[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
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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
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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
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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.
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