[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Pages 12168-12169]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          FILIBUSTER AGREEMENT

  Mr. DeWINE. Mr. President, we have just seen a major accomplishment 
in the Senate in the last several weeks: the confirmation of five 
nominees to serve on the Federal bench. These confirmations were 
achieved after a historic agreement was reached in the Senate, an 
agreement that allowed us to proceed.
  We have seen five individuals confirmed by the Senate--Priscilla 
Owen, Janice Rogers Brown, William Pryor, David McKeague, and Richard 
Griffin. The majority leader has indicated that Thomas Griffith will be 
on the Senate floor shortly and we will take up that nomination.
  This represents a major accomplishment and a major change in the way 
the Senate has been doing business. This shows bipartisanship. This is 
a step forward. It is progress.
  As one of the 14 Senators involved in negotiating the recent 
compromise agreement on the use of filibusters to block judicial 
nominations, I am very pleased to see this progress and to see what has 
happened since this agreement was reached. As everyone knows, of these 
five nominations, several of them have been held up for years. Two I 
have a particular interest in come from the Sixth Circuit from the 
States of Ohio, Michigan, Kentucky, and Tennessee. These two come from 
the State of Michigan but are part of the Sixth Circuit which has had 
vacancies for many years. Now we have these two positions filled.
  I am pleased to see this progress we have been making the last 2 
weeks on nominations but also the progress we have been making in the 
Senate on other matters, as well. I think it is good for the country.
  The agreement that we entered into not only cleared the field for the 
President's judicial nominations, some of whom, as I have said, have 
been waiting for over 4 years, but by avoiding confrontation it also 
allowed the people's agenda to move forward. And that is a very 
important matter.
  Already, since the agreement was reached, the Senate Judiciary 
Committee has passed out of the committee the asbestos bill, and the 
Senate Energy and Natural Resources Committee has passed the Energy 
bill.
  Now, as someone who was in the room for the negotiations of the 
filibuster agreement, I would like to take just a few moments to talk 
about what happened, why I was involved, and where we go from here. 
Candidly, I became involved in the negotiations because I was not 
satisfied with what I had seen in the Senate over the last few years. 
Everyone got in the negotiation, I am sure, for different reasons. I am 
just speaking for myself. I believed that judges were not getting voted 
on in the Senate, that the circuit court judges were not being acted 
upon when they should have been, that many of them were being denied an 
up-or-down vote. I believed the filibuster was being used in excess to 
block their nominations. I felt that the status quo was simply not 
acceptable, that we could no longer continue down that path.
  Well, what was the solution? How were we going to get judges voted on 
in the Senate? The status quo abuse of the filibuster, which I felt 
clearly was an abuse of the filibuster, was not acceptable to me. I was 
prepared to take action to deal with that. Yet I felt that, in the best 
interests of the Senate and the Nation, it was really not in the best 
interests of the Nation or the Senate to totally change the rules and 
totally eliminate the filibuster, if we could avoid that. I felt what 
we needed basically was a resolution to this crisis, a new option or 
alternative that could restore the Senate to where it was when I 
entered the Senate a decade ago. That was a Senate where the 
possibility of a filibuster for judicial nominations was there but 
hardly ever used.
  I believe that is exactly what we were able to achieve with the 
agreement.
  During our negotiations, we agreed that a filibuster for a judge 
should not be used unless under extraordinary circumstances. 
Furthermore, we made sure the agreement included a provision that if 
the terms of the agreement were violated, and a judge was filibustered 
in circumstances that an individual Member considered not to be 
extraordinary--in other words, if Mike DeWine or any Member considered 
that another Member was filibustering a judge under a circumstance that 
was not extraordinary, that I or any Member had the right to pull out 
of that agreement and to go back and say: I am going to use the 
constitutional option to change the practice, the precedent of the 
Senate.
  That was my right. I insisted on that when I entered the 
negotiations. I felt that was important and that was the only way I 
could be a part of the negotiations.
  So let me make that very clear. The constitutional option was on the 
table,

[[Page 12169]]

and it does remain on the table today. There was never any question in 
my mind about that. In fact, let me repeat exactly what I said at the 
press conference that the group held on May 23, right after we had 
reached our agreement. This is what I said that evening at that press 
conference when everyone was there, at least 12 of the 14 people who 
had reached the agreement. This is what I said. I quote myself:

       This agreement is based on good faith--good faith among 
     people who trust each other. And, it's our complete 
     expectation that it will work. Senators have agreed that they 
     will not filibuster except in extraordinary circumstances. We 
     believe that will, in fact, work. Some of you who are looking 
     at the language may wonder what some of the clauses mean. The 
     understanding is--and we don't think this will happen--but if 
     an individual Senator believes in the future that a 
     filibuster is taking place under something that's not 
     extraordinary circumstances, we, of course, reserve the right 
     to do what we could have done tomorrow, which is to cast a 
     yes vote for the constitutional option. I was prepared to do 
     that tomorrow if we could not reach an agreement.

  Mr. President, let me also quote from the May 30, Washington Post 
article by Dan Balz. He wrote the following about the agreement:

       [Senator] DeWine, Senator Lindsey Graham have disputed the 
     assertion . . . that the nuclear option is off the table. 
     DeWine said he explicitly raised the issue just before the 
     group announced the deal.

  Balz then quotes me:

       I said at the end, ``Make sure I understand this now, that 
     . . . if any member of the group thinks the judge is 
     filibustered under circumstances that are not extraordinary, 
     that member has the right to vote at any time for the 
     constitutional option.'' Everyone in the room understood 
     that.

  Now, the article goes on to say--again, Dan Balz's article in the 
Washington Post--

       Senator Mark Pryor, [a Democrat and] another member of the 
     group [of 14], concurred, saying that while he hopes the 
     nuclear option is gone for the duration of the 109th 
     Congress, circumstances could bring it back.

  Quoting Senator Pryor:

       I really think Senator DeWine and Senator Graham have it 
     right.

  Mr. President, Members of the Senate, Senate Majority Leader Frist 
also agrees with this assessment. He said, in this May 30 article by 
Dan Balz:

       The nuclear option remains on the table. It remains an 
     option. I will not hesitate to use it, if necessary.

  And later, Senator Frist was quoted in the June 5 New York Times from 
his comments in a speech at Harvard University, as follows. This is 
Senator Frist:

       The short-term evaluations, I believe, will prove to be 
     shortsighted and wrong after we get judge after judge after 
     judge after judge through, plus at least one Supreme Court 
     nominee and an energy bill . . . and we will get Bolton.

  Mr. President, Members of the Senate, as the recent judicial 
confirmation votes in the Senate demonstrate, the majority leader is 
right. We are getting things done. We are getting things done because 
this agreement was negotiated in good faith by good people who want to 
get things done, who want to proceed step by step. It was negotiated in 
good faith by Members working together in the best interests of this 
Senate and of our Nation. It is a good agreement, one that has enabled 
us in the Senate to get back to doing the business of the people, for 
the people. That is what the American people expect, and it certainly 
is what the American people deserve.
  We have made progress. We have been able to confirm judges and bring 
to the floor of this Senate for up-or-down votes three judges who have 
been held up for years and two other judges in a circuit, the Sixth 
Circuit, in Ohio and three other States, that has suffered from a lack 
of judges on the Sixth Circuit for years, with many vacancies. Today, 
we filled two of those vacancies. That makes a difference. We are 
making progress.
  I am not arrogant enough to come to the floor today and say that 
everything is going to work out perfectly. I don't know that it will. I 
don't have a crystal ball. I just know that we have come a ways. We 
have taken some steps. We have made some progress. I believe we can 
rely on the good faith of Members to try to continue to work together, 
continue to make progress, and continue to try to exercise good faith.
  We have set a bar now, a standard. Seven Members of the Senate on 
each side have said they will not filibuster except under extraordinary 
circum-
stances. That is something that had not been set before. That is the 
bar. No, it is not specifically defined. I understand that. But at 
least there is a bar. It is an understanding. That is progress. It is a 
recognition that the filibuster is not something just to be used; it is 
something to be used only in very rare cases. You have to use it after 
you think long and hard about it. It is the recognition of 14 people 
that they will only use that filibuster after thinking long and hard. 
That is progress.
  What we have seen with these five judges is progress. So we celebrate 
tonight progress, not total victory. You are never done in the Senate. 
We are always trying to move forward. But at least we should stop for a 
moment tonight and say: We have made progress. We have come this far. 
We know we have a ways to go, but here we are, at least.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. SALAZAR. Mr. President, let me at the outset say that I am proud 
that I was 1 of the 14 Members who signed the agreement just referred 
to by my good friend from Ohio. In the signing of that agreement, one 
of the things that brought people together was the concept of respect 
for each other, mutual respect for our colleagues in this Chamber, 
mutual respect for the people of America.
  As we have gone through the debate on the confirmation of judges over 
the last several days, I have seen debate within this body as well as 
debate among some of the constituent groups that I have found 
troublesome because it goes to the heart of the kind of respect we 
should afford each other in this Chamber.
  I have heard statements that those who happened to be opposed to Bill 
Pryor, for whom I voted, were opposed to him because he was anti-
Catholic. I heard statements made that some of my Democratic colleagues 
who were opposed to Janice Rogers Brown were opposed to her because she 
was African American. I submit that nothing could be further from the 
truth. In fact, when those kinds of statements emanate from Members of 
this Chamber or when they emanate from some of the constituent groups 
that follow us, it is a violation of the respect we should afford each 
other.
  I, too, am hopeful that as we move forward in the consideration of 
other judges and other matters, that kind of hurtful, vitriolic, and 
unwarranted attack on each other is something we will not see again. If 
we can establish that kind of collegiality within this body, we can, in 
fact, return to those days when we had people working across the aisle 
to solve the common problems that faced Americans, regardless of 
whether they were Democrats, Independents, or Republicans. It is that 
kind of ethic I hope is embraced as we move forward in deliberations.

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