[Congressional Record (Bound Edition), Volume 149 (2003), Part 8]
[Senate]
[Pages 11006-11008]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         SUBMITTED RESOLUTIONS

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SENATE RESOLUTION 138--TO AMEND RULE XXII OF THE STANDING RULES OF THE 
   SENATE RELATING TO THE CONSIDERATION OF NOMINATIONS REQUIRING THE 
                    ADVICE AND CONSENT OF THE SENATE

  Mr. FRIST (for himself, Mr. Miller, Mr. McConnell, Mr. Stevens, Mr. 
Santorum, Mr. Kyl, Mrs. Hutchison, Mr. Allen, Mr. Lott, Mr. Hatch, Mr. 
Cornyn, and Mr. Chambliss) submitted the following resolution; which 
was referred to the Committee on Rules and Administration:

[[Page 11007]]



                              S. Res. 138

       Resolved, That rule XXII of the Standing Rules of the 
     Senate is amended--
       (1) in paragraph (2), by striking ``Notwithstanding'' and 
     inserting ``Except as provided by paragraph 3 and 
     notwithstanding''; and
       (2) by adding at the end the following:
       ``3. (a) The provisions of this paragraph shall apply to 
     the considerations of nominations requiring the advice and 
     consent of the Senate.
       ``(b)(1) Notwithstanding the provisions of rule II or rule 
     IV or any other rule of the Senate and after a nomination 
     requiring the advice and consent of the Senate has been 
     pending before the Senate for at least 12 hours, a motion 
     signed by 16 Senators to bring to a close the debate on that 
     nomination may be presented to the Senate and the Presiding 
     Officer, or clerk at the direction of the Presiding Officer, 
     shall at once state the motion to the Senate, and 1 hour 
     after the Senate meets on the following calendar day but 1, 
     he shall lay the motion before the Senate and direct that the 
     clerk call the roll, and upon the ascertainment that a quorum 
     is present, the Presiding Officer shall, without debate, 
     submit to the Senate by a yea-and-nay vote the question: `Is 
     it the sense of the Senate that the debate shall be brought 
     to a close?'.
       ``(2) If the question in clause (1) is agreed to by three-
     fifths of the Senators duly chosen and sworn then the 
     nomination pending before the Senate shall be the unfinished 
     business to the exclusion of all other business until 
     disposed of.
       ``(3) After cloture is invoked, no Senator shall be 
     entitled to speak in all more than 1 hour on the nomination 
     pending before the Senate and it shall be the duty of the 
     Presiding Officer to keep the time of each Senator who 
     speaks. No dilatory motion shall be in order. Points of order 
     and appeals from the decision of the Presiding Officer shall 
     be decided without debate.
       ``(4) After no more than 30 hours of consideration of the 
     nomination on which cloture has been invoked, the Senate 
     shall proceed, without any further debate on any question, to 
     vote on the final disposition thereof to the exclusion of all 
     motions, except a motion to table, or to reconsider and one 
     quorum call on demand to establish the presence of a quorum 
     (and motions required to establish a quorum) immediately 
     before the final vote begins. The 30 hours may be increased 
     by the adoption of a motion, decided without debate, by a 
     three-fifths affirmative vote of the Senators duly chosen and 
     sworn, and any such time thus agreed upon shall be equally 
     divided between and controlled by the Majority and Minority 
     Leaders or their designees. However, only one motion to 
     extend time, specified above, may be made in any 1 calendar 
     day.
       ``(5) Notwithstanding other provisions of this rule, a 
     Senator may yield all or part of his 1 hour to the majority 
     or minority floor managers of the nomination or to the 
     Majority or Minority Leader, but each Senator specified shall 
     not have more than 2 hours so yielded to him and may in turn 
     yield such time to other Senators.
       ``(6) Notwithstanding any other provision of this rule, any 
     Senator who has not used or yielded at least 10 minutes, is, 
     if he seeks recognition, guaranteed up to 10 minutes, 
     inclusive, to speak only.
       ``(c)(1) If, upon a vote taken on a motion presented 
     pursuant to subparagraph (b), the Senate fails to invoke 
     cloture with respect to a nomination pending before the 
     Senate, subsequent motions to bring debate to a close may be 
     made with respect to the same nomination. It shall not be in 
     order to file subsequent cloture motions on any nomination, 
     except by unanimous consent, until the previous motion has 
     been disposed of.
       ``(2) Such subsequent motions shall be made in the manner 
     provided by, and subject to the provisions of, subparagraph 
     (b), except that the affirmative vote required to bring to a 
     close debate upon that nomination shall be reduced by 3 votes 
     on the second such motion, and by 3 additional votes on each 
     succeeding motion, until the affirmative vote is reduced to a 
     number equal to or less than an affirmative vote of a 
     majority of the Senators duly chosen and sworn. The required 
     vote shall then be a simple majority.''.

  Mr. HATCH. Mr. President, I rise today to offer my support for the 
introduction of this resolution which offers a more than reasonable 
proposal to fix a confirmation process that Members on both ides of the 
aisle agree is broken.
  Simultaneous filibusters of two circuit court nominees who would 
clearly be confirmed in up-or-down votes are unprecedented. From what I 
understand, the minority has plans for even more filibusters of 
judicial nominees. The resulting politicization of the confirmation 
process threatens the untarnished respect in which we hold our third 
branch of Government--the one branch of Government intended to be above 
political influence.
  There is also a significant constitutional consideration at stake 
here. In its enumeration of Presidential powers, the Constitution 
specifies that the confirmation process begins and ends with the 
President. The Senate has the intermediary role of providing advice and 
consent. Here is the precise language of article II, section 2:

       The President . . . shall nominate, and by and with the 
     Advice and Consent of the Senate, shall appoint . . . 
     Ambassadors, other public Ministers and Consuls, Judges of 
     the Supreme Court, and all other Officers of the United 
     States, whose Appointments are not herein otherwise provided 
     for, and which shall be established by Law[.]

  There is no question that the Constitution squarely places the 
appointment power in the hands of the President. As Alexander Hamilton 
explained the The Federalist No. 66:

       It will be the Office of the President to nominate, and, 
     with the advice and consent of the Senate, to appoint. There 
     will, of course, be no exertion of choice on the part of the 
     Senate. They may defeat one choice of the Executive, and 
     oblige him to make another; but they cannot themselves 
     choose--they can only ratify or reject the choice he may have 
     made.

  It is significant that the Constitution outlines the Senate's role in 
the appointments process in the enumeration of Presidential powers in 
article II, rather than in the enumeration of congressional powers in 
article I. This choice suggests that the Senate was intended to play a 
more limited role in the confirmation of Federal judges.
  Hamilton's discussion of the appointments clause in The Federalist 
No. 76 supports this reading. Hamilton believed that the President, 
acting alone, would be the better choice for making nominations, as he 
would be less vulnerable to personal considerations and political 
negotiations than the Senate and more inclined, as the sole decision 
maker, to select nominees who would reflect well on the presidency. The 
Senate's role, by comparison, would be to act as a powerful check on 
``unfit'' nominees by the President. As he put it, ``[Senate 
confirmation] would be an excellent check upon a spirit of favoritism 
in the President, and would tend greatly to prevent the appointment of 
unfit characters from State prejudice, from family connection, from 
personal attachment, or from a view to popularity.'' This is a far cry 
from efforts we have seen over the past couple of years to inject 
ideology into the nominations process, and to force nominees to 
disclose their personal opinions on hot-button and divisive policy 
issues like abortion, gun control, and affirmation action.
  Historically, deliberation by the Senate could be quite short, 
especially when compared to today's practice. Take, for example the 
1862 nomination and confirmation of Samuel F. Miller to the U.S. 
Supreme Court. He was nominated, confirmed, and commissioned all on the 
same day! The Senate formally deliberated on his nomination for only 30 
minutes before confirming him. His experience was not the exception. 
Confirmations on the same day, or within a few days, of the nomination 
were the norm well into the 20th century.
  Contrast the nominations of Miguel Estrada and Priscilla Owen. They 
were appointed 2 years ago and have yet to be afforded an up-or-down 
vote by the Senate. Mr. Estrada has now endured six cloture votes more 
than 3 months after debate on his nomination began. Justice Owen's 
nomination has been subjected to two cloture votes. Clearly, this is a 
far cry from the role for the Senate that the Framers contemplated. 
What was enumerated in the Constitution as advice and consent has in 
practice evolved to negotiation and cooperation in the best cases, and 
delay and obstruction in the worst cases--like that of Mr. Estrada and 
Justice Owen.
  The Estrada and Owen nominations illustrate what is wrong with our 
current system of confirming nominees. Despite a bipartisan majority of 
Senators who stand ready to vote on these nominations, a vocal minority 
of Senators is precluding the Senate from exercising its advice and 
consent duty. This is tyranny of the minority, and it is unfair.
  It is unfair to the nominee, who must put life on hold while hanging 
in endless limbo. It is unfair to the judiciary, our co-equal branch of 
Government, which needs its vacancies filled. It is

[[Page 11008]]

unfair to our President, who has a justified expectation that the 
Senate will give his nominees an up-or-down vote. And it is unfair to 
the majority of Senators who are prepared to vote on this nomination.
  Many of my colleagues, both Republicans and Democrats, agree that the 
confirmation process is broken. Senator Feinstein stated in a recent 
letter to the White House that the judicial confirmation process is 
``going in the wrong direction'' and is potentially ``spiral[ing] out 
of control.'' Senator Schumer has also indicated that his goal is to 
repair the ``broken'' judicial confirmation process and the ``vicious 
cycle'' of ``delayed'' Senate nominees.
  The resolution submitted today sets forth a proposal that strikes a 
balanced solution by allowing for ample, yet not endless, debate on 
nominations. It provides that cloture may be filed only after a 
nomination has been pending before the Senate for a minimum of 12 
hours. Sixty votes are required to invoke cloture on the first motion. 
After that, the number of required votes on successive cloture motions 
would decrease to 57, then to 54, then finally to a simple majority of 
Senators present and voting. A successive cloture motion cannot be 
filed until disposition of the prior cloture motion, thereby ensuring 
that a nomination cannot be confirmed by a simple majority vote until a 
minimum of 13 session days have elapsed.
  This proposal has its roots in S. Res. 85, which was submitted by 
Senator Miller on March 13 of this year. In addition, it is similar to 
a 1995 proposal of Senator Harkin and Senator Lieberman, which also 
provided for graduated vote requirements to invoke cloture. In support 
of their proposal, Senator Harkin stated, ``I may not agree with 
everything that Republicans are proposing, but they are in the majority 
and they ought to have the right to have us vote on the merits of what 
they propose.'' With regard to judicial nominations, I could not agree 
more.
  Senator Harkin also cited the research of a bipartisan group named 
``Action Not Gridlock,'' which commissioned a poll in the summer of 
1994 showing that ``80-percent of independents, 74-percent of 
Democrats, and 79-percent of Republicans said that when enough time was 
consumed in debate, that after debate a majority ought to be able to 
get the bill to the floor. That a majority ought to be able, at some 
point, to end the debate.'' I would be surprised if a similar poll 
today would yield substantially different results. I think that the 
American people understand the fundamental injustice of a minority's 
ability to block an up-or-down vote on nominations.
  In support of their 1995 proposal, Senator Lieberman stated, ``Some 
say there is a danger of a tyranny of the majority. I say that there is 
a danger inherent in the current procedure of a tyranny of the minority 
over the majority, inconsistent with the intention of the Framers of 
the Constitution.'' Today, the ``tyranny of the minority'' to which 
Senator Lieberman referred over 8 years ago is in effect and wielding 
the filibuster in a most unjust manner against President Bush's 
exceptional nominees who have bipartisan support. I support today's 
resolution because it will dilute the tyrannical power of the 
filibusters against these nominees.
  I have alluded to my frustrations with the current filibusters of 
President Bush's nominations. But the bottom line is this: many of us 
agree that we must try to repair the broken confirmation process. A 
bipartisan majority of Senators stands ready to vote on the two 
nominees who are currently being filibustered. This resolution is a 
reasonable accommodation that preserves the opportunity for extended 
debate, yet allows Senators to, eventually, do their duty and vote. I 
hope that my colleagues will support this resolution.

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