[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

[[Page S1428]]

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

[[Page S1429]]

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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