[Congressional Record Volume 165, Number 58 (Wednesday, April 3, 2019)]
[Senate]
[Pages S2220-S2223]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Appeal Ruling of the Chair
Mr. McCONNELL. Mr. President, I appeal the ruling of the Chair and
ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is, Shall the decision of the Chair stand as the
judgment of the Senate?
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Ms. Harris)
is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 48, nays 51, as follows:
[Rollcall Vote No. 59 Ex.]
YEAS--48
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Lee
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
NAYS--51
Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Isakson
Johnson
Kennedy
Lankford
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
NOT VOTING--1
Harris
The PRESIDING OFFICER. The Senate overrules the decision of the
Chair.
The Senator from Missouri.
Mr. BLUNT. Mr. President, in the last vote today we established a new
precedent. The rules of the Senate are a combination of the rules of
the Senate, the standing orders of the Senate, and the precedents of
the Senate. Senator Lankford and I had hoped to do this with a
permanent standing order that basically would have put the Senate
exactly where the bipartisan vote was in 2013, which included my vote,
to have the same kind of rules that we are encouraging now. This
process is designed to speed up not only nominees for Republican
Presidents but also nominees for Presidents who are Democrats.
In the last 2 years, we have seen an extraordinary use of every tool
available to the minority. The Senate is designed to be a place where
the minority is heard. In fact, at one time, any Senator could stop
everything forever, and when Senators started doing that to excess,
that rule was changed. The protections of the minority often have to be
looked at again when the minority abuses those protections. That is
what has happened in this case.
Now we have 2 hours of debate on the nominee we are debating right
now. If we hadn't just taken the vote we took that overruled the Chair,
we would have 30 hours of debate. I guarantee that there will not be 2
hours of debate about this nominee. There may not be 2 minutes of
debate about this nominee if we see what we have seen happened in the
last 2 years.
The rules of the Senate currently say that if any Senator wants to
hold up consideration of a nominee, then, the Senator can insist that
we go through the process of invoking cloture. In the first 2 years of
the Obama administration, that process was used 12 times, and that was
more than had been the case in the past. In fact, the previous 3
Presidents had cloture invoked on their nominees a total of 12 times.
That is 24 times in 4 Presidencies. In the first 2 years of President
Trump's time in office, the majority leader had to come to the floor
128 times and say we are going to have to invoke cloture to have a
chance to vote on this nominee.
It is the first week of April. Eleven times this year already the
Senate has had to invoke cloture on a nominee for a government job--for
a judgeship or some other government job. While that debate time was
seldom used, occasionally, at the end of the week, we would say: Well,
OK, we will just go ahead and do the last one. Each time, we had to
assume that 30 hours would be used up for those people to be processed
and to have a chance to do the jobs that they were going to do.
The history of the Senate is exactly as the majority leader described
here earlier. In the first 200-plus years of the Senate, while the
Senate often used a delaying tactic to delay legislation and require
the Senate to think about it more, the Senate virtually never used the
rules of the Senate to slow down the process of putting people in the
Cabinet.
In fact, several Presidents--and Presidents in this century--had
their full Cabinet put in place within the first day or two of their
administration. That didn't happen with this President, and it is
obviously what brought us to where we are today.
Usually, in the first couple of years of a new administration, the
President not only gets his Cabinet approved right away, but the
President is also able to put people around those Cabinet officers who
want to move the government in the same direction that the voters just
said they wanted the country to go.
The term of an administration is only 4 years. At the end of 2 years,
if you are sending back 124 nominees who just simply didn't get voted
on--they got investigated, they got the background checks done, they
went through the committee, and the committee voted to send them to the
floor--that was always supposed to be part of the work of the
committee, and that happened for 124 people who never had a chance to
get voted on in the first 2 years of this administration, many of whom
had been waiting in line for a year.
Now, if you are appointed and have a short-term job in the Federal
Government and are willing to serve, the one thing that does for sure
is to put your life in some chaos--coming up with the material that the
Congress insists on, going through the background check, and getting
your financial records out. For most people, it also means putting the
way they make a living on hold.
I had somebody whom I nominated as one of three people for the
President to choose from to be the district judge in the Eastern
District of Missouri. I made that nomination roughly 24 months ago.
Twenty-two months ago, the President told the person he chose that he
was going to nominate that person. Last November, after a year and a
half of that person telling all his law clients, ``You know, I am about
to become a Federal judge; you may need to find another lawyer,'' and
after he closed his legal process, he hasn't been voted on yet. That
man was one of the people sent back from the White House. He had to be
sent back up this year and had to go through the Judiciary Committee
again. He had to get back in a line, where every single person took 30
hours of debate, after the 1 day that had to be debatable between the
time the leader brings you up and you come to the floor.
This sounds pretty complicated. That is because it is, and it is made
more complicated by the fact that people have used it as a delaying
tactic.
Now, as for the 128 people whom I mentioned--the 128 people whom the
majority leader had to file cloture on--compared to 12, let's be sure
we are comparing this the way this used to be,
[[Page S2221]]
even in recent years to now--128 compared to 12. When those 128 people
finally got votes, the support was substantial. When they finally got
votes, one-third of them got 70 votes or more. Thirteen percent got 90
votes or more. So you have 90 people voting for people that someone
insisted we needed 30 hours of debate for, and there wasn't a debate at
all.
Twenty district judges had cloture filed on them. Twelve of those
district judges had nobody vote against them after 30 hours on the
floor, where, in all likelihood, nobody had anything to say during
those 30 hours.
The average amount of time that we spent talking about nominees
during the 30 hours that has been insisted on is less than 1 hour. The
person who generated the most discussion, at least this year, was the
new Attorney General. That is a pretty important job. There should have
been quite a bit of discussion. In fact, it was our intention--the
intention of the standing order that Senator Lankford and I filed--and
it will continue to be the intention, that that person will still have
30 hours of debate if anybody thought that was necessary.
Supreme Court justices, Cabinet members, and circuit judges would all
have 30 hours of debate. But even with the Attorney General, less than
4 hours was used to talk about what everybody listening would believe
is one of the most important jobs possible.
For the 10 other nominees who have had cloture filed on them prior to
this week, almost no debate time was used. In fact, again, even in the
case of Attorney General William Barr, four-thirtieths of the time was
used. That means that twenty-six-thirtieths of the time wasn't used,
but we couldn't use it for anything else. We couldn't use it for
another nominee. We couldn't use it for a piece of legislation. We
couldn't use it to talk about how the government spends its money
basically to debate an appropriations bill that would be on the floor.
It just couldn't happen.
Last week, we confirmed Bridget Bade to be a judge of the Ninth
Circuit Court of Appeals. We used less than 1 minute of the 30 hours
that the minority insisted on--less than 1 minute of the 30 hours--but
nothing else could be done during those 30 hours.
Every Member of the Senate knows that the abuse of this process is
done to delay and to keep us from confirming not only other people who
need to be confirmed but to keep us from getting to the work we need to
get to. It prevents us from taking up other legislation. It prevents us
from doing our job.
It has to be discouraging when you talk to people in the future about
this: Would you be willing to serve as the Assistant Secretary of
Commerce for something? Would you be willing to serve as the Assistant
Deputy Secretary of Treasury for IRS? And, by the way, you really can't
start anything new, and you may never get voted on. When you do get
voted on, you may not actually be able to serve in that job for more
than a few months if you serve the rest of the term of this Presidency.
People will begin to say no, and we all know that.
Today we have 140 people who are waiting to be voted on for jobs they
have been nominated for. They are now out of committee. They have done
all the paperwork. They have cleared all of the days. They have done
everything they needed to do.
When President Reagan was President, the average number of days
between the time you were voted out of committee and the time you were
voted on on the floor was 5 days. By the time you had gotten out of
committee, you had already been weeks, if not months, into this
process. Five days later, you would get to know whether or not you were
going to get the job.
With President Trump, the average number of days between the time you
got out of committee and the time you got voted on was 55. That is 55
days when you are waiting to do the job that you have been willing to
do, have answered every question you have been asked, have gone through
all of the background checks you needed, and you are still waiting.
This system cannot work that way. We would never get everybody
confirmed that a President is required to nominate, which means we also
would never have time to get the other things done that the Senate
needs to do.
I think the step we took today was an important one. We will talk
about another category of people to be confirmed later today--district
judges. I believe we will be able to make that change as well. Again,
the Cabinet, the Supreme Court, and the circuit judges would all still
have 30 hours available to them.
Our friends on the other side may continue to insist on that, but if
they do, I guarantee that if you run a clock on this, in all likelihood
nobody will ever use the 30 hours to talk about the nominee. If we
didn't do it to talk about William Barr, we are not hardly going to do
it to talk about anybody else.
Debate is an important thing. Having the right people in the right
job is an important thing. It is also important to have them in the
right job at the right time. Today, I believe the Senate is taking
important steps to return back to the traditional role of the Senate in
confirming nominees and giving Presidents an opportunity to do the job
they were elected to do.
With that, I yield the floor.
The PRESIDING OFFICER (Mrs. Blackburn). The Senator from West
Virginia is recognized.
Mr. MANCHIN. Madam President, I thank my colleague. He has more
institutional knowledge, has been here longer, and understands this
process. I haven't been here as long, but I am trying to put a little
common sense to it, and I am having a hard time.
I am not naive enough to stand up thinking that if I could have given
my speech before we took that vote, it might have made any difference.
I wish it would have. I wish I could have. But it didn't happen that
way.
Words cannot express how disappointed I am--I truly am--to stand here
as the only Member of the Senate who voted against the nuclear option
in 2013 when it was a Democratic proposal and in 2017, the Republican
proposal, and now what we did today. I have consistently voted against
this because it is not who we are, and it is not about what we are
about either.
For those who don't know, the nuclear option is strictly a gimmick
that allows the majority party to truly steal the power of debate and
the power of the filibuster from individual Senators. Why does it
matter? Because so much of our influence as Senators comes from our
power to filibuster. It is also the most powerful tool we have to force
compromise and to stand up for the people we represent.
In spite of the importance of this power, everyone else in the body
who has had the chance has voted to use the nuclear option to lower the
votes required to end debate from 60 votes to a simple majority of 50
plus 1 on different types of nominees. That is a tragedy for our
constituents. For this country, it is even more of a tragedy. For the
institution of the Senate, it is a disaster.
This debate is not new, and I would not be honoring the legacy of the
late Senator Robert C. Byrd, whose seat I sit in, if I did not take the
opportunity to at least recite a little history here on the floor of
the Senate.
The Founding Fathers always intended the Senate to be deliberate, and
we are known as the most deliberate body in the world.
George Washington himself was said to have told Thomas Jefferson that
the Senate should serve as a ``cooling saucer'' for legislation from
the House. As you know, the House works on a simple majority; 218
Democrats or 218 Republicans can do anything they wish. The Senate is
supposed to temper that down.
This body was created to protect the rights of individual States--
small States in particular. In the Federalist Papers, John Jay notes
that ``in this spirit it may be remarked, that the equal vote allowed
to each State, is at once a constitutional recognition of the portion
of sovereignty remaining in the individual States, and an instrument
for preserving that residuary sovereignty.''
The filibuster is essential to preserving that residual sovereignty,
and diminishing that power should matter to anyone who comes from a
small or rural State like my State of West Virginia. This power was
also meant to empower individual Members, like me, who often find
themselves in the minority of their own party.
That doesn't mean we can't make changes for efficiency. But today's
rule
[[Page S2222]]
change and the two that came before it in 2013 and 2017 were not meant
to make this place more efficient; they were meant to take power from
each and every Senator. That means you and I have given up our power
and our ability to represent our States.
Before 1917, there was no way to end a debate in the Senate
whatsoever, from our beginning, so one Member could grind this place to
a halt for however long they felt necessary. Then, at the urging of
President Woodrow Wilson, the Senate adopted rule XXII that year, 1917,
and first used it 2 years later to end a filibuster against the Treaty
of Versailles.
For the next 80-plus years, some tweaks were made to the rule and its
reach was expanded, but there was no real threat to the existence of
the rule. In 2005, that all changed when then-Majority Leader Bill
Frist made the first serious effort to change the rules of the Senate
and reduce the power of every Member of this body by deploying the
nuclear option. None other than John McCain and Robert C. Byrd, our
dear departed friends, teamed up to form the Gang of 14 that cut a deal
on a package of nominations that took the nuclear option off the
table--but only for a little while.
In 2013, when Harry Reid and Democrats--my side of the aisle--voted
to end the filibuster for Presidential nominees, I was one of only
three Democrats to fight and vote against it. The other two, Mark Pryor
and Carl Levin, are no longer serving in the Senate today, but we
represented all wings of the Democratic Party--from the liberal end, to
the conservative end, to the moderate centrist end. We stood together
despite our differences because we knew that it would forever lessen
the institution of the Senate and that it would come back to bite us
when we weren't in the majority. That was the point we made at that
time. That was the argument we made and pleaded with our colleagues.
For the past 5 years, we have seen the consequences of those actions.
Today, our Republican friends are using the same excuse our Democrats
used--historic obstruction. Democrats are using the same argument today
that our Republican friends have used--unprecedented overreach. This is
the hypocrisy that makes us understand why people think Washington
sucks. It is on both sides. No one is innocent on this.
In 2013, the current majority leader, Mitch McConnell, was furious
about what the Democrats were threatening to do. He called it breaking
the rules to change the rules. And I agreed with him. He was right. I
voted with him.
In 2013, I heard and listened to Leader McConnell when he said:
The American people decided not to give the Democrats the
House, or to restore the filibuster proof majority they had
in the Senate back in 2009, and our Democratic colleagues
don't like that one bit. They just don't like it. The
American people are getting in the way of what they'd like to
do. So they are trying to change the rules of the game to get
their way anyway.
This is precisely what the American people decided about Republicans
in the 2018 election, and the Republicans have now gone down the same
path Leader McConnell warned us against. You would think that at least
we would understand the definition of ``insanity''--doing the same
thing over and over, thinking we are going to get a different outcome.
It doesn't work that way.
Leader McConnell went on to say: ``So look, I realize this sort of
wishful thinking might appeal to the uninitiated newcomers in the
Democratic conference who served exactly zero days in the minority, but
the rest of you guys should know better.'' And he is absolutely
correct. Everyone should know better. Those of you who have been in the
minority before should know better because what goes around comes
around.
His final warning, which I am disappointed my Republican friends
didn't listen to, was this:
If you think this is in the best interest of the United
States Senate and the American people, to make advice and
consent mean effectively nothing, obviously you can break the
rules to change the rules to achieve that.
That is what we have done.
But some of us have been around here long enough to know
that the shoe is sometimes on the other foot.
While the majority leader and minority leader have flipped their
positions and their perspective today, the lesson is clear: Breaking
the Senate for political expedience will, over time, hurt all of us
and, most importantly, our constituents and the American people.
I firmly believe the filibuster is a vital protection of minority
views and exactly why the Framers of our Constitution made the Senate
the cooling saucer. Lately, both parties have lit the saucer on fire
and thrown it out the window. The Senate was set up by our Founding
Fathers to force us to work together. Think about that. They knew that
whatever we receive from the House would be hot as a firecracker.
Someone had to put out the flame. Someone had to know to say: That is
not who we are as a country, and it is not basically who we want to be
as a country.
We are not the House of Representatives, and by golly, we are going
there at a rapid pace--a rapid pace. It seems that when people come
from the House, they bring that House mentality--scorched and burned
earth. That is not what we were set up to be. This is a very different
body. It is the most unique body in the world.
As the late great Robert C. Byrd himself said in the months before
his death, ``While I welcome needed reform, we must always be mindful
of our responsibilities to preserve this institution's special
purpose.'' And we are better than this, he said.
I always tell people back home that I can't vote for something unless
I can go home and explain it. I don't care if it is an idea that my
friends on the Republican side have. It makes sense to me. My
constituents understand it. I go home and vote and tell them why I
voted with my Republican friends. If I vote with my Democratic friends
and it makes sense, I tell them the same. If I vote against something
of my Republican friends or Democrats, I explain to them. It has
nothing to do with politics; it is policy. Does it make sense? Will it
help the constituents of the State of West Virginia? Will it make my
country stronger and better? That is really what I care about. That is
the purpose of my being here.
For the life of me, I can't figure out how anyone who voted for this
can explain it when they go back home, because we have given our power
away. Every time you do this, you continue to erode the powers you have
as a Senate by the Constitution of the United States of America and by
the Founding Fathers who created this body. Now, how we can do it in
such a willing way makes no sense. How do you look people in the eye
and say: I gave up my individual power to represent you. How do I do
that? I am not going to do it. I am not going to do it, and I haven't
done it, nor will I ever do it.
You can say it was because of obstruction. Well, if there is an
obstruction, there is a way around obstructions. You drive around
obstructions. You have obstructions in your life every day. You learn
to work around obstructions. It is basically by communicating. It is
basically by sitting down and looking at the other side, the other
point of view.
I have always said that I am not always right. I need help. But I am
not always wrong either. I have, hopefully, some input, and I try to
make that as a balance as I approach these things. And Republicans
are--what they have done today is basically the same. We don't have
obstructions we can't overcome if we respect each other. You can't
blame everybody for everything. You can't blame somebody else for
something you are unwilling to do. You can't blame somebody else if you
don't have the patience to sit down and talk through your problems and
try to understand better. You can't blame somebody else if you are not
willing to give and take. That is what the whole process is about if
you are going to be successful in life--anyone who has been successful.
It is not ``my way or the highway''; it is ``our way going down the
highway together.''
This move is a betrayal of the people we represent, and everyone in
this body is complicit. It is a shame that we are going to go back and
try to explain our positions with the votes that were made today. It is
just a shame. It should never have come to this. For hundreds of years,
we have managed to overcome obstructions and preserve our Founders'
vision for the Senate, but for the last 6 years, Members on both sides
of this aisle have decided that is no longer possible.
[[Page S2223]]
This abdication of our power and responsibility is nothing more than
weakness in the face of partisanship. This is truly tribal. What tribe
do you belong to? Do you belong to the Democratic tribe, or do you
belong to the Republican tribe? I am sorry, I belong to the American
tribe, and I am going to stay right in the tribe I belong to, and I am
going to be loyal to the American tribe.
This abdication of our power and responsibility is truly, truly a
weakness in the face of partisanship, and my colleagues need to stand
up to the leaders. We have given too much power to the leadership here.
I remember the day when people used to talk about, oh, the committee
chairman had so much power. They could run a bill and make sure it got
on the floor and got voted on. Those days are gone. There is always a
reason why something doesn't go to the floor, even if it goes through
the committee process. Something comes out of the committee
unanimously, and it still doesn't come to the floor. Try to explain
that one.
To protect the powers of the Senators as representatives for their
States and to protect the institution of the Senate, that is not that
hard, and I know because I have done it. I have voted against my
colleagues on my side of the aisle. I was up front, and I was honest. I
said: I am sorry; I can't go home and explain that. It doesn't make
sense at all, and I am not voting for it.
If they want to get my vote, they are going to have to sit down and
say: What would it take to get your vote?
And I would explain to them: You have to adjust this or adjust this
and make sense.
It is fair to the minority, and if we were in the majority, or vice
versa, the majority should be fair to us. If you can work through that,
you can make it. You can make it on this side. If not, it is going to
be a miserable 6 years for every Senator who just got elected, if we
don't come back to reality.
I know I keep calling it an individual right, but it really isn't. It
is a trust passed down from the Senators who preceded us. They had the
will and they had the determination to make this place work, and we
have given up on that. This belongs to our constituents, the power we
have here, and we have no power to protect them now.
The solution to obstruction isn't ruining the Senate. It is outreach.
It is compromise. It is finding solutions that make a bunch of people
on the far left and the far right very uncomfortable and mad
sometimes. Until we are willing to do that, the hard work of this
institution is going to get worse. So it is not that we are fractured,
we are almost broken, and it was never intended. I have never seen
anything broken that we couldn't fix. I hope we come to our senses. I
hope we act as Americans. I hope we understand basically the whole
thought process from our Founding Fathers, who had the great insight of
having two bodies in a bicameral, not a unicameral, branch that was
supposed to work to help each other and protect us from ourselves.
Right now, we have become the worst enemy of ourselves. I hope we
change.
Thank you.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. STABENOW. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Michigan.