[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.
____________________