Congressional Record, Volume 159 Issue 167 (Thursday, November 21, 2013)

[Congressional Record Volume 159, Number 167 (Thursday, November 21, 2013)]
[Senate]
[Pages S8418-S8428]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Nuclear Option

Mr. GRASSLEY. Mr. President, we didn't have a chance to debate the
change in rules, and we should have, so I am going to speak now on some
things I think should have been said before we voted--not that it would
have changed the outcome but because we ought to have known what we
were

[[Page S8420]]

doing before we vote rather than afterward. So I will spend a few
minutes discussing what the majority leader did on the so-called
nuclear option.
Unfortunately, this wasn't a new threat. Over the last several years,
every time the minority has chosen to exercise his rights under the
Senate rules, the majority has threatened to change the rules. In fact,
this is the third time in just the last year or so that the majority
leader has said that if he didn't get his way on nominations, he would
change the rules. Ironically, that is about as many judicial nominees
as our side has stopped through a filibuster--three or so.
Prior to the recent attempt by the President to simultaneously add
three judges who are not needed to the DC Circuit, Republicans had
stopped a grand total of 2 of President Obama's judicial nominees--not
10, as the Democrats had by President Bush's fifth year in office; not
34, as one of my colleagues tried to suggest earlier this week; no,
only 2 had been stopped. If we include the nominees for the DC Circuit,
we have stopped a grand total of 5--again, not 10, as the Democrats did
in 2005; not 34, as one of my colleagues tried to argue earlier this
week but 5. During that same time we have confirmed 209 lower court
Article III judges. That is a record of 209 judges approved to 5 who
were not approved. So this threat isn't based on any crisis. There is
no crisis.
I would note that today's Wall Street Journal editorial entitled ``DC
Circuit Breakers: The White House wants to pack a court whose judges
are underworked'' lays out the caseload pretty clearly.
I ask unanimous consent to have printed in the Record the editorial
to which I just referred.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Wall Street Journal, Nov. 21, 2013]

D.C. Circuit Breakers

(By the Wall Street Journal Editorial Staff)

The White House wants to pack a court whose judges are
underworked.
We remember when a ``judicial emergency'' was the Senate's
way of calling attention to vacancies based on a court's
caseload. Those were the good old days. Now Democrats are
threatening to change Senate rules if Republicans don't
acquiesce to their plan to confirm three new judges to the
most underworked appellate circuit in the country.
That's the story behind the fight over the D.C. Circuit
Court of Appeals, with the White House trying to pack the
court that reviews much of its regulatory agenda. On Monday
Senate Republicans blocked the third nominee to the D.C.
appellate court in recent weeks, and Democrats with short
memories of their judicial filibusters in the Bush years are
claiming this is unprecedented. Majority Leader Harry Reid
and other Democrats are threatening to resort to the so-
called nuclear option, which would let the Senate confirm
judicial nominees by a simple majority vote.
This is nothing but a political power play because the D.C.
Circuit doesn't need the new judges. It currently has 11
authorized judgeships and eight active judges--four appointed
by Democratic Presidents and four by Republicans. The court
also has six senior judges who hear cases varying from 25% to
75% of an active judge's caseload. Together they carry the
equivalent caseload of 3.25 active judges, according to
numbers from Chief Judge Merrick Garland. That means the
circuit has the equivalent of 11.25 full-time judges.
That's more than enough considering that the court's
caseload is the lightest in the country. For the 12-months
ending in September, the D.C. Circuit had 149 appeals filed
per active judge. By comparison, the 11th Circuit had 778
appeals filed per active judge for the same period. If all
three nominees to the D.C. Circuit were confirmed, the number
of appeals per active judge would be 108, while a full slate
on the 11th Circuit would be 583 appeals per judge. The
national average of appeals per active judge is 383. The
closest to the D.C. Circuit is the 10th Circuit, at 217
appeals.
Liberal Senator Pat Leahy claims that these comparisons
don't matter because the D.C. Circuit handles complex
rulemakings by federal agencies and sensitive national
security cases. But the truth is that all the circuits handle
complicated cases. And even many regulatory cases have been
migrating to other circuits as some of the D.C. Circuit's
stars have taken senior status.
According to the Administrative Office of the U.S. Courts,
42.9% of the D.C. Circuit's caseload is made up of
administrative appeals of federal rules or regulations, the
highest percentage of any circuit. In raw numbers, the D.C.
Circuit is not carrying the heaviest load. That honor goes to
the Second Circuit Court of Appeals.
Democrats are in a rush to confirm as many judges as
possible because they know the clock is ticking on the Obama
second term. Liberals have criticized the White House for its
slow pace of nominations, but that isn't the fault of
Republicans. Iowa Senator Chuck Grassley, the ranking
Republican on Judiciary who has led the fight against more
D.C. Circuit confirmations, has been entirely consistent. In
the Bush years he opposed the nomination of a twelfth judge
for the court on workload grounds.
GOP Senators watched for years as Senate Democrats blocked
George W. Bush's nominees to the D.C. Circuit, including the
eminently qualified Miguel Estrada and Peter Keisler.
Republicans are right to say that the D.C. Circuit now has a
full complement of judges following the unanimous
confirmation of Obama nominee Sri Srinivasan in May.
Mr. Reid and his fellow Democrats are claiming that even if
they establish a new standard of 51 votes to confirm
appellate judges and executive-branch officials, they can
keep the 60 vote standard for the Supreme Court. They're
kidding themselves. If they change the rules to pack the D.C.
Circuit, Democrats should understand they are also setting
that standard for future Supreme Court nominees opposed to
Roe v. Wade.

Mr. GRASSLEY. This is about a naked power grab and nothing more than
a power grab. This is about the other side not getting everything they
want, when they want it.
The other side claims they were pushed to this point because our side
objected to the President's plan to fill the DC Circuit with judges the
court does not need, but the other side tends to forget history.
History is something we ought to learn from, so let's review how we got
here.
After the President simultaneously nominated three nominees who are
not needed for the DC Circuit--a blatant political power grab in its
own right--what did the Republicans do? Well, we did something quite
simple: We said we want to go by the rules the Democrats set in 2006.
We said we would hold those Democrats to the same standard they
established in 2006 when they blocked a nominee of President Bush's by
the name of Peter Keisler.
Let's be clear about why the Democrats are outraged. Democrats are
outraged because Republicans actually had the temerity to hold the
other political party to a standard they established, and because we
did, because we insisted we all play by the same rules, they came right
back and said: Then we will change the rules. In effect, the other side
has said: We don't want to be held to the standard we established in
2006. And not only that, but if you don't give us what we want, we are
willing to forever change the Senate. And that is what happened today.
We hear a lot of ultimatums around here, but this ultimatum was not
run-of-the-mill. It was very different. It was different because this
threat was designed to hold the Senate hostage. It was different
because it is designed to hold hostage all of the Senate's history and
traditions and precedents. It was different because its effectiveness
depends on the good will of Senators who don't want to see the Senate
as we know it destroyed or function other than as the constitutional
writers intended.
I would note that today's majority didn't always feel that way--the
very way we have seen expressed today. Not too many years ago my
colleagues on the other side described their fight to preserve the
filibuster with great pride. For instance, in 2006 one of my colleagues
on the other side said:

The nuclear option was the most important issue I have
worked on in my public life. Its rejection was my proudest
moment as a minority leader. I emerged from the episode with
a renewed appreciation for the majesty of Senate rules. As
majority leader, I intend to run the Senate with respect for
the rules and for the minority rights the rules protect.

In 2005 another of my Democratic colleagues had this to say,
referring to when Republicans were in the majority:

Today, Republicans are threatening to take away one of the
few remaining checks on the power of the executive branch by
their use of what has become known as the nuclear option.
This assault on our traditions of checks and balances and on
the protection of minority rights in the Senate and in our
democracy should be abandoned.
Eliminating the filibuster by nuclear option would destroy
the Constitution's design of the Senate as an effective check
on the executive.

So here we have two quotes from Democrats in the 2005-2006 timeframe
very strongly supporting the precedent of the Senate in using the
filibuster to protect minority rights. But that was when they were in
the minority. Now

[[Page S8421]]

they are in the majority, and the tradition of the Senate doesn't mean
much.
Here is another quote from the late Senator Byrd in 2005:

And I detest this mention of a nuclear option, the
constitutional option. There is nothing constitutional about
it. Nothing.

But, of course, that was way back then--just 6, 7 years ago when
today's majority was in the minority and there was a Republican in the
White House. Today the shoe is on the other foot. Today the other side
is willing to forever change the Senate because Republicans have the
audacity to hold them--the majority party of today--to their own
standard. Why? Why would the other side do this? There clearly isn't a
crisis on the DC Circuit. The judges themselves say that if we confirm
any more judges, there won't be enough work to go around. And it is not
as if all of these nominees are mainstream consensus picks despite what
the other side would have us believe, that they are somewhat
mainstream.
Take Professor Pillard, for instance. She has written this about
motherhood:

Reproductive rights, including rights to contraception and
abortion, play a central role in freeing women from
historically routine conscription into maternity.

Is that mainstream?
She has also argued this about motherhood:

Antiabortion laws and other restraints on reproductive
freedom not only enforce women's incubation of unwanted
pregnancies, but also prescribe a ``vision of the woman's
role'' as mother and caretaker of children in a way that is
at odds with equal protection.

Is that mainstream?
What about her views on religious freedom? She argued that the
Supreme Court's case of Hosanna-Tabor Evangelical Lutheran Church,
which challenged the so-called ``ministerial exception'' to employment
discrimination, represented a ``substantial threat to the American rule
of law.'' Now, get this. After she said that, the Supreme Court
rejected her view 9 to 0, and the Court held that ``it is impermissible
for the government to contradict a church's determination of who can
act as its ministers.''
Do my colleagues really believe mainstream America thinks churches
shouldn't be allowed to choose their own ministers?
I could go on and on, but I hope my colleagues get the picture.
The point is this: Voting to change the Senate rules is voting to
remove one of the last meaningful checks on the President--any
President--and voting to put these views on this important court.
So I ask again, why would the other side do this? It is nothing short
of a complete and total power grab. It is the type of thing we have
seen again and again out of this administration and their Senate
allies, and you can sum it up this way: Do whatever it takes.
You can't get ObamaCare passed with Republican support? Do whatever
it takes: Pass it at 7 a.m. on Christmas Eve with just Democratic
votes.
You can't get all of your side to support ObamaCare? Do whatever it
takes: Resort to things like the ``Cornhusker kickback.''
You lose your 60th vote on ObamaCare due to a special election? Do
whatever it takes: Ram it through anyway using reconciliation.
The American people don't want to be taxed for not buying health
care? Do whatever it takes: Tell the American people it isn't a tax and
then argue in the court that it is a tax.
The American people want to keep their health care? Do whatever it
takes: Promise them ``if you like your health care, you can keep it''
and then issue regulations making it impossible.
Your labor allies want out from under ObamaCare? Do whatever it
takes: Consider issuing them--labor--a waiver from the reinsurance tax.
You can't find consensus nominees for the National Labor Relations
Board? Do whatever it takes: Recess-appoint them when the Senate is
still in session.
You can't convince Congress to adopt your gun control agenda? Do
whatever it takes: Issue some Executive orders.
You can't convince moderate Democrats to support cap-and-trade fee
increases? Well, do whatever it takes: Do the same thing through EPA
regulation.
Frustrated that conservative groups' political speech is protected
under the First Amendment? Do whatever it takes: Use the IRS to harass
and intimidate those same conservative groups.
Frustrated when the court stands up for religious freedom and issues
a check on the ObamaCare contraception mandate? Do whatever it takes:
Stack the DC Circuit Court in your favor.
Frustrated when the court curbs your power on recess appointments? Do
whatever it takes: Stack the DC Circuit with your favorite appointees--
people who will rule in your favor.
Worried EPA's regulations on cap-and-trade fee increases might get
challenged in the court? Do whatever it takes: Stack the DC Circuit in
your favor.
Frustrated because Senate Republicans have the nerve to hold you to
the same standard you established during the last administration? Do
whatever it takes: Change the rules of the Senate. That is what we have
witnessed today, nothing but an absolute power grab.

The majority in the Senate and their allies in the administration are
willing to do whatever it takes to achieve their partisan agenda. They
know there will be additional challenges to ObamaCare. They know that
if they can stack the deck on the DC Circuit they can remove one of the
last remaining checks on Presidential power.
But make no mistake, my friends on the other side will have to answer
this question: Why did you choose this moment to break the rules to
change the rules? Why now? Why, when we are witnessing the collapse of
this massive effort to centrally plan one-sixth of this wonderful
Nation's economy--why, when millions of Americans are losing their
health care--why did you choose this moment to hand the keys to the
kingdom over to the President, a President with less check on his
authority?
Because the fact of the matter is this: any vote to break the rules
to change the rules is a vote to ensure ObamaCare remains intact.
I will conclude by saying this. Changing the rules of the Senate in
this way was a mistake. But if the last several years have taught us
anything, it is that the majority won't stop making these demands. We
can't always give in to these constant threats. Sooner or later you
have to stand up and say: Enough is enough.
But if there is one thing which will always be true, it is this:
Majorities are fickle. Majorities are fleeting. Here today, gone
tomorrow. That is a lesson that, sadly, most of my colleagues on the
other side of the aisle haven't learned for the simple reason that they
have never served a single day in the minority.
So the majority has chosen to take us down this path. The silver
lining is that there will come a day when roles are reversed. When that
happens, our side will likely nominate and confirm lower court and
Supreme Court nominees with 51 votes, regardless of whether the
Democrats actually buy into this fanciful notion that they can demolish
the filibuster on lower court nominees and still preserve it for
Supreme Court nominees.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I ask unanimous consent that after my remarks, the Senator
from Alabama be recognized.
The PRESIDING OFFICER. Without objection.
Mr. LEVIN. Mr. President, in the past, a few Senate majorities,
frustrated by their inability to get certain bills and nominations to a
vote, have threatened to ignore the rules and change them by fiat, and
to change rules to a majority vote change. Rule XXII of the Senate
requires two-thirds of the Senate to amend our rules. A new precedent
has now been set, which is that a majority can change our rules.
Because that step would change this Senate into a legislative body
where the majority can, whenever it wishes, change the rules, it has
been dubbed the nuclear option.
Arguments about the nuclear option are not new. Senator Arthur
Vandenberg confronted the same question in 1949. Senator Vandenberg,
who was a giant of the Senate and one of my predecessors from Michigan,
said if the majority can change the rules at will, ``there are no rules
except the transient, unregulated wishes of a majority

[[Page S8422]]

of whatever quorum is temporarily in control of the Senate.''
When Senator Vandenberg took that position, he was arguing against
changing the rules by fiat, although he favored the rule change that
was being considered.
Overruling the ruling of the Chair, as we have now done, by a simple
majority is not a one-time action. If a Senate majority demonstrates it
can make such a change once, there are no rules which bind a majority,
and all future majorities will feel free to exercise the same power--
not just on judges and executive appointments but on legislation.
We have avoided taking those nuclear steps in the past, although we
have avoided them sometimes barely. I am glad we avoided the possible
use of the nuclear option again earlier this year when our leaders
agreed on a path allowing the Senate to proceed to a vote on the
President's nominees for several unfilled vacancies in his
administration. Today we are once again moving down a destructive path.
The issue is not whether to change the rules--I support changing the
rules--to allow a President to get a vote on nominees to executive and
most judicial positions. But this is not about the ends but the means.
Pursuing the nuclear option in this manner removes an important check
on majority overreach. As Senator Vandenberg said: If a Senate majority
decides to pursue its aims unrestrained by the rules, we will have
sacrificed a professed vital principle for the sake of momentary
convenience.
Republicans have filibustered three eminently qualified nominees to
the Circuit Court of Appeals for the District of Columbia. They make no
pretense of argument that these nominees are unqualified. The mere
nomination of qualified judges by this President, they say, qualifies
as court packing. It is the latest attempt by Republicans, having lost
two Presidential elections, to seek preventing the duly elected
President from fulfilling his constitutional duties.
The thin veneer of substance laid over this partisan obstruction is
the claim that the DC Circuit has too many judges. To be kind, this is
a debatable proposition, one for which there is ample contrary
evidence, and surely one that falls far short of the need to provoke a
constitutional battle. Republicans know they cannot succeed in passing
legislation to reduce the size of the court. So, presented with a
statutory and constitutional reality they do not like, they have
decided to ignore that reality and have decided they can obstruct the
President's nominees for no substantive reason.
Let nobody mistake my meaning. The actions of Senate Republicans in
these matters have been irresponsible. These actions put short-term
partisan interest ahead of the good of the Nation and the future of
this Senate as a unique institution. It is deeply dispiriting to see so
many Republican colleagues who have in the past pledged to filibuster
judicial nominees only in extraordinary circumstances engaged in such
partisan gamesmanship. Whatever their motivations, the repercussions of
their actions are clear. They are contributing to the destruction of an
important check against majority overreach. To the frustration of those
willing to break the rules to change the rules, those of us who are
unwilling to do that have now seen it occur before our eyes when the
Chair was overruled earlier today.
So why don't I join my Democratic colleagues in supporting the method
by which they propose to change the rules? My opposition to the use of
the nuclear option to change the rules of the Senate is not a defense
of the current abuse of the rules. My opposition to the nuclear option
is not new. When Republicans threatened in 2005 to use the nuclear
option in a dispute over judicial nominees, I strongly opposed the
plans, just as Senator Kennedy, Senator Biden, and Senator Byrd did,
and just about every Senate Democrat did--including Democrats still in
the Senate today.
Back then, Senator Kennedy called the Republican plan a ``preemptive
nuclear strike,'' and said:

Neither the Constitution, nor Senate rules, nor Senate
precedents, nor American history, provide any justification
for selectively nullifying the use of the filibuster. Equally
important, neither the Constitution nor the Rules nor the
precedents nor history provide any permissible means for a
bare majority of the Senate to take that radical step without
breaking or ignoring clear provisions of applicable Senate
Rules and unquestioned precedents.

Here is what then-Senator Biden said during that 2005 fight:

The nuclear option abandons America's sense of fair play.
It's the one thing this country stands for. Not tilting the
playing field on the side of those who control and own the
field. I say to my friends on the Republican side, you may
own the field right now but you won't own it forever. And I
pray to God when the Democrats take back control, we don't
make the same kind of naked power grab you are doing.

My position today is consistent with the position that I and every
Senate Democrat took then--and that is just back in 2005--to preserve
the rights of the Senate minority. I can't ignore that. Nor can I
ignore the fact that Democrats have used the filibuster on many
occasions to advance or protect policies we believe in.
When Republicans controlled the White House, the Senate, and the
House of Representatives from 2003-2006, it was a Democratic minority
in the Senate that blocked a series of bills that would have severely
restricted the reproductive rights of women. It was a Democratic
minority in the Senate that beat back efforts to limit Americans' right
to seek justice in the courts when they are harmed by corporate or
medical wrongdoing. It was a Democratic minority in the Senate that
stopped the nominations of some to the Federal courts who we believed
would not provide fair and unbiased judgment. Without the protections
afforded the Senate minority, total repeal of the estate tax would have
passed the Senate in 2006.
We don't have to go back to 2006 to find examples of Senate Democrats
using the rules of the Senate to stop passage of what many of us deemed
bad legislation. Just last year, these protections prevented adoption
of an amendment which would have essentially prevented the EPA from
protecting waters under the Clean Water Act. We stopped an amendment to
allow loaded and concealed weapons on land managed by the Army Corps of
Engineers. With minority votes, we stopped legislation that would have
allowed some individuals who were deemed mentally incompetent access to
firearms. That is just in the last year. Removing these minority
protections risks that in the future, important civil and political
rights might disappear because a majority agreed they should.
Let us not kid ourselves. The fact that we changed the rules today
just to apply to judges and executive nominations does not mean the
same precedent won't be used tomorrow or next year or the year after to
provide for the end of a filibuster on legislation, on bills and
amendments that are before us.
Just as I have implored my Democratic colleagues to consider the
implications of a nuclear option which would establish the precedent
that the majority can change the rules at will, it is just as urgent
for my Republican colleagues to end the abuse of rules allowing
extended debate that were intended to be invoked rarely.
Some of my Democratic colleagues may rightfully ask, if a Democratic
majority cannot initially muster a supermajority to end filibusters or
change the rules, then what can the majority do? The rules give us the
path, and that is to make the filibusterers filibuster. Let the
majority leader bring nominations before the Senate, and let the Senate
majority force the filibusterers to come to the floor to filibuster.
The current rules of the Senate allow the Presiding Officer to put the
pending question to a vote when no Senator seeks recognition. Let us,
as the Senate majority, dedicate a week, or a weekend, or even a night,
to force the filibusterers to filibuster.
In 2010, in testimony before the rules committee on this subject,
this is what Senator Byrd said:

Does the difficulty reside in the construction of our
rules, or does it reside in the ease of circumventing them? A
true filibuster is a fight, not a threat, not a bluff. . . .
Now, unbelievably, just the whisper of opposition brings the
``world's greatest deliberative body'' to a grinding halt.

Then he said:

Forceful confrontation to a threat to filibuster is
undoubtedly the antidote to the malady.

[[Page S8423]]

We have not used that antidote to the malady which besets this body,
allowing the mere threat of a filibuster to succeed without challenging
that threat, without telling the filibusterers: Go ahead, filibuster.
We have rules that protect us. When you pause and when there is no one
else here, at 3 o'clock on the fourth day or the fifth day or the sixth
day, the Chair can put the question. The American people will then see
in a dramatic way the obstruction which has taken place in this body.
But before a Senate majority assumes a power that no Senate majority
before us has assumed, to change the rules at the will of the majority,
before we do something that cannot easily be undone--and we have now
done it--before we discard the uniqueness of this great institution,
let us use the current rules and precedents of the Senate to end abuse
of the filibuster. Surely we owe that much to this great and unique
institution.
There is a conversation, which was a formal conversation between the
majority and Republican leaders just last January. Here is what the
majority leader said:

In addition to the standing order [which is what we have
adopted] I will enforce existing rules to make the Senate
operate more efficiently. After reasonable notice, I will
insist that any Senator who objects to consent requests or
threatens to filibuster come to the floor and exercise his or
her rights himself or herself. This will apply to all
objections to unanimous consent requests. Senators should be
required to come to the floor and participate in the
legislative process, to voice objections, engage in debate or
offer amendments.

He said:

Finally, we will also announce that when the majority
leader or bill manager has reasonably alerted the body of the
intention to do so and the Senate is not in a quorum call and
there is no order of the Senate to the contrary, the
Presiding Officer may ask if there is further debate, and if
no Senator seeks recognition, the Presiding Officer may put
the question to a vote.

He, our majority leader, said:

This is consistent with the precedent of the Senate and
with Riddick's Senate Procedure.

What this showed again is that if we in the majority have the
willpower, as much willpower as has been shown by some obstructionists
in this body--if we have an equal amount of will as they have shown,
that the current rules, before this change today, can be used to force
filibusterers to filibuster, to come to the floor and to talk, all we
need is the willingness to use the rules, to take the weekend off, to
take a week that we hoped for a recess, and use it to come back here;
to take the recess itself, if necessary during the summer, for 1 month
if necessary, to try to preserve what is so essential to this body, its
uniqueness, which is that the majority cannot change the rules whenever
it wants.
The House of Representatives can change the rules whenever it wants.
It is called a rules committee. They can adopt and modify the rules at
any time, and they do. This body has not done that. We have resisted.
We have been tempted to do it. We have come close to doing it. But we
have never done it--until today.
Do I want to amend the rules? Do I. I want to amend these rules with
all my heart. I want to embody a principle that a President, regardless
of party, should be able to get a vote on his or her nominees to
executive positions at the district and circuit courts. I believe in
that. I believe most Senators believe in that. We need to change the
rule. But to change it in the way we changed it today means there are
no rules except as the majority wants them. It is a very major shift in
the very nature of this institution, if the majority can do whatever it
wants by changing the rules whenever it wants with a method that has
not been used before in this body to change the very rules of this
body.
We should have avoided a nuclear option. We should have avoided
violating our precedents. We should have avoided changing and creating
a precedent which can be used in the same way on legislation. It may
give comfort to some today: ``But this is only on judges, this is only
on executive appointments.'' This precedent is equally available to a
majority that wants to change the rules relative to the legislative
process.
Those who have abused these rules, mainly on the other side of the
aisle, whether they acknowledge it, are contributors to the loss of
protections which we see today for the Senate minority. Given a tool of
great power, requiring great responsibility, they have recklessly
abused it. But now I am afraid it will not just be they who will pay
the price.
In the short term, judges will be confirmed who should be confirmed.
But when the precedent is set, the majority of this body can change the
rules at will, which is what the majority did today. If it can be
changed on judges or on other nominees, this precedent is going to be
used, I fear, to change the rules in consideration of legislation. Down
the road--we don't know how far down the road, we never know that in a
democracy--but down the road the hard-won protections and benefits for
our people's health and welfare will be lost.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Madam President, throughout our Senate history we have
had Senators such as Senator Levin. Before he does depart, I thank him
for his principled approach to this complex issue.
Just to share with all of our colleagues, he is completing his
service in the Senate this year. He is not running for reelection. He
certainly would have been reelected. This weekend I was at a national
security conference at the Reagan Library. The first winners of an
award for national security were former Secretary of Defense Gates, who
served two Presidents, and Senator Levin was the other winner. I think
it is a tribute to his commitment to this country.
We have disagreed on a lot of issues and no one should think he is
not a strong and effective advocate for values around here. But I think
all of us should listen to his remarks and his warning, a very simple
warning. That warning is that if a majority can change the rules with a
simple majority vote in order to defeat what heretofore was a right of
a minority party in the Senate, there are no minority rights left. They
simply exist at the will of the majority. This is a fundamental matter.
It is an important matter.
We have had some close calls and a lot of intensity, but we have
avoided this kind of action. I think it is fair to say without dispute
that the significance of this rule change today dwarfs any other appeal
of the ruling of the Chair that we have seen--maybe in the history of
the Republic. This is a big event. It changes what goes on because we
deal with power and the exercise of power.
This whole thing is simply Majority Leader Reid--and he has a
difficult job. I have tried to not make his life more difficult than it
needs to be.
But he is not a dictator. He does not get to dictate how this Senate
is operated. He does not have the right to come in and change the rules
because he wants to fill three judgeship slots that are not needed.
There is no way one can justify filling these court slots, based on
simple need or by caseload per judge.
He is unhappy about that. Maybe he wants to change the mood of the
country from ObamaCare and the overreach that was executed to pass that
bill on December 24, to ram it through the Senate on a straight party-
line vote. I suspect that is part of it. But this is not the way to do
business.
The only reason those judges were blocked, the only reason they did
not get a confirmation, was because we did not need them. This country
is going broke. There are districts in America that need judges. The DC
Circuit does not need more judges. It does not need the eight they
have. Yes, they have 3 vacancies, but with the current 8 judges, their
average caseload per judge was 149, and they have been continuing to
drop. My circuit, the Eleventh Circuit, the Chair would be interested
to know, has an average caseload per judge of 740. The next lowest
caseload per circuit is twice 149. The average is well above that per
circuit. The judges themselves say they do not need anymore judges.
They take the whole summer off.
These judges would not have been rejected if we had needed them. But
the President is so determined to try to leave a legacy of friends on
that court

[[Page S8424]]

that he just shoved them anyway and demanded the Senate pass them, and
Senator Reid demanded that we confirm these judges. The judges say they
do not need anymore judges on that court. They do not need them,
whether they say they need them or not. I know how to look at the
caseload. I am on the Judiciary Committee. I am on the courts
subcommittee. I have chaired it and been ranking member of it for
years. I know how to analyze weighted caseloads. There is no
justification for adding or filling a single slot on that court and we
should not be doing it.
I am also ranking Republican on the budget committee, and I know we
cannot keep throwing away money for no good reason. The last thing we
should do is ask the American people to fund $1 million-a-year judges.
That is what each judge and the staff are estimated to cost--and there
are three of them. It is akin to every year burning $1 million on The
Mall. We do not have $1 million to throw away. But we do have judges,
we do have circuits, we do have district courts around the country that
are overloaded and we are going to add some judges to them. We ought to
close these judge slots and move them to a place they are needed, as
any commonsense person would do.
So it was not any animosity to any of the nominations and their
character or decency that led to this rejection. It was because we
warned against it.
Senator Grassley and I serve on the judiciary committee. He
previously chaired the court subcommittee, and Senator Grassley blocked
President Bush in filling one of those slots. Oh, they wanted to fill
the slot. They thought they might leave a legacy judge who would be
influential to them. That is what they suggested, but we refused. We
were actually able to transfer one of those slots to the Ninth
Circuit. That is how good business should be done around here. We are
at a point where we don't need to fill that slot, and it should in no
way cause the majority leader to feel as if his power was threatened or
that his majority was threatened. We are changing the rules of the
Senate so he can get three judges confirmed that we do not need. I will
be prepared to debate that issue anywhere, anytime on the merits. Not
one of those slots should be filled.

They have the lowest caseload per judge in America. Their cases are
not so complex that it would slow down their work and demand more
judges. That has been analyzed, and it is not true.
Senator Reid asked for this job. That is what my wife says to me when
I complain. She says: Don't blame me; you asked for the job. He asked
to be the majority leader of the Senate, and it is not easy. There are
a lot of Members and a lot of different ideas about what ought to be
done.
Trent Lott called it herding cats. I suppose that is a pretty good
description of it. One time he said it is like putting a bunch of frogs
in a wheelbarrow. You put one in and two jump out. It is not easy to
move the Senate. I understand that. Changing the rules, as Senator
Levin said, by a simple majority vote and significantly altering the
tradition of the Senate is dangerous.
Senator Reid said we have been wasting time on the procedural hurdles
thrown up in the Senate. He also said Congress is broken and the
American people think that Congress is broken. They thought it was
broken when they used legerdemain on December 24 before Scott Brown
from Massachusetts could take office so they could pass a health care
bill that the American people overwhelmingly opposed.
Maybe the reason the American people are frustrated with the Congress
is that they passed a bill that the American people opposed without a
single Republican vote in the House or the Senate. Maybe that is why
the American people are not happy with us.
I will explain, colleagues, what is causing the greatest frustration
in the Senate. It is a trend that began some years ago--not long after
I came to the Senate 17 years ago--and it has accelerated. It has
reached a pace with Majority Leader Reid we have never, ever seen
before, and it undermines the very integrity and tradition of the
Senate. It has to stop. We have to recover the tradition of this body.
We owe it to those who will be filling these seats in the years to
come.
This is the problem: A maneuver called filling the tree was
discovered. It is a parliamentary maneuver where the majority leader,
who gets recognition first in the Senate, seeks recognition and then he
fills the tree. That parliamentary maneuver basically blocks anyone
else from getting an amendment. A Senator cannot introduce his or her
amendment. So how do we have an amendment? You have to go hat in hand
to Senator Reid and say: Senator Reid, I would like an amendment.
Well, I don't think so.
I don't like that amendment.
But I like it. I want to vote on it.
Sorry. We don't want to vote on it.
That is the way it has been going every year. The Defense bill
commonly had 30 or more amendments of substance when it hit the floor--
$500 billion. It was the biggest appropriation bill we had--$500
billion. Senator Coburn has an amendment directly related to the
Department of Defense that would save some money.
Senator Reid will not give him a vote on that.
People say: Why don't you do something, Sessions? Why don't you get
an amendment passed? I cannot bring an amendment to the floor unless he
agrees. He says it is because of delay. He says it is because it
creates time difficulties. We have been on this bill for a week, and we
have only had two votes. We have gone for days with no votes. It is not
about time. Let me tell you what it is: The majority leader of the
Senate is protecting his members from tough votes. He does not want
them to have to cast votes on critical issues in this country. He is
not concerned about time or delay. There is plenty of time.
We could have already cast 15 votes on this bill, and everybody would
be satisfied. That is the way it was when Senator McConnell was here.
That is the way it has been. That is the way it had been when I came
here. We had 60-something votes on a bankruptcy bill. It went on for 3
weeks.
This is causing tension and frustration. One of our new Members in
the Senate when we were debating this very question some months ago
said: They tell us we have to get Senator McConnell's decision before
they will let us introduce an amendment. I said: Wait a minute. Do you
not understand that you are a duly elected Senator from the United
States of America and you have to ask permission of the Republican
leader before you can get a vote on an amendment? How did this happen?
This is a background issue that is undermining collegiality in this
body. I am tired of asking the majority leader for permission to give
me a vote in the Senate. It is not right.
Mr. ROBERTS. Would the Senator yield?
Mr. SESSIONS. Yes, I will yield for a question.
Mr. ROBERTS. I am assuming that his situation is very similar to the
situation that I find myself in. About a year ago we brought the farm
bill to the floor. I was the ranking member of the committee. We voted
73 times. We had over 300 amendments offered. The amendments came
forth, and the first amendment had nothing to do with agriculture.
Basically, we were able to get through it in 2\1/2\ days.
Fast-forward to this year's farm bill. I think there were 10 votes.
Senator Thune has been on the committee for a long time. We respect his
voice, and we respect his amendments. He had about four amendments.
Senator Grassley has been on the committee a lot longer. He always has
amendments on the farm bill. Senator Johanns is a former Secretary of
Agriculture. He is an excellent Senator for Nebraska and a real voice
for Agriculture. He had several amendments. I had two or three
amendments that I would have liked to have had considered.
The reason I mention them is because we all agreed to hold off in
committee as long as we could bring them to the floor. We wanted to
expedite it because the big issue was time. They said: Well, we don't
have time for a farm bill. Usually a farm bill takes 1 to 2 weeks. That
is just not the case anymore. Last year we got through it in 2\1/2\
days.

This year we expected to have votes, but none of us got amendments.
After 10 votes, bingo, it was cut off. The majority leader controlled
the effort. This is like the Rules Committee in the House.

[[Page S8425]]

When I was in the House, we had a Roberts-Stenholm amendment.
Mr. SESSIONS. An amendment can't come up for a vote in the House
unless it is approved by the Rules Committee.
Mr. ROBERTS. That is correct.
Mr. SESSIONS. That is the difference between the House and the
Senate.
Mr. ROBERTS. Madam President, if I could respond to the distinguished
Senator. We had a Roberts-Stenholm amendment at that point while the
Republicans were in the minority. Charlie Stenholm was a Democrat. As
we went in he whispered: You might want to make this the Stenholm-
Roberts amendment. I figured that out pretty fast, and we got our
amendment made in order.
As a younger member of the House at that particular time, I thought
the Rules Committee was based on the merits of whether it was germane
or pertinent, et cetera. It wasn't. It was just a complete rehash of
what went on with the authorizing committee.
One of the reasons I decided to come to the Senate was that you can
offer an amendment at any time on any subject, unless it was something
involving national security or whatever. I understand that. What we
have now is a one-man rules committee. I deeply resent that.
I feel sorry for the Senate, and I feel sorry for the Members who
come here and are not able to have their amendments considered.
One of the first things I did as the ranking member of the Senate
agriculture committee last year was to promise that amendments could be
brought to the floor. A lot of people on our side never had the
opportunity to offer an amendment before. I said: You will have that
opportunity if I can get this thing done. And we did. We opened it and
it was one of the few bills that went under regular order, and we got
things done.
There is only one House. There is the House and there is the Senate--
just like the House--and that is a shame.
I thank the distinguished Senator for his comments.
Mr. SESSIONS. I thank the Senator so very much. His insight is
correct. I will wrap up and say that what happened today is very
significant, and it is a sad day. It represents the greatest alteration
of the rules without proper procedure that we have probably seen in the
history of the Republic.
It erodes legitimate minority rights in a way that subjects every
right a minority party has in the Senate and the right any individual
Senator has in the Senate. It places that right at great risk. A
majority can do that at any time. That was explained so eloquently by
Senator Roberts a few moments ago. I was so impressed with his
analysis.
We will wrestle through this and work at it. I know that Senator
Alexander has worked hard in every way possible to avoid this day. He
has expressed great interest in it, and I look forward to hearing his
comments at this time on where we are and what is going to happen to
us.
I thank the Senator and yield the floor.
The PRESIDING OFFICER (Ms. Heitkamp). The Senator from Tennessee.
Mr. ALEXANDER. Madam President, I thank the Senator from Alabama for
his thoughtfulness and leadership.
As Senator Byrd used to say: The purpose of the Senate is to have a
place where there can be an opportunity for unlimited discussion,
unlimited debates and unlimited amendments. That is why we are here.
Senator Byrd used to say so eloquently that the Senate was a unique
body because it provided the necessary fence against the abuses of the
executive. That is what Senator Byrd said in his last speech to the
Senate when he spoke before the rules committee. He said the Senate is
the necessary fence against abuses of the executive--remembering how
this country was founded in opposition to the king and the popular
excesses. That was what the Senate was supposed to be. I am afraid that
ended today.
This action by the Democratic majority is the most important and most
dangerous restructuring of the rules of the Senate since Thomas
Jefferson wrote the rules at the founding of our country. It creates
the perpetual opportunity--as Alexis de Tocqueville described--that is
most dangerous for our country. He said that when he came to our
country to visit in the 1830s. The young Frenchman said: I see two
great dangers for this new American democracy. One was Russia and the
other was the tyranny of the majority.
The action that was taken today creates a perpetual opportunity for
the tyranny of the majority because it permits a majority in this body
to do whatever it wants to do anytime it wants to do it. This should be
called ObamaCare 2 because it is another example of the use of raw
partisan political power for the majority to do whatever it wants to do
any time it wants to do it.
In this case what it wants to do is implement the President's radical
regulatory agenda through the District of Columbia court. That's what
this is. It is not about an abuse of the filibuster.
There is a big football weekend coming up in Tennessee. Vanderbilt
University plays the University of Tennessee in Knoxville.
Let's imagine this: The Vanderbilt-Tennessee game, which is being
played in Knoxville, home of the University of Tennessee, and
Vanderbilt gets on the 1-yard line. The University of Tennessee says:
Well, we are the home team, so we will just add 20 yards to the field
or whatever it takes for us to win the game. Or the Boston Red Sox are
playing at home. Let's say they are behind the Cardinals this year.
They get to the ninth inning and they are behind and they say: Well, it
is our home field. We will just add a few innings or whatever it takes
so we can win the game. That is what the Democratic majority did today.
They say: The rules don't allow us to do what we want to do, so we will
just change the rules to do whatever it takes to get the result we
want.

That is what they did with ObamaCare. We remember that. I was
standing right here at the desk. It was snowing. It was the middle of
the winter. Senators were coming in, in the middle of the night, and
what happened? Among the things the American people like the least
about ObamaCare is that it was crammed down the throat of the American
people by the raw exercise of partisan political power with not one
single Republican vote. That is not the way the civil rights bill was
passed. That is not the way Social Security and other great bills were
passed. They were passed by a bipartisan majority so we could gain the
support of the American people.
Our Democratic majority must have liked that ObamaCare night. The
American people aren't liking it so much because apparently nobody read
the bill very closely. There are millions of Americans who have had
their policies canceled. There are going to be millions more when
employers start looking at the cost of ObamaCare.
This is ObamaCare 2; I say to my colleagues. This is another exercise
of raw partisan political power for the Democratic majority to get the
result it wants. There is only one cure for it, and that is an
election. An election is coming up in about a year. The American people
can speak. In the meantime, this has been the most dangerous, most
important restructuring of the Senate since Thomas Jefferson wrote the
rules.
It is, according to the Senator from Nevada, who is the majority
leader--it is, according to his book in 2008, the end of the Senate.
That is what he said this would be, and now he has done it. He has
written the end of the Senate by his actions today.
The Senator from Michigan, Mr. Levin, said to all of us when we were
discussing this earlier this year--he reminded us of the great Senator
from Michigan, Arthur Vandenberg, who was the author of the idea of a
bipartisan foreign policy. Senator Vandenberg said shortly after World
War II that a U.S. Senate in which a majority can change the rules
anytime the majority wants is a U.S. Senate without any rules. Let me
say that again. A U.S. Senate in which the majority can change the
rules anytime the majority wants is a U.S. Senate without any rules.
So this is not about the filibuster. This is another raw partisan
political power grab so the Democratic majority can do whatever it
wants to do whenever it wants to do it. It is ObamaCare II, and the
American people will see it that way when they can take time away from
the Web sites trying to fill

[[Page S8426]]

out their new insurance policies to be able to pay enough attention to
it.
What is the excuse for this extraordinarily disturbing action today?
They are the flimsiest of excuses, and I will take a few minutes to
outline what those are.
The first allegation is that the Republican minority was using the
filibuster to keep President Obama's appointees from gaining their
seats. Well, let's look at the history from the Congressional Research
Service. How many Supreme Court nominees have ever not been seated
because of a failed cloture vote? That is a filibuster. The answer is
zero in the history of the Senate--not just President Obama but the
history of the Senate. Someone might point to the Abe Fortas case when
President Johnson--I guess it was in the late 1960s--engineered a 45-
to-43 cloture vote so, in Johnson's words, Abe Fortas could hold his
head up, but, in fact, the filibuster has never been used to deny a
Supreme Court Justice his or her seat. How many Cabinet Members of
President Obama have been denied their seat by a filibuster? Zero. This
is the Congressional Research Service.
The majority leader said: Well, what about Secretary Hagel, the
distinguished Defense Secretary? He had to wait 34 days to be
confirmed. Why shouldn't he wait 34 days to be confirmed? He was
confirmed shortly after his name was reported. We had a perfectly
adequate Secretary of Defense sitting in the office at the time--
Secretary Panetta. I remember the Senator from Nevada standing over
there and asking: What if we are attacked and Secretary Hagel is not
there? Well, Secretary Panetta was there.
The number is zero.
Mr. INHOFE. Madam President, will the Senator yield?
Mr. ALEXANDER. Of course.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. I ask unanimous consent that after the Senator concludes
his remarks, we hear from the Senator from Arkansas Mr. Pryor, and that
I be recognized after Senator Pryor for such time as I may consume.
The PRESIDING OFFICER. Is there objection?
Mr. ALEXANDER. Certainly. And if the Senator from Oklahoma needs to
speak now, I will be glad to yield.
Mr. INHOFE. That is not necessary.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALEXANDER. Madam President, my point is that the charge is that
Republicans had been denying President Obama his nominations by
filibuster. Not on the Supreme Court, not to his Cabinet, and no
district judges, I say to my colleagues.
How many in the history of the country have ever been denied their
seats by a failed cloture vote, including President Obama? The answer
is zero.
That is very interesting. So what is the reason for this? Well, let's
go on. Maybe it was some other nomination that caused such a problem
that would justify this dangerous restructuring of the Senate rules.
Let's go to the sub-Cabinet category. These are all the executive
appointments below the Cabinet level. How many of those have been
denied? Under President Clinton, the Senate rejected two nominees of
his by a cloture vote. Under George W. Bush, it was three. Under
President Obama, it has been two. So in the history of the Senate, the
cloture vote has been used to deny seven Presidential nominees their
seat, including two for President Obama.
Let's go to the one area where there has been a little bit more; that
is, the circuit judges. Remember, on the Supreme Court, never; district
judges, never; Cabinet member, never; but circuit judges, yes. There
have been 10 instances where Presidential nominees for the Federal
circuit courts of appeals have been denied their seats because of a
failed cloture vote--that is a filibuster--five Democrats, five
Republicans.
How did this happen? If in all of these other areas it never happens,
why did it happen here? Because, as the Republican leader explained
this morning, Democrats got together in 2003--the year I came to the
Senate--and said, for the first time in the history of the U.S. Senate,
we are going to use the filibuster to deny President George W. Bush 10
nominations to the circuit court because they are too conservative, not
because they are not qualified. One was Miguel Estrada, one of the most
highly qualified nominees ever presented. One was Judge Pickering. One
was Judge Pryor, who used to be a law clerk to Judge Wisdom, as I once
was. I know the high respect Judge Wisdom had for him. The end result
was that we had this Gang of 14, and the Democrats ended up only
stopping five of President Bush's judges, but that was the first time
in the history of the Senate. To date, including the judges we are
discussing now, the three on the DC Circuit Court, the total is five.
So that is it.
How can anyone say President Obama has not been treated fairly when,
in fact, the answer is zero on the Supreme Court, zero on district
judges, zero on Cabinet and two on sub-Cabinet, and the same on circuit
courts that President Bush had?
I asked the Senate Historian if President Obama's second term Cabinet
nominees had been moved through the Senate more swiftly or slower than
those of his two predecessors, Bush and Clinton. The Senate Historian
told me it was about the same. So on that question, that is a fake
crisis.
The second allegation is that it takes too long for President Obama's
nominees to come through the Senate. Well, we have something on our
desks called the Executive Calendar. Every Senator has this. There are
44 Senators in their first term, and maybe some haven't had a chance to
read it very carefully, but it has on it all of the names of everyone
who could possibly be confirmed.
The way Senate procedure works is a nominee comes out of a committee
to the Executive Calendar. Let me state the obvious: All of the
committees are controlled by the Democrats. So if we want to report
someone for the National Labor Relations Board, it has to be approved
by a majority of senators on the committee on which I serve. Democrats
have a majority of the seats on the Committee; so a nominee gets on
this calendar by a majority of Democratic votes.
So how long have the people on the calendar been waiting? Well, 54 of
them have been waiting only 3 weeks; in other words, they just got
there. Most of them aren't controversial. Usually they are approved on
a day such as this when we are wrapping up before we go home for a week
or two, so half of them would probably be gone today. There are 16 who
have been on the calendar for up to 9 weeks. That is a very short
period of time in the U.S. Senate for people to have a chance to do
their other business and get to know the nominees. There are eight who
have been on the calendar more than 9 weeks. Of the eight, two are
being held up by Democrats, and two more are Congressman Watt and Ms.
Millett. That leaves four, and one of those is a newscaster who has
been nominated to be a member of the board of the Morris K. Udall
Foundation and who is being moved along with other people to that
foundation board.
In other words, it is not true that there are people being held up
for a long period of time because the only way a nominee can be
confirmed in the U.S. Senate is if the majority takes someone from this
Executive Calendar, moves their nomination--it doesn't have to go
through any sort of other motion; he can do it on his own--and then we
move to consider that person.
Well, one might say: But someone can hold each up one of those. Yes,
we can, under the cloture procedure. But let's take an example. Let's
say Senator Reid, the distinguished majority leader, were to come,
under the old rules, to the floor and say: I believe Republicans are
holding up 10 of our lower-level nominees in an obstructionist way. So
let's say he arrives on Monday and he files cloture. He moves to
confirm all 10 of those. He takes them off this calendar, he moves them
to be confirmed, and he files cloture on each of the 10 on Monday.
Tuesday is what we call an intervening day. He can get the rest of them
confirmed, by bankers' hours, by Friday if he wants to because after he
has that intervening day, there could only be, because we changed the
rules earlier this year, 8 hours of debate, and his side can yield back
their 4 hours, and then we go to the next one and then the next one. So
we have 40 or 45 hours, and we have them all.
The majority leader, if he wished to, could confirm all of these
people very

[[Page S8427]]

easily unless 41 Republicans said no. But what we have already seen is
that almost never happens. In the history of the country, it has
happened twice to President Obama on his sub-Cabinet members, never on
a Cabinet member; and never on district judges.
So the majority leader had plenty of opportunity to have everybody
confirmed if he wanted to. This is why Senator Byrd, who was majority
leader and minority leader, in his last speech to the Senate said:
There is no need to change the rules--and I am paraphrasing. I was at
the Rules Committee hearing when he spoke. He said: A majority leader
can use the rules that we have--that is, until today--to do whatever he
wants to get done.
Then there is the last charge about the District of Columbia Circuit.
That was the other pretext for this. Somehow Republicans were doing
something wrong by saying it is too soon to cut off debate on the
President's three nominees for the District of Columbia Circuit.

Republicans were doing--to the letter--exactly what Democrats did in
2006 and 2007. They were saying that court is underworked, that other
courts are overworked, and we ought to move judges from where they are
needed least to where they are needed most before we put anymore judges
on the court.
This is the letter sent on July 27, 2006, by all the Democrats on the
Senate Judiciary Committee, including Senators Leahy, Schumer,
Feingold, Kohl, Biden, Feinstein, Ted Kennedy. They said ``under no
circumstances'' should President Bush's Republican nominee be
considered, much less confirmed, by this committee before we address
the very need for the judges on the committee.
All we in the Republican Party were saying is--Senator Grassley has
had his bill in since 2003; the Democrats said in 2006 we should not
put anymore judges on the court until we look at where the judges are
needed--we are saying: Consider Senator Grassley's bill before you
confirm the judges.
So that is the excuse--the flimsiest of excuses. The idea that
President Obama is not being treated at least as well as previous
Presidents with his nominees is just not true. The filibuster has not
been used to deny him nominees, except in two cases for sub-Cabinet
members; and in the case of circuit judges, no more than with President
Bush.
The majority leader has not used the rules he had before him to
easily confirm the people on the Executive Calendar. Those on the
Executive Calendar for the most part have only been there for a few
weeks. So why then did the majority feel the need to take this
extraordinary action?
That takes us back to where we started. This is, very simply, another
partisan political power grab to permit the majority to do whatever it
wants to any time it wants to do it.
The American people--millions of them--are filling out their
insurance forms. They are trying to make the Web site work. They are
terrified by the fact that they may not have insurance by January 1.
That is totally the result of a partisan political power grab in the
middle of the night 3 years ago that put ObamaCare into place. This is
another example of that. The only cure for that is a referendum next
November.
I deeply regret the action the Democratic majority took today. It is
the most dangerous and the most consequential change in the rules of
the Senate since Thomas Jefferson wrote those rules at the founding of
our country.
Madam President, I would refer my colleagues to the letter I had
included in the Record yesterday, the letter from the Senate Democrats
in 2006 arguing that the DC Circuit should have no more judges until we
consider the proper number and also a 1-page list of the total number
of sub-Cabinet members who have ever been denied their seat by a failed
cloture vote--and that number is seventeen in the history of the
Senate; two under Clinton, three under Bush, and two under President
Obama--plus five Bush judges and five Obama judges.
Mr. ALEXANDER. I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. PRYOR. Madam President, I want to echo at least some of the
sentiment that my distinguished colleague from Tennessee just
mentioned--that I am disappointed in the use of the nuclear option. I
opposed that. I think it could do permanent damage to this institution
and could have some very negative ramifications for our country and for
the American people.
I do not want to be an alarmist about it, but I do have concerns. I
am very disappointed that it got to this point, and I want to talk
about that in a moment. But before I do, I would like to say, if you
step back, the Senate was designed to be a place for debate. It is
where Members--the way it was designed, the way the rules were
structured, the size of it, the history of it--the Members can reach
across the aisle and find solutions.
That is what this country needs right now. We need solutions. We need
people who are willing to work together to get things done. Part of
that is to allow the minority to speak, even if it is a minority of
one. We need to protect that right, and we need to protect every
Senator's right to debate and to amend legislation. I think no one here
with a straight face would say there have not been abuses from time to
time. We know that. There have been, and I have seen a lot since I have
been here.
But also, if you step back and look at the Senate, it is the only
place in our government where the American people can actually see law
being made. With all due respect to our colleagues in the House, you do
not see law being made there. They come out of their Rules Committee
and it is all pretty much set up, and right now at least they kind of
tend to vote party line, party line, party line--done. You do not see
law being made at the White House. When they are doing things such as
executive orders, all you know is you kind of get the press release or
you see an announcement in the Rose Garden, and that is it. You do not
see law even being made in the courts. A lot of law in this country is
made by the courts. For example, across the street at the U.S. Supreme
Court, what you have is they hear the arguments, and they all go back
in chambers. You do not really know what they talk about, you do not
really know how that is working, and then they come out with their
decision--and in some cases decisions because a lot of times there is a
dissent.
But the Senate is unique in that way. We are the only place in our
government where you can actually see the law being made. It is also,
in that same sense, the only place where the minority is guaranteed a
voice. They sometimes get outvoted, but they are guaranteed at least to
be heard. I think that is important.
So again, I share the disappointment of many of my colleagues today
in how this happened.
The Senate rules I have worked with for 11 years now. They can be
arcane and frustrating. But the way it is designed is it allows people
to fight for their State's interests or their ideological beliefs,
whatever it happens to be, and the sense is everybody is fighting for
what is best for the country. We may disagree with what is best, and
that is why we should have votes eventually on these matters. But it
allows people to fight for what they think is right, best for their
State, best for the country, best for the world--whatever the issue
happens to be.
Since I have been here, what I have tried to do consistently is to
fight to maintain the integrity of this institution. Since I have been
here, there have been numerous times--and I have been part of
bipartisan groups. Probably the most high profile one was the Gang of
14 back in 2005, where we worked out some judicial nominations. But
nonetheless I was a part of that; just recently, the Levin-McCain group
that helped to change the rules, as the Senator from Tennessee talked
about.
What that is all about is working with Senators from both sides of
the aisle to reach commonsense solutions--not just to protect the
rights of the minority but also to improve the legislative process, to
make sure this place works as it is designed. So certainly that is what
I try to do every single day when I come here. I do understand that if
you are going to get anything done in Washington, anything done in this
Senate, you are going to have to work together to do it. It is like in
the Book of Isaiah. It says: ``Come now, let us reason together.'' I
think that is the

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one verse in the whole Bible that sort of sums up the Senate: Come and
let us reason together. The Senate should always be the place for that.

Let me make two last points on this nuclear option. The first is that
I would encourage the American citizens to be very careful in looking
at statistics. They are difficult to use. They can be very misleading
because almost always these statistics lack context. I hear the talking
heads. I hear folks on talk radio. I have even seen a few people right
here in this Chamber use these extensively, and very often there is no
context. Sometimes, for example--if you just look at cloture motions--
you can actually have a filibuster without filing a cloture motion, and
you can have a cloture motion without there actually being a
filibuster. So, again, that will skew the numbers.
The bottom line is, there is plenty of blame to go around--plenty of
blame. If one person says it is all the other side's fault, they are
not being truthful. There is plenty of blame to go around. On this both
parties are at fault. I will give you one example. It was not too long
ago that I heard people come down here and say the DC Circuit's
workload was such that they needed more judges. Well, guess what. Now I
have heard those very same people say that the DC workload is so light
they do not need any more judges. The shoe is on the other foot.
Democrats back in the day said the DC Circuit had a light workload and
did not need any more judges. Now Democrats are saying it does need
more judges.
We need to stop the games and get back to work. I think there is one
way to fix this, and that is by following the Golden Rule. I think if
we take those words of Jesus literally and apply those to what we do
here in the Senate--``Do unto others as you would have them do unto
you''--and really mean that and really apply that--to do unto others as
you would have them do unto you--I think all these problems would go
away.
It is about respecting one another. It is about working with one
another. It is about respecting elections in other States, and national
elections. Do unto others as you would have them do unto you and all
this would go away. Also, a little dose of forgive one another would
also help.