Nomination of Pamela Harris to be United States Circuit Judge for the Fourth Circuit

Floor Speech

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Mr. HATCH. Madam President, I rise to speak about a subject that troubles me greatly: the state of affairs in this body, the U.S. Senate.

I spoke on the floor last week about how the Senate has historically lived up to its unique and essential role in our constitutional order. Today, I am compelled to offer an account of this institution as it operates today. I believe this message is important both for the American people, whom we all serve, and for my colleagues in this body.

When I spoke on the floor last week, I noted the widespread perception that the Senate has fallen into dysfunction. The pervasiveness of this view is striking among the public, in the media, and even among current and former Senators of all political and ideological stripes. And it is true. The Senate is in worse shape now than ever before in my 38 years of service here.

We must properly locate the source of the problem if we are to have any hope of correcting it. Political discourse about the state of the Senate is so often dominated by those who call for the Senate to be more productive, more efficient. To these critics, the Senate's rules are anachronisms, historical accidents, relics of a bygone era that must be swept away for the Senate to race through more legislation and nominations, not the least of which we just heard Senator Grassley speak about.

As I laid out on the floor last week, the purpose of the Senate is not to duplicate the work of the majoritarian House of Representatives. Our work is of a different sort. The Senate was designed to refine the unbridled passions of popular will, to apply considered judgment to produce thoughtful legislation aimed at the common good.

Structuring a body of such a unique character occupied much of the Framers' time during that hot summer in Philadelphia in 1787. Beyond the Senate's constitutional architecture, the body's rules, traditions, and precedents have developed over more than two centuries, not as flukes but as means of reinforcing and facilitating its purpose.

During the past 227 years, the right to debate and the right to amend have become the twin pillars that upheld the Senate's lofty purpose as a body of considered judgment. As Senator Robert C. Byrd wisely observed, ``As long as the Senate retains the power to amend and the power of unlimited debate, the liberties of the people will remain secure.''

Many of the greatest legislative achievements of this body during my 38 years as a Senator were only possible because of our open methods of deliberation and amendment. I think of my many partnerships with the late Ted Kennedy, and others--Senator Harkin, Senator Dodd, Henry Waxman. I can name quite a few. Senator Kennedy and I fought like brothers but became the best of friends. This unique environment of the Senate allowed us to find areas of mutual interest and ultimate agreement for the public good. Last week I named just a few of these landmark accomplishments: the 1981 budget, the blueprint of how we turned the economy around in the Reagan years; the 1997 budget deal in which we cut taxes, balanced the budget for the first time in decades, and created the State Children's Health Insurance Program; the Antiterrorism and Effective Death Penalty Act, a vital criminal law that curtailed the abuse of our courts; and the Religious Freedom Restoration Act, a landmark piece of legislation sadly attacked by many of my Democratic colleagues to gin up a phantom war on women to save their lagging electoral fortunes, but in reality a bipartisan agreement that Teddy Kennedy and I championed and that passed almost unanimously. These are just a handful of our legislative achievements throughout the past four decades.

Like so many others, the roots of these successes lay in the Senate's characteristic deliberation, including unlimited debate and an open amendment process. Guaranteeing each individual Senator the full right of participation enhanced the quality of the final product and crowdsourcing good ideas rather than limiting input to a small gathering in backroom Capitol offices.

Giving each Senator the opportunity to have his ideas discussed and debated gave us all confidence that the final product represented the best, most considered judgment of the whole body, encouraging Senators to support sometimes imperfect but decisively beneficial legislation. Allowing modifications to the initial iteration of a bill--while often frustrating for partisans and purists--often created a broad base of support for lasting reforms. Emphasizing an open and inclusive process encouraged partnerships even among ideological opposites, such as Ted Kennedy and myself, to find areas of mutual agreement and reach broad consensus. And respecting the limits of the majority party's power established confidence that when the positions of the parties switched, the rights of the minority would remain protected.

The atmosphere facilitated by our longstanding rules and traditions represents the Senate at its best. The Senate, functioning as it should, and so often has over much of my time here, demonstrates that these procedures and traditions are not flukes of history meant to be swept away as soon as they are politically inconvenient or frustrate a majority party. Rather, they are vital to the Senate's ability to serve the American people.

This is why the first Adlai Stevenson in his farewell address to the Senate as Vice President warned:

It must not be forgotten that the rules governing this body are founded deep in human experience; that they are the result of centuries of tireless effort in legislative halls, to conserve, to render stable and secure, the rights and liberties which have been achieved by conflict. By its rules the Senate wisely fixes the limits to its own power. Of those who clamor against the Senate, and its methods of procedure, it may be truly said: They know not what they do.

Sadly, these critical and defining practices are under attack. Some who once defended the right to amend when in the minority have acted consistently to deny that right now that they are in the majority.

On February 28, 2006, the senior Senator from Nevada, then serving as minority leader, condemned a procedural maneuver that denied the minority the opportunity to offer amendments. He stated unequivocally: This is a very bad practice. It runs against the basic nature of the Senate.

That maneuver, referred to as filling the amendment tree, allows the majority leader to use his right to be recognized before any other Members as a means to block any and all other amendments by filling all amendment slots with his own amendments and thus prohibiting anybody else from having any rights of amendment.

Less than a year after condemning the maneuver of filling the amendment tree as a very bad practice, inconsistent with the very nature of the Senate, the senior Senator from Nevada became the majority leader. Rather than take his own wise counsel from months before, he instead began a consistent pattern of procedural abuse by using that very same destructive practice. The majority leader employed that tactic 21 times during the 110th Congress and 23 times during the 111th Congress. As the 112th Congress opened, the majority leader pledged to use this tactic only ``infrequently,'' but went on to employ it a record 26 times in the following 2 years.

The Congressional Research Service confirms that the current majority leader has used his position to deny amendments to the minority more than twice as often as the previous six majority leaders combined. He has used his position to deny amendments to the minority more than twice as often as the previous six majority leaders combined.

Six Senators led this body as majority leader between the 99th and 109th Congresses, three Republicans and three Democrats. I served here under all of them. Together they denied amendments to the minority 40 times in those 22 years. No individual leader used this tactic more than 15 times. As of this month, in less than 8 years, the current majority leader has denied amendments to the minority a staggering 87 times.

The right to amend is indeed a part of the basic nature of the Senate, a defining feature of this body that allows us to conduct legislative business differently than in the majoritarian House. The right to amend allows different voices to be heard, different issues to be raised, and different decisions to be made. Denying that right changes the basic nature of the Senate and prefers power over liberty.

Hardly a day goes by without the current majority confirming my point. Earlier this month the majority leader discussed the possibility of allowing amendments to a bill. The minority, he said, want amendments ``because they want to kill the bill.'' But he pledged to consider amendments that, in his view, would ``lead to passage of the bill.''

In other words, the minority has only those opportunities to participate in the legislative process that the majority leader says they do. He was right back in 2006: This is a very bad practice, and he is only making it worse.

Consider another way of looking at this problem. Recently, almost a year went by during which the majority leader allowed votes on only 11 Republican amendments. Think about that--only 11 amendments in nearly a year. All 45 Republican Senators together got fewer votes on amendments than, for example, one House Democrat, Congresswoman Sheila Jackson Lee. Indeed, the Republican House majority allowed votes on 174 Democratic amendments during the same period that the majority leader here allowed votes on only 11 Republican amendments. There are Senators who have been here 6 years and have never had an amendment of theirs voted upon--that is pathetic--on both sides.

The other defining feature of the Senate, the right to debate, is also fast becoming a thing of the past. This practice has been a central characteristic of the Senate for more than 200 years and, like the right to amend, allows voices to be part of the legislative process who would otherwise be shut out.

When I was first elected, this body included only 38 of us Republicans, even fewer than the threshold in our Senate rules to prevent cutting off debate. I know from long experience that the right to debate can often annoy the majority by empowering the minority. But fulsome debate and thorough deliberation far more than expediency or efficiency is essential to the nature of the Senate. Both sides have been annoyed from time to time, but nothing like this.

Senate practice and rules have, for more than two centuries, required a supermajority of Senators to end debate before the Senate can vote on a pending legislative matter or a nomination. The current majority leader has compromised the minority's ability to debate in both areas.

Under the rule adopted in 1917, ending debate begins with a motion to invoke cloture to end debate. The current majority leader often files a cloture motion on a bill at the very same time he brings it up for consideration. He has used this tactic far more often than previous majority leaders, and its effect is not to end debate on legislation but to prevent it altogether. Whenever those of us in the minority have resisted his demand that we end debate as soon as we begin consideration, the majority leader wrongly labels it a filibuster.

Last November the majority leader claimed there had been 168 filibusters on executive and judicial nominations. The majority leader used this supposedly unprecedented level of confirmation obstruction to take the drastic step of abolishing extended debate altogether using the so-called nuclear option. But the majority leader was counting cloture motions, not filibusters. A cloture motion is simply a request to end debate. A filibuster occurs when the debate cannot be ended because the cloture vote fails. In fact, most of those were not filibusters; they were falsely called that. There have been only 14 filibusters of President Obama's nominees, and that practice was on a decline. The Senate, in fact, confirmed 98 percent of President Obama's nominees. There was never a problem there.

The majority leader's current opposition to filibustering Democratic nominees is simply impossible to reconcile with the 26 times he voted to filibuster Republican nominees.

But even as destructive as the nuclear option has been, some of the less visible changes to the management of this Chamber have proven just as damaging to the functioning of the Senate. Take the committee process--the primary forum for both deliberation and amendment. The majority leader has set a record for completely bypassing the committee process, bringing most of the bills we have considered lately up in essentially final form, shielding them from deliberation and amendment on both the floor and in committee. In each Congress since he became majority leader, the senior Senator from Nevada has set a record for bypassing the committee process. In fact, with 6 months remaining in this Congress, he has already used this tactic more in one Congress than any other majority leader.

What are these matters the majority leader brings to the floor? An unschooled observer might imagine that after the negotiation of the Ryan-Murray budget agreement--an imperfect bargain but a breakthrough for cooperation nonetheless--we would join the House in pursuing the appropriations process through the regular order; that we would use the opportunity to exert our influence as legislators on how our constituents' hard-earned dollars are spent. Instead, the majority leader brings up bills that have no chance of becoming law in order to score political points to reinforce disingenuous narratives about a supposed war on women or so-called economic patriotism.

The current majority leader's abuse of the Senate amounts to a national travesty. He has broken down so much of what makes this institution serve the Nation's interests in order to advance his own party's temporary political gain. Such a betrayal of trust is nothing short of tragic.

To my 56 colleagues who have never served in the Senate when this body lived up to its potential greatness, we can indeed restore the Senate's rightful place in our constitutional order. This body can again be a source of great legislative achievement borne out of thoughtful deliberation and inclusive consideration. But this majority leader's slash-and-burn tactics are not the path to achieve these worthy ends. They are a dead end, leading only to the destruction of this institution that has served our Nation so well for so long. Instead, restoring the Senate will require us all--Republicans and Democrats alike--to stand for the institution's rules, traditions, precedents, and for our individual prerogatives as Senators.

The majority leader is my friend, but I have to say these criticisms are valid, they are honorable, and it is about time that people on both sides of the floor start to realize we can't keep going this way and still call this the greatest deliberative body in the world. It is pathetic. I think people on both sides know it is pathetic, and it is time for it to stop.

Madam President, I suggest the absence of a quorum.

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