[Congressional Record Volume 154, Number 152 (Wednesday, September 24, 2008)]
[Senate]
[Pages S9378-S9380]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            FILLING THE TREE

  Mr. SPECTER. Mr. President, as we near the end of the 110th Congress, 
it is my hope that when we return for the 111th Congress, that there 
will be more comity and more bipartisanship and more accomplishment 
than we have seen in this Congress and in prior Congresses. I have 
spoken at some length on the Senate floor about this subject. I am 
about to introduce a prepared written text, but the essence of my 
concern arises because of the practice of limiting the amendments which 
Senators may offer on the floor and the problems of confirming judges, 
especially in the last 2 years of a President's administration.
  The great value of the Senate on the American political scene, which 
has earned this august body the title ``the world's greatest 
legislative body,'' has been the right of any Senator at any time to 
offer virtually any amendment on any bill. That, plus unlimited debate, 
has made this Chamber a unique place among modern democracies, where 
great ideas can be stated, can be articulated, and can be debated, and 
where, with sufficient debate, sufficient analysis, and sufficient 
merit, they can attract great public attention. But that has been 
thwarted in recent years--the last 15 years specifically--by both 
Republican and Democratic majority leaders so that, as usual, when 
there is a problem with this institution, there is bipartisan blame.
  Senator Mitchell, Senator Lott, Senator Frist, and Senator Reid have 
all used this practice. The first three Senators used it on some nine 
occasions

[[Page S9379]]

each, as detailed in the written floor statement which I am about to 
introduce for the record. Senator Reid has used it some 15 times. The 
practice has been that the majority leader, who is entitled as a matter 
of Senate practice to first recognition, takes the floor and offers 
amendments so that there is a process where no other Senator can offer 
an amendment. That is called filling the tree. That has resulted, then, 
in the followup on a cloture motion to cut off debate. Then it becomes 
a bipartisan wrangle, with one half of the aisle--Democrats--voting for 
cloture to cut off debate and Republicans, in a partisan context, 
voting against cloture. I have voted against cloture because as a 
matter of principle I do not think we ought to end the debate before we 
have had a debate or before Senators have had an opportunity to offer 
amendments. That has resulted, as I see it, in gridlock on the Senate 
floor, so the Senate has really become dysfunctional.
  I contrast the kinds of work weeks we have had, with very few votes, 
to the management of the comprehensive immigration bill during the 
109th Congress where we had some 227 amendments filed and some 27 
votes, which is the way I think the Senate ought to operate.
  Then, beyond the issue of filling the tree and stopping Senators from 
proceeding with the offering of amendments, we have had the problems of 
the filibuster. Again, there is bipartisan blame, blame on both sides 
of the equation.
  Mr. President, in the last 15 years, the ``World's Greatest 
Deliberative Body'' has degenerated into a ``do-nothing Senate'' due to 
abusive procedural actions taken by both Republican and Democratic 
majority leaders. The Senate has been gridlocked and has become 
dysfunctional.
  The uniqueness of the U.S. Senate has been that any Senator could 
offer any amendment on virtually any bill at any time. That 
opportunity, plus unlimited debate, made the Senate the place where 
great ideas could be presented to the American people and be debated 
extensively to provide the basis for legislative changes on public 
policy to govern the Nation.
  That changed in 1993 when majority leaders started using their powers 
of first-recognition to offer a series of amendments called ``filling 
the tree.'' This procedure precludes any other Senator from offering 
amendments to the legislation under consideration. Senator George 
Mitchell used this procedure nine times in the 103d Congress from 1993 
to 1994, Senator Trent Lott used it nine times in the 106th Congress 
from 2000 to 2002, and Senator Bill Frist used it nine times in the 
109th Congress from 2005 to 2006. Thus far in the 110th Congress during 
2007-2008, Senator Harry Reid has used the tactic 16 times.
  The legislation on global warming illustrates the unproductive nature 
of this practice. On June 2, 2008, Senator Reid called up the Warner-
Lieberman bill. On June 3, 2008, I filed and discussed on the Senate 
floor a series of proposed amendments based on competing the Bingaman-
Specter climate change bill. On June 4, 2008, Senator Reid used his 
power as majority leader of getting first-recognition to offer eight 
amendments which filled the so-called tree thus precluding me or any 
other Senator from offering any amendments. Senator Reid then filed a 
motion for ``cloture'' to cut off debate on June 4 to set the stage to 
vote on the bill without any amendments. It then became a partisan 
issue with Republicans opposing cloture and Democrats favoring it. I 
opposed cloture to cut off debate since there had been no debate and no 
opportunity to amend the bill. On June 6,, cloture was not invoked.
  Reciprocal finger pointing then began, with Democrats blaming 
Republicans for stymieing the legislation by filibustering and 
Republicans responding that the Democrats were responsible for killing 
the bill. This practice has been used 16 times during the 110th 
Congress, stopping the Senate from acting on bills such as FAA 
Reauthorization--H.R. 2881--Lieberman-Warner Climate Security--S. 
3036--and the Energy Speculation Bill--S. 3268.
  Sometimes, after the tree has been filled, there will be extensive 
negotiations among Senators to agree on a limited number of specified 
amendments that both sides are willing to vote on. In part, this is 
done to limit the time it will take to finish the bill. More often, it 
is done to eliminate the tough votes where Senators will have to take 
positions on controversial issues which could be used against them in 
future campaigns, including 30-second television spots.
  As a result of these practices, Senate floor time has been filled 
with quorum calls where negotiations are in process to limit the number 
of votes which will be taken or to find ways to resolve the most 
contentious issues without votes. On many weeks, the Senate has had 
little floor debate and votes. For example, the following occurred: one 
vote, April 28-May 2; 3 weeks with two votes, January 22-25, January 
28-February 1, and September 15-19; 1 week with three votes September 
8-12; 1 week with four votes, June 9-13; 5 weeks with five votes, April 
21-25; May 19-23; June 3-6; June 16-20; July 21-26; 2 weeks with six 
votes, April 14-18; March 3-7.
  This inactivity is contrasted with Senate action on the comprehensive 
immigration reform bill which was debated from May 15 to May 25, 2006, 
with 227 amendments filed and 27 rollcall votes.
  A far better procedural practice is to allow Senators to offer 
amendments under time agreements. These are agreed to by unanimous 
consent and allow Senators to have their amendments considered in an 
expeditious manner. Thus, the Senate can work its will. The public then 
understands the issues involved and Senators are compelled to take 
positions by voting. That procedure is obviously totally undercut by 
the majority leader's filling the tree to abort traditional Senate 
practices.
  To stop the practice of filling the tree and revert to traditional 
Senate debate and votes, I proposed S. Res. 83 on February 15, 2007, 
which would have stopped the majority leader from filling the tree. 
Notwithstanding repeated efforts to get this proposed rule change acted 
upon, nothing has been done.
  Senate action has also been stymied by the use of the filibuster or 
other procedures to thwart the confirmation of Federal judges. These 
practices have been utilized by both Democrats and Republicans in the 
last 20 years. In the last 2 years of President Reagan's 
administration, 1987-1988, the Democrats failed to confirm 10 district 
court nominees and 7 circuit court nominees. In addition, the time 
required to confirm circuit court nominees increased from 195 days 
during President Carter's administration to 257 days during President 
Reagan's administration.
  Similarly in the last 2 years in the administration of President 
George H.W. Bush, 1991-1992, the Democrats failed to confirm 10 circuit 
court nominees and 43 district court nominees. Further, the time 
required to confirm a circuit court nominee increased from 257 to 319 
days during President Bush's administration.
  The Republicans retaliated when Senator Lott was the majority leader 
by refusing to give hearings to President Clinton's nominees or by 
refusing to have the Senate vote on nominees after they reported out 
favorably by the Judiciary Committee. At the end of the 106th Congress, 
1999-2000, the Senate returned 17 circuit court nominees and 24 
district court nominees to the President, and the time required to 
confirm a circuit court nominee had increased from 319 to 439 days.
  In the final 2 years of President Clinton's administration, a 
Republican Senate confirmed 15 circuit court judges and 57 district 
court judges. To date, the Democratic Senate has confirmed 10 of 
President Bush's circuit court nominees and 48 district court nominees. 
An additional 10 district court nominees may yet be confirmed. 
President Bush has nominated an additional 9 circuit court judges who 
have not been confirmed and he has nominated an additional 20 district 
court nominees who it appears will not be confirmed, assuming that 10 
of pending district court nominations will be confirmed. In the 110th 
Congress, the time required to confirm a circuit court nominee 
increased from the 439 to 906 days.

  The Senate was engaged in an especially bitter controversy from 2003-
2005 when the Democrats engaged in 23 filibusters to stop the 
confirmation of 10 circuit court nominees: Miguel A. Estrada, Richard 
Griffin, Carolyn B.

[[Page S9380]]

Kuhl, David McKeague, Priscilla Richman Owen, Charles W. Pickering, 
Henry W. Saad, William H. Pryor, William G. Myers, and Janice Rogers 
Brown. At least four other nominees were blocked by the mere threat of 
filibuster: Terrence Boyle, William Haynes, Brett M. Kavanaugh, and 
Susan B. Neilson.
  Republicans then threatened retaliation with the so-called nuclear or 
constitutional option. That plan would have called upon Vice President 
Cheney to rule that 51 votes could invoke cloture. That ruling would 
then be appealed, and under Senate procedure, a majority of 51 votes 
would sustain the ruling of the chair. In that manner, it was 
contemplated that at least 51 votes could be obtained from the 55 
Republican Senators.
  On May 23, 2005, the eve of a vote set for the following day to 
invoke the nuclear or constitutional option, the so-called ``Gang of 
14''--7 Democrats and 7 Republicans--agreed to enter into a compromise 
to confirm Janice Rogers Brown, William Pryor, and Priscilla Owen, and 
to reject William Myers and Henry Saad, so there was never a 
determination as to whether Republicans had sufficient votes to invoke 
the nuclear/constitutional option.
  With the 7 Democrats and the 7 Republicans in the ``Gang of 14'' 
breaking party lines, there would have been insufficient votes to 
maintain the filibusters or to invoke the nuclear/constitutional 
option. With 7 Democrats from the ``Gang of 14'' voting for cloture, 
there would have been 62 potential votes--55 Republicans and 7 
Democrats--to invoke cloture. With 7 Republicans voting against the 
nuclear/constitutional option, there would have been a maximum of only 
48 votes, 55 minus 7.
  In order to break the filibuster impasse on the confirmation of 
Federal judges, I proposed S. Res. 327 on April 1, 2004 and S. Res. 469 
on March 4, 2008. These resolutions provided for a 90-day timetable for 
fair consideration of all judicial nominees with the following 
benchmarks: within 30 days of the President submitting a judicial 
nomination, the Judiciary Committee would hold a hearing; within 30 
days of the hearing, the committee would vote on the nomination; and 
within another 30 days, the Senate would hold an up-or-down vote on the 
nomination. I was willing to modify this timetable; but it would move 
the issue forward to some compromise timetable.
  This rule change would not affect the existing rules that require 60 
Senators to cut off debate on legislative matters. It would apply only 
to judicial confirmations.
  The basis for the rule change was that public policy was better 
served by determining confirmation on professional qualification 
without engaging in the ``cultural wars'' to elevate ideology over 
professional judicial qualifications.
  As a practical political matter, filibusters have not been used to 
block Supreme Court nominations, where there is substantial public 
visibility even though many Senators would like to have done so. The 
conventional wisdom was that in a high visibility situation like 
Supreme Court confirmations, many Senators would not support a 
filibuster unless a good reason could be publicly articulated to do so. 
With less visible circuit court nominees, that reluctance was absent.
  For example, no filibuster was mounted against Justice Clarence 
Thomas even though there was substantial ideological opposition to his 
confirmation. Democrats did not have 60 votes to invoke cloture. 
Justice Thomas was ultimately confirmed 52-48. Similarly there was no 
effort to filibuster the nominations of Justice Ruth Bader Ginsberg or 
Justice Stephen Breyer even though there was substantial Republican 
ideological opposition. Justice Ginsburg was confirmed 96 to 3 and 
Justice Breyer was confirmed 87 to 9.
  During the confirmation hearing of Justice Samuel Alito, the 
Democrats sought to gain traction about a filibuster trying to 
associate Justice Alito with the Concerned Alumni of Princeton, an 
organization which reputedly discriminated against women and 
minorities. The Democrats' effort failed to secure a subpoena for the 
Concerned Alumni of Princeton records and informal inquiries found no 
connection between that organization and Justice Alito. Thus, the 
effort to muster a filibuster sputtered and was not pursued.
  During my travels through Pennsylvania during the August recess, I 
heard many complaints from my constituents at town meeting about 
partisanship in the U.S. Congress. The consistent comments were that 
people were sick and tired of partisan bickering. It is reflected in 
the public opinion polls which give the Congress very low ratings.
  My proposed rule changes would have a profound effect on allowing the 
Senate to take care of the people's business by eliminating the 
gridlock and providing for up and down votes in the judicial nominating 
process based on professional competence and not ideology.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.

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