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Transportation Equity Act: A Legacy for Users

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Date:
Location: Washington, DC


TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS

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Mr. McCONNELL. Mr. President, let me first join in the compliments that have been expressed toward the Democratic leader. He is new to his position. This new precedent, set in the Senate over the last Congress, in which we routinely saw filibustering for the purpose of defeating circuit judges, was not something introduced under Senator Reid's majority leadership.

We have had numerous conversations. I have had conversations with Senator Reid. He has had a number of conversations with the majority leader about how we might be able to get the Senate back to the way it operated for 214 years quite comfortably.

So far, a compromise has not been achieved. But I compliment the Democratic leader for his willingness to discuss the issue and his understanding that where the Senate is today is simply unacceptable.

So let's talk just for a moment about what is not in dispute. What is not in dispute is that for 214 years the filibuster was not used to kill a nomination for the judiciary when a majority of the Members of the Senate were for that nominee. When a majority of the Members of this body have been for a nominee, the filibuster has never been used to defeat a nominee in the history of the country.

It is true, we have had a few cloture votes. My good friend from Nevada, the Democratic leader, mentioned two that I think are illustrative of how the Senate should operate. Toward the end of the Clinton years, we had two nominations before this body, Paez and Berzon, both of whom were quite controversial and quite far to the left, for the Ninth Circuit, which some would argue did not need to be pushed any further to the left.

Senator Lott was the majority leader then. Senator Daschle was the Democratic leader. There were people on this side of the aisle who did not want to see either of those nominees go forward and were prepared to filibuster those nominees for the purpose of defeating them. So our leader had to say to people on our side of the aisle: That is a bad idea. He joined with Senator Daschle and filed cloture not for the purpose of defeating the two nominations but for the purpose of advancing them because, you see, there was a core of Republicans on this side of the aisle prepared to filibuster for the purpose of defeating those nominations.

Responsible leadership on both sides conspired, filed cloture, and cloture was invoked. I was an example of somebody who was not keen on either of those nominees. I voted for cloture because I believed then, and believe now, that judges are entitled to an up-or-down vote here in the Senate, that any President is entitled to that courtesy. So cloture was invoked as a result of the leadership of Senator Daschle and Senator Lott. We had the votes on the nominees. They both were confirmed--not with my vote but confirmed.

That is the way the Senate ought to operate when there are some Members on each side of the aisle who would go so far as to deny a judge an up-or-down vote. That was the status quo until the last Congress, when, for the first time in the history of the Senate, the filibuster was used for the purpose of defeating a nominee, even when the nominee had a majority of support in the Senate. So there have been no filibusters for the purpose of killing nominees until the last Congress.

Second, there is a lot of discussion about polls, particularly the unbelievable poll on the front page of the Washington Post today which might give some comfort to those who think filibustering judges for the purpose of defeating them is a good idea until you read the way the question was asked. The way the question was asked was almost guaranteed to get the answer.

A more appropriate way to ask the question was the way it was asked in a recent survey by Voter Consumer Research. In that survey, 81 percent of those tested agreed with the idea that ``even if they disagree with a judge, Senate Democrats should at least allow the President's nomination to be voted on,'' and only 18 percent disagreed with that, an unbiased way of stating the question. Even if you disagree with the nominee, should the nominee get an up-or-down vote: 81 percent yes; 18 percent no. That is where the American people are on this issue.

With regard to the President's involvement, the President has not been involved in this, but the Vice President happens to be the President of the Senate. He is, because of his duties as President of the Senate, going to be called upon at some point, should we have to go so far as to exercise the Byrd option or constitutional option--and let me make the point that the constitutional option is simply a precedent interpreting a rule of the Senate. Senator Byrd did this not on one occasion, not on two occasions or three occasions, but on four occasions during the time that he was leader, interpreted the rules by a simple majority of the Senate. It has been done before and the Byrd option, of course, could be done again.

Let me say I think our good friends on the other side of the aisle may have a legitimate complaint with regard to the possibility that judicial nominees could be held in committee. I have heard it said on numerous occasions that what they have done out here on the floor of the Senate in the last Congress and are proposing to do in this Congress is no different from what the Republicans did in committee during the Clinton years. I would suggest that any solution to the problem include some kind of expedited procedure under which nominees could get out of committee in an orderly way and get voted on up or down on the Senate floor, thereby eliminating the possibility that the majority party could, in committee, in effect do the same thing the minority party did in the last Congress on the floor. We could level the playing field and make certain that any President's nominee is given fair consideration in committee and fair consideration on the floor.

These are the kinds of things we have been kicking around, discussing in good faith on both sides of the aisle. Again, I compliment the Democratic leader. He has certainly been willing to discuss the issue. I believe we both think where the Senate is today is unacceptable. There is a lot of finger-pointing going on on both sides. Democrats are pointing fingers at Republicans for what was done during the Clinton years; Republicans are pointing fingers at Democrats for what was done in the last Congress. There is a way to cure that, a way to fix it.

It would be a huge mistake for the Senate to get to the point where 41 Members of the Senate can dictate to any President of the United States who gets to be on a circuit court or the Supreme Court. Let me say that again. Where this is headed, I would say to my good friend, the Democratic leader, and to our colleagues on the other side of the aisle, is in the direction of 41 Members of the Senate being able to dictate to any President who may be on the Supreme Court or a circuit court. That is a bad idea. Against the best efforts of myself and others on this side of the aisle, there could be a Democratic President again as soon as 3 or 4 years from now. I don't think our friends on the other side of the aisle are going to want to have a well-established notion that a mere 41 Members of the Senate are going to be able to dictate to the President who may be on the courts.

I conclude by saying we should continue our discussions--I do think they have been in good faith--to see if we can resolve this situation and get the Senate back to the way it operated prior to the last Congress when nominees were entitled to an up-or-down vote on the floor and, I would add, should be entitled to an up-or-down vote in committee, thereby leveling the playing field and guaranteeing that any President's nominations to the circuit courts and to the Supreme Court get a fair up-or-down vote.

I yield the floor.

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Mr. McCONNELL. Basically, what I want to do is not ask him a question, but allay his concerns about this being a slippery slope that would lead to the end of the legislative filibuster. We had that vote in 1995, I remind my good friend from Nevada, to get rid of the filibuster, period. It got only 19 votes; all 19 of them were Democrats. Not a single Republican voted to get rid of the legislative filibuster. Interestingly enough, this was the first vote after my party came back to power in the Senate. So, arguably, we would have been the big beneficiaries of getting rid of the filibuster. We had just had a marvelously successful election in 1994. We were in the majority of the House for the first time in 40 years and in the Senate. Somebody on your side of the aisle offered an amendment to get rid of all filibusters. That was the first vote Senator Frist cast after he was sworn into the Senate--to keep the filibuster. So I can reassure my good friend there is no sentiment that I am aware of anywhere in the Senate for getting rid of the filibuster.

Secondly, I am not aware of any sentiment about the filibuster being a problem with regard to Cabinet or sub-Cabinet appointments.

Third, I am not aware of the filibuster being a problem with regard to district court judges. Senators seem to be--your side has done a good job of confirming district court judges. That is not in dispute. We appreciate that. We think you have done it in a fair manner. What we are talking about here is this problem: for the first time in history the filibustering of circuit court nominees that have a majority of support in the Senate and, if allowed to have an up-or-down vote, all of these judges would be confirmed. They are for the first time in history denying them a vote when they have a majority of support in the Senate, and many of us have a suspicion this is precisely what our good friends on the other side of the aisle have in mind for any subsequent Supreme Court nominations. So why don't we just talk about the problem, which is circuit courts, and potentially the Supreme Court, and reach some kind of understanding that gets us back to the way we comfortably operated here for 214 years. That is what I would hope my good friend from Nevada, the Democratic leader, and ourselves could agree to at some point.

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Mr. McCONNELL. Mr. President, briefly, before the Democratic leader leaves, what I fear is that the only thing that has really changed in recent years is the occupant of the White House. With all due respect to my good friend and colleague--and I thank him for his cooperation on class action and bankruptcy; I know that was not easy--here we have my good friend Harry Reid in June of 2001 saying:

We should have up-or-down votes in the committees and on the floor.

We should have up-or-down votes in the committees and on the floor. June 2001.

My good friend Senator Schumer is, I believe, still here on the Senate floor. In March of 2000, he said:

I also plead with my colleagues to move judges with alacrity--vote them up or down. ..... This delay makes a mockery of the Constitution.

That is the Democratic leader and our good Senator from New York in 2000, just a few years ago. What has changed between then and now? I suggest the only thing that has changed is the occupant of the White House. All we are pleading for--and again, I thank the Democratic leader. I think he has been gracious, he has been anxious to work with us to come up with some accommodation. But what was routine Senate procedure as late as 2000 and 2001 now has been turned on its head and night is day and day is night. I am having a hard time seeing that anything has changed except the occupant of the White House.

What we need to do is divorce ourselves from who the current occupant of the White House is, who the current majority is in the Senate, and think about the institution in the long term. It seems to me that where we are headed is that 41 Members of the Senate will, in effect, be able to dictate to whomever is in the White House who the nominees for appeals court judges and for Supreme Court Justices may be. I believe that is not where we need to end up. I do not think it is in their best interest. They may have the White House as soon as January of 2009.

Why can't we just pull back from the abyss, get back to the way we were operating in a way apparently the Democratic leader and the Senator from New York felt was quite appropriate as recently as 2000 and 2001? Why can't we just get back to that and settle this dispute once and for all for future Congresses?

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Mr. McCONNELL. Mr. President, I assure the Senator from Missouri, I am also about through. Listening to Senator Schumer, maybe we have parameters of an understanding here. I think it was probably before the Senator from New York came on the floor, but I suggested that we couple an assurance that we have an up-or-down vote on the floor of the Senate for appellate court judges and Supreme Court Justices with a guaranteed expedited procedure in committee, guarantee that some of the legitimate grievances his party may have had toward the end of the Clinton years could not be committed again. All of this seems to me presents the possibility for an understanding that might settle this issue once and for all.

Mr. President, I yield the floor.

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