[Congressional Record (Bound Edition), Volume 159 (2013), Part 6]
[Senate]
[Pages 8646-8648]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           ADVICE AND CONSENT

  Mr. BARRASSO. Mr. President, I come to the floor today to talk about 
the advice and consent duties of the Senate. Our Constitution gives the 
Senate the responsibility to advise the President on high-level 
executive positions and judgeships. The Senate is also asked to consent 
on those appointments to ensure that only those who are worthy of the 
public's trust hold positions of such great power. The confirmation 
process is a way to protect the American people from nominees who 
simply aren't up to the job or to the times we are in as a country.
  It is also an important opportunity for the Senate to exercise 
oversight over the agencies and the policies of an administration and 
to do this on behalf of the American people. Let me repeat that. It is 
about exercising oversight on behalf of the American people.
  This is one of the most important roles we play as Senators. This is 
one of the reasons our Nation's Founding Fathers intentionally made the 
pace of the Senate deliberate. They wanted to make sure there was free 
debate on important subjects so we could give appropriate consideration 
to policies, to laws, and to nominations.
  The Father of our Constitution, James Madison, explained the Senate's 
role was ``first to protect the people against their rulers.''
  ``First to protect the people against their rulers'' was the point of 
this body. That is why, over its long history, the Senate has adopted 
rules that provide strong protections for political minorities.
  Lately some in the majority have decided the American people 
shouldn't ask so many questions and the minority shouldn't have so many 
rights. Here is a little perspective on the conversation we are having 
today. Over the last 6 years Majority Leader Reid has taken an 
unprecedented stand against the rights of the minority in this body. He 
has done it through procedural tactics such as filling the amendment 
tree on bills and bypassing committees using something called rule XIV 
of the Senate rules. Those techniques may make it easier for the 
majority leader to get what he wants, but they shut many Senators out 
of legislating, and they shut out the Americans we represent, Democrats 
as well as Republicans.
  At the beginning of the last Congress and again at the start of this 
Congress, there was an attempt to use the so-called nuclear option and 
to use it to radically change the rules of the Senate and to strip the 
rights of the minority. Back in 2011, Majority Leader Reid made a 
commitment not to use the nuclear option.
  On the floor he said:

       I agree that the proper way to change Senate rules is 
     through the procedures established in those rules, and I will 
     oppose any effort in this Congress or the next to change the 
     Senate rules other than through the regular order.

  He said this Congress or the next Congress, so that includes the 
Congress we are in right now today.
  It didn't stop some of the members of his caucus from trying to force 
the nuclear option again earlier this year. I was one of a bipartisan 
group of Senators--eight of us--who worked together and negotiated, I 
thought, responsible changes to Senate procedures. Our goal was to 
avoid the rush that would take drastic steps that would damage this 
body and our country forever. It was a fair agreement.
  It was also an agreement that we were told would rule out the use of 
the nuclear option. So Republicans agreed to support two new standing 
orders and two new standing rules of the Senate. Those changes were 
overwhelmingly supported by Republicans as well as Democrats in this 
body.
  In return, the majority leader again gave his word he would not try 
to break the rules in order to change the rules. Here is what he said a 
few months ago on the Senate floor: ``Any other resolutions related to 
Senate procedure would be subject to a regular order process.''
  He even added this included considerations by the Rules Committee. 
There was no equivocating in the statement by the Democratic leader. 
There were no ifs, ands, or buts. This was January 24 of this year. 
Here we are again, less than 5 months later, and we are having this 
same argument.
  Some Senate Democrats want to use the nuclear option to break the 
rules, to change the rules, and do away with the right to extended 
debate on nominations. This would be an unprecedented power grab by the 
majority. It would gut the advice and consent function of the Senate. 
It would trample the rights of the minority. It would deprive millions 
of Americans of their right to have their voices heard through their 
representatives here in Washington. The nuclear option would 
irreparably change this institution.
  Republicans have raised principled objections to a select few of the 
President's nominees. In other cases, such as the D.C. Circuit Court, 
we simply want to apply the standard the Democrats had set, that the 
court's workload doesn't justify the addition of three more judges.
  The President claims his nominees have been treated unfairly. Even 
the Washington Post's Fact Checker said the President's comments were 
untrue. The other day the Post Fact Checker gave the President not just 
one but two Pinocchios for his claims about Republican delays on his 
judicial nominees.
  The White House and the majority leader don't want to hear it. They 
want the Senate to rubberstamp the President's nominees. The Democrats 
aren't happy with the rulings by the D.C. Circuit Court, and they want 
to avoid any more inconvenient questions about the Obama 
administration. Democrats claim they want to change the rules to make 
things move more quickly, but that is no excuse. Remember when the 
majority leader threatened the same drastic step a couple of years ago? 
One of the Democrats who stood up to oppose the current majority leader 
at the time was former Senator Chris Dodd. In his farewell speech in 
this body in late 2010, this is what Senator Dodd had to say:

       I can understand the temptation to change the rules that 
     make the Senate so unique--and, simultaneously, so 
     frustrating. But whether such a temptation is motivated by a 
     noble desire to speed up the legislative process, or by pure 
     political expedience, I believe such changes would be unwise.

  This was a Democratic Senator with 30 years of service in the Senate.
  The reality is the pace of the Senate can be deliberate. Extended 
debate and questioning of nominees is a vital tool to help ensure the 
men and women who run our government are up to the job and are held 
accountable.
  Under the system some in the majority want to impose, there will be 
less opportunity for political minorities to question nominees. There 
will be less government transparency. The faith of the American people 
in their government will get smaller and smaller.
  I believe it would be a terrible mistake for Democrats to pursue the 
nuclear option and an irresponsible abuse of power. From the beginning 
the American political system has functioned on majority rule but with 
strong minority rights. Democracy is not winner-take-all. Senator Reid 
gave his word. We negotiated in good faith earlier this year. We 
reached a bipartisan agreement to avoid the nuclear option. Using the 
nuclear option on nominations now would unfairly disregard that 
agreement. If Democrats break the rules to change the rules, political 
minorities and all Americans will lose.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Heitkamp). The Senator from Iowa.
  Mr. GRASSLEY. I listened to my colleague from Wyoming. He states it 
very well. I have come to the floor for roughly the same reason, but I 
don't know how many times you have to say it, because I think basically 
what the Senator from Wyoming was saying, and what I want to say is it 
is very difficult to reach agreements in the Senate. But when you reach 
an agreement, particularly only if it involves two Senators but 
particularly if they are leaders of the Senate, a person's word is his 
bond. That bond ought to be kept--as far as I know, always kept. At 
least that has been my relationship with fellow Senators. You say you 
are going to do something and you continue that until

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it is successful. So here we are, no Senator has not kept their word 
yet, but we hear this threat. So I come to the floor to give my 
comments on it.
  At the beginning of this Congress, the majority and minority leaders 
reached an agreement as to how to proceed with rules changes. An 
agreement was reached. We agreed to two rule changes: One change to the 
standing rules and one to the standing order. Senate Republicans gave 
up certain rights and protections in those rules changes. That was the 
first part of the agreement. In exchange for these rules changes, the 
majority leader gave his word to Republican Senators he would not 
utilize what is called around here and around this town the ``nuclear 
option'' and not use it during this Congress.
  Let me review the exact wording of that agreement as it is recorded 
for history in the Congressional Record. This year, on January 24, 
2013, the following exchange took place in the Senate. Senator 
McConnell stated:

       Finally, I would confirm with the majority leader that the 
     Senate would not consider other resolutions relating to any 
     standing order or rules in this Congress unless they went 
     through the regular order process?

  The majority leader replied:

       This is correct. Any other resolution related to Senate 
     procedure would be subject to a regular order process, 
     including consideration by the rules committee.

  In fact, the majority leader gave his word at the beginning of the 
last Congress as well. He stated:

       The minority leader and I have discussed this issue on 
     numerous occasions. I know that there is a strong interest in 
     rules changes among many in my caucus. In fact, I would 
     support many of these changes through regular order. But I 
     agree that the proper way to change Senate rules is through 
     the procedures established in those rules and I will oppose 
     any effort in this Congress or the next to change the Senate 
     rules other than through regular order.

  Let me just say when a Senator reaches an agreement and gives his 
word that he will stick to that agreement, that should mean something 
around here. As far as I am concerned, it means something all the time. 
I don't think I have been subject to entering an agreement with a 
colleague that hasn't been kept.
  Let me emphasize something further. There was no contingency on that 
agreement. Republicans agreed to a change in the rules, and the 
majority leader gave his word he would not invoke the so-called nuclear 
option. That was the extent of the agreement, period. I trust the 
majority leader will keep his word and his commitment. If he pulls back 
on that commitment, it will irreparably damage the Senate.
  Moreover, the notion there is now a crisis that demands another rules 
change is completely manufactured. The minority leader has spoken about 
the culture of intimidation. I am troubled it is finding its way into 
the Senate. For the record, in regard to why there is some talk around 
this institution of changing the rules--something to do with 
nominations and particularly judicial nominations not moving fast 
enough--I am in the middle of that as ranking member of the Judiciary 
Committee. So far this year, we have confirmed 22 lower court nominees, 
with two more scheduled for this week. That is more than double the 
number of judges who were confirmed at this point during the previous 
President's second term--President Bush.
  With the nominations this week, we have confirmed 195 of President 
Obama's nominees as lower court judges. We have defeated only two. That 
is a batting average of 99-plus percent. I don't know how much better 
we can get unless it is expected the Senate will not raise any 
questions about anybody appointed by any President to the judgeships of 
our country.
  The claim we are obstructing nominees is plainly without foundation. 
I have cooperated with the chairman of the Judiciary Committee in 
moving forward on consensus nominees, and on the Senate floor there has 
been a consistent and steady progress on judicial nominations. Yet it 
seems as if the majority is intent on creating a false crisis in order 
to effect changes in longstanding Senate practices. They are now even 
threatening--can you believe this--to break the rules to change the 
rules. Again, I hope the majority leader keeps his word. We have 
certainly upheld our end of the bargain.
  May I inquire of the Chair how many minutes are remaining for the 
minority in morning business?
  The PRESIDING OFFICER. The Republicans control 15 minutes.
  Mr. GRASSLEY. Fifteen minutes more?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. GRASSLEY. In regard to this whole issue about the Senate as an 
institution and where I said if this nuclear option holds it is going 
to destroy the Senate, I think it is very appropriate for us to 
remember the Senate is the only institution in our political branch of 
government where minority views are protected. In the House of 
Representatives, whether it is a Republican majority or a Democratic 
majority, as long as they stick together, they can do anything they 
want to and they can ignore the minority. But in the Senate, where it 
takes a supermajority of 60 to get something done, whether there is a 
Republican or Democratic minority, that minority is protected.
  Today, where we have 54 Democrats and 46 Republicans, nothing is 
going to get done unless it is done in a bipartisan consensus way, and 
that is why it is so very important we do not destroy that aspect of 
the uniqueness of the Senate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BLUNT. I thank the Chair for the opportunity to speak, and I wish 
to continue discussing what my good friend from Iowa was talking about.
  There is a reason for the Senate. There are times when it is hard to 
figure out exactly what that reason is, with the lack of activity we 
have seen in the last couple of years, but that has very little to do 
with the rules of the Senate. It has a lot to do with the Senate not 
following its regular order, its regular procedures. In fact, when we 
have done that, whether it was the highway bill or the Federal Aviation 
Act or the farm bill, we have always produced a successful piece of 
legislation.
  The Senate works when we let the Senate work. The Senate works when 
people are allowed to bring differing points of view to the Senate 
floor. Frankly, one of the reasons to be in the Senate is to have the 
ability to not only bring those ideas to the floor but to have a vote 
on those ideas; to let the American people know where we stand and to 
let the people in the States we represent know where we stand. The idea 
the Senate is now afraid of the amendment process is a great obstacle 
to the Senate getting its work done.
  Another obstacle is constantly talking about changing the Senate 
rules. The Senate rules have served the Senate well for a long time and 
served the country well. The Senate rules are what define the Senate in 
giving individual Senators abilities they wouldn't otherwise have. This 
is the only body like it in the world where a bare majority can't do 
whatever it wants to do. If that is the way we want to govern the 
country, we have one of those bodies already. It is called the House of 
Representatives, where the majority absolutely rules, where the Rules 
Committee has nine members representing the majority and four members 
representing the minority.
  I was the whip in the House for a long time--the chief vote counter 
in the House--and I can tell you that nine always beats four. It is not 
just 2 to 1, it is 2 to 1, plus 1. That is a body where the majority 
has incredible capacity to do whatever the majority wants to do. That 
is not the way the Senate is supposed to work.
  We started off this year trying to agree on how to move the Senate 
forward in an agreeable and effective way, and now we are right back, 
every day now, hearing: We are going to have to think about changing 
the rules. When we hear the majority leader talking about changing the 
rules, it usually is not a good indication we will be prepared to get 
anything done.
  The two leaders, when we started this year, agreed on a plan to make 
sure the Senate wouldn't unilaterally

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change the rules; that we would break the rules to change the rules. 
The thing we would have to do to change the rules is to break the 
rules, because the rules, once the Senate is constituted, can't be 
changed by just a majority of Senators. It takes more than that.
  We created two new ways for the majority leader--not the minority 
leader but for the majority leader--to expedite Senate action. We gave 
new powers to the leader. One of these rules changes passed 78 to 16. 
The other one passed 86 to 9. These changes gave the majority ways to 
consider nominations and legislation and going to conference. The 
minority agreed, under certain circumstances, the ability to engage in 
debate could and would be limited.
  But now we are back again having the same discussion. The only way 
the majority leader would be able to get what he apparently wants would 
be to break the rules. There are enough rules being broken, in my view, 
in Washington right now. One of the problems we face is that the 
country, frankly, does not trust their government. When we look across 
the board, from the IRS to what happened in Benghazi, to what the NSA 
has said in answering about the retaining of records, we don't need to 
do yet another thing to convince people there is a reason they should 
not believe what people in the government say.
  Let's look at a few things the majority leader said on the Senate 
floor over the last couple of years. On January of 2011--January 27, to 
be exact--Mr. Reid said:

       I agree that the proper way to change the Senate rules is 
     through the procedures established in those rules, and I will 
     oppose any effort in this Congress or the next to change the 
     Senate rules other than through the regular order.

  That was January of 2011. Mr. McConnell, in January of this year, 
said on the Senate floor--January 24:

       I would confirm with the majority leader that the Senate 
     would not consider other resolutions relating to any standing 
     order or rules in this Congress unless they went through the 
     regular order process?

  That was Senator McConnell's question. In response, Senator Reid 
said:

       That is correct. Any other resolutions related to Senate 
     procedure would be subject to a regular order process, 
     including consideration by the Rules Committee.

  I am on the Rules Committee, and we are not talking about any rules 
changes in the Rules Committee, which Senator Reid said in January of 
this year would have to be part of looking at that.
  Of course, a lot of the discussion is: The nominations are taking too 
long. But these are important jobs, and there is a reason they take so 
long. In particular, judicial nominees serve for the rest of their 
lives. They are going to serve well beyond, in most cases, the 
President who nominates them. So they have taken a long time for quite 
a while.
  I would think the facts are clear the Senate is treating President 
Obama's judicial nominees fairly and, in some ways, even better than 
they treated President Bush's nominees.
  Already in this Congress, the Senate--in this Congress, the one that 
began in January--the Senate has approved 22 of the President's 
lifetime appointments. Twenty-two people on the Federal bench for the 
rest of their lives, that is already happening this year. At a 
comparable point in President Bush's second term the Senate had 
approved only five of his judicial nominees.
  In the last Congress, President Obama had 50 percent more 
confirmations than President Bush; 171 of his nominees were confirmed. 
His predecessor had 119 under similar circumstances, a time when the 
Senate was also dealing with 2 Supreme Court nominees who, by the way, 
also serve for life.
  I think in the first term of President Obama the Senate made the kind 
of progress one would expect the Senate to make on these important 
jobs. In fact, President Obama has had more district court 
confirmations than any President in the previous eight Congresses. One 
would think that would be a pretty good record on the part of the 
Senate doing its job.
  The Constitution says the President nominates but, it says, the 
Senate confirms. In my view, those are equally important jobs. In fact, 
one could argue that the last job, the one that actually puts the judge 
on the bench, is even more important than the first job.
  Overall, the Senate has confirmed 193 lower court judges under 
President Obama and defeated only 2. The Washington Post cited the 
Congressional Research Service conclusion that from nomination to 
confirmation, which is the most relevant indicator, President Obama's 
circuit court nominees were being processed about 100 days quicker than 
those of President Bush. President Bush's nominees took about a year, 
350 days. President Obama's take about 100 days less than that.
  Let's look at the other side of nominations. There is a difference in 
the executive nominations, I believe, because they are only likely to 
serve during the term of the President and not exceed that. I think 
that creates a slightly different standard. The process on these 
nominations has been pretty extraordinary in any view. If anything, the 
Obama administration has had more nominations considered quicker than 
the Bush administration.
  The Secretary of Energy was recently confirmed 97 to 0. The Secretary 
of the Interior was confirmed 87 to 11; the Secretary of the Treasury, 
71 to 26. Those are substantial votes done in a substantial time. The 
commerce committee that I am on just this week voted out three 
nominations the President had made with no dissenting votes to report 
that nomination to the floor.
  The Director of the Office of Management and Budget was confirmed 96 
to 0. The Secretary of State was confirmed 94 to 3, only 7 days after 
the Secretary of State was nominated. Members of the Senate knew the 
Secretary of State pretty well. It was easy to look at that in a quick 
way, but it is pretty hard to imagine a Secretary of State who can be 
confirmed quicker than 7 days after that person was nominated.
  The Administrator for the Centers of Medicare & Medicaid Services was 
confirmed 91 to 7. The Chair of the Securities and Exchange Commission 
was confirmed by a voice vote. Yet in spite of all of that, we are 
being told by the White House and by others that somehow the Senate's 
record on these nominations is worthy of an unprecedented rules change, 
and that rules change would shut out the rights of the minority to 
fully review and debate, particularly, lifetime judicial nominations.
  The very essence of the constitutional obligation of the Senate is to 
look at these nominations and decide whether these people should go 
onto the Federal bench for the rest of their lives.
  I am hopeful that the majority leader will keep his word to the 
Senate and to the American people and ensure that we move onto this 
debate that should happen--didn't happen in January--and instead of 
changing the rules, we do what we are supposed to do and do it in a way 
that meets our obligations as a Senate and our obligations to the 
Constitution. Let's not break the rules to change the rules. Let's get 
on with the important business that is before us rather than going back 
to the business we have dealt with months ago.
  I yield the floor.

                          ____________________