[Congressional Record Volume 159, Number 28 (Wednesday, February 27, 2013)]
[Senate]
[Pages S924-S926]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   THE DIFFERENCE BETWEEN A FILIBUSTER AND A MOTION TO CUT OFF DEBATE

  Mr. ALEXANDER. Mr. President, I come to the floor to attempt to clear 
up some confusion about Senate procedure. The confusion I wish to 
address is that some observers of the Senate seem to have a hard time 
telling the difference between a filibuster that is designed to kill 
the nomination of a Cabinet member or a judge and a motion by the 
majority leader to cut off debate. Let me say that again--the 
difference between a filibuster that is designed to prevent the 
nomination of a Cabinet member or a judge on one hand or a motion by 
the majority leader of the Senate to cut off debate.
  There is a big difference. But sometimes I read in the newspapers 
that Republicans are filibustering, for example, Senator Hagel, as if a 
majority of Republicans or a majority of the Senate intended to deny 
the confirmation of Senator Hagel through a filibuster, when, in fact, 
what most of the Republicans were saying was: The nomination of the 
former Senator has come to the floor only 2 days ago. We have Senators 
who have legitimate questions about the nomination, and we wish to have 
some time to discuss it.
  In that case, we were forced to have a vote on a motion by the 
majority leader to cut off debate on Thursday before the recess, even 
though the

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Democratic leadership and the White House had been told by Republican 
Senators--enough of us--if we voted after the recess there would be 
plenty of votes to make sure the President's nominee had an up-or-down 
vote, as we have done throughout history in the U.S. Senate.
  Now, for whatever reason, the majority leader and the White House 
felt they had to push through a vote and then went into a large 
complaint that Republicans are filibustering the President's nominee, 
Republicans are obstructionists of the President's nominee, when all we 
were doing was doing what Senators historically do, which is ask for a 
sufficient time to exercise our constitutional duty of advice and 
consent.
  Advice and consent is our best known constitutional responsibility. 
Books have been written about it, movies have been written about it, 
and speeches have been made about it time after time. If we do not do 
it, we would be derelict in our duty.
  So there is a big difference between asking for time to exercise our 
constitutional duty of advice and consent and using a filibuster to 
prevent the nomination of a Cabinet member or a judge.
  I went back through history as best I could. The Congressional 
Research Service has issued a report on what has happened throughout 
the Senate's history on Cabinet members and judges.
  On district judges, according to CRS, no district judge nomination 
has ever failed to be confirmed because they failed to obtain cloture. 
Did it take some time? Were questions asked? Yes, of course. That is 
part of the process. But the fact is, no district court nomination has 
ever failed to be confirmed because they failed to obtain cloture.
  So if the majority leader will wait a sufficient amount of time for 
the minority members to have their questions answered, a district judge 
in this body today--and we have proved it time and time again--will not 
be denied his seat because of a 60-vote cloture vote. There will be an 
up-or-down vote on a district judge.
  The same is true so far with a Cabinet member. The only exception I 
have found is when the Democrats, unfortunately, used a cloture vote--a 
60-vote requirement--to block the nomination of John Bolton, President 
Bush's nominee to be U.S. Representative to the United Nations.
  Some Presidents include that position in the Cabinet; some do not. 
But aside from that singular incident, which I point out was the 
Democrats--the Democrats--saying they are going to filibuster a nominee 
by the President and deny him a seat, so far as I have been able to 
tell, there has not ever been an instance in the history of the Senate 
where Republicans have used a filibuster to deny a Cabinet member an 
up-or-down vote when nominated by a President.
  That only leaves circuit judge nominees. Up until 2003, so far as I 
have been able to find, the rule of the Senate was that the President's 
nominees to be on the Federal courts of appeals always received an up-
or-down vote. They were decided by a vote of 51.
  Then our friends on the Democratic side, when President Bush became 
President, decided they did not like that and they changed the 
practice. They began to filibuster President Bush's judges to deny them 
their seats.
  I had just arrived in the Senate in 2003. I was very upset by that 
because I knew some of the nominees. I knew about Miguel Estrada. I 
knew how Charles Pickering, in Mississippi, had been a pioneer in the 
civil rights movement when people said he was not. I knew that William 
Pryor had been a law clerk to the Honorable John Minor Wisdom, the 
Federal courts of appeals judge for whom I clerked in New Orleans. I 
knew these were good people. They just happen to be conservative. They 
just happen to be Republicans. So our friends on the other side of the 
aisle said: We are going to filibuster and kill those nominees.
  There were three others: Priscilla Owen, Carolyn Kuhl, Janice Brown. 
All the cloture votes failed. There was no final vote. And then there 
were four more in 2004. So there were 10 altogether. Democrats for the 
first time filibustered to kill 10 of President Bush's judges.
  That produced a reaction. That produced Republicans who said: OK, we 
are going to change the rules of the Senate. We are going to make this 
a majoritarian institution. We are going to decide these questions by 
51 votes.
  Well, cooler heads prevailed and we adopted a consensus that only in 
extraordinary cases would Federal appellate court judges be denied 
their seat by a cloture vote, by a 60-vote margin. In every other case, 
it would be 51 votes.
  Based on the research I have been able to make, only two of President 
Obama's circuit court nominees have failed to obtain cloture and were 
not confirmed, and those are Caitlin Halligan and Goodwin Liu.
  So the bottom line of history is, no district judge has ever been 
denied his seat or her seat by a filibuster. No Cabinet member--with 
the exception of John Bolton by the Democrats, if you want to count 
that--has been denied his or her seat by a filibuster.
  As far as circuit court nominations go, the score is 10 to 2. The 
Democrats have filibustered to death 10 of President Bush's nominees, 
and Republicans, in return, have filibustered 2. I think that is an 
unfortunate precedent. I would like for the Senate to go back to where 
it was when even a nominee such as Clarence Thomas for the Supreme 
Court of the United States was decided by a majority vote.
  In addition to that, of course, there is the question of: Do we 
filibuster legislation? The answer is yes, we do. And sometimes we do 
on either side to kill a bill. If a bill comes over here to abolish the 
secret ballot in union elections, I imagine Republicans will do their 
best to kill the bill with a 60-vote margin. Democrats would do the 
same with a right-to-work provision if Republicans were in charge. That 
has happened throughout history. And with lesser nominations that has 
happened. If a National Labor Relations Board nominee is controversial, 
there might be a 60-vote requirement--even with a nomination to the 
Tennessee Valley Authority.

  I remember when the distinguished majority leader held up President 
Bush's TVA nominees because he thought the President should have 
appointed Democrats instead of Republicans. I pointed out to him that 
the law did not say he had to do that. But the majority leader said, 
well, he was going to hold them up anyway. I could not get him to stop 
doing that until I held up somebody he wanted from Nevada.
  So this has gone on throughout history with lesser nominees. It is a 
part of the advice and consent of the Senate. It is a way we gather 
information. It is a way we make a point. It is a way we sometimes get 
something in exchange. It is a power that an individual Senator has.
  As with all the powers we have, it should be exercised with 
restraint. If all 100 of us exercised all the privileges we have at any 
given time, nothing would happen.
  Let me conclude by remaking my first point. Advice and consent is the 
best known responsibility of this Senate. It is a constitutional duty. 
We exercise it diligently. It often involves some delay. It often 
involves asking for more time to consider someone, getting information 
that was not easily gotten before. Every Senator knows that the time to 
ask a nominee about an issue is before that nominee is confirmed. They 
are able to talk about something, it seems, easily. Their appointments 
are not hard to get. So that is a part of what we do every day.
  But I hope the observers of the Senate will make a distinction in the 
future between the majority leader's effort to cut off debate and the 
minority's intention to kill a nominee with a filibuster. Because we do 
not do it with district judges--never have. We do not do it with 
Cabinet members--never have. We have done it twice on the Republican 
side with circuit court judges; Democrats have done it 10 times--both 
unfortunate precedents, I think. But with Cabinet members and district 
judges, that is the record.
  So there is a difference. There is a difference between asking for a 
reasonable amount of time to debate and exercise advice and consent and 
a filibuster with the intention of preventing the nomination entirely, 
finally, of a judge or a Cabinet member.
  I thank the Presiding Officer and yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.

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  Mr. WHITEHOUSE. Mr. President, while the Senator from Tennessee is on 
the floor--and because he referenced the filibuster of district judge 
nominees--let me say that there was a concerted effort to try to 
filibuster a district court nominee, one whom Senator Reed and myself 
had a particularly keen interest in, since we recommended this 
candidate to the President, and it was the Senator from Tennessee, 
along with 10 of his Republican colleagues, who decided that was not in 
the best traditions of the Senate and who voted against the filibuster 
and to allow cloture so that the precedent remains that district judges 
will not be filibustered. I just want to take this opportunity to thank 
him for doing that, and to let him know he has my gratitude for that. I 
think it was in the best interests of the Senate. I do not think the 
Senator did it in order to gain any gratitude from me. I think he did 
it because, as a matter of principle, he thought this was the way the 
Senate should behave. But I certainly do appreciate it and I want to 
take this moment to say so.

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