[Congressional Record Volume 152, Number 132 (Tuesday, December 5, 2006)]
[Senate]
[Pages S11112-S11115]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. FRIST. Mr. President, there is a very common question I been 
asked over the last several days: During your 4-year tenure as majority 
leader, what has been the most constitutionally challenging issue 
confronting the Senate?
  I didn't have to think very long. I very quickly came to this whole 
topic of judicial filibusters, which unfortunately reflected one of the 
most difficult and challenging aspects of this institution over the 
last 4 years; that is, the partisanship that would come to the surface 
and the obstruction that resulted from that partisanship. It was this 
unprecedented use of these filibusters, judicial filibusters, in the 
last two Congresses that came very close to fundamentally disrupting 
the Senate's relationship with the executive branch and the Senate's 
relationship with the judicial branch. It impaired the Senate's ability 
to discharge a very basic constitutional obligation--to advise and 
consent.
  In the process, Senate traditions were damaged. I believe they have 
been resolved. I am very hopeful that this partisanship will not 
resurface in future Congresses. In those 214 years between 1789 and 
2003, exactly one judicial nominee was stopped by filibuster, and over 
that period of 214 years that single case was a lonely historical 
aberration. Until this Congress and the Congress right before that, the 
previous Congress, which was my first as leader, we had this Senate 
tradition literally shattered and we saw in that one Congress, and it 
continued into this Congress; after 214 years of one blocked nominee by 
filibuster, there were 10 in that very short period of time. So for 
decades we have had two great Senate traditions that existed side by 
side: For one, a general respect for the filibuster itself, and the 
other, a consensus that judicial nominations brought to the floor would 
receive an up-or-down vote.
  Filibusters, of course, are periodically conducted on legislative 
matters. Sometimes successfully and sometimes they are ended by 
cloture. However, filibusters on judicial nominees have not impeded 
this basic constitutional responsibility of our Senate's advice and 
consent, that important role in judicial nominations. In the 
exceedingly rare cases in the past where filibusters were attempted on 
these nominations, very quickly cloture was always invoked with 
bipartisan support, support from both sides, and the filibusters 
ceased.
  But in the last Congress, the previous Congress, these judicial 
filibusters became an instrument of partisan politics. As I said, I 
hope that such partisan politics can be set aside in the future.
  Due to these filibusters--again, a whole series of them in the last 
Congress and this Congress--the Senate traditions were set aside. They 
were set aside but then also they collided before they were set aside. 
If matters were left to their own purpose, either the power to give 
advice and consent would yield to the filibuster or the filibuster 
would ultimately have to yield to advise and consent. So in response to 
these tradition-shattering filibusters, we sought to create a 
precedent. The precedent came to be known as the constitutional option, 
and that would guarantee a very simple principle, one which had been 
respected over time by tradition here. And that is after substantial 
debate each judicial nominee brought to the floor would get an up-or-
down vote.
  Proceeding with the constitutional option was painful to many 
Senators, including myself, because of that respect for minority 
rights. But even

[[Page S11113]]

these longstanding rights can take on new forms from time to time and 
become abused. That is exactly what happened in the last Congress. We 
could not permit the filibuster, the judicial filibuster, to take root, 
to become the new precedent in this Congress and therefore, to restore 
constitutional precedent, the constitutional option--putting it forth 
on the floor, bringing it to the floor--became a necessary last resort.
  It was fascinating because once we stood on principle and moved 
toward that constitutional option, literally the night before we 
carried it out, a compromise was reached and important Senate 
traditions were restored. Senate traditions all of a sudden came back 
to what they had always been up until two Congresses ago, and that is 
the filibusters would be confined to ``extraordinary circumstances.'' 
That is an exercise of self-restraint, something, again, I encourage 
this new Congress to adhere to in the future.
  So after that, Democrats who would be voting against these nominees 
by continuing these filibusters did switch and did allow these nominees 
to, for the most part, pass.
  If we had not put that constitutional option on the table, great 
nominees never would have been confirmed. But for the constitutional 
option, judicial filibusters would have become an ever more routine 
part of business on the floor and, but for the constructional option, 
deal brokers would have had no deal to broker.
  Because we acted, the sword of the judicial filibuster was sheathed. 
Highly qualified nominees who would have been blocked now sit on courts 
of appeals. Sam Alito, who was, in fact, himself subject of a failed 
filibuster, now serves on the U.S. Supreme Court. The problem of 
judicial filibusters was of monumental importance. It affected the 
internal functioning of the Senate, that relationship between the 
Senate and the Presidency and the relationship between the Senate and 
the courts. It was the biggest challenge that I confronted as majority 
leader and was the issue of largest consequence for our constitutional 
system.
  Mr. President, to reiterate, during my tenure as majority leader, the 
most vexatious and constitutionally challenging issue confronting the 
Senate was judicial filibusters. This tactic threatened to disrupt 
fundamentally the Senate's relationship with coordinate branches of 
Government and to impair the Senate's ability to discharge its 
constitutional obligation to advise and consent. In the process, Senate 
traditions were damaged.
  In the 214 years between 1789 and 2003, exactly one judicial nominee 
was stopped by filibuster. That case occurred in 1968, when President 
Lyndon Johnson nominated Abe Fortas to be Chief Justice of the U.S. 
Supreme Court. The filibuster that erupted was broadly bipartisan, 
mainly on ethics grounds, but many commentators worried about the 
constitutional implications the filibuster presented. Chief among them 
was the Senate majority leader, Mike Mansfield. In Senate debate on 
September 25, 1968, he put this issue squarely:

       I reiterate we have a constitutional obligation to consent 
     or not to consent to this nomination. We may evade that 
     obligation, but we cannot deny it. As for any post, the 
     question which must be faced is simply: Is the man qualified 
     for the appointed position? That is the only question. It 
     cannot be hedged, hemmed, or hawed. There is one question: 
     Shall we consent to this Presidential appointment? A Senator 
     or group of Senators may frustrate the Senate indefinitely in 
     the exercise of its constitutional obligation with respect to 
     this question. In so doing, they presume great personal 
     privilege at the expense of the responsibilities of the 
     Senate as a whole, and at the expense of the constitutional 
     structure of the Federal Government.

  For 35 years thereafter, Senator Mansfield's words were given heed, 
and the Fortas case remained a lonely historical aberration. But in the 
last Congress--my first as leader--the minority shattered Senate 
traditions and filibusters blocked 10 nominees.
  It began with the nomination of Miguel Estrada to serve on the Court 
of Appeals for the District of Columbia. Mr. Estrada epitomized the 
American dream. An immigrant from Honduras, he arrived in America 
speaking no English, but he graduated from Harvard Law School, and 
argued numerous cases before the Supreme Court while serving as a 
Deputy Solicitor General. The American Bar Association gave him its 
highest recommendation and his confirmation by the Senate seemed 
assured.
  But the confirmation vote never came. Each time we sought a consent 
agreement to limit debate, the minority leadership objected. In open 
session, they remarked that no amount of debate time would be 
sufficient and that they would not permit the Senate to vote.
  After 13 days, I filed a cloture motion to close debate. Every 
Republican voted for it along with a handful of Democrats, but the 
minority held firm and we fell short with 55 votes. This process was 
repeated on the Estrada nomination six more times. But the discipline 
imposed by the minority leadership never weakened and we never budged a 
single vote.
  Debate was not the issue. Obstruction was the issue. Finally, to the 
shame of the Senate and the harm of the American people, Mr. Estrada 
asked President Bush to withdraw his nomination.
  Before the last Congress, the record number of cloture votes on a 
judicial nomination was two and no nomination with clear majority 
support ever died by filibuster. The Estrada case rewrote that 
tradition, and for the worse. On Miguel Estrada, seven cloture votes 
were taken, to no avail. He was a nominee who plainly could have been 
confirmed, but he was denied an up or down vote.
  And the Estrada case was just the beginning. After Miguel Estrada, 
nine additional nominees were filibustered and the minority threatened 
filibusters on six more.
  As the filibusters began to mushroom, Democratic Senator Zell Miller 
and I introduced a cloture reform resolution. Our proposal would have 
permitted an end to filibusters of nominations after reasonable and 
substantial debate. The Senate Rules Committee held a hearing on our 
resolution and reported it with an affirmative recommendation.
  But the proposal languished on the Senate calendar, facing a certain 
filibuster from Senators opposed to cloture reform. Quite simply, those 
who undertook to filibuster these nominees wanted no impediments put in 
their way.
  Consent orders had failed to resolve this issue, as had cloture and a 
rules change through the regular order. So we looked to the 2004 
elections. And we made judicial filibusters an election issue in many 
States.
  Notwithstanding election outcomes strengthening the margin of the 
majority, the minority dug in, saying that they had not filibustered 
too many nominees but too few. So even election outcomes failed.
  When the present Congress convened last January, I was urged to move 
immediately for a change in Senate procedure so that these 
unprecedented filibusters could not be repeated. But I decided on a 
more measured and less confrontational course. Rather than move 
immediately to change procedure, I promoted dialogue at the leadership 
and committee level to seek a solution to this problem. Rather than act 
on the record of the last Congress, I hoped that the passage of a 
clearly won election and presence of new Democratic leadership would 
result in a sense of fairness being restored.
  Sadly, these hopes were not fulfilled. More filibusters were 
promised, not only against seven nominees President Bush resubmitted 
but also against other nominees as then yet to be proposed. A renewal 
of filibusters against persons denied an up or down vote in the last 
Congress was a grave problem and would be reason enough for reform. 
Threatening filibusters against new nominees compounded the wrong and 
was further reason for reform. My choice was stark: accept a new 
tradition of judicial filibusters or act to address them.

  For many decades, two great Senate traditions existed side by side. 
These were a general respect for the filibuster and a consensus that 
nominations brought to the floor would receive an up or down vote. 
Filibusters have been periodically conducted on legislation, sometimes 
successfully and sometimes ended by cloture. However, filibusters have 
not impeded the Senate's advice and consent role on nominations. In the 
exceedingly rare cases they were attempted, cloture was always invoked

[[Page S11114]]

with bipartisan support and the filibusters ceased.
  But in the last Congress, judicial filibusters became instruments of 
partisan politics. Organized and promoted by the minority leadership, 
these filibusters proved resilient to cloture.
  Due to these filibusters, the two great Senate traditions that used 
to coexist came to collide. If matters were left in this posture, 
either the power to advise and consent would yield to the filibuster or 
the filibuster would yield to the power to advise and consent.
  Until these judicial filibusters were launched, the Senate lived by 
the principle that filibusters would not impede the exercise of 
constitutional confirmation powers and that a majority of Senators 
could vote to confirm or reject a nominee brought to the floor. The 
unparalleled filibusters undermined that tradition, denying nominees 
the courtesy of an up or down vote. They represented an effort by a 
Senate minority to obstruct the duty of the full Senate to advise and 
consent. The current minority claimed it had no choice but to 
filibuster, because Republicans controlled the White House and Senate. 
But the minority's conclusion defied history.
  For 70 of the 100 years of the last century, the same party 
controlled the Presidency and the Senate, but the minority party 
leadership exercised restraint and refused to filibuster judicial 
nominees. The past half-century amply illustrates this point. During 
the Kennedy and Johnson administrations, Democrats controlled the 
Senate, but the Republican minority leader Everett Dirksen did not 
filibuster judicial nominees. While President Carter was in office, 
Democrats controlled the Senate, but Republican leader Howard Baker did 
not filibuster judicial nominees. For President Reagan's first 6 years, 
Republicans controlled the Senate, but Democratic Leader Robert Byrd 
did not filibuster judicial nominees. In President Clinton's first 2 
years, Democrats had the Senate but Republican leader Bob Dole did not 
filibuster judicial nominees. During all those years, all those 
Congresses, and all those Presidencies, nominees brought to the floor 
got an up or down vote.
  Democrats argued that by curbing judicial filibusters, the Senate 
would turn into a rubberstamp. But for more than two centuries, those 
filibusters did not exist. Shall we conclude that for 200 years the 
Senate was a rubberstamp and only now awakened to its responsibilities? 
What of those minority leaders who did not filibuster? Were they also 
rubberstamps? Was Dirksen? Was Baker, Was Byrd? Was Dole? Could the 
minority be right that only through the filibuster may the Senate's 
advice and consent check be vindicated? This was a novel conclusion and 
it stained the reputation of the great Senators that preceded us.
  To make their case against curbs on judicial filibusters, the 
minority cited the 1968 nomination of Abe Fortas to be Chief Justice of 
the U.S. Supreme Court, and Franklin Roosevelt's court-packing plan of 
1937. But use of these examples was an overreach and drew false 
comparisons.
  In 1968, Abe Fortas was serving on the Supreme Court as an Associate 
Justice. Three years earlier, he had been confirmed by the Senate by 
voice vote, following a unanimous affirmative recommendation from the 
Judiciary Committee. Then Chief Justice Earl Warren announced his 
retirement, effective on the appointment of his successor. President 
Lyndon Johnson proposed to elevate Fortas to succeed Warren.
  The non-controversial nominee of 1965 became the highly controversial 
nominee of 1968. Justice Fortas was caught in a political perfect 
storm. Some Senators raised questions of ethics. Others complained 
about cronyism. Yet others were concerned about Warren Court decisions. 
And still others thought that with the election looming weeks away, a 
new President should fill the Warren vacancy. But this political 
perfect storm was thoroughly bipartisan in nature, and reflected 
concerns from certain Republicans as well as numerous southern and 
northern Democrats.
  Senator Mike Mansfield brought the Fortas nomination to the Senate 
floor late on September 24, 1968. After only 2 full days of debate, 
Mansfield filed a cloture motion. Almost a third of the 26 Senators who 
signed the cloture motion were Republicans, including the Republican 
whip. The vote on cloture was 45 yeas and 43 nays, well short of the 
two-thirds then needed to close debate. Nearly a third of Republicans 
supported cloture, including the Republican whip. Nearly a third of 
Democrats opposed it, including the Democratic whip. Of the 43 negative 
votes on cloture, 24 were Republican and 19 were Democratic.
  Opponents of cloture claimed that debate had been too short in order 
to develop the full case against the Fortas nomination. In contrast to 
the Miguel Estrada filibuster, no one claimed that debate would go on 
endlessly and that no amount of time would be sufficient. Indeed, those 
who opposed cloture denied there was a filibuster at all.

  So, the Fortas case was not analogous to the judicial filibusters we 
now confront. Support for and opposition to Fortas was broadly 
bipartisan, a fact that stands in stark contrast to the partisan 
filibusters that began in the last Congress as an instrument of party 
policy. At most, it was opposition to one man, and was not an effort to 
leverage judicial appointments through the threat of a filibuster-veto. 
The Fortas opposition came together in one aberrational moment. Nothing 
like it had happened in the previous 180 years and nothing like it was 
repeated for the next 35 years. Absolutely, it did not represent a 
sustained effort by a party minority to shatter Senate confirmation 
traditions and exercise a filibuster-veto destructive of checks and 
balances. No comparison can be made between that single aberrational 
moment and the pattern of judicial filibusters we confronted.
  The minority also contended that if Republicans moved against the 
judicial filibusters, we would follow in the footsteps of Franklin 
Roosevelt's attempt to pack the Supreme Court. But this was a 
comparison without basis.
  Frustrated by the Supreme Court's ruling unconstitutional several New 
Deal measures, President Roosevelt sought legislation to pack the court 
by appointing a new Justice for every sitting Justice over the age of 
70. In a fireside chat, he compared the three branches of Government to 
a three horse team pulling a plow. Unless all three horses pulled in 
the same direction, the plow could not move. To synchronize all the 
horses, Roosevelt proposed to pack the court.
  Roosevelt's effort was a direct assault on the independence of the 
judiciary and plainly undermined the principles of separation of powers 
and checks and balances. He failed in a Senate with 76 members of his 
own party.
  No good analogy can be drawn between what Roosevelt attempted and our 
effort to end judicial filibusters. Unlike Roosevelt, Republicans were 
not trying to undermine the separation of powers. And unlike Roosevelt, 
Republicans were not trying to destabilize checks and balances, but to 
restore them.
  That the judicial filibusters undermined a longstanding Senate 
tradition is evident. But traditions are not laudable merely because 
they are old. This tradition is important because it underpins a vital 
constitutional principle that the President shall nominate, subject to 
the advice and consent of the Senate. When filibusters are used to 
block a vote, the advice and consent of the Senate is not possible.
  A cloture vote to end a filibuster is not advice and consent within 
the Constitution's meaning. Notwithstanding the minority's claim, 
nominees denied a confirmation vote due to filibuster were 
``rejected.'' Instead, what was rejected was the constitutional right 
of all Senators to vote up or down on the nominees.
  To require a cloture threshold of 60 votes for confirmation disturbs 
checks and balances between the executive and the Senate and creates a 
strong potential for tyranny by the minority. A minority may hold 
hostage the nomination process, threatening to undermine judicial 
independence by filibustering any appointment that does not meet 
particular ideological or litmus tests.
  The Constitution provides that a duly elected executive shall 
nominate, subject to advice and consent by a majority of the Senate. 
Implicit in that structure is that the President and the Senate shall 
be politically accountable

[[Page S11115]]

to the American people, and that accountability will be a sufficient 
check on the decisions made by each of them. That was the system by 
which we Americans addressed nominations for more than two centuries, 
until the last Congress. But judicial filibusters would replace that 
system with one that gave the minority a filibuster-veto in the 
confirmation process.
  Trying to legitimize their judicial filibusters, the minority took to 
the floor to extol the virtue of filibusters generally. And as to 
legislative filibusters, I agree with them. But judicial filibusters 
are not cut from the same cloth as legislative filibusters and must not 
receive similar treatment. So, I concur with the sentiments Senator 
Mansfield expressed during the Fortas debate:

       In the past, the Senate has discussed, debated and 
     sometimes agonized, but it has always voted on the merits. No 
     Senator or group of Senators has ever usurped that 
     constitutional prerogative. That unbroken tradition, in my 
     opinion, merely reflects on the part of the Senate the 
     distinction heretofore recognized between its constitutional 
     responsibility to confirm or reject a nominee and its role in 
     the enactment of new and far-reaching legislative proposals.

  History demonstrates that filibusters have almost exclusively been 
applied against the Senate's own constitutional prerogative to initiate 
legislation, and not against nominations. Judicial filibusters put 
fundamental constitutional values in jeopardy, hallowed principles of 
checks and balances, the separation of powers and an independent 
judiciary.
  Having exhausted all other alternatives and unwilling to acquiesce in 
the judicial filibusters, we in the Republican leadership looked for a 
solution. We recognized that article I, section 5 of the Constitution 
states that ``each House may determine the Rules of its proceedings''. 
In short, that means the Constitution gives the Senate the power to 
govern itself. And we proposed to draw on that power to change how the 
Senate ends debate on judges. We called this the constitutional option, 
and we built support for it.
  The Senate is an evolving institution. Its rules and processes are 
not a straitjacket. Over time, adjustments have occurred in Senate 
procedure to reflect changes in Senate behavior. Tactics no longer 
limited by self-restraint became restricted by new rules and 
precedents.
  In response to the tradition-shattering filibusters, we sought to 
create a precedent. And that precedent would guarantee that after 
substantial debate, each judicial nominee brought to the floor got an 
up or down vote.
  As I said, proceeding with the constitutional option was painful to 
many Senators, including myself, because minority rights are deeply 
respected. But even longstanding rights can take new forms and become 
abused. And that is what happened when judicial filibusters damaged 
Senate traditions. We could not permit the precedent of these 
filibusters to take root. To restore Senate traditions, the 
constitutional option became a necessary last resort.
  As we moved toward a vote on the constitutional option, a compromise 
was reached, and important Senate traditions were restored. Filibusters 
were confined to ``extraordinary circumstances''--an exercise of self-
restraint. So some Democrats who had routinely supported the judicial 
filibusters began voting for cloture.
  Of this I am confident: but for the constitutional option, great 
nominees never would have been confirmed. But for the constitutional 
option, judicial filibusters would have become ever more routine. And 
but for the constitutional option, deal brokers would have had no deal 
to broker.
  Because we acted, the sword of the filibuster was sheathed. Highly 
qualified nominees who would have been blocked now sit on courts of 
appeals. And Samuel Alito, who was the subject of a failed filibuster, 
now serves on the U.S. Supreme Court.
  The problem of judicial filibusters was of monumental importance. It 
affected the internal functioning of the Senate, the relationship 
between the Senate and the Presidency, and the relationship between the 
Senate and the courts. It was the biggest challenge I confronted as 
majority leader and the issue of largest consequence for our 
constitutional system.

                          ____________________