[Congressional Record (Bound Edition), Volume 151 (2005), Part 6]
[Senate]
[Pages 7534-7535]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. ALLARD. Mr. President, I rise this morning to clear up the 
apparent confusion and misinformation surrounding the confirmation of 
judicial nominations.
  I hope to shed some light on one of our most important obligations 
and express to the American people the truth about the partisan 
obstruction of our constitutional duties.
  Article II of the Constitution, known as the advice and consent 
clause, requires Senate approval of judicial nominations. This 
obligation is only fulfilled when the Senate allows an up-or-down vote 
on a nominee.
  The vote acts as an expression of the body's ``advice and consent,'' 
but this expression simply cannot occur if it is blocked by a 
filibuster.
  I strongly believe that the use of a filibuster to block judicial 
nominations is not only unprecedented minority obstruction but an 
attack on the Constitution itself.
  The decision to vote on a judicial nomination or to obstruct the 
nominee pits the Constitution against a mere tool of parliamentary 
procedure; that is the Constitution versus a Senate rule called the 
filibuster.
  I urge my colleagues to put our faith in the founding document, not a 
filibuster rule. To do otherwise degrades the Constitution and 
relegates it to the level of an arbitrary rule of procedure. Let me 
make it clear.
  I am not going to stand idly by as parliamentary maneuvers run 
roughshod over the Constitution and centuries of Senate practices.
  The Republican majority is not establishing new precedent. We are 
simply trying to restore the rights of the Constitution and the 
practices that this body has observed for over 200 years.
  If the Senate allows the filibusters of judicial nominations to 
continue, it will be acquiescing in a minority's unilateral change to 
Senate procedure and practices; requiring 60 votes for the confirmation 
of judges through the rules, undermining the Constitution's requirement 
for a 50-vote majority.
  The practical effect is an amendment to the Constitution without the 
approval of the American people.
  My colleagues on the other side would have everyone believe that the 
filibuster is being eliminated. But that simply is not the case.
  They don't mention that the filibuster never existed on judicial 
nominations. In fact, it never existed until the Democrats broke with 
over 200 years of Senate procedure and unleashed the filibuster last 
Congress to block 10 judges.
  It was not a usual way of doing business. It was the first time in 
the history of the Senate the filibuster was used. The Democrats want 
to have it both ways. They want to change the history of the Senate by 
blocking judges with the filibuster, rewrite the Constitution by using 
the filibuster to thwart the advice and consent clause, and then blame 
Republicans for simply saying, ``let's follow the Constitution and 
allow votes on judges, lets follow Senate tradition.''
  They falsely portray our actions to preserve the advice and consent 
clause as something akin to minority persecution.
  But what they don't mention is that the filibuster is not a law. It 
is not in the Constitution. In fact, the Founding Fathers didn't even 
envision a filibuster weapon at all.

[[Page 7535]]

  Even more astonishing is the fact that several of the Democrats who 
are now ardent supporters of the judicial filibuster are the same ones 
who tried to eliminate the filibuster entirely just a few years ago, 
not only on judicial nominations but on everything, including 
legislative actions.
  It is the Democrats who are altering history. It is the Democrats who 
are unleashing a weapon that threatens to alter the traditions and 
precedent of the Senate.
  It is the Democrats who are revising the history of our Founding 
Fathers and undermining the three branches of our separate but equal 
system of government.
  For example, from 1789 until 1806 the Senate had a traditional 
``motion for the previous question'' in its rules. There was no 
intention to create a Senate where a filibuster was prominent. The 
filibuster was not used in any significant way at all until the 1840s, 
and it was never used for judicial nominations.
  The Senate's original cloture rule, in 1917, did not even apply to 
nominations because no Senator had ever used a filibuster to block a 
nomination.
  Let me repeat that, up until 1917 the Senate's original cloture rule 
didn't even apply to nominations because no Senator had ever used a 
filibuster to block a nomination.
  The rule did not apply, not because the Senate approved of such 
filibusters but because Senators never contemplated them.
  A thorough examination of Senate history clearly demonstrates that 
there is no precedent for the Democrats' use of the filibuster to 
permanently block the confirmation of judicial nominations.
  Some Democrats claim that Republicans want to destroy the filibuster 
for all matters. This is simply not true.
  What is true is that the only sitting Members of the Senate on record 
supporting the elimination of the filibuster are Democrats.
  In 1995, 19 Senators all Democrats, not one Republican, voted to 
eliminate the filibuster for all matters, not only judicial but also 
legislature. Nine of the 19 Democrats who voted for the Harkin-
Lieberman rule change remain in this body today.
  And all of those Senators now support the filibustering of judicial 
nominations. If it was ok to end the filibuster rule in 1995, why is it 
not ok today?
  Let me just share some of the comments made by those Democratic 
Senators in 1995:

       For too long, we have accepted the premise that the 
     filibuster rule is immune. Yet, Mr. President, there is no 
     constitutional basis for it. We impose it on ourselves. And 
     if I may say so respectfully, it is, in its way, inconsistent 
     with the Constitution, one might almost say an amendment of 
     the Constitution by the rules of the U.S. Senate.

  The Democrats also said:

       [A] filibuster ought to be used to slow down, temper 
     legislation, alert the public, change minds, but should not 
     be used as a measure whereby a small minority can totally 
     keep the majority from voting on the merits of a bill.

  Now 10 years later, evidently what is good for the goose can forget 
about the gander.
  Turning to the issue of Senate rules, the Democrats claim that 
changing the rules of the Senate is unprecedented, that using the 
Constitution to end the filibuster is tyranny.
  Again, let me point out another instance where the goose has left the 
gander.
  The constitutional option is grounded in article I, section 5 of the 
U.S. Constitution that empowers the Senate to ``determine the Rules of 
its Proceedings.''
  The Senate has repeatedly exercised the constitutional option to 
define minority rights, as long ago as 1977, and it has done so in a 
Democratic-led majority.
  The use of a simple majority vote to set precedents is as old as the 
Senate. In fact, the constitutional option has been exercised in 1977, 
1979, 1980, and 1987.
  It was used in 1977 to end postcloture filibusters; in 1979 to limit 
amendments to appropriations bills; in 1980 to govern consideration of 
nominations; and again in 1987 to govern voting procedures.
  In every instance, the Senate acted independently of the Senate rules 
in order to change Senate procedures in the face of obstruction or 
abuse by a minority of Senators.
  History clearly shows that it is the constitutional option that has 
been used before. It is the use of the filibuster that is an 
unprecedented expansion of minority obstruction.
  An exercise of the constitutional option under the current 
circumstances would return the Senate to the historic and 
constitutional confirmation standard of a simple majority for all 
judicial nominations.
  Employing the constitutional option here would have no effect on the 
legislative filibuster, and this is very important. Senators would 
still have the ability to filibuster any bill, any time.
  The Constitution calls upon the Senate collectively to determine 
whether a particular nominee is qualified to serve. This determination 
is made in one vote, the approval or disapproval of the nomination 
itself. Advice and consent does not mean avoiding a vote on a judicial 
nominee entirely by employing a filibuster.
  If a Member of the Senate disapproves of a judge, then let them vote 
against the nominee.
  But a filibuster should never be used to deprive the people of the 
choice selected by their elected representatives.
  It is the Senate's duty to collectively participate in a show of 
``advice and consent'' to the President by voting. It is this act that 
exercises what James Madison referred to as the remote choice of the 
people.
  I sincerely hope we can work through the impasse on judicial 
nominations.
  I hope those opposed to the President's nominees will be given the 
opportunity to vote against them and that they will speak their mind 
about it.
  But I also hope that we will be allowed to provide the guidance we 
are required to provide under the Constitution.
  The basic decision the Senate must make is this: Either 
constitutional advice and consent prevails or the filibuster is allowed 
to change the Constitution. I believe in the Constitution. I believe we 
should vote on the nominations.
  As I have said so many times before, ``vote them up, or vote them 
down, but just vote.''
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BENNETT. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BENNETT. Mr. President, I ask unanimous consent that I be allowed 
to continue in morning business for 20 minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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