[Congressional Record Volume 164, Number 180 (Wednesday, November 14, 2018)]
[Senate]
[Pages S6951-S6954]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Unanimous Consent Request--Executive Calendar No. 856
Mr. President, I ask unanimous consent that the Senate proceed to the
consideration of executive calendar No. 856, the nomination of John
Ryder to be a member of the Board of Directors of the Tennessee Valley
Authority; that the Senate vote on the nomination with no intervening
action or debate; that if confirmed, the motion to reconsider be
considered made and laid upon the table; that the President be
immediately notified of the Senate's actions; that no further motions
be made in order; and that any statements relating to the nomination be
printed in the Record.
The PRESIDING OFFICER. Is there an objection?
The Senator from New York.
Mr. SCHUMER. Reserving the right to object. Very simply, there has to
be some comity here. Republicans cannot
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block Democratic nominees and then expect Republican nominees to go
through, so I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Tennessee.
Mr. ALEXANDER. To my friend from New York, who is he talking about?
He knows my record. I worked with him three times when President Obama
was there, worked with him directly to make it easier for President
Obama to have nominees.
Let me go through that because I think it is important the people
know the efforts we made together. In 2011, working with the Senator
from New York, we got rid of secret holds. We permitted waiver of the
72-hour rule that was used to block nominations and delay. We created
272 expedited privilege nominations. In 2012, we eliminated Senate
confirmations for 163 positions, all to make it easier for President
Obama to make Presidential nominations. In 2013, we created some new
rules which said that Executive nominees could only be debated post-
cloture for 8 hours and district judges for 2 hours.
I personally made sure the current chairman of the Democratic Party,
Tom Perez, got cloture so the Senate could vote on him. I voted against
him, but I made certain he could come to a vote.
When President Obama had a vacancy in the Department of Education in
his last year, I went to President Obama and said: Mr. President, I
think it is inappropriate for us not to have a confirmed Senate nominee
in a principal position like U.S. Secretary of Education. If you will
please nominate John King, with whom I disagree, I will make sure he is
confirmed, and we confirmed him. That has been my record in terms of
dealing with nominees of the President of an opposite party.
I ask through the Chair, why pick on Tennessee? Why confirm Kentucky
nominees, why confirm Alabama nominees, why work with me in three
different Congresses to make it easier for President Obama to confirm
nominees, why applaud me for allowing the chairman of the Democratic
Party today to be confirmed as Secretary of Labor and then block a
nominee for the Tennessee Valley Authority, who is eminently well-
qualified, who is supported by the Democratic members of the committee
who have jurisdiction and who is needed on the Board to pick a CEO for
the millions of people in the seven-state region? Why pick on
Tennessee, I would say to my friend from New York through the Chair.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, we have to have some bipartisanship here.
I understand my friend from Tennessee. He is my friend. I hope he would
work with us to create bipartisan packages to get nominees through.
That is not happening. We need to do it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, I don't know what he is talking about.
I am the chairman of the Health, Education, Labor, and Pensions
Committee. I have, during my time, regularly confirmed Democratic
nominees and Republican nominees. I have worked with the Democratic
leader to make it easier for President Obama to confirm nominees and
now he gives me no specific reason why he is objecting to the nominee
from Tennessee.
I ask him further--even though he has left the floor in what I would
consider to be an act of discourtesy while I am speaking to him, and I
mean that. I am very upset about this. I consider that an act of
discourtesy when the Democratic leader leaves the floor while I am
speaking directly to him through the Chair on a matter of importance to
9 million people in our area. I ask him what kind of precedent is he
setting, the Democratic leader.
Let's think about this for a minute. One hundred and nineteen times
the majority leader, Senator McConnell, has had to file cloture to cut
off debate in order to just get a vote on a nominee like Mr. Ryder,
named one of the best lawyers in Tennessee since 1987, approved by
Democratic colleagues, needed by the Tennessee Valley Authority,
certain to be confirmed here almost unanimously. One hundred and
nineteen times the Democratic opposition has required the Republican
leader, Senator McConnell, to use a whole week to confirm a nominee.
That happened 12 times to President Obama. That happened four times to
President George W. Bush. It happened 12 times to President Clinton and
zero times to George H.W. Bush, whose administration I served in. That
is the number of cloture votes on nominees required for previous
Presidents in the same timeframe as President Trump. What kind of
precedent does this set?
Let's talk about that for a moment. This is a body of precedents. For
many years, we always confirmed nominees with 51 votes. That was until
George W. Bush became President of the United States and the Senator
from New York, before he was a Democratic leader, and others, decided
they would use a cloture vote, a requirement for 60 votes, to block
George W. Bush's nominees.
That was the first time that it had happened. Up until that time, the
tradition of this body was that while you could require 60 votes, at
least since about 1920, no one ever did. Even Clarence Thomas--and that
was a very controversial Supreme Court nomination--was confirmed by 52
to 48. No one thought at the time of requiring that his nomination
require 60 votes. They could have but didn't. So that was the tradition
in the Senate--always nominations by 51 votes. The one exception in the
Supreme Court throughout the history of the Senate was Abe Fortas,
under President Johnson, and that was an unusual situation. Never had a
Federal district judge been required to have 60 votes.
In fact, what the Democratic leader--I wish he were here on the floor
to hear this--may have forgotten is that Senator McConnell tried at one
time to require a cloture vote of Judge McConnell in Rhode Island, and
I and a number of other Republicans objected because we had never done
that before. We had never said that you have to have 60 votes to be
confirmed as a Federal district judge. So we rejected that motion by
the Republican leader, and as a result of that, never in the history of
the Senate had we required 60 votes for a Federal district judge to be
confirmed. Never in the history of the Senate had we required 60 votes
for a Cabinet member to be confirmed. But then in the early years of
George W. Bush, in 2003, I had just come to the Senate. The Senator
from New York and others said: Well, we will do that for the first
time. We will block George W. Bush's nominees.
I don't want to debate that back and forth today except to say that
became a precedent. And, sure enough, what goes around comes around. A
few years later, by 2013, things had gotten so that the Democrats
decided to break the rules to change the rules and used the so-called
nuclear option, and when Republicans did the same thing that the
Senator from New York had done, Democrats overruled that and seated
judges on the Court of Appeals.
So as a result of the precedent set by the Senator from New York on
judges with George W. Bush, we had the nuclear option in the Senate, a
using of that. Republicans then did what the Democrats did. That is
what you call precedent.
Well, it happened a second time. That first use of the nuclear option
left it so you could require 60 votes in order to have a Supreme Court
Justice.
When President Trump nominated Neil Gorsuch to be a Supreme Court
Justice, the Democrats filibustered Justice Gorsuch, an enormously
well-qualified person. Remember, throughout the history of the country,
we had not blocked a Supreme Court Justice by filibuster with that
single exception of the Abe Fortas instance. Yet they did that. And as
a result of that, the Republicans then said: Well, we will use the
nuclear option and change the rules to 51. So that is what happened
with the precedent.
Now let's look at this precedent. Are we going to block for 282
days--let me get my numbers exactly right; it is 176 days on the
calendar awaiting confirmation--a noncontroversial Board of Directors
member for the Tennessee Valley Authority. That is what we have come
to.
So are we going to say, as the U.S. Senate minority, that we will
effectively block--we will effectively block--those kinds of
nominations and effectively keep an elected President from setting up a
government? Is that what we are going to say?
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It looks like that is what we are saying if you are going to say that
119 times the majority leader of the Senate of whichever party will
have to invoke cloture. That means it takes 3 or 4 days to confirm even
a noncontroversial Presidential nomination, when there are 1,200 such
nominations.
Let's say we have a Democratic President one day and a Republican
U.S. Senate, or a Republican President and a Democratic U.S. Senate.
But let's just for purposes of discussion, since we are talking about
precedent, let's say the Democrats make a big comeback and elect a
Democratic President next time around. It is only 2 years before the
Presidential election.
And let's say the Republicans stay in power and still have a majority
in the Senate and Republicans say: Well, we are a body of precedent. We
will do to the Democratic President exactly what the Senate did to
President Trump.
If Republicans are in the majority, the Democratic President might
not even be able to staff the government because the Republicans could
say: We will not confirm anybody.
Or even if the Republicans were to be in the minority and there were
a Democratic President and the Republican minority did to the next
Democratic President what this minority is doing to this one, then 119
times you would see this happen, at least through the first part of the
administration.
So where does that leave us as a Government of the United States?
Well, here is where it would leave us. It would leave us with a
government of the United States with the Senate having no role in the
appointment of its principal officers. That is what it would leave,
because there is on the books legislation called the Vacancies Act,
which allows any President of the United States to appoint acting
people to all of the positions in the government. They can serve for
210 days at least, and there are a wide variety of people who can be
chosen for those positions. They can be people who are confirmed or
they can be senior people in the government.
We happen to have an example of that today in the United States
Department of Justice--Matthew Whitaker. The Attorney General, Jeff
Sessions, whom I admire and all of us know, resigned at the request of
the President. And instead of nominating or picking a Senate-confirmed
successor as the Acting Attorney General of the United States,
President Trump did, as the Vacancies Act allows him to do, appointed
Matthew Whitaker, Attorney General Sessions' Chief of Staff. I suppose
a President could do that for every position.
I mentioned earlier that toward the end of President Obama's term, he
had no Education Secretary. Arne Duncan had decided to leave, and they
used the Vacancies Act to allow John King, who was not confirmed by the
Senate, in effect, to be the Acting Secretary of Education.
As I said earlier, I had that conversation with President Obama. I
said: Mr. President, I believe that, institutionally, we should have a
Senate-confirmed Secretary of Education. Even if I disagree, as I did,
with John King's education views, I will see to it that if you nominate
him, he is confirmed. President Obama did that. He respected the
importance of having institutionally confirmed principal officers in
the government, and then we confirmed him.
So I don't know where this is leading us. I think this is the same
kind of dangerous precedent that was established when Democrats for the
first time used a 60-vote opportunity to block President George W.
Bush's judges, and what the Democrats then did--what most of them tell
me they wish they hadn't done--was that they used the nuclear option
and required a 51-vote cloture. So now they can't eventually block
anyone, even John Ryder, if we all decide that we want to take a whole
week to confirm him. That is what Senator McConnell has been doing. He
has been putting a priority on district judges and on circuit judges,
and the Democrats have been saying: We are going to slow you down.
But you can't win that way. All that happens is that the Senate
gradually gives up its advise-and-consent authority under the
Constitution to help the President form a government. That is one of
the important parts of what we do in this government.
The late Justice Scalia said: Every tin horn dictator has a bill of
rights. What the United States has that is different is checks and
balances. One of the most important parts of that checks and balances
is for the Senate to advise and consent on about 1,200 different
Presidential nominees.
That is why I worked with Senator Schumer and other Democrats, like
Senator Levin, and Republicans, like Senator McCain and Senator
Barrasso, and we took steps during the Obama administration three
different times to reduce the number of Presidential nominees, to speed
up Presidential nominees, and to put 272 of them at a privileged status
so they could come through more rapidly.
This goes in entirely the opposite direction, and it is a terrible
precedent for this institution. So I am extremely disappointed.
I am disappointed for John Ryder, who is a prominent lawyer, who
thought he might get to be on the TVA Board and was nominated 282 days
ago. I am disappointed for the people of Tennessee and the Tennessee
Valley Authority region. There are millions of people who have had a
very good Chief Executive Officer for the TVA for the last several
years in Bill Johnson and now need a fully functioning Board of
Directors to pick his successor, and yet the Democrats say: Even though
we approve of him, even though we have no reason not to confirm him, we
are just going to slow the train down just because we can.
Well, if they can, someone else can later. That does not serve the
people well. I don't see any partisan political advantage to the
Democrats for doing something like this. I never have thought that. I
always thought that it was the right thing to do to let a President
staff his administration. If you don't like the nominee, you can always
vote no, but at least you can have a vote.
So he is talking about bipartisan packages. This nominee has been
waiting for a long, long time. So I am not through with this. I think
this is something that the people of Tennessee are going to be very
disappointed about, and I would ask my friend from New York again: Why
are you picking on Tennessee? Why would you confirm the Alabama
nominee? Why would you confirm the Kentucky nominee? And why would you
not confirm the Tennessee nominee? Why would you make him swing in the
wind for 176 days when everybody approves of him--even the Democratic
ranking member of the committee and Democratic ranking member of the
subcommittee? Something smells here, and it is a bad precedent for the
Senate. It is not good for our country, and it is completely contrary
to the way that I have enjoyed working with the Senator from New York
in 2011, 2012, 2013 to make it easier, then, for President Obama, but
later for every President of the United States, to have his
Presidential nominees promptly considered by the Senate and voted up or
down.
While I am on the subject of the Tennessee Valley Authority, I want
to mention the fact that Bill Johnson, who has been the Chief Executive
Officer of the Tennessee Valley Authority for the last several years
announced today in a Board meeting of the TVA of Mississippi of his
intention to retire next year. My hope would be that John Ryder, whose
term could have begun earlier this year, would be there to help select
his successor. Bill Johnson and the board have done a good job for the
last few years with TVA. They have reduced its debt. They have kept
electricity prices low. They provided a reliable, ample supply of
electricity for a rapidly growing part of America, making it easier for
us to recruit jobs, and the air is clean.
As I will say more about this in just a minute, the new Foothills
Parkway opened just outside the Great Smoky Mountains this past
weekend, and it was packed with local people. On Sunday I was up there
myself. We can see the mountains because TVA, over the last several
years, has put pollution control equipment on all of its coal plants,
and we could immediately see the difference. Other Federal regulations
have made the air cleaner.
In fact, a lawsuit from North Carolina with TVA to keep dirty air
from Tennessee from blowing into North Carolina has now been made a
Federal regulation, and dirty air from Kentucky or Texas or other
States can't
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blow into Tennessee. The result is that when you come see the Great
Smoky Mountains, you can call them the Great Smoky Mountains and not
the great smoggy mountains, which they were some time ago.
So I would congratulate Bill Johnson on his tenure as CEO. He has got
TVA on the right track, and I would urge the Board of Directors to
think long and hard as they select someone to fill his shoes because as
a former Governor of that State and now as a U.S. Senator from
Tennessee for 16 years, I know the importance of having ample supply of
low-cost clean electricity to heat our homes, run our computers, and
attract our jobs.
Now, I have a Thanksgiving thought, to move away from the
disagreeable, acrimonious dealings of the Senate for a moment.