Congressional Record, Volume 151 Issue 61 (Wednesday, May 11, 2005)

[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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