[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
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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
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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.
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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
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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.
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