Filibuster Agreement

FILIBUSTER AGREEMENT

Mr. DeWINE. Mr. President, we have just seen a major accomplishment in the Senate in the last several weeks: the confirmation of five nominees to serve on the Federal bench. These confirmations were achieved after a historic agreement was reached in the Senate, an agreement that allowed us to proceed.

We have seen five individuals confirmed by the Senate--Priscilla Owen, Janice Rogers Brown, William Pryor, David McKeague, and Richard Griffin. The majority leader has indicated that Thomas Griffith will be on the Senate floor shortly and we will take up that nomination.

This represents a major accomplishment and a major change in the way the Senate has been doing business. This shows bipartisanship. This is a step forward. It is progress.

As one of the 14 Senators involved in negotiating the recent compromise agreement on the use of filibusters to block judicial nominations, I am very pleased to see this progress and to see what has happened since this agreement was reached. As everyone knows, of these five nominations, several of them have been held up for years. Two I have a particular interest in come from the Sixth Circuit from the States of Ohio, Michigan, Kentucky, and Tennessee. These two come from the State of Michigan but are part of the Sixth Circuit which has had vacancies for many years. Now we have these two positions filled.

I am pleased to see this progress we have been making the last 2 weeks on nominations but also the progress we have been making in the Senate on other matters, as well.

I think it is good for the country.

The agreement that we entered into not only cleared the field for the President's judicial nominations, some of whom, as I have said, have been waiting for over 4 years, but by avoiding confrontation it also allowed the people's agenda to move forward. And that is a very important matter.

Already, since the agreement was reached, the Senate Judiciary Committee has passed out of the committee the asbestos bill, and the Senate Energy and Natural Resources Committee has passed the Energy bill.

Now, as someone who was in the room for the negotiations of the filibuster agreement, I would like to take just a few moments to talk about what happened, why I was involved, and where we go from here. Candidly, I became involved in the negotiations because I was not satisfied with what I had seen in the Senate over the last few years. Everyone got in the negotiation, I am sure, for different reasons. I am just speaking for myself. I believed that judges were not getting voted on in the Senate, that the circuit court judges were not being acted upon when they should have been, that many of them were being denied an up-or-down vote. I believed the filibuster was being used in excess to block their nominations. I felt that the status quo was simply not acceptable, that we could no longer continue down that path.

Well, what was the solution? How were we going to get judges voted on in the Senate? The status quo abuse of the filibuster, which I felt clearly was an abuse of the filibuster, was not acceptable to me. I was prepared to take action to deal with that. Yet I felt that, in the best interests of the Senate and the Nation, it was really not in the best interests of the Nation or the Senate to totally change the rules and totally eliminate the filibuster, if we could avoid that. I felt what we needed basically was a resolution to this crisis, a new option or alternative that could restore the Senate to where it was when I entered the Senate a decade ago. That was a Senate where the possibility of a filibuster for judicial nominations was there but hardly ever used.

I believe that is exactly what we were able to achieve with the agreement.

During our negotiations, we agreed that a filibuster for a judge should not be used unless under extraordinary circumstances. Furthermore, we made sure the agreement included a provision that if the terms of the agreement were violated, and a judge was filibustered in circumstances that an individual Member considered not to be extraordinary--in other words, if Mike DeWine or any Member considered that another Member was filibustering a judge under a circumstance that was not extraordinary, that I or any Member had the right to pull out of that agreement and to go back and say: I am going to use the constitutional option to change the practice, the precedent of the Senate.

That was my right. I insisted on that when I entered the negotiations. I felt that was important and that was the only way I could be a part of the negotiations.

So let me make that very clear. The constitutional option was on the table, and it does remain on the table today. There was never any question in my mind about that. In fact, let me repeat exactly what I said at the press conference that the group held on May 23, right after we had reached our agreement. This is what I said that evening at that press conference when everyone was there, at least 12 of the 14 people who had reached the agreement. This is what I said. I quote myself:

This agreement is based on good faith--good faith among people who trust each other. And, it's our complete expectation that it will work. Senators have agreed that they will not filibuster except in extraordinary circumstances. We believe that will, in fact, work. Some of you who are looking at the language may wonder what some of the clauses mean. The understanding is--and we don't think this will happen--but if an individual Senator believes in the future that a filibuster is taking place under something that's not extraordinary circumstances, we, of course, reserve the right to do what we could have done tomorrow, which is to cast a yes vote for the constitutional option. I was prepared to do that tomorrow if we could not reach an agreement.

Mr. President, let me also quote from the May 30, Washington Post article by Dan Balz. He wrote the following about the agreement:

[Senator] DeWine, Senator Lindsey Graham have disputed the assertion ..... that the nuclear option is off the table. DeWine said he explicitly raised the issue just before the group announced the deal.

Balz then quotes me:

I said at the end, ``Make sure I understand this now, that ..... if any member of the group thinks the judge is filibustered under circumstances that are not extraordinary, that member has the right to vote at any time for the constitutional option.'' Everyone in the room understood that.

Now, the article goes on to say--again, Dan Balz's article in the Washington Post--

Senator Mark Pryor, [a Democrat and] another member of the group [of 14], concurred, saying that while he hopes the nuclear option is gone for the duration of the 109th Congress, circumstances could bring it back.

Quoting Senator Pryor:

I really think Senator DeWine and Senator Graham have it right.

Mr. President, Members of the Senate, Senate Majority Leader Frist also agrees with this assessment. He said, in this May 30 article by Dan Balz:

The nuclear option remains on the table. It remains an option. I will not hesitate to use it, if necessary.

And later, Senator Frist was quoted in the June 5 New York Times from his comments in a speech at Harvard University, as follows. This is Senator Frist:

The short-term evaluations, I believe, will prove to be shortsighted and wrong after we get judge after judge after judge after judge through, plus at least one Supreme Court nominee and an energy bill ..... and we will get Bolton.

Mr. President, Members of the Senate, as the recent judicial confirmation votes in the Senate demonstrate, the majority leader is right. We are getting things done. We are getting things done because this agreement was negotiated in good faith by good people who want to get things done, who want to proceed step by step. It was negotiated in good faith by Members working together in the best interests of this Senate and of our Nation. It is a good agreement, one that has enabled us in the Senate to get back to doing the business of the people, for the people. That is what the American people expect, and it certainly is what the American people deserve.

We have made progress. We have been able to confirm judges and bring to the floor of this Senate for up-or-down votes three judges who have been held up for years and two other judges in a circuit, the Sixth Circuit, in Ohio and three other States, that has suffered from a lack of judges on the Sixth Circuit for years, with many vacancies. Today, we filled two of those vacancies. That makes a difference. We are making progress.

I am not arrogant enough to come to the floor today and say that everything is going to work out perfectly. I don't know that it will. I don't have a crystal ball. I just know that we have come a ways. We have taken some steps. We have made some progress. I believe we can rely on the good faith of Members to try to continue to work together, continue to make progress, and continue to try to exercise good faith.

We have set a bar now, a standard. Seven Members of the Senate on each side have said they will not filibuster except under extraordinary circumstances. That is something that had not been set before. That is the bar. No, it is not specifically defined. I understand that. But at least there is a bar. It is an understanding. That is progress. It is a recognition that the filibuster is not something just to be used; it is something to be used only in very rare cases. You have to use it after you think long and hard about it. It is the recognition of 14 people that they will only use that filibuster after thinking long and hard. That is progress.

What we have seen with these five judges is progress. So we celebrate tonight progress, not total victory. You are never done in the Senate. We are always trying to move forward. But at least we should stop for a moment tonight and say: We have made progress. We have come this far. We know we have a ways to go, but here we are, at least.

I yield the floor.

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