Congressional Record, Volume 158 Issue 31 (Tuesday, February 28, 2012)

[Congressional Record Volume 158, Number 31 (Tuesday, February 28, 2012)]
[Senate]
[Pages S1073-S1077]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

RUSSELL NOMINATION

Mr. CARDIN. Mr. President, I rise today to urge the Senate to confirm
Judge George Levi Russell, III, of Maryland to be a United States
District Judge for the District of Maryland.
The nomination of Judge Russell was reported out of the Judiciary
Committee on February 16 by a voice vote, as the Acting President of
the Senate knows. Judge Russell currently sits as a trial judge in the
Baltimore City Circuit Court.
I take seriously the obligation of the Senate in terms of the advice
and consent role we play. I am concerned that our judicial confirmation
process in the Senate has broken down due to partisanship, particularly
for noncontroversial judges. Judge Russell's nomination now joins a
long list of backlogged, noncontroversial judicial nominations that are
stuck on the Senate floor. As of yesterday, the Senate calendar
contained 20 judicial nominations approved by the Senate Judiciary
Committee which are still awaiting a final vote. Fifteen of these
nominees have been pending since last year, and 18 of them have
received strong bipartisan support from the Senate Judiciary Committee.
These are noncontroversial nominees that are due the up-or-down vote on
the floor of the Senate, and there is no justification for the delay in
the Senate's carrying out its constitutional responsibilities.
The Senate is responsible for the rising vacancy rate in our Nation's
article III courts. The victims here are not only the nominee and his
or her family, who are waiting on final Senate action, but the American
people are also victims. They face increasing delays in courts that are
overburdened and understaffed. A higher vacancy rate means lack of
timely hearings and decisions by our Federal courts, affecting our
citizens' access to justice and a fair and impartial resolution of
their complaints.
In Maryland, we are trying to fill a vacancy that was created during
the end of President Bush's term of office when Judge Peter Messitte
took senior status in 2008. So this vacancy has been there for a long
time. It is time for us to act. Judge Russell is an excellent
candidate. He received bipartisan support in the Judiciary Committee
and is ready to take office upon being confirmed by the Senate. The
time for action is now.
Judge Russell brings a wealth of experience to this position in both
State and Federal courts. Earlier in his career, he served as a Federal
prosecutor and as an attorney in a private law firm. He now sits as a
State trial judge court in Maryland. He has the experience.
He graduated from Morehouse College with a B.A. in political science
in 1988 and a J.D. from Maryland Law School in 1991. He passed the bar
examination and was admitted to practice law in Maryland in 1991. He
then clerked for Chief Judge Robert Bell on the Maryland Court of
Appeals, our State's highest court.
He worked as a litigation associate for 2 years at Hazel, Thomas, and
then briefly at Whiteford, Taylor. He then served as an assistant U.S.
attorney for the District of Maryland from 1994 to 1999, handling civil
cases. In that capacity, he represented various Federal Government
agencies in discrimination, accident, and medical malpractice cases. He
then worked as an associate at the Peter Angelos law firm for 2 years.
In 2002, he went back to the U.S. Attorney's Office handling criminal
cases until 2007. He represented the United States in the criminal
prosecution of violent crime and narcotics cases during the
investigatory stage, at trial, and on appeal. This included the
initiation and monitoring of wiretaps to infiltrate and break up
violent gangs in Baltimore City. He also served as the Project Safe
Neighborhood coordinator for the office from 2002 until 2005. He
participated in community outreach programs, including attending
community meetings on behalf of the office, and attending meetings with
the Baltimore State's Attorney's Office to reduce violent crime in
Baltimore neighborhoods.
In January 2007, Governor Ehrlich, who I am sure you are aware was
the Republican Governor of our State, appointed Judge Russell to serve
as an associate judge of the Baltimore City Circuit Court for a term of
15 years. As a trial judge, Judge Russell has presided over hundreds of
trials that have gone to verdict or judgment and has experience in
handling jury trials, bench trials, civil cases, and criminal cases. He
has the professional experience which has been recognized by a
Republican Governor and a Democratic President. He should receive a
vote on the floor of this body and he should be confirmed.
Judge Russell has strong roots, legal experience, and community
involvement in the State of Maryland. He was born and raised in
Baltimore City, and has extended family who live in Baltimore. He
serves as director and trustee on the board of the Enoch Pratt Free
Library, which serves the disadvantaged throughout the State of
Maryland. He served on the board of directors of the Community Law
Center, which is an organization designed to help neighborhood
organizations improve the quality of life for their residents. So he
brings experience as a community activist as well as his professional
experience.
He has also served as a board member of several organizations that
devote substantial resources to helping the disadvantaged, including
Big Brothers and Big Sisters of Maryland. I know he has often spoken to
young people in schools about the obligation, duty, and mandate of a
judge, and tries to demystify the role of a judge in a black robe.
Judge Russell is particularly concerned with addressing the drug
violence and mental health problems that plague Baltimore City.
The reason I went through all of his qualifications right now, even
though his nomination is not pending, is that we have to put a face on
the people who are being denied the opportunity for an up-or-down vote
before the Senate. You hear the numbers; I have mentioned them--20--
backed up. That is a large number when you look at the vacancy rates on
our courts. When you look at this vacancy that has been pending now for
the people of Maryland for 3 years, they have a right to action on the
floor of the Senate. They have a right to have these nominees heard in
regular order. But I want the people to know about this one individual
and how qualified he is to assume the position on the District Court of
Maryland.
I urge my colleagues to do everything they can. Let's carry out our
responsibility. I am absolutely confident that Judge Russell possesses
the qualifications, temperament, and passion for justice that will make
him an outstanding United States District Court

[[Page S1074]]

judge for the District of Maryland. He will serve the people very well
in this position. I therefore urge my colleagues not only to allow us
to vote on Judge Russell's confirmation, but let us vote on the 20
nominees who have been reported out of the Judiciary Committee, and
show the American people we are ready to carry out our
responsibilities.
I ask my colleagues on the other side of the aisle, my Republican
friends: It is way past time for us to carry out our responsibility.
Stop putting filibusters or holds on these judicial nominations. Let's
vote on them and carry out our responsibilities as Senators.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
Ms. KLOBUCHAR. Mr. President, recently I came to the floor of the
Senate to talk about the lack of faith the American people have in the
political system and in our government. My focus that day was on
campaign finance laws and the impact of the Citizens United decision by
the Supreme Court 2 years ago.
Today I am here to discuss, along with my colleagues, another dynamic
of Capitol Hill that is making people lose faith in Washington: the
apparent inability of Congress to get routine business done;
specifically, the failure of the Senate to fill the dozens of judicial
vacancies that exist around the country.
This doesn't need to be a partisan debate. I know Senators on each
side have their own reasons why it is the other party's fault. But we
need to put those arguments behind us and agree to do the people's
business.
We have actually done a good job, as Senator Cardin has pointed out,
on the Judiciary Committee with having a number of judges who have come
through that committee and are waiting approval on the floor. But
often, we approve judges and they don't get floor votes for months and
months. Also, the vast majority of judges who get approved, get
approved unanimously in committee. That was my experience with the
judge I recommended from Minnesota who now is a judge. So we got her
done, but there are so many more, as you know, and so many
jurisdictions with heavy caseloads which are awaiting judges.
Once these judges get to the floor, almost all of them get a handful
of no votes. Why is that? They have been vetted. They have been vetted,
their records have been looked at, they have gone through a committee
hearing, they have been looked at by Senators on both sides of the
aisle in the Judiciary Committee. And if they have reached that point
of being on the floor of the Senate, it is no surprise that they might
get a few no votes. So I don't see this as a partisan issue, but it is
an issue we must get done.
If almost all the Senators support almost all the judges, this isn't
about pushing one side's agenda or judicial philosophy. These are
extremely qualified judges who Senators believe will be fair, impartial
jurists, committed to objectively interpreting the law. But the fact is
that we are lagging way behind in the confirmation pace under previous
Presidents of both parties and with the Senate controlled by either
party. By this time in the Presidency of Bill Clinton, the Senate had
confirmed 183 judges. By this time in the Presidency of George W. Bush,
the Senate had confirmed 170 judges. And yet as of today, we have only
confirmed 129 judicial nominees of President Obama.
It is important to note that President Bush actually ended up getting
five more judges approved in his first term than President Clinton. So
we don't have a case where there has suddenly been a decline over time
with the judges' approval. In fact, it went up after Clinton and now,
as we can see, it is going down. There doesn't seem to be any
indication at this very moment in time that we are speeding up the
process. While earlier in the year we did confirm a number of judges,
there was an agreement. There are still way too many out there, and we
need to move on them now.
Typically, the Senate will approve noncontroversial judicial nominees
before the end of the session in December. But that did not happen this
past year, and we have not made too much progress since returning in
January. It doesn't take too long to approve a judge on the floor.
Often, we have an hour or two of debate and then vote on two or three
judges. So we can get these judges confirmed quickly if both sides
consent.
Some people listening are probably thinking there must be an
explanation; that I am somehow leaving out key numbers when I have just
explained that we only need an hour or two for each of these 20-some
pending judges. Maybe they are thinking there aren't as many vacancies
as under previous Presidents. But, no, under President Clinton there
were about 53 vacancies at this point in his Presidency. Under
President Bush, there were 46 vacancies. Right now, under President
Obama, there are in fact 85 judicial vacancies.
Maybe people at home are thinking the slow process is a result of
controversial nominees but, no, it is not that, either. As I mentioned
earlier, most of the judicial nominees awaiting a floor vote were
approved unanimously by the Senate Judiciary Committee. That is not a
committee, as the President knows from serving on that committee, of
shrinking violets. There are people with very diverse views. And most
of these nominees, as I explained, came through with all of their
support. In fact, 16 of the 19 nominees waiting for a floor vote
received unanimous votes in committee. They were approved by every
single member of the Judiciary Committee from both parties.
Most of those unanimous judges have been waiting for a vote for
months. We should confirm them right away. We should confirm them this
week. We can have a vote so that the few people on the other side of
the aisle who do not agree with those nominees can register their
objection and vote no. But there is no reason to hold up all of these
nominees for all of these jurisdictions across the country.

For the judges who have come out of committee more recently, I
understand that Senators need time to look at their records and
qualifications. That is an important part of the process. But after a
reasonable period of time, let's move on to confirm the newer judges as
well. Let's vote up or down on all of the judges and get them on the
bench.
I also want to point out that the judicial nomination process is
bipartisan. That may surprise some people watching at home. They may
think I am making that up. But the truth is that nominees don't move
forward in the Judiciary Committee unless both of the home State
Senators sign off. So whether it is two Democrats or two Republicans or
one from each party, both Senators have effective veto power over the
judicial nominees from their State. And usually the judges proposed by
the President first are recommended by Senators. So it is not a
question of President Obama picking whomever he wants and appointing
them to the judiciary. He has to pick people who are okay with both
Senators regardless of party. It forces a President of either party to
choose high-quality, well-respected mainstream judges.
I remain hopeful we can rectify this situation and start getting
judges approved in a timely manner and catch up to where we were under
previous Presidents. But it is not about keeping some scorecard from
President to President, as much as I have loved using these statistics
today, or from Congress to Congress. In truth, it is about justice. And
we all know that. We are constantly hearing complaints about the slow
pace of Federal courts. Those delays are real, and they impact people--
real people--every day. Whether we are talking about people seeking to
protect their rights under the Americans With Disability Act or
companies trying to resolve commercial disputes--I have a few of them
in my State--unreasonable delays in court proceedings undermine our
system of justice, and things won't get any better if we understaff our
Federal judiciary.
There are many problems facing our country that do not have simple
solutions. There are many problems for which the two parties have
vastly different solutions. But in this case with judicial vacancies,
there is only one solution, and it is well within our grasp given that
so many of these judges were noncontroversial.
This is the solution, Mr. President. It is two words: Let's vote.
Let's vote on all of the pending nominees, and let's continue to vote
as more nominees emerge from the Judiciary Committee.

[[Page S1075]]

If a Senator wants to vote no on a particular nominee, if he or she
wants to give a long and glorious speech about why they are opposed to
the nominee, please let them do that. Let them do that today. All we
are asking for is a vote.
Mr. UDALL of New Mexico. Mr. President, I come to the floor today to
discuss our broken judicial confirmation process. I know many of my
colleagues will discuss individual nominees and how long they have
languished on the executive calendar without a vote. We can point to
many statistics about the length of time it takes to confirm President
Obama's nominees versus President Bush's and how many nominees each had
confirmed in their first term.
This is an important argument to make. And while these statistics are
helpful in highlighting the problem, they are merely the symptoms of a
much larger disease--a broken Senate. Since joining the Senate in 2009,
I've said repeatedly that we must take decisive action to reform our
rules in order to restore deliberativeness to this body.
At the beginning of this Congress, Senators Harkin, Merkley, and I
tried to do that. Ultimately, our success was limited. We didn't
achieve the broad reforms we wanted. But we did initiate a debate that
highlighted some of the most egregious abuses of the rules, including
how the rules are manipulated to obstruct the confirmation process for
judges and executive branch nominees.
There was some hope that the debate we had, along with the modest
reforms that were adopted, would encourage both sides of the aisle to
restore the respect and comity that is often lacking in today's Senate.
Unfortunately, any goodwill rapidly deteriorated and the partisan
rancor and political brinksmanship quickly returned.
That is why we are here again today, talking about yet another aspect
of this body's dysfunction--the broken judicial confirmation process.
This is not a new problem, nor is it one on which either side can
claim to be innocent. For about the past decade, the minority party--
whether Republicans or Democrats--has gone to inexcusable lengths to
slow or block judicial nominees who have strong majority support. This
has lead to a new norm in the Senate--the need for any nominee to get
at least 60 votes for confirmation. This directly conflicts with the
Founders' intent and a plain reading of the Constitution.
The arguments my colleagues and I make today--that judicial nominees
who have been approved by the Judiciary Committee deserve a vote by the
full Senate--are the same arguments my Republican colleagues made when
President Bush's nominees were held up by a Democratic minority.
In April 2003, the freshmen members of the 108th Congress sent a
letter to Majority Leader Frist and Minority Leader Daschle. That
freshman class was made up of nine Republicans and one Democrat. I'd
like to read part of that letter. The senators wrote:

[W]e write to express our concerns about the state of the
federal judicial nomination and confirmation process. The
apparent breakdown in this process reflects poorly on the
ability of the Senate and the Administration to work together
in the best interests of our country. The breakdown also
disserves the qualified nominees to the federal bench whose
confirmations have been delayed or blocked, and the American
people who rely on our federal courts for justice. . . . We
seek a bipartisan solution that will protect the integrity
and independence of our nation's courts, ensure fairness for
judicial nominees, and leave the bitterness of the past
behind us.

Regrettably, the rest of the Senate did not heed their advice and the
confirmation process remained dysfunctional. Two years later, Senator
Hatch, a former chairman of the Judiciary Committee, wrote an op-ed in
the National Review Online that clearly outlined the problem. Senator
Hatch's commentary began with the following:

He then went on to argue that there was a solution to address this
crisis--using the Constitutional Option to amend the Senate rules. Just
as I argued last year at the start of the session, Senator Hatch stated
that at the beginning of a new Congress, a simple majority can invoke
cloture and change the Senate rules. The rules weren't amended then,
and they weren't amended last year, either. This is why we are here
today, having the same debate about judicial nominations that the
Republicans had when they were in the majority and President Bush's
nominees were stalled.
It's time we stop having this debate and actually fix the process.
Both sides have acknowledged the problem and offered solutions when
they were in the majority. In the 108th Congress, Senator Frist
introduced a resolution to change Rule XXII that would have gradually
reduced the cloture threshold on nominations after successive votes
over the course of several days of debate. That resolution was
cosponsored by Senators McConnell, Kyl, and Cornyn--all members of the
current minority leadership.
Last year, at the beginning of this Congress, Senators Harkin,
Merkley, and I introduced a resolution to reform the rules. It included
reforms that would have addressed the broken confirmation process,
including reducing the post-cloture time on nominees from thirty hours
to two and requiring real debate in order to sustain a filibuster.
Unfortunately, neither of these resolutions was adopted.
During the debate on our resolution last year, Senator Harkin made a
very good point. He said, ``I believe each Senator needs to give up a
little of our pride, a little of our prerogatives, and a little of our
power for the good of this Senate and the good of this country.'' Let's
hope that someday enough of our colleagues will agree with him and we
finally institute the reforms necessary to restore the Senate's
reputation as the ``World's Greatest Deliberative Body.''
I ask unanimous consent that the letter from the freshman class of
the 108th Congress and Senator Hatch's National Review op-ed be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Senate,

Washington, DC, April 30, 2003.
Dear Senators Frist and Daschle: As the ten newest members
of the United States Senate, we write to express our concerns
about the state of the federal judicial nomination and
confirmation process. The apparent breakdown in this process
reflects poorly on the ability of the Senate and the
Administration to work together in the best interests of our
country. The breakdown also disserves the qualified nominees
to the federal bench whose confirmations have been delayed or
blocked, and the American people who rely on our federal
courts for justice.
We, the ten freshmen of the United States Senate for the
108th Congress, are a diverse group. Among our ranks are
former federal executive branch officials, members of the
U.S. House of Representatives, and state attorneys general.
We include state and local officials, and a former trial and
appellate judge. We have different viewpoints on a variety of
important issues currently facing our country. But we are
united in our commitment to maintaining and preserving a fair
and effective justice system for all Americans. And we are
united in our concern that the judicial confirmation process
is broken and needs to be fixed.
In some instances, when a well qualified nominee for the
federal bench is denied a vote, the obstruction is justified
on the ground of how prior nominees--typically, the nominees
of a previous President--were treated. All of these
recriminations, made by members on both sides of the aisle,
relate to circumstances which occurred before any of us
arrived in the United States Senate. None of us were parties
to any of the reported past offenses, whether real or
perceived. None of us believe that the ill will of the past
should dictate the terms and direction of the future.
Each of us firmly believes that the United States Senate
needs a fresh start. And each of us believes strongly that we
were elected to this body in order to do a job for the
citizens of our respective states--to enact legislation to
stimulate our economy, protect national security, and promote
the national welfare, and to provide advice and consent, and
to vote on the President's nominations to important positions
in the executive branch and on our nation's courts.
Accordingly, the ten freshmen of the United States Senate
for the 108th Congress urge you to work toward improving the
Senate's use of the current process or establishing a better
process for the Senate's consideration of judicial
nominations. We acknowledge that the White House should be
included in repairing this process.
All of us were elected to do a job. Unfortunately, the
current state of our judicial confirmation process prevents
us from doing an

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important part of that job. We seek a bipartisan solution
that will protect the integrity and independence of our
nation's courts, ensure fairness for judicial nominees, and
leave the bitterness of the past behind us.
Yours truly,
John Cornyn; Mark Pryor; Lisa Murkowski; Lindsey Graham;
Elizabeth Dole; Saxby Chambliss; Norm Coleman; James
Talent; Lamar Alexander; John E. Sununu.
____

[From the National Review Online, January 12, 2005]

Crisis Mode--A Fair and Constitutional Option To Beat the Filibuster
game

(By Senator Orrin G. Hatch)

Judicial nominations will be one of the most important
issues facing the Senate in the 109th Congress and the
question is whether we will return to the tradition of giving
nominations reaching the Senate floor an up or down vote. The
filibusters used to block such votes have mired the judicial-
confirmation process in a political and constitutional crisis
that undermines democracy, the judiciary, the Senate, and the
Constitution. The Senate has in the past changed its
procedures to rebalance the minority's right to debate and
the majority's right to decide and it must do so again.
Newspaper editorials condemning the filibusters outnumber
supporting ones by more than six-to-one. Last November, South
Dakotans retired former Senate Minority Leader Tom Daschle,
in no small part, because he led the filibuster forces. Yet
within hours of his election to succeed Senator Daschle as
Minority Leader, Senator Harry Reid took to the Senate floor
to defend them. Hope is fading that the shrinking Democratic
minority will abandon its destructive course of using
filibusters to defeat majority supported judicial
nominations. Their failure to do so will require a deliberate
solution.
If these filibusters were part of the Senate's historical
practice or, as a recent NRO editorial put it, merely made
confirming nominees more difficult, a deliberate solution
might not be warranted. But this is a crisis, not a problem
of inconvenience.
Senate rules reflect an emphasis on deliberation and
debate. Either by unanimous agreement or at least 60 votes on
a motion to invoke cloture under Rule 22, the Senate must end
debate before it can vote on anything. From the Spanish
filibustero, a filibuster was a mercenary who tries to
destabilize a government. A filibuster occurs most plainly on
the Senate floor when efforts to end debate fail, either by
objection to unanimous consent or defeat of a cloture motion.
During the 108th Congress, Senate Democrats defeated ten
majority-supported nominations to the U.S. Court of Appeals
by objecting to every unanimous consent request and defeating
every cloture motion. This tactic made good on then-
Democratic Leader Tom Daschle's February 2001 vow to use
``whatever means necessary'' to defeat judicial nominations.
These filibusters are unprecedented, unfair, dangerous,
partisan, and unconstitutional.
These are the first filibusters in American history to
defeat majority supported judicial nominations. Before the
108th Congress, 13 of the 14 judicial nominations on which
the Senate took a cloture vote were confirmed. President
Johnson withdrew the 1968 nomination of Abe Fortas to be
Supreme Court chief justice the day after a failed cloture
vote showed the nomination did not have clear majority
support. In contrast, Democrats have now crossed the
confirmation Rubicon by using the filibuster to defeat
judicial nominations which enjoy clear majority support.
Focusing on President Clinton's judicial nominations in
1999, I described what has been the Senate's historical
standard for judicial nominations: ``Let's make our case if
we have disagreement, and then vote.'' Democrats' new
filibusters abandons this tradition and is unfair to senators
who must provide the ``advice and consent'' the Constitution
requires of them through a final up or down vote. It is also
unfair to nominees who have agreed, often at personal and
financial sacrifice, to judicial service only to face
scurrilous attacks, trumped up charges, character
assassination, and smear campaigns. They should not also be
held in permanent filibuster limbo. Senators can vote for or
against any judicial nominee for any reason, but senators
should vote.
These unprecedented and unfair filibusters are distorting
the way the Senate does business. Before the 108th Congress,
cloture votes were used overwhelmingly for legislation rather
than nominations. The percentage of cloture votes used for
judicial nominations jumped a whopping 900 percent during
President Bush's first term from the previous 25 years since
adoption of the current cloture rule. And before the 108th
Congress, the few cloture votes on judicial nominations were
sometimes used to ensure up or down votes. Even on
controversial nominees such as Richard Paez and Marsha
Berzon, we invoked cloture to ensure that we would vote on
confirmation. We did, and both are today sitting federal
judges. In contrast, these new Democratic filibusters are
designed to prevent, rather than secure, an up or down vote
and to ensure that targeted judicial nominations are defeated
rather than debated.
These filibusters are also completely partisan. The average
tally on cloture votes during the 108th Congress was 53 43,
enough to confirm but not enough to invoke cloture and end
debate. Democrats provided every single vote against
permitting an up or down vote. In fact, Democrats have cast
more than 92 percent of all votes against cloture on judicial
nominations in American history.
Unprecedented, unfair, and partisan filibusters that
distort Senate procedures constitute a political crisis. By
trying to use Rule 22's cloture requirement to change the
Constitution's confirmation requirement, these Democratic
filibusters also constitute a constitutional crisis.
The Constitution gives the Senate authority to determine
its procedural rules. More than a century ago, however, the
Supreme Court unanimously recognized the obvious maxim that
those rules may not ``ignore constitutional restraints.'' The
Constitution explicitly requires a supermajority vote for
such things as trying impeachments or overriding a
presidential veto; it does not do so for confirming
nominations. Article II, Section 2, even mentions ratifying
treaties and confirming nominees in the very same sentence,
requiring a supermajority for the first but not for the
second. Twisting Senate rules to create a confirmation
supermajority undermines the Constitution. As Senator Joseph
Lieberman once argued, it amounts to ``an amendment of the
Constitution by rule of the U.S. Senate.''
But don't take my word for it. The same senators leading
the current filibuster campaign once argued that all
filibusters are unconstitutional. Senator Lieberman argued in
1995 that a supermajority requirement for cloture has ``no
constitutional basis.'' Senator Tom Harkin insisted that
``the filibuster rules are unconstitutional'' because ``the
Constitution sets out . . . when you need majority or
supermajority votes in the Senate.'' And former Senator
Daschle said that because the Constitution ``is
straightforward about the few instances in which more than a
majority of the Congress must vote. . . . Democracy means
majority rule, not minority gridlock.'' He later applied this
to judicial nomination filibusters: ``I find it simply
baffling that a Senator would vote against even voting on a
judicial nomination.'' That each of these senators voted for
every judicial-nomination filibuster during the 108th
Congress is baffling indeed.
These senators argued that legislative as well as
nomination filibusters are unconstitutional. Filibusters of
legislation, however, are different and solving the current
crisis does not require throwing the entire filibuster baby
out with the judicial nomination bathwater. The Senate's
authority to determine its own rules is greatest regarding
what is most completely within its jurisdiction, namely,
legislation. And legislative filibusters have a long history.
Rule 22 itself did not even potentially apply to nominations
until decades after its adoption. Neither America's founders,
nor the Senate that adopted Rule 22 to address legislative
gridlock, ever imagined that filibusters would be used to
highjack the judicial appointment process.
Liberal interest groups, and many in the mainstream media,
eagerly repeat Democratic talking points trying to change,
rather than address, the subject. For example, they claim
that, without the filibuster, the Senate would be nothing
more than a ``rubberstamp'' for the president's judicial
nominations. Losing a fair fight, however, does not
rubberstamp the winner; giving up without a fight does.
Active opposition to a judicial nomination, especially
expressed through a negative vote, is the best remedy against
being a rubberstamp.
They also try to change the definition of a filibuster. On
March 11, 2003, for example, Senator Patrick Leahy, ranking
Judiciary Committee Democrat, used a chart titled
``Republican Filibusters of Nominees.'' Many individuals on
the list, however, are today sitting federal judges, some
confirmed after invoking cloture and others without taking a
cloture vote at all. Invoking cloture and confirming
nominations is no precedent for not invoking cloture and
refusing to confirm nominations.
Many senators once opposed the very judicial nomination
filibusters they now embrace. Senator Leahy, for example,
said in 1998: ``I have stated over and over again . . . that
I would object and fight against any filibuster on a judge,
whether it is somebody I opposed or supported.'' Since then,
he has voted against cloture on judicial nominations 21 out
of 26 times. Senator Ted Kennedy, a former chairman of the
Judiciary Committee, said in 1995 that ``Senators who believe
in fairness will not let a minority of the Senate deny [the
nominee] his vote by the entire Senate.'' Since then, he has
voted to let a minority of the Senate deny judicial nominees
a vote 18 out of 23 times.
Let me put my own record on the table. I have never voted
against cloture on a judicial nomination. I opposed
filibusters of Carter and Clinton judicial nominees, Reagan
and Bush judicial nominees, all judicial nominees. Along with
then-Majority Leader Trent Lott, I repeatedly warned that
filibustering Clinton judicial nominees would be a
``travesty'' and helped make sure that every Clinton judicial
nomination reaching the full Senate received a final
confirmation decision. That should be the permanent standard,
no matter which party controls the Senate or occupies the
White House.
The Senate has periodically faced the situation where the
minority's right to debate has improperly overwhelmed the
majority's right to decide. And we have changed our
procedures in a way that preserves the minority's right to
debate, and even to filibuster legislation, while solving the
crisis at hand.

[[Page S1077]]

The Senate's first legislative rules, adopted in 1789,
directly reflected majority rule. Rule 8 allowed a simple
majority to ``move the previous question'' and proceed to
vote on a pending matter. Invoked only three times in 17
years, however, Rule 8 was dropped in the Senate rules
revision of 1806, meaning unanimous consent was then
necessary to end debate. Dozens of reform efforts during the
19th century tried to rein in the minority's abuse of the
right to debate. In 1917, President Woodrow Wilson described
what had become of majority rule: ``The Senate of the United
States is the only legislative body in the world which cannot
act when its majority is ready for action. . . . The only
remedy is that the rules of the Senate shall be altered.''
Leadership turned gridlock into reform, and that year the
Senate adopted Rule 22, by which \2/3\ of Senators present
and voting could invoke cloture, or end debate, on a pending
measure.
Just as the minority abused the unanimous consent threshold
in the 19th century, the minority abused the \2/3\ threshold
in the 20th century. A resolution to reinstate the previous
question rule was introduced, and only narrowly defeated,
within a year of Rule 22's adoption. A steady stream of
reform attempts followed, and a series of modifications made
until the current 60-vote threshold was adopted in 1975. The
point is that the Senate has periodically rebalanced the
minority's right to debate and the majority's right to
decide. Today's crisis, with constitutional as well as
political dimensions and affecting all three branches of
government, presents an even more compelling case to do so.
These filibusters are an unprecedented shift in the kind,
not just the degree, of the minority's tactics. After a full,
fair, and vigorous debate on judicial nominations, a simple
majority must at some point be able to proceed to a vote. A
simple majority can achieve this goal either by actually
amending Rule 22 or by sustaining an appropriate
parliamentary ruling.
The Senate exercises its constitutional authority to
determine its procedural rules either implicitly or
explicitly. Once a new Congress begins, operating under
existing rules implicitly adopts them ``by acquiescence.''
The Senate explicitly determines its rules by formally
amending them, and the procedure depends on its timing. After
Rule 22 has been adopted by acquiescence, it requires 67
votes for cloture on a rules change. Before the Senate adopts
Rule 22 by acquiescence, however, ordinary parliamentary
rules apply and a simple majority can invoke cloture and
change Senate rules.
Some object to this conclusion by observing that, because
only a portion of its membership changes with each election,
the Senate has been called a ``continuing body.'' Yet
language reflecting this observation was included in Senate
rules only in 1959. The more important, and much older, sense
in which the Senate is a continuing body is its ongoing
constitutional authority to determine its rules. Rulings by
vice presidents of both parties, sitting as the President of
the Senate, confirm that each Senate may make that decision
for itself, either implicitly by acquiescence or explicitly
by amendment. Both conservative and liberal legal scholars,
including those who see no constitutional problems with the
current filibuster campaign, agree that a simple majority can
change Senate rules at the beginning of a new Congress.
An alternative strategy involves a parliamentary ruling in
the context of considering an individual nomination. This
approach can be pursued at any time, and would not actually
amend Rule 22. The precedent it would set depends on the
specific ruling it produces and the facts of the situation in
which it arises.
Speculation, often inaccurate, abounds about how this
strategy would work. One newspaper, for example, offered a
common description that this approach would seek ``a ruling
from the Senate parliamentarian that the filibuster of
executive nominations is unconstitutional.'' Under long-
standing Senate parliamentary precedent, however, the
presiding officer does not decide such constitutional
questions but submits them to the full Senate, where they are
debatable and subject to Rule 22's 60-vote requirement. A
filibuster would then prevent solving this filibuster crisis.
Should the chair rule in favor of a properly framed non-
debatable point of order, Democrats would certainly appeal,
but the majority could still sustain the ruling by voting for
a non-debatable motion to table the appeal.
Democrats have threatened that, if the majority pursues a
deliberate solution to this political and constitutional
crisis, they will bring the entire Senate to a screeching
halt. Perhaps they see this as way to further escalate the
confirmation crisis, as the Senate cannot confirm judicial
nominations if it can do nothing at all. No one, however,
seriously believes that, if the partisan roles were reversed,
Democrats--the ones who once proposed abolishing even
legislative filibusters--would hesitate for a moment before
changing Senate procedures to facilitate consideration of
judicial nominations they favored.
The United States Senate is a unique institution. Our rules
allowing for extended debate protect the minority's role in
the legislative process. We must preserve that role. The
current filibuster campaign against judicial nominations,
however, is the real attack on Senate tradition and an
unprecedented example of placing short-term advantage above
longstanding fundamental principles. It is not simply
annoying or frustrating, but a new and dangerous kind of
obstruction which threatens democracy, the Senate, the
judiciary, and even the Constitution itself. As such, it
requires a more serious and deliberate solution.
While judicial appointments can be politically contentious
and ideologically divisive, the confirmation process must
still be handled through a fair process that honors the
Constitution and Senate tradition. If the fight is fair and
constitutional, let the chips fall where they may. As it has
before, the Senate must change its procedures to properly
balance majority rule and extended debate. That way, we can
vigorously debate judicial nominations and still conduct the
people's business.

Mr. UDALL of New Mexico. Mr. President, I yield the floor and suggest
the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The ACTING PRESIDENT pro tempore. The Senator from Illinois.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. DURBIN. Mr. President, I ask unanimous consent to speak in
morning business.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

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