[Congressional Record (Bound Edition), Volume 159 (2013), Part 12]
[Senate]
[Pages 17637-17640]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              NOMINATIONS

  Mr. MERKLEY. Mr. President, I rise today along with my colleague from 
New Mexico to protest the paralysis that has kept the Senate from 
confirming well-qualified nominees to do their jobs.
  The U.S. Senate provides the opportunity for all of us to weigh in on 
our constitutional role of advice and consent, advice and consent 
regarding nominations to the executive branch and to the judicial 
branch by the President.
  Everyone in this body agrees that the Senate should, under this 
responsibility, serve as a significant check on the quality of 
Presidential nominations, the quality of nominations or nominees for 
the court and for executive positions. I certainly share that 
sentiment, that the Senate should provide this significant check on 
quality. The Senate should vet nominees. We should question them. We 
should debate them. And then we should vote on whether to confirm or 
reject them.
  What is absolutely clear, however, is that when advice and consent 
becomes block and destroy, then the Senate process is broken. A 
minority of one branch of government should never be able to 
systematically undermine the other two branches of government. Yet that 
is exactly what we have today.
  Look at the well-qualified nominees who have been blocked from having 
an up-or-down vote here in the Senate Chamber just in recent weeks: Mel 
Watt, nominated to head the Federal Housing Finance Agency; and then 
nominees to the court: Patricia Millett, Cornelia Pillard, and now 
Robert Wilkins.
  These folks are highly qualified, but they were not allowed to have 
an up-or-down vote. The Senate was not allowed to weigh in on whether 
they were to be confirmed or not confirmed. This situation in which the 
Senate minority undermines the executive and judicial branches is 
unacceptable. It is inconsistent with the concept of coequal branches 
of government. Our Constitution laid out this vision that the House and 
the Senate, as the legislative branch, would serve as a coequal branch 
with the executive branch and the judicial branch.
  Certainly the ability to check nominations, to vet nominations, is 
part of that check on the other two branches. But when it is used in 
this manner, this manner in which you can systematically undermine the 
function of another branch, then you have taken a position and created 
a process that is inconsistent with coequal branches. Taken to its 
extreme--and we are seeing that extreme today--the executive branch is 
compromised in its ability to function, the judicial branch is 
compromised in its ability to function.
  Now we have a special situation that has arisen in which the minority 
says: We are going to block all nominees to the D.C. Circuit Court 
regardless of their qualifications because we want to see it dominated 
by the nominees from a former President, and we do not let the existing 
President put his fair share of nominees into those vacancies.
  The argument has been brought forward--to cover up this effort to 
ideologically pack the court--that this is simply about the work 
requirements of that circuit not being high enough to justify 
additional judges. Yet if that was indeed the case and there was an 
effort to distinguish it from the ideological bent that is clear here, 
then that would be something one would say about the future: Let's 
implement that 8 years down the road or we would have seen it in the 
past when President Bush was putting his nominees forward. The 
Republicans would have said: No, we do not want to confirm these 
nominees because the workload is not heavy enough. But just a few years 
ago, the argument was very much: Let's confirm these nominees of 
President Bush. Well, the workload, if anything, has increased.
  So we cannot allow this process in which a minority says: When our 
President is in charge we are going to insist on up-or-down votes, but 
when a President of the other party is in charge, we are not going to 
allow those votes.
  Let's be clear: There should not be an ``our President'' and ``their 
President.'' The President is the President of the entire country, of 
the blue States and the red States, altogether. The judicial system 
serves all of us regardless of

[[Page 17638]]

our party identities. It is our responsibility to make it work.
  In January we had a promise made on the floor of this Chamber, and 
that promise from Minority Leader Mitch McConnell was to restore the 
``norms and traditions of the Senate'' regarding nominations.
  What are the norms and traditions of the U.S. Senate regarding 
nominations? It is an up-or-down vote, with rare exception. But, 
unfortunately, as we stand here today, we see that January promise has 
been broken. It was broken a few weeks into this year when a filibuster 
for the first time in U.S. history was launched on a Defense Secretary 
nominee. We then saw it in July--another effort of this Chamber to come 
together and return to the norms and traditions of the Senate. And 
briefly we did have up-or-down votes on executive branch nominees. But 
that ended a couple weeks ago when Mel Watt was blocked from that 
opportunity. So, therefore, the Senate must act. The Senate must act to 
restore its traditional role of having an up-or-down vote.
  I, quite frankly, would prefer, in a perfect world, to see this done 
simply through the type of agreement we have sought a couple of times: 
up-or-down votes, with rare exception. But it is clear that is not 
possible because the January promise was broken, because the July 
promise was broken, and, therefore, we are in the position where we 
have to do by rule that which cannot be done by simple cooperation.
  Some have said this has never been done, changing the rules or the 
application of the rules by a simple majority in the middle of a term. 
But that is simply not the case. I have in my hand a list of 18 times 
when this has been done since 1977. I have put up a chart in the 
Chamber of some of those changes that are quite relevant to this 
discussion.
  By a simple majority in 1977: preventing postcloture filibusters; in 
1979, by a simple majority: preventing abuse of legislative amendments 
in appropriations bills; in 1980, preventing filibusters on the motion 
to proceed to nominations and treaties; in 1987, preventing filibusters 
via rollcall of the Journal.
  I have put these up for those instances that pertain to filibusters. 
But these are only 4 of the 18 times since 1977 that we have changed 
the application of the rules by a simple majority. So let no one say 
this is unprecedented. And these 18 changes have come more often in 
Republican hands than the hands of Democrats in terms of the majority 
of this body.
  It is time to end the block-and-destroy strategy being employed by 
the minority in regard to executive branch nominations and judicial 
nominations.
  I am very honored to be a partner in this conversation with the 
senior Senator from New Mexico, who has been raising concerns about the 
functionality of the Senate from the day he first set foot in this 
Chamber.
  With that, I yield for my colleague.
  The ACTING PRESIDENT pro tempore. The Senator from New Mexico.
  Mr. UDALL of New Mexico. Mr. President, I ask unanimous consent that 
Senator Merkley and I be allowed to engage in a colloquy following my 
remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. UDALL of New Mexico. Mr. President, I could not agree more with 
what Senator Merkley pointed out. There has been a lot of discussion--
especially as shown on that chart the Senator talked about--that we 
have done this before. When the Senate hits a roadblock, we can come 
back to our majority powers and get through the roadblock and continue 
to do business, to do business as the Senate and do the business we 
were sent here to do.
  As the Senator noted, I remember I called for rules reform 4 years 
ago. I said the Senate was a graveyard for good ideas. I remember 
talking about that in my campaign and coming here, and I am sorry to 
say little has changed, that the digging continues.
  Americans are tired, I believe, with the gridlock and the dysfunction 
in Washington--filibusters, shutdowns, hyperpartisan attacks. Americans 
want reform in the way their government operates: more cooperation, 
more transparency, less partisanship, more problem solving.
  Monday's vote was one more example of why we need reform. Judge 
Robert Wilkins is well qualified to serve on the Court of Appeals for 
the D.C. Circuit. He deserved an up-or-down vote. Instead, what did we 
get? Another filibuster. He is the fourth nominee to that court to be 
trampled on by the minority--not because he is unqualified, not because 
of any failing on his part, but because a Democratic President 
nominated him. For some that is enough, that is all it takes to tell an 
eminent American to go home.
  First it was Caitlin Halligan in March, then Patricia Millett last 
month, followed by Nina Pillard last week, and now Robert Wilkins--each 
of them exceptional, every one of them distinguished nominees. Each 
would be a credit to the court of appeals.
  So No. 4, and counting. In baseball, three strikes and you are out. 
Not so in the Senate.
  But this is not just about the rules. It is about having a Senate 
that works--not one that buckles under the weight of filibusters.
  The partisan games continue, and the game has gone on long enough 
because the losers are the American people.
  Senators Merkley and Harkin and I proposed changes to the rules at 
the beginning of this Congress--rules changes that were fair. They 
reined in the abuse. They protected the minority. We were very clear. 
We called for a talking filibuster. We argued that if the minority 
wants to continue debate, which is what voting against cloture is, they 
should actually have to stand on the floor and debate. Come down here, 
if you want to slow things down, and get on the floor and debate.
  Instead, a compromise was reached. The two leaders agreed to ``work 
together to schedule votes on nominees in a timely manner by unanimous 
consent, except in extraordinary circumstances.'' That was the standard 
and the test: ``extraordinary circumstances.''
  The minority leader said:

       On the subject of nominations, Senate Republicans will 
     continue to work with the majority to process nominations, 
     consistent with the norms and traditions of the Senate.

  That was the agreement, and we all know it has not been kept.
  In July, we had another shutdown on confirmations--all qualified 
candidates, all prepared to serve, but nominated by a Democratic 
President--or asked to lead agencies the other side does not like: the 
Department of Labor, the EPA, the Consumer Financial Protection 
Bureau--all blocked.
  Once again we looked at changing the rules with a simple majority to 
restore the Senate's ability to function. We had a historic meeting in 
the Old Senate Chamber, and we reached another compromise.
  I was hopeful for the outcome. There was feeling on both sides that 
things had to change, that we needed to change the way we do business 
here, and we confirmed several of those nominees.
  But here we are again back on the filibuster merry-go-round and 
getting nowhere. Four months later, the same debate, the same partisan 
games, with qualified nominees denied an up-or-down vote. And not just 
judicial nominees but also Congressman Mel Watt blocked from leading 
the Federal Housing Finance Agency.
  The only ``extraordinary circumstance'' has been continual 
obstruction.
  These are not the norms and traditions of the Senate. It is the 
failure of partisan politics. In fact, it was not long ago that 
Republicans were the first to say so during the Bush administration. 
They were up in arms. Why? Because 10 judicial nominations had been 
blocked--10, mind you. That number seems quaint now, but it was enough 
for the Republicans.
  Here is what the Republican policy committee said in 2005. These are 
their words:

       This breakdown in Senate norms is profound. There is now a 
     risk that the Senate is creating a new 60-vote confirmation 
     standard. The Constitution plainly requires no

[[Page 17639]]

     more than a majority vote to confirm. Exercising the 
     constitutional option in response to judicial nomination 
     filibusters would restore the Senate to its longstanding 
     norms and practices governing judicial nominations, and 
     guarantee that a minority does not transform the fundamental 
     nature of the Senate's advice and consent responsibility. 
     This approach, therefore, would be both reactive and 
     restorative.

  Restoring the Senate to its longstanding norms and practices. It 
would be difficult to state the case more clearly.
  One of my colleagues on the other side of the aisle said: We should 
be careful what we wish for; that is, majority rule could backfire, 
which might get more Justice Scalias.
  Well, that is exactly the point. The Constitution does not give me 
the right to block a qualified nominee no matter who is in the White 
House. The real norms and traditions of the Senate honor that 
principle. Some of us may disagree with Justice Scalia on judicial 
philosophy, but he was a qualified nominee. He received an up-or-down 
vote and he was unanimously confirmed. Likewise, Justice Ruth Bader 
Ginsburg was considered liberal, the former ACLU general counsel. Many 
on the other side may have disagreed with her views, but there was no 
filibuster. She was confirmed by a vote of 96 to 3. A minority in the 
Senate should not be able to block qualified nominees.
  On the other side of the aisle, this is not advise and consent; this 
is obstruct and delay. The people elect the President. They give him or 
her the right to select a team to govern and to appoint judges to the 
Federal bench. If those nominees are qualified, they deserve an up-or-
down vote. That is how our democracy is intended to work. That is the 
mandate of our Constitution. That is the real tradition of the Senate. 
That is the way it is supposed to work. It has worked that way in the 
past.
  My father was Secretary of the Interior for President Kennedy. He 
later told me--when I asked him how long it took to get his team in 
place at Interior, he said, ``Tom, I had virtually my entire team in 
place in the first 2 weeks''--in place and ready to serve the American 
people in 2 weeks. The President's team is his team to choose so long 
as they are qualified to do the job.
  My colleague on the other side is right. The winds can change. Let's 
be candid. Neither side is 100 percent pure. Both sides have had their 
moments of obstruction and, no doubt, their reasons at the time. But I 
do not think the American people care much about that. They do not want 
a history lesson or a lesson in parliamentary procedure. They want a 
government that is fair. They want a government that is reasonable and 
that works for them.
  I say to Senator Merkley, we are back in this situation now where we 
started as we came in the Senate in 2008 and saw a broken Senate, a 
Senate that was not responding to the American people.
  What I wanted to ask the Senator about, because to me it is one of 
the troublesome parts of what is happening with these judges, the last 
four judges who have been filibustered have been women. I think we are 
talking about a different standard because in between the four, a man 
got onto the same court, was voted in, but three women have been held 
up and filibustered: Caitlin Halligan, Patricia Millett, Nina Pillard. 
So over and over we have this kind of obstruction. Does the Senator 
think we have a double standard? Is it one standard when we look at 
what has happened recently on the court of appeals where a man gets on 
and three women get denied?
  Mr. MERKLEY. I say to my colleague from New Mexico, I would say that 
it has been very disturbing to see these very capable women whom you 
have mentioned not be able to get an up-or-down vote. Indeed, our chair 
of the Judiciary Committee Senator Leahy held a press conference to 
make this very concern known, that it seemed as if there is one process 
for men and a different process for women. I am going to defer to his 
judgment on that because I have not been part of the Judiciary 
Committee. I would like to think that in this day and age there is not 
that sort of gender bias. That is what I would like to think, but I 
will let Senator Leahy's commentary and his concerns in that area speak 
for themselves. It is clear, though, that fundamentally the situation 
is this: These women were highly qualified. They did not get up-or-down 
votes.
  I have in my hand a memo from April 25, 2005. It is titled ``The 
Senate's Power to Make Procedural Rules by Majority Vote.'' It consists 
of arguments made by the Republican majority in 2005 that nominees 
should get up-or-down votes for the judiciary. There are many quotes 
from colleagues who still serve in this body who said in 2005 that 
regardless of whether they were in the majority or the minority, they 
felt nominees deserved an up-or-down vote, that the Constitution 
demanded it, and that the balance of powers between the branches 
demanded it.
  I would ask my colleague if he would help us understand what has 
changed since 2005 when our colleagues across the aisle made the case 
that nominees deserved up-or-down votes, said it was essential in the 
constitutional vision, was essential in the proper application of 
advice and consent. What has changed that makes those arguments 
disappear now in 2013, 8 years later?
  Mr. UDALL of New Mexico. I think we have come back to the central 
question. That question is, How does our Constitution work when it 
comes to nominees? I do not have any doubt that we are talking about 
majorities. There are only five places in the Constitution where a 
supermajority is mentioned. It is not mentioned when it deals with 
advice and consent, judicial nominees, or Presidential nominees to the 
executive branch.
  I think the Republican policy committee said it very well in the memo 
the Senator is talking about. It was authored at the time when the head 
of the policy committee was John Kyl. He was the chairman of the policy 
committee, known in the Senate as a good lawyer, and was respected on 
the Constitution. He wrote about the Constitution and how the 
Constitution should work. He said a couple of things that I think are 
interesting. This was back on April 25, 2005:

       The filibustering Senators are trying to create a new 
     Senate precedent--a 60-vote requirement for the confirmation 
     of judges--contrary to the simple-majority standard presumed 
     in the Constitution.

  A little bit further on, he also said:

       An exercise of the constitutional option--

  That means taking an action to put a judge on the court with a 
majority vote--

     The exercise of the constitutional option under the current 
     circumstance would be an act of restoration--a return to the 
     historic and constitutional confirmation standard of simple-
     majority support for all judicial nominations.

  So I do not think anything has changed. I do not think it has changed 
from the time in 2005 to today. I do not think the Constitution has 
changed from the time we put it into place until today, that when it 
comes to those nominees the traditions and norms of the Senate are to 
have the majority have a say, that they get an up-or-down vote.
  That is the situation right now. We have a filibuster going on on a 
number of nominees, both Presidential nominees and judicial nominees. 
So I think what we are trying to do in working with our leadership is 
say: Let's go back to the norms and traditions of the Senate where we 
use the majority wisely and give that advice and consent.
  Mr. MERKLEY. I thank the Senator for expanding on that picture of the 
core elements necessary to exercise our constitutional 
responsibilities. I keep thinking about how polarization in our society 
has come to bear on this issue. I believe there are many colleagues 
across the aisle who believe very much in what they said in 2005, that 
there should be up-or-down votes; therefore, I have to conclude that 
they have decided their base demands a permanent campaign against the 
President and the maximum use of every tool available and that is 
trumping the appropriate exercise of advice and consent.
  Perhaps that polarization explains why the promise made by the 
minority leader in January to return to the norms and traditions of the 
Senate fell

[[Page 17640]]

apart within weeks, if not days. Perhaps it explains how the 
understanding that was reached in July to allow up-or-down votes on 
executive nominations fell apart a couple of weeks ago. In that 
situation we have a single path left to us to appropriately exercise 
advice and consent; that is, to change the rules so they cannot be 
abused. If the abuse cannot be cured through good-hearted dialog and 
understanding of our need to honor the constitutional vision, then we 
need to change the rules. That is why I wholeheartedly support moving 
toward a simple up-or-down vote.
  In 2005 our Republican colleagues said: If the Democrats keep 
blocking up-or-down votes, we are going to change the rules and require 
a simple majority. The Gang of 14 came out with a compromise, and they 
said--the compromise was that Democrats would only filibuster under 
extraordinary circumstances and Republican colleagues would then not 
change the rules. But actually that worked fine in that the Democrats 
honored that until President Obama came into office. But that 
extraordinary circumstance has not continued to be honored after 
President Obama came into office. In that situation, it does seem as if 
the only way to make sure we honor the constitutional vision and the 
balance between the powers is to actually change the rules and say it 
is an up-or-down vote.
  I would ask my colleague from New Mexico whether he shares that 
perspective or perhaps has a different take on it.
  Mr. UDALL of New Mexico. I do not think there is any doubt in this 
country that on both sides--the Republican side and the Democratic 
side--the base pushes us hard. I think we have reached this stage of 
hyperpartisanship. I believe our job as leaders is to overcome that and 
to lead. Leading here means allowing the norms and traditions of the 
Senate to continue, and that would be an up-or-down vote on judicial 
nominees.
  What I asked the Senator about what was particularly troublesome to 
me was when we look at the history, the last two women who were put 
onto the Supreme Court--Sonia Sotomayor and Elena Kagan--75 percent of 
the Republicans in the Senate voted against both of them. So we have 
that history compared with the women who have been denied here. It is 
very troubling to me to see that.
  I think we are supposed to wrap up. I do not know whether the Senator 
has any closing comments.
  Mr. MERKLEY. I thank my colleague from New Mexico for his leadership 
in trying to restore the Senate so that it will work--work on 
legislation, work on executive nominations, work on judicial 
nominations. The country has a low opinion of the function of our 
Chamber. We certainly do not deserve a high opinion when we are 
captured by this level of partisan paralysis. I look forward to 
continuing to work together to help restore this body to a great 
deliberative body that fulfills its responsibilities under our 
Constitution.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Nebraska.

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