[Congressional Record Volume 151, Number 76 (Thursday, June 9, 2005)]
[Senate]
[Pages S6342-S6344]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FILIBUSTER AGREEMENT
Mr. DeWINE. Mr. President, we have just seen a major accomplishment
in the Senate in the last several weeks: the confirmation of five
nominees to serve on the Federal bench. These confirmations were
achieved after a historic agreement was reached in the Senate, an
agreement that allowed us to proceed.
We have seen five individuals confirmed by the Senate--Priscilla
Owen, Janice Rogers Brown, William Pryor, David McKeague, and Richard
Griffin. The majority leader has indicated that Thomas Griffith will be
on the Senate floor shortly and we will take up that nomination.
This represents a major accomplishment and a major change in the way
the Senate has been doing business. This shows bipartisanship. This is
a step forward. It is progress.
As one of the 14 Senators involved in negotiating the recent
compromise agreement on the use of filibusters to block judicial
nominations, I am very pleased to see this progress and to see what has
happened since this agreement was reached. As everyone knows, of these
five nominations, several of them have been held up for years. Two I
have a particular interest in come from the Sixth Circuit from the
States of Ohio, Michigan, Kentucky, and Tennessee. These two come from
the State of Michigan but are part of the Sixth Circuit which has had
vacancies for many years. Now we have these two positions filled.
I am pleased to see this progress we have been making the last 2
weeks on nominations but also the progress we have been making in the
Senate on other matters, as well. I think it is good for the country.
The agreement that we entered into not only cleared the field for the
President's judicial nominations, some of whom, as I have said, have
been waiting for over 4 years, but by avoiding confrontation it also
allowed the people's agenda to move forward. And that is a very
important matter.
Already, since the agreement was reached, the Senate Judiciary
Committee has passed out of the committee
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the asbestos bill, and the Senate Energy and Natural Resources
Committee has passed the Energy bill.
Now, as someone who was in the room for the negotiations of the
filibuster agreement, I would like to take just a few moments to talk
about what happened, why I was involved, and where we go from here.
Candidly, I became involved in the negotiations because I was not
satisfied with what I had seen in the Senate over the last few years.
Everyone got in the negotiation, I am sure, for different reasons. I am
just speaking for myself. I believed that judges were not getting voted
on in the Senate, that the circuit court judges were not being acted
upon when they should have been, that many of them were being denied an
up-or-down vote. I believed the filibuster was being used in excess to
block their nominations. I felt that the status quo was simply not
acceptable, that we could no longer continue down that path.
Well, what was the solution? How were we going to get judges voted on
in the Senate? The status quo abuse of the filibuster, which I felt
clearly was an abuse of the filibuster, was not acceptable to me. I was
prepared to take action to deal with that. Yet I felt that, in the best
interests of the Senate and the Nation, it was really not in the best
interests of the Nation or the Senate to totally change the rules and
totally eliminate the filibuster, if we could avoid that. I felt what
we needed basically was a resolution to this crisis, a new option or
alternative that could restore the Senate to where it was when I
entered the Senate a decade ago. That was a Senate where the
possibility of a filibuster for judicial nominations was there but
hardly ever used.
I believe that is exactly what we were able to achieve with the
agreement.
During our negotiations, we agreed that a filibuster for a judge
should not be used unless under extraordinary circumstances.
Furthermore, we made sure the agreement included a provision that if
the terms of the agreement were violated, and a judge was filibustered
in circumstances that an individual Member considered not to be
extraordinary--in other words, if Mike DeWine or any Member considered
that another Member was filibustering a judge under a circumstance that
was not extraordinary, that I or any Member had the right to pull out
of that agreement and to go back and say: I am going to use the
constitutional option to change the practice, the precedent of the
Senate.
That was my right. I insisted on that when I entered the
negotiations. I felt that was important and that was the only way I
could be a part of the negotiations.
So let me make that very clear. The constitutional option was on the
table, and it does remain on the table today. There was never any
question in my mind about that. In fact, let me repeat exactly what I
said at the press conference that the group held on May 23, right after
we had reached our agreement. This is what I said that evening at that
press conference when everyone was there, at least 12 of the 14 people
who had reached the agreement. This is what I said. I quote myself:
This agreement is based on good faith--good faith among
people who trust each other. And, it's our complete
expectation that it will work. Senators have agreed that they
will not filibuster except in extraordinary circumstances. We
believe that will, in fact, work. Some of you who are looking
at the language may wonder what some of the clauses mean. The
understanding is--and we don't think this will happen--but if
an individual Senator believes in the future that a
filibuster is taking place under something that's not
extraordinary circumstances, we, of course, reserve the right
to do what we could have done tomorrow, which is to cast a
yes vote for the constitutional option. I was prepared to do
that tomorrow if we could not reach an agreement.
Mr. President, let me also quote from the May 30, Washington Post
article by Dan Balz. He wrote the following about the agreement:
[Senator] DeWine, Senator Lindsey Graham have disputed the
assertion . . . that the nuclear option is off the table.
DeWine said he explicitly raised the issue just before the
group announced the deal.
Balz then quotes me:
I said at the end, ``Make sure I understand this now, that
. . . if any member of the group thinks the judge is
filibustered under circumstances that are not extraordinary,
that member has the right to vote at any time for the
constitutional option.'' Everyone in the room understood
that.
Now, the article goes on to say--again, Dan Balz's article in the
Washington Post--
Senator Mark Pryor, [a Democrat and] another member of the
group [of 14], concurred, saying that while he hopes the
nuclear option is gone for the duration of the 109th
Congress, circumstances could bring it back.
Quoting Senator Pryor:
I really think Senator DeWine and Senator Graham have it
right.
Mr. President, Members of the Senate, Senate Majority Leader Frist
also agrees with this assessment. He said, in this May 30 article by
Dan Balz:
The nuclear option remains on the table. It remains an
option. I will not hesitate to use it, if necessary.
And later, Senator Frist was quoted in the June 5 New York Times from
his comments in a speech at Harvard University, as follows. This is
Senator Frist:
The short-term evaluations, I believe, will prove to be
shortsighted and wrong after we get judge after judge after
judge after judge through, plus at least one Supreme Court
nominee and an energy bill . . . and we will get Bolton.
Mr. President, Members of the Senate, as the recent judicial
confirmation votes in the Senate demonstrate, the majority leader is
right. We are getting things done. We are getting things done because
this agreement was negotiated in good faith by good people who want to
get things done, who want to proceed step by step. It was negotiated in
good faith by Members working together in the best interests of this
Senate and of our Nation. It is a good agreement, one that has enabled
us in the Senate to get back to doing the business of the people, for
the people. That is what the American people expect, and it certainly
is what the American people deserve.
We have made progress. We have been able to confirm judges and bring
to the floor of this Senate for up-or-down votes three judges who have
been held up for years and two other judges in a circuit, the Sixth
Circuit, in Ohio and three other States, that has suffered from a lack
of judges on the Sixth Circuit for years, with many vacancies. Today,
we filled two of those vacancies. That makes a difference. We are
making progress.
I am not arrogant enough to come to the floor today and say that
everything is going to work out perfectly. I don't know that it will. I
don't have a crystal ball. I just know that we have come a ways. We
have taken some steps. We have made some progress. I believe we can
rely on the good faith of Members to try to continue to work together,
continue to make progress, and continue to try to exercise good faith.
We have set a bar now, a standard. Seven Members of the Senate on
each side have said they will not filibuster except under extraordinary
circumstances. That is something that had not been set before. That is
the bar. No, it is not specifically defined. I understand that. But at
least there is a bar. It is an understanding. That is progress. It is a
recognition that the filibuster is not something just to be used; it is
something to be used only in very rare cases. You have to use it after
you think long and hard about it. It is the recognition of 14 people
that they will only use that filibuster after thinking long and hard.
That is progress.
What we have seen with these five judges is progress. So we celebrate
tonight progress, not total victory. You are never done in the Senate.
We are always trying to move forward. But at least we should stop for a
moment tonight and say: We have made progress. We have come this far.
We know we have a ways to go, but here we are, at least.
I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. SALAZAR. Mr. President, let me at the outset say that I am proud
that I was 1 of the 14 Members who signed the agreement just referred
to by my good friend from Ohio. In the signing of that agreement, one
of the things that brought people together was the concept of respect
for each other, mutual respect for our colleagues in this Chamber,
mutual respect for the people of America.
As we have gone through the debate on the confirmation of judges over
the last several days, I have seen debate
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within this body as well as debate among some of the constituent groups
that I have found troublesome because it goes to the heart of the kind
of respect we should afford each other in this Chamber.
I have heard statements that those who happened to be opposed to Bill
Pryor, for whom I voted, were opposed to him because he was anti-
Catholic. I heard statements made that some of my Democratic colleagues
who were opposed to Janice Rogers Brown were opposed to her because she
was African American. I submit that nothing could be further from the
truth. In fact, when those kinds of statements emanate from Members of
this Chamber or when they emanate from some of the constituent groups
that follow us, it is a violation of the respect we should afford each
other.
I, too, am hopeful that as we move forward in the consideration of
other judges and other matters, that kind of hurtful, vitriolic, and
unwarranted attack on each other is something we will not see again. If
we can establish that kind of collegiality within this body, we can, in
fact, return to those days when we had people working across the aisle
to solve the common problems that faced Americans, regardless of
whether they were Democrats, Independents, or Republicans. It is that
kind of ethic I hope is embraced as we move forward in deliberations.
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