[Congressional Record Volume 152, Number 135 (Friday, December 8, 2006)]
[Senate]
[Pages S11599-S11600]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       FULFILLING DUTY, PRESERVING LEGACY: NOMINEE CONFIRMATIONS

  Mr. FRIST. Mr. President, this week, among other agenda items, the 
Senate considered the nomination of Robert Gates as Secretary of 
Defense. It puts me in mind of similar high-level nominations we 
considered earlier this year, and throughout the 109th Congress. 
Namely, Chief Justice John Roberts, Justice Samuel Alito, and a host of 
other judicial nominees and presidential appointees.
  When I consider these nominees I am reminded of the progress we've 
have made--the remarkable strides we've taken--to ensure continued 
fulfillment of our constitutional duty as United States Senators. 
Whether we recognized it or not, the 109th Congress had the potential 
to become a pivotal turning point in our Nation's history--with 
repercussions reaching far into the future.
  Over the past 30 years, the Senate's confirmation process has slowly 
but steadily deteriorated. We faced the confirmation of fewer and fewer 
judicial nominees. During the Carter and Reagan administrations, the 
Senate confirmed 9 out of 10 appeals court nominees. But in the first 
term of the current administration, the Senate blocked one out of every 
three appeals court nominees.
  Those that were confirmed took longer and longer. In the Carter and 
Reagan administrations, the Senate took an average of about 60 days to 
confirm a Federal appeals court nominee. But in the first term of this 
administration, we took an average of nearly 300 days.
  And as the judicial nominations process deteriorated, so too did the 
quality and civility of debates. Bitterness and acrimony seeped in, 
threatening to poison the Senate's legacy--and our nation's future.
  The 108th Congress marked the low point. For the first time in 
history, a minority of Senators obstructed the principle of a fair up-
or-down vote on judicial nominees. That was unprecedented. Never in 214 
years of Senate history had a judicial nominee with majority support 
been denied an up-or-down vote.
  Two years ago, I faced a decision. I could ignore the events of the 
108th Congress. Through passivity, I could permit the active 
obstruction of Senate duties--and the active destruction of Senate 
traditions.
  Or I could do something to halt the unchecked downward spiral. I 
could protect the Senate's history of fulfilling our constitutional 
duty. I could help restore our legacy.
  At the beginning of this Congress--the 109th Congress--I made a 
decision. I chose to stand on principle. I came to this floor, and 
reminded my colleagues of the 14-word oath of office we each take: ``I 
do solemnly affirm that I will support the Constitution of the United 
States.''
  Our first responsibility, above all else, is to do our constitutional 
duty. Yet in the 108th Congress, the Senate failed to perform an 
essential constitutional duty. It failed to offer advice and consent to 
the President by filibustering ten judicial nominees and threatening to 
filibuster another six.
  So nearly 2 years ago, when the 109th Congress opened, I took a 
stand.
  In the spirit of bipartisanship, I extended my hand across the aisle 
to the new Senate Democratic leadership. I held the sincere hope that 
we could move forward beyond the difficulties of the 108th Congress--to 
a future of cooperation.
  I said:

       If my Democratic colleagues exercise self-restraint and do 
     not filibuster judicial nominees, Senate traditions will be 
     restored. It

[[Page S11600]]

     will then be unnecessary to change Senate procedures. . . . 
     But if my Democratic colleagues continue to filibuster 
     judicial nominees, the Senate will face this choice: Fail to 
     do its constitutional duty or reform itself and restore its 
     traditions, and do what the Framers intended.

  And it was at that point I made it clear that if the obstruction of 
fulfilling our constitutional duty continued, I would enforce the 
constitutional option--what some of my colleagues took to calling the 
``nuclear'' option.
  The principle is simple. The U.S. Senate has a constitutional 
obligation of advice and consent on the President's nominees.
  To consent--or not consent. To vote yea or nay.
  That is our constitutional duty.
  And nothing--not party, not ideology, not politics, and not even 
tradition--should interfere.
  That is the principle.
  The nomination process is a grueling experience. Even for those 
nominees with impeccable credentials, a spotless record, and 
unassailable positions--it's anything but pleasant.
  We grill nominees. We scrutinize their every word--both written and 
spoken. We demand justifications for their every action and decision. 
We advertise their flaws, both real and imagined. And we posit 
hypothetical situations before them, to gauge their reactions.
  It takes a certain amount of stamina--of endurance--to undergo the 
nomination process. It demands exposure of the nominees and their 
families to public slander and character assassination.
  And yet we have the audacity to compound this grueling experience by 
forcing nominees to languish without benefit of a vote.
  So the principle I outlined at the beginning of this Congress--that 
every nominee should have a fair up-or-down vote--is twofold. First, 
each vote is the fulfillment of our constitutional duty to offer advice 
and consent on each of the President's nominees. And second, each vote 
offers a measure of fairness to nominees. They have submitted to the 
grueling public scrutiny entailed by the nomination process. In return, 
they deserve a definitive answer--yea or nay--on whether they have 
passed muster.
  Undoubtedly, we lose many qualified candidates because they choose 
not to endure the public scrutiny of being nominated. But how many more 
do we lose--needlessly--because they fear languishing without a vote?
  That is why I made it clear--at the outset of this Congress--that I 
could not countenance the perpetuation of the travesties of the 
previous Congress.
  Looking back, I firmly believe that without that firm stand--without 
the promise of the constitutional option--we would not be where we are 
today.
  Without the promise of the constitutional option, we would not have 
seen the so-called Gang of 14.
  Without the promise of the constitutional option, it's unlikely we 
would have confirmed two Supreme Court nominees with such timeliness.
  Without the promise of the constitutional option, I have no doubt 
that future generations would look at the 109th Congress as a negative 
turning point for the Senate. A turning point in which, through our 
passivity, we allowed a laudable Senate tradition to trump Senate duty 
as defined in the Constitution.
  We have, for the time being, protected our Senate legacy.
  I recounted these events for a reason. There is purpose to my 
reminiscing.
  This week we are wrapping up the business of the 109th Congress. We 
are preparing for a change in control of the Senate. Many of my 
colleagues will return for the 110th Congress. I would leave them with 
this challenge: continue the progress of the 109th Congress.
  We have halted the deterioration of the nominations process. We have 
even turned it around, helping prevent numerous nominees from 
languishing indefinitely.
  But despite these important strides, there have still been 
casualties.
  Just yesterday, President Bush accepted John Bolton's resignation 
from his post as Ambassador to the United Nations. A man eminently 
qualified to articulate the position of the United States--and yet a 
minority of my colleagues refused to grant him an up-or-down vote.
  They refused to take a decisive stand--yea or nay. And in so doing, 
they abdicated their constitutional duty of advice and consent.
  And there are others. Ten circuit court nominees still await a 
definitive vote, as do 21 district court nominees. And some have waited 
years. Not months, and certainly not days: but years.
  It is true that the number of nominees still languishing is smaller 
now than it was at the end of the 108th Congress. And I firmly believe 
that what progress we've realized is a direct result of standing on 
principle.
  For more than 200 years, the Senate operated on the underlying 
assumption that every nominee deserved an up-or-down vote. In the 109th 
Congress, we were forced to defend that assumption. And we did so, by 
standing on principle.
  We have made important strides. We have stopped the downward spiral, 
and started to regain lost ground. But the fact remains: we still have 
farther to go. We have made progress, but it hasn't been enough.
  So let me reiterate: to the 110th Congress--to my returning 
colleagues, and to the new Members--I issue this challenge: continue 
that upward momentum. Continue the progress of the 109th Congress.
  Fulfill your constitutional duty of a fair up-or-down vote on each 
nominee.
  Fulfill your commitment to fairness by giving nominees a firm yea or 
nay.
  And fulfill your place in history by helping preserve the Senate's 
legacy. Don't let history remember the 110th Congress as the one when 
the Senate turned rebel.
  It comes down to this: You can build on the progress of the 109th 
Congress. Or you can abdicate your constitutional duty, and irreparably 
damage America.
  Looking back, I can proudly say the Senate stood on principle during 
the 109th Congress. We made genuine progress. I hope I can say the same 
of future Congresses.

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