chairman, Senator Leahy, said a year 
later, judicial nominees are:

     entitled to a vote, aye or nay.

  Now, the assistant minority leader, Senator Durbin, had urged the 
same thing in September 1998:

       Vote the person up or down.

  Vote the person up or down.
  Finally, Mr. President, the minority leader, Senator Reid, expressed 
in March 2000 the standard that I hope we can reestablish:

       Once they get out of committee, bring them down here and 
     vote up or down on them.

  The majority leader, Senator Frist, recently proposed a plan to 
accomplish precisely this result. But the minority leader dismissed it 
as--I want to quote this accurately now--

       A big fat wet kiss to the far right.

  I never thought voting on judicial nominations was a far-right thing 
to do.
  These statements speak for themselves. Do you see a pattern here? The 
message at one time seems to be let us debate and let us vote. That 
should be the standard, no matter which party controls the White House 
or the Senate.
  Mr. President, as I close, let me summarize these 10 top most 
ridiculous judicial filibusters in this way. Blocking confirmation of 
majority-supported judicial nominations by defeating cloture votes is 
unprecedented. In the words of the current Judiciary Committee 
chairman, Senator Specter:

       What Democrats are doing here is really seeking a 
     constitutional revolution.

  We must turn back that revolution. No matter which party controls the 
White House or Senate, we should return to our tradition of giving 
judicial nominations reaching the Senate floor an up-or-down vote. 
Full, fair, and vigorous debate is one of the hallmarks of this body, 
and it should drive how we evaluate a President's judicial nominations.
  Honoring the Constitution's separation of power, however, requires 
that our check on the President's appointment power not highjack that 
power altogether. This means debate must be a means to an end rather 
than an end in itself. Senators are free to vote against the nominees 
they feel extreme, but they should not be free to prevent other 
Senators from expressing a contrary view or advising and consenting. In 
this body, we govern ourselves with parliamentary rulings as well as by 
unwritten rules. The procedure of a majority of Senators voting to 
sustain a parliamentary ruling has been used repeatedly to change 
Senate procedure without changing Senate rules, even to limit 
nomination-related filibusters.
  I have tried to deal with the substance of our filibuster proponents' 
arguments, albeit with some humor and maybe a touch of sarcasm. A few 
days ago, as the Salt Lake Tribune reported, the minority leader was in 
my State:

     . . . stopping just short of calling Utah Senator Orrin Hatch 
     a hypocrite.

  That is at least how the newspaper described it. That is not what I 
consider to be a substantive argument. Perhaps those who dismiss their 
opponents as liars, losers, or lap dogs have nothing else to offer in 
this debate. Yet debate we must, and then we must vote.
  Mr. President, how much remaining time do I have?
  The ACTING PRESIDENT pro tempore. The Senator has 1 minute remaining.
  Mr. HATCH. Let me just make this point. We confirmed, in 6 years of 
Republican control of the Senate, 377 judges for President Clinton. 
That was five less than the all-time confirmation champion Ronald 
Reagan. All of these people who are up have well-qualified ratings from 
the ABA, all had a bipartisan majority to support them. What is wrong 
with giving them an up-or-down vote and retaining 214 years of Senate 
tradition? What is wrong with that? I think it is wrong to try and blow 
up that tradition the way it is being done.
  With that, I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SCHUMER. Will the Chair advise as to how much time remains on 
this side?
  The ACTING PRESIDENT pro tempore. One-half hour remains on the 
Senator's side.

                          ____________________