[Congressional Record (Bound Edition), Volume 160 (2014), Part 3]
[Senate]
[Pages 3657-3659]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         EXECUTIVE NOMINATIONS

  Mr. GRASSLEY. Several weeks ago, February 12, to be exact, as 
Washington, DC, was braced for a snowstorm and the Senate rushed to 
finish its business before the Presidents' Day recess, the senior 
Senator from Arkansas came to the floor to offer unanimous consent to 
confirm a district court judge for his State. Before he made the 
request, I spoke with that Senator who, to his credit, was one of only 
three Democrats to vote against the so-called nuclear option in 
November.
  Although I was sympathetic to his desire to see his home State judge 
confirmed, I objected to his request to bypass the procedure the 
majority adopted in November, including recorded cloture and 
confirmation votes.
  I did so based on principle. I did so because after 52 Democrats 
voted to strip us Republicans in the minority of our rights, the very 
least we could do is to ask the majority to utilize the procedure they 
voted to adopt. After all, the simple fact is that the minority can no 
longer stop nominees. That is the result of the nuclear option, and 
that was, of course, the whole point of what the majority did in 
November.
  So the Senator from Arkansas offered his unanimous consent request, 
and I withheld my consent. We had our exchange on the floor, but we did 
so courteously, and that is what Senators should do. Later that evening 
the majority leader came to the floor and made another unanimous 
consent. Senator Cornyn objected for the same reason I had objected. 
Thereafter, the majority leader exercised the power that he has--he 
alone possesses it--to move these judges and filed cloture on four 
district court nominees. That set up several votes for last Monday 
evening.
  That evening, during our side's hour of debate time--and that is all 
we have anymore for Circuit judges; we have 1 hour of debate time on 
each side. That evening I spoke on the current state of the Senate with 
respect to the legislative process. I spoke about how our Founding 
Fathers intended the Senate to operate. I spoke on how the Senate used 
to operate, how it should operate and, sadly, how it does the opposite. 
I spoke about how the majority leader routinely files cloture on bills 
before debate has even begun. I spoke about how in today's Senate, in 
what is supposed to be the world's greatest deliberative body, the 
Senators from great States all over this Nation are shut out of the 
process of legislating and sometimes even debating.
  As our side's hour of debate time neared its end, the distinguished 
chairman of our committee asked if I would yield him a few minutes of 
our time. I, of course, agreed to extend him that courtesy. I extended 
him the courtesy even though I knew he would use that time to argue 
against everything I just said. I extended him the courtesy because I 
know he would do the same for me, and, as a matter of fact, he has done 
exactly that same thing for me. That is the Senate. We are courteous to 
each other, even when we disagree.
  As I said, that was Monday night--eight days ago. On Tuesday morning, 
we had a series of stacked votes related to those district court 
nominees. We had several cloture votes as well as confirmation votes. I 
voted against cloture, along with many of my colleagues. I don't 
presume to speak for my colleagues, but I voted against cloture to 
register my objection to a process arrived at via brute force--in other 
words, by the action of the nuclear option.
  But the majority leader wasn't content to simply use the procedures 
he led his caucus to adopt last November when the nuclear option was 
adopted--when the minority rights on judges were taken away. He wanted 
voice votes rather than recorded votes on those lifetime appointments--
and I emphasize lifetime appointments--so they deserve serious 
consideration. At that point, I objected, and I exercised the

[[Page 3658]]

right of a Senator to ask for a rollcall vote of the yeas and nays.
  I supported each of the nominees on final confirmation. Some of my 
colleagues opposed them. But even if the votes had been unanimous, the 
right to demand a recorded vote is one of the most basic and 
fundamental rights of any Senator. There is absolutely nothing wrong 
with exercising that right, especially when it comes to approving 
lifetime appointments to the courts.
  Before we had that recorded vote, I took the opportunity to remind my 
colleagues of how well this President is doing with respect to getting 
the judges he nominates confirmed by the Senate. Specifically, thus far 
in this Congress, we have confirmed 50 of President Obama's judicial 
nominees. By way of comparison, at this point in President Bush's 
second term, we had only confirmed 21 judicial nominees. That is 50 for 
President Obama and 21 for President Bush. Those numbers compare both 
district and circuit nominations. That is a benchmark both sides 
typically use.
  So why are Republicans blamed by Democrats for not approving judges, 
especially when over the course of 5 years and 2 months now we have 
approved 223 judges and only disapproved two. Those are basic, 
unassailable facts.
  In response, the majority leader described our request for recorded 
votes, as I was speaking about eight days ago, as ``a waste of taxpayer 
time.'' Then he concluded his brief remarks by saying this: ``I would 
suggest to my friend the senior Senator from Iowa that he not believe 
his own words because they are simply not true.''
  That was on Tuesday, a week ago. Two days later, on Thursday evening, 
the majority leader came to the floor and proffered a unanimous consent 
request for several district court judges. Senator Moran was on the 
floor at the time and objected for our side. Thereafter, the majority 
leader filed cloture on four district court judges and the nominee to 
lead the Civil Rights Division of the Department of Justice. That is a 
right the majority leader has under our rules.
  A few minutes later the majority leader returned to the floor so he 
could, as he described, ``say a few words about the man who does all 
the objecting around here--or a lot of the objecting.''
  He then proceeded to quote extensively from a speech I delivered in 
2005. He then accused me of violating senatorial courtesy during floor 
consideration of the immigration bill because I objected to 
consideration of amendments approved by Democrats, without assurances 
that we would vote on amendments Members on my side thought we had a 
right to offer, as any Senator should have a right to offer amendments.
  Even if some of the amendments the Democrats wanted had bipartisan 
support, I was the Senator standing up and defending the right of our 
Members to offer amendments--even controversial amendments. To be 
clear, I was prepared to vote on any Democratic amendment provided the 
Republican amendments were not restricted.
  The majority leader then concluded his highly discourteous remarks by 
saying this:

       The senior Senator from Iowa is talking out of both sides 
     of his mouth, and the people of Iowa should check this out. 
     They should see what he says and what he does.

  Given how inappropriate these remarks were and that they roughly 
coincided with several other inappropriate comments the majority leader 
made last week, I feel compelled to respond, and, of course, that is 
what I am doing.
  Let me start by reviewing briefly how we arrived where we are today. 
As I said, the majority leader quoted from a speech I delivered in 
2005. For the benefit of my colleagues who weren't here at the time, 
that was back when the Democrats were indiscriminately filibustering a 
host of President Bush's highly qualified nominees for the circuit 
courts. Make no mistake. The Democrats were utilizing the filibuster on 
judges at that time to an extent never witnessed before in our Nation's 
history.
  During this time, they were filibustering 10 different circuit court 
nominees. So, as I said, the majority leader quoted from a speech I 
delivered during the debate of May 23, 2005. What he failed to mention 
is that six days earlier, on May 17, 2005, he said this on the Senate 
floor regarding the nuclear option:

       It appears that the Majority Leader--

  Referring to then majority leader Senator Frist--

     cannot accept any solution which does not guarantee all 
     current and future judicial nominees an up-or-down vote. That 
     result is unacceptable to me because it is inconsistent with 
     the constitutional checks and balances. It would essentially 
     eliminate the role of the Senate minority in confirming 
     judicial nominations and turn the Senate into a rubberstamp 
     for the President's choices.

  I am not going to relitigate that fight today, except to say this. At 
the time, Republicans, myself among them, were arguing that those 
nominees should be afforded an up-or-down vote. But as the quotation I 
just read demonstrates, Democrats refused. At the end of the day, our 
side lost that debate. We didn't believe judicial nominees should be 
subjected to a 60-vote threshold nor did we believe we should play by 
two sets of rules. So when the roles were reversed and there was a 
Democrat in the White House, Republicans utilized the tool as the 
Democrats did. The only difference was that we used it much more 
sparingly. As I said, we have approved 223 Obama nominees to the courts 
and only disapproved two.
  The Democrats, of course, didn't like being treated to the tactics 
they pioneered, so they began to threaten to utilize the so-called 
nuclear option.
  A lot of negotiations ensued between our side and the majority 
leader. That is the way the Senate most often gets things done--
negotiating to a consensus. Again, I am not going to review every 
detail, but as any Member of this body can tell us, the result of those 
negotiations was this. The minority--this time the Republicans--
relinquished certain rights regarding nominations. We did it by 
negotiation.
  For instance, district court nominations used to be subject to 30 
hours of debate. They are now subject to only 2 hours. In exchange for 
relinquishing those rights, the majority leader of the Senate gave his 
word that he would oppose any effort to use the nuclear option.
  On January 27, 2011, the majority leader said this on the Senate 
floor: ``I will oppose any effort in this Congress or the next to 
change the Senate rules other than through regular order.''
  Notwithstanding that promise, at the beginning of the next Congress, 
we were, once again, on the receiving end of threats regarding the 
nuclear option. Once again, on January 24, 2013, after lots of 
negotiations, the majority leader again gave his commitment. Here is 
what he said on the floor of this Chamber: ``Any other resolutions 
related to Senate procedure would be subject to a regular order 
process, including consideration by the Rules Committee.''
  That commitment mattered. It mattered to me, and it mattered to my 
colleagues. We as the minority relinquished certain rights. In exchange 
for extinguishing those rights, we received a commitment from the 
majority leader of the Senate.
  Remember, I say to my colleagues, please: This is the Senate. Not 
only are we courteous to one another, but we keep our word.
  Ten months after making that commitment, on November 21, 2013, the 
majority leader and 51 other Democrats voted to invoke the nuclear 
option. They chose to adopt a new set of procedures for confirming 
judges.
  So that is how we got to where we are today. Yet three months later, 
when the minority has the audacity to insist that the majority utilize 
the procedures they voted to adopt, the majority leader comes to the 
floor to level an ad hominem attack.
  Amazingly, given the commitments he made at the beginning of the last 
Congress, he accuses me of speaking out of both sides of my mouth. The 
fact of the matter is there is absolutely nothing wrong with demanding 
debate time and rollcall votes, especially on

[[Page 3659]]

lifetime appointments to the judiciary, and especially after the 
majority chose to adopt these very procedures just last November. That 
is not a ``waste of taxpayer time,'' as the majority leader called it. 
It is representative government. While I am on the floor of the Senate 
and while I am on the subject of floor procedure, let me say this about 
the legislative process we have been following on the floor. I spoke at 
length on this subject a week ago yesterday, just as I have on several 
other occasions. I have been highly critical of the process we follow 
these days on the floor. But I have always tried to avoid making my 
criticisms personal. I have always tried to be courteous. But there is 
no getting around this fact. It is nothing short of a travesty that 
great Senators from all over the Nation must go to the majority leader 
to ask permission to offer amendments. Proud Senators from proud 
States, Republican Senators and Democratic Senators, conservative 
Senators, liberal Senators, northerners and southerners, appropriators 
and authorizers, hawks and doves, all of these Senators have been 
reduced to this. They are forced to come before one individual on 
bended knee to ask permission--permission--to offer an amendment. That 
is not as it should be in the world's greatest deliberative body--the 
Senate.
  So am I highly critical of the legislative process we undergo on the 
floor? Absolutely, I am. But I didn't criticize the majority leader in 
a personal or discourteous way. I didn't accuse him of ``talking out of 
both sides of his mouth,'' as he did of this Senator. I wasn't 
attacking him personally; I was defending the rights of 99 other 
Senators as well as my own rights as a Senator.
  What exactly is the majority leader afraid of, anyway? Taking a few 
hard votes? We are paid to take hard votes. We are sent here to 
exercise our best judgment on behalf of our constituents. That is how 
our Republic is designed.
  It does not have to be that way. Consider how amendments are handled 
in the Judiciary committee, as an example--something that ought to be 
followed here in the U.S. Senate.
  Our chairman--I should say the senior Senator of this body, the 
President pro tempore, Senator Leahy--our chairman does not tell us in 
the minority--Republicans--or even the Democrats what we are allowed to 
offer; nor does he tell us how many amendments we are allowed to offer.
  He controls the agenda, as you would expect a chairman to do. But we 
get to offer amendments. As a result, every single Senator of our 
committee--whether they like it or not--contributes to the process.
  The chairman controls the agenda. The minority offers amendments. And 
the majority has to vote on those amendments. That happens to be the 
process.
  That is what happens when you have a chairman who respects the rights 
of U.S. Senators. There is absolutely no reason we could not do exactly 
that same thing right here on the floor of the U.S. Senate.
  Let me mention one other thing about what the majority leader said 
the other night because I found it particularly offensive.
  Immediately after accusing me of ``talking out of both sides of my 
mouth,'' the majority leader suggested that the people of Iowa, my 
constituents, should pay attention to what I say and what I do. Well, 
they do.
  But let me relate something to my colleagues about how I keep track, 
keep in touch with Iowans. The people of Iowa know who they elected to 
the Senate. They know that ever since I was first sworn in in this body 
in January 1981, I have fought all day, every day, to represent them.
  I know my constituents. They know me. I go to constituent meetings in 
every county--every one of 99 counties--every year. Multiply that 99 by 
32 years, and you get a fairly large number. I have been in 25 counties 
so far this year. So I talk to my constituents. I read their mail. I 
know, for instance, how hard ObamaCare has been on families in my 
State.
  So I find it personally offensive for the majority leader to come to 
the floor, as he did last Wednesday, and accuse Americans, including my 
constituents, of telling lies when they share their stories about how 
ObamaCare is impacting them.
  Last Thursday evening the majority leader came to the floor so he 
could, as he described it, ``say a few words about the man who does all 
the objecting around here.''
  Well, Mr. President, do I object? You bet I do. So do the rest of my 
committee members on the Judiciary Committee when it comes to things of 
the Judiciary Committee; so does the rest of our caucus.
  We object to the authoritarian way this Senate is being run. We 
object to being shut out of the legislative process. We object to 
dismissing constituent stories of ObamaCare as lies. We object to 
taking to the floor of the U.S. Senate to attack fellow citizens as 
``un-American'' because they have the audacity to exercise First 
Amendment rights. And, yes, we object to the discourteous ad hominem 
attacks on Senate colleagues because they choose to exercise their 
right to demand rollcall votes on lifetime appointments.
  It should stop. The Senate should return to being the greatest 
deliberative body in the world.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. TOOMEY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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