[Congressional Record Volume 165, Number 34 (Monday, February 25, 2019)]
[Senate]
[Pages S1427-S1429]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of John L. Ryder
Mr. ALEXANDER. Mr. President, this week, the Senate may see an
extreme example of how the minority can abuse its rights in a way that
provokes the majority into an excessive use of its power. I come to the
floor to offer my Democratic colleagues a way to avoid both mistakes.
Here is the abuse of minority rights: More than a year ago, President
Trump nominated John Ryder of Memphis to serve on the board of
directors of the Tennessee Valley Authority based on the recommendation
that Senator Bob Corker and I made. Finally, this week, the Senate is
likely to vote on Mr. Ryder's nomination.
You might say: Well, there must really be something wrong with Mr.
Ryder.
Well, if there is, then all the people who are supposed to find out
what is wrong with Mr. Ryder have not found it out. Senator Corker and
I know him very well as one of Tennessee's finest
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attorneys. Senator Blackburn agrees. After a hearing at which Mr. Ryder
answered questions, Republican and Democratic members of the
Environment and Public Works Committee unanimously approved his
nomination. No, there is no problem with Mr. Ryder.
You might say: This must be a position of overwhelming complexity and
importance that requires a year for all of us to think about it.
TVA is the Nation's largest public utility, and it is important to
the millions of us in the seven-State region for whom it provides
electricity. But this is not a lifetime appointment. It is not a
Cabinet position. It is not even a full-time position. This is one of
nine part-time board positions whose nominees are usually approved in
the Senate by a voice vote.
The problem is not with Mr. Ryder. It is not because of the unusual
importance of the position. The problem is with the determination of
the Democratic minority to make it nearly impossible for President
Trump to fill the 1,200 Federal Government positions that require
confirmation by the U.S. Senate as part of our constitutional duty to
provide advice and consent.
This is where we are: Democrats have objected to the majority
leader's request to vote on Mr. Ryder's nomination. As I mentioned,
these are nominations normally approved by a voice vote. So in order to
have a vote, the majority leader, Senator McConnell, has filed a
cloture petition to cut off debate on Mr. Ryder's nomination.
The cloture process takes at least 3 days. Here is how it works: The
first day, you file cloture. That is what Senator McConnell did. The
second day is a so-called intervening day when no action can be taken,
so nothing is happening. On the third day, the Senate votes to invoke
cloture, and then there is up to 30 more hours for postcloture debate
before the Senate can finally vote on whether to confirm Mr. Ryder.
Unfortunately, Mr. Ryder is not the only victim of such
obstructionism. During the last 2 years, Democrats have done what I
just described 128 times. One hundred and twenty-eight times they have
required the majority leader to consume up to 3 days to force a vote on
a Presidential nominee. By comparison, requiring a cloture vote to
advance a nomination happened 12 times during the first 2 years of
President Obama's term, compared to President Trump's 128 times; 4
times during the first 2 years of George W. Bush's term, compared to
President Trump's 128 times; 12 times during Bill Clinton's first 2
years, compared to President Trump's 128 times. Not once during George
H. W. Bush's first 2 years in office was it necessary for the majority
leader to file cloture to cut off debate to advance a Presidential
nomination--not once--but it had to be done 128 times in the first 2
years of President Trump's time.
This unnecessary obstruction has to change. The result of this
extraordinary delay in considering nominees creates a government filled
with acting appointees who, never having gone through the Senate
confirmation process, are less accountable to Congress and therefore
less accountable to the American people. So at a time when many
complain that the Executive has become too powerful, the Senate is
deliberately making itself weaker by diminishing our constitutional
duty to advise and consent to individuals nominated to fill important
positions--perhaps the Senate's best known role.
This abuse of power by the minority is about to produce an excessive
reaction by the majority--something that I think at least nine
Democratic Senators who can see 2 years ahead would want to avoid. At
least nine Democratic Senators hope to be the next President of the
United States. Do they not know that some Republicans will do to the
next Democratic President's nominees what Democrats have done to
President Trump's nominees? Let me ask that again. Do the nine
Democratic Senators who want to be the next President of the United
States--that election is about 20 months away--not know that if they
are elected, some Republicans will do to them what Democrats have done
to President Trump's nominees?
The Senate is a body of precedent. What goes around comes around. All
it takes will be one Republican Senator objecting to a unanimous
consent request to make it difficult for the next Democratic President
to form a government, and this will continue the diminishment of the
U.S. Senate.
Can Republican Senators, by majority vote, change Senate rules to
stop this obstruction? Yes, we can, and we will, if necessary. There
are several ways to change the rules of the Senate. We can amend the
standing rules of the Senate. We can adopt a standing order. We can
pass a law. We can set a new precedent. We can change the rules by
unanimous consent. All of these are rules of the Senate.
The written rules of the Senate say it requires 67 votes to amend a
standing rule and 60 votes to amend a standing order. There is recent
precedent to change the Senate rules by a majority vote.
In 2013, the Democratic leader, Harry Reid, used a procedural
maneuver--let's call it the Harry Reid precedent--that allowed the
Democratic Senate majority to overrule the Chair and say, in effect,
that a written Senate rule does not mean what its words say.
Now, this is as if a referee in a football game were to say the
following: The rule book says that a first down is 10 yards, but I am
the referee, and I am ruling that a first down is 9 yards.
Well, that is what happened in 2013. So, in 2017, what goes around
comes around. The Republican majority followed this Harry Reid
precedent in order to make cloture on all nominations a majority vote,
and now Republicans are on the verge again of following the Harry Reid
precedent.
Should Republicans do this, change a rule by majority vote, even
though our written rules say it should be done by 60 or 67 votes? The
answer is, no, we shouldn't, not if we can avoid it.
As Senator Carl Levin said in 2013, when he opposed the Harry Reid
precedent--Senator Levin is a Democrat, and he said: A Senate in which
a majority can change its rule at any time is a Senate without any
rules.
Thomas Jefferson, who wrote our first rules, said: It didn't make
much difference what the rules are. It just matters that there are some
rules.
So it is at least awkward for Members of the country's chief rule-
writing body, the U.S. Senate, to expect Americans to follow the rules
we write for them when we don't follow our own written rules.
I have heard many Democrats privately say to me, they express their
regret that they ever established the Harry Reid precedent in 2013.
They didn't look ahead and see that what goes around comes around and
that this is a body of precedent.
So what would be the right thing for us to do--something that avoided
both the minority's abuse of its rights and the majority's excessive
response. We should do what the Senate did in 2011, in 2012, and in
2013, when Republicans and Democrats worked together to make it easier
for President Obama and his successors to gain confirmation of
Presidential nominees.
As a Republican Senator, I spent dozens of hours on this bipartisan
project to make it easier for a Democratic President with a Democratic
Senate majority to form a government. I thought that was the right
thing to do, and we changed the rules in the right way.
The Senate passed standing orders with bipartisan support and a new
law, the Presidential Appointment Efficiency and Streamlining Act,
which eliminated confirmation for several positions. That bipartisan
working group of Senators accomplished a lot in 2011, 2012, and 2013.
We eliminated secret holds. After over 25 years of bipartisan effort,
led by Senator Grassley and Senator Wyden, we eliminated delays caused
by the reading of amendments. We eliminated Senate confirmation of 163
major positions.
Now, remember what we were doing was working in a bipartisan way to
try to make it easier for President Obama and a Democratic majority in
the Senate to confirm the 1,200 Presidential nominees that every
President has to send over here for advice and consent. We did it for
President Obama. We intended to do it for his successors as well.
We eliminated 3,163 minor career positions. We made 272 positions so-
called privileged nominations, which means these nominations can move
faster through the Senate. We sped up motions to proceed to
legislation. We made it easier to go to conference. We
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limited postcloture debate on sub-Cabinet positions to 8 hours and on
Federal district judges to 2 hours for the 113th Congress. All of these
changes took effect immediately over these 60 days.
Let me underscore what I am about to say. Republicans did not insist,
in 2011, 2012, and 2013, when Barack Obama was President, that these
new rules should be delayed until after the next Presidential election
when there might be a Republican President. Republicans supported these
changes for the benefit of this institution, even though they would
immediately benefit a Democratic President and a Democratic Senate
majority.
I propose that we do that again. I invite my Democratic colleagues to
join me in demonstrating the same sort of bipartisan respect for the
Senate as an institution that Senators Reid and McConnell--the two
Senate leaders at that time--Senators Schumer, Barrasso, Levin, McCain,
Kyl, Cardin, Collins, Lieberman, and I did in 2011, 2012, and 2013,
when we worked to change the Senate rules the right way.
Now, 2 weeks ago, the Rules Committee gave us an opportunity to do
things again in the right way by reporting to the Senate a resolution
by Senator Lankford and Senator Blunt, the chairman of the Rules
Committee. This resolution, which is similar to the standing order that
78 Senators voted for on January 14, 2013, would reduce postcloture
debate time for nominations. Remember, that is after day one, the
majority leader files cloture; day two, nothing happens; day three, we
have a vote on cloture that is by 51 votes, and we would reduce the
time for debate on day three. District judges would be debated for 2
hours, the same as the 2013 standing order that 78 Senators voted for.
Other sub-Cabinet positions would be subject to 2 hours of postcloture
debate as well.
The proposal offered by Senator Lankford and Senator Blunt would not
reduce the postcloture debate time for Supreme Court Justices, for
Cabinet members, for circuit court or certain Board nominations, like
the National Labor Relations Board, but would divide the 30 hours of
postcloture debate equally between Republicans and Democrats.
The Lankford-Blunt proposal would put the Senate back where it has
historically been on nominations. With rare exceptions, Senate
nominations have always been decided by majority vote. Let me say that
again. With rare exceptions, Senate nominations have always been
decided by majority vote.
President Johnson's nomination of Abe Fortas as Chief Justice of the
Supreme Court was the only example of a Supreme Court nominee who was
blocked by requiring more than 51 votes.
There has never been, in the history of the Senate, a Cabinet nominee
who was blocked by requiring more than 51 votes. There has never been,
in the history of the Senate, a Federal district judge whose nomination
was blocked by requiring more than 51 votes.
Since 1949, Senate rules have allowed one Senator to insist on a
cloture vote; that is, 60 votes, which requires more than a majority to
end debate. Even though it was allowed, it just wasn't done. Even the
vote on the acrimonious nomination of Clarence Thomas to the Supreme
Court was decided by a majority vote of 52 to 48. Not one Senator tried
to block the nomination by requiring 60 votes on a cloture motion, even
though one Senator could have done that.
Only when Democrats began, in 2003, to block President George W.
Bush's nominees by insisting on a 60-vote cloture vote did that
tradition change. Then, in 2017, using the Harry Reid precedent,
Republicans restored the tradition of requiring a majority vote to
approve all Presidential nominees, which, as I have said, has been the
tradition throughout the history of the Senate.
Also, until recently, with rare exceptions, nominations have been
considered promptly. After all, there are 1,200 of them, and the Senate
has other things to do besides just being in the personnel business.
For example, last month, I was in Memphis for the investiture of Mark
Norris, whose nomination languished for 10 months on the Senate
calendar. The evening before, I had dinner with 94-year-old Harry W.
Wellford. In November of 1970, Senator Howard Baker of Tennessee had
recommended Harry Wellford to serve as a district court judge on the
same court where Mark Norris now serves.
By December 11, 1970, 1 month later, President Nixon had nominated
Harry Wellford, and the Senate had confirmed him. All this happened in
1 month. Not all nominations have moved that fast. In 1991, a
Democratic Senator, using a secret hold, blocked President George H. W.
Bush's nomination of me as U.S. Education Secretary. I waited on the
calendar for 6 weeks. Those 6 weeks seemed like an awfully long time to
me, and that was for a Cabinet position. It was not 10 months for a
part-time position for the Tennessee Valley Authority.
Two weeks ago, I voted to report Senator Lankford and Senator Blunt's
resolution to the full Senate, even though no Democrat voted for it. I
will vote for it again on the floor, even if no Democrat will join us.
I will also join my fellow Republicans, if we are forced to change the
rules by majority vote. I do not like the Harry Reid precedent, but I
like even less the debasement of the Senate's constitutional power to
provide advice and consent to 1,200 Presidential nominees.
My preference is to adopt the Lankford-Blunt resolution, which is
very similar to the 2013 resolution that 78 Senators voted for, and to
do it in a bipartisan way, according to the written Senate rules as we
did in 2013.
I believe most Democrats privately agree that the resolution offered
by Senators Lankford and Blunt is reasonable, and they will be grateful
that it is in place when there is a Democratic majority and one
Republican Senator can block a Democratic President's nominees.
The only objection Democrats seem to have to the Lankford-Blunt
resolution is that it would apply to President Trump. Their other major
objection, which is truly puzzling, is that the proposed change is
permanent, and the change we made in 2013 was temporary. Well, I wonder
if Democrats would like it better if we made this change in the Senate
temporary, only applying to the remainder of President Trump's term.
This is my invitation to my Democratic colleagues. Join me and
Senators Lankford and Blunt in supporting their resolution, or
modifying it if you believe there is a way to improve it, and working
in a bipartisan way, exactly as we did in 2011, 2012, and 2013.
A year or so ago, one of the Supreme Court Justices was asked: How do
you Justices get along so well when you have such different opinions?
This Justice's reply was this: We try to remember that the institution
is more important than any of our opinions.
We Senators would do well to emulate the Supreme Court Justices in
respecting and strengthening this institution in which we are
privileged to serve. One way to do that is to join together to restore
the prompt consideration of any President's 1,200 nominees and do it in
a bipartisan way that shows the American people our written rules mean
what they say.
The PRESIDING OFFICER. The Senator from Tennessee.
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