[Congressional Record Volume 159, Number 175 (Wednesday, December 11, 2013)]
[Senate]
[Pages S8750-S8757]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF BRIAN MORRIS TO BE UNITED STATES DISTRICT JUDGE FOR THE
DISTRICT OF MONTANA
The PRESIDING OFFICER. The clerk will report the nomination.
The bill clerk read the nomination of Brian Morris, of Montana, to be
United States District Judge for the District of Montana.
The PRESIDING OFFICER. Pursuant to the provisions of S. Res. 15 of
the 113th Congress, there will now be 2 hours of postcloture
consideration of the nomination equally divided in the usual form.
The majority leader.
Mr. REID. Mr. President, it is my understanding there is 2 hours
equally divided; is that right?
The PRESIDING OFFICER. The leader is correct.
Mr. REID. I yield back 59 minutes.
The PRESIDING OFFICER. The time is yielded back.
The Senator from Florida.
Space Launch Liability Indemnification Extension Act
Mr. NELSON. Mr. President, as in legislative session, I ask unanimous
consent that the Senate proceed to the immediate consideration of H.R.
3547, which is at the desk.
The PRESIDING OFFICER. The clerk will report the bill by title.
The bill clerk read as follows:
A bill (H.R. 3547) to extend the application of certain
space launch liability provisions through 2014.
There being no objection, the Senate proceeded to consider the bill.
Mr. NELSON. Mr. President, today, I am asking for unanimous consent
to pass H.R. 3547, as amended, a bill to extend government liability,
subject to appropriation, for certain third-party claims arising from
commercial space launches. The bill supports the competitiveness of the
United States commercial space industry.
This industry, which grew in part out of the successes of NASA, is
vital both to the economy and to national security. Our U.S. space
companies offer us new opportunities to send astronauts into space on
U.S.-built vehicles and to continue launching communications satellites
and conducting important scientific research on the International Space
Station.
This bill helps to ensure the strength of the space industry by
continuing to provide Federal launch liability protection from third-
party losses for commercial launches. Congress first established this
indemnification regime in
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1988 and has seen the need to extend the policy many times since then.
It is important to note that it has never cost the United States a
single dime.
This indemnification helps domestic launch companies compete in the
global launch market. Many international cornpetitors enjoy similar
protections in their various home nations.
However, indemnification protection is set to expire on December 31st
of this year. Without indemnification, each company would ``bet the
company'' every time they launch.
As chairman of the Science and Space Subcommittee, I have worked with
other Senators to thoroughly consider this issue. In a hearing this
May, we discussed indemnification in detail. It was clear that
extending indemnification was necessary.
This bill therefore extends the indemnification for 3 years, until
2016, giving Congress the ability to continue to review this policy
while providing the commercial space industry the stability it needs.
I would like to especially thank Senator Thune and his committee
staff for their work on this bill. I would also like to thank Senators
Cruz, Feinstein, Heinrich, Kaine, Rubio, Thune, Mark Udall, Tom Udall,
Warner, and Wicker, all of whom worked with me on this effort.
Mr. NELSON. Mr. President, I ask unanimous consent that the Nelson
amendment which is at the desk be agreed to; the bill, as amended, be
read a third time, the title amendment be agreed to, and the motion to
reconsider be considered made and laid upon the table with no
intervening action or debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 2544) was agreed to, as follows:
(Purpose: In the nature of a substitute)
Strike all after the enacting clause and insert the
following:
SECTION 1. LAUNCH LIABILITY EXTENSION.
Section 50915(f) of title 51, United States Code, is
amended by striking ``December 31, 2013'' and inserting
``December 31, 2016''.
The amendment was ordered to be engrossed and the bill to be read a
third time.
The bill was read the third time.
The bill (H.R. 3547), as amended, was passed.
The amendment (No. 2545) was agreed to, as follows:
(Purpose: To amend the title)
Amend the title so as to read: ``A bill to extend
Government liability, subject to appropriation, for certain
third-party claims arising from commercial space launches.''.
Mr. NELSON. Mr. President, what we have just passed is the
indemnification bill on commercial space launches.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. NELSON. I thank the Chair.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. HOEVEN. Mr. President, I and my colleagues stand here holding the
floor in defense of fair and free debate, and the longstanding
traditions of the Senate that promote consensus.
We are here working on nominations because the majority leader has
determined that is the agenda for today. But there are important issues
we need to move to: the Defense reauthorization bill, the Water
Resources Development Act, the farm bill, the budget, and other vitally
important legislation. We need to move to these bills and we need to
deal with them in a bipartisan way. Instead, we continue to work on
nominees. We are working on nominees without the discussion and the
debate and the consideration and, most importantly, without that
bipartisan consensus which has always been a hallmark of the Senate.
Because of the unilateral change to the longstanding rules of the
Senate, that consensus is no longer required for advice and consent; a
simple partisan majority will do.
I would use time today to talk about need for bipartisanship,
bipartisanship in nominations, but also bipartisanship in the important
legislation that we need to address for the good of our country,
legislation such as the right kind of health care reform. I have
provided real-life stories from citizens from my State about the impact
that the Affordable Care Act, ObamaCare, is having on them and their
lives and why we need to replace it with market-based reforms, a step-
by-step comprehensive approach that fosters choice and competition. We
have put forward proposals to do that.
I have also used time today to talk about other important issues that
we need to advance on a bipartisan basis; for example, the farm bill.
We need a 5-year farm bill. We are currently operating under an
extension. That extension expires at the end of the year. We need to
get a farm bill in place, and a farm bill is a great example of how we
do things on a bipartisan basis, not only in the Senate but also in the
House.
I wish to talk about another subject that is vitally important to our
country, to our economy, to job creation, and to national security,
that also needs to be advanced and needs to be advanced in a bipartisan
way, and that is energy.
I want to provide a specific example; that is, the Keystone XL
Pipeline. I know the Presiding Officer wishes to see that project
approved. That is the point. This is a project that will create jobs,
create economic activity, it will create greater energy security, it is
something that we can work on with our closest friend and ally in the
world, Canada. It is something that goes to national security so we are
no longer dependent on the Middle East for oil, and it is something
that is supported on a bipartisan basis and there is strong support
from the American people.
The polls show somewhere between 70 and 80 percent of the American
public supports this project and wants to see it move forward.
It has now been more than 5 years since the permit applications were
submitted to the State Department for the Keystone XL Pipeline
project--more than 5 years in the application process and still no
decision--an exhaustive review process, including five environmental
impact statements, showing no significant impact to the environment.
The most recently issued draft statement was only last spring. The
consent of every single State along the route of the pipeline is in
place. Every single State on the route supports and approves the
project, with the backing of a majority of Congress. Legislation to
approve the project has passed in the House and we have passed it in
the Senate only to have the President turn it aside.
As I said a only minute ago, it has the support of the American
people. More than 70 percent--in the most recent poll--of the American
people support moving forward with this project. Despite all of this
support, the Keystone XL Pipeline project is still awaiting decision
from the President of the United States.
The long wait for approval is troubling enough, but it represents a
larger issue for our Nation and begs a bigger question for all of us
who serve our States and the American people in this institution: How
will America ever build an all-of-the-above energy policy if the
President takes more than 5 years to approve only one piece of a
comprehensive plan?
The Presiding Officer has seen this issue before in his State when it
comes to the Alaska pipeline, how for years and years it was worked on
until it was finally approved. Once approved, not only is it a vitally
important piece of infrastructure for the State of Alaska, but contrary
to all the concerns that were raised in regard to the Alaska pipeline,
such as the environmental concerns, it has proven to work and work very
well.
They addressed the concerns and the project was approved. The same is
true for the Keystone XL Pipeline.
To recount briefly, this $7 billion, 1,700-mile high-tech pipeline
will carry oil not only from Alberta, Canada, to refineries in Oklahoma
and the Texas Gulf Coast, but it will also carry growing quantities of
sweet crude from the Bakken oil fields in North Dakota, my State, and
also Montana--light, sweet, Bakken crude, the highest quality oil
produced.
Even by modest estimates it will create more than 40,000 jobs. There
have been a lot of estimates out there, some much higher. But the State
Department itself, the administration's own State Department has come
out after more than 5 years of study and said that this project will
create more than 40,000 jobs. At a time when unemployment is still 7
percent, these are good jobs, jobs that put Americans back to work.
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It will create more than 40,000 jobs, boost the American economy, and
raise much-needed revenues for States and the Federal Government. It is
not raising revenues by raising taxes, it is raising revenues through
economic growth. That is the way to do it--not higher taxes but through
economic growth.
Further, and perhaps most importantly, it will help put our country
within striking range of a long-sought goal, a vitally important goal
for our country, true energy security. For the first time in
generations, the United States--with its friend and ally Canada--will
have the capacity to produce more energy than we use, truly, North
American energy independence, eliminating our reliance on oil from the
Middle East, Venezuela, and other volatile parts of the world. This is
something Americans very much want.
When we see in the polls they support this project by more than 70
percent, it is with a clear recognition of what are we doing getting
oil from the Middle East when we should be getting it from ourselves in
this country and from our closest friend and ally Canada. We absolutely
can do it, we can do it to an extent that is beyond our needs, and we
can do it in short order, easily within the next 5 years if we approve
projects such as this one.
Now we produce about 60 percent of our fuel domestically. We still
import 40 percent, much of it from the Middle East, and other areas of
the world that are hostile to our interests.
The question is why would we want to import oil from an unstable
region of the world when we can import it and when we can work with our
closest friend and ally Canada, as well as move it from parts of our
country that produce that oil, such as my State and others, and
transport it to our refineries.
The 40 percent that we don't produce domestically has to come from
someplace else. Why not from our closest friend and ally Canada. With a
true all-of-the-above approach to energy development in this country,
including projects such as the Keystone XL Pipeline project, I
absolutely believe we can be energy independent within 5 years.
The argument has been advanced that the oil sands will increase
carbon emissions and that failing to build the Keystone XL Pipeline
will somehow reduce emissions.
Let us look at the facts. Let us look at this claim more closely.
Today an ever increasing percentage of new recovery in the oil sands is
being accomplished in situ. That means with technology that makes the
oil sands carbon footprint comparable to conventional drilling.
In fact, the oil sands industry has reduced greenhouse gas emissions
per barrel of oil produced by an average of 26 percent since 1990 and
with some facilities achieving reductions as high as 50 percent--a 50-
percent reduction in carbon emissions. Today heavy crude from the
Middle East--and even from California--produces more carbon emissions
over its life cycle than the Canadian oil sands.
Also, we need to factor in that if the pipeline is not built from
Alberta to the United States, a similar pipeline will be built to
Canada's Pacific coast.
What does that mean? That means from there the oil will be shipped on
tankers across the Pacific Ocean, a much larger and more sensitive
ecosystem than the Sandhills--which, of course, have been at issue in
terms of the route of the pipeline. It will be shipped across the ocean
to be refined in facilities in China with weaker environmental
standards and more emissions than our refineries in the United States.
The United States, moreover, will continue to import its oil from the
Middle East, again on tankers so that again has to be transported
across the ocean. Factor in the cost of trucking and railing the
product to market overland, and the result, contrary to the claims of
opponents, will be more emissions, more CO2 emissions, and a
less secure distribution system without the Keystone XL Pipeline than
we will have if it is built.
In fact, the administration's own State Department has released three
draft Environmental Impact Statements finding ``no significant
impacts'' on the environment.
Let me read that again. In fact, the administration's own State
Department has released three draft Environmental Impact Statements
finding ``no significant impacts'' on the environment.
What does the administration do? They delay and ask for another
Environmental Impact Statement.
What is going on?
In its latest analysis in March, the State Department concluded that
``there would be no substantive change in global greenhouse gas
emissions'' associated with the Keystone XL Pipeline.
That raises another important point. The White House has said
repeatedly they ``don't want to get ahead of the process,'' but the
President effectively abandoned the process more than 2 years ago when
he halted the project by executive action. Had he not, the State
Department, in keeping with the usual process, would have issued a
decision on the permit by December of 2011. That is according to a
letter that was sent to me by Secretary Hillary Clinton, Secretary of
State at that time, which she sent to me in August 2011.
I wish to point out that this body, the Senate, as well as the House
of Representatives, has embraced the Keystone XL project with
bipartisan majorities. Congress has expressed support for the Keystone
XL with two majority votes in the Senate and several bipartisan letters
to the President. The American people have also expressed overwhelming
support for the project, as I have stated.
In a Harris poll released this summer, 82 percent of voting Americans
voiced support for the Keystone XL Pipeline project. I want to
emphasize that and say it again. In a Harris poll released this summer,
82 percent of voting Americans voiced support for the Keystone XL
Pipeline project. According to Harris, 9 in 10 Republicans and nearly
80 percent of Democrats and independents believe the pipeline is in our
national interest.
In July, Senator Landrieu and I led a bipartisan group of our
colleagues to introduce a concurrent resolution declaring the Keystone
XL Pipeline project in the national interest of the United States and
calling on President Obama to approve it.
The resolution notes that every study conducted by the State
Department, including the Department's draft Environmental Impact
Statement issued in May, has found no significant impacts to the
environment.
This is the text of S. Con. Res. 21.
Expressing the sense of Congress that construction of the
Keystone XL Pipeline and the Federal approvals required for
the construction of the Keystone XL Pipeline are in the
national interest of the United States.
IN THE SENATE OF THE UNITED STATES
July 31, 2013
Ms. LANDRIEU (for herself, Mr. Hoeven, Mr. Pryor, Mr.
Donnelly, Mr. Begich, Ms. Heitkamp, Mr. Thune, Mr. Risch, Mr.
Cornyn, Mr. Johanns and Mr. Barrasso) [a bipartisan group]
submitted the following concurrent resolution; which was
referred to the Committee on Energy and Natural Resources.
CONCURRENT RESOLUTION
Expressing the sense of the Congress that construction of
the Keystone XL Pipeline and the Federal approval required
for the construction of the Keystone XL pipeline are in the
national interest of the United States.
Whereas safe and responsible production, transportation,
and use of oil and petroleum products provide the foundation
of the energy economy of the United States, helping to secure
and advance the economic prosperity, national security, and
overall quality of life in the United States;
Whereas the Keystone XL pipeline would provide short- and
long-term employment opportunities and related labor income
benefits, such as government revenues associated with taxes;
Whereas the State of Nebraska has thoroughly reviewed and
approved the proposed Keystone XL pipeline reroute,
concluding that the concerns of Nebraskans have had a major
influence on the pipeline reroute and that the reroute will
have minimal environmental impacts;
Whereas the Department of State and other Federal agencies
have conducted extensive studies and analysis over a long
period of time on the technical, environmental, social, and
economic impact of the proposed Keystone XL pipeline;
Whereas assessments by the Department of State found that
the Keystone XL pipeline is ``not likely to impact the amount
of crude oil produced from the oil sands'' and that
``approval or denial of the proposed Project is unlikely to
have a substantial impact on the rate of development in the
oil sands'';
Whereas the Department of State found that the incremental
life cycle greenhouse gas emissions associated with the
Keystone XL project are estimated in the range of 0.07
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to 0.83 million metric tons of carbon dioxide equivalents,
with the upper end of this range representing 12/1,000 of 1
percent of the 6,702,000,000 metric tons of carbon dioxide
emitted in the United States in 2011;
Whereas after extensive evaluation of potential impact to
land and water resources along the 875-mile proposed route of
the Keystone XL pipeline, the Department of State found,
``The analyses of potential impacts associated with
construction and normal operation of the proposed Project
suggest that there would be no significant impacts to most
resources along the proposed Project route (assuming Keystone
complies with all laws and required conditions and
measures).'';
Whereas the Department of State found that ``[s]pills
associated with the proposed Project that enter the
environment are expected to be rare and relatively small''
and that ``there is no evidence of increased corrosion or
other pipeline threat due to viscosity'' of diluted bitumen
oil that will be transported by the Keystone XL pipeline;
Whereas, the National Research Council convened a special
expert panel to review the risk of transporting diluted
bitumen by pipeline and issued a report in June 2013 to the
Department of Transportation in which the National Research
Council found that existing literature indicates that
transportation of diluted bitumen proposes no increased risk
of pipeline failure;
Whereas plans to incorporate 57 project-specific special
conditions relating to the design, construction, and
operations of the Keystone XL pipeline led the Department of
State to find that the pipeline will have ``a degree of
safety over any other typically constructed domestic
pipeline''; and
Whereas, the Department of State found that oil destined to
be shipped through the pipeline from the oil sands region of
Canada and oil shale deposits in the United States would
otherwise move by other modes of transportation if the
Keystone XL pipeline is not built: Now, therefore, be it
Resolved by the Senate (the House of Representatives
concurring), That it is the sense of Congress that--
(1) construction of the Keystone XL pipeline will promote
sound investment in the infrastructure of the United States;
(2) construction of the Keystone XL pipeline will promote
energy security in North America and will generate an
increase in private sector jobs that will benefit both the
regions surrounding the Keystone XL pipeline and the United
States as a whole; and
(3) completion of the Keystone XL pipeline is in the
national interest of the United States.
I have worked toward approval of the Keystone XL Pipeline--first as
the Governor of North Dakota and now as a Senator--because I believe it
is just the kind of project that will grow our economy and create the
jobs our country so desperately needs, and it will do so with good
environmental stewardship. At the same time, it will reduce our
dependence on the Middle East for oil, which is what the American
people have sought for decades.
The Keystone XL Pipeline project is long overdue. For the benefit of
our economy, our environment, and our long-term energy security, this
project needs to be approved and it needs to be approved without delay.
As I say, we can do these things. We can do these things and so much
more, but it takes a bipartisan effort. It takes bipartisanship. We
have to find a way to tackle these tough issues for the benefit of the
American people and we have to do it in a way that has always been the
hallmark of this institution--the Senate--and that is on a bipartisan
basis.
Earlier today I read accounts I received from citizens of my State
who have been impacted adversely by ObamaCare. ObamaCare is an example
of what I am talking about, an example of something that was passed on
a partisan basis rather than on a bipartisan basis. So when we look
across this great country, it is very understandable why the public
support is not there. This was a policy passed solely with votes from
one side of the aisle, in the House and in the Senate. We need to pass
legislation in a bipartisan way. We need policies for this country,
particularly on these big issues, that can garner bipartisan support if
we expect the American people to truly support the policies as well.
I would like to read several more accounts, true stories, that I have
received in my office from people from our State about the impact that
ObamaCare is having on their lives. The first one comes from Crystal,
ND. It is a frustrated senior, not eligible for Medicare, seeking ways
to cut back to afford ObamaCare. This individual writes:
Just who is this health care reform law helping? My
insurance broker, American Family, is no longer carrying
medical insurance--so they lose. The average American that
goes out and earns a paycheck--he loses. Doctors don't like
it, so how many new doctors will there be? I just got off the
phone with the insurance brokerage company that has taken
over my former broker's customers. I learned that if I sign
up before the end of the year, I can save by NOT having
maternity coverage (what a laugh!). But, after 2014, I HAVE
to have maternity coverage! Can you see all of us senior
citizens walking around pregnant? So, with the cheapest
coverage I WILL be paying $473 MORE per month than my current
coverage, and my premium will be $1,288.00 per month! That's
a 37% increase per month! Next year, the rate will increase
to cover maternity. And, if you have children under 18, you
HAVE to have dental, and maybe vision too. I already try to
conserve on our monthly expenses, have heat set to 55--and
when guests are here, I set it to 65. I turn lights off,
don't smoke, don't drink (even quit drinking pop). I don't
eat out, don't even go out to drive to get the mail every
day, and don't buy new clothes, and don't go to visit
family like I used to. What should I cut out of our
monthly expenses? Take weekly showers? Get the mail once a
week? Eat once a day? Hibernate? Get a third job? Cut out
the grandkids' events? So, ``affordable health care''. . .
. I wonder how many heart attacks there will be after
Americans open up their health insurance bill in 2014, and
even more in 2015! Cause it will be a shocker.
Here is another story from an independent North Dakotan in
Minnewaukan who suggests seceding from the Union over ObamaCare.
I would like you to know what the health care reform law is
doing for my family. The insurance company we have had since
1994 is no longer going to offer health insurance, starting
April 2014. When I called to get quotes to replace my current
health insurance policy, I learned I would have to pay $200
more for a plan with a deductible that is twice the amount
that I currently have. Then, when I eventually have to go on
an ObamaCare policy, I will have to pay for maternity, which
I haven't had for 17 years and have not needed. Plus, I will
have to pay for children's dental and vision, which my family
won't be able to use because my children are 18 and 20 years
old. The health reform insurance policy will cost me twice as
much as I am paying now. So, please tell me how this is going
to help me! The only thing this is doing is giving another
freebee to those who choose not to work. This is very
frustrating, and I am starting to believe that seceding from
this Union and making our country much better for the
residents of North Dakota. We certainly have enough of our
own resources to take care of ourselves. I hope you are
trying to change the health care reform bill.
Here is one from a hardware store owner who is unable to grow his
business due to ObamaCare.
I just received my renewal from Blue Cross Blue Shield for
my 5 employees, and the premium for the same coverage went up
from $2,179.50 per month to $3,090.40 per month. I am a small
town hardware store owner. Where is this money to come from?
I am so frustrated by the lack of understanding that our
country's government officials have regarding the policies
they create. It appears we all need to go on welfare [to
survive]. Most people [who] work and generate the money are
feeling hopeless. I don't think you have a clue as to the
frustration that is out here. I was looking to expand and
grow my business, but the drain I believe ObamaCare will have
on the already strained economy will be much greater than in
the Great Depression.
So, as a small business owner, why should I invest in the
future? So our U.S. Government can continue its ``business as
usual?'' I think not.
I present these stories and others I presented earlier in the day,
along with those from my colleagues, because they are real stories from
real Americans across the country who are suffering because of
ObamaCare. We have put forward the kind of market-based solutions to
replace ObamaCare that empower people--empower them to choose their own
health care insurance and their own health care provider--and we need
to go to work to provide the right kind of health care reform. We need
to do that on a bipartisan basis.
I think that by presenting these stories, it is not just a case of
Members of the Senate or Members of Congress saying: Hey, this is what
I think is happening. These are real stories. These are people telling
us what is happening to them in their lives and we need to take heed
and we need to address the very real and very valid concerns they are
raising and we can do it. We absolutely can do it.
I come back to where I started my comments after our last vote. We
are here today voting on nominations. Due to the change in the Senate
rules by the majority party, advise and consent no longer requires
participation or any votes whatsoever from the minority party. That
creates a situation now where judges, other nominees can be
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approved solely by one party. We have seen what happens when one party
and one party alone can confirm appointees or can pass laws such as
ObamaCare. It doesn't work. It doesn't work for our country. That is
why the Senate was set up to require bipartisanship, to require
consensus so as we pass the important policies and laws that will help
lift our country and move it forward, we have the broad base of support
from both sides of the aisle across this great Nation. That is what is
required to make things work.
That is why it is incumbent on all of us in this institution to reach
out and find ways to make sure we have that bipartisanship so we create
the kind of policies that will truly move our country forward. That is
what the American people have sent us here to do.
I see my esteemed colleague from the great State of Utah is on the
Senate floor and at this time I yield to him.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I have certainly enjoyed the remarks of the
distinguished Senator from North Dakota. He has done a terrific job in
the Senate and made a real difference, and I personally appreciate it
very much.
We all know we are here for one basic reason: I believe our friends
on the other side believe that by creating this kind of a fuss and
problem, they can get off of the issue of ObamaCare, which is a
disaster, and everybody knows it, including them.
The fact is that I think they have gone from one extreme debacle to
another in their desecration of this body by getting rid of a rule that
is absolutely critical to this body--a rule of protection to the
minority.
I can hardly wait for those on the other side of the aisle, who have
never been in the minority, to get in the minority and realize what
they have done is basically destroyed the thing which has made the
Senate the greatest deliberative body in the world.
The cloture rule--rule XXII--was put in place to allow the majority
to end filibusters. In the early part of the last century they couldn't
get anything done, so they came up with rule XXII so they could invoke
cloture, end the debate, and get back to whatever the Senate decided
was the appropriate business. It has worked amazingly well and it would
continue to work amazingly well, except for the fact that our
colleagues on the other side have made the Senate no better than the
House of Representatives.
The Senate was always supposed to be different from the House of
Representatives. It was supposed to be the body that would be more
deliberative. It was Washington who said to Jefferson that the Senate
is the saucer which cools the tea. They were right. The Senate is the
saucer which should cool the tea. It should cool debates around here.
But now it is just whatever the majority wants, and they vote in
unison. They vote in unison because they are supported in unison by a
number of very well-heeled groups, especially including the unions,
which Democrats are basically afraid of crossing. It is a pitiful
shame.
I would like to chat just a little bit about this filibuster because
it is a time-honored instrument which both sides have used. But I think
there have been gross misrepresentations of what the filibuster is by
the leadership of the other side, and these gross misrepresentations
should never have been spoken on the floor. I don't know how they keep
a straight face when they do it.
On November 21, 2013, the majority used a premeditative parliamentary
gimmick to change more than two centuries of Senate confirmation
practice. As a result, for the first time since 1806, the minority
cannot extend debate on any nominations except for those that go to the
Supreme Court. Democrats accomplished this on a purely party-line vote
and by a maneuver designed to avoid scrutiny.
It would be hard to imagine a crisis so grave, a conflict so
intractable that the only option was to fundamentally alter the very
nature of this institution and further politicize the very confirmation
process. I am here to say that the crisis the majority said could only
be solved that way never existed.
The majority leader claimed on November 21 that this crisis was, as
he put it, caused by ``unprecedented obstruction'' of nominations to
both the judicial and the executive branches.
More specifically, he said there had been 163 filibusters of judicial
and executive branch nominations, half of them during the Obama
administration.
By the way, that is totally false and they know it. I don't know how
they can stand on the floor and make these bald-faced assertions.
The only solution to the problem, the leader said, was simply to ban
nomination filibusters.
I notice the majority leader made no attempt to either define the
filibusters he was counting or to identify the nominations on his
filibuster list. That was an odd omission because doing so would surely
have proved his point. Wouldn't it? No.
There was a very good reason the majority leader simply threw out a
big number and did identify the filibusters he claimed justified
rigging the confirmation process. If he had simply listed those
filibusters, we all would have seen dozens and dozens of nominations
the Senate had confirmed, many without opposition at all.
Since I took my first oath of office on January 3, 1977, the Senate
has confirmed more than 1,700 nominations to the U.S. district courts,
the U.S. courts of appeal, and the U.S. Supreme Court, and they have
defeated two--two--in all of that time the last 37 years. We confirmed
78 percent by unanimous consent without any rollcall vote at all. Two-
thirds of the rollcall votes we did take were unanimous. Think about
that. Where is the problem?
No President gets every single appointment he or she wants, but every
President gets the vast majority.
During his first term, for example, President Obama was 30 percent
behind his predecessor in nominations. They were sloppy in putting
forth nominations. But he ended up only 10 percent behind in
confirmations. That could only mean the Senate handled his judicial
nominations efficiently.
During his second term, so far the Senate has confirmed more than
twice--twice--as many judicial nominees as it had by this point in
President Bush's second term.
The Congressional Research Service says the Senate is confirming
President Obama's appeals court nominees faster than the Senate
confirmed President Bush's. In fact, President Obama has already
appointed one-quarter of the entire Federal judiciary.
I can also comment on how executive branch nominations referred to
the Finance Committee have been handled. Nearly 80 percent of the
nominations sent to the committee during the 112th Congress have so far
been confirmed.
Looking at executive branch filibusters overall, the same Democratic
leaders who last month voted to abolish nomination filibusters voted to
filibuster President Bush's nominees to be Assistant Secretary of
Defense and EPA Administrators and twice voted to filibuster his
nominees to be a U.N. Ambassador.
They must have thought very differently back then about whether the
President deserves his team. We have heard a lot about that from
current Democrats. Their actions then spoke more loudly than their
words do today about whether they think all nominees do deserve an up-
or-down vote. Look at the past. Look at what they have done. It is
hypocritical.
However, the majority will not acknowledge those facts and others
like them because those facts do not fit the spin they are putting on
this.
It is hard, after all, to claim an obstruction crisis when so many
nominees are confirmed and are being confirmed. So the majority instead
makes a claim about what they call filibusters because that sounds bad
to most people, and most people will not know whether the claim is even
true. Calling something a filibuster does not make it so.
A filibuster occurs when the Senate cannot vote on passage of
legislation or confirmation of a nomination because an attempt to end
debate on it fails. That is why filibuster reform always focuses on
making it easier to end debate.
The filibuster rule XXII came about after the turn of the last
century because they couldn't get anything done in the Senate and they
needed a way of bringing things to cloture so they could vote. We are
headed into the same kind of disaster without this important rule.
It takes two steps to detect a filibuster--a cloture motion and a
cloture
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vote. You can't have a filibuster without both. As we can see, a vast
majority of what our leader has claimed are filibusters are not because
they haven't had a cloture vote.
A cloture motion is a request to end debate and a cloture vote
answers that request. A filibuster occurs when a cloture vote fails and
debate cannot be ended. That is the definition of a filibuster.
Some people listening to this might already be wondering whether
these details matter, whether the difference between a cloture motion
and a cloture vote or the definition of a filibuster are all that
important after all. I am here today to say these details do matter
because the truth matters.
The truth matters when Senators claim there is a crisis that needs a
solution when there isn't.
The truth matters when the majority prohibits the very tool they used
so successfully in the past against Republican nominees.
The truth matters when the entire confirmation process is going to be
rigged and the judiciary further politicized--such as the DC Circuit
Court of Appeals.
I have been on the Judiciary Committee 37 years. I chaired that
committee. I was ranking on that committee. I can tell you never in the
history of that committee has it been so brazenly ignored.
The truth matters because the American people need to know what their
Senators are doing.
The truth was in short supply on November 21. The majority leader
claimed 168 filibusters, but he was not counting filibusters at all.
The majority leader was counting cloture motions, not filibusters. He
had the habit of calling up a bill and almost immediately filing
cloture as though there was a filibuster, when nobody intended to
filibuster. Then, in prior years, he would fill the parliamentary tree
so in the greatest deliberative body in the world we could not have
amendments. The minority could not have amendments.
There is a time to fill the tree, but it is only after there has been
a full and fair debate and amendments have had their opportunity to be
brought forward. They do it to cut off amendments--unless the majority
leader approved of whatever the amendments were.
I think it is nice to protect your fellow Senators on the majority
side with legitimate ways of doing it, but this isn't one of them. That
alone is causing a lot of discontent on our side because the majority
leader was counting cloture motions, not filibusters, and claiming they
were filibusters when they weren't. He was counting requests to end
debate, not the answers to those requests.
Most people probably do not know that the majority leader files
nearly all cloture motions--as he did just a few days ago--by adding 10
more to the list. So if the majority leader claims there are too many
cloture motions filed on nominations, he has only himself to blame.
Under President Obama, half of the cloture motions filed on
nominations do not result in a cloture vote at all. The rest just
vanish into thin air, obviously, because they never should have been
filed in the first place. Yet that is a scheme used by the other side,
and then they claim this side is being obstructionists.
Two-thirds of the cloture votes that do occur on nominations pass.
There has been no discussion of that by the other side. Two-thirds of
them pass, preventing filibusters altogether.
Here is the filibuster fraud: The majority leader has been using the
cloture rule more effectively than in the past--or should I say more
obnoxiously than in the past--to prevent filibusters of President
Obama's nominations while telling us about unprecedented obstruction.
The truth is exactly the opposite of what he has claimed and what other
Democrats on the other side of the aisle have claimed.
Perhaps the most astounding fact of all is that nearly 90 percent of
Obama nominees to the executive or the judicial branch on whom cloture
motions were filed have been confirmed. The majority told us that this
was about obstruction, about how the minority was using the filibuster
to prevent President Obama from appointing people. It is no wonder that
the majority leader did not show the list of the nominations he claims
have been filibustered. The claims are a fraud.
The majority created this crisis and damaged this institution by
claiming that ending debate is really a filibuster and that confirming
nominations is really obstructing them. Up is down, left is right, and
confirmations are filibusters.
All of this is more than a little ironic since the Democrats were the
ones who pioneered using the filibuster to defeat majority-supported
judicial nominees. The first judicial nominee with clear majority
support to be defeated by a filibuster was Miguel Estrada in 2003, one
of the finest lawyers in the country. They didn't want him on the DC
Circuit Court of Appeals because they knew getting on that court is a
fast track to the U.S. Supreme Court. In fact, Democrats were so intent
on keeping him off the DC Circuit that they filibustered Miguel
Estrada, this Latino man, seven times--a record that stands to this
day. I know. I was there. I was fighting for Miguel Estrada, as were
all Republicans.
As of November 21, when the majority said there was an unprecedented
filibuster crisis, there had been 12 cloture votes on Obama judicial
nominations and 6 of them had failed. In other words, there was no
obstruction. At that same point in the Bush administration, there had
been 26 cloture votes on judicial nominations, and 20 of them had
failed. Democrats used the filibuster to defeat Republican nominees to
the Fifth Circuit, the Sixth Circuit, and the Ninth Circuit.
Three-quarters of all votes for judicial nomination filibusters in
American history have been cast by Democrats, and they have the gall to
stand on this floor and suggest that Republicans are using the
filibuster to stop nominees.
The majority leader alone--at least before complaining of too many
filibusters--voted no less than 26 times to filibuster Republican
judicial nominees. As I said, the same Democratic leaders abolishing
nomination filibusters today voted to filibuster President Bush's
nominees to be Assistant Secretary of Defense and EPA Administrator and
twice voted to filibuster his nominee to be United Nations Ambassador.
I do not know what the majority understands the word ``unprecedented''
to mean, but this certainly is not it. This is why the truth matters.
As of November 21, when the majority leader claimed that there had
been 168 nominations filibusters, only 56 cloture votes on executive or
judicial nominations had ever failed and only 17 of those filibustered
nominees had not been confirmed. The crisis that the majority claimed
turns out to be a myth, a tale for the fiction section of the library.
This is why the truth matters.
Let's not forget what the majority did on November 21. Rule XXII, the
one that provides a way to end debate, is a written rule, a time-
honored rule. It says what it says, and it says that ending debate on
any matter before the Senate, with the exception of rules changes,
requires three-fifths of all Senators. It said that on November 21, and
it says that today. The technical term for what the majority leader did
that day was to raise a point of order, but in practical terms, the
majority leader asked the Presiding Officer to say that three-fifths
actually means a majority vote. He might just as well have asked the
Presiding Officer to say that Christmas is on December 29 or that the
Nation's Capital is in Salt Lake City, UT. The Presiding Officer stated
the obvious, that three-fifths means three-fifths, because that is what
the rule says. That is what the Presiding Officer, advised by the
Parliamentarian of the Senate, said--three fifths means what it says:
three-fifths. That is what the rule says.
By a purely party-line vote, the majority said otherwise--that three-
fifths is actually a majority--by overruling their own colleague in the
Chair. This sounds absurd because it is. Now we are forced to act as if
we cannot read, to suspend the most basic ability to understand the
English language and set aside our common sense. We are forced to
pretend that the rules of this body say what they do not mean and mean
what they do not say. This, frankly, reminds me of ``The Wizard of
Oz,'' where Dorothy and her friends were before the image of what they
thought was the great and powerful Oz. Her dog Toto pulls on the
curtain to reveal a
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little man frantically operating dials and buttons and speaking into a
microphone. The image commands: ``Pay no attention to that man behind
the curtain.''
On November 21 the majority told each of us to pay no attention to
the three-fifths in the cloture rule. That was quite a trick. The real
question was why the majority would concoct such a fraud in order to
rig the confirmation process. What could be so important that the
majority would go through such contortions, peddle such myths, and play
such word games? It certainly was not to solve a filibuster crisis,
that is for sure. No, it was for a much more base political reason.
The President and the majority here in the Senate deliberately set up
this political confrontation in order to implement a political agenda
that could not get through Congress. That agenda requires actions and
decisions by the two groups of Federal officials who are not directly
accountable to the American people: bureaucrats in the executive branch
and judges in the judicial branch.
The President appoints those two categories of officials but only
with the consent of the Senate. For more than 200 years the process of
deciding whether to give that consent included the right of the
minority to slow things down and, yes, even block the most
controversial nominees.
I have given you the numbers. Only 17 executive or judicial nominees
who were filibustered were not eventually confirmed. But the majority
wants it all. They want a clear path to stacking the executive branch
with officials who will issue the rules and stacking the judicial
branch with judges who will approve those rules.
The DC Circuit Court of Appeals is a perfect illustration of where
much of the regulations are evaluated by the courts, and they want them
decided in favor of President Obama. They want the courts to legislate
from the bench that which they could never get through the Senate or
the House of Representatives. This is a power grab--nothing more,
nothing less. It appears that the ends justified the means, that short-
term political gains justified long-term institutional damage.
I urge my colleagues, from the freshmen to the senior Members, to
take some guidance from our own predecessors. Senator Mike Mansfield, a
leading Democrat, majority leader in the Senate, had served in the
minority and later became majority leader. In 1975, when Senators also
proposed forcing a rules change by simple majority, he said that this
tactic would ``destroy the very uniqueness of this body . . . and
diminish the Senate as an institution of this Government.'' It would,
he said, ``alter the concept of the Senate so drastically that I cannot
under any circumstances find any justification for it.'' That was the
Democratic leader in the Senate, a man of unquestionable integrity.
As I have explained here today, the majority has certainly not
provided any justification for doing away with the filibuster rule
either. There is no filibuster crisis. I think I have made that case.
There is only a desire by the majority to win every time, to have
everything they want when and how they want it. Most of the executive
and judicial branch nominations the majority claims were filibustered
were actually confirmed. Even in this town, known famously for
masterful spin, that will surely go down as legendary. The majority
abolished nomination filibusters by claiming nominations that were
confirmed were actually obstructed--when they were confirmed. This
amounts to filibuster fraud. That is why we are here today, because the
truth matters. The integrity of the Senate matters.
I can only hope there is time for those two concepts to still
prevail. What the Democrats have done here is not only extremely
dangerous, it is outrageous. They have taken one of the things that
really make the Senate the great body that it is and have desecrated
it. They have done it because a number of the Democrats over here have
never been in the minority. They do not realize how awful that rule-
change is. They do not realize that the filibuster is a rule of freedom
that protects the minority and makes the Senate debate on these
matters.
I once said I would fight to my death for the filibuster rule because
it is what makes the Senate different from the House of
Representatives. The House of Representatives is the people's body.
They can do anything once they get a rule and get 50 percent plus one
of the votes--anything. It was structured that way. The Senate was
structured another way. Our young new Senators on the other side don't
seem to understand that.
I have chatted with a number of more senior Senators who have been
through being in the minority, who have been through some of the
battles here. Let me tell you, they are as concerned as I am that this
body is totally damaged by this breaking of the rules, destroying the
rules for purely partisan purposes. They can talk about how they just
want the Senate to work all they want to. The Senate is never going to
work as well without this rule. The minority will never be protected as
well without this rule.
I have to say that I hope we can get this rule put back in place.
Even though it is a disadvantage to Republicans right now because they
now have three more liberal judges on the DC Circuit Court of Appeals,
which was divided four to four, Republicans appointees to Democrat
appointees--four to four. Now they stack it, the most important court
in the country as far as regulatory affairs are concerned and
administrative law is concerned, so they can pass through that court
the Obama administration's regulatory measures and desires without
having to face real debate.
There was a reason why the Founding Fathers created the three
separate governmental powers, because each of those powers is to
protect our country. They are making it so that regulatory matters,
administrative matters, and so forth there is really only one-sixth who
are Republicans.
Order for Correction
Mr. HATCH. Mr. President, there was an incorrect reference to the
House bill number in a consent agreement earlier today with respect to
the Fallen Firefighters Assistance Tax Clarification Act. I ask
unanimous consent that the previous order be modified to reflect the
correct House bill number--H.R. 3458.
The PRESIDING OFFICER. Is there objection? The Chair hears none, and
it is so ordered.
Mr. HATCH. I yield the floor.
The PRESIDING OFFICER. All postcloture time has expired.
The question is, Will the Senate advise and consent to the nomination
of Brian Morris, of Montana, to be United States District Judge for the
District of Montana? On this question the yeas and nays have been
ordered, and the clerk will call the roll.
The bill clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Mississippi (Mr. Blunt), the Senator from South Carolina
(Mr. Graham), the Senator from Oklahoma (Mr. Inhofe), the Senator from
Illinois (Mr. Kirk), and the Senator from Arizona (Mr. McCain).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 75, nays 20, as follows:
[Rollcall Vote No. 266 Ex.]
YEAS--75
Ayotte
Baldwin
Baucus
Begich
Bennet
Blumenthal
Booker
Boxer
Brown
Burr
Cantwell
Cardin
Carper
Casey
Coats
Coburn
Cochran
Collins
Coons
Cruz
Donnelly
Durbin
Feinstein
Flake
Franken
Gillibrand
Grassley
Hagan
Harkin
Hatch
Heinrich
Heitkamp
Heller
Hirono
Johnson (SD)
Johnson (WI)
Kaine
King
Klobuchar
Landrieu
Leahy
Lee
Levin
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Moran
Murkowski
Murphy
Murray
Nelson
Portman
Pryor
Reed
Reid
Rockefeller
Rubio
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wicker
Wyden
NAYS--20
Alexander
Barrasso
Boozman
Chambliss
Corker
Cornyn
Crapo
Enzi
Fischer
Hoeven
Isakson
Johanns
McConnell
Paul
Risch
Roberts
Scott
Sessions
Shelby
Vitter
NOT VOTING--5
Blunt
Graham
Inhofe
Kirk
McCain
[[Page S8757]]
The nomination was confirmed.
____________________