[Congressional Record Volume 157, Number 59 (Wednesday, May 4, 2011)]
[Senate]
[Pages S2648-S2649]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOMINATION OF JOHN McCONNELL

  Mr. ALEXANDER. Madam President, we have a vote at noon. I know there 
are a number of Senators who wish to speak. I will take about 5 
minutes, I suspect Senator Cornyn wants to speak, and I know Senator 
Grassley wants to speak. I also see Senator Reid.
  The Senate is a body of precedent. One important precedent is that 
never in the Senate history has a President's district court 
nomination, reported by the Judiciary Committee, been defeated because 
of a filibuster; that is, because of a cloture vote. Once a nominee for 
Federal district judge has gotten to the floor, the majority of 
Senators have made the decision in an up-or-down vote.
  Therefore, I will vote for cloture in order to allow an up-or-down 
vote on the President's nomination of John McConnell, then I will vote 
``no'' on confirmation because I believe he is a flawed nominee.
  I know most of my Republican colleagues are going to register their 
opposition to Mr. McConnell by voting to deny an up-or-down vote. I 
respect their decision. I understand how they feel. I also was outraged 
in 2003 when Democratic Senators filibustered President Bush's circuit 
court nominees simply because they disagreed with their philosophies. I 
made my first speeches on the floor of the Senate arguing against such 
a change in precedent.
  On February 27, 2003, I said on this floor:

       When it comes time to vote, when we finish that whole 
     examination, I will vote to let the majority decide. In plain 
     English, I will not vote to deny a Democratic President's 
     judicial nominee just because the nominee may have views more 
     liberal than mine. That is the way judges have always been 
     selected. That is the way they should be selected.

  That is what I said in 2003.
  In 2005, Republicans grew so upset with the Democrats' continued 
filibustering of President Bush's circuit nominees, the Republican 
majority leader threatened to eliminate the right to filibuster in 
connection with judicial nominations. That proposal was called the 
nuclear option because it was said if Republicans succeeded in 
abolishing the filibuster, their actions would ``blow the place up.'' I 
suggested, in two Senate speeches, that a small group of Senators, 
equally divided by party, agree to oppose the filibustering of judges. 
The result of those remarks was the creation of the Gang of 14--the 
Gang of 14 Senators who preserved the tradition of up-or-down votes by 
agreeing to use the filibuster only in extraordinary cases. I have 
amended my own views to subscribe to the Gang of 14's standard for 
Supreme Court and circuit court judges.
  It is true the Gang of 14 agreement didn't explicitly distinguish 
between circuit and district judges. But the debate then clearly was 
only about Supreme Court and circuit judges, and the Senate always 
thought of district judges differently. District judges are trial 
judges. Circuit judges also must follow precedent but have broader 
discretion in interpreting and applying the law. Circuit judges' 
jurisdictions are broader. Their attitudes and philosophies are much 
more consequential in the judicial process.
  That is why the Senate has never allowed a Federal district court 
nomination to fail by denying cloture. According to the Congressional 
Research Service, in the history of the Senate----
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  Mr. ALEXANDER. I ask unanimous consent for 1 additional minute.
  The ACTING PRESIDENT pro tempore. Is there objection?
  There being no objection, it is so ordered.
  Mr. ALEXANDER. I thank the Chair.
  According to the Congressional Research Service, in the history of 
the Senate, only three cloture motions have ever been filed on district 
judge nominations. In each case, the nomination eventually was 
confirmed.
  In 1986 cloture was invoked by a vote of 64-33 on Sidney Fitzwater 
despite opposition to the nomination by Democratic senators. Mr. 
Fitzwater was then confirmed 52-42.
  In 1999 cloture was not invoked by a vote of 55-44 on Brian Theodore 
Stewart's nomination because of Democrat opposition. He was confirmed 
two weeks later by a vote of 95-3.
  In 2003 a cloture motion was filed on Marcia G. Cook's nomination but 
it was withdrawn and she was confirmed 96-0.
  I certainly wish President Obama had nominated someone other than Mr. 
McConnell. During his confirmation hearings, questions arose about a 
possible role in stolen corporate documents, in soliciting contingency 
fee legal contracts, and about his judicial temperament. Some senators 
even feel misled by some of his statements. It was even said he is the 
only district judge to be opposed by the U.S. Chamber of Commerce in 
its 99-year history.
  Well, the Senate has more than a 200-year history. And that history 
is not to use the filibuster to defeat a district judge nomination.
  I am comfortable with the Gang of 14 precedent in the case of circuit 
justices and Supreme Court justices. I will continue to reserve the 
right to vote against allowing an up-or-down vote in an extraordinary 
case. I also understand the strategy of ``They did it to us, so we will 
do it to them.'' Unfortunately, that strategy, I am afraid, will lead 
us to a new and bad precedent, one which will weaken the Senate as an 
institution and come back one day to bite those who establish it.
  I thank the Chair and I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from New York.
  Mr. CORNYN. Will the Senator yield for a quick question?
  Mr. SCHUMER. I will yield.
  Mr. CORNYN. I know there are a number of us who would like to speak 
on the upcoming cloture vote at noon on the McConnell nomination. I 
know Senator Grassley would; I presume the Senators from New York and 
Rhode Island would. I wonder if we could reach some unanimous consent 
agreement that would allow at least 5 minutes for each of us to speak.
  I would pose that as a unanimous consent request; that for the 
Senators who are currently on the floor, the five of us, we be given up 
to 5 minutes to speak preceding the cloture vote.
  Mr. SCHUMER. Might I ask a question of the Chair? What is the time 
status? There is 35 minutes until noon; is that divided?
  The ACTING PRESIDENT pro tempore. Yes, the time is equally divided. 
The Democrats control 19 minutes, the Republicans control 18\1/2\ 
minutes.
  Ms. LANDRIEU. Madam President, reserving the right to object, I wish 
to remind the Senators this isn't the only debate on the floor. We are 
having a cloture vote on SBIR, and we would like some time to close 
that debate as well. So I am open to work with the other Senators.
  Mr. REED. Madam President, reserving my right to object, I would 
suggest, according to the request of the Senator from Texas, that the 
Senator from New York be recognized for 5 minutes, the Senator from 
Texas be recognized for 5 minutes, that I be recognized for 5 minutes, 
and then Senator Grassley be recognized for 5 minutes.
  The question then would be, Is there sufficient time for Senator 
Landrieu and, of course, Senator Leahy?

[[Page S2649]]

  Mr. SCHUMER. Could I ask unanimous consent----
  Ms. LANDRIEU. I don't know how to do this, but if we could do 3 
minutes each and reserve at least 15 minutes for closure.
  The ACTING PRESIDENT pro tempore. Time has been consumed during this 
debate.
  The Senator from New York.
  Mr. SCHUMER. Madam President, I believe we have 37 minutes remaining; 
is that right, 19 and 18?
  The ACTING PRESIDENT pro tempore. Correct.
  Mr. SCHUMER. I know Senator Leahy wants to close with 5 minutes.
  So what we could do, equitably, is give each of the six Members on 
the floor 5 minutes.
  Ms. LANDRIEU. I have to object to that.
  Mr. SCHUMER. OK. Madam President, I have the floor and I ask to be 
recognized.
  The ACTING PRESIDENT pro tempore. The Senator from New York.

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