[Congressional Record Volume 161, Number 19 (Wednesday, February 4, 2015)]
[Senate]
[Pages S783-S785]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 SENATE RESOLUTION 67--AMENDING RULE XXII OF THE STANDING RULES OF THE 
SENATE TO REVISE THE NUMBER OF AFFIRMATIVE VOTES REQUIRED TO END DEBATE 
                             ON NOMINATIONS

  Mr. ALEXANDER (for himself and Mr. Lee) submitted the following 
resolution; which was referred to the Committee on Rules and 
Administration:

                               S. Res. 67

       Resolved,

     SECTION 1. CLOTURE RULE.

       The second undesignated subparagraph of paragraph 2 of rule 
     XXII of the Standing Rules of the Senate is amended by 
     striking ``And if that question'' and all that follows 
     through ``disposed of.'' and inserting the following: ``If 
     the question is decided in the affirmative in the case of a 
     nomination on the Executive Calendar by a majority of the 
     Senators duly chosen and sworn; in the case of a measure or 
     motion to amend the Senate rules by two-thirds of the 
     Senators present and voting; and in the case of any other 
     measure, motion, or matter, by three-fifths of the Senators 
     duly chosen and sworn, then the foregoing measure, motion or 
     matter pending before the Senate, or the unfinished business, 
     upon which the question was decided in the affirmative shall 
     be the unfinished business to the exclusion of all other 
     business until disposed of.''.

  Mr. ALEXANDER. Mr. President, I am especially pleased to see that the 
Senator from Utah is presiding this afternoon because I come to the 
floor today to offer a resolution which is his inspiration, really, and 
on which I am pleased to be working with him.
  Simply put, this is a resolution to establish a majority vote on 
Presidential nominations. This would establish by rule the Senate 
tradition of approving Presidential nominations by a simple majority 
vote. The rules change we propose would establish by rule this 
tradition of approving Presidential nominations of Cabinet Members and 
judges by a simple majority vote, which existed from the time Thomas 
Jefferson wrote the rules in 1789 until 2003, when Democrats began 
filibustering Federal Circuit Court of Appeals nominees.
  Most importantly, it would change the rules in the right way, through 
a two-thirds vote, which is what the existing rules of the Senate 
provide. Unfortunately, on November 21, 2013, Democrats broke the 
Senate rules without even attempting to get the 67 votes required to 
change the rules, which caused former Senator Carl Levin, a Democrat 
from Michigan, to say at the time, quoting former Senator Arthur 
Vandenberg of Michigan, that ``if a majority of the Senate can change 
its rules at any time, there are no rules.'' We are the Nation's 
rulemaking body. If we cannot follow our own rules, how can we expect 
the American people to show respect for and follow the rules we help to 
create?
  The proposal Senator Lee and I have made will be considered by the 
Senate Committee on Rules and Administration, according to the Senator 
from Missouri, Senator Blunt, the chairman of the Rules Committee. It 
would ultimately require a two-thirds vote of the Senate to change the 
Senate rules. This all has to do with the so-called nuclear option.
  If I might say an additional word about the so-called nuclear option, 
I came to the Senate in 2003, which was when our Democratic friends 
decided they would use cloture, which requires 60 votes to cut off 
debate, as a way of denying a Presidential nomination on a Federal 
circuit judge. It had never in the history of the Senate been used 
before in that way. Cloture had been used twice, I believe, based on my 
research, to deny a sub-Cabinet member a position in the 1990s, but 
that was the first time it had ever been used on any such position with 
the exception of Abe Fortas.
  It is important, given all the misinformation that has been spread 
about the nuclear option, to know what the facts are. The tradition has 
always been in the Senate that Presidential nominations deserved an up-
or-down, 51-majority vote. That has basically been the tradition. Even 
with the most controversial nominations, such as that of Clarence 
Thomas, the Supreme Court Justice--I believe the vote was 52 to 48--
there never was a suggestion that someone might use cloture to require 
it to be 60 votes. Cloture didn't apply to nominations until 1949, so 
it was never used between the time Jefferson wrote the rules at the 
beginning of the Senate and 1949.
  It was first used in 1968, but not really. President Johnson was 
trying to save face for Abe Fortas, his friend who was a Supreme Court 
Justice. He had nominated him for Chief Justice. A problem came out, 
and President Johnson engineered a 45-to-43 cloture vote, which Fortas 
``won.''
  That is really the only exception in the whole history of the Senate 
until 2003, when the Senate said it is going to take 60 votes to 
confirm a Presidential nomination for a judge rather than the 
traditional 51.
  I have talked to several of my colleagues on the other side about 
this issue. They are fairly straightforward about why they did it. They 
thought President George W. Bush's nominees were ``too conservative.''
  I knew some of those judges--Judge Pickering of Mississippi, for 
example. He put his children into a public school in Mississippi in the 
1960s, and he was being accused of being a segregationist when he was 
actually leading the charge in his State of Mississippi to desegregate 
the public schools.
  William Pryor of Alabama was a law clerk for Judge John Minor Wisdom. 
I know the distinguished Senator from Utah, who was a Supreme Court law 
clerk, knows of Judge Wisdom. He was regarded by everyone as one of the 
finest Federal circuit judges in the country. He had the greatest 
respect for William Pryor. He would have been shocked to hear what was 
said about him at the time.
  It was a shocking thing to me to arrive in the Senate in 2003 and 
find my friends on the other side of the aisle for the first time in 
Senate history saying it would take 60 votes to confirm President 
Bush's judges. I strongly objected to that. I even suggested that if a 
few Senators on this side and a few Senators on that side would work 
together, we could break the stalemate. A Gang of 14 was created. It 
did break the stalemate, but as a result, five judges nominated by 
George W. Bush were not confirmed because the other side decided they 
didn't like their philosophical views. So instead of a 51-vote margin, 
they required 60, and so they weren't confirmed.
  This is the tally in the history of the Senate. The number of Supreme 
Court nominees in the history of our country who have ever had their 
nomination denied by filibuster, by a cloture vote, is zero, with the 
exception of the Fortas nomination, if you want to

[[Page S784]]

count that. Not a single one. Supreme Court nominations are among the 
most controversial nominations ever before the Senate.
  The number of Cabinet members who have ever had their nominations 
denied by a filibuster, by requiring 60 votes in the history of the 
Senate--zero. Not one. Not an Obama nominee. Not a Clinton nominee. Not 
a Bush nominee. Zero. Not one.
  Let's go to district judges. There has been a lot of talk about 
district judges and how difficult it was for President Obama to have 
district judges confirmed. There is no truth to that whatsoever. I was 
in the Senate; I know that. I will give an example. There was an effort 
to deny a seat to a judge from the State of Rhode Island by 60 votes, a 
judge whom I didn't support, but I and a group of other Republicans 
made sure we did not use cloture to deny a seat to a President's 
district judge nominee for the first time in history, and so we did 
not.
  So the number of Federal district judges in the history of the United 
States who have ever had their nomination denied by a filibuster, by 
the 60-vote cloture rule, is zero.
  So Supreme Court Justices, except for Fortas, Cabinet members, 
district judges--zero. Filibusters have not been widely used in the 
history of this Senate to deny a President his nomination. However, 
there are other problems that nominations have.
  I was nominated once. I came to be nominated to be the Secretary of 
the Department of Education. A Senator from Ohio, Senator Metzenbaum, 
put a so-called secret hold on my nomination and held me up for 3 
months, but then when I came to the floor, I was confirmed. We have 
abolished those kinds of secret holds. We have made changes in the 
rules to make it easier for the President's nominees to be confirmed.
  There have been seven sub-Cabinet members, including John Bolton--
three Republicans and four Democrats--who have had their nominations 
rejected because of a cloture vote, all since 1994. So no Cabinet 
members, no Supreme Court Justices, no district judges, seven sub-
Cabinet members.
  What is the score on circuit judges? This is what brought up the fuss 
in 2003 when the Democrats filibustered 10 nominations because they 
were too conservative. As I mentioned earlier, five were confirmed and 
five were rejected as part of the compromise. Since that time, 
Republicans have rejected two Democrats. So the score is the Democrats 
have rejected five Federal Circuit judges and Republicans rejected two. 
Republicans actually rejected three others, but that led to the events 
of November 21, 2013, when the Democrats broke the rules to change the 
rules.
  It would be as if in a Super Bowl or in a playoff game, let's say, 
Seattle gained 9 yards and they needed 10, so they changed the rules 
because they were the home team and said that is a first down. No one 
would have any respect for the game if they did that, and no one will 
have any respect for the Senate if we keep doing that, which is the 
point Senator Lee and I would like to make because the tradition of the 
Senate has always been to give to a President the prerogative of 
allowing his nominations to be confirmed by 51 votes or a simple 
majority of Senators duly chosen and sworn. We propose to change the 
rule to reflect the tradition of the Senate.
  Some say: Well, why don't you do to them what they did to you?
  I don't think that is a very good way to live your life. I mean, if 
the Democrats did the wrong thing, if they brought the Senate to its 
knees, if they made the Senate into a place that doesn't follow its own 
rules, then we should do that to them? No. I think what we should do is 
replace bad behavior with good behavior, and good behavior means we 
adopt changes to the rules in the way the rules require, which is, in 
effect, 67 votes or two-thirds of the Senators present and voting.
  So we will be offering our resolution, as we do today. We will be 
offering it in the Senate Rules Committee. We hope the Senate Rules 
Committee will approve it and report it to the floor. We hope Senator 
McConnell will find time on the floor to bring it up. We hope that 67 
of our colleagues will agree with it. We will show the country that we 
know how to follow our own rules and that we know how to take the 
tradition of the Senate, which has been there since Thomas Jefferson 
wrote the rules, with very few exceptions, to make sure that 
Presidential nominees are entitled to an up-or-down vote by a majority 
of the Senate. That has been the rule, that has been the tradition, and 
that should be the rule, and the rules should be changed in the way 
that rules are supposed to be changed.
  There is one other issue I wish to mention without going into any 
length about it. What happened in the Senate on November 21, 2013, was 
the lowest point in the Senate that I have seen. The majority decided 
that because it didn't have the votes to put three judges--liberal 
judges--on the DC Court of Appeals, it would break the rules to change 
the rules, and it just put them there anyway. It pretended that the 
reason it did that was because President Obama couldn't get his 
nominees confirmed.
  Well, on every Senator's desk is an Executive Calendar. Everyone who 
can be confirmed has been reported by a committee to the floor and is 
listed on the Executive Calendar. There is only one way to get on this 
calendar--there was only one way on November 21, 2013, and that was for 
a Democratic majority in a committee to report a nominee to the floor 
of the Senate. That was the only way you could get there. Republicans 
couldn't do it; only the Democrats could. So on November 21, 2013 the 
calendar was filled only with people the Democratic majority had 
approved of.
  There was only one way for anyone to get off the Executive Calendar 
and onto the floor of the Senate to be confirmed, and that was for the 
Democratic leader, the majority leader, to move to do that. We can't 
object to that. We have to vote on it. There is no motion to proceed 
with a nomination; he can bring it up anytime he wants to.
  The charge was made that there was a big backlog of people on this 
calendar. Well, here are the facts, and anyone who doubts it can look 
at the Executive Calendar for November 21, 2013, and they will see what 
the backlog was. There were 78 regular order nominations on November 
21, 2013. Fifty-four of those nominees had been on the calendar less 
than 3 weeks. Sixteen had been on the calendar between 3 and 9 weeks. 
Eight had been on the calendar for more than 9 weeks.
  There was an informal agreement between the floor staffs that 40 of 
the uncontroversial nominees on this calendar--40 of the 78--could be 
confirmed before the Senate left at the end of the week.
  Let me use a specific example--district judges. We hear a lot about 
district judges. We had changed the rules at the request of the 
majority leader to make it easier to confirm district judges. We 
basically said that there could only be 2 hours of debate on a district 
judge and the majority could give back 1 of those hours.
  On the date the Democrats said there was a big backlog, there were 13 
district judges on the calendar. Those were the only ones who could 
have been brought up by the majority leader. One had been waiting for 
more than 9 weeks. Four had been waiting for between 3 and 9 weeks. 
Eight had been waiting for less than 3 weeks. But the important point 
is that we could have confirmed them all over the weekend. All the 
majority leader had to do was to move the nomination of each of the 13, 
wait an intervening day, and then if they did that on Thursday, the 
intervening day would be Friday, and then we would come back on Monday 
and we would have 1 hour of debate for each of those nominations. So 
there was no excuse. There was no backlog.
  The Washington Post and the Congressional Research Service said that 
President Obama's nominees were moving through the Senate at about the 
same speed that President Clinton and President George W. Bush's 
nominees had been at that time in their terms. That is what the 
Congressional Research Service and the Washington Post said.
  The calendar speaks the truth about the absence of a backlog. And I 
was involved three times in working to change the rules to make it 
easier to do Presidential nominations. It was nothing more than a power 
grab. So our friends should just admit that and admit that it was the 
wrong thing to

[[Page S785]]

do for the Senate. A lot of Senators weren't here then.
  The resolution Senator Lee and I have proposed gives the Senate a 
chance to abandon bad behavior and begin to adopt good behavior, to 
take a tradition of the Senate that has been followed almost without 
exception since 1789 and make it the order of the day and to do it the 
way the Senate rules say it should be done--with 67 votes.
  In closing, let me simply say that I appreciate the fact that I am 
able to work on this with Senator Lee. This legislation developed 
really from a conversation and a suggestion he made to me on the floor 
of this Senate. I thought about it, and I said: I think you may be 
right about that. We worked together, and because of his background in 
the law and his experience in the Supreme Court, his leadership on this 
issue has been invaluable.
  I thank the Senator for his suggestions, I thank him for his 
leadership, and I look forward to working with him when it comes before 
the Senate Rules Committee. I hope we can persuade our fellow Senators 
in a bipartisan way that a good way to begin this year would be to 
begin to change the rules the right way and to reject the bad behavior 
and bad habits of the last session of Congress.
  I yield the floor.
  Mr. LEE. Mr. President, I wish to speak briefly in support of this 
resolution. First of all, I wish to thank my distinguished colleague, 
the senior Senator from Tennessee, for his leadership in introducing 
this legislation. The Senator from Tennessee has shown great leadership 
on this issue. With his mastery of the Senate rules, his familiarity 
with the procedures of the Senate, the Senate's history, and his love 
for the Senate as an institution, the sponsor of this measure 
understands and appreciates the importance of maintaining order in the 
Senate. It is to this issue I would like to speak briefly.
  When the Senate made this change in November of 2013, what happened 
was all of a sudden we had a split--a split that occurred between on 
the one hand the wording of the rule itself that governs cloture, on 
the other hand the precedent by which the Senate purports to be 
governed. So separate and apart from what the history tells us--from 
how often the Senate either has or hasn't used cloture on the Executive 
Calendar--there is this separate distinction that has now arisen.
  The cloture rule says it takes three-fifths--a vote of three-fifths 
of the Senators--to bring end to debate on a particular matter. The 
rule itself makes no distinction between the Executive Calendar and the 
legislative calendar. It makes no distinction between ordinary 
legislative business where we are legislating and making law on the one 
hand and on the other we are meeting to decide whether to confirm a 
Presidential nominee. The rule doesn't distinguish, but the precedent 
now does.
  When our colleagues on other side of the aisle voted in November 
2013, appealing the ruling of the Chair, they reversed the precedent. 
They acted contrary to the language of the rule itself. This creates a 
certain amount of uncertainty, and that uncertainty I think needs to be 
resolved. We don't want to operate in an environment in which we have 
the rule saying one thing and the Senate precedent saying another 
thing.
  So it was out of a certain amount of practical necessity that we 
looked to this as an alternative. In order to bring Senate practice 
back into harmony with the rules of the Senate, the best way we could 
come up with to do that would be to change the language of the rule.
  Of course to change the language of the rule it takes 67 votes. While 
we are not certain what is going to happen, this is perhaps the only 
thing we could think of that could possibly get 67 votes--67 Senators 
saying yes, we can do that.
  So it is very important that we have rules that are clear--rules that 
will apply regardless of who is in the White House, regardless of which 
party happens to control the majority of the seats in this body. If, 
after all, we are making the rules that would govern the country, if, 
after all, we are being asked to confirm Presidential nominees to high 
positions, we need to be following our own rules.
  We have to remember also that one of the things we have prided 
ourselves on, one of the things that has distinguished the Senate from 
other legislative bodies--we call ourselves the world's greatest 
deliberative legislative body--is because from the very beginning this 
has been the kind of place where in theory we will continue to debate 
things as long as basically any one Member wants to continue to debate. 
Cloture is an exception to that. Cloture allows for three-fifths of the 
Senators present to decide it is time to bring the debate to an end, 
even if a minority of Senators want to continue. But it requires a 
supermajority.
  There are many reasons to do this, but one of the reasons I think is 
important to point out is because it protects the right of each Senator 
to continue to offer improvements, to point out flaws and offer 
potential improvements to legislation--the amendment process. The 
amendment process is itself of course different in the context of 
legislation than it is in the context of a Presidential nominee.
  I am personally not aware of any means by which one can amend a 
nominee. I am not aware of any process by which one can confirm a 
Presidential nominee's right hand but not his left.
  I support this change. I think this change is important for this body 
and for the continuity of the Senate rules and I am grateful to the 
senior Senator from Tennessee for his efforts in this regard, which I 
wholeheartedly support.

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