[Congressional Record Volume 151, Number 70 (Tuesday, May 24, 2005)]
[Senate]
[Page S5816]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    THE MEMORANDUM OF UNDERSTANDING

  Mr. FRIST. Madam President, I wish to briefly comment on the events 
of last night. The evening moved very quickly, and it did alter the 
course of what likely would have occurred over the course of today. 
Certain adjustments will be made and are being made, as we just heard 
in the colloquy between the Democratic leader and I, in terms of the 
schedule. Although I am not a party of the memorandum of understanding 
signed last night by 14 of our colleagues, I have had the opportunity 
to further review that agreement in more detail.
  I do believe the memorandum of understanding makes modest progress in 
that three individuals will get up-or-down votes on the floor of the 
Senate. To me, it does stop far short of guaranteeing judicial nominees 
the fair up-or-down votes they deserve--other nominees, nominees in the 
future.
  I say that and recognize that with civility and trust, which are two 
values I have tried to stress again and again, and with that memorandum 
of understanding being a starting point and the spirit in which it was 
generated, I believe we can successfully bring these nominees to the 
floor, after coming through the Judiciary Committee, debate them 
extensively, and ultimately bring them to a vote. I believe that is the 
spirit. It will be spun by the left and the right and conservatives and 
liberals in various ways. I did not sign off on the memorandum of 
understanding because it stops far short of the principle, but it does 
put us in a position to move forward expeditiously without delay, 
without filibuster, giving these nominees the votes they deserve and 
the courtesy of a vote. It is our responsibility to vote and give them 
that advice and consent through that up-or-down vote.

  On the agreement, first, it does begin to break the partisan 
obstruction we have seen over the last 2 years. Thematically, it is 
important to get away from extreme partisanship. Parties are important, 
the clash of ideas is important, But where partisanship is injected 
into the system and brings advice and consent to a stop, it is wrong. I 
believe that is the spirit in which the memorandum of understanding, 
with seven Senators from both sides of the aisle, was written.
  Indeed, Priscilla Owen will get an up-or-down vote later today. 
Janice Rogers Brown will get an up-or-down vote. William Pryor will get 
an up-or-down vote. They all will receive the courtesy and fairness of 
a vote.
  Other qualified nominees who have been waiting deserve that same 
courtesy and fairness. Why just those three? Why exclude two others? 
Why be silent on others? That is where the agreement stops far short of 
the principle I have brought to the floor, a principle based on 
fairness.
  Second, the agreement, if followed in good faith, will make 
filibusters in the future, including Supreme Court nominees, almost 
impossible. The words in that agreement of ``will not filibuster except 
under extraordinary circumstances,'' obviously, I am concerned about 
because if extraordinary circumstances are defined as they were in the 
last Congress, which I believe is wrong, on people such as Miguel 
Estrada, who came to this country as an immigrant from Honduras, not 
able to speak English very well, who with hard work worked his way to 
the top of his profession, arguing 15 cases in the Supreme Court, if 
that is extraordinary circumstances, then this agreement will mean very 
little. We have to wait and see. The agreement will have to be 
monitored. The implementation of the memorandum of understanding is 
critical.
  Third, let me be clear: The constitutional option remains on the 
table. It remains an option. I will not hesitate to use it if 
necessary. It should be used as a last resort. Nobody wants to use the 
constitutional option, but it is the only response if there is a change 
in behavior as we saw in the last Congress that is extraordinary, which 
is something that I believe has been absolutely rejected by the 
memorandum of understanding in saying that we are not going to be 
filibustering as we did in the last Congress.
  My goal is restoring the principle of fair up-or-down votes, the 
principle that governed this body for 214 years until the last 
Congress.
  I will say that if the other side of the aisle acts in bad faith, if 
they resume that campaign of routine obstruction where one out of every 
three or four nominees coming from the President who make it through 
the Judiciary Committee, who make it to the Executive Calendar is 
filibustered, the constitutional option is going to come out again. I 
will bring it out. And once again, I will set a date to use it. If that 
is what it takes to move this body forward, we will do that once again.
  The constitutional option is not a threat. It ought to be used as a 
response behavior which I believe is inappropriate to this body as we 
consider nominees. All the constitutional option does is it brings it 
to the floor. One hundred Senators can make the decision as to whether 
the fairness of up-or-down votes is a principle to which they agree.
  I look at all of this today as having the opportunity to begin the 
execution of the memorandum of understanding, using regular order of 
business. The regular order is, as was set out several weeks ago, to 
debate Priscilla Owen extensively, exhaustively, which we have done, 
over 21 days of debate on the Senate floor on Priscilla Owen, and then 
bring it to closure. We had to file a cloture motion. We made an offer 
of 10, 15 hours, and that was turned down by the other side. So we 
filed a cloture petition, and we will have the cloture vote in regular 
order. Depending on the outcome, we will in all likelihood move to an 
up-or-down vote.
  I expect this afternoon that we will confirm Priscilla Owen and, by 
the end of the week's process, Janice Rogers Brown, and William Pryor. 
I will work with the minority leader in terms of the best timing. I 
will work with the Judiciary Committee as well and other Senators to 
move forward expeditiously on other nominees.
  We have had discussions and offers from the other side to move ahead 
with Tom Griffith, which I hope we can do shortly; offers on the Sixth 
Circuit nominees David McKeague, Susan Neilson, and Robert Griffin, all 
of whom deserve a vote on the floor of the Senate, an up-or-down vote. 
So all this has been a very significant, substantial debate.
  I believe the injustice of judicial obstruction in the last Congress 
has been exposed, talked about, recognized, and I believe we have now--
it is not guaranteed--the opportunity to return to the traditions of 
214 years and precedents of 214 years to give these nominees fair up-
or-down votes.
  I hope that progress continues. I am confident it will. I am 
cautiously optimistic. Fair up-or-down votes is a principle I believe 
in and will continue to fight for on the floor of the Senate.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Democratic leader is 
recognized.




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