[Congressional Record Volume 151, Number 71 (Wednesday, May 25, 2005)]
[Senate]
[Pages S5859-S5860]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL FILIBUSTERS

  Mr. FRIST. Mr. President, the confirmation over judicial filibusters 
is, I believe, the greatest single constitutional issue to confront the 
Senate in our lifetime. That is because this issue involves the very 
special and unique relationship between the Senate and the Presidency 
and the special relationship between the Senate and the courts. It 
involves all three branches of government. In addition, it involves the 
interaction between the minority and majority parties within the 
Senate.
  The Senate confronts so many significant issues every month, every 
year, but none of them touches the grand institutions of American 
democracy the way this one does. The President has the constitutional 
obligation to appoint judges, and the Senate has the constitutional 
responsibility to offer its advice and consent.
  For 214 years, the Senate gave every nominee brought to the floor a 
fair up-or-down vote. Most we accepted; some we rejected. But all of 
those nominees got a vote.
  In the last Congress, however, the minority leadership embarked on a 
new and dangerous course. They routinely filibustered 10 of President 
Bush's appellate court nominees and threatened filibusters on 6 more. 
Organized and fueled by the minority leadership, these filibusters 
could not be broken. By filibuster, the minority denied the nominees a 
confirmation vote and barred the full Senate from exercising its 
obligation to advise and consent.
  The purpose of those filibusters was clear. It was not only to keep 
the President's nominees off the bench; it was to wrest control of the 
appointments process from the President. Anyone who did not pass the 
minority leadership's ideological litmus test would be filibustered. 
That meant a minority would dictate whom the President should appoint, 
if he expected that nominee to get a confirmation vote in this body. 
That was a power grab of unprecedented proportions.
  With more filibusters threatened for this Congress, the power grab 
would become even bolder. It would become even more entrenched. 
Fundamental

[[Page S5860]]

constitutional principles were called into question. They included the 
separation of powers, checks and balances, the independence of the 
judiciary, and the negation of the Senate's right to advise and 
consent. The minority claimed the right to impose a 60-vote threshold 
before a nominee could pass muster, for that is the number needed to 
invoke cloture and to break a filibuster. The Constitution doesn't say 
that. It only requires a majority to confirm. But for a minority 
spinning novel constitutional theories, the real Constitution took a 
back seat.
  The Republican majority tried first to invoke cloture on each of the 
judicial nominees, but driven by the minority leadership, the 
filibusters proved resilient to cloture. Then we introduced a 
filibuster reform proposal and, with regular order, took it through the 
Rules Committee, but it died without action because it was sure to be 
filibustered as well.
  So then we turned to the voters in November. The election 
strengthened our majority. But the minority ignored the election and 
even dug their heels in further. Faced with the certainty that the 
minority would expand its filibusters, we faced a critical choice: 
either accept the filibuster power grab as the new standard for the 
Senate or restore the tradition of fair up-or-down votes on nominees.
  We, as Republican leadership, decided to stand for a principle. That 
principle is simple and clear. It is clear without equivocation, 
without trimming. Every judicial nominee brought to the floor shall get 
a fair up-or-down vote--a simple principle.
  The Constitution specifically gives the Senate the power to govern 
itself. We were fully committed to use that power to establish a 
process by which a confirmation vote would occur after reasonable 
debate. This approach has a lot of precedent. We were prepared to use 
this approach. The minority attempted to demean it by calling it the 
nuclear option, surrounding it with threats of closure of government 
and stopping this body from working. But realistically, the nuclear 
option is what they did. It is what they did when they detonated this 
filibuster power grab in the last Congress.
  The proper term for our response is the ``constitutional option'' 
because we would rely on the Constitution's power of self-governance to 
restore Senate traditions barring judicial filibusters. Against their 
unprecedented power grab by filibuster--that is what I would call the 
nuclear option--there is only one antidote that is certain, that would 
absolutely be effective, and that is the constitutional option.
  The moment of truth was to have come yesterday on May 24, but, as we 
all know, that action was preempted by an agreement among seven 
Democrats and seven Republicans to forestall use of the constitutional 
option in exchange for confirmation votes on just three nominees and a 
promise that filibusters would occur only under what are called in 
the agreement ``extraordinary circumstances.'' I was not a party to 
that agreement, nor was our Republican leadership. It stops far short 
of guaranteeing up-or-down votes on all nominees. It stops far short of 
the principle on which this leadership stands. It leaves open the 
question of whether someone such as Miguel Estrada, who came to this 
country as a 17-year-old immigrant from Honduras, worked his way to the 
top of college and law school, and tried 15 cases at the Supreme Court, 
who was filibustered again and again and again, filibustered 7 times, 
would be an extraordinary circumstance.

  Now we move on to a new and an uncertain phase. Today, the Senate 
will happily confirm Priscilla Owen to the Fifth Circuit Court of 
Appeals. Some of the other nominees will follow her. Priscilla Owen is 
a gentlewoman, an accomplished lawyer, and a brilliant Texas jurist. 
She was unconscionably denied an up-or-down vote for not just a few 
months or a year or 2 years but for 4 years. It was over 4 years ago 
that she was nominated to this position. The minority has distorted her 
record. They have cast aspersions on her abilities. They have rendered 
her almost unrecognizable. She had the fortitude to see the process 
through. Very late, too late, but finally, she will receive an up-or-
down vote and will be confirmed.
  Without the constitutional option, Priscilla Owen would have never 
come to a vote today. Neither would any of the other nominees. The 
other side made it clear that they would filibuster. Without the 
constitutional option, judicial filibusters would have become a 
standard instrument of minority party policy.
  The agreement among those 14 is based on trust, a trust that casual 
use of judicial filibusters is over. Without the constitutional option, 
the minority would have adhered to the path it was on, and deal brokers 
would have had no deal to broker.
  I am very hopeful now and optimistic, but I am curious what 
``extraordinary circumstances'' will mean.
  I am wary, but as Ronald Reagan was fond to say, ``Trust but 
verify.'' If nominees receive up or down votes and the sword of the 
filibuster is sheathed, then the Republican leadership can be proud 
that its focused direction on the constitutional option arrested a 
dangerous and destructive trend.
  If filibusters erupt under circumstances other than extraordinary, we 
will put the constitutional option back on the table and will implement 
it. Abraham Lincoln once said that when it is not possible to do the 
best, it is best to do what is possible. Standing firm for the 
principle of fair up-or-down votes, we have made real progress. That is 
something I think we can all celebrate with the up-or-down vote 
Priscilla Owen receives today. That principle will be our guidepost as 
the rest of this great constitutional drama unfolds.
  I yield the floor.

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