[Congressional Record Volume 151, Number 61 (Wednesday, May 11, 2005)]
[Senate]
[Pages S4893-S4896]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    FILIBUSTER OF JUDICIAL NOMINEES

  Mr. ENSIGN. Mr. President, I would like to think that if some of the 
finest and most respected jurists in our country's history were 
nominated today to sit on the Federal bench, their successful 
confirmation by the Senate would be guaranteed. I am talking about 
jurists such as Chief Justice John Marshall, Chief Justice Earl Warren, 
and Justice Oliver Wendell Holmes. Imagine where we would be today 
without their bright, insightful legal minds.
  Unfortunately, in today's bitter and partisan atmosphere, I don't see 
how any of them would make it through this grueling, humiliating, and 
endless judicial nomination process. That is a disturbing thought. We 
must put an end to this mockery of our system before it becomes 
impossible to undo the damage.
  I am sure a lot of Americans believe this is politics as usual. It is 
not. Filibustering of judicial nominations is an unprecedented 
intrusion into the longstanding practice of the Senate's approval of 
judges.
  We have a constitutional obligation of advise and consent when it 
comes to judicial nominees. While there has always been debate about 
nominees, the filibuster has never been used in partisan fashion to 
block an up-or-down vote on someone who has the support of a majority 
of the Senate.
  In our history, many nominees have come before us who have generated 
strenuous debate. Robert Bork and Clarence Thomas are two of what the 
other side would consider more controversial figures to be considered 
for a position on the Federal bench. It is important to note that both 
of these men, despite the strong feelings they generated from their 
supporters and their detractors, received an up-or-down vote. Now, 
sadly, due to the efforts of the Democrats in the Senate, the 214-year 
tradition of giving each Federal candidate for judge a solid ``yea'' or 
``nay'' is at risk.
  Senate tradition is not the only thing at risk here, though. The 
quality of our judiciary is at grave risk. It is and should continue to 
be an honor to be nominated to serve on the Federal bench. Nominees are 
aware of the rigorous process that goes along with their nomination--
intense background checks and the opening of one's life history to the 
public. However, highly qualified and respected nominees do not sign on 
to being dragged through a bitter political battle. If we allow the 
filibustering of nominees to continue, I fear that those highly 
qualified candidates will decline to put themselves and their families 
through the abyss of this process. The American judicial system will be 
sorely hurt should this happen. And it already happened with Miguel 
Estrada, who was an outstanding nominee. We cannot afford to let this 
happen and let it continue.
  I believe that anyone who has been nominated by the President and is 
willing to put his or her name forward and be subjected to the rigorous 
confirmation process deserves a straight up-or-down vote on his or her 
nomination in both committee and on the floor of the Senate. 
Guaranteeing that every judicial nominee receives an up-or-down vote is 
truly a matter of fairness. It doesn't mean that there is no debate or 
opportunity to disagree. It does mean fair consideration, debate, and a 
decision in a process that moves forward.
  I say that today with the Republican President in the White House and 
a Republican majority in the Senate, but I know we will uphold the up-
or-down vote when we eventually have Democrats back in control. That is 
because this is the fairest way to maintain the health of the judicial 
nomination process and the quality of our courts.
  Our Founding Fathers set up a form of Government with three separate 
branches, and they were all very distinct. The current state of affairs 
in the Senate threatens the very balance of power. Although the up-or-
down vote is critical to maintaining that balance, there is a need to 
reform the committee process as well. Each committee should discharge 
nominees, whether it is with a positive or a negative vote. But at some 
point, that nominee deserves to have a vote of the full Senate on the 
floor. The committee should not have the power to kill a nominee on its 
own.
  I sincerely hope we can put an end to this crisis, judge judicial 
nominees on the basis of their character, qualifications, and 
experience, and return to fulfilling our constitutional duty.
  I understand that the majority leader has just put forward a proposal 
to correct the unfair treatment of judges. Senator Frist's proposal 
will ensure that each and every nominee will be treated fairly. It will 
ensure that each nominee will receive a fair up-or-down vote, whether a 
Republican President or a Democrat President nominates him or her.

  I commend Senator Frist for his leadership. His proposal ensures 
future nominees are treated fairly. I urge my colleagues to adopt 
Senator Frist's proposal.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Vitter). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CRAPO. 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. CRAPO. Mr. President, I would like to take a few moments to 
discuss the issue that seems to be the major topic of debate now in the 
Senate. It is that of the question of how we approach the nomination 
and confirmation of judges.
  Frankly, I think that the level of hostility and the level of debate 
that has increased around this issue is becoming alarming to the 
American people--not so much necessarily because of their objection or 
concern about the various positions being taken but because of the 
concern about how the Senate is running, the question of whether we in 
the Senate are working on the business of the American people in a way 
that is in the best interest of public discourse, or whether the 
dynamic in the Senate is deteriorating into a highly partisan, highly 
personal, and highly difficult climate in which we are increasingly 
facing gridlock.
  Mr. President, I would like to go back through the debate because a 
lot has been said about what the role of the filibuster is as we 
approach the issue of confirmation of judges. I believe it is important 
because, frankly, I notice in some of the advertising that

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is going on across the country right now that the argument being made 
seems to be that the filibuster was established in the Constitution by 
our Founding Fathers as one of the checks and balances of our system.
  The reality is that from 1789 until 1806, the Senate did not have 
anything close to a filibuster. In fact, the Senate had the traditional 
motion for the previous question in its rules, which, for those who 
don't follow these things closely, meant that a majority could close 
debate on any issue when there was a motion to proceed to a vote. The 
majority could close the debate.
  So, clearly, there is no mention of the filibuster in the 
Constitution and, clearly, until at least 1806 there was no possibility 
for utilization of the filibuster in the Senate. Even after 1806, when 
for other reasons the Senate eliminated the motion for the previous 
question, the idea of filibustering never really took hold in the 
Senate until much later. In fact, it was about the 1840s when a group 
of Senators realized that under the rules there was no way for them to 
be stopped from debating, and they basically started the idea of 
filibustering and approaching the management of issues in the Senate by 
utilization of the tool of filibustering--namely, refusing to stop 
debating and let the Senate move on to a vote.
  Even though that practice started in the 1840s, it was used very 
sparingly and over the years really wasn't that big of a problem. When 
Senators tried it, they worked out issues they were raising, and issues 
were resolved. The Senate never really adopted a cloture rule until the 
1917 timeframe. The cloture rule, for those who don't follow Senate 
procedure that closely, is the rule by which the Senate tries to stop a 
filibuster. It has been in different forms over the years, but in its 
current form--since 1917, it has evolved--it requires 60 votes in the 
Senate to adopt cloture, which means that we will then go into a 
process which will eventually wind down debate on a bill and move us to 
a point where we can vote on a matter. So even in 1917, when the 
original cloture rule was adopted, it didn't really mention judicial 
nominations, because at that point the Senate didn't really contemplate 
the use of the filibuster on judicial nominations.

  The cloture rule was rewritten in 1949. At that time, it was expanded 
to include all matters which technically included judicial nominations. 
But even after 1949, filibusters were rarely, if ever, even tried on 
judicial nominations; and when they were tried on judicial nominations, 
with one exception, when both parties supported the filibuster, even 
when filibusters were tried on judicial nominations, they were stopped. 
Never, until this last Congress, the Congress previous to this, with 
that one exception I mentioned when both parties supported it, did the 
Senate support the utilization of a filibuster on the nomination of a 
judge.
  In the last couple of years, we have seen an increasing and frequent 
utilization of filibusters for nominations on the judiciary. That is 
what brought us to this battle right now. The question the Senate is 
grappling with and which the American people, I believe, are 
justifiably very concerned about is, What should the role of the Senate 
be? What should the procedure of the Senate be when considering 
judicial nominations?
  That takes us, in my opinion, back to the U.S. Constitution. In 
article II of the U.S. Constitution, which is the core around which 
this debate should focus, it provides that the President shall nominate 
and, by and with the advice and consent of the Senate, shall appoint 
judges of the Supreme Court and all other officers of the United 
States, which includes judges of the other courts. The President shall 
nominate and, by and with the advice and consent of the Senate, shall 
appoint. So the question there is, Does the Constitution absolutely 
prohibit a filibuster? No. Does the Constitution absolutely authorize 
filibusters? No. The Constitution simply says the President shall 
nominate and, by and with the advice and consent of the Senate, he 
shall appoint judges.
  Our job now is to determine how to run the rules of the Senate in the 
closest accommodation to the spirit of the Constitution of the United 
States.
  The question, as I see it, is, Does the Constitution contemplate that 
the President is entitled to a vote on his nominees? And if so, is that 
vote a majority vote or is it a vote of a supermajority, like 60, or 
two-thirds? It has been argued on the floor today that all the 
Constitution contemplates is some kind of a vote, whether it be a 60-
vote supermajority, a two-thirds vote, or a majority vote, that the 
Senate can decide, but all the Constitution contemplates is some kind 
of a vote.
  I disagree. I believe the Constitution contemplated that by a 
majority vote the Senate would give its advice and consent. I believe 
the best way to operate this Senate is to utilize the principle of 
advice and consent as one in which we should give the President an up-
or-down vote on those nominees who are able to get sufficient support 
to get out of the Judiciary Committee to the floor of the Senate. As I 
say, historically, never, until the last Congress, has the Senate 
operated in any other way.
  There are those who have tried filibusters, but never have just 41 
Senators stood solidly together and said: No, we will not allow a 
nominee who has enough majority support to get to the floor of the 
Senate to have a vote.
  There are those who are saying the President is trying to pack the 
Court and that the President is trying to change the dynamics of the 
judiciary with people who are out of the mainstream. Again, I do not 
believe anything could be further from the truth.
  There has been a lot of debate on this floor over the last few weeks 
about these nominees, but let's look at a couple of these nominees to 
see what it is we are talking about.
  One of the filibustered nominees is Justice Priscilla Owen. She has 
served on the Texas Supreme Court since 1995. In 2000, Justice Owen was 
overwhelmingly reelected to a second term on that court, receiving 84 
percent of the public vote. I do not think that is out of the 
mainstream.
  During her 2000 election bid, every major newspaper in Texas endorsed 
her. Before joining the supreme court, she was a partner with a well-
respected Texas law firm, having practiced law for 17 years.
  Justice Owen has significant bipartisan support in Texas, including 
three former Democratic judges on the Texas Supreme Court and a 
bipartisan group of 15 past presidents of the State bar of Texas.
  Whether one agrees or disagrees with her philosophy, one cannot argue 
that she is not mainstream. In fact, a bipartisan group of 15 former 
presidents of the State bar of Texas--that bipartisan group about which 
I talked--states:

       Although we profess different party affiliations and span 
     the spectrum of legal and policy issues, we stand united in 
     affirming that Justice Owen is a truly unique and outstanding 
     candidate to appointment to the Fifth Circuit [Court of 
     Appeals].

  They go on to say she has all the qualities to be a good independent 
judge.
  Another who is being attacked is the Honorable Janice Rogers Brown, a 
nominee from the Supreme Court of California to be on the District of 
Columbia Circuit Court. In her 9 years on the California Supreme Court, 
Justice Brown has earned the reputation of being a brilliant and a fair 
justice who rules on the law.
  Her nomination has received broad support from across the political 
spectrum, and she also stood for reelection in the California judicial 
system where she received 76 percent of the public vote in California 
the last time she was on the ballot, which belies the notion that she 
could be out of the mainstream.
  She has dedicated over 25 years of her legal career to public service 
and she, too, is supported by a broad array of bipartisan jurists and 
legal scholars in her State.
  Let me talk about one more, a nominee from my State, the State of 
Idaho, William Myers, who has been nominated to the Ninth Circuit Court 
of Appeals. Bill Myers is a former Solicitor of the Department of 
Interior and is a highly respected attorney who has extensive 
experience in the fields of natural resources, public lands, and 
environmental law. He actually was confirmed by this Senate by 
unanimous consent when he was confirmed to serve as Solicitor of the 
Department of Interior.
  Before coming to the Department of Interior, he practiced at one of 
the most respected law firms in the Rocky Mountain region, and he has a 
rich history of service in public offices. He is a

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very avid outdoorsman and conservationist and has himself wide support 
from bipartisan interests. In fact, the former Democratic Governor of 
Idaho, Cecil Andrus, indicated he is one who deserves our support, has 
the integrity, judicial temperament, and experience to be a good judge.
  Former Democratic Wyoming Governor Mike Sullivan, who also served as 
U.S. Ambassador to Ireland under the Clinton administration, endorsed 
Mr. Myers, saying he is ``a thoughtful, well-grounded attorney who has 
reflected by his career achievements a commitment to excellence.''
  My point in reviewing these three candidates, because my time is 
limited today, is to show that although there is an argument that the 
President is trying to submit candidates who are not in the mainstream, 
the argument does not fit the facts. What is happening is President 
Bush is being denied the opportunity for even a vote on his nominees to 
be the judges on the various circuit courts of this country.
  I think we ought to come back to the Constitution and to the initial 
question which I pose: What does the Constitution of the United States 
contemplate in terms of how the Senate should operate when it fills its 
role as providing advice and consent in the nomination and appointment 
of judges?
  I think it is very important to note that what we are debating is not 
the elimination of the filibuster. We have an Executive Calendar and a 
legislative calendar in the Senate, and the proposal is to address the 
manner in which filibusters are utilized only on a portion of the 
Executive calendar. The Executive calendar is that part of our business 
in which the Senate deals under the Constitution with the executive 
business of the President with the Senate.

  We are suggesting our rules should contemplate that when the 
Constitution gives the President business to conduct with the Senate 
and says the Senate should give its advice and consent on the 
President's nominations, the Senate's rules should not prohibit the 
President from getting a vote.
  All we are asking, not that these nominations be all unanimously 
approved or automatically accepted, is the President get a vote up or 
down on his nominees.
  It is my hope we will not have to get to the point where on the 
Senate floor we have a protracted and bitter battle. We have an 
opportunity to discuss these matters among ourselves and try to do what 
the American people expect of us, and that is to bring more comity to 
the Senate in our individual relations among each other.
  I believe there is room for finding a compromise that can resolve 
this issue in a way that will bring dignity and respect to the Senate 
and will enable us to fulfill the spirit of what the Constitution 
contemplates when it says the Senate should provide its advice and 
consent to the nominations of the President.
  Mr. President, I thank you for my time, and I yield back the 
remainder of my time.
  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. BROWNBACK. Mr. President, how much time remains in morning 
business on this side?
  The PRESIDING OFFICER. There is 6 minutes 25 seconds remaining.
  Mr. BROWNBACK. Mr. President, I yield myself such of that time as I 
may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWNBACK. Mr. President, I am going to follow on the 
presentation of my colleague from Idaho on the issue of judges because 
it is the pending issue before the Senate. We are on the highway bill, 
and it is important legislation, but this issue is what has captured 
the attention of this body, the executive branch, and people across the 
country: the problem of getting judges approved.
  My colleague from Idaho well portrayed some of the nominees and what 
is taking place. I will point out a couple of common issues. I serve on 
the Judiciary Committee. We have had these individuals in front of us, 
in some cases, for 4 years. They are well known to this body, to the 
people here, and they have been fully vetted. The reason they are at 
this point in getting through is they are extremely well qualified. 
There may be philosophical differences with them, but if they are 
allowed to have a vote, they will be confirmed because they are well 
qualified. If they were not well qualified, if they were outside of the 
mainstream of judicial thought, they would not be confirmed and we 
would not be debating this issue.
  We have the Democratic Party deciding: OK, we are going to stop them. 
Actually, they are well qualified and we cannot stop them on a majority 
vote; we are going to stop them on a filibuster and require a 
supermajority vote.
  They have taken that tactic. It is unprecedented. They have taken 
that tactic which is within the rules of the Senate.
  I want to point out what is going to happen if they persist in that 
tactic because then they put it back on us or the President to take 
action in response.
  We can say we are not going to do anything, we are just going to let 
an unprecedented filibuster take over, to which a lot of us are saying 
that is not right, that is not our job. This may force the President to 
do a whole group of recess appointments, a right he has under the 
Constitution. He has been waiting for 4 years for some of these 
nominees. He would rather not do that, I am sure. I have not talked 
with him, but I am sure he would rather not do that. He can say: If you 
are not going to let my judges through, you are supposed to give advice 
and consent, and if you are not going to give advice and consent, then 
this is the action I have to take. Or it is going to force us to change 
the filibuster rule on the issue of judges because of the unprecedented 
use and requirement of a supermajority.
  What I am pointing out is, while the Democrats can take this tactic, 
it is going to force a response which would be legal by a Republican 
majority in the Senate, by the President, but all of which is 
unsatisfactory and not right. We ought to be voting on these judges.
  We have seen the numbers. I think if the numbers were not so extreme, 
we would not feel so forced into a corner, but the numbers are extreme. 
The Senate has accumulated the worst circuit court confirmation record 
in modern times, thanks to this partisan obstruction. Only 35 of 
President Bush's 52 circuit court nominees were confirmed, which is a 
confirmation rate of 67 percent. In comparison, President Johnson's 
confirmation record in his first term in office was 95 percent, as were 
93 percent of President Carter's nominees.

  The other side may point to the district court, the trier of fact, 
level of confirmations. Yes, those are there, but the circuit courts 
are the ones that get to review and interpret the law, and we are 
trying to get judges who will interpret and not write the laws.
  A number of people are willing to allow judges to write laws. I am 
not one of those. That is our job. That is my constitutional role, that 
is my constitutional requirement, and the oath I took to the 
Constitution to write the laws and not to pass them off to the 
judiciary or to say: Well, it is too tough for us, let's let it pass 
through there.
  Plus, what irritates so many people is the use of the judiciary in so 
many areas that are so personal and deeply felt within this society. 
People are saying this is not right, this is something that should come 
in front of legislative bodies. Maybe it will take several election 
cycles for the body politic to get in a position to resolve these 
issues, and that is fine, it should take time on these major issues 
before us.
  Also, I do not want to just focus on the numbers. We should remember 
these nominees are not some sort of political prop. These are good 
people with careers and commitment to public service, the quality and 
depth of which is enviable.
  Also, I note that a solid majority of people agree strongly with the 
President's position that he should pick judges who strictly interpret 
the law rather than legislating from the bench, what the judges think 
the law should be. Ignoring this mandate, some in this body, spurred on 
perhaps by outside interest groups, are threatening yet again to 
filibuster these judge nominees.
  We are now embarking on a dangerous area if we talk about changing 
the role of the judiciary in this society and blocking nominees because 
they are going to stay with the interpretation of the law and not write 
law. I

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think we should be thinking long and hard before we go with judges and 
give a license for them to be more expansive in their role in the 
legislating arena. That is wrong. It is not in the Constitution. It is 
not the division of powers. We should have judges who strictly 
interpret. That is what these nominees are about and much of the base 
of this fight is about.
  I urge my colleagues on the other side of the aisle to think about 
what they will force in response by this tactic, and there will be a 
response to this tactic. I do not think it is wise for this body to 
move toward that route.
  I thank the Chair for this time. I yield the floor and yield back the 
remainder of time.
  The PRESIDING OFFICER. The majority time has expired.

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