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Mr. McCONNELL. Mr. President, I have listened with great interest to the exchange on the television monitor back in my office and thought I might come down and join you both.
Let me suggest that it could be argued that you are both right. What I believe, I say to my good friend from West Virginia, the majority leader is talking about is what is precedent in the Senate. There is a lot of discussion about ``stare decisis.'' Lawyers use that term to refer to respect for the precedent.
Mr. BYRD. Yes, let the decision stand.
Mr. McCONNELL. The precedent in the Senate for 214 years prior to the last Congress was the judges who came to the floor got an up-or-down vote.
Mr. BYRD. I am not sure about that.
Mr. McCONNELL. Is that not the case, I ask the majority leader----
Mr. BYRD. I am not sure about that history.
Mr. McCONNELL. --that when nominees came to the floor who enjoyed majority support in the Senate, they got an up-or-down vote? Has that not been what the leader argues for? And to the substantial credit of our friend from West Virginia, this whole controversy was largely defused last summer, was it not?
Mr. BYRD. Yes.
Mr. McCONNELL. We have not been filibustering judges during this first session of Congress, and we have been giving judges an up-or-down vote as a direct result of the Senate's collective decision to sort of step back from the brink and honor the traditions of the Senate. Has that not been the case, I ask my friend, the majority leader?
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Mr. McCONNELL. Mr. President, would the majority leader not agree with the Senator from Kentucky that the Paez and Berzon nominations to which our good friend from West Virginia refers--in both instances, you were not the leader at the time; you were a Member but not the leader. The majority leader and the leader of the other side jointly filed cloture, not for the purpose of defeating the nomination but for the purpose of guaranteeing that the nominees got an up-or-down vote.
There were one or more Senators, I expect, on our side of the aisle who did not want those nominees to get an up-or-down vote. So in that particular instance, Senator Daschle and Senator Lott used the device of cloture, not to kill the nomination but to advance the nomination, move it to final passage.
I say to my friend, the majority leader, it is largely irrelevant how he may have voted on cloture as a rank-and-file member of the Republican Conference on that particular day. The leader of our party at the time and the other party at the time were honoring the principle to which the leader has been speaking, guaranteeing that those nominees got an up-or-down vote by the only device they could, by filing cloture and moving forward.
So that is entirely consistent with the point my good friend, the majority leader, has been making here on floor, and the end result was that those two nominees--very controversial on this side--ended up getting an up-or-down vote and being confirmed by the Senate, and they are now called Judge Paez and Judge Berzon.