[Congressional Record (Bound Edition), Volume 149 (2003), Part 12]
[Senate]
[Pages 16868-16869]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           FILIBUSTER REFORM

  Mr. FRIST. Madam President, last Tuesday, the Committee on Rules and 
Administration favorably reported S. Res. 138, a proposal to amend the 
Senate's cloture rule. The committee's action represents an important 
milestone on the road to filibuster reform. It brings the Senate one 
key step closer to ending filibusters on nominations. On May 9 of this 
year, I introduced S. Res. 138, along with a bipartisan group of 11 
cosponsors. Our purpose was to respond to a disturbing change in the 
way the Senate considers nominations.
  Lengthy and apparently implacable filibusters have erupted on two 
judicial nominations. Although it has long been clear that a majority 
of Senators stand ready to confirm Miguel Estrada and Priscilla Owen, 
it is increasingly obvious that a minority of Senators never intends to 
permit these nominations to come to a vote.
  Beyond these filibusters are the expressed threats to filibuster 
additional nominees, threats that may well materialize after the Senate 
reconvenes in July.
  Given the record already established this year, we have every reason 
to take these threats seriously and to imagine they will be executed. 
Killing judicial nominations by filibuster is not simply business as 
usual in the Senate. Up until now, no judicial nomination has ever been 
rejected in that fashion.
  Even the failed Supreme Court nomination of Abe Fortas 35 years ago 
is not truly an exception to this rule. In the Fortas case, one cloture 
vote was taken with 45 Senators supporting cloture and 43 opposed. At 
least five additional Senators who missed that vote expressed 
opposition to cloture. Yet another who supported cloture expressed 
opposition to the nomination.
  It was far from plain, even to the nominee, that a majority was ready 
to confirm the nomination, much less a supermajority was available to 
invoke cloture.
  After a single cloture vote taken four session days after the 
nomination was brought to the floor, the nominee asked that his name be 
withdrawn.
  These facts differ dramatically from those pertinent to filibusters 
underway in this Congress and from the rest of Senate cloture history 
on judicial nominations.
  Thus far, we have had six cloture votes on Mr. Estrada and two 
cloture votes on Justice Owen, with more than a majority of Senators 
but less than a supermajority, favoring cloture. So the filibusters 
endure with no end in sight.
  Prior to this year, the record number of cloture motions filed on any 
single judicial nomination was 2, and 17 such motions were filed 
overall. In a majority of those cases, cloture was invoked and 
confirmation followed. Even when cloture failed, confirmation followed. 
In all cases, the nominations were brought to a vote, the full Senate 
worked its will, and the nominees were confirmed.
  The Estrada and Owen filibusters and their threatened progeny are 
anything but customary. They represent a disturbing change in Senate 
norms, a change that has been defended on untenable grounds.
  Proponents of the filibusters claim they have no choice. With the 
Senate and its committees controlled by the party of the President, 
they have no choice but to filibuster, or so they say. Their logic is 
facile but faulty, and it runs contrary to many years of Senate 
tradition.
  For 70 percent of the 20th century, one party controlled the White 
House and the Senate. This was the case for 6 years of President 
Wilson's term and the entire terms of Presidents Harding, Coolidge, and 
Hoover. It was the case through 12 years of President Franklin 
Roosevelt and 6 years of President Harry Truman. It was the case for 
all of the Kennedy-Johnson years, all of President Carter's years, 6 of 
President Reagan's years, and 2 years under President Clinton. In some 
of those eras, the Senate minority was Republican; in others 
Democratic. But at no time did those minorities resort to partisan 
filibusters of judicial nominees. At no time did those minorities deny 
the Senate the right to vote on confirmation.

[[Page 16869]]

  What is happening now is aberrant. It breaks with Senate traditions. 
If the trend begun with the Estrada and Owen filibusters is not 
arrested, a disturbing new practice will take root.
  Partisan filibusters to kill nominations will lead inevitably to more 
of the same in retribution. Left to fester, things can only get worse. 
The outcome cannot be good for current or future Senates, for current 
or future Presidents, for current or future nominees.
  Those of us concerned about these consequences have two fundamental 
choices: We can either acquiesce to this partisan change in Senate 
norms, or propose a reform to Senate rules. Unwilling to accept a 
change in Senate traditions that will damage and weaken this 
institution, we offer a targeted and limited amendment to the rules.
  Our remedy is narrow, aimed not against the filibuster generally, but 
against filibusters on nominations. If adopted, our proposal would have 
declining cloture requirements of 60, 57, 54, 51, and then a simple 
majority on successive cloture votes. The first cloture motion cannot 
be filed until a nomination has been pending for 12 hours. Successive 
cloture motions cannot be filed until the prior cloture motion has been 
resolved. As under current rules, each cloture motion will take 2 days 
to ripen. Our proposal is true to Senate traditions. It will permit 
robust debate and time for reflection, but also allow the Senate to 
reach a definite resolution on confirmations.
  As I have said on this floor and before the committee, the filibuster 
is not sacrosanct. When it has been abused, it has been reformed. The 
very cloture rule itself represented just such a response to filibuster 
abuse. It has been amended five times since it was first adopted in 
1917. Moreover, the very modest debate limitations we propose are 
significantly less restrictive than more than 25 provisions now in 
statute law that expedite Senate debate on measures ranging from budget 
reconciliation to the execution of war powers.
  Madam President, some on the other side of the aisle have said our 
proposal is too extreme in that it would undermine their capacity to 
use existing rules to reshape Senate norms. Others from the same side 
have said our reform is too narrow because it does not attack 
filibusters in all circumstances.
  My response is this: We must fix what is damaged, but we do not 
require radical surgery. We shall reform our rules to repair what is 
broken and restore traditions. Beyond that, we shall leave our rules 
alone.
  Our opponents contend that our narrow reform will inevitably lead to 
the wholesale destruction of the filibuster in the Senate and that it 
will convert the Senate into a smaller copy of the House. I know of 
few, if any, Senators who would support that outcome, and I regard such 
predictions as fanciful. This proposal does not attack the use of 
filibuster on legislation. Instead, it builds on an existing tradition 
of distinctive procedures for the consideration of executive business.
  One of those traditions is a 1980 precedent urged by Majority Leader 
Byrd which obviates debate on a motion to proceed to a nomination. 
Using the logic of our opponents, one could theorize that a next 
consistent step would be to mimic this precedent and kill debate on a 
motion to proceed to legislation. But 23 years have passed and that 
next step has not been taken. In its wisdom, the Senate has known how 
far it must go to resolve particular problems and when it must stop.
  Our opponents argue that filibuster reform will undermine the balance 
of power between the President and the Senate. They claim if we adopt 
this proposal, the Senate will diminish itself and become the 
President's handmaiden. I do not desire that result, and I strongly 
disagree with that conclusion.
  What their position amounts to is that Senate power to check a 
President can only be vindicated if a minority prevails against a 
majority ready to confirm.
  Once again, for 70 of the last 100 years in this century, one party 
controlled both the Senate and the White House. Yet filibustering 
nominations was unheard of most all of that time. Was the Senate the 
President's handmaiden then and only now has awakened to its 
constitutional purpose?
  Over two centuries, a number of judicial nominations failed on the 
Senate floor. Filibusters were unnecessary to defeat Clement 
Haynsworth, Harold Carswell, or Robert Bork, much less many earlier 
nominees, starting with President Washington's nominee, John Rutledge.
  The full Senate, no President's handmaiden, asserted constitutional 
checks and balances. If we can only affirm Senate power by the 
filibuster, then we have come to a new and very unfortunate place. 
Thus, we propose to reform Senate rules in order to restore Senate 
traditions.
  Filibuster reform is imperative. It will enable all Senators to meet 
their constitutional responsibility to advise and consent. With 
Senators so empowered, the voice of all Americans will again be heard 
on these matters.

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