[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:

       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.

  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

[[Page S1076]]

     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.

                          ____________________