Judicial Nominations

JUDICIAL NOMINATIONS -- (Senate - January 06, 2005)

Mr. DURBIN. On Tuesday of this week, the majority leader came to the Senate floor and talked about judicial nominations. He said he was planning to have a vote next month on one of President Bush's judicial nominees. He didn't say which nominee he had in mind, but he gave a clear signal that it would be someone controversial. He warned that if Senate Democrats prevent the nominee from receiving an ``up or down'' vote, then he would try and change the rules and traditions of the U.S. Senate.

I am sorry to see that the majority leader chose to sound such a partisan note on a famously bipartisan day--the first day of the new Congress. On such a day, we swear in our new colleagues and strive for a fresh start.

I do not believe this is the time or the place to engage on this issue. There are too many other, more urgent problems facing this world and this Nation.

But it is important to address a few statements made by the majority leader that I believe are in error.

First, he stated that ``the Senate failed to perform in an essential constitutional duty'' last Congress when we blocked ten judicial nominees. He said that the Senate ``failed to offer advice and consent to the President'' and indicated this was an unconstitutional action on the part of Senate Democrats.

I do not believe that the Senate acted unconstitutionally. The Constitution requires advice and consent--it does not require us to be a rubberstamp. I could just as easily assert that President Bush acted unconstitutionally by not soliciting the advice of Senate Democrats before nominating most of his nominees. After all, Article II, Section 2 of the Constitution requires the advice and consent of the Senate.

There is no constitutional right for any President to have 100 percent of his judicial nominees confirmed. During President Bush's first term, the Senate confirmed 204 judicial nominees. President Bush had more judicial nominees confirmed in his first term than the previous three presidents had in theirs.

A second error made by the majority leader was his statement that ``these filibusters were unprecedented.'' Filibusters of judicial nominees are hardly unprecedented. The majority leader voted to filibuster some of President Clinton's nominees in the 1990s.

But the facts show that President Bush's judicial nominees have received far better treatment than President Clinton's. At least 61 of President Clinton's judicial nominees--representing 20 percent of his selections--were denied an ``up or down'' vote on the Senate floor. In fact, they were denied an ``up or down'' vote in the Judiciary Committee. The majority leader did not mention this critical statistic when he spoke on Tuesday.

I also take issue with his statement that ``I seek cooperation not confrontation.'' If he truly meant that, he would not threaten to change the Senate rules and traditions next month. If he truly meant it, he would have urged the White House not to re-nominate those nominees who were rejected by the Senate last Congress. If he truly meant it, he would have done what Senator Harry Reid did last month and send a letter to the White House urging the President to engage in bipartisan collaboration in the selection of Federal judges.

Finally, I wish to note the majority leader's surprising rejection of the longstanding tradition of the Senate as a continuous body. In his statement, he said that ``I do not acquiesce to carrying over all the rules from the last Congress'' and he specifically named Rule 22 as the rule he objected to. This is the rule that permits 41 Members of the Senate to prevent a vote on any measure, motion, or other matter pending before the Senate.

All of us who have served in the House and the Senate know that one of the most basic differences between our chamber and the House is that the Senate is a continuing body and the House is not. In other words, the Senate does not have to reorganize itself each new Congress by adopting new rules and electing new leaders. The House, on the other hand, must do so.

It is my hope that the 109th Congress can operate with more bipartisanship and less acrimony than the previous Congress on the issue of judicial nominations. But if my colleagues across the aisle try and change generations of Senate rules and traditions, it will not be good for this body, and it will not be good for the American people.

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