[Congressional Record Volume 159, Number 167 (Thursday, November 21, 2013)]
[Senate]
[Pages S8431-S8437]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   HONORING PRESIDENT JOHN F. KENNEDY

  Seeing the distinguished Presiding Officer who is not only a New 
Englander, but in this case from Massachusetts, let me just speak 
personally for a moment on a very, very sad day.
  Tomorrow will be November 22. And ever since I was a law student, 
November 22 has always brought a feeling of dread to me. Tomorrow will 
be 50 years since President Kennedy was murdered.
  My wife Marcelle and I were living in Washington at that time. She 
was a young nurse, a registered nurse, working at the VA hospital on 
Wisconsin Avenue, a site that is now occupied by the Russian Embassy. 
She was helping to put this equally impoverished law student through 
Georgetown Law School. We had been there in this basement apartment, 
first during the Cuban missile crisis. And like everybody, we held our 
breath in this city, wondering if this new, young President, John F. 
Kennedy, could get us through this crisis without plunging the world 
into nuclear war. I was excited--we both were--to be in the same city.
  My family has always been Democratic. Back in Vermont, the joke was: 
``That's the street where the Democrats live.'' There were so few of 
them

[[Page S8432]]

in Vermont. But with an Irish-Catholic father and an Italian-Catholic 
mother, we had seen John Kennedy win--and in my State, amid something 
that doesn't exist anymore--an anti-Catholic attitude.
  President Kennedy stood up to those people, some in the Joint Chiefs, 
who said they had so much more experience and we ought to go ahead and 
we had nuclear superiority over the then-Soviet Union; let's attack 
them, let's have a preemptive strike. And, Madam President, anybody who 
studies history knows what would have happened: Half the world would 
have been destroyed. Through patience and diplomacy, we got out of the 
situation.
  And so we watched a young President go step by step, not always 
accomplishing everything he wanted, but always inspiring young people. 
I remember standing on Pennsylvania Avenue and seeing an open car go by 
with him. He had greeted an emperor, and their procession drove down 
Pennsylvania Avenue with people cheering. This was only months before 
he died. I was closer to him than I am to the distinguished Presiding 
Officer.
  I remember, as an honor student, our class was invited to the White 
House with other students. Standing there with other students, I 
remember being struck by how red his hair was and how young he was. He 
talked with all of us.
  Then I remember--as though it were yesterday, 50 years ago tomorrow--
I was standing in the library of Georgetown University Law School. One 
of my classmates, who was not a fan of President Kennedy, came in and 
said: The President has been shot. I told him there was nothing funny 
about saying something like that. Then I saw the shocked look on his 
face and realized he was telling the truth.
  We didn't have a car and we used to take buses to school from where 
we lived in the Glover Park area. I knew that Marcelle had been working 
all night and was probably home after getting off of her shift in the 
wee hours of the morning, and was home sleeping. I went running out, 
grabbed a cab to go home to tell her what happened.
  I think I got the only cab in Washington, DC, that did not have a 
radio. The cab driver didn't know what was going on. I just said: Let's 
go. We drove on K Street. A number of the stockbrokers were there. I 
remembered past times when I went by that exact spot and saw ticker 
tapes projected on the wall with the numbers going by, with the stock 
market's activities. They were blank, even though the stock market 
should have been open at that time. It was stopped.
  I saw a relative of Mrs. Kennedy's going to work--being chauffeured 
in a Rolls-Royce. As one can imagine, as a young law student on an un-
air-conditioned bus, I looked at him with envy. I saw him running out 
frantically trying to grab a cab. It was very obvious something was 
wrong.
  I got home, banged on the door and woke up Marcelle. I turned on the 
TV set and told her he had been shot.
  She said: Who?
  I said: The President.
  We saw Walter Cronkite--which is something we keep seeing over and 
over, and have for 50 years--announcing the President was shot, and was 
dead.
  We prayed for him, his family, for our Nation. Phones were just 
seizing up in Washington, but we talked with our family back in 
Vermont.
  We knew they were going to leave the White House to bring the 
President's body, so we decided to go watch the funeral procession. We 
waited on the curb a few yards from the route on Pennsylvania Avenue. 
We were expecting our first child--he was born in January following 
this--but we thought, even so, we should go down, and we took the bus 
down and we stood across from the National Gallery of Art, what's now 
the west wing of the National Gallery of Art. There were several lanes 
of rows of people along the street--and it was so quiet, Madam 
President--so quiet--that even though the roads were blocked, the 
street lights were going, as they changed from red to green to yellow--
we could hear the ``click'' five lanes from the road. We could hear the 
click of the street lights changing; it was that quiet.
  Then we heard the drums. We heard the cortege leaving the White 
House. This was back before we had cell phones and everything else you 
could follow. Everybody on the street turned toward the other end of 
Pennsylvania Avenue, even though we could not yet see them. But we 
could hear them, it was that quiet.
  And then cars came by the cortege: A riderless horse, a very skittish 
horse. You could hear its horseshoes clicking back and forth, as it 
would pull back and forth against the reigns, held by the man leading 
it, the boots turned backwards in the empty stirrups.
  I saw Robert Kennedy go by in a car. In fact I took a photograph of 
him--with his head bowed, his chin on his hand.
  It was so sad. It all went by. As the casket passed by, people 
saluted, held their hands over their hearts, and cried. Again, Madam 
President, it's like it was yesterday.
  We watched the funeral from home. Mrs. Kennedy had decided that all 
of the world leaders who had come would march together from the White 
House to St. Matthew's where the President's funeral would be held.
  I remember there had been a discussion of the protocol for having 
Presidents, Prime Ministers, and Emperors present. Mrs. Kennedy made 
the brilliant decision to assign the countries alphabetically in 
English. Haile Selassie, of Ethiopia, resplendent in his uniform, with 
braids and everything else, walked next to Charles de Gaulle, who, like 
myself, is well over six-feet tall, with a very plain uniform without 
decorations. Nobody thought anything unusual about it. It was all so 
respectful. Because there were so many heads of state, virtually every 
police officer in the city was downtown in that area. Yet, there wasn't 
a crime reported in DC at that time. Everybody was glued to their TV 
set.
  The funeral scenes included young John Kennedy Jr., saluting his 
father's coffin as it went by. We watched the burial at Arlington 
Cemetery--we lived only a couple miles from there--and we saw the first 
jets--the fighter jets--flying over. We rushed outside just in time to 
see what we all know as ``missing man formation,'' when the jets are in 
formation, and one peels off. We saw that, and then we saw Air Force 
One fly over, just having dipped its wing in tribute. It was a very 
large plane at that time--blue, white, and silver--the same plane that 
brought the President's body back a few days before, from Dallas. It 
was coming out of its salute.
  Throughout that time, everywhere we went we saw a silent and stunned 
city--both those who supported President Kennedy and those who had not. 
Everybody knew what a blow this was to our country. In fact, I did not 
again see that kind of shock and silence in Washington, DC until I 
walked from my office on 9/11, here on Capitol Hill, and saw the same 
thing after that attack on us.
  For something like this, most people set aside their political 
backgrounds.
  I remember so many of us stood here on that March day when President 
Reagan was shot. We all joined hands, Democrats and Republicans, and 
prayed for his safety and for the country. It is awful to have to have 
a situation like that, a situation such as that, to bring people 
together, but we should think about the country first and foremost in 
these things.
  We look at those in succession to the Presidency; we worry about what 
might happen to the President. No one ever wants anything to happen to 
any President, Republican or Democrat. We don't want these things to 
happen to our country.
  I was one of those young people inspired by John Kennedy and by 
Robert Kennedy--who invited me to join the Department of Justice as a 
young law student, though I was homesick and wanted to go back to 
Vermont, and I am glad I did.
  These were people who inspired young people. They inspired us because 
we saw political life and elective office not as something for cynical 
gain or something to promote yourself or something where you could do 
bumper-sticker sloganeering. I don't care whether you were on the left 
or the right. They inspired others to make life better for everybody 
else, to make the country better and stronger, and to leave a better 
country for the next generation.
  I think that was the promise of John Kennedy. I am glad that many in 
both

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parties decided to follow that same promise. I just wish more would.
  Madam President, I thank my colleagues for letting me have all this 
time, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. ROBERTS. Madam President, I thank the distinguished Senator from 
Vermont for his remembrance of those days that were so special to him 
and also for really commemorating them so they will be special to all 
of us. I thank him for his comments.


                              Rules Change

  Madam President, I am going to speak as the ranking member of the 
Senate rules committee, and I am going to speak in regard to the rules 
changes that have occurred today.
  Under the rules of this body, it takes 67 votes to end debate on a 
rules change. As a continuing body, our rules carry on from one 
Congress to the next--or at least they used to--and can only be changed 
pursuant to these rules. Our rules have always ensured a voice for the 
minority in this body. Unlike the House, where I served, where a simple 
majority has the power to impose a rule change at any time, in the 
Senate the minority has always been protected. Here, the rules protect 
the minority and cannot be changed without their consent--unless, of 
course, the majority decides it wants to break the rules to change the 
rules. I am saddened that is what happened today.
  The Washington Post reported the other day that President Obama's 
approval rating has hit a record low; his disapproval rating has hit a 
record high--the worst of his Presidency. This is obviously the result 
of the disastrous rollout of ObamaCare which has caused Americans to 
question both the President's trustworthiness and his basic competence.
  In light of these developments, one would think my colleagues on the 
other side of the aisle might be reconsidering the wisdom of some of 
their past decisions. One would hope it would occur to them that maybe 
it was a mistake to pass the health care reform bill on a straight 
party-line vote. I am one of the few who voted no in the HELP 
Committee, no in the Finance Committee, and no on the Senate floor on 
that Christmas Eve night.
  One might expect them to have some doubts about the competence of 
this administration, as most Americans clearly do on this particular 
issue especially and on a lot of other regulations; that it would dawn 
on them that maybe now might be the right time to reassert 
congressional authority to rein in and redirect the administration--the 
executive, if you will--and use the power of the Senate to move the 
administration in a different direction. I am sorry that has not 
happened. Instead, in the face of the obvious failures of this 
President and his plummeting approval ratings, the majority has decided 
it would be a really good idea to give him more power. That is right, 
the majority thinks our biggest problem is that the President can't do 
whatever he wants to do and we should change our rules to allow him to 
do that. That is incredible.
  The majority has permanently undermined this body, robbed it of a 
vital tool to check the untrammeled authority of this or any other 
President, so this sinking ship of an administration can make whatever 
appointments it wants. What a tragedy.
  In Kansas, when you walk old ghost towns you will see buildings where 
nothing remains but the facade. Literally the entire building is gone 
and all that is left is the facade. To prevent that facade from 
collapsing, you may see beams propping it up.
  In recent weeks this administration has been exposed as a facade. It 
still looks nice at first glance--the slick campaign-style appearances 
go on as usual--but when you look behind it, you see there is nothing 
there. It cannot perform the most basic tasks. It cannot even fulfill 
the responsibilities it has assigned to itself. It is collapsing. So 
now we, the Senate, are going to prop it up. The U.S. Senate, the 
world's greatest deliberative body, has been reduced to being a prop. 
We have reduced ourselves to rubberstamps, forfeiting our historical 
and constitutional authority to subject Presidential appointments to 
advice and consent so this administration can do whatever it wants. 
Again, what a tragedy. Never has so much been given for so little.

  We have permanently undermined this body--for what? So this President 
can appoint a few more judges and stack the DC Circuit Court that 
oversees the constitutionality of Federal regulations? Yes, ObamaCare 
regulations, IRS regulations, EPA regulations--all of the regulations 
that come like a waterfall over basically every economic sector we 
have. This is unbelievable. What happened today will surely lead to 
complete control of this institution by the majority. I hope not, but 
that is what has happened in the past, more especially in the House.
  Do not listen to those who would seek to minimize the importance of 
what has been done. The claim that what they have done is limited--
applying only to executive nominations--misses the point. The change 
itself is less important than the manner in which it was imposed. Once 
you assume the power to write new rules with a simple majority vote, to 
ignore the existing rules that require a supermajority to achieve such 
a change, you have put us on a path that will surely lead to total 
control of this body by the majority.
  Before today, there was only one House of Congress where the majority 
has total control. Now there are two. We have become the House. By its 
action today, the majority has ensured that for many years to come, 
Members will not have any rights beyond those which the majority is 
willing to grant.
  When he was in the minority, our current majority leader recognized 
this. In his book ``The Good Fight,'' Senator Reid wrote about the 
battle over the nuclear option back in 2005. This is what he wrote:

       Once you opened that Pandora's box, it was just a matter of 
     time before a Senate leader who couldn't get his way on 
     something moved to eliminate the filibuster for regular 
     business as well. And that, simply put, would be the end of 
     the United States Senate.

  I repeat, ``the end of the United States Senate.''
  Senator Reid further wrote:

       . . . there will come a time when we will all be gone, and 
     the institutions that we now serve will be run by men and 
     women not yet living, and those institutions will either 
     function well because we've taken care of them, or they will 
     be in disarray and someone else's problem to solve.

  He described the nuclear option this way then:

       In a fit of partisan furry, they were trying to blow up the 
     Senate. Senate rules can only be changed by a two-thirds vote 
     of the Senate, or 67 Senators. The Republicans were going to 
     do it illegally with a simple majority, or 51 . . . future 
     generations be damned.

  If only today the majority leader had recalled his own words. 
Instead, by his own hand, he has brought on the end of the Senate as we 
know it. Instead of taking care of this institution, he will leave it 
in disarray--future generations be damned.
  Our former Parliamentarian Bob Dove and Richard Arenberg, a professor 
and onetime aide to former majority leader George Mitchell, wrote a 
book on this subject called ``Defending the Filibuster,'' and this is 
what they said:

       If a 51-vote majority is empowered to rewrite the Senate's 
     rules, the day will come, as it did in the House of 
     Representatives, when a majority will construct rules that 
     give it near absolute control over amendments and debate. And 
     there is no going back from that. No majority in the House of 
     Representatives has or ever will voluntarily relinquish that 
     power in order to give the minority a greater voice in 
     crafting legislation.

  Do not be fooled by those who would try to minimize the impact of 
what happened today. Again, the rule change itself is less important 
than the manner in which it was imposed. Now that the majority has 
decided it can set the rules, there is no limit to what it or any 
future majority might do in the future. There are no constraints. The 
majority claims these changes are necessary to make the Senate 
function. If it decides further changes are needed, it will make them. 
The minority will have no voice, no say, no power. That has never been 
the case in the Senate--never. Until now.
  It saddens me that we have come to this point. It saddens me that the 
Members on the other side of the aisle who should know better have 
taken this course. We have done permanent damage to this institution 
and set a precedent that will surely allow future majorities to further 
restrict the rights of the minority. That is not a threat; it is just a 
fact. We have weakened this

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body permanently, undermined it, for the sake of an incompetent 
administration. What a tragedy.
  This is a sad, sad day. When the future generations we have damned by 
today's actions look back and wonder ``Why are things in such disarray? 
When did it go wrong? When did the demise of the Senate begin?'' the 
answer will be today, November 21, 2013.
  Mr. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COCHRAN. Madam President, as the majority contemplate changing 
the rules of the Senate to expedite the confirmation of several 
executive branch nominees, I hope that serious consideration was given 
to the adverse effects this change could have.
  We should resist embarking on a path that would circumvent the rights 
of the minority to exercise its advice and consent responsibilities 
provided in the Constitution.
  The consequences of the action by the majority should not be 
minimized. Former Senator Ted Kennedy, in 2003, testified before the 
Rules Committee that by allowing a simple majority to end debate on 
nominees, ``the Senate would put itself on a course to destroy the very 
essence of our constitutional role.''
  Such a departure from precedent would dilute the minority rights that 
differentiate the Senate from the other body. It also opens the door to 
applying this same rule to debate on judicial nominations, as well as 
the legislative process.
  Mr. McCAIN. Madam President, I wish to echo what my colleague from 
Michigan Senator Levin said on the floor earlier today. He quoted the 
late Senator Arthur Vandenburg of Michigan who said, in 1949, that if 
the majority can change the rules at will ``then there are no rules 
except the transient unregulated wishes of a majority of whatever 
quorum is temporarily in control of the Senate.''
  Senator Vandenburg's words from 1949 have proven to be prophetic.
  Additionally, when he was a Member of the Senate in 2005, President 
Obama said ``What [the American people] don't expect is for one party--
be it Republican or Democrat--to change the rules in the middle of the 
game.'' That is exactly what his party did today--and they did so with 
the President's full support.
  The American people will not be deceived--the Majority Leader's 
exercise of the ``nuclear option'' today is merely an attempt to divert 
their attention from Obamacare's failure to launch and the President's 
failure to keep his word to the American people on whether they can 
keep health care plans they already have. Republicans will, however, 
come together to maintain the American people's focus on these issues 
and on solving problems they are confronted with everyday--on health 
care reform, economic growth, runaway deficit-spending, and an 
unsustainable national debt that threatens future generations. 
Unfortunately, in his desperation to divert everyone's attention from 
Obamacare, the majority leader abused his position to decimate the 
integrity of the institution he is supposed to serve and continues to 
plunge this institution into a hopeless abyss of distrust and 
partisanship. These are circumstances that can be remedied by nothing 
less than a change in the majority in the Senate and its leadership. I 
remain dedicated towards achieving that outcome.
  It is unfortunate we are in this position today. Numerous times over 
the years, the Senate has come to a standstill over nominees--whether 
they were judicial or executive branch. That gridlock inevitably leads 
to threats from the majority to use the ``nuclear option''--to change 
the rules of the Senate to strip the minority party of their right to 
filibuster certain nominees. I opposed using the nuclear option back 
when my party had the majority, and I oppose it today.
  I think the Majority Leader made a huge mistake today.
  Senator Vandenberg:

       . . . I continue to believe that the rules of the Senate 
     are as important to equity and order in the Senate as is the 
     Constitution to the life of the Republic, and that those 
     rules should never be changed except by the Senate itself, in 
     the direct fashion prescribed by the rules themselves.

  Senator Vandenberg continued:

       I have heard it erroneously argued in the cloakrooms that 
     since the Senate rules themselves authorize a change in the 
     rules through due legislative process by a majority vote, it 
     is within the spirit of the rules when we reach the same net 
     result by a majority vote of the Senate upholding a 
     parliamentary ruling of the Vice President which, in effect, 
     changes the rules. This would appear to be some sort of 
     doctrine of amendment by proxy. It is argued that the Senate 
     itself makes the change in both instances by majority vote; 
     and it is asked, what is the difference? Of course, this is 
     really an argument that the end justifies the means.

  Senator Vandenberg continued:

       We fit the rules to the occasion, instead of fitting the 
     occasion to the rules. Therefore, in the final analysis, 
     under such circumstances, there are no rules except the 
     transient, unregulated wishes of a majority of whatever 
     quorum is temporarily in control of the Senate. That, Mr. 
     President, is not my idea of the greatest deliberative body 
     in the world. . . . No matter how important [the pending 
     issue's] immediate incidence may seem to many today, the 
     integrity of the Senate's rules is our paramount concern, 
     today, tomorrow, and so long as this great institution lives.

  He concluded, with that ``one consideration'':

       What do the present Senate rules mean; and for the sake of 
     law and order, shall they be protected in that meaning until 
     changed by the Senate itself in the fashion required by the 
     rules?
       . . . [T]he rules of the Senate as they exist at any given 
     time and as they are clinched by precedents should not be 
     changed substantively by the interpretive action of the 
     Senate's Presiding Officer, even with the transient sanction 
     of an equally transient Senate majority. The rules can be 
     safely changed only by the direct and conscious action of the 
     Senate itself, acting in the fashion prescribed by the rules. 
     Otherwise, no rule in the Senate is worth the paper it is 
     written on, and this so-called ``greatest deliberative body 
     in the world'' is at the mercy of every change in 
     parliamentary authority.

  According to CRS, proposals to limit Senate debate are as old as the 
Senate itself. Over the 224-year history of the body, numerous 
procedures have been proposed to allow the Senate to end discussion and 
act. The most important debate-limiting procedure enacted was the 
adoption in 1917 of the ``cloture rule,'' codified in paragraph 2 of 
Senate Rule XXII. Under the current version of this rule, a process for 
ending debate on a pending measure or matter may be set in motion by a 
supermajority vote of the Senate.

       At times, Senators of both political parties have debated 
     the merits of the Senate's tradition of free and unlimited 
     debate. These debates have occurred at different times and 
     under different sets of circumstances as Senators attempted, 
     for example, to prevent filibusters of civil rights measures, 
     pass consumer protection legislation, or secure the 
     confirmation of judicial or executive branch nominations.
       Although many attempts have been made to amend paragraph 2 
     of Rule XXII, only six amendments have been adopted since the 
     cloture rule was enacted in 1917: those undertaken in 1949, 
     1959, 1975, 1976, 1979, and 1986. Each of these changes was 
     made within the framework of the existing or ``entrenched'' 
     rules of the Senate, including Rule XXII.
       In 1949, the cloture rule was amended to apply to all 
     ``matters,'' as well as measures, a change that expanded its 
     reach to nominations, most motions to proceed to consider 
     measures, and other motions. A decade later, in 1959, its 
     reach was further expanded to include debate on motions to 
     proceed to consider changes in the Senate rules themselves. 
     The threshold for invoking cloture was lowered in 1975 from 
     two-thirds present and voting to three-fifths of the full 
     Senate except on proposals to amend Senate rules. In a change 
     made in 1976, amendments filed by Senators after cloture was 
     invoked were no longer required to be read aloud in the 
     chamber if they were available at least 24 hours in advance.
       In 1979, Senators added an overall ``consideration cap'' to 
     Rule XXII to prevent so-called post-cloture filibusters, 
     which occurred when Senators continued dilatory parliamentary 
     tactics even after cloture had been invoked. In 1986, this 
     ``consideration cap'' was reduced from 100 hours to 30 hours.

  At various times I have been a part of bipartisan groups of Senators 
who were able to come together and negotiate agreements to end the 
gridlock surrounding nominees, avert the nuclear option, and allow the 
Senate to move forward with our work on behalf of the American people. 
My work in these groups--often referred to as ``gangs''--has won me 
both praise and condemnation, and has often put me at odds with some in 
my own party.
  In 2005 for instance, I joined 13 of my colleagues in an agreement 
that allowed for votes on three of President Bush's judicial nominees 
who were

[[Page S8435]]

being filibustered by the Democrats--who were in the minority at that 
time. Part of that agreement addressed future nominees. It stated:

       ``Signatories will exercise their responsibilities under 
     the Advice and Consent Clause of the United States 
     Constitution in good faith. Nominees should only be 
     filibustered under extraordinary circumstances, and each 
     signatory must use his or her own discretion and judgment in 
     determining whether such circumstances exist.''

  In January of this year I began working with like-minded members of 
both parties to diffuse legislative gridlock and to meet the goals of 
making it easier for the majority to bring legislation to the floor 
while also making it easier for a Member of the minority to offer 
amendments to that legislation. Having a robust amendment process, 
especially on legislation of major consequence, is how the Senate has 
traditionally operated. It is something that has been sorely lacking 
for the last several years. And it is something that, when it has 
occurred, has invariably led to legislative achievement.
  And again in July of this year the Senate faced gridlock over the 
President's nominees to the National Labor Relations Board--NLRB. I 
joined with Members on both sides to come up with a reasonable 
compromise which allowed for votes of the President's nominees.
  My colleagues in the majority are mistaken if they assume that these 
agreements have meant that we, the minority party, have surrendered our 
right to filibuster nominees in certain circumstances. The exact 
opposite is true. These agreements were negotiated precisely to protect 
the rights of the minority to filibuster nominations in good faith 
where the minority finds that doing so is warranted under the 
circumstances.
  I am disappointed my colleagues on the other side have taken this 
step today. I would argue that our side, led by Senator McConnell, has 
been very accommodating in helping to secure cloture on numerous 
nominees. The fact that we have exercised our rights in several 
instances should not deter from that fact, and is certainly not 
deserving of this retaliatory action.
  I have worked to end the stalemates over nominees, not for praise or 
publicity, but to retain the rights of the minority, and to help return 
the Senate to the early practices of our government and to reduce the 
rancor and distrust that unfortunately accompanies the advice and 
consent process in the Senate. I fear that today's action by the 
majority will result in even more discord in this body.
  Mr. HATCH. Madam President, today we face a real crisis in the 
confirmation process, a crisis concocted by the majority to distract 
attention from the Obamacare disaster and, in the process, consolidate 
more power than any majority has had in more than 200 years. This 
crisis was created by a majority that wants to win at all cost, for 
whom the political ends justify any means whatsoever. The two parts of 
this crisis are what the majority is doing and how they are doing it.
  What the majority is doing is terminating the minority's ability to 
filibuster judicial nominees. If anyone thought that judicial 
filibusters were so easy that the minority has been doing it 
indiscriminately, they would be wrong. It is harder to filibuster 
judges today than at any time since the turn of the 19th century. And 
the truth is that Democrats are now terminating a practice that they 
created and that they have used, by orders of magnitude, far more than 
Republicans.
  In February 2001, just after President George W. Bush took office, 
Democrats vowed to use ``any means necessary'' to defeat his judicial 
nominees. That is one promise Democrats kept. They pioneered using the 
filibuster to defeat majority-supported judicial nominees in 2003. In 
fact, 73 percent of all votes for judicial filibusters in American 
history have been cast by Democrats.
  By this same point under President Bush, the Senate had taken 26 
cloture votes on judicial nominees, more than twice as many as have 
occurred under President Obama. Under President Bush, 20 of those 
cloture votes failed, nearly three times as many as under President 
Obama. Democrats set a record for multiple filibusters against the same 
nominee that still stands today. They filibustered the nomination of 
Miguel Estrada, the first Hispanic nominee to the U.S. Court of Appeals 
for the DC Circuit, seven times.
  Individual Democratic Senators took full advantage of the judicial 
filibuster that they now are terminating. The majority leader, the 
majority whip, and the Judiciary Committee chairman together voted 82 
times to filibuster Republican judicial nominees. In contrast, the 
minority leader, minority whip, and Judiciary Committee ranking member 
have together voted only 29 times to filibuster Democratic judicial 
nominees. For those same Democratic Senators to now take away from 
others the very tactic that they invented and used so liberally is 
beyond hypocritical.
  The other part of this crisis is how the majority is terminating the 
judicial filibuster. The title ``nuclear option'' has been given to two 
methods by which a simple majority can change how the Senate does 
business. The first method has never been tried and can occur, if at 
all, only at the beginning of a new Congress. Because this method would 
actually change the Senate's written rules, it would be a public 
process involving a resolution and examination by the Rules Committee. 
Republicans considered using this method at the beginning of the 110th 
Congress but did not do so.
  The majority today is instead using the second method, which requires 
only a ruling from whoever is presiding over the Senate. It is a pre-
scripted parliamentary hit-and-run, over in a flash and leaving Senate 
tradition and practice behind like so much confirmation roadkill. This 
would be the wrong way to address even a real confirmation crisis, let 
alone the fake one created by the majority today.
  The majority, it seems, just does not like the way our system of 
government is designed to work. I have been in the majority and the 
minority several times each, more than enough to experience that the 
rules, practices, and traditions of this body can annoy the majority 
and empower the minority. That is how this body is designed to work as 
part of the legislative branch. But the majority today wants to have it 
all. They are denying to others the very same tools that they used so 
aggressively before.
  This year, the Senate has confirmed more than twice as many judges 
than at the start of President Bush's second term. We have confirmed 
nine appeals court judges so far this year, a confirmation rate 
exceeded only a handful of times in the 37 years I have served in this 
body. President Obama has already appointed one-quarter of the entire 
Federal judiciary.
  But that is not enough for this majority. In order to clear the way 
for winning every confirmation vote every time, Democrats set up a 
confrontation over nominees to the DC Circuit. They knew that the DC 
Circuit did not need more than the eight active judges it now has. How 
did they know? Because the very same standards they used in 2006 to 
oppose Republican nominees to that court told them so.
  In 2006, Democrats opposed more DC Circuit nominees because written 
decisions per active judge had declined by 17 percent. Since 2006, 
written decisions per active judge have declined by an even greater 27 
percent. In 2006, Democrats opposed more DC Circuit appointments 
because total appeals had declined by 10 percent. Since 2006, total 
appeals have declined by an even greater 18 percent. The DC Circuit's 
caseload not only continues to decline, but is declining faster than 
before.
  In 2006, Democrats opposed more DC Circuit appointments because there 
were 20 judicial emergency vacancies and there were nominees for only 
60 percent of them. Since 2006, judicial emergency vacancies have 
nearly doubled and the percentage of those vacancies with nominees has 
declined to less than 50 percent.
  Judiciary Committee Democrats put those standards in writing in 2006. 
None of them, including the four who still serve on the Judiciary 
Committee today, have either said they were wrong in 2006 or explained 
why different standard should be used today. They have not done so 
because this about-face, this double-standard, is a deliberate ploy to 
create an unnecessary and fake confirmation confrontation.
  I have to hand it to my Democratic colleagues because reality 
television cannot hold a candle to this saga.

[[Page S8436]]

Democrats first abandoned the arguments they used against Republican 
nominees to the DC Circuit in order to create a fake confrontation. 
Then they ``solve'' this confrontation by terminating judicial 
filibusters that they once used against Republican nominees.
  The filibuster has been an important--some would say a defining--
feature of how this body operates for more than 200 years. It has 
always annoyed the majority because it empowers the minority. Both 
parties have used it, both parties have criticized it. But no majority 
has done what Democrats have done today. They have fundamentally 
altered this body, they have in the most disingenuous way done long 
term institutional damage for short term political gain. This majority 
wants everything to go their way, and will do anything to make that 
happen.
  The majority created this fake confirmation crisis for two reasons. 
First, they want to stack the DC Circuit with judges who will approve 
actions by the executive branch agencies that President Obama needs to 
push his political agenda. Second, they want to distract attention from 
the Obamacare disaster. I think this heavy-handed move will have the 
opposite effect on both counts. Just as both parties have used the 
filibuster to stop certain judicial nominees, both parties will use the 
absence of the filibuster to appoint certain judicial nominees. And now 
that the majority has crossed this parliamentary Rubicon, we can indeed 
focus again on what Obamacare is doing to American families. This is a 
sad day for the Senate, for the judiciary, and for the American people 
who want to see their elected representatives act on integrity and 
principle rather than use gimmicks and power plays.
  Mr. UDALL of New Mexico. Madam President, today the Senate took an 
unusual step to change our rules with a simple majority vote. I say 
unusual step, and not unprecedented, because it was something the 
Senate has done on many occasions in the past. Like those previous 
changes, the action we took was not intended to destroy the uniqueness 
of the Senate but instead was meant to restore the regular order of the 
body.
  I believe, as I have stated many times since coming to the Senate, 
that the best way to amend the rules is by having an open debate at the 
beginning of each new Congress and holding a majority vote to adopt the 
rules for that Congress. I, along with Senators Harkin and Merkley, 
tried to do that at the beginning of this Congress and the last. 
Ultimately we were unsuccessful in achieving the real reforms we 
wanted, including a talking filibuster. But there was some hope that 
the debate highlighted some of the most egregious abuses of the rules 
and led to an agreement that both sides would strive to restore the 
respect and comity that is often lacking in today's Senate. 
Unfortunately, that agreement rapidly deteriorated and the partisan 
rancor and political brinksmanship quickly returned.
  As expected, many of my Republican colleagues called today's action 
by the majority a power grab and ``tyranny of the majority.'' They 
decried the lack of respect for minority rights. I do believe that we 
must respect the minority in the Senate, but that respect must go both 
ways. When the minority uses their rights to offer germane amendments, 
or to extend legitimate debate, we should always respect such efforts. 
But that is not what we have seen. Instead, the minority often uses its 
rights to score political points and obstruct almost all Senate action. 
Instead of offering amendments to improve legislation, we see 
amendments that have the sole purpose of becoming talking points in 
next year's election. Instead of allowing up or down votes on qualified 
nominees, we see complete obstruction to key vacancies. It is hard to 
argue that the majority is not respecting the traditions of the Senate 
when the minority is using this body purely for political gain.
  During the debate over rules reform we had in January, many of my 
colleagues argued that the only way to change the Senate Rules was with 
a two-thirds supermajority. As we saw today, that simply is not true. 
Some call what occurred the ``Constitutional Option,'' while others 
call it the ``Nuclear Option.'' I think the best name for it might be 
the ``Majority Option.'' As I studied this issue in great depth, one 
thing became very clear. Senator Robert Byrd may have said it best. 
During a debate on the floor in 1975, Senator Byrd said, ``at any time 
that 51 Members of the Senate are determined to change the rule . . . 
and if the leadership of the Senate joins them . . . that rule will be 
changed.'' That is what happened today.
  We keep hearing that any use of this option to change the rules is an 
abuse of power by the majority. However, a 2005 Republican Policy 
Committee memo provides some excellent points to rebut this argument.
  Let me read part of the 2005 Republican memo:

       ``This constitutional option is well grounded in the U.S. 
     Constitution and in Senate history. The Senate has always 
     had, and repeatedly has exercised, the constitutional power 
     to change the Senate's procedures through a majority vote. 
     Majority Leader Robert C. Byrd used the constitutional option 
     in 1977, 1979, 1980, and 1987 to establish precedents 
     changing Senate procedures during the middle of a Congress. 
     And the Senate several times has changed its Standing Rules 
     after the constitutional option had been threatened, 
     beginning with the adoption of the first cloture rule in 
     1917. Simply put, the constitutional option itself is a 
     longstanding feature of Senate practice.
       The Senate, therefore, has long accepted the legitimacy of 
     the constitutional option. Through precedent, the option has 
     been exercised and Senate procedures have been changed. At 
     other times it has been merely threatened, and Senators 
     negotiated textual rules changes through the regular order. 
     But regardless of the outcome, the constitutional option has 
     played an ongoing and important role.''

  The memo goes on address some ``Common Misunderstandings of the 
Constitutional Option.''
  One misunderstanding addressed, which we heard today is that, ``The 
essential character of the Senate will be destroyed if the 
constitutional option is exercised.''
  The memo rebuts this by stating that ``When Majority Leader Byrd 
repeatedly exercised the constitutional option to correct abuses of 
Senate rules and precedents, those illustrative exercises of the option 
did little to upset the basic character of the Senate. Indeed, many 
observers argue that the Senate minority is stronger today in a body 
that still allows for extensive debate, full consideration, and careful 
deliberation of all matters with which it is presented.''
  Changing the rules with a simple majority is not about exercising 
power, but is instead about restoring balance. There is a fine line 
between respecting minority rights and yielding to minority rule. When 
we cross that line, as I believe we have many times in recent years, 
the majority is within its rights to restore the balance. This is not 
tyranny by the majority, but merely holding the minority accountable if 
it crosses that line and makes the Senate a dysfunctional body. I would 
expect the same if my party was in the minority and we were abusing the 
rules.
  Many of my colleagues argue that the Senate's supermajority 
requirements are what make it unique from the House of Representatives, 
as well as any other legislative body in the world. I disagree. If you 
talk to the veteran Senators, many of them will tell you that the need 
for 60 votes to pass anything or confirm nominees is a recent 
phenomenon. Senator Harkin discussed this in great detail during our 
debate in January and I highly recommend reading his statement.
  I think this gets at the heart of the problem. We are a unique 
legislative body, but not because of our rule book. We have recently 
devolved into a body that our Founders never intended. Rather than one 
based on mutual respect that moves by consent and allows majority votes 
on almost all matters, we have become a supermajoritarian institution 
that often does not move at all.
  With all of the economic issues we face, our country cannot afford a 
broken Senate. Both sides need to take a step back and understand that 
what we do on the Senate floor is not about winning or keeping the 
majority next November, but about helping the country today.
  Today's vote to change the rules is a victory for all Americans who 
want to end obstruction and return to a government that works for them. 
Americans sent us here to get things done, but in recent years, the 
minority has filibustered again and again--not to slow action out of 
substantive concerns, but

[[Page S8437]]

for political gain. Any President--Democrat or Republican--should be 
able to make their necessary appointments.
  This change finally returns the Senate to the majority rule standard 
that is required by the Constitution when it comes to executive branch 
and judicial nominees. With this change, if those nominees are 
qualified, they get an up-or-down vote in the Senate. If a majority is 
opposed, they can reject a nominee. But a minority should not be able 
to delay them indefinitely. That is how our democracy is intended to 
work.
  New Mexicans--all Americans--are tired of the gridlock in Washington. 
The recent filibuster of three DC Circuit nominees over the last 4 
weeks was not the beginning of this obstruction. It was the final straw 
in a long history of blocking the President's nominees. Doing nothing 
was no longer an option. It was time to rein in the unprecedented abuse 
of the filibuster, and I am relieved the Senate took action today.

                          ____________________