[Congressional Record (Bound Edition), Volume 159 (2013), Part 13]
[Senate]
[Pages 18323-18329]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         CHANGING SENATE RULES

  Mr. ALEXANDER. Madam President, I appreciate the courtesy of the 
majority leader in allowing me to ask him a question. I have more to 
say about this whole subject. But let me go back to my point. There are 
13 district judges on the calendar. On November 21, when we last met, 
there were 13 district judges. There is only one person in this Chamber 
who can bring a judge from the calendar to the floor for confirmation. 
That is the majority leader. Why did he not bring them all up? Why 
didn't he move them? Because under our rules all he has to do is make a 
motion that so-and-so district judge be confirmed. If he files cloture, 
we have to wait 1 day, and then we have 2 hours of debate.
  Never in the history of the country, according to the Congressional 
Research Service, has a district judge been denied his or her seat 
because of a failed cloture vote, because of a filibuster. I know this 
from personal experience because a judge named McConnell from Rhode 
Island was nominated

[[Page 18324]]

by President Obama at the recommendation of the Rhode Island Senators, 
and there were a number on this side who said we should filibuster the 
judge.
  I thought not. I argued to all of the Republicans that we never had 
done that in history and we ought not to do it, we ought not to start 
it. So what has happened? I believe, with all due respect, the majority 
leader is manufacturing a crisis. There is no crisis with those 13 
district judges. He is the one who could bring them up. He could have 
done it on Thursday, November 21st, the day he changed the rules. 
Friday would be the intervening day. The maximum amount of debate the 
Democrats could require on each judge would be 1 hour, if they yield 
back their hour. So in 13 hours, before midnight tonight, they could 
all be district judges. They were sitting on the calendar waiting for 
the majority leader to move.
  The same is true with the sub-Cabinet members. But let's just stay 
with the district judges for a minute. I know I am right about this 
because I have sat down with the Senate historian. I sat down with the 
Congressional Research Service. I said, has there ever been a 
President's nominee for a Federal district judge who has not been 
confirmed because of a failed cloture vote? The answer is zero--not for 
President Obama, not for President Bush, not for President Clinton, not 
for any President.
  Because Senator Reid, the distinguished majority leader, believed 
that the district judges were moving too slowly through the Senate, we 
changed the rules this past year. We said that with district judges, 
once there is a cloture vote--and remember, no judge has ever been 
denied his seat because of a cloture vote. Once there is a cloture 
vote, there can only be 2 hours of debate, one for the minority and one 
for the majority. So this is a manufactured crisis. That is what was 
done in order to do what the Democratic majority did on November 21, 
which is the most stunning development in the history of the Senate in 
terms of a rules change, and I intend to talk about that tonight. I 
want to go through some very specific facts--not speeches, not 
something made up, but facts.
  I am glad that the majority leader moved four district judges but 
every one of the other nine might ask, Mr. Majority Leader, why did you 
not move my name? Why are you leaving me out? Because you could move it 
on Monday, wait a day, and on Wednesday you could confirm every single 
one of the judges there?
  The reason was because the majority leader wanted to make it look 
like there was a problem here so he could do as Senator Levin said we 
did on November 21--in effect create a Senate without rules--over the 
objection of 48 Senators the Democratic majority established a 
precedent that the Senate can change the rules any time it wants to for 
any reason it wants to. So I want to speak a little bit tonight about 
how I and other Senators are expected to serve in a Senate with no 
rules.
  Yesterday was a pretty exciting day in the National Football League. 
There were a lot of close games. The Ravens and the Vikings scored 5 
touchdowns in 2 minutes and 1 second. In Pittsburgh, Miami was ahead 
when the Steelers Anthony Brown raced into the end zone after a series 
of lateral passes. It was one of those things where it is the last play 
of the game and they start playing, passing to each other. It rarely 
works. Every now and then it does, and it appeared to in this case 
because Brown was the last one with the ball. He got into the end zone 
before time expired, but the officials ruled he had stepped out of 
bounds before scoring.
  What if Pittsburgh had said yesterday: Wait a minute, we are the home 
team. We will change the rules and say if you go step out of bounds 
only once as you are running toward the end zone with lateral passes on 
the last play of the game then you score, so Pittsburgh wins the game?
  Or what if they had said: We are the home team. We will just add 5 
minutes and see if we can win the game in that 5 minutes? They would 
have been happy in Pittsburgh yesterday but maybe not for long.
  But what happens when Miami becomes the home team and Pittsburgh goes 
to Miami to play and Miami changes the rules in the middle of the game 
so Miami can win? What would happen to the game of professional 
football if the home team could change the rules in the middle of the 
game to get the result it wanted? The National Football League knows. 
They spend a lot of time on rules. They know if there is no integrity 
for the rules there is no integrity for the game, and pretty soon the 
fans do not watch the game because the game has no integrity.
  That is why the NFL goes to such great lengths about its rules. There 
are officials all over the field. They are standing, you know, right in 
the middle of the play. There is an instant review of every call they 
make. When they make a call they huddle to see if they interpreted the 
rule right. If a coach doesn't like it, he has an opportunity to 
challenge the ruling. There is someone up in a box who looks at that 
and reviews it. Today, Monday morning in New York, in the National 
Football League office, senior retired officials get together and they 
review every single call and every single no-call that was made 
yesterday in every league game. They grade every single official based 
on those calls, and rarely does anyone get 100 percent. The NFL is in a 
constant review of the rules because if there is no integrity to the 
rules, they know there is no integrity to the game, and there will be 
no fans.
  I say this because on Thursday, the last day we were here, November 
21, before Senators went home for Thanksgiving, the Democratic majority 
destroyed the rules of the Senate. With all of the Republican Members 
opposed and 3 Democratic Members opposed, the Senate voted 52 to 48 to 
invoke the so-called nuclear option, allowing a majority of Senators 
present and voting--so not necessarily 51--to approve Presidential 
nominees except for Supreme Court Justices. For those positions they 
eliminated the filibuster, which required 60 votes to proceed to an up 
or down majority vote.
  That is what Senator Reid went through a few minutes ago. He was 
saying that we will move for cloture, we will have an intervening day, 
and then we will have a cloture vote. Before Thursday, before November 
21, that took 60 votes. Although, as I said, in the case of Federal 
district judges it had never been used to deny a seat. But now it only 
takes a majority of those present and voting. This was the most 
dangerous restructuring of Senate rules since Thomas Jefferson wrote 
the rules because it creates a perpetual opportunity for what Alexis de 
Tocqueville called, when he traveled our country in the 1830s, one of 
the greatest threats to our democracy, and that is the tyranny of the 
majority.
  This stunning rules change by the Senate majority can best be 
described as ObamaCare 2. One of the things that Americans really 
didn't like about the new health care law, ObamaCare, was that it was 
passed in the dead of night by a purely partisan vote during a 
snowstorm. It showed that those who had the votes could do whatever 
they wanted no matter what the minority thought, and we can see the 
results: millions of Americans having their policies canceled. Next 
year, tens of millions will--those who get their insurance through 
employers. This is another example of that kind of power play. This 
time the goal was to help the administration and the Democratic 
majority advance its radical agenda, unchecked through the courts and 
the executive agencies.
  As the Senator from Michigan, Senator Levin said--quoting a former 
Republican Senator, Senator Vandenberg--Senator Levin is a Democrat--
said on that Thursday, ``If a majority of the Senate can change its 
rules at any time, there are no rules.''
  ``If a majority of the Senate can change its rules at any time, there 
are no rules.''
  Similar to the Pittsburgh game, if the home team can change its rules 
at any time there are no rules to the game. Every child knows that 
there have to be rules to the game. So I have this question: How am I 
and how are other Senators supposed to serve in a Senate with no rules? 
How is this different from what could have happened

[[Page 18325]]

in Pittsburgh if they changed the rules in the middle of the game? Or 
if the Red Sox, finding themselves behind in the ninth inning, added a 
few innings just to make sure they beat the Cardinals in the World 
Series. In the Senate, future majorities could do whatever they want, 
end the filibuster for legislation, removing any obstacle to the 
tyranny of the majority. Just as if there were no integrity of the 
rules of football and there would be no integrity of the game and there 
would be no fans, if there were no integrity to the rules of the 
Senate, there is no integrity for the Senate and no respect for this 
part of our system of government.
  I think I was not overstating it when I said this is the most 
dangerous change to the rules since Thomas Jefferson wrote them. When 
he did write the rules, he had this to say about why we have rules. His 
words are in the Senate rules book that every single one of us has and 
hopefully have read at least the beginning parts of. This is worth 
reading. It is entitled ``The Importance of Adhering to Rules.''
  Remember the argument here is not about the filibuster, it is about 
how the rules were changed. The Importance of Adhering to Rules. I am 
going to read a little bit of this. According to Thomas Jefferson, when 
he wrote the Senate rules:
  Mr. Onslow, the ablest among the Speakers of the House of Commons, 
used to say, ``it was a maxim he had often heard, when he was a young 
man, from old and experienced members, that nothing tended to throw 
power more into the hand of administration and those who acted with the 
majority of the House of Commons, than a neglect of, or departure from, 
the rules of proceeding: that these forms, as instituted by our 
ancestors, operated as a check and control on the actions of the 
majority; and that they were in many instances a shelter, and a 
protection to the minority, against the attempts of power.
  This is Thomas Jefferson writing about the importance of rules when 
he wrote the Senate rules.
  Continuing:

       So far the maxim is certainly true, and is founded in good 
     sense, that as it is always in the power of the majority, by 
     their numbers, to stop any improper measures proposed on the 
     part of their opponents, the only weapons by which the 
     minority can defend themselves against similar attempts from 
     those in power, are the forms and rules of proceeding which 
     have been adopted as they were found necessary from time to 
     time, and are become the law of the House; by a strict 
     adherence to which, the weaker party can only be protected 
     from those irregularities and abuses which these forms were 
     intended to check, and which the wantonness of power is but 
     too often apt to suggest to large and successful majorities.

  I would think a majority that claims to protect the rights of 
minorities would be interested in these words of Jefferson and 
especially in the following words:

       And whether these forms be in all cases the most rational 
     or not, is really not of so great importance. It is much more 
     material that there should be a rule to go by, than what that 
     rule is; that there may be a uniformity of proceeding in 
     business, not subject to the caprice of the Speaker, or 
     captiousness of the members. It is very material that order, 
     decency and regularity be preserved in a dignified public 
     body.

  That was Thomas Jefferson on the importance of Senate rules when he 
wrote them at the beginning of our country. The majority has set a 
precedent that destroys those rules--that destroys the integrity of the 
rules because a Senate in which a majority can change the rules at any 
time for any reason is a Senate with no rules. That is why it is not 
too much to say that the Democratic majority has created a perpetual 
opportunity for the tyranny of the majority. The majority can do 
anything it wants any time it wants.
  In this case, what it wanted to do was stack the Federal court that 
hears most of the challenges to its radical regulatory agenda with 
judges who believe in that agenda. Who knows what the next power play 
will be. First it was ObamaCare, then ObamaCare 2, the change of the 
rules. What we do know is that this majority has set an unprecedented 
precedent. They have set the precedent to do whatever they want to do 
anytime they want to do it. They have created a Senate without rules.
  Now let's talk a little bit about what the justification might be for 
such a stunning action because there are so many words thrown around 
that don't represent facts at all that--somehow--I wonder about this. 
For example, the Democrats complain that their radical action was 
warranted because the Senate is broken. I agree with that. I will 
explain in a few moments why I think so. Their reason is that President 
Obama's appointees have been unfairly denied seats by failed cloture 
votes or filibusters. The charge was--and you heard the majority leader 
a few minutes ago--things have gotten so bad that this Republican 
majority has treated President Obama unfairly by denying his nominees 
their seats by failed cloture votes or filibusters. The Democrats have 
gotten themselves in a room and convinced each other that this is true, 
but it is flat out not true.
  According to the Congressional Research Service--and I have 
researched this for several months and asked them this question: Has 
there ever been any Supreme Court nominee, by any President, who has 
been denied his or her seat by a filibuster? The answer is no. It is 
zero. Now, there is one possible exception. Abe Fortas was nominated by 
President Lyndon Johnson as Chief Justice. The nomination was in 
trouble on both sides of the aisle, and to help his friend Abe Fortas 
save face, President Johnson engineered a cloture vote in 1968. I think 
the vote was 45 to 43. They called that a win to help ``Abe save 
face.'' But certainly President Obama's nominees have not been denied 
their seats by a failed cloture vote, and neither have any other 
Presidents.
  Have there ever been any Cabinet members of President Obama or any 
other President who have been denied their seats by a failed cloture 
vote or by a filibuster? According to the Congressional Research 
Service, the answer is no. The number is zero. There have been no 
Cabinet members who have been denied their seats in the Obama 
administration by a failed cloture vote.
  Have there ever been any Federal district judges denied their seats 
by a failed cloture vote for President Obama or any other President? 
The answer is zero. Except for perhaps Fortas, there has never been a 
Supreme Court Justice, Cabinet member, or Federal district judge 
nomination in the history of President Obama--and never in the history 
of this country has a President's nomination been denied by a 
filibuster. Interesting.
  Then why did we go to this stunning radical move on November 21? 
Well, maybe it was because of sub-Cabinet members. How many of those 
have been denied their seats by a filibuster, according to the 
Congressional Research Service? Two of President Obama's, three of 
President George W. Bush's, and two of President Clinton's. That is a 
total of seven in the history of the Senate when a filibuster has said 
to a sub-Cabinet member that we are going to deny them their seat 
because of a filibuster or a failed cloture vote. So President Obama 
has been treated about exactly the same as his last two predecessors.
  In all of those I just mentioned, among Cabinet members, district 
judges, Supreme Court Justices, and sub-Cabinet members, we only found 
two Obama nominees who have been denied their seats by a failed cloture 
vote. Now, that is a fact. That is not a piece of Republican 
propaganda. That comes from the Congressional Research Service.
  Why is there a fuss about this? Well, maybe it is because of the 
Federal circuit judges. Well, let's talk about that. As for appeals 
court judges, Republican filibusters have blocked five. Why did that 
happen? That happened as a result of what happened in 2003, the year I 
came to the Senate. Then, Democrats got together and said: We think 
President Bush's nominees are too conservative, so for the first time 
in the history of the Senate we are going to block 10 of President 
Bush's nominees basically because they are too conservative. I knew 
some of those judges. I used to clerk on the Fifth Circuit Court of 
Appeals for Judge John Minor Wisdom. I knew the respect he had for 
Judge Pryor. I knew Mr. Pickering, who had really been a pioneer for 
civil

[[Page 18326]]

rights in the State of Mississippi in the 1960s and 1970s when it was 
hard to do that.
  The truth is that the majority of Democrats said: We are going to 
block 10 of the Bush judges. It has never been done before, but we are 
going to do it with a cloture vote.
  Well, as you can guess, everyone on the Republican side--and the 
majority then--got very excited. The majority leader, Senator Frist, 
said: We are going to change the rules and do something that Senator 
Lott--a majority leader at one time--said was the nuclear option.
  There was great consternation. In 2006 Senator Reid said--and he 
recounts this very well in his book--``to do so would be the end of the 
Senate.''
  I made two speeches. I suggested that, well, this is a terrible thing 
to do. A President ought to have an up-or-down vote on his circuit 
judges. So why don't we see if we can't get a few Republicans and a few 
Democrats and just take it out of the hands of the leaders and agree we 
will only use the filibuster on circuit judges in extraordinary 
circumstances, which was the result. I said at the time that I would 
never vote for a filibuster on a circuit judge. I adjusted my view to 
be the same as the Senate precedent that came out of the Gang of 14. Of 
the 10 Bush judges, 5 were not confirmed and 5 were confirmed. In 2003 
the Democratic Senators for the first time in history refused to 
confirm five Presidential nominees for the Federal court of appeals by 
a cloture vote--by a filibuster--and the expected happened. Over time, 
the Republicans now have blocked five nominations. So Republicans and 
Democrats are even.
  When you start something, things have a way of coming back around. 
What the Democrats said was fair to do in 2003 and 2004 the Republicans 
now say is fair to do. If the Democrats think the Republican nominees 
are too conservative, they will block five of them. If we think 
President Obama's nominees are too liberal, then we will block five of 
them. We put in the trash heap the tradition that we will never use the 
filibuster on Federal courts of appeals judges.
  The majority leader and others have said: Well, that is not the only 
problem. The problem is that President Obama has had to wait too long 
to get his judges confirmed.
  Again, that is not true either. This is another case where the 
Democrats apparently have gotten themselves in a room and convinced 
themselves that something that isn't true is true. According to the 
Congressional Research Service, President Obama's second-term Cabinet 
nominees have been confirmed at about the same pace as President Bush's 
Cabinet nominees and President Clinton's Cabinet nominees.
  The other day I heard the majority leader use the example of the 
distinguished Secretary of Defense and a former Member of this body, 
Senator Hagel, as an example of delay. Well, let me comment on that, if 
I may. Senator Hagel's nomination was reported to the Senate floor. The 
day after it was reported by the Armed Services Committee, the majority 
leader filed cloture and called that a filibuster.
  Now, many Republican Senators--I watched the Senator from Arizona and 
the Senator from South Carolina and others say on the floor to the 
majority leader: That is premature. You are cutting off debate before 
we have had a chance to consider the Secretary of Defense of this 
country. If you will allow us more time--at that time we were going 
into the Presidents Day recess for a week--we will cut off debate the 
day we come back and then we will have an up-or-down vote.
  But, no, the majority leader and the White House said: Ram it 
through.
  They insisted on a vote, the vote was turned down, and he called that 
a filibuster. I call it cutting off debate--cutting off debate 
prematurely. Why in the world wouldn't you allow a Secretary of Defense 
to be on the floor for more than 1 day before you cut off the debate 
prematurely and call it a filibuster?
  The majority leader said: Well, we could be attacked.
  I think he must have forgotten we had a perfectly adequate Secretary 
of Defense in place--Leon Panetta--until the next one was confirmed, 
and he was going to be confirmed because the majority had the majority 
of votes to do that and a Cabinet member has never been denied his or 
her seat because of a cloture vote.
  I want to keep coming back to that. A Cabinet member has never been 
denied confirmation because of a failed cloture vote. A Cabinet member 
will be confirmed after a while--after you have questions. But in that 
case, they filed cloture after 1 day.
  Now, in my case, 20 years ago when President Bush nominated me as the 
Education Secretary, there was a Democratic Senate. I was announced in 
December, nominated in January, and it was March before some of the 
Democratic Senators saw fit to give me a vote, and I was confirmed by 
unanimous consent. During that time I tried to get ready for our 
education program. It gave me some time to work. When President Reagan 
nominated Ed Meese to be the Attorney General, it took a year before 
the Senate confirmed Ed Meese, but he was confirmed. There have been 
some Cabinet members who have withdrawn their names because they have 
become embarrassed or for some other reason.
  If the question is whether a failed cloture vote has ever been used 
to deny a Cabinet member his or her seat, the answer is no. In the case 
of Secretary Hagel, I would think 1 day is not quite long enough to 
file a motion to cut off debate and claim it is a filibuster.
  What about judges? Has the Senate been slow on judges? This year the 
Senate has confirmed 36 of the President's second-term nominees to 
circuit and district courts compared with 14 for President Bush as of 
November 21st in his second term in 2005. These things are never exact 
because there are vacancies for a variety of reasons. That is a pretty 
big difference. It is very hard to argue that it is unfair. But the 
majority leader did argue successfully that the minority was holding up 
district judges in order to negotiate for other points. He did that the 
second time a bipartisan group of us sat down to talk about how to 
change the Senate rules so we could move along better. So what the 
Senate agreed to do earlier this year was to change the rules to make 
it easier to confirm district judges.
  Here is the procedure: Remember, first they have to be on the 
calendar. How do they get on the calendar? A committee majority puts 
them on the calendar. What party has the majority in the Judiciary 
Committee? The Judiciary Committee majority is Democratic. That puts 
them on the calendar. So Democrats put them on the calendar. Only the 
majority leader can take them off the calendar, and when he does that, 
he has no motion to proceed; he just takes them right off just like he 
did tonight. If he wants to, he can just bring them up and ask 
unanimous consent that they be approved, which they often are.
  I am told by the Republican leader's office that when the majority 
leader rammed the rules change through on November 21, there were about 
40 or so noncontroversial--so-called--nominees who were about to be 
confirmed, including many district judges. But tonight the majority 
leader has selected 4 of the 13 district judges who are on the calendar 
and made a big show out of the fact that we are going to take an 
intervening day tomorrow and then we are going to vote on them, I 
guess, beginning on Wednesday. Under the rules change he asked for, the 
debate on each one of those can only be 2 hours, and it is divided 
evenly, which means the Democrats have an hour and the Republicans have 
an hour. If the Democrats want to speed things up, they can give their 
hour back. On a noncontroversial judge, Republicans normally wouldn't 
say anything, except a word or two of praise. But let's say the 
Republicans are upset by the rules changes and we are going to say we 
will take that whole hour. The Democrats could say 2 or 3 minutes of 
praise for the district judge and we could confirm those four in 4 
hours. That is half a day's work.
  The question I asked the majority leader was, What about the other 
nine? What about the other nine district

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judges who are sitting on this calendar, put there by the Democratic 
majority of the Judiciary Committee, and only one person in the Senate 
can bring them up for a vote, and he didn't bring them up. Why doesn't 
he bring them up? He could bring them up today. Tomorrow would be the 
intervening day and we could vote on Wednesday and vote on them all. He 
could have brought every single district judge up Thursday before 
recess, when he turned the Senate into a place that has no rules; 
Friday would have been the intervening day, and we could have been 
voting all day today, and by the time we went home for supper, every 
district judge would be confirmed because of the earlier rules change 
that limited post-cloture debate on district judges to 2 hours. The 
only reason I can see to go through all of this is to manufacture a 
crisis to make the American people think that somehow the minority is 
abusing its privileges.
  I read the Executive Calendar on November 21 very carefully. 
Remember, this is the document that is on every Senator's desk. A 
nominee has to be on here in order to be confirmed. If a person is an 
executive nominee, the only person who can bring it up is the majority 
leader. It is the same with legislation. So legislative matters require 
a motion of consent. There were only 16 on the calendar who had been 
there 3 weeks and only 8 more who had been there more than 9 weeks, and 
2 of the 8 were being held up by Democratic Senators. That is hardly a 
crisis.
  Finally, let me address the claim the majority leader didn't take 
seriously; that is, Republicans have unfairly blocked the President 
from filling vacancies on the U.S. Court of Appeals for the D.C. 
Circuit. Remember, I pointed out the Democrats started this by saying 
that if President Bush nominates judges that are too conservative, we 
will block them, so the Republicans now have blocked an equal number of 
President Obama's judges. But that is not the primary reason for 
blocking them. The primary reason is stated in a letter written on July 
27, 2006, to the chairman of the Judiciary Committee, a Republican, 
Senator Specter, from all of the Democratic members of the Judiciary 
Committee. President Bush had nominated someone for this same court, 
the District of Columbia Federal Circuit Court, and this is what the 
Democratic Senators said in 2006:

       We believe that Mr. Keisler should under no circumstances 
     be considered--much less confirmed--by this Committee before 
     we first address the very need for that judgeship, receive 
     and review necessary information about the nominee, and deal 
     with the genuine judicial emergencies identified by the 
     Judicial Conference.

  In other words, what the Democrats were saying--and it included a 
number of the most distinguished Members of this body--the chairman 
Senator Leahy, Senator Schumer, Senator Feingold, Senator Feinstein, 
Senator Kohl, Senator Kennedy, Senator Durbin, Senator Biden--they were 
saying that this court, the D.C. court, is an important court, but it 
doesn't need any more judges. Before we add any more judges to a court 
that is underworked, we ought to consider transferring those judgeships 
to courts that are overworked.
  That argument had been made since at least 2001 by Senator Grassley 
from Iowa, and finally, with some bipartisan cooperation in 2007, he 
achieved some success. With President Bush's agreement, the Republican 
President, he agreed with the Democratic Senators that the D.C. Circuit 
should under no circumstances--those are their words in their letter--
have more judges. They reduced by one the number of judges, and they 
transferred a judge to the Ninth Circuit, which was overworked.
  So what Republicans have said about the three judges whom the 
President has nominated to the D.C. Circuit is, before we consider any 
of them, consider Senator Grassley's bill. Do in 2013 what you said we 
should do in 2006 and 2007 and which we did in a bipartisan way.
  So how can this be dismissed when Republicans are asking to do in 
2013 exactly what the Democrats successfully insisted on in 2006, which 
is to transfer judges from the courts where they are not needed to the 
courts where they are needed. In fact, the D.C. Circuit has a lower 
caseload by comparison today than it did in 2007 when, by a bipartisan 
agreement, it was considered underworked. The Democrats didn't think it 
was unfair then to insist that we not appoint more judges to a court 
that was underworked. It must be they are trying to manufacture a 
crisis now.
  So if there is no good reason to change the rules in such a dramatic 
way as the majority did on November 21, why would the majority leader 
insist on cramming through in a power play a rules change that in 2006 
he said would be the end of the Senate? Because the vote was not about 
the filibuster. All of that is pretext. The vote was about allowing the 
majority to do whatever it wants to do any time it wants to do it.
  One of the things the American people detest about ObamaCare, as I 
said earlier, is that it was crammed through in the middle of the night 
in a partisan power play and we can see the results. Unlike the civil 
rights bill which had broad bipartisan support--I can remember Senator 
Dirksen and President Johnson working together on it when it required 
67 votes in the Senate, and because it achieved that consensus, Senator 
Russell, the great opponent of the bill, went home to Georgia and said: 
It is the law of the land and we should now support it.
  When we cram a big social change--or any big change--through the 
Congress, we are going to get the kind of result we get with ObamaCare 
today: millions of people losing their policies, tens of millions will 
next year, great concern, Web site not working. That is what we get 
when we cram things through in a partisan way, and the Democrats have 
done it again.
  So if the filibuster was not the problem, then why is the Senate not 
functioning better? Why are we so low in public opinion polls? Frankly, 
it is because of the Senate leadership. I have had the privilege over 
the years of watching the Senate. I came here for the first time in 
1967 as an aide to Senator Howard Baker, the future majority leader of 
the Senate. I watched Senator Mansfield and Senator Dirksen. I watched 
Senator Byrd and Senator Baker. I watched Senator Daschle, Senator 
Lott, Senator Frist. I wasn't in the Senate all of that time--I have 
only been here since 2003--but I have seen it over that time up close. 
All of them could operate this body very well under the rules we had 
until Thursday of 2 weeks ago, until November 21.
  I was at the Rules Committee meeting when Senator Byrd, former 
majority leader and acknowledged as the great historian of the Senate, 
came. He could barely speak, but he had one last message for the Senate 
and it was: Don't change the filibuster. He called it the necessary 
fence against the excesses of the executive and the popular will. That 
was what Senator Byrd said. He also said that under the rules we had 
until November 21, a majority leader could operate the Senate if he 
wanted to.
  The current majority leader seems to be unable to do that, and we saw 
an example of it here tonight. He brings up 4 district judges, while 
there are 13 on the calendar. He could have brought them up on November 
21 and we could have been voting on all of them today. He could bring 
them all up today and we could vote on all of them Wednesday, but he is 
parceling them out as if there were a crisis somewhere. Why is he doing 
that? I don't see why he is doing that. It is not the way to make the 
Senate function. It is not what Senator Byrd would do. It is not what 
Senator Baker would do. I saw them come in and open the Senate to 
amendments, put a bill on the floor, ask for amendments. Here came 300 
amendments. Ask for unanimous consent to cut off amendments. They got 
unanimous consent because nobody could think of any other amendments, 
and then Senator Byrd would say--and Senator Baker did as well--all 
right, let's start voting, and vote, vote, vote, vote. Then we could 
get to about Wednesday or Thursday and Senators would think, well, 
maybe my amendment is not so important, and by Friday, when it was 
clear the majority leader was going to finish the bill that week, they 
would drop the amendments, and we got it done.

[[Page 18328]]

  So the Senate wasn't a perfect place--things were still bumpy. There 
was Senator Metzenbaum sitting in the front row objecting. There was 
Senator Williams before him, Senator Allen before him, exercising their 
rights, but the majority leaders were able to work with that. The 
Senate worked on Mondays and Fridays, it worked at night, and the 
threat of that usually caused people who were trying to not show a 
proper amount of restraint and use of their privileges to back down.
  Instead, what the current majority leader does--and we heard him 
tonight--is complain about obstructionism when there isn't any, 
certainly not on nominations. I am not going to say Senators on both 
sides of the aisle haven't abused their privileges and slowed down the 
Senate. But he complains about obstructionism when, in fact, he has 
become the obstructionist in chief by making it more difficult for 
those of us who are elected from our States to represent the people who 
have a right to be heard. Seventy-seven times this majority leader has 
cut off amendments in a body whose whole purpose is to amend, debate, 
and vote. I call it a gag rule, with the majority cutting off the right 
of American voices to be heard on the Senate floor. There have been 114 
times when he has filed a motion to cut off debate on the same day he 
has introduced a bill, and he calls that a filibuster. I call it a gag 
rule. He has bypassed Senate committees in an unprecedented way: 76 
times in the last 7 years.
  He set himself up as the king of the Senate: May I offer an amendment 
on Iran, a Senator might ask. No. May I offer an amendment on Egypt? 
No. How about an amendment on ObamaCare? No. What about a bill on the 
National Labor Relations Board? No. Can we work on appropriations 
bills? No. Only one person is deciding what happens here when, in fact, 
the history of the Senate has been a place of virtually unlimited 
debate on virtually any amendment. That has been the history of the 
Senate. It is different than the House of Representatives. It has been 
different than any other body in the world. It operates by unanimous 
consent, and it requires restraint which hasn't always been exercised, 
but majority leaders who have been effective have found their way to 
deal with that.
  I have spent the last 3 years doing my best to help make this place 
function. I cannot say where this rules change on November 21 will 
lead, but it is heading in a dangerous direction--a direction that is 
dangerous for the Senate and dangerous for our country.
  This is a country that prizes the rule of law. Other countries around 
the world that do not have it wish they did, they wish they had a 
country with the rule of law. So in a country that prizes the rule of 
law, we now have a Senate without any rules because the Senate majority 
has decided, for the first time, that a majority can change the rules 
at any time, for any reason it wants, which makes this a body without 
rules.
  In a country that yearns for solutions on Iran, on health care, on 
our debt crisis, we have a king of the Senate saying: No amendments, no 
debate. I will make all the decisions.
  I know of only one cure for this dangerous trend, and that is one 
word, an election--the election of six new Republican Senators so power 
plays such as ObamaCare and the November 21 rules change will be ended 
and the Senate will again be alive with bills, amendments, and debates, 
reflecting the will of the American people on the important issues of 
our time.
  I ask unanimous consent to have printed in the Record the letter from 
the year 2006 from the Democratic Senators on the Judiciary Committee 
saying there should be no new judges added to the D.C. Court of Appeals 
because it is underworked.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                    Washington, DC, July 27, 2006.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary,
     Washington, DC.
       Dear Chairman Specter: We write to request that you 
     postpone next week's proposed confirmation hearing for Peter 
     Keisler, only recently nominated to the D.C. Circuit. Court 
     of Appeals. For the reasons set forth below, we believe that 
     Mr. Keisler should under no circumstances be considered--much 
     less confirmed--by this Committee before we first address the 
     very need for that judgeship, receive and review necessary 
     information about the nominee, and--deal with the genuine 
     judicial emergencies identified by the Judicial Conference.
       First, the Committee should, before turning to the 
     nomination itself, hold a hearing on the necessity of filling 
     the 11th seat on the D.C. Circuit, to which Mr. Keisler has 
     been nominated. There has long been concern--much of it 
     expressed by Republican Members--that the D.C. Circuit's 
     workload does not warrant more than 10 active judges. As you 
     may recall, in years past, a number of Senators, including 
     several who still sit on this Committee, have vehemently 
     opposed the filling of the 11th and 12th seats on that court:
       Senator Sessions: ``[The eleventh] judgeship, more than any 
     other judgeship in America, is not needed.'' (1997)
       Senator Grassley: ``I can confidently conclude that the 
     D.C. Circuit does not need 12 judges or even 11 judges.'' 
     (1997)
       Senator Kyl: ``If . . . another vacancy occurs, thereby 
     opening up the 11th seat again, I plan to vote against 
     filling the seat--and, of course, the 12th seat--unless there 
     is a significant increase in the caseload or some other 
     extraordinary circumstance.'' (1997)
       More recently, at a hearing on the D.C. Circuit, Senator 
     Sessions, citing the Chief Judge of the D.C. Circuit, 
     reaffirmed his view that there was no need to fill the 11th 
     seat: ``I thought ten was too many . . . I will oppose going 
     above ten unless the caseload is up.'' (2002)
       In addition, these and other Senators expressed great 
     reluctance to spend the estimated $1 million per year in 
     taxpayer funds to finance a judgeship that could not be 
     justified based on the workload. Indeed, Senator Sessions 
     even suggested that filling the 11th seat would be ``an 
     unjust burden on the taxpayers of America.''
       Since these emphatic objections were raised in 1997, by 
     every relevant benchmark, the caseload for that circuit has 
     only dropped further. According to the Administrative Office 
     of the United States Courts, the Circuit's caseload, as 
     measured by written decisions per active judge, has declined 
     17 percent since 1997; as measured by number of appeals 
     resolved on the merits per active judge, it declined by 21 
     percent; and as measured by total number of appeals filed, it 
     declined by 10 percent. Accordingly, before we rush to 
     consider Mr. Keisler's nomination, we should look closely--as 
     we did in 2002--at whether there is even a need for this seat 
     to be filled and at what expense to the taxpayer.
       Second, given how quickly the Keisler hearing was scheduled 
     (he was nominated only 28 days ago), the American Bar 
     Association has not yet even completed its evaluation of this 
     nominee. We should not be scheduling hearings for nominees 
     before the Committee has received. their ABA ratings. 
     Moreover, in connection with the most recent judicial 
     nominees who, like Mr. Keisler, served in past 
     administrations, Senators appropriately sought and received 
     publicly available documents relevant to their government 
     service. Everyone, we believe, benefited from the review of 
     that material, which assisted Senators in fulfilling their 
     responsibilities of advice and consent. Similarly, the 
     Committee should have the benefit of publicly available 
     information relevant to Mr. Keisler's tenure in the Reagan 
     Administration, some of which may take some time. to procure 
     from, among other places, the Reagan Library. As Senator 
     Frist said in an interview on Tuesday, ``[T]he D.C. Circuit . 
     . . after the Supreme Court is the next court in terms of 
     hierarchy, in terms of responsibility, interpretation, and in 
     terms of prioritization.'' We should therefore perform our 
     due diligence before awarding a lifetime appointment to this 
     uniquely important court.
       Finally, given the questionable need to fill the 11th seat, 
     we believe that Mr. Keisler should not jump ahead of those 
     who have been nominated for vacant seats identified as 
     judicial emergencies by the non-partisan Judicial Conference. 
     Indeed, every other Circuit Court nominee awaiting a hearing 
     in the Committee, save one, has been selected for a vacancy 
     that has been deemed a ``judicial emergency.'' We should turn 
     to those nominees first; emergency vacancies should clearly 
     take priority over a possibly superfluous one.
       Given the singular importance of the D.C. Circuit, we 
     should not proceed hastily and without full information. Only 
     after we reassess the need to fill this seat, perform 
     reasonable due diligence on the nominee, and tend to actual 
     judicial emergencies, should we hold a hearing on Mr. 
     Keisler's nomination.
       We thank you for your consideration of this unanimous 
     request of Democratic Senators.
           Sincerely,
     Patrick Leahy.
     Russell D. Feingold.
     Dianne Feinstein.
     Herb Kohl.

[[Page 18329]]

     Charles Schumer.
     Edward M. Kennedy.
     Richard Durbin.
     Joseph R. Biden, Jr.

  Mr. ALEXANDER. I yield the floor.

                          ____________________