[Congressional Record (Bound Edition), Volume 159 (2013), Part 12]
[Senate]
[Pages 17826-17845]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF PATRICIA ANN MILLETT TO BE UNITED STATES CIRCUIT JUDGE 
             FOR THE DISTRICT OF COLUMBIA CIRCUIT--Resumed

  The PRESIDENT pro tempore. The Senator from Iowa.

[[Page 17827]]


  Mr. HARKIN. Mr. President, I wish to take a few minutes first to 
congratulate our leader Senator Reid for leading the Senate finally 
into the 21st century. This is the step that we have taken today. Thank 
you very much, Leader Reid, for your courageous action and making sure 
that the Senate can now work and get our work done.
  I have waited 18 years for this moment. In 1995, when we were in the 
minority, I proposed changing the rules on filibuster. I have been 
proposing this ever since.
  What has happened is this war has escalated. It is war on both sides.
  I said at the time, in 1995, that it was like an arms race. If we 
didn't do something about it, the Senate would reach a point where we 
wouldn't be able to function. At that time, I thought my words were a 
little apocalyptic, but as it turned out they weren't at all.
  This is a bright day for the Senate and for our country, to finally 
be able to move ahead on nominations so that any President--not only 
this President, any President--can put together his executive branch 
under our Constitution. A President should have the people who he or 
she wants to form their executive branch.
  Every Senator gets to pick his or her own staff. We don't have to 
have the House vote on it or anybody else. It is true of every Member 
of the House or Senate. It is true of the judiciary, the third branch 
of the government. They can hire their clerks or their staff without 
coming to us.
  It is appropriate that any President can now form their executive 
branch with only 51 votes needed in the Senate, not a supermajority. 
That is a huge step in the right direction. We can confirm judges of 
all the courts less than the Supreme Court, circuit and district court 
judges, with 51 votes, without this supermajority that has been 
festering for so long.
  I listened to the Republican leader during the runup to these votes, 
and he said that we were going to somehow break the rules to make a new 
rule. We did not break the rules. With the vote that we just had, the 
Senate broke no rules.
  The rules provide for a 51-vote nondebatable motion to overturn the 
ruling of the Chair. We have done it many times in the past.
  We did not break the rules. We simply used rules to make sure that 
the Senate could function and that we can get our nominees through.
  I like what the writer Gail Collins said in her column this morning 
in the New York Times about these rule changes. She has had a lot of 
good columns, but she talked about how we were calling it the nuclear 
option. She proffered that it was probably called that because some 
think that changing the rules in the Senate is worse than a nuclear 
war, but it is not. It is time that we change these rules.
  The Republican leader earlier said it was the Democrats who started 
this. It reminds me of a schoolyard fight between a couple of 
adolescents, and the teacher is trying to break it up. One kid says: He 
hit me first. The other says: No, he hit me first. Then the other kid 
says: No, he stepped on my toe first.
  Who cares who started it? It is time to stop. Even if I accept the 
fact that Democrats started it--maybe they can prove that we did. It is 
possible way back when. It has escalated.
  It turned from a punch here to a punch there to almost extreme 
fighting. It has reached the point where we can't function.
  On nominations alone we had 168 filibusters since 1949. I picked that 
date because that is when all of this filibustering started, 168; 82 of 
those have been under this President. This is what I mean. It is worth 
it to talk about who started this. Fine. If they want to say the 
Democrats started it, fine, we started it. It has escalated beyond all 
bounds, as I said in 1995. It has turned into an arms race, so it is 
time to stop it. That is what we did this morning with this vote. We 
took a step in the right direction.
  In 2008 Norman Ornstein, who is a congressional scholar, wrote about 
the broken Senate--our broken Senate--how we couldn't function. We can 
go back even beyond that. In 1985, my first year, Senator Thomas 
Eagleton, my neighbor to the south, said that the Senate is now in a 
state of incipient anarchy.
  We had something such as 20 to 30 filibusters in the Congress before 
that. This has been escalating over a long period of time, and it was 
time to stop. That is what we did this morning.
  This is a big step in the right direction, but now we need to take it 
another step further; that is, to change filibuster on legislation. We 
need to change it as it pertains to legislation.
  For example, we recently had the spectacle of a bill that I reported 
out of our committee unanimously--Republicans and Democrats. It passed 
the floor of the House unanimously. It came to the Senate and one 
Senator stopped everything for 10 days. He stopped everything for 10 
days. Guess what. It finally passed by unanimous consent.
  Should one Senator be able to stop things in the Senate in this 
manner? It is time to move ahead and at the same time to protect the 
right of the minority, to offer amendments that are relevant and 
germane, debate, and vote on them. Not that they should win, but the 
minority should be able to offer, debate, and vote on relevant and 
germane amendments to legislation.
  I proposed 18 years ago a formula that, quite frankly, was first 
proposed by Senator Dole many years before that. That was on a cloture 
vote to end a filibuster. The first time had to be 60 votes. Then we 
could wait 3 days to file a new motion with the requisite signatures 
and at that time we would need 57 votes. Then if we didn't have 57 
votes, we could wait 3 more days, file the new motion on the same bill 
or amendment, and then it would require 54 votes. If we didn't have 54, 
we would wait 3 days, file a new motion, and then we needed 51 votes.
  At some point the majority could act on legislation, but the minority 
would have the right to slow things down too; as Senator George Hoar 
said in 1897, give sober second thought to legislation in the Senate--
sober second thought, not to stop it, not to block it, but to slow 
things down, yes; give it a second thought; maybe we shouldn't rush 
into things.
  I understand that. Maybe things should be amended. The minority ought 
to have that right to offer those amendments--not just spurious 
amendments, but amendments that are relevant and germane to the 
legislation. Ultimately 51 should decide in the Senate what we proceed 
on and the outcome of the vote.
  I hope the vote today leads the Senate to adopt such an approach in 
January 2015. When the new Senate comes in there will be a new 
Congress. I won't be here, but I hope at that point the Senate will 
then take the next step of cutting down on the blatant use of the 
filibuster on legislation.
  Of the action taken today, this is what I predict. I predict the sky 
will not fall, the oceans will not dry up, a plague of locusts will not 
cover the Earth, and the vast majority of Americans will go on with 
their lives as before. But I do predict that our government will work 
better. A President will be able to form an executive branch, our 
judiciary will function better, and the Senate will be able to move 
qualified nominees through the Senate in a more responsible manner.
  This is a good day for the Senate, a good day for our Nation. The 
Senate now enters the 21st century.
  I congratulate Leader Reid for bringing the Senate forward. It is a 
courageous action. I compliment all of my fellow Senators who upheld 
that vote, overruling the ruling of the Chair, so that from now on we 
only need 51 votes to close debate and move nominations and judges 
through the Senate.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Heinrich). The Senator from Michigan.
  Mr. LEVIN. I ask unanimous consent that after the Senator from Iowa 
is recognized, I be recognized for up to 20 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Iowa.


                             Nuclear Option

  Mr. GRASSLEY. Mr. President, we didn't have a chance to debate the

[[Page 17828]]

change in rules, and we should have, so I am going to speak now on some 
things I think should have been said before we voted--not that it would 
have changed the outcome but because we ought to have known what we 
were doing before we vote rather than afterward. So I will spend a few 
minutes discussing what the majority leader did on the so-called 
nuclear option.
  Unfortunately, this wasn't a new threat. Over the last several years, 
every time the minority has chosen to exercise his rights under the 
Senate rules, the majority has threatened to change the rules. In fact, 
this is the third time in just the last year or so that the majority 
leader has said that if he didn't get his way on nominations, he would 
change the rules. Ironically, that is about as many judicial nominees 
as our side has stopped through a filibuster--three or so.
  Prior to the recent attempt by the President to simultaneously add 
three judges who are not needed to the D.C. Circuit, Republicans had 
stopped a grand total of 2 of President Obama's judicial nominees--not 
10, as the Democrats had by President Bush's fifth year in office; not 
34, as one of my colleagues tried to suggest earlier this week; no, 
only 2 had been stopped. If we include the nominees for the D.C. 
Circuit, we have stopped a grand total of 5--again, not 10, as the 
Democrats did in 2005; not 34, as one of my colleagues tried to argue 
earlier this week but 5. During that same time we have confirmed 209 
lower court Article III judges. That is a record of 209 judges approved 
to 5 who were not approved. So this threat isn't based on any crisis. 
There is no crisis.
  I would note that today's Wall Street Journal editorial entitled 
``D.C. Circuit Breakers: The White House wants to pack a court whose 
judges are underworked'' lays out the caseload pretty clearly.
  I ask unanimous consent to have printed in the Record the editorial 
to which I just referred.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, Nov. 21, 2013]

                         D.C. Circuit Breakers

              (By the Wall Street Journal Editorial Staff)

       The White House wants to pack a court whose judges are 
     underworked.
       We remember when a ``judicial emergency'' was the Senate's 
     way of calling attention to vacancies based on a court's 
     caseload. Those were the good old days. Now Democrats are 
     threatening to change Senate rules if Republicans don't 
     acquiesce to their plan to confirm three new judges to the 
     most underworked appellate circuit in the country.
       That's the story behind the fight over the D.C. Circuit 
     Court of Appeals, with the White House trying to pack the 
     court that reviews much of its regulatory agenda. On Monday 
     Senate Republicans blocked the third nominee to the D.C. 
     appellate court in recent weeks, and Democrats with short 
     memories of their judicial filibusters in the Bush years are 
     claiming this is unprecedented. Majority Leader Harry Reid 
     and other Democrats are threatening to resort to the so-
     called nuclear option, which would let the Senate confirm 
     judicial nominees by a simple majority vote.
       This is nothing but a political power play because the D.C. 
     Circuit doesn't need the new judges. It currently has 11 
     authorized judgeships and eight active judges--four appointed 
     by Democratic Presidents and four by Republicans. The court 
     also has six senior judges who hear cases varying from 25% to 
     75% of an active judge's caseload. Together they carry the 
     equivalent caseload of 3.25 active judges, according to 
     numbers from Chief Judge Merrick Garland. That means the 
     circuit has the equivalent of 11.25 full-time judges.
       That's more than enough considering that the court's 
     caseload is the lightest in the country. For the 12-months 
     ending in September, the D.C. Circuit had 149 appeals filed 
     per active judge. By comparison, the 11th Circuit had 778 
     appeals filed per active judge for the same period. If all 
     three nominees to the D.C. Circuit were confirmed, the number 
     of appeals per active judge would be 108, while a full slate 
     on the 11th Circuit would be 583 appeals per judge. The 
     national average of appeals per active judge is 383. The 
     closest to the D.C. Circuit is the 10th Circuit, at 217 
     appeals.
       Liberal Senator Pat Leahy claims that these comparisons 
     don't matter because the D.C. Circuit handles complex 
     rulemakings by federal agencies and sensitive national 
     security cases. But the truth is that all the circuits handle 
     complicated cases. And even many regulatory cases have been 
     migrating to other circuits as some of the D.C. Circuit's 
     stars have taken senior status.
       According to the Administrative Office of the U.S. Courts, 
     42.9% of the D.C. Circuit's caseload is made up of 
     administrative appeals of federal rules or regulations, the 
     highest percentage of any circuit. In raw numbers, the D.C. 
     Circuit is not carrying the heaviest load. That honor goes to 
     the Second Circuit Court of Appeals.
       Democrats are in a rush to confirm as many judges as 
     possible because they know the clock is ticking on the Obama 
     second term. Liberals have criticized the White House for its 
     slow pace of nominations, but that isn't the fault of 
     Republicans. Iowa Senator Chuck Grassley, the ranking 
     Republican on Judiciary who has led the fight against more 
     D.C. Circuit confirmations, has been entirely consistent. In 
     the Bush years he opposed the nomination of a twelfth judge 
     for the court on workload grounds.
       GOP Senators watched for years as Senate Democrats blocked 
     George W. Bush's nominees to the D.C. Circuit, including the 
     eminently qualified Miguel Estrada and Peter Keisler. 
     Republicans are right to say that the D.C. Circuit now has a 
     full complement of judges following the unanimous 
     confirmation of Obama nominee Sri Srinivasan in May.
       Mr. Reid and his fellow Democrats are claiming that even if 
     they establish a new standard of 51 votes to confirm 
     appellate judges and executive-branch officials, they can 
     keep the 60 vote standard for the Supreme Court. They're 
     kidding themselves. If they change the rules to pack the D.C. 
     Circuit, Democrats should understand they are also setting 
     that standard for future Supreme Court nominees opposed to 
     Roe v. Wade.

  Mr. GRASSLEY. This is about a naked power grab and nothing more than 
a power grab. This is about the other side not getting everything they 
want, when they want it.
  The other side claims they were pushed to this point because our side 
objected to the President's plan to fill the D.C. Circuit with judges 
the court does not need, but the other side tends to forget history. 
History is something we ought to learn from, so let's review how we got 
here.
  After the President simultaneously nominated three nominees who are 
not needed for the D.C. Circuit--a blatant political power grab in its 
own right--what did the Republicans do? Well, we did something quite 
simple: We said we want to go by the rules the Democrats set in 2006. 
We said we would hold those Democrats to the same standard they 
established in 2006 when they blocked a nominee of President Bush's by 
the name of Peter Keisler.
  Let's be clear about why the Democrats are outraged. Democrats are 
outraged because Republicans actually had the temerity to hold the 
other political party to a standard they established, and because we 
did, because we insisted we all play by the same rules, they came right 
back and said: Then we will change the rules. In effect, the other side 
has said: We don't want to be held to the standard we established in 
2006. And not only that, but if you don't give us what we want, we are 
willing to forever change the Senate. And that is what happened today.
  We hear a lot of ultimatums around here, but this ultimatum was not 
run-of-the-mill. It was very different. It was different because this 
threat was designed to hold the Senate hostage. It was different 
because it is designed to hold hostage all of the Senate's history and 
traditions and precedents. It was different because its effectiveness 
depends on the good will of Senators who don't want to see the Senate 
as we know it destroyed or function other than as the constitutional 
writers intended.
  I would note that today's majority didn't always feel that way--the 
very way we have seen expressed today. Not too many years ago my 
colleagues on the other side described their fight to preserve the 
filibuster with great pride. For instance, in 2006 one of my colleagues 
on the other side said:

       The nuclear option was the most important issue I have 
     worked on in my public life. Its rejection was my proudest 
     moment as a minority leader. I emerged from the episode with 
     a renewed appreciation for the majesty of Senate rules. As 
     majority leader, I intend to run the Senate with respect for 
     the rules and for the minority rights the rules protect.

  In 2005 another of my Democratic colleagues had this to say, 
referring to when Republicans were in the majority:

       Today, Republicans are threatening to take away one of the 
     few remaining checks on the power of the executive branch by 
     their use of what has become known as the

[[Page 17829]]

     nuclear option. This assault on our traditions of checks and 
     balances and on the protection of minority rights in the 
     Senate and in our democracy should be abandoned.
       Eliminating the filibuster by nuclear option would destroy 
     the Constitution's design of the Senate as an effective check 
     on the executive.

  So here we have two quotes from Democrats in the 2005-2006 timeframe 
very strongly supporting the precedent of the Senate in using the 
filibuster to protect minority rights. But that was when they were in 
the minority. Now they are in the majority, and the tradition of the 
Senate doesn't mean much.
  Here is another quote from the late Senator Byrd in 2005:

       And I detest this mention of a nuclear option, the 
     constitutional option. There is nothing constitutional about 
     it. Nothing.

  But, of course, that was way back then--just 6, 7 years ago when 
today's majority was in the minority and there was a Republican in the 
White House. Today the shoe is on the other foot. Today the other side 
is willing to forever change the Senate because Republicans have the 
audacity to hold them--the majority party of today--to their own 
standard. Why? Why would the other side do this? There clearly isn't a 
crisis on the D.C. Circuit. The judges themselves say that if we 
confirm any more judges, there won't be enough work to go around. And 
it is not as if all of these nominees are mainstream consensus picks 
despite what the other side would have us believe, that they are 
somewhat mainstream.
  Take Professor Pillard, for instance. She has written this about 
motherhood:

       Reproductive rights, including rights to contraception and 
     abortion, play a central role in freeing women from 
     historically routine conscription into maternity.

  Is that mainstream?
  She has also argued this about motherhood:

       Antiabortion laws and other restraints on reproductive 
     freedom not only enforce women's incubation of unwanted 
     pregnancies, but also prescribe a ``vision of the woman's 
     role'' as mother and caretaker of children in a way that is 
     at odds with equal protection.

  Is that mainstream?
  What about her views on religious freedom? She argued that the 
Supreme Court's case of Hosanna-Tabor Evangelical Lutheran Church, 
which challenged the so-called ``ministerial exception'' to employment 
discrimination, represented a ``substantial threat to the American rule 
of law.'' Now, get this. After she said that, the Supreme Court 
rejected her view 9 to 0, and the Court held that ``it is impermissible 
for the government to contradict a church's determination of who can 
act as its ministers.''
  Do my colleagues really believe mainstream America thinks churches 
shouldn't be allowed to choose their own ministers?
  I could go on and on, but I hope my colleagues get the picture.
  The point is this: Voting to change the Senate rules is voting to 
remove one of the last meaningful checks on the President--any 
President--and voting to put these views on this important court.
  So I ask again, why would the other side do this? It is nothing short 
of a complete and total power grab. It is the type of thing we have 
seen again and again out of this administration and their Senate 
allies, and you can sum it up this way: Do whatever it takes.
  You can't get ObamaCare passed with Republican support? Do whatever 
it takes: Pass it at 7 a.m. on Christmas Eve with just Democratic 
votes.
  You can't get all of your side to support ObamaCare? Do whatever it 
takes: Resort to things like the ``Cornhusker kickback.''
  You lose your 60th vote on ObamaCare due to a special election? Do 
whatever it takes: Ram it through anyway using reconciliation.
  The American people don't want to be taxed for not buying health 
care? Do whatever it takes: Tell the American people it isn't a tax and 
then argue in the court that it is a tax.
  The American people want to keep their health care? Do whatever it 
takes: Promise them ``if you like your health care, you can keep it'' 
and then issue regulations making it impossible.
  Your labor allies want out from under ObamaCare? Do whatever it 
takes: Consider issuing them--labor--a waiver from the reinsurance tax.
  You can't find consensus nominees for the National Labor Relations 
Board? Do whatever it takes: Recess-appoint them when the Senate is 
still in session.
  You can't convince Congress to adopt your gun control agenda? Do 
whatever it takes: Issue some Executive orders.
  You can't convince moderate Democrats to support cap-and-trade fee 
increases? Well, do whatever it takes: Do the same thing through EPA 
regulation.
  Frustrated that conservative groups' political speech is protected 
under the First Amendment? Do whatever it takes: Use the IRS to harass 
and intimidate those same conservative groups.
  Frustrated when the court stands up for religious freedom and issues 
a check on the ObamaCare contraception mandate? Do whatever it takes: 
Stack the D.C. Circuit Court in your favor.
  Frustrated when the court curbs your power on recess appointments? Do 
whatever it takes: Stack the D.C. Circuit with your favorite 
appointees--people who will rule in your favor.
  Worried EPA's regulations on cap-and-trade fee increases might get 
challenged in the court? Do whatever it takes: Stack the D.C. Circuit 
in your favor.
  Frustrated because Senate Republicans have the nerve to hold you to 
the same standard you established during the last administration? Do 
whatever it takes: Change the rules of the Senate. That is what we have 
witnessed today, nothing but an absolute power grab.
  The majority in the Senate and their allies in the administration are 
willing to do whatever it takes to achieve their partisan agenda. They 
know there will be additional challenges to ObamaCare. They know that 
if they can stack the deck on the D.C. Circuit they can remove one of 
the last remaining checks on Presidential power.
  But make no mistake, my friends on the other side will have to answer 
this question: Why did you choose this moment to break the rules to 
change the rules? Why now? Why, when we are witnessing the collapse of 
this massive effort to centrally plan one-sixth of this wonderful 
Nation's economy--why, when millions of Americans are losing their 
health care--why did you choose this moment to hand the keys to the 
kingdom over to the President, a President with less check on his 
authority?
  Because the fact of the matter is this: any vote to break the rules 
to change the rules is a vote to ensure ObamaCare remains intact.
  I will conclude by saying this. Changing the rules of the Senate in 
this way was a mistake. But if the last several years have taught us 
anything, it is that the majority won't stop making these demands. We 
can't always give in to these constant threats. Sooner or later you 
have to stand up and say: Enough is enough.
  But if there is one thing which will always be true, it is this: 
Majorities are fickle. Majorities are fleeting. Here today, gone 
tomorrow. That is a lesson that, sadly, most of my colleagues on the 
other side of the aisle haven't learned for the simple reason that they 
have never served a single day in the minority.
  So the majority has chosen to take us down this path. The silver 
lining is that there will come a day when roles are reversed. When that 
happens, our side will likely nominate and confirm lower court and 
Supreme Court nominees with 51 votes, regardless of whether the 
Democrats actually buy into this fanciful notion that they can demolish 
the filibuster on lower court nominees and still preserve it for 
Supreme Court nominees.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I ask unanimous consent that after my remarks, the Senator 
from Alabama be recognized.
  The PRESIDING OFFICER. Without objection.
  Mr. LEVIN. Mr. President, in the past, a few Senate majorities, 
frustrated by their inability to get certain

[[Page 17830]]

bills and nominations to a vote, have threatened to ignore the rules 
and change them by fiat, and to change rules to a majority vote change. 
Rule XXII of the Senate requires two-thirds of the Senate to amend our 
rules. A new precedent has now been set, which is that a majority can 
change our rules. Because that step would change this Senate into a 
legislative body where the majority can, whenever it wishes, change the 
rules, it has been dubbed the nuclear option.
  Arguments about the nuclear option are not new. Senator Arthur 
Vandenberg confronted the same question in 1949. Senator Vandenberg, 
who was a giant of the Senate and one of my predecessors from Michigan, 
said if the majority can change the rules at will, ``there are no rules 
except the transient, unregulated wishes of a majority of whatever 
quorum is temporarily in control of the Senate.''
  When Senator Vandenberg took that position, he was arguing against 
changing the rules by fiat, although he favored the rule change that 
was being considered.
  Overruling the ruling of the Chair, as we have now done, by a simple 
majority is not a one-time action. If a Senate majority demonstrates it 
can make such a change once, there are no rules which bind a majority, 
and all future majorities will feel free to exercise the same power--
not just on judges and executive appointments but on legislation.
  We have avoided taking those nuclear steps in the past, although we 
have avoided them sometimes barely. I am glad we avoided the possible 
use of the nuclear option again earlier this year when our leaders 
agreed on a path allowing the Senate to proceed to a vote on the 
President's nominees for several unfilled vacancies in his 
administration. Today we are once again moving down a destructive path.
  The issue is not whether to change the rules--I support changing the 
rules--to allow a President to get a vote on nominees to executive and 
most judicial positions. But this is not about the ends but the means. 
Pursuing the nuclear option in this manner removes an important check 
on majority overreach. As Senator Vandenberg said: If a Senate majority 
decides to pursue its aims unrestrained by the rules, we will have 
sacrificed a professed vital principle for the sake of momentary 
convenience.
  Republicans have filibustered three eminently qualified nominees to 
the Circuit Court of Appeals for the District of Columbia. They make no 
pretense of argument that these nominees are unqualified. The mere 
nomination of qualified judges by this President, they say, qualifies 
as court packing. It is the latest attempt by Republicans, having lost 
two Presidential elections, to seek preventing the duly elected 
President from fulfilling his constitutional duties.
  The thin veneer of substance laid over this partisan obstruction is 
the claim that the D.C. Circuit has too many judges. To be kind, this 
is a debatable proposition, one for which there is ample contrary 
evidence, and surely one that falls far short of the need to provoke a 
constitutional battle. Republicans know they cannot succeed in passing 
legislation to reduce the size of the court. So, presented with a 
statutory and constitutional reality they do not like, they have 
decided to ignore that reality and have decided they can obstruct the 
President's nominees for no substantive reason.
  Let nobody mistake my meaning. The actions of Senate Republicans in 
these matters have been irresponsible. These actions put short-term 
partisan interest ahead of the good of the Nation and the future of 
this Senate as a unique institution. It is deeply dispiriting to see so 
many Republican colleagues who have in the past pledged to filibuster 
judicial nominees only in extraordinary circumstances engaged in such 
partisan gamesmanship. Whatever their motivations, the repercussions of 
their actions are clear. They are contributing to the destruction of an 
important check against majority overreach. To the frustration of those 
willing to break the rules to change the rules, those of us who are 
unwilling to do that have now seen it occur before our eyes when the 
Chair was overruled earlier today.
  So why don't I join my Democratic colleagues in supporting the method 
by which they propose to change the rules? My opposition to the use of 
the nuclear option to change the rules of the Senate is not a defense 
of the current abuse of the rules. My opposition to the nuclear option 
is not new. When Republicans threatened in 2005 to use the nuclear 
option in a dispute over judicial nominees, I strongly opposed the 
plans, just as Senator Kennedy, Senator Biden, and Senator Byrd did, 
and just about every Senate Democrat did--including Democrats still in 
the Senate today.
  Back then, Senator Kennedy called the Republican plan a ``preemptive 
nuclear strike,'' and said:

       Neither the Constitution, nor Senate rules, nor Senate 
     precedents, nor American history, provide any justification 
     for selectively nullifying the use of the filibuster. Equally 
     important, neither the Constitution nor the Rules nor the 
     precedents nor history provide any permissible means for a 
     bare majority of the Senate to take that radical step without 
     breaking or ignoring clear provisions of applicable Senate 
     Rules and unquestioned precedents.

  Here is what then-Senator Biden said during that 2005 fight:

       The nuclear option abandons America's sense of fair play. 
     It's the one thing this country stands for. Not tilting the 
     playing field on the side of those who control and own the 
     field. I say to my friends on the Republican side, you may 
     own the field right now but you won't own it forever. And I 
     pray to God when the Democrats take back control, we don't 
     make the same kind of naked power grab you are doing.

  My position today is consistent with the position that I and every 
Senate Democrat took then--and that is just back in 2005--to preserve 
the rights of the Senate minority. I can't ignore that. Nor can I 
ignore the fact that Democrats have used the filibuster on many 
occasions to advance or protect policies we believe in.
  When Republicans controlled the White House, the Senate, and the 
House of Representatives from 2003-2006, it was a Democratic minority 
in the Senate that blocked a series of bills that would have severely 
restricted the reproductive rights of women. It was a Democratic 
minority in the Senate that beat back efforts to limit Americans' right 
to seek justice in the courts when they are harmed by corporate or 
medical wrongdoing. It was a Democratic minority in the Senate that 
stopped the nominations of some to the Federal courts who we believed 
would not provide fair and unbiased judgment. Without the protections 
afforded the Senate minority, total repeal of the estate tax would have 
passed the Senate in 2006.
  We don't have to go back to 2006 to find examples of Senate Democrats 
using the rules of the Senate to stop passage of what many of us deemed 
bad legislation. Just last year, these protections prevented adoption 
of an amendment which would have essentially prevented the EPA from 
protecting waters under the Clean Water Act. We stopped an amendment to 
allow loaded and concealed weapons on land managed by the Army Corps of 
Engineers. With minority votes, we stopped legislation that would have 
allowed some individuals who were deemed mentally incompetent access to 
firearms. That is just in the last year. Removing these minority 
protections risks that in the future, important civil and political 
rights might disappear because a majority agreed they should.
  Let us not kid ourselves. The fact that we changed the rules today 
just to apply to judges and executive nominations does not mean the 
same precedent won't be used tomorrow or next year or the year after to 
provide for the end of a filibuster on legislation, on bills and 
amendments that are before us.
  Just as I have implored my Democratic colleagues to consider the 
implications of a nuclear option which would establish the precedent 
that the majority can change the rules at will, it is just as urgent 
for my Republican colleagues to end the abuse of rules allowing 
extended debate that were intended to be invoked rarely.

[[Page 17831]]

  Some of my Democratic colleagues may rightfully ask, if a Democratic 
majority cannot initially muster a supermajority to end filibusters or 
change the rules, then what can the majority do? The rules give us the 
path, and that is to make the filibusterers filibuster. Let the 
majority leader bring nominations before the Senate, and let the Senate 
majority force the filibusterers to come to the floor to filibuster. 
The current rules of the Senate allow the Presiding Officer to put the 
pending question to a vote when no Senator seeks recognition. Let us, 
as the Senate majority, dedicate a week, or a weekend, or even a night, 
to force the filibusterers to filibuster.
  In 2010, in testimony before the rules committee on this subject, 
this is what Senator Byrd said:

       Does the difficulty reside in the construction of our 
     rules, or does it reside in the ease of circumventing them? A 
     true filibuster is a fight, not a threat, not a bluff. . . . 
     Now, unbelievably, just the whisper of opposition brings the 
     ``world's greatest deliberative body'' to a grinding halt.

  Then he said:

       Forceful confrontation to a threat to filibuster is 
     undoubtedly the antidote to the malady.

  We have not used that antidote to the malady which besets this body, 
allowing the mere threat of a filibuster to succeed without challenging 
that threat, without telling the filibusterers: Go ahead, filibuster. 
We have rules that protect us. When you pause and when there is no one 
else here, at 3 o'clock on the fourth day or the fifth day or the sixth 
day, the Chair can put the question. The American people will then see 
in a dramatic way the obstruction which has taken place in this body.
  But before a Senate majority assumes a power that no Senate majority 
before us has assumed, to change the rules at the will of the majority, 
before we do something that cannot easily be undone--and we have now 
done it--before we discard the uniqueness of this great institution, 
let us use the current rules and precedents of the Senate to end abuse 
of the filibuster. Surely we owe that much to this great and unique 
institution.
  There is a conversation, which was a formal conversation between the 
majority and Republican leaders just last January. Here is what the 
majority leader said:

       In addition to the standing order [which is what we have 
     adopted] I will enforce existing rules to make the Senate 
     operate more efficiently. After reasonable notice, I will 
     insist that any Senator who objects to consent requests or 
     threatens to filibuster come to the floor and exercise his or 
     her rights himself or herself. This will apply to all 
     objections to unanimous consent requests. Senators should be 
     required to come to the floor and participate in the 
     legislative process, to voice objections, engage in debate or 
     offer amendments.

  He said:

       Finally, we will also announce that when the majority 
     leader or bill manager has reasonably alerted the body of the 
     intention to do so and the Senate is not in a quorum call and 
     there is no order of the Senate to the contrary, the 
     Presiding Officer may ask if there is further debate, and if 
     no Senator seeks recognition, the Presiding Officer may put 
     the question to a vote.

  He, our majority leader, said:

       This is consistent with the precedent of the Senate and 
     with Riddick's Senate Procedure.

  What this showed again is that if we in the majority have the 
willpower, as much willpower as has been shown by some obstructionists 
in this body--if we have an equal amount of will as they have shown, 
that the current rules, before this change today, can be used to force 
filibusterers to filibuster, to come to the floor and to talk, all we 
need is the willingness to use the rules, to take the weekend off, to 
take a week that we hoped for a recess, and use it to come back here; 
to take the recess itself, if necessary during the summer, for 1 month 
if necessary, to try to preserve what is so essential to this body, its 
uniqueness, which is that the majority cannot change the rules whenever 
it wants.
  The House of Representatives can change the rules whenever it wants. 
It is called a rules committee. They can adopt and modify the rules at 
any time, and they do. This body has not done that. We have resisted. 
We have been tempted to do it. We have come close to doing it. But we 
have never done it--until today.
  Do I want to amend the rules? Do I. I want to amend these rules with 
all my heart. I want to embody a principle that a President, regardless 
of party, should be able to get a vote on his or her nominees to 
executive positions at the district and circuit courts. I believe in 
that. I believe most Senators believe in that. We need to change the 
rule. But to change it in the way we changed it today means there are 
no rules except as the majority wants them. It is a very major shift in 
the very nature of this institution, if the majority can do whatever it 
wants by changing the rules whenever it wants with a method that has 
not been used before in this body to change the very rules of this 
body.
  We should have avoided a nuclear option. We should have avoided 
violating our precedents. We should have avoided changing and creating 
a precedent which can be used in the same way on legislation. It may 
give comfort to some today: ``But this is only on judges, this is only 
on executive appointments.'' This precedent is equally available to a 
majority that wants to change the rules relative to the legislative 
process.
  Those who have abused these rules, mainly on the other side of the 
aisle, whether they acknowledge it, are contributors to the loss of 
protections which we see today for the Senate minority. Given a tool of 
great power, requiring great responsibility, they have recklessly 
abused it. But now I am afraid it will not just be they who will pay 
the price.
  In the short term, judges will be confirmed who should be confirmed. 
But when the precedent is set, the majority of this body can change the 
rules at will, which is what the majority did today. If it can be 
changed on judges or on other nominees, this precedent is going to be 
used, I fear, to change the rules in consideration of legislation. Down 
the road--we don't know how far down the road, we never know that in a 
democracy--but down the road the hard-won protections and benefits for 
our people's health and welfare will be lost.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, throughout our Senate history we have 
had Senators such as Senator Levin. Before he does depart, I thank him 
for his principled approach to this complex issue.
  Just to share with all of our colleagues, he is completing his 
service in the Senate this year. He is not running for reelection. He 
certainly would have been reelected. This weekend I was at a national 
security conference at the Reagan Library. The first winners of an 
award for national security were former Secretary of Defense Gates, who 
served two Presidents, and Senator Levin was the other winner. I think 
it is a tribute to his commitment to this country.
  We have disagreed on a lot of issues and no one should think he is 
not a strong and effective advocate for values around here. But I think 
all of us should listen to his remarks and his warning, a very simple 
warning. That warning is that if a majority can change the rules with a 
simple majority vote in order to defeat what heretofore was a right of 
a minority party in the Senate, there are no minority rights left. They 
simply exist at the will of the majority. This is a fundamental matter. 
It is an important matter.
  We have had some close calls and a lot of intensity, but we have 
avoided this kind of action. I think it is fair to say without dispute 
that the significance of this rule change today dwarfs any other appeal 
of the ruling of the Chair that we have seen--maybe in the history of 
the Republic. This is a big event. It changes what goes on because we 
deal with power and the exercise of power.
  This whole thing is simply Majority Leader Reid--and he has a 
difficult job. I have tried to not make his life more difficult than it 
needs to be.
  But he is not a dictator. He does not get to dictate how this Senate 
is operated. He does not have the right to

[[Page 17832]]

come in and change the rules because he wants to fill three judgeship 
slots that are not needed. There is no way one can justify filling 
these court slots, based on simple need or by caseload per judge.
  He is unhappy about that. Maybe he wants to change the mood of the 
country from ObamaCare and the overreach that was executed to pass that 
bill on December 24, to ram it through the Senate on a straight party-
line vote. I suspect that is part of it. But this is not the way to do 
business.
  The only reason those judges were blocked, the only reason they did 
not get a confirmation, was because we did not need them. This country 
is going broke. There are districts in America that need judges. The 
D.C. Circuit does not need more judges. It does not need the eight they 
have. Yes, they have 3 vacancies, but with the current 8 judges, their 
average caseload per judge was 149, and they have been continuing to 
drop. My circuit, the Eleventh Circuit, the Chair would be interested 
to know, has an average caseload per judge of 740. The next lowest 
caseload per circuit is twice 149. The average is well above that per 
circuit. The judges themselves say they do not need anymore judges. 
They take the whole summer off.
  These judges would not have been rejected if we had needed them. But 
the President is so determined to try to leave a legacy of friends on 
that court that he just shoved them anyway and demanded the Senate pass 
them, and Senator Reid demanded that we confirm these judges. The 
judges say they do not need anymore judges on that court. They do not 
need them, whether they say they need them or not. I know how to look 
at the caseload. I am on the Judiciary Committee. I am on the courts 
subcommittee. I have chaired it and been ranking member of it for 
years. I know how to analyze weighted caseloads. There is no 
justification for adding or filling a single slot on that court and we 
should not be doing it.
  I am also ranking Republican on the budget committee, and I know we 
cannot keep throwing away money for no good reason. The last thing we 
should do is ask the American people to fund $1 million-a-year judges. 
That is what each judge and the staff are estimated to cost--and there 
are three of them. It is akin to every year burning $1 million on The 
Mall. We do not have $1 million to throw away. But we do have judges, 
we do have circuits, we do have district courts around the country that 
are overloaded and we are going to add some judges to them. We ought to 
close these judge slots and move them to a place they are needed, as 
any commonsense person would do.
  So it was not any animosity to any of the nominations and their 
character or decency that led to this rejection. It was because we 
warned against it.
  Senator Grassley and I serve on the judiciary committee. He 
previously chaired the court subcommittee, and Senator Grassley blocked 
President Bush in filling one of those slots. Oh, they wanted to fill 
the slot. They thought they might leave a legacy judge who would be 
influential to them. That is what they suggested, but we refused. We 
were actually able to transfer one of those slots to the Ninth Circuit. 
That is how good business should be done around here. We are at a point 
where we don't need to fill that slot, and it should in no way cause 
the majority leader to feel as if his power was threatened or that his 
majority was threatened. We are changing the rules of the Senate so he 
can get three judges confirmed that we do not need. I will be prepared 
to debate that issue anywhere, anytime on the merits. Not one of those 
slots should be filled.
  They have the lowest caseload per judge in America. Their cases are 
not so complex that it would slow down their work and demand more 
judges. That has been analyzed, and it is not true.
  Senator Reid asked for this job. That is what my wife says to me when 
I complain. She says: Don't blame me; you asked for the job. He asked 
to be the majority leader of the Senate, and it is not easy. There are 
a lot of Members and a lot of different ideas about what ought to be 
done.
  Trent Lott called it herding cats. I suppose that is a pretty good 
description of it. One time he said it is like putting a bunch of frogs 
in a wheelbarrow. You put one in and two jump out. It is not easy to 
move the Senate. I understand that. Changing the rules, as Senator 
Levin said, by a simple majority vote and significantly altering the 
tradition of the Senate is dangerous.
  Senator Reid said we have been wasting time on the procedural hurdles 
thrown up in the Senate. He also said Congress is broken and the 
American people think that Congress is broken. They thought it was 
broken when they used legerdemain on December 24 before Scott Brown 
from Massachusetts could take office so they could pass a health care 
bill that the American people overwhelmingly opposed.
  Maybe the reason the American people are frustrated with the Congress 
is that they passed a bill that the American people opposed without a 
single Republican vote in the House or the Senate. Maybe that is why 
the American people are not happy with us.
  I will explain, colleagues, what is causing the greatest frustration 
in the Senate. It is a trend that began some years ago--not long after 
I came to the Senate 17 years ago--and it has accelerated. It has 
reached a pace with Majority Leader Reid we have never, ever seen 
before, and it undermines the very integrity and tradition of the 
Senate. It has to stop. We have to recover the tradition of this body. 
We owe it to those who will be filling these seats in the years to 
come.
  This is the problem: A maneuver called filling the tree was 
discovered. It is a parliamentary maneuver where the majority leader, 
who gets recognition first in the Senate, seeks recognition and then he 
fills the tree. That parliamentary maneuver basically blocks anyone 
else from getting an amendment. A Senator cannot introduce his or her 
amendment. So how do we have an amendment? You have to go hat in hand 
to Senator Reid and say: Senator Reid, I would like an amendment.
  Well, I don't think so.
  I don't like that amendment.
  But I like it. I want to vote on it.
  Sorry. We don't want to vote on it.
  That is the way it has been going every year. The Defense bill 
commonly had 30 or more amendments of substance when it hit the floor--
$500 billion. It was the biggest appropriation bill we had--$500 
billion. Senator Coburn has an amendment directly related to the 
Department of Defense that would save some money.
  Senator Reid will not give him a vote on that.
  People say: Why don't you do something, Sessions? Why don't you get 
an amendment passed? I cannot bring an amendment to the floor unless he 
agrees. He says it is because of delay. He says it is because it 
creates time difficulties. We have been on this bill for a week, and we 
have only had two votes. We have gone for days with no votes. It is not 
about time. Let me tell you what it is: The majority leader of the 
Senate is protecting his members from tough votes. He does not want 
them to have to cast votes on critical issues in this country. He is 
not concerned about time or delay. There is plenty of time.
  We could have already cast 15 votes on this bill, and everybody would 
be satisfied. That is the way it was when Senator McConnell was here. 
That is the way it has been. That is the way it had been when I came 
here. We had 60-something votes on a bankruptcy bill. It went on for 3 
weeks.
  This is causing tension and frustration. One of our new Members in 
the Senate when we were debating this very question some months ago 
said: They tell us we have to get Senator McConnell's decision before 
they will let us introduce an amendment. I said: Wait a minute. Do you 
not understand that you are a duly elected Senator from the United 
States of America and you have to ask permission of the Republican 
leader before you can get a vote on an amendment? How did this happen?
  This is a background issue that is undermining collegiality in this 
body. I am tired of asking the majority leader

[[Page 17833]]

for permission to give me a vote in the Senate. It is not right.
  Mr. ROBERTS. Would the Senator yield?
  Mr. SESSIONS. Yes, I will yield for a question.
  Mr. ROBERTS. I am assuming that his situation is very similar to the 
situation that I find myself in. About a year ago we brought the farm 
bill to the floor. I was the ranking member of the committee. We voted 
73 times. We had over 300 amendments offered. The amendments came 
forth, and the first amendment had nothing to do with agriculture. 
Basically, we were able to get through it in 2\1/2\ days.
  Fast-forward to this year's farm bill. I think there were 10 votes. 
Senator Thune has been on the committee for a long time. We respect his 
voice, and we respect his amendments. He had about four amendments. 
Senator Grassley has been on the committee a lot longer. He always has 
amendments on the farm bill. Senator Johanns is a former Secretary of 
Agriculture. He is an excellent Senator for Nebraska and a real voice 
for Agriculture. He had several amendments. I had two or three 
amendments that I would have liked to have had considered.
  The reason I mention them is because we all agreed to hold off in 
committee as long as we could bring them to the floor. We wanted to 
expedite it because the big issue was time. They said: Well, we don't 
have time for a farm bill. Usually a farm bill takes 1 to 2 weeks. That 
is just not the case anymore. Last year we got through it in 2\1/2\ 
days.
  This year we expected to have votes, but none of us got amendments. 
After 10 votes, bingo, it was cut off. The majority leader controlled 
the effort. This is like the Rules Committee in the House.
  When I was in the House, we had a Roberts-Stenholm amendment.
  Mr. SESSIONS. An amendment can't come up for a vote in the House 
unless it is approved by the Rules Committee.
  Mr. ROBERTS. That is correct.
  Mr. SESSIONS. That is the difference between the House and the 
Senate.
  Mr. ROBERTS. Madam President, if I could respond to the distinguished 
Senator. We had a Roberts-Stenholm amendment at that point while the 
Republicans were in the minority. Charlie Stenholm was a Democrat. As 
we went in he whispered: You might want to make this the Stenholm-
Roberts amendment. I figured that out pretty fast, and we got our 
amendment made in order.
  As a younger member of the House at that particular time, I thought 
the Rules Committee was based on the merits of whether it was germane 
or pertinent, et cetera. It wasn't. It was just a complete rehash of 
what went on with the authorizing committee.
  One of the reasons I decided to come to the Senate was that you can 
offer an amendment at any time on any subject, unless it was something 
involving national security or whatever. I understand that. What we 
have now is a one-man rules committee. I deeply resent that.
  I feel sorry for the Senate, and I feel sorry for the Members who 
come here and are not able to have their amendments considered.
  One of the first things I did as the ranking member of the Senate 
agriculture committee last year was to promise that amendments could be 
brought to the floor. A lot of people on our side never had the 
opportunity to offer an amendment before. I said: You will have that 
opportunity if I can get this thing done. And we did. We opened it and 
it was one of the few bills that went under regular order, and we got 
things done.
  There is only one House. There is the House and there is the Senate--
just like the House--and that is a shame.
  I thank the distinguished Senator for his comments.
  Mr. SESSIONS. I thank the Senator so very much. His insight is 
correct. I will wrap up and say that what happened today is very 
significant, and it is a sad day. It represents the greatest alteration 
of the rules without proper procedure that we have probably seen in the 
history of the Republic.
  It erodes legitimate minority rights in a way that subjects every 
right a minority party has in the Senate and the right any individual 
Senator has in the Senate. It places that right at great risk. A 
majority can do that at any time. That was explained so eloquently by 
Senator Roberts a few moments ago. I was so impressed with his 
analysis.
  We will wrestle through this and work at it. I know that Senator 
Alexander has worked hard in every way possible to avoid this day. He 
has expressed great interest in it, and I look forward to hearing his 
comments at this time on where we are and what is going to happen to 
us.
  I thank the Senator and yield the floor.
  The PRESIDING OFFICER (Ms. Heitkamp). The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, I thank the Senator from Alabama for 
his thoughtfulness and leadership.
  As Senator Byrd used to say: The purpose of the Senate is to have a 
place where there can be an opportunity for unlimited discussion, 
unlimited debates and unlimited amendments. That is why we are here.
  Senator Byrd used to say so eloquently that the Senate was a unique 
body because it provided the necessary fence against the abuses of the 
executive. That is what Senator Byrd said in his last speech to the 
Senate when he spoke before the rules committee. He said the Senate is 
the necessary fence against abuses of the executive--remembering how 
this country was founded in opposition to the king and the popular 
excesses. That was what the Senate was supposed to be. I am afraid that 
ended today.
  This action by the Democratic majority is the most important and most 
dangerous restructuring of the rules of the Senate since Thomas 
Jefferson wrote the rules at the founding of our country. It creates 
the perpetual opportunity--as Alexis de Tocqueville described--that is 
most dangerous for our country. He said that when he came to our 
country to visit in the 1830s. The young Frenchman said: I see two 
great dangers for this new American democracy. One was Russia and the 
other was the tyranny of the majority.
  The action that was taken today creates a perpetual opportunity for 
the tyranny of the majority because it permits a majority in this body 
to do whatever it wants to do anytime it wants to do it. This should be 
called ObamaCare 2 because it is another example of the use of raw 
partisan political power for the majority to do whatever it wants to do 
any time it wants to do it.
  In this case what it wants to do is implement the President's radical 
regulatory agenda through the District of Columbia court. That's what 
this is. It is not about an abuse of the filibuster.
  There is a big football weekend coming up in Tennessee. Vanderbilt 
University plays the University of Tennessee in Knoxville.
  Let's imagine this: The Vanderbilt-Tennessee game, which is being 
played in Knoxville, home of the University of Tennessee, and 
Vanderbilt gets on the 1-yard line. The University of Tennessee says: 
Well, we are the home team, so we will just add 20 yards to the field 
or whatever it takes for us to win the game. Or the Boston Red Sox are 
playing at home. Let's say they are behind the Cardinals this year. 
They get to the ninth inning and they are behind and they say: Well, it 
is our home field. We will just add a few innings or whatever it takes 
so we can win the game. That is what the Democratic majority did today. 
They say: The rules don't allow us to do what we want to do, so we will 
just change the rules to do whatever it takes to get the result we 
want.
  That is what they did with ObamaCare. We remember that. I was 
standing right here at the desk. It was snowing. It was the middle of 
the winter. Senators were coming in, in the middle of the night, and 
what happened? Among the things the American people like the least 
about ObamaCare is that it was crammed down the throat of the American 
people by the raw exercise of partisan political power with not one 
single Republican vote. That is not the way the civil rights bill was 
passed. That is not the way Social

[[Page 17834]]

Security and other great bills were passed. They were passed by a 
bipartisan majority so we could gain the support of the American 
people.
  Our Democratic majority must have liked that ObamaCare night. The 
American people aren't liking it so much because apparently nobody read 
the bill very closely. There are millions of Americans who have had 
their policies canceled. There are going to be millions more when 
employers start looking at the cost of ObamaCare.
  This is ObamaCare 2; I say to my colleagues. This is another exercise 
of raw partisan political power for the Democratic majority to get the 
result it wants. There is only one cure for it, and that is an 
election. An election is coming up in about a year. The American people 
can speak. In the meantime, this has been the most dangerous, most 
important restructuring of the Senate since Thomas Jefferson wrote the 
rules.
  It is, according to the Senator from Nevada, who is the majority 
leader--it is, according to his book in 2008, the end of the Senate. 
That is what he said this would be, and now he has done it. He has 
written the end of the Senate by his actions today.
  The Senator from Michigan, Mr. Levin, said to all of us when we were 
discussing this earlier this year--he reminded us of the great Senator 
from Michigan, Arthur Vandenberg, who was the author of the idea of a 
bipartisan foreign policy. Senator Vandenberg said shortly after World 
War II that a U.S. Senate in which a majority can change the rules 
anytime the majority wants is a U.S. Senate without any rules. Let me 
say that again. A U.S. Senate in which the majority can change the 
rules anytime the majority wants is a U.S. Senate without any rules.
  So this is not about the filibuster. This is another raw partisan 
political power grab so the Democratic majority can do whatever it 
wants to do whenever it wants to do it. It is ObamaCare II, and the 
American people will see it that way when they can take time away from 
the Web sites trying to fill out their new insurance policies to be 
able to pay enough attention to it.
  What is the excuse for this extraordinarily disturbing action today? 
They are the flimsiest of excuses, and I will take a few minutes to 
outline what those are.
  The first allegation is that the Republican minority was using the 
filibuster to keep President Obama's appointees from gaining their 
seats. Well, let's look at the history from the Congressional Research 
Service. How many Supreme Court nominees have ever not been seated 
because of a failed cloture vote? That is a filibuster. The answer is 
zero in the history of the Senate--not just President Obama but the 
history of the Senate. Someone might point to the Abe Fortas case when 
President Johnson--I guess it was in the late 1960s--engineered a 45-
to-43 cloture vote so, in Johnson's words, Abe Fortas could hold his 
head up, but, in fact, the filibuster has never been used to deny a 
Supreme Court Justice his or her seat. How many Cabinet Members of 
President Obama have been denied their seat by a filibuster? Zero. This 
is the Congressional Research Service.
  The majority leader said: Well, what about Secretary Hagel, the 
distinguished Defense Secretary? He had to wait 34 days to be 
confirmed. Why shouldn't he wait 34 days to be confirmed? He was 
confirmed shortly after his name was reported. We had a perfectly 
adequate Secretary of Defense sitting in the office at the time--
Secretary Panetta. I remember the Senator from Nevada standing over 
there and asking: What if we are attacked and Secretary Hagel is not 
there? Well, Secretary Panetta was there.
  The number is zero.
  Mr. INHOFE. Madam President, will the Senator yield?
  Mr. ALEXANDER. Of course.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. I ask unanimous consent that after the Senator concludes 
his remarks, we hear from the Senator from Arkansas Mr. Pryor, and that 
I be recognized after Senator Pryor for such time as I may consume.
  The PRESIDING OFFICER. Is there objection?
  Mr. ALEXANDER. Certainly. And if the Senator from Oklahoma needs to 
speak now, I will be glad to yield.
  Mr. INHOFE. That is not necessary.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALEXANDER. Madam President, my point is that the charge is that 
Republicans had been denying President Obama his nominations by 
filibuster. Not on the Supreme Court, not to his Cabinet, and no 
district judges, I say to my colleagues.
  How many in the history of the country have ever been denied their 
seats by a failed cloture vote, including President Obama? The answer 
is zero.
  That is very interesting. So what is the reason for this? Well, let's 
go on. Maybe it was some other nomination that caused such a problem 
that would justify this dangerous restructuring of the Senate rules.
  Let's go to the sub-Cabinet category. These are all the executive 
appointments below the Cabinet level. How many of those have been 
denied? Under President Clinton, the Senate rejected two nominees of 
his by a cloture vote. Under George W. Bush, it was three. Under 
President Obama, it has been two. So in the history of the Senate, the 
cloture vote has been used to deny seven Presidential nominees their 
seat, including two for President Obama.
  Let's go to the one area where there has been a little bit more; that 
is, the circuit judges. Remember, on the Supreme Court, never; district 
judges, never; Cabinet member, never; but circuit judges, yes. There 
have been 10 instances where Presidential nominees for the Federal 
circuit courts of appeals have been denied their seats because of a 
failed cloture vote--that is a filibuster--five Democrats, five 
Republicans.
  How did this happen? If in all of these other areas it never happens, 
why did it happen here? Because, as the Republican leader explained 
this morning, Democrats got together in 2003--the year I came to the 
Senate--and said, for the first time in the history of the U.S. Senate, 
we are going to use the filibuster to deny President George W. Bush 10 
nominations to the circuit court because they are too conservative, not 
because they are not qualified. One was Miguel Estrada, one of the most 
highly qualified nominees ever presented. One was Judge Pickering. One 
was Judge Pryor, who used to be a law clerk to Judge Wisdom, as I once 
was. I know the high respect Judge Wisdom had for him. The end result 
was that we had this Gang of 14, and the Democrats ended up only 
stopping five of President Bush's judges, but that was the first time 
in the history of the Senate. To date, including the judges we are 
discussing now, the three on the D.C. Circuit Court, the total is five. 
So that is it.
  How can anyone say President Obama has not been treated fairly when, 
in fact, the answer is zero on the Supreme Court, zero on district 
judges, zero on Cabinet and two on sub-Cabinet, and the same on circuit 
courts that President Bush had?
  I asked the Senate Historian if President Obama's second term Cabinet 
nominees had been moved through the Senate more swiftly or slower than 
those of his two predecessors, Bush and Clinton. The Senate Historian 
told me it was about the same. So on that question, that is a fake 
crisis.
  The second allegation is that it takes too long for President Obama's 
nominees to come through the Senate. Well, we have something on our 
desks called the Executive Calendar. Every Senator has this. There are 
44 Senators in their first term, and maybe some haven't had a chance to 
read it very carefully, but it has on it all of the names of everyone 
who could possibly be confirmed.
  The way Senate procedure works is a nominee comes out of a committee 
to the Executive Calendar. Let me state the obvious: All of the 
committees are controlled by the Democrats. So if we want to report 
someone for the National Labor Relations Board, it has to be approved 
by a majority of senators on the committee on which I serve. Democrats 
have a majority of the seats

[[Page 17835]]

on the Committee; so a nominee gets on this calendar by a majority of 
Democratic votes.
  So how long have the people on the calendar been waiting? Well, 54 of 
them have been waiting only 3 weeks; in other words, they just got 
there. Most of them aren't controversial. Usually they are approved on 
a day such as this when we are wrapping up before we go home for a week 
or two, so half of them would probably be gone today. There are 16 who 
have been on the calendar for up to 9 weeks. That is a very short 
period of time in the U.S. Senate for people to have a chance to do 
their other business and get to know the nominees. There are eight who 
have been on the calendar more than 9 weeks. Of the eight, two are 
being held up by Democrats, and two more are Congressman Watt and Ms. 
Millett. That leaves four, and one of those is a newscaster who has 
been nominated to be a member of the board of the Morris K. Udall 
Foundation and who is being moved along with other people to that 
foundation board.
  In other words, it is not true that there are people being held up 
for a long period of time because the only way a nominee can be 
confirmed in the U.S. Senate is if the majority takes someone from this 
Executive Calendar, moves their nomination--it doesn't have to go 
through any sort of other motion; he can do it on his own--and then we 
move to consider that person.
  Well, one might say: But someone can hold each up one of those. Yes, 
we can, under the cloture procedure. But let's take an example. Let's 
say Senator Reid, the distinguished majority leader, were to come, 
under the old rules, to the floor and say: I believe Republicans are 
holding up 10 of our lower-level nominees in an obstructionist way. So 
let's say he arrives on Monday and he files cloture. He moves to 
confirm all 10 of those. He takes them off this calendar, he moves them 
to be confirmed, and he files cloture on each of the 10 on Monday. 
Tuesday is what we call an intervening day. He can get the rest of them 
confirmed, by bankers' hours, by Friday if he wants to because after he 
has that intervening day, there could only be, because we changed the 
rules earlier this year, 8 hours of debate, and his side can yield back 
their 4 hours, and then we go to the next one and then the next one. So 
we have 40 or 45 hours, and we have them all.
  The majority leader, if he wished to, could confirm all of these 
people very easily unless 41 Republicans said no. But what we have 
already seen is that almost never happens. In the history of the 
country, it has happened twice to President Obama on his sub-Cabinet 
members, never on a Cabinet member; and never on district judges.
  So the majority leader had plenty of opportunity to have everybody 
confirmed if he wanted to. This is why Senator Byrd, who was majority 
leader and minority leader, in his last speech to the Senate said: 
There is no need to change the rules--and I am paraphrasing. I was at 
the Rules Committee hearing when he spoke. He said: A majority leader 
can use the rules that we have--that is, until today--to do whatever he 
wants to get done.
  Then there is the last charge about the District of Columbia Circuit. 
That was the other pretext for this. Somehow Republicans were doing 
something wrong by saying it is too soon to cut off debate on the 
President's three nominees for the District of Columbia Circuit.
  Republicans were doing--to the letter--exactly what Democrats did in 
2006 and 2007. They were saying that court is underworked, that other 
courts are overworked, and we ought to move judges from where they are 
needed least to where they are needed most before we put anymore judges 
on the court.
  This is the letter sent on July 27, 2006, by all the Democrats on the 
Senate Judiciary Committee, including Senators Leahy, Schumer, 
Feingold, Kohl, Biden, Feinstein, Ted Kennedy. They said ``under no 
circumstances'' should President Bush's Republican nominee be 
considered, much less confirmed, by this committee before we address 
the very need for the judges on the committee.
  All we in the Republican Party were saying is--Senator Grassley has 
had his bill in since 2003; the Democrats said in 2006 we should not 
put anymore judges on the court until we look at where the judges are 
needed--we are saying: Consider Senator Grassley's bill before you 
confirm the judges.
  So that is the excuse--the flimsiest of excuses. The idea that 
President Obama is not being treated at least as well as previous 
Presidents with his nominees is just not true. The filibuster has not 
been used to deny him nominees, except in two cases for sub-Cabinet 
members; and in the case of circuit judges, no more than with President 
Bush.
  The majority leader has not used the rules he had before him to 
easily confirm the people on the Executive Calendar. Those on the 
Executive Calendar for the most part have only been there for a few 
weeks. So why then did the majority feel the need to take this 
extraordinary action?
  That takes us back to where we started. This is, very simply, another 
partisan political power grab to permit the majority to do whatever it 
wants to any time it wants to do it.
  The American people--millions of them--are filling out their 
insurance forms. They are trying to make the Web site work. They are 
terrified by the fact that they may not have insurance by January 1. 
That is totally the result of a partisan political power grab in the 
middle of the night 3 years ago that put ObamaCare into place. This is 
another example of that. The only cure for that is a referendum next 
November.
  I deeply regret the action the Democratic majority took today. It is 
the most dangerous and the most consequential change in the rules of 
the Senate since Thomas Jefferson wrote those rules at the founding of 
our country.
  Madam President, I would refer my colleagues to the letter I had 
included in the Record yesterday, the letter from the Senate Democrats 
in 2006 arguing that the D.C. Circuit should have no more judges until 
we consider the proper number and also a 1-page list of the total 
number of sub-Cabinet members who have ever been denied their seat by a 
failed cloture vote--and that number is seventeen in the history of the 
Senate; two under Clinton, three under Bush, and two under President 
Obama--plus five Bush judges and five Obama judges.
  Mr. ALEXANDER. I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. PRYOR. Madam President, I want to echo at least some of the 
sentiment that my distinguished colleague from Tennessee just 
mentioned--that I am disappointed in the use of the nuclear option. I 
opposed that. I think it could do permanent damage to this institution 
and could have some very negative ramifications for our country and for 
the American people.
  I do not want to be an alarmist about it, but I do have concerns. I 
am very disappointed that it got to this point, and I want to talk 
about that in a moment. But before I do, I would like to say, if you 
step back, the Senate was designed to be a place for debate. It is 
where Members--the way it was designed, the way the rules were 
structured, the size of it, the history of it--the Members can reach 
across the aisle and find solutions.
  That is what this country needs right now. We need solutions. We need 
people who are willing to work together to get things done. Part of 
that is to allow the minority to speak, even if it is a minority of 
one. We need to protect that right, and we need to protect every 
Senator's right to debate and to amend legislation. I think no one here 
with a straight face would say there have not been abuses from time to 
time. We know that. There have been, and I have seen a lot since I have 
been here.
  But also, if you step back and look at the Senate, it is the only 
place in our government where the American people can actually see law 
being made. With all due respect to our colleagues in the House, you do 
not see law being made there. They come out of their Rules Committee 
and it is all pretty much

[[Page 17836]]

set up, and right now at least they kind of tend to vote party line, 
party line, party line--done. You do not see law being made at the 
White House. When they are doing things such as executive orders, all 
you know is you kind of get the press release or you see an 
announcement in the Rose Garden, and that is it. You do not see law 
even being made in the courts. A lot of law in this country is made by 
the courts. For example, across the street at the U.S. Supreme Court, 
what you have is they hear the arguments, and they all go back in 
chambers. You do not really know what they talk about, you do not 
really know how that is working, and then they come out with their 
decision--and in some cases decisions because a lot of times there is a 
dissent.
  But the Senate is unique in that way. We are the only place in our 
government where you can actually see the law being made. It is also, 
in that same sense, the only place where the minority is guaranteed a 
voice. They sometimes get outvoted, but they are guaranteed at least to 
be heard. I think that is important.
  So again, I share the disappointment of many of my colleagues today 
in how this happened.
  The Senate rules I have worked with for 11 years now. They can be 
arcane and frustrating. But the way it is designed is it allows people 
to fight for their State's interests or their ideological beliefs, 
whatever it happens to be, and the sense is everybody is fighting for 
what is best for the country. We may disagree with what is best, and 
that is why we should have votes eventually on these matters. But it 
allows people to fight for what they think is right, best for their 
State, best for the country, best for the world--whatever the issue 
happens to be.
  Since I have been here, what I have tried to do consistently is to 
fight to maintain the integrity of this institution. Since I have been 
here, there have been numerous times--and I have been part of 
bipartisan groups. Probably the most high profile one was the Gang of 
14 back in 2005, where we worked out some judicial nominations. But 
nonetheless I was a part of that; just recently, the Levin-McCain group 
that helped to change the rules, as the Senator from Tennessee talked 
about.
  What that is all about is working with Senators from both sides of 
the aisle to reach commonsense solutions--not just to protect the 
rights of the minority but also to improve the legislative process, to 
make sure this place works as it is designed. So certainly that is what 
I try to do every single day when I come here. I do understand that if 
you are going to get anything done in Washington, anything done in this 
Senate, you are going to have to work together to do it. It is like in 
the Book of Isaiah. It says: ``Come now, let us reason together.'' I 
think that is the one verse in the whole Bible that sort of sums up the 
Senate: Come and let us reason together. The Senate should always be 
the place for that.
  Let me make two last points on this nuclear option. The first is that 
I would encourage the American citizens to be very careful in looking 
at statistics. They are difficult to use. They can be very misleading 
because almost always these statistics lack context. I hear the talking 
heads. I hear folks on talk radio. I have even seen a few people right 
here in this Chamber use these extensively, and very often there is no 
context. Sometimes, for example--if you just look at cloture motions--
you can actually have a filibuster without filing a cloture motion, and 
you can have a cloture motion without there actually being a 
filibuster. So, again, that will skew the numbers.
  The bottom line is, there is plenty of blame to go around--plenty of 
blame. If one person says it is all the other side's fault, they are 
not being truthful. There is plenty of blame to go around. On this both 
parties are at fault. I will give you one example. It was not too long 
ago that I heard people come down here and say the D.C. Circuit's 
workload was such that they needed more judges. Well, guess what. Now I 
have heard those very same people say that the D.C. workload is so 
light they do not need any more judges. The shoe is on the other foot. 
Democrats back in the day said the D.C. Circuit had a light workload 
and did not need any more judges. Now Democrats are saying it does need 
more judges.
  We need to stop the games and get back to work. I think there is one 
way to fix this, and that is by following the Golden Rule. I think if 
we take those words of Jesus literally and apply those to what we do 
here in the Senate--``Do unto others as you would have them do unto 
you''--and really mean that and really apply that--to do unto others as 
you would have them do unto you--I think all these problems would go 
away.
  It is about respecting one another. It is about working with one 
another. It is about respecting elections in other States, and national 
elections. Do unto others as you would have them do unto you and all 
this would go away. Also, a little dose of forgive one another would 
also help.


                             Appropriations

  Madam President, let me also spend a couple minutes here thanking 
Chairwoman Mikulski. She has a tough job as chairwoman of the 
Appropriations Committee, and she is an example of someone who is 
determined to work together to get work done, trying to get the 
appropriations process back on track. No doubt it has been sidetracked 
this year and in recent years. This year we have seen what I would term 
an irresponsible feud, especially down on the House side, blowing up 
the farm bill, pushing for shutting down the government, trying to get 
us in a bad place on the debt ceiling.
  I am not trying to do the blame game, but I know that Chairwoman 
Mikulski is fighting very hard to put an end to that. We need to get 
back to our No. 1 priority. That should be growing our economy and 
creating jobs. There are lots of ways we can do that, but one is 
through the appropriations process, by investing in infrastructure. We 
can make responsible, targeted investments in our future with the right 
kind of spending on infrastructure, whether it is roadways or airports 
or schools or centers for innovation--whatever it happens to be. There 
are lots of smart ways to do that.
  The history of this country shows it is a winning strategy when we 
work together and make the right kind of investments in our future. 
Arkansas is a good example. We have a number of items we could talk 
about today where Federal spending has made a real difference in our 
State. One of those is called the Bayou Meto water project. It started 
back in 1923. It has been the subject of a lot of fights, and I have 
some scars to show that I have been part of some of those fights. But 
they are making great progress there. Not only is it good for thousands 
and thousands of farmers, but it is also great for drinking water and 
for flood control, and there are 55,000 acres of fish and wildlife 
habitat that are being protected through this project. So it is a win-
win for everybody.
  Arkansas airports would be another example. You may not think of 
Arkansas as an aviation State or an aviation powerhouse, but we have 
29,000 jobs that are tied to commercial and general aviation. It is 
$2.5 billion in our economy. Again, that investment in infrastructure 
is what makes that possible.
  We also have the National Center for Toxicological Research down near 
Pine Bluff, AR--cutting-edge research, lots of effort on 
nanotechnology.
  We have a great technology park in Fayetteville. They are trying to 
build one in Little Rock. All of these--and the focus on STEM, et 
cetera--all of these help create jobs and grow our economy.
  Congress needs to focus on that. I am not saying it is going to be 
easy, but we need to work together. We need to pass a budget. We need 
to move our appropriations bills through the process. And we just need 
to, bottom line, get back on track. The way to move our economy forward 
is by really putting the interests of our country first and not these 
partisan and sometimes petty disputes, ideological disputes. We need to 
think about what is best long term for the country. Again, I think the 
appropriations process is the way to do that.

[[Page 17837]]

  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.


                   National Defense Authorization Act

  Mr. INHOFE. Madam President, it is my understanding we may have a 
vote this afternoon. I have often said the most important bill we pass 
every year--and we have passed every year for the last 52 years--is the 
National Defense Authorization Act.
  I would like to say this about the process we have gone through. I do 
not recall ever having worked with a chairman when I have been in the 
minority who has been so easy to work with as Chairman Levin has been 
on this Defense bill. It is one we all understand we have to do. It has 
to be a reality. A lot of what we do around here we can wait a month 
and do it. But on this we cannot, because right now we have men and 
women in the field. We have their paychecks. We have things that have 
to happen to keep this going as it has in the last few years.
  Maintenance and modernization are right now. If we were not able to 
pass this now, our research and development would no longer be able to 
be there in time to take care of the immediate needs we have.
  I am very upset about what has happened to our defense system. Under 
this administration, we have lost $487 billion in Defense--coming out 
of the hide of Defense. In addition, we are now looking at the 
sequester. I will only say this, perhaps for the last time: Why should 
our defense system, which is only accountable for 18 percent of the 
budget, be responsible for 50 percent of the cuts? It is because this 
administration is determined that is what is going to happen to the 
military.
  So now we have people such as General Odierno, Commanding General of 
the U.S. Army, who said:

       . . . lowest readiness levels I have seen within our Army 
     since I have been serving for the last 37 years. Only two 
     brigades are ready for combat.

  Admiral Greenert, the CNO of the Navy:

       . . . because of the fiscal limitations and the situation 
     we are in, we do not have another strike group trained and 
     ready to respond on short notice in case of contingency. We 
     are tapped out.

  Admiral Winnefeld is the No. 2 guy in the military system. He is the 
Vice Chairman of the Joint Chiefs of Staff. He said:

       There could be, for the first time in my career, instances 
     where we may be asked to respond to a crisis and we have to 
     say we cannot.

  I have given a lot of talks on the floor about how serious things are 
right now.
  Put the readiness chart up there.
  I would only comment to this. A lot of people think there is an 
easier answer for this, and that we can, through efficiencies in the 
Pentagon, take care of these problems. A lot of work needs to be done. 
My junior Senator certainly is going to be concentrating on that, on 
the efficiencies. However, if all of the efficiencies were granted, 
that is only the blue line on this chart. This chart talks about 
sequestration, if nothing changes, what is going to happen to our 
military. We have that.
  The next one up there, the next larger, is force structure. We are 
talking about how many brigades, how many boots on the ground, how many 
ships, what it is going to look like.
  The next one up there is modernization. Modernization is a very small 
line. Here is the big one over here. That is our ability to fight a 
war. That is our readiness.
  If you look down here at the bottom at fiscal years 2014 and 2015, 
you can see all of that is going to be gutted in the first 2 years if 
we do not make a change in it. I tried to do that. I have an amendment. 
I still have an amendment that is out there that could correct that 
situation. I think it is important for people to understand that the 
readiness is going to be hurt more. This is after $487 billion has been 
cut from our defense system.
  General Amos, the Commandant of the Marine Corps, who testified under 
oath, said:

       We will have fewer forces arriving, less-trained, arriving 
     late in the fight. This would delay the buildup of combat 
     power, allow the enemy more time to build its defenses, and 
     would likely prolong combat operations. Altogether, this is a 
     formula for American casualties.

  It gets back to that orange line up there. The orange line is when 
you do that, you have to accept a greater risk. That means American 
lives. I have already given that speech.
  Right now we are getting close to the time when we are going to be 
actually casting a vote. I think I have kind of good news. Hopefully it 
is good news. I made a statement yesterday that the problem the 
Republicans have is they have not been able to get amendments in. We 
have gone through this in years past, and always something has broken 
loose where we are able to have amendments. Well, up until yesterday, 
the Republicans had 81 amendments that we wanted to be considered. 
Frankly, that is not all that uncontrollable. That could have been 
done. We could have still gotten through that this week. But as it is 
right now--the good news is, I said yesterday on the floor that I was 
going to come in and try to work all night long, and the staff has done 
this, to come up with 25 amendments and say: If we, the Republicans, 
can have 25 amendments to be considered, they can be voted down, but 
just to be considered on the floor, that we would be receptive to 
having the results.
  Here is the interesting thing about it. We have heard a lot of people 
talking about, well, why is it all of a sudden this has to be done in 5 
days? Yet we have been sitting around here for 3 months when we could 
have been considering it.
  I would like to suggest, if you look at this, this is every year how 
many days it has taken for consideration. It is always more than what 
we have for the rest of this week. I only say that, because in spite of 
that, we still have a way of doing it.
  For those who might think that the recorded votes we are requesting--
it is not going to be that many votes. We are asking for 25 on the 
Republican side. Democrats have 25. That is 50. But if you look at 
years past--for example, last year we had total amendments offered of 
106, but only 34 were voice voted, only 8 required a recorded vote.
  I can go back to all of the rest of the years that are on this chart. 
But the bottom line is this: What I am asking for today is 25 for the 
Republicans, 25 for the Democrats. Of those, not more than 15 to 20 
would require votes. We could do that in 1 day. So it can be done. We 
could finish this and still give Republicans the opportunity to have 
their votes.
  What I have here is a list of the 25 amendments we are asking for. 
Again, I am not even for all 25 of them, but they should all be 
considered one way or another. This probably would end up requiring 
maybe at the most 10 votes. So I am offering these amendments and 
telling the majority--by the way, I have already talked about what a 
great relationship I have had during this consideration as the ranking 
member of Armed Services with the chairman Carl Levin. So I am offering 
to Carl Levin and to the Democrats, the majority in the Senate and the 
majority on the committee, these 25 amendments. All we are asking for 
is for those 25 to be considered. We can do this bill right, the way we 
have done it for 52 years. We can have a bill. We can have it by the 
end of this week. So I am offering that.
  I also announced yesterday that in the event I can come up with a 
total number of 25 that our caucus would agree with, that if we could 
do that and we were refused, when the time comes I will vote against 
going to the bill. Now I think that very likely could happen this 
afternoon. However, if they accept them, I am committing right here on 
the floor that I will be in full support and I will vote for it. I want 
people to understand, in the unlikely event that the majority does not 
accept these--the consideration of these 25 votes, I will be voting 
against cloture on the bill when that vote comes up.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Warren). The Senator from Vermont.
  Mr. LEAHY. Madam President, I am not on the Armed Services Committee,

[[Page 17838]]

although I was 38 years ago. But I would think that if there are any 
two people in this body who could work out a program to get the votes 
set up and voted on it is the distinguished senior Senator from 
Michigan and the distinguished senior Senator from Oklahoma. I would 
hope and encourage my colleagues on both sides of the aisle to listen 
to the Democratic and Republican leaders of this Committee, because I 
think they can probably work it out.
  There has been a lot of discussion about the major rules change that 
occurred here today. In my capacity as President pro tempore, I was 
presiding during that time and did not get a chance to speak. I want to 
say a few things.
  In the four decades I have served here, I have been here with both 
Democratic majorities and Republican majorities, through both 
Republican and Democratic administrations. We have had moments of 
crisis when I worried that our political differences outweighed the 
Senate's common responsibility. Yet we were always able to steer our 
way out of trouble. Majorities of both parties have come and gone, but 
I have never lost faith in our ability to see ourselves through the 
divisions and come together to do what is best for the Nation.
  I have always believed in the Senate's unique protection of the 
minority party, even when Democrats held a majority in the Senate. When 
the minority has stood in the way of progress, I have defended their 
rights and held to my belief that the best traditions of the Senate 
would win out, that the 100 of us who stand in the shoes of over 310 
million Americans would do the right thing. That is why I have always 
looked skeptically at efforts to change the Senate rules.
  But in the past 5 years it has been discouraging. Ever since 
President Obama was elected, Senate Republicans have changed the 
tradition of the Senate, with escalating obstruction of nominations. 
They crossed the line from the use of the Senate rules to abuse of the 
Senate rules. In fact, the same abuse recently, and needlessly, shut 
down our government at a cost of billions of dollars to the taxpayers 
and billions of dollars to the private sector. I think it is a real 
threat to the independent, judicial branch of government.
  As chairman of the Judiciary Committee, I am worried that the 
Republican obstruction is damaging our ability to fulfill the Senate's 
unique constitutional responsibility of advice and consent to ensure 
that the judicial branch has the judges it needs to do its job.
  Republicans have used these unprecedented filibusters--and they are 
unprecedented--more than at any time that I have served here. They have 
obstructed President Obama from appointing to the Federal bench even 
nominations that were supported by Republican Senators from the State 
from where the nominee came. They have forced cloture to end 
filibusters on 34 nominees, far more than we ever saw during President 
Bush's 8 years in office. Almost all of these nominees were, by any 
standard, noncontroversial and ultimately were confirmed 
overwhelmingly. In fact, Republican obstruction has left the Federal 
judiciary with 90 or more vacancies during the past 5 years.
  Take for example the Republican filibuster of a judicial nominee to 
the Tenth Circuit, Robert Bacharach last year, despite the support of 
the Republican Senators from Oklahoma. This marked a new and damaging 
milestone. Never before had the Senate filibustered and refused to vote 
on a judicial nominee with such strong bipartisan support, and who was 
voted out of the Judiciary Committee with virtually unanimous support. 
Republicans continued to block Senate action on the Bacharach 
nomination through the end of last Congress and forced his nomination 
to be returned without action to the President. There is no good 
reason--none--why Robert Bacharach was not confirmed to serve the 
people of Oklahoma and the Tenth Circuit as a Federal judge last year. 
He was finally confirmed this year unanimously.
  Republicans last year also filibustered William Kayatta, another 
consensus circuit nominee who had the support of both Republican home 
State Senators. Like Judge Bacharach, Mr. Kayatta received the ABA 
Standing Committee on the Federal judiciary's highest possible rating 
and had strong bipartisan support and unimpeachable credentials. The 
same also applies to Richard Taranto, whose nomination was returned to 
the President at the end of last year after Republicans blocked action 
on his nomination to a vacancy on the Federal Circuit for more than 
eight months, despite no opposition in the Senate and despite the 
support of both Paul Clement and the late Robert Bork. Neither of these 
nominees faced any real opposition. Yet Republicans stalled both of 
them through the end of last Congress and forced their nomination to be 
returned without action to the President. They were both confirmed this 
year with overwhelming bipartisan support.
  Senate Republicans used to insist that the filibustering of judicial 
nominations was unconstitutional. The Constitution has not changed, but 
as soon as President Obama took office Republicans reversed course. It 
struck me, because the very first--the very first--nominee to the 
Federal bench that President Obama sent here was filibustered. Judge 
Hamilton of Indiana was a widely-respected 15-year veteran of the 
Federal bench nominated to the Seventh Circuit. President Obama reached 
out to the longest-serving Republican in the Senate, Senator Dick 
Lugar, to select a nominee he supported. Yet, Senate Republicans 
filibustered his nomination, requiring a cloture vote before his 
nomination could be confirmed after a delay of seven months.
  It is almost a case of saying: Okay, Mr. President, you think you got 
elected? We are going to show you who is boss. We are going to treat 
you differently than all of the Presidents before you.
  This has never been done before, to filibuster the President's very 
first nominee. Somehow this President is going to be told he is 
different than other Presidents.
  Senate Republicans have obstructed and delayed nearly every circuit 
court nominee of this President, filibustering 14 of them. They abused 
the Senate's practices and procedures to delay confirmation of Judge 
Albert Diaz of North Carolina to the Fourth Circuit for 11 months, 
before he was confirmed by voice vote. They delayed confirmation of 
Judge Jane Stranch of Tennessee to the Sixth Circuit for 10 months 
before she was confirmed 71 to 21. Senate Republicans used procedural 
tactics to delay for months the Senate confirmation of nominations with 
the strong support of Republican home State Senators--including Judge 
Scott Matheson of Utah to the Tenth Circuit; Judge James Wynn, Jr. of 
North Carolina to the Fourth Circuit; Judge Henry Floyd of South 
Carolina to the Fourth Circuit; Judge Adalberto Jordan of Florida to 
the Eleventh Circuit; Judge Beverly Martin of Georgia to the Eleventh 
Circuit; Judge Mary Murguia of Arizona to the Ninth Circuit; Judge 
Bernice Donald of Tennessee to the Sixth Circuit; Judge Thomas Vanaskie 
of Pennsylvania to the Third Circuit; Judge Andrew Hurwitz of Arizona 
to the Ninth Circuit; Judge Morgan Christen of Alaska to the Ninth 
Circuit; and Judge Stephen Higginson of Louisiana to the Fifth Circuit.
  The results are clear and devastating. The nonpartisan Congressional 
Research Service has reported that the median time circuit nominees had 
to wait before a Senate vote has skyrocketed from 18 days for President 
Bush's nominees during his first term in office to 132 days for 
President Obama's nominees during his first term in office. This is the 
result of Republican obstruction and abuse of Senate rules. In most 
cases, Senate Republicans have delayed and stalled without explanation. 
How do you explain the filibuster of the nomination of Judge Barbara 
Keenan of Virginia to the Fourth Circuit who was ultimately confirmed 
99 to 0? And how else do you explain the needless obstruction of Judge 
Denny Chin of New York to the Second Circuit, who was filibustered for 
four months before he was confirmed 98 to 0?

[[Page 17839]]

  In 2012, Senate Republicans refused to consent to a vote on a single 
circuit court nominee until the majority leader filed cloture, even for 
nominees with home State Republican support like Adalberto Jordan of 
Florida--strongly supported by Senator Rubio--and Andrew Hurwitz of 
Arizona, strongly supported by Senator Kyl. They blocked the Senate 
from voting on a single circuit court nominee nominated by President 
Obama last year. Since 1980, the only other Presidential election year 
in which there were no circuit nominees confirmed who was nominated 
that same year was in 1996, when Senate Republicans shut down the 
process against President Clinton's circuit nominees.
  In the 8 years George W. Bush served as President, only five of his 
district court nominees received any opposition on the floor. That was 
over 8 years. In just 5 years, 42 of President Obama's district court 
nominees have faced opposition. The majority leader had to file cloture 
on 20 of them. Federal district court judges are the trial court judges 
who hear cases from litigants across the country and preside over 
Federal criminal trials, applying the law to facts and helping settle 
legal disputes. They handle the vast majority of the caseload of the 
Federal courts and are critical to making sure our courts remain 
available to provide a fair hearing for all Americans. Nominations to 
fill these critical positions, whether made by a Democratic or 
Republican President, have always been considered with deference to the 
home State Senators who know the nominees and their States best, and 
have been confirmed quickly with that support. Never before in the 
Senate's history have we seen district court nominees blocked for 
months and opposed for no good reason. Many are needlessly stalled and 
then confirmed virtually unanimously with no explanation for the 
obstruction. Senate Republicans have politicized even these 
traditionally non-partisan positions.
  As chairman of the Judiciary Committee I have always acted fairly and 
consistently whether the President has been a Democrat or a Republican. 
I have not filibustered nominees with bipartisan support. I have 
steadfastly protected the rights of the minority and I have done so 
despite criticism from Democrats. I have only proceeded with judicial 
nominations supported by both home State Senators. I will put my record 
of consistent fairness up against that of any chairman and never acted 
as some Republican chairmen have acted in blatantly disregarding 
evenhanded practices to ram through the ideological nominations of 
President George W. Bush.
  Regrettably, the answer to my fairness and to my commitment to 
protecting the rights of the minority has been unprecedented and 
meritless obstruction. Even though President Obama has nominated 
qualified, mainstream lawyers, Republicans in the Senate have done away 
with regular order, imposing unnecessary and damaging delays. Until 
2009, judicial nominees reported by the Judiciary Committee with 
bipartisan support were generally confirmed quickly. That has changed, 
with district nominations taking over four times longer and circuit 
court nominees over seven times longer than it took to confirm them 
during the Bush administration. Until 2009, we observed regular order 
and usually confirmed four to six nominees per week, and we cleared the 
Senate Executive Calendar before long recesses. Since then, Senate 
Republicans have refused to clear the calendar and slowed us down to a 
snail's pace. Until 2009, if a nominee was filibustered, it was almost 
always because of a substantive issue with the nominee's record. We 
know what has happened since 2009--Republicans have required cloture to 
consider even those nominees later confirmed unanimously.
  This obstruction was not merely a product of extreme partisanship in 
a Presidential election year--it has been a constant and across the 
board practice since President Obama took office. At the end of each 
calendar year, Senate Republicans have deliberately refused to vote on 
several judicial nominees just to take up more time the following year. 
At the end of 2009 Republicans denied 10 nominations pending on the 
Executive Calendar a vote. The following year, it took 9 months for the 
Senate to take action on 8 of them. At the end of 2010 and 2011, Senate 
Republicans left 19 nominations on the Senate Executive Calendar, 
taking up nearly half the following year for the Senate to confirm 
them. Last year they blocked 11 judicial nominees from votes, and 
refused to expedite consideration of others who already had hearings.
  The effects of this obstruction have been clear. When the Senate 
adjourned last year, Senate Republicans had blocked more than 40 of 
President Obama's circuit and district nominees from being confirmed in 
his first term. That obstruction has led to a damagingly high level of 
judicial vacancies persisting for over four years.
  This year, Senate Republicans reached a new depth of pure 
partisanship. They have decided to shut down the confirmation process 
altogether for an entire court--the U.S. Court of Appeals for the D.C. 
Circuit, even though there are three vacancies on that court. Senate 
Republicans attempt to justify their opposition to filling any of the 
three vacancies on the D.C. Circuit with an argument that the court's 
caseload does not warrant the appointments.
  We all know that this ploy is a transparent attempt to prevent a 
Democratic President from appointing judges to this important court. We 
all know what has happened here in the D.C. Circuit. In 2003, the 
Senate unanimously confirmed John Roberts by voice vote as the 9th 
judge on the D.C. Circuit at a time when the caseload was lower than it 
is today. He was confirmed unanimously. No Democrat, no Republican 
opposed him. Not a single Senate Republican raised any concerns about 
whether the caseload warranted his confirmation and during the Bush 
administration they voted to confirm four judges to the D.C. Circuit--
giving the court a total of 11 judges in active service.
  Today there are only eight judges on the court; yet, when Patricia 
Millett was nominated to that exact same seat by President Obama, a 
woman with just as strong qualifications as John Roberts--they both had 
great qualifications--she was filibustered. Some say we should not call 
that a double standard. Well, I am not sure what else one might call 
it. We also should not be comparing the D.C. Circuit's caseload with 
that of other circuits, as Republicans have recently done. The D.C. 
Circuit is often understood to be the second most important court in 
the land because of the complex administrative law cases that it 
handles. The court reviews complicated decisions and rulemakings of 
many Federal agencies, and in recent years has handled some of the most 
important terrorism and enemy combatant and detention cases since the 
attacks of September 11, 2001. Comparing the D.C. Circuit's caseload to 
other circuits is a false comparison, and those who are attempting to 
make this comparison are not being fully forthcoming with the American 
public. Years ago, one of the senior most Republican Senators on the 
Judiciary Committee said this:

       [C]omparing workloads in the D.C. Circuit to that of other 
     circuits is, to a large extent, a pointless exercise. There 
     is little dispute that the D.C. Circuit's docket is, by far, 
     the most complex and time consuming in the Nation.

  Now, however, that same Senator has engaged in the precise pointless 
exercise he once railed against.
  This is an unprecedented level of obstruction. I have seen 
substantive arguments mounted against judicial nominees, but I have 
never seen a full blockade against every single nominee to a particular 
court, regardless of the individual's qualifications. Republicans 
attempted to take this type of hardline stance with certain executive 
positions last year and earlier this year, when they refused to allow a 
vote for any nominee to the Consumer Financial Protection Bureau and 
the National Labor Relations Board. Rather than representing 
substantive opposition to these individual nominees, this obstruction 
was a partisan attempt to sabotage and eviscerate these agencies

[[Page 17840]]

which protect consumers and American workers. I have heard some call 
this tactic ``nullification.'' It is as if the Republicans have decided 
that the President did not actually win the election in 2008, and was 
not re-elected in 2012.
  Senate Republicans backed off this radical and unprecedented hardline 
stance on executive nominees earlier this year, but they have shown no 
signs of doing the same with the D.C. Circuit. And it is not for lack 
of qualified nominees. This year, Senate Republicans filibustered the 
nominations of three exceptionally qualified women: Caitlin Halligan, 
Patricia Millett and Nina Pillard. Earlier this week Republicans 
filibustered another stellar nominee to this court, Judge Robert 
Wilkins.
  I am a lawyer. I have tried cases in Federal courts. I have argued 
cases in Federal courts of appeal. I always went into those courts 
knowing I could look at that Federal judge and say: It doesn't make any 
difference whether I am a Democrat or a Republican, whether I represent 
the plaintiff or the defendant; this is an impartial court.
  If we play political games with our Federal judiciary, how long are 
the American people going to trust the impartiality of our Federal 
courts? At what point do these games start making people think maybe 
this is not an independent judiciary? If that day comes, the United 
States will have given up one of its greatest strengths.
  Let's go back to voting on judges based on their merit--and not on 
whether they were nominated by a Democratic President or a Republican 
President. Let's stop holding President Obama to a different standard 
than any President before him--certainly no President since I have been 
in the Senate, and I began with President Gerald Ford.
  This obstruction is not just bad for the Senate, it is also a 
disaster for our Nation's overburdened courts. Persistent vacancies 
force fewer judges to take on growing caseloads, and make it harder for 
Americans to have access to justice. While they have delayed and 
obstructed, the number of judicial vacancies has remained historically 
high and it has become more difficult for our courts to provide speedy, 
quality justice for the American people. In short, as a result of 
Republican obstruction of nominees, the Senate has failed to do its job 
for the courts and for the American people, and failed to live up to 
its constitutional responsibilities. That is why the Senate today was 
faced with what to do to overcome this abuse and what action to take to 
restore this body's ability to fulfill its constitutional duties and do 
its work for the American people.


                   Honoring President John F. Kennedy

  Seeing the distinguished Presiding Officer who is not only a New 
Englander, but in this case from Massachusetts, let me just speak 
personally for a moment on a very, very sad day.
  Tomorrow will be November 22. And ever since I was a law student, 
November 22 has always brought a feeling of dread to me. Tomorrow will 
be 50 years since President Kennedy was murdered.
  My wife Marcelle and I were living in Washington at that time. She 
was a young nurse, a registered nurse, working at the VA hospital on 
Wisconsin Avenue, a site that is now occupied by the Russian Embassy. 
She was helping to put this equally impoverished law student through 
Georgetown Law School. We had been there in this basement apartment, 
first during the Cuban missile crisis. And like everybody, we held our 
breath in this city, wondering if this new, young President, John F. 
Kennedy, could get us through this crisis without plunging the world 
into nuclear war. I was excited--we both were--to be in the same city.
  My family has always been Democratic. Back in Vermont, the joke was: 
``That's the street where the Democrats live.'' There were so few of 
them in Vermont. But with an Irish-Catholic father and an Italian-
Catholic mother, we had seen John Kennedy win--and in my State, amid 
something that doesn't exist anymore--an anti-Catholic attitude.
  President Kennedy stood up to those people, some in the Joint Chiefs, 
who said they had so much more experience and we ought to go ahead and 
we had nuclear superiority over the then-Soviet Union; let's attack 
them, let's have a preemptive strike. And, Madam President, anybody who 
studies history knows what would have happened: Half the world would 
have been destroyed. Through patience and diplomacy, we got out of the 
situation.
  And so we watched a young President go step by step, not always 
accomplishing everything he wanted, but always inspiring young people. 
I remember standing on Pennsylvania Avenue and seeing an open car go by 
with him. He had greeted an emperor, and their procession drove down 
Pennsylvania Avenue with people cheering. This was only months before 
he died. I was closer to him than I am to the distinguished Presiding 
Officer.
  I remember, as an honor student, our class was invited to the White 
House with other students. Standing there with other students, I 
remember being struck by how red his hair was and how young he was. He 
talked with all of us.
  Then I remember--as though it were yesterday, 50 years ago tomorrow--
I was standing in the library of Georgetown University Law School. One 
of my classmates, who was not a fan of President Kennedy, came in and 
said: The President has been shot. I told him there was nothing funny 
about saying something like that. Then I saw the shocked look on his 
face and realized he was telling the truth.
  We didn't have a car and we used to take buses to school from where 
we lived in the Glover Park area. I knew that Marcelle had been working 
all night and was probably home after getting off of her shift in the 
wee hours of the morning, and was home sleeping. I went running out, 
grabbed a cab to go home to tell her what happened.
  I think I got the only cab in Washington, DC, that did not have a 
radio. The cab driver didn't know what was going on. I just said: Let's 
go. We drove on K Street. A number of the stockbrokers were there. I 
remembered past times when I went by that exact spot and saw ticker 
tapes projected on the wall with the numbers going by, with the stock 
market's activities. They were blank, even though the stock market 
should have been open at that time. It was stopped.
  I saw a relative of Mrs. Kennedy's going to work--being chauffeured 
in a Rolls-Royce. As one can imagine, as a young law student on an un-
air-conditioned bus, I looked at him with envy. I saw him running out 
frantically trying to grab a cab. It was very obvious something was 
wrong.
  I got home, banged on the door and woke up Marcelle. I turned on the 
TV set and told her he had been shot.
  She said: Who?
  I said: The President.
  We saw Walter Cronkite--which is something we keep seeing over and 
over, and have for 50 years--announcing the President was shot, and was 
dead.
  We prayed for him, his family, for our Nation. Phones were just 
seizing up in Washington, but we talked with our family back in 
Vermont.
  We knew they were going to leave the White House to bring the 
President's body, so we decided to go watch the funeral procession. We 
waited on the curb a few yards from the route on Pennsylvania Avenue. 
We were expecting our first child--he was born in January following 
this--but we thought, even so, we should go down, and we took the bus 
down and we stood across from the National Gallery of Art, what's now 
the west wing of the National Gallery of Art. There were several lanes 
of rows of people along the street--and it was so quiet, Madam 
President--so quiet--that even though the roads were blocked, the 
street lights were going, as they changed from red to green to yellow--
we could hear the ``click'' five lanes from the road. We could hear the 
click of the street lights changing; it was that quiet.
  Then we heard the drums. We heard the cortege leaving the White 
House. This was back before we had cell phones and everything else you 
could follow. Everybody on the street turned

[[Page 17841]]

toward the other end of Pennsylvania Avenue, even though we could not 
yet see them. But we could hear them, it was that quiet.
  And then cars came by the cortege: A riderless horse, a very skittish 
horse. You could hear its horseshoes clicking back and forth, as it 
would pull back and forth against the reigns, held by the man leading 
it, the boots turned backwards in the empty stirrups.
  I saw Robert Kennedy go by in a car. In fact I took a photograph of 
him--with his head bowed, his chin on his hand.
  It was so sad. It all went by. As the casket passed by, people 
saluted, held their hands over their hearts, and cried. Again, Madam 
President, it's like it was yesterday.
  We watched the funeral from home. Mrs. Kennedy had decided that all 
of the world leaders who had come would march together from the White 
House to St. Matthew's where the President's funeral would be held.
  I remember there had been a discussion of the protocol for having 
Presidents, Prime Ministers, and Emperors present. Mrs. Kennedy made 
the brilliant decision to assign the countries alphabetically in 
English. Haile Selassie, of Ethiopia, resplendent in his uniform, with 
braids and everything else, walked next to Charles de Gaulle, who, like 
myself, is well over six-feet tall, with a very plain uniform without 
decorations. Nobody thought anything unusual about it. It was all so 
respectful. Because there were so many heads of state, virtually every 
police officer in the city was downtown in that area. Yet, there wasn't 
a crime reported in DC at that time. Everybody was glued to their TV 
set.
  The funeral scenes included young John Kennedy Jr., saluting his 
father's coffin as it went by. We watched the burial at Arlington 
Cemetery--we lived only a couple miles from there--and we saw the first 
jets--the fighter jets--flying over. We rushed outside just in time to 
see what we all know as ``missing man formation,'' when the jets are in 
formation, and one peels off. We saw that, and then we saw Air Force 
One fly over, just having dipped its wing in tribute. It was a very 
large plane at that time--blue, white, and silver--the same plane that 
brought the President's body back a few days before, from Dallas. It 
was coming out of its salute.
  Throughout that time, everywhere we went we saw a silent and stunned 
city--both those who supported President Kennedy and those who had not. 
Everybody knew what a blow this was to our country. In fact, I did not 
again see that kind of shock and silence in Washington, DC until I 
walked from my office on 9/11, here on Capitol Hill, and saw the same 
thing after that attack on us.
  For something like this, most people set aside their political 
backgrounds.
  I remember so many of us stood here on that March day when President 
Reagan was shot. We all joined hands, Democrats and Republicans, and 
prayed for his safety and for the country. It is awful to have to have 
a situation like that, a situation such as that, to bring people 
together, but we should think about the country first and foremost in 
these things.
  We look at those in succession to the Presidency; we worry about what 
might happen to the President. No one ever wants anything to happen to 
any President, Republican or Democrat. We don't want these things to 
happen to our country.
  I was one of those young people inspired by John Kennedy and by 
Robert Kennedy--who invited me to join the Department of Justice as a 
young law student, though I was homesick and wanted to go back to 
Vermont, and I am glad I did.
  These were people who inspired young people. They inspired us because 
we saw political life and elective office not as something for cynical 
gain or something to promote yourself or something where you could do 
bumper-sticker sloganeering. I don't care whether you were on the left 
or the right. They inspired others to make life better for everybody 
else, to make the country better and stronger, and to leave a better 
country for the next generation.
  I think that was the promise of John Kennedy. I am glad that many in 
both parties decided to follow that same promise. I just wish more 
would.
  Madam President, I thank my colleagues for letting me have all this 
time, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. ROBERTS. Madam President, I thank the distinguished Senator from 
Vermont for his remembrance of those days that were so special to him 
and also for really commemorating them so they will be special to all 
of us. I thank him for his comments.


                              Rules Change

  Madam President, I am going to speak as the ranking member of the 
Senate rules committee, and I am going to speak in regard to the rules 
changes that have occurred today.
  Under the rules of this body, it takes 67 votes to end debate on a 
rules change. As a continuing body, our rules carry on from one 
Congress to the next--or at least they used to--and can only be changed 
pursuant to these rules. Our rules have always ensured a voice for the 
minority in this body. Unlike the House, where I served, where a simple 
majority has the power to impose a rule change at any time, in the 
Senate the minority has always been protected. Here, the rules protect 
the minority and cannot be changed without their consent--unless, of 
course, the majority decides it wants to break the rules to change the 
rules. I am saddened that is what happened today.
  The Washington Post reported the other day that President Obama's 
approval rating has hit a record low; his disapproval rating has hit a 
record high--the worst of his Presidency. This is obviously the result 
of the disastrous rollout of ObamaCare which has caused Americans to 
question both the President's trustworthiness and his basic competence.
  In light of these developments, one would think my colleagues on the 
other side of the aisle might be reconsidering the wisdom of some of 
their past decisions. One would hope it would occur to them that maybe 
it was a mistake to pass the health care reform bill on a straight 
party-line vote. I am one of the few who voted no in the HELP 
Committee, no in the Finance Committee, and no on the Senate floor on 
that Christmas Eve night.
  One might expect them to have some doubts about the competence of 
this administration, as most Americans clearly do on this particular 
issue especially and on a lot of other regulations; that it would dawn 
on them that maybe now might be the right time to reassert 
congressional authority to rein in and redirect the administration--the 
executive, if you will--and use the power of the Senate to move the 
administration in a different direction. I am sorry that has not 
happened. Instead, in the face of the obvious failures of this 
President and his plummeting approval ratings, the majority has decided 
it would be a really good idea to give him more power. That is right, 
the majority thinks our biggest problem is that the President can't do 
whatever he wants to do and we should change our rules to allow him to 
do that. That is incredible.
  The majority has permanently undermined this body, robbed it of a 
vital tool to check the untrammeled authority of this or any other 
President, so this sinking ship of an administration can make whatever 
appointments it wants. What a tragedy.
  In Kansas, when you walk old ghost towns you will see buildings where 
nothing remains but the facade. Literally the entire building is gone 
and all that is left is the facade. To prevent that facade from 
collapsing, you may see beams propping it up.
  In recent weeks this administration has been exposed as a facade. It 
still looks nice at first glance--the slick campaign-style appearances 
go on as usual--but when you look behind it, you see there is nothing 
there. It cannot perform the most basic tasks. It cannot even fulfill 
the responsibilities it has assigned to itself. It is collapsing. So 
now we, the Senate, are going to prop it up. The U.S. Senate, the 
world's greatest deliberative body, has been reduced to being a prop. 
We have reduced ourselves to

[[Page 17842]]

rubberstamps, forfeiting our historical and constitutional authority to 
subject Presidential appointments to advice and consent so this 
administration can do whatever it wants. Again, what a tragedy. Never 
has so much been given for so little.
  We have permanently undermined this body--for what? So this President 
can appoint a few more judges and stack the D.C. Circuit Court that 
oversees the constitutionality of Federal regulations? Yes, ObamaCare 
regulations, IRS regulations, EPA regulations--all of the regulations 
that come like a waterfall over basically every economic sector we 
have. This is unbelievable. What happened today will surely lead to 
complete control of this institution by the majority. I hope not, but 
that is what has happened in the past, more especially in the House.
  Do not listen to those who would seek to minimize the importance of 
what has been done. The claim that what they have done is limited--
applying only to executive nominations--misses the point. The change 
itself is less important than the manner in which it was imposed. Once 
you assume the power to write new rules with a simple majority vote, to 
ignore the existing rules that require a supermajority to achieve such 
a change, you have put us on a path that will surely lead to total 
control of this body by the majority.
  Before today, there was only one House of Congress where the majority 
has total control. Now there are two. We have become the House. By its 
action today, the majority has ensured that for many years to come, 
Members will not have any rights beyond those which the majority is 
willing to grant.
  When he was in the minority, our current majority leader recognized 
this. In his book ``The Good Fight,'' Senator Reid wrote about the 
battle over the nuclear option back in 2005. This is what he wrote:

       Once you opened that Pandora's box, it was just a matter of 
     time before a Senate leader who couldn't get his way on 
     something moved to eliminate the filibuster for regular 
     business as well. And that, simply put, would be the end of 
     the United States Senate.

  I repeat, ``the end of the United States Senate.''
  Senator Reid further wrote:

       . . . there will come a time when we will all be gone, and 
     the institutions that we now serve will be run by men and 
     women not yet living, and those institutions will either 
     function well because we've taken care of them, or they will 
     be in disarray and someone else's problem to solve.

  He described the nuclear option this way then:

       In a fit of partisan furry, they were trying to blow up the 
     Senate. Senate rules can only be changed by a two-thirds vote 
     of the Senate, or 67 Senators. The Republicans were going to 
     do it illegally with a simple majority, or 51 . . . future 
     generations be damned.

  If only today the majority leader had recalled his own words. 
Instead, by his own hand, he has brought on the end of the Senate as we 
know it. Instead of taking care of this institution, he will leave it 
in disarray--future generations be damned.
  Our former Parliamentarian Bob Dove and Richard Arenberg, a professor 
and onetime aide to former majority leader George Mitchell, wrote a 
book on this subject called ``Defending the Filibuster,'' and this is 
what they said:

       If a 51-vote majority is empowered to rewrite the Senate's 
     rules, the day will come, as it did in the House of 
     Representatives, when a majority will construct rules that 
     give it near absolute control over amendments and debate. And 
     there is no going back from that. No majority in the House of 
     Representatives has or ever will voluntarily relinquish that 
     power in order to give the minority a greater voice in 
     crafting legislation.

  Do not be fooled by those who would try to minimize the impact of 
what happened today. Again, the rule change itself is less important 
than the manner in which it was imposed. Now that the majority has 
decided it can set the rules, there is no limit to what it or any 
future majority might do in the future. There are no constraints. The 
majority claims these changes are necessary to make the Senate 
function. If it decides further changes are needed, it will make them. 
The minority will have no voice, no say, no power. That has never been 
the case in the Senate--never. Until now.
  It saddens me that we have come to this point. It saddens me that the 
Members on the other side of the aisle who should know better have 
taken this course. We have done permanent damage to this institution 
and set a precedent that will surely allow future majorities to further 
restrict the rights of the minority. That is not a threat; it is just a 
fact. We have weakened this body permanently, undermined it, for the 
sake of an incompetent administration. What a tragedy.
  This is a sad, sad day. When the future generations we have damned by 
today's actions look back and wonder ``Why are things in such disarray? 
When did it go wrong? When did the demise of the Senate begin?'' the 
answer will be today, November 21, 2013.
  Mr. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COCHRAN. Madam President, as the majority contemplate changing 
the rules of the Senate to expedite the confirmation of several 
executive branch nominees, I hope that serious consideration was given 
to the adverse effects this change could have.
  We should resist embarking on a path that would circumvent the rights 
of the minority to exercise its advice and consent responsibilities 
provided in the Constitution.
  The consequences of the action by the majority should not be 
minimized. Former Senator Ted Kennedy, in 2003, testified before the 
Rules Committee that by allowing a simple majority to end debate on 
nominees, ``the Senate would put itself on a course to destroy the very 
essence of our constitutional role.''
  Such a departure from precedent would dilute the minority rights that 
differentiate the Senate from the other body. It also opens the door to 
applying this same rule to debate on judicial nominations, as well as 
the legislative process.
  Mr. McCAIN. Madam President, I wish to echo what my colleague from 
Michigan Senator Levin said on the floor earlier today. He quoted the 
late Senator Arthur Vandenburg of Michigan who said, in 1949, that if 
the majority can change the rules at will ``then there are no rules 
except the transient unregulated wishes of a majority of whatever 
quorum is temporarily in control of the Senate.''
  Senator Vandenburg's words from 1949 have proven to be prophetic.
  Additionally, when he was a Member of the Senate in 2005, President 
Obama said ``What [the American people] don't expect is for one party--
be it Republican or Democrat--to change the rules in the middle of the 
game.'' That is exactly what his party did today--and they did so with 
the President's full support.
  The American people will not be deceived--the Majority Leader's 
exercise of the ``nuclear option'' today is merely an attempt to divert 
their attention from Obamacare's failure to launch and the President's 
failure to keep his word to the American people on whether they can 
keep health care plans they already have. Republicans will, however, 
come together to maintain the American people's focus on these issues 
and on solving problems they are confronted with everyday--on health 
care reform, economic growth, runaway deficit-spending, and an 
unsustainable national debt that threatens future generations. 
Unfortunately, in his desperation to divert everyone's attention from 
Obamacare, the majority leader abused his position to decimate the 
integrity of the institution he is supposed to serve and continues to 
plunge this institution into a hopeless abyss of distrust and 
partisanship. These are circumstances that can be remedied by nothing 
less than a change in the majority in the Senate and its leadership. I 
remain dedicated towards achieving that outcome.
  It is unfortunate we are in this position today. Numerous times over 
the years, the Senate has come to a standstill over nominees--whether 
they were judicial or executive branch. That gridlock inevitably leads 
to threats from the majority to use the ``nuclear option''--to change 
the rules of the Senate to strip the minority party of their right to 
filibuster certain nominees. I

[[Page 17843]]

opposed using the nuclear option back when my party had the majority, 
and I oppose it today.
  I think the Majority Leader made a huge mistake today.
  Senator Vandenberg:

       . . . I continue to believe that the rules of the Senate 
     are as important to equity and order in the Senate as is the 
     Constitution to the life of the Republic, and that those 
     rules should never be changed except by the Senate itself, in 
     the direct fashion prescribed by the rules themselves.

  Senator Vandenberg continued:

       I have heard it erroneously argued in the cloakrooms that 
     since the Senate rules themselves authorize a change in the 
     rules through due legislative process by a majority vote, it 
     is within the spirit of the rules when we reach the same net 
     result by a majority vote of the Senate upholding a 
     parliamentary ruling of the Vice President which, in effect, 
     changes the rules. This would appear to be some sort of 
     doctrine of amendment by proxy. It is argued that the Senate 
     itself makes the change in both instances by majority vote; 
     and it is asked, what is the difference? Of course, this is 
     really an argument that the end justifies the means.

  Senator Vandenberg continued:

       We fit the rules to the occasion, instead of fitting the 
     occasion to the rules. Therefore, in the final analysis, 
     under such circumstances, there are no rules except the 
     transient, unregulated wishes of a majority of whatever 
     quorum is temporarily in control of the Senate. That, Mr. 
     President, is not my idea of the greatest deliberative body 
     in the world. . . . No matter how important [the pending 
     issue's] immediate incidence may seem to many today, the 
     integrity of the Senate's rules is our paramount concern, 
     today, tomorrow, and so long as this great institution lives.

  He concluded, with that ``one consideration'':

       What do the present Senate rules mean; and for the sake of 
     law and order, shall they be protected in that meaning until 
     changed by the Senate itself in the fashion required by the 
     rules?
       . . . [T]he rules of the Senate as they exist at any given 
     time and as they are clinched by precedents should not be 
     changed substantively by the interpretive action of the 
     Senate's Presiding Officer, even with the transient sanction 
     of an equally transient Senate majority. The rules can be 
     safely changed only by the direct and conscious action of the 
     Senate itself, acting in the fashion prescribed by the rules. 
     Otherwise, no rule in the Senate is worth the paper it is 
     written on, and this so-called ``greatest deliberative body 
     in the world'' is at the mercy of every change in 
     parliamentary authority.

  According to CRS, proposals to limit Senate debate are as old as the 
Senate itself. Over the 224-year history of the body, numerous 
procedures have been proposed to allow the Senate to end discussion and 
act. The most important debate-limiting procedure enacted was the 
adoption in 1917 of the ``cloture rule,'' codified in paragraph 2 of 
Senate Rule XXII. Under the current version of this rule, a process for 
ending debate on a pending measure or matter may be set in motion by a 
supermajority vote of the Senate.

       At times, Senators of both political parties have debated 
     the merits of the Senate's tradition of free and unlimited 
     debate. These debates have occurred at different times and 
     under different sets of circumstances as Senators attempted, 
     for example, to prevent filibusters of civil rights measures, 
     pass consumer protection legislation, or secure the 
     confirmation of judicial or executive branch nominations.
       Although many attempts have been made to amend paragraph 2 
     of Rule XXII, only six amendments have been adopted since the 
     cloture rule was enacted in 1917: those undertaken in 1949, 
     1959, 1975, 1976, 1979, and 1986. Each of these changes was 
     made within the framework of the existing or ``entrenched'' 
     rules of the Senate, including Rule XXII.
       In 1949, the cloture rule was amended to apply to all 
     ``matters,'' as well as measures, a change that expanded its 
     reach to nominations, most motions to proceed to consider 
     measures, and other motions. A decade later, in 1959, its 
     reach was further expanded to include debate on motions to 
     proceed to consider changes in the Senate rules themselves. 
     The threshold for invoking cloture was lowered in 1975 from 
     two-thirds present and voting to three-fifths of the full 
     Senate except on proposals to amend Senate rules. In a change 
     made in 1976, amendments filed by Senators after cloture was 
     invoked were no longer required to be read aloud in the 
     chamber if they were available at least 24 hours in advance.
       In 1979, Senators added an overall ``consideration cap'' to 
     Rule XXII to prevent so-called post-cloture filibusters, 
     which occurred when Senators continued dilatory parliamentary 
     tactics even after cloture had been invoked. In 1986, this 
     ``consideration cap'' was reduced from 100 hours to 30 hours.

  At various times I have been a part of bipartisan groups of Senators 
who were able to come together and negotiate agreements to end the 
gridlock surrounding nominees, avert the nuclear option, and allow the 
Senate to move forward with our work on behalf of the American people. 
My work in these groups--often referred to as ``gangs''--has won me 
both praise and condemnation, and has often put me at odds with some in 
my own party.
  In 2005 for instance, I joined 13 of my colleagues in an agreement 
that allowed for votes on three of President Bush's judicial nominees 
who were being filibustered by the Democrats--who were in the minority 
at that time. Part of that agreement addressed future nominees. It 
stated:

       ``Signatories will exercise their responsibilities under 
     the Advice and Consent Clause of the United States 
     Constitution in good faith. Nominees should only be 
     filibustered under extraordinary circumstances, and each 
     signatory must use his or her own discretion and judgment in 
     determining whether such circumstances exist.''

  In January of this year I began working with like-minded members of 
both parties to diffuse legislative gridlock and to meet the goals of 
making it easier for the majority to bring legislation to the floor 
while also making it easier for a Member of the minority to offer 
amendments to that legislation. Having a robust amendment process, 
especially on legislation of major consequence, is how the Senate has 
traditionally operated. It is something that has been sorely lacking 
for the last several years. And it is something that, when it has 
occurred, has invariably led to legislative achievement.
  And again in July of this year the Senate faced gridlock over the 
President's nominees to the National Labor Relations Board--NLRB. I 
joined with Members on both sides to come up with a reasonable 
compromise which allowed for votes of the President's nominees.
  My colleagues in the majority are mistaken if they assume that these 
agreements have meant that we, the minority party, have surrendered our 
right to filibuster nominees in certain circumstances. The exact 
opposite is true. These agreements were negotiated precisely to protect 
the rights of the minority to filibuster nominations in good faith 
where the minority finds that doing so is warranted under the 
circumstances.
  I am disappointed my colleagues on the other side have taken this 
step today. I would argue that our side, led by Senator McConnell, has 
been very accommodating in helping to secure cloture on numerous 
nominees. The fact that we have exercised our rights in several 
instances should not deter from that fact, and is certainly not 
deserving of this retaliatory action.
  I have worked to end the stalemates over nominees, not for praise or 
publicity, but to retain the rights of the minority, and to help return 
the Senate to the early practices of our government and to reduce the 
rancor and distrust that unfortunately accompanies the advice and 
consent process in the Senate. I fear that today's action by the 
majority will result in even more discord in this body.
  Mr. HATCH. Madam President, today we face a real crisis in the 
confirmation process, a crisis concocted by the majority to distract 
attention from the Obamacare disaster and, in the process, consolidate 
more power than any majority has had in more than 200 years. This 
crisis was created by a majority that wants to win at all cost, for 
whom the political ends justify any means whatsoever. The two parts of 
this crisis are what the majority is doing and how they are doing it.
  What the majority is doing is terminating the minority's ability to 
filibuster judicial nominees. If anyone thought that judicial 
filibusters were so easy that the minority has been doing it 
indiscriminately, they would be wrong. It is harder to filibuster 
judges today than at any time since the turn of the 19th century. And 
the truth is that Democrats are now terminating a practice that they 
created and that they have used, by orders of magnitude, far more than 
Republicans.
  In February 2001, just after President George W. Bush took office, 
Democrats

[[Page 17844]]

vowed to use ``any means necessary'' to defeat his judicial nominees. 
That is one promise Democrats kept. They pioneered using the filibuster 
to defeat majority-supported judicial nominees in 2003. In fact, 73 
percent of all votes for judicial filibusters in American history have 
been cast by Democrats.
  By this same point under President Bush, the Senate had taken 26 
cloture votes on judicial nominees, more than twice as many as have 
occurred under President Obama. Under President Bush, 20 of those 
cloture votes failed, nearly three times as many as under President 
Obama. Democrats set a record for multiple filibusters against the same 
nominee that still stands today. They filibustered the nomination of 
Miguel Estrada, the first Hispanic nominee to the U.S. Court of Appeals 
for the D.C. Circuit, seven times.
  Individual Democratic Senators took full advantage of the judicial 
filibuster that they now are terminating. The majority leader, the 
majority whip, and the Judiciary Committee chairman together voted 82 
times to filibuster Republican judicial nominees. In contrast, the 
minority leader, minority whip, and Judiciary Committee ranking member 
have together voted only 29 times to filibuster Democratic judicial 
nominees. For those same Democratic Senators to now take away from 
others the very tactic that they invented and used so liberally is 
beyond hypocritical.
  The other part of this crisis is how the majority is terminating the 
judicial filibuster. The title ``nuclear option'' has been given to two 
methods by which a simple majority can change how the Senate does 
business. The first method has never been tried and can occur, if at 
all, only at the beginning of a new Congress. Because this method would 
actually change the Senate's written rules, it would be a public 
process involving a resolution and examination by the Rules Committee. 
Republicans considered using this method at the beginning of the 110th 
Congress but did not do so.
  The majority today is instead using the second method, which requires 
only a ruling from whoever is presiding over the Senate. It is a pre-
scripted parliamentary hit-and-run, over in a flash and leaving Senate 
tradition and practice behind like so much confirmation roadkill. This 
would be the wrong way to address even a real confirmation crisis, let 
alone the fake one created by the majority today.
  The majority, it seems, just does not like the way our system of 
government is designed to work. I have been in the majority and the 
minority several times each, more than enough to experience that the 
rules, practices, and traditions of this body can annoy the majority 
and empower the minority. That is how this body is designed to work as 
part of the legislative branch. But the majority today wants to have it 
all. They are denying to others the very same tools that they used so 
aggressively before.
  This year, the Senate has confirmed more than twice as many judges 
than at the start of President Bush's second term. We have confirmed 
nine appeals court judges so far this year, a confirmation rate 
exceeded only a handful of times in the 37 years I have served in this 
body. President Obama has already appointed one-quarter of the entire 
Federal judiciary.
  But that is not enough for this majority. In order to clear the way 
for winning every confirmation vote every time, Democrats set up a 
confrontation over nominees to the D.C. Circuit. They knew that the 
D.C. Circuit did not need more than the eight active judges it now has. 
How did they know? Because the very same standards they used in 2006 to 
oppose Republican nominees to that court told them so.
  In 2006, Democrats opposed more D.C. Circuit nominees because written 
decisions per active judge had declined by 17 percent. Since 2006, 
written decisions per active judge have declined by an even greater 27 
percent. In 2006, Democrats opposed more D.C. Circuit appointments 
because total appeals had declined by 10 percent. Since 2006, total 
appeals have declined by an even greater 18 percent. The D.C. Circuit's 
caseload not only continues to decline, but is declining faster than 
before.
  In 2006, Democrats opposed more D.C. Circuit appointments because 
there were 20 judicial emergency vacancies and there were nominees for 
only 60 percent of them. Since 2006, judicial emergency vacancies have 
nearly doubled and the percentage of those vacancies with nominees has 
declined to less than 50 percent.
  Judiciary Committee Democrats put those standards in writing in 2006. 
None of them, including the four who still serve on the Judiciary 
Committee today, have either said they were wrong in 2006 or explained 
why different standards should be used today. They have not done so 
because this about-face, this double-standard, is a deliberate ploy to 
create an unnecessary and fake confirmation confrontation.
  I have to hand it to my Democratic colleagues because reality 
television cannot hold a candle to this saga. Democrats first abandoned 
the arguments they used against Republican nominees to the D.C. Circuit 
in order to create a fake confrontation. Then they ``solve'' this 
confrontation by terminating judicial filibusters that they once used 
against Republican nominees.
  The filibuster has been an important--some would say a defining--
feature of how this body operates for more than 200 years. It has 
always annoyed the majority because it empowers the minority. Both 
parties have used it, both parties have criticized it. But no majority 
has done what Democrats have done today. They have fundamentally 
altered this body, they have in the most disingenuous way done long 
term institutional damage for short term political gain. This majority 
wants everything to go their way, and will do anything to make that 
happen.
  The majority created this fake confirmation crisis for two reasons. 
First, they want to stack the D.C. Circuit with judges who will approve 
actions by the executive branch agencies that President Obama needs to 
push his political agenda. Second, they want to distract attention from 
the Obamacare disaster. I think this heavy-handed move will have the 
opposite effect on both counts. Just as both parties have used the 
filibuster to stop certain judicial nominees, both parties will use the 
absence of the filibuster to appoint certain judicial nominees. And now 
that the majority has crossed this parliamentary Rubicon, we can indeed 
focus again on what Obamacare is doing to American families. This is a 
sad day for the Senate, for the judiciary, and for the American people 
who want to see their elected representatives act on integrity and 
principle rather than use gimmicks and power plays.
  Mr. UDALL of New Mexico. Madam President, today the Senate took an 
unusual step to change our rules with a simple majority vote. I say 
unusual step, and not unprecedented, because it was something the 
Senate has done on many occasions in the past. Like those previous 
changes, the action we took was not intended to destroy the uniqueness 
of the Senate but instead was meant to restore the regular order of the 
body.
  I believe, as I have stated many times since coming to the Senate, 
that the best way to amend the rules is by having an open debate at the 
beginning of each new Congress and holding a majority vote to adopt the 
rules for that Congress. I, along with Senators Harkin and Merkley, 
tried to do that at the beginning of this Congress and the last. 
Ultimately we were unsuccessful in achieving the real reforms we 
wanted, including a talking filibuster. But there was some hope that 
the debate highlighted some of the most egregious abuses of the rules 
and led to an agreement that both sides would strive to restore the 
respect and comity that is often lacking in today's Senate. 
Unfortunately, that agreement rapidly deteriorated and the partisan 
rancor and political brinksmanship quickly returned.
  As expected, many of my Republican colleagues called today's action 
by the majority a power grab and ``tyranny of the majority.'' They 
decried the lack of respect for minority rights. I do believe that we 
must respect the minority in

[[Page 17845]]

the Senate, but that respect must go both ways. When the minority uses 
their rights to offer germane amendments, or to extend legitimate 
debate, we should always respect such efforts. But that is not what we 
have seen. Instead, the minority often uses its rights to score 
political points and obstruct almost all Senate action. Instead of 
offering amendments to improve legislation, we see amendments that have 
the sole purpose of becoming talking points in next year's election. 
Instead of allowing up or down votes on qualified nominees, we see 
complete obstruction to key vacancies. It is hard to argue that the 
majority is not respecting the traditions of the Senate when the 
minority is using this body purely for political gain.
  During the debate over rules reform we had in January, many of my 
colleagues argued that the only way to change the Senate Rules was with 
a two-thirds supermajority. As we saw today, that simply is not true. 
Some call what occurred the ``Constitutional Option,'' while others 
call it the ``Nuclear Option.'' I think the best name for it might be 
the ``Majority Option.'' As I studied this issue in great depth, one 
thing became very clear. Senator Robert Byrd may have said it best. 
During a debate on the floor in 1975, Senator Byrd said, ``at any time 
that 51 Members of the Senate are determined to change the rule . . . 
and if the leadership of the Senate joins them . . . that rule will be 
changed.'' That is what happened today.
  We keep hearing that any use of this option to change the rules is an 
abuse of power by the majority. However, a 2005 Republican Policy 
Committee memo provides some excellent points to rebut this argument.
  Let me read part of the 2005 Republican memo:

       ``This constitutional option is well grounded in the U.S. 
     Constitution and in Senate history. The Senate has always 
     had, and repeatedly has exercised, the constitutional power 
     to change the Senate's procedures through a majority vote. 
     Majority Leader Robert C. Byrd used the constitutional option 
     in 1977, 1979, 1980, and 1987 to establish precedents 
     changing Senate procedures during the middle of a Congress. 
     And the Senate several times has changed its Standing Rules 
     after the constitutional option had been threatened, 
     beginning with the adoption of the first cloture rule in 
     1917. Simply put, the constitutional option itself is a 
     longstanding feature of Senate practice.
       The Senate, therefore, has long accepted the legitimacy of 
     the constitutional option. Through precedent, the option has 
     been exercised and Senate procedures have been changed. At 
     other times it has been merely threatened, and Senators 
     negotiated textual rules changes through the regular order. 
     But regardless of the outcome, the constitutional option has 
     played an ongoing and important role.''

  The memo goes on to address some ``Common Misunderstandings of the 
Constitutional Option.''
  One misunderstanding addressed, which we heard today is that, ``The 
essential character of the Senate will be destroyed if the 
constitutional option is exercised.''
  The memo rebuts this by stating that ``When Majority Leader Byrd 
repeatedly exercised the constitutional option to correct abuses of 
Senate rules and precedents, those illustrative exercises of the option 
did little to upset the basic character of the Senate. Indeed, many 
observers argue that the Senate minority is stronger today in a body 
that still allows for extensive debate, full consideration, and careful 
deliberation of all matters with which it is presented.''
  Changing the rules with a simple majority is not about exercising 
power, but is instead about restoring balance. There is a fine line 
between respecting minority rights and yielding to minority rule. When 
we cross that line, as I believe we have many times in recent years, 
the majority is within its rights to restore the balance. This is not 
tyranny by the majority, but merely holding the minority accountable if 
it crosses that line and makes the Senate a dysfunctional body. I would 
expect the same if my party was in the minority and we were abusing the 
rules.
  Many of my colleagues argue that the Senate's supermajority 
requirements are what make it unique from the House of Representatives, 
as well as any other legislative body in the world. I disagree. If you 
talk to the veteran Senators, many of them will tell you that the need 
for 60 votes to pass anything or confirm nominees is a recent 
phenomenon. Senator Harkin discussed this in great detail during our 
debate in January and I highly recommend reading his statement.
  I think this gets at the heart of the problem. We are a unique 
legislative body, but not because of our rule book. We have recently 
devolved into a body that our Founders never intended. Rather than one 
based on mutual respect that moves by consent and allows majority votes 
on almost all matters, we have become a supermajoritarian institution 
that often does not move at all.
  With all of the economic issues we face, our country cannot afford a 
broken Senate. Both sides need to take a step back and understand that 
what we do on the Senate floor is not about winning or keeping the 
majority next November, but about helping the country today.
  Today's vote to change the rules is a victory for all Americans who 
want to end obstruction and return to a government that works for them. 
Americans sent us here to get things done, but in recent years, the 
minority has filibustered again and again--not to slow action out of 
substantive concerns, but for political gain. Any President--Democrat 
or Republican--should be able to make their necessary appointments.
  This change finally returns the Senate to the majority rule standard 
that is required by the Constitution when it comes to executive branch 
and judicial nominees. With this change, if those nominees are 
qualified, they get an up-or-down vote in the Senate. If a majority is 
opposed, they can reject a nominee. But a minority should not be able 
to delay them indefinitely. That is how our democracy is intended to 
work.
  New Mexicans--all Americans--are tired of the gridlock in Washington. 
The recent filibuster of three D.C. Circuit nominees over the last 4 
weeks was not the beginning of this obstruction. It was the final straw 
in a long history of blocking the President's nominees. Doing nothing 
was no longer an option. It was time to rein in the unprecedented abuse 
of the filibuster, and I am relieved the Senate took action today.

                          ____________________