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Transportation Equity Act: A Legacy for Users

By:
Date:
Location: Washington, DC - Senate


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JUDICIAL NOMINATIONS

Mr. SPECTER. Mr. President, I have sought recognition to urge my colleagues to explore ways to avoid a Senate vote on the nuclear, or constitutional, option. It is anticipated that we may vote this week or this month to reduce from 60 to 51 the number of votes to invoke cloture or cut off debate on judicial nominations. If the Senate roll is called on that vote, it will be one of the most important in the history of this institution.

The fact is that all or almost all Senators want to avoid the crisis. I have repeatedly heard colleagues on both sides of the aisle say it is a matter of saving face. But as yet we have not found the formula to do so.

I suggest the way to work through the current impasse is to proceed to bring to the floor circuit nominees, one by one, for up-or-down votes. There are at least five and perhaps as many as seven pending circuit nominees who could be confirmed or at least voted up or down. If the straitjacket of party loyalty were removed by the Democrats, even more might be confirmed.

As a starting point, it is important to acknowledge that both sides, Democrats and Republicans, have been at fault. Both sides claim they are victims and that their party's nominees have been treated worse than the other's. Both sides cite endless statistics. I have heard so many numbers spun in so many different ways that even my head is spinning. I think even Benjamin Disraeli, the man who coined the phrase, ``there are lies, damned lies, and statistics,'' would be amazed at the creativity employed by both sides in contriving the numbers in this debate.

The history of Senate practices has demonstrated that in the last 2 years of President Reagan's administration and through 4 years of the administration of President George Herbert Walker Bush, the Democrats slowed down the nomination process. When we Republicans won the 1994 elections and gained the Senate majority, we exacerbated the pattern of delay and blocking nominees. Over the course of President Clinton's presidency, the average number of days for the Senate to confirm judicial nominees increased for district nominees as well as for circuit nominees. That was followed by the filibuster of many qualified judicial nominees by the Democrats following the 2002 elections. In an unprecedented move, President Bush responded by making, for the first time in the Nation's history, two recess appointments of nominees who had been successfully filibustered by the Democrats. That impasse was then broken when President Bush agreed to refrain from further recess appointments.

Against this background of bitter and angry recriminations, with each party serially trumping the other to get even, or to dominate, the Senate now faces dual threats--one called the filibuster and the other the constitutional or nuclear option, which rivals the United States-Union of Soviet Socialist Republic confrontation of mutually assured destruction. Both situations are accurately described by the acronym MAD.

We Republicans are threatening to employ the option to require only a majority vote to end filibusters. The Democrats are threatening to retaliate by stopping the Senate agenda on all matters except national security and homeland defense. Each ascribes to the other the responsibility for blowing the place up. This gridlock occurs at a time when we expect a U.S. Supreme Court vacancy within the next few months. If the filibuster would leave an eight-person Court, we could expect many 4-to-4 votes, since the Court now often decides cases with a 5-to-4 vote. A Supreme Court tie vote would render the Court dysfunctional, leaving in effect circuit court decisions with many splits among the circuits. So the rule of law would be suspended on many major issues.

In moving in the Judiciary Committee to select nominees for floor action, in my capacity as Chairman I have first selected William Myers because two Democrats had voted in the 108th Congress not to filibuster him, and one candidate for the Senate in 2004, since elected, made a campaign statement that he would vote to end the Myers filibuster and to confirm him. Adding those three votes to 55 Republicans, we were within striking distance to reach 60 or more.

I carefully examined Myers' record. Noting that he had opposition from some groups such as the Friends of the Earth and the Sierra Club, it was nonetheless my conclusion that his environmental record was satisfactory, or at least not a disqualifier, as detailed in my statement at the Judiciary Committee executive session on March 17 of this year. To be sure, critics could pick at the Myers record as they could at any Senator's record, but overall Myers was, in my opinion, worthy of confirmation.

I then set out to solicit others' views on Myers, including ranchers, loggers, miners, and farmers. In those quarters I found a significant enthusiasm for Myers' confirmation, so I urged those groups to have their members contact Senators who might be swing votes. I then followed up with personal talks to many of those Senators and found several prospects to vote for cloture. Then the screws of party loyalty were applied and tightened and the prospects for obtaining the additional few votes to secure cloture vanished.

I am confident if the party pressure had not been applied, the Myers filibuster would have ended and he would have been confirmed.

That result could still be obtained if the straitjacket of party loyalty were removed on the Myers nomination.

Informally, but authoritatively, I have been told the Democrats will not filibuster Thomas Griffith or Judge Terrence Boyle. Griffith is on the calendar now awaiting floor action, and Boyle is on the next agenda for committee action. Both could be confirmed by the end of this month.

There are no objections to three nominees from the State of Michigan for the Sixth Circuit--Richard Griffin, David McKeague, and Susan Bakke Neilson--but their confirmations are being held up because of objections to a fourth nominee. I urge my Democratic colleagues to confirm the three uncontested Michigan Sixth Circuit nominees and fight out the remaining fourth vacancy and Michigan District Court vacancies on another day. The Michigan Senators do make a valid point on the need for consultation on the other Michigan vacancies, and that can be accommodated.

In the exchange of offers and counteroffers between Senator Frist, the majority leader, and Senator HARRY REID, the Democratic leader, Democrats have made an offer to avoid a vote on the nuclear or constitutional option by confirming one of the four filibustered judges--Priscilla Owen, Janice Rogers Brown, William Pryor, or William Myers--with a choice to be selected by Republicans. An offer to confirm any one of those four nominees is in reality an explicit concession that each is qualified for the court, and they are being held hostage as pawns in a convoluted chess game which has spiraled out of control.

If the Democrats believe each is qualified, a deal for confirmation for any one of them is repugnant to the basic democratic principle of individual fair and equitable treatment and further violates Senators' oath on the constitutional confirmation process. Such dealmaking would further confirm public cynicism about what goes on in Washington behind closed doors.

Instead, let the Senators consider each of the four without the constraints of party line voting. Let us revert to the tried and tested method of evaluating each nominee individually.

By memorandum dated April 7, I circulated an analysis of Texas Supreme Court Justice Priscilla Owen's records demonstrating she was not hostile to Roe v. Wade and that her decisions were based on solid judicial precedence. No one has challenged that legal analysis.

Similarly, I distributed a memorandum containing an analysis of Judge William Pryor's record since he has been sitting on the Eleventh Circuit. It shows a pattern by Judge Pryor of concern to protect the rights of those often overlooked in the legal system. Similarly, no one has refuted that analysis.

California Supreme Court Justice Janice Rogers Brown has been pilloried for her speeches. If political or judicial officials were rejected for provocative or extreme ideas and speeches, none of us would hold public office. The fact is, the harm to the Republic, at worst, by confirmation of all pending circuit court nominees, is infinitesimal compared to the harm to the Senate, whichever way the vote would turn out, on the nuclear or constitutional option.

None of these circuit judges could make new law because all are bound and each one has agreed on the record to follow U.S. Supreme Court decisions. While it is frequently argued that Supreme Court decisions are in many cases final because the Supreme Court grants certiorari in so few cases, the circuit courts sit in panels of three so that no one of these nominees could unilaterally render an unjust decision since at least one other circuit judge on the panel must concur.

While it would be naive to deny that ``quid pro quo'' and ``logrolling'' are not frequent congressional practices, those approaches are not the best way to formulate public policy or make governmental decisions. The Senate has a roadmap to avoid ``nuclear winter'' in a principled way. Five of the controversial judges can be brought up for up-or-down votes on this state of the record. The others are entitled to individualized treatment on the filibuster issue. It may be that the opponents of one or more of these judges may persuade a majority of Senators that confirmation should be rejected. A group of Republican moderates has, with some frequency, joined Democrats to defeat a party-line vote. The President has been explicit in seeking up-or-down votes as opposed to commitments on confirmations.

The Senate has arrived at this confrontation by exacerbation as each side has ratcheted up the ante in delaying and denying confirmation to the other party's Presidential nominees. A policy of consultation/conciliation could diffuse the situation.

This has already been offered by the Democrats informally, signaling their intentions not to filibuster Griffith or Boyle, and by offering no objections to the three Michigan nominees. Likewise, it has been reported that Senator Reid has privately told Republicans he does not intend to block votes on any Supreme Court nominee except in extreme cases. A public statement of confirmation with an amplification on what constitutes ``extreme case'' could go a long way to diffusing the situation.

Senator Schumer praised White House Counsel Gonzales during his confirmation hearings for times in which now-Attorney General Gonzales consulted with Senator Schumer on President Bush's judicial nominees affecting the State of New York. On April 11 of this year, a nominee pushed by Senator Schumer, Paul Crotty, was confirmed for the federal court in New York. Both New Jersey Senators, Senators TORRICELLI and CORZINE, approved all five district court nominations for their State in the 107th Congress. And in that Congress, Florida's Democratic Senators, BOB GRAHAM and BILL NELSON, appointed representatives to a commission which recommended federal judges to President Bush. President Bush recently nominated Minority Leader HARRY REID's pick for the District Court for the District of Nevada.

So there have been some significant signs of

consultation and conciliation by the Republicans on choices by Democratic Senators.

I have reason to believe the President is considering consultation with the Michigan Senators on some federal judicial vacancies in their state and perhaps beyond.

One good turn deserves another. If one side realistically and sincerely takes the high ground, there will be tremendous pressure on the other side to follow suit. So far, the offers by both sides have been public relations maneuvers to appear reasonable to avoid blame and place it elsewhere. Meanwhile, the far left and far right are urging each side to shun compromise. ``Pull the trigger,'' one side says. ``Filibuster forever,'' the other side retorts. Their approaches would lead to extreme judges at each end of the political spectrum as control of the Senate inevitably shifts from one party to another.

The Senate today stands on the edge of an abyss. Institutions such as our Senate are immortal but not invulnerable. If we fail to step back from the abyss, we will descend into a dark protracted era of divided partisanship. But if we cease this aimless and endless game of political chicken, we could restore the Senate to its rightful place as the world's greatest deliberative body. That will require courage, courage from each Senator, courage to think and act with independence.

Our immortal Senate is depending on that courage. Now the question remains as to whether we have it.

Since the United States and the Union of Soviet Socialist Republics avoided the nuclear confrontation in the Cold War by concessions and confidence-building measures, why couldn't Senators do the same by crossing the aisle in the spirit of compromise?

As a result of the time constraints, I have abbreviated the oral presentation of this statement. I ask unanimous consent the full text be printed at the conclusion of this statement, including my statement which I now make that the text is necessarily repeated to a substantial extent of what I have delivered orally, but it is included so that a full text may be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Mr. SPECTER. Mr. President, I seek recognition to urge my colleagues to explore ways to avoid a Senate vote on the nuclear or constitutional option. It is anticipated that we may vote this week or this month to reduce from 60 to 51 the number of votes required to invoke cloture or cut off debate on judicial nominations. If the Senate roll is called on that vote, it will be one of the most important in the history of this institution.

The fact is that all, or almost all, Senators want to avoid the crisis. I have had many conversations with my Democratic colleagues about the filibuster of judicial nominees. Many of them have told me that they do not personally believe it is a good idea to filibuster President Bush's judicial nominees. They believe that this unprecedented use of the filibuster does damage to this institution and to the prerogatives of the President. Yet despite their concerns, they gave in to party loyalty and voted repeatedly to filibuster Federal judges in the last Congress.

Likewise, there are many Republicans in this body who question the wisdom of the constitutional or nuclear option. They recognize that such a step would be a serious blow to the rights of the minority that have always distinguished this body from the House of Representatives. Knowing that the Senate is a body that depends upon collegiality and compromise to pass even the smallest resolution, they worry that the rule change will impair the ability of the institution to function.

I have repeatedly heard colleagues on both sides of the aisle say it is really a matter of saving ``face''; but, as yet, we have not found the formula to do so. I suggest the way to work through the current impasse is to proceed to bring to the floor circuit nominees one by one for up or down votes. There are at least five and perhaps as many as seven pending circuit nominees who could be confirmed; or, at least voted up or down. If the straightjacket of party loyalty were removed, even more might be confirmed.

For the past 4 months since becoming Chairman of the Judiciary Committee, my first priority has been to process the nominees through committee to bring them to the floor. As a starting point, it is important to acknowledge that both sides, Democrats and Republicans, have been at fault. Both sides claim that they are the victims and that their party's nominees have been treated worse than the other's. Both sides cite endless statistics. I have heard so many numbers spun so many different ways that my head is spinning. I think even Benjamin Disraeli, the man who coined the phrase, ``there are lies, damned lies and statistics,'' would be amazed at the creativity employed by both sides in contriving numbers in this debate.

In 1987, upon gaining control of the Senate and the Judiciary Committee, the Democrats denied hearings to seven of President Reagan's circuit court nominees and denied floor votes to two additional circuit court nominees. As a result, the confirmation rate for Reagan's circuit nominees fell from 89 percent prior to the Democratic takeover to 65 percent afterwards. While the confirmation rate decreased, the length of time it took to confirm judges increased. From the Carter administration through the first 6 years of the Reagan administration, the length of the confirmation process for both district and circuit court seats consistently hovered at approximately 50 days. For Reagan's final Congress, however, the number doubled to an average of 120 days for these nominees to be confirmed.

The pattern of delay and denial continued through 4 years of President George H.W. Bush's administration. President Bush's lower court nominees waited, on average, 100 days to be confirmed, which was about twice as long as had historically been the case. The Democrats also denied committee hearings for more nominees. President Carter had 10 nominees who did not receive hearings. For President Reagan, the number was 30. In the Bush Sr. administration the number jumped to 58.

When we Republicans won the 1994 election and gained the Senate majority, we exacerbated the pattern of delaying and blocking nominees. Over the course of President Clinton's presidency, the average number of days for the Senate to confirm judicial nominees increased even further to 192 days for district court nominees and 262 days for circuit court nominees. Through blue slips and holds, 60 of President Clinton's nominees were blocked. When it became clear that the Republican-controlled Senate would not allow the nominations to move forward, President Clinton withdrew 12 of those nominations and chose not to re-nominate 16.

After the 2002 elections, with control of the Senate returning to Republicans, the Democrats resorted to the filibuster on ten circuit court nominations, which was the most extensive use of the tactic in the Nation's history. The filibuster started with Miguel Estrada, one of the most talented and competent appellate lawyers in the country. The Democrats followed with filibusters against nine other circuit court nominees. During the 108th Congress, there were 20 cloture motions on 10 nominations. All 20 failed.

To this unprecedented move, President Bush responded by making, for the first time in the Nation's history, two recess appointments of nominees who had been successfully filibustered by the Democrats. That impasse was broken when President Bush agreed to refrain from further recess appointments.

Against this background of bitter and angry recriminations, with each party serially trumping the other party to ``get even'' or, really, to dominate, the Senate now faces dual threats, one called the filibuster and the other the constitutional or nuclear option, which rival the US/USSR confrontation of mutually assured destruction. Both situations are accurately described by the acronym ``MAD.''

We Republicans are threatening to employ the constitutional or nuclear option to require only a majority vote to end filibusters. The Democrats are threatening to retaliate by obstructing the Senate on a host of matters. Each ascribes to the other the responsibility for ``blowing the place up.''

The gridlock occurs at a time when we expect a United States Supreme Court vacancy within the next few months. If a filibuster would leave an 8 person court, we could expect many 4 to 4 votes since the Court now often decides cases with 5 to 4 votes. A Supreme Court tie vote would render the Court dysfunctional, leaving in effect the circuit court decision with many splits among the circuits, so the rule of law would be suspended on many major issues.

In moving in the Judiciary Committee to select nominees for floor action, I first selected William Myers because two Democrats had voted in the 108th Congress not to filibuster him, and one candidate for the Senate in 2004, since elected, made a campaign statement that he would vote to end the Myers filibuster and to confirm him. Adding those three votes to 55 Republicans, we were within striking distance to reach 60 or more. I carefully examined Myers' record. Noting that he had opposition from some groups such as Friends of the Earth and the Sierra Club, it was my conclusion that his environmental record was satisfactory, or at least not a disqualifier, as detailed in my statement at the Judiciary Committee Executive Session on March 17, 2005. To be sure, critics could pick at his record as they could at any Senator's record; but overall Mr. Myers was worthy of confirmation.

I then set out to solicit others' views on Myers, including the ranchers, loggers, miners, and farmers. In those quarters, where I found significant enthusiasm for the Myers confirmation, I urged them to have their members contact Senators who might be swing votes. I then followed up with personal talks to many of those Senators and found several prospects to vote for cloture. Then the screws of party loyalty were applied and tightened, and the prospects for obtaining the additional few votes to secure cloture vanished. I am confident that if party pressure had not been applied, the Myers filibuster would have ended and he would have been confirmed. That result could still be obtained if the straitjacket of party loyalty were removed on the Myers nomination.

Informally, but authoritatively, I have been told that the Democrats will not filibuster Thomas Griffith or Judge Terrence Boyle. Griffith is on the Senate calendar awaiting floor action, and Boyle is on the next agenda for committee action. Both could be confirmed by mid-May.

There are no objections to three nominees from the State of Michigan for the Sixth Circuit: Richard Griffin, David McKeague and Susan Bakke Neilson; but their confirmations are held up because of objections to a fourth nominee. I urge my Democratic colleagues to confirm the three uncontested Michigan Sixth Circuit nominees and fight out the Fourth Circuit vacancy and Michigan district court vacancies on another day. The Michigan Senators make a valid point on the need for consultation on the other Michigan vacancies and that can be accommodated.

In the exchange of offers and counteroffers between Sen. FRIST, majority leader and Sen. HARRY REID, the Democrat leader, Democrats have made an offer to avoid a vote on the nuclear or constitutional option by confirming one of the four filibustered judges: Priscilla Owen, Janice Rogers Brown, William Pryor, or William Myers with the choice to be selected by Republicans.

An offer to confirm any one of the those four nominees is an explicit concession that each is qualified for the court and that they are being held hostage as pawns in a convoluted chess game which has spiraled out of control. If the Democrats really believe each is unqualified, a ``deal'' for confirmation for anyone of them is repugnant to the basic democratic principle of individual, fair, and equitable treatment and violates Senators' oaths on the constitutional confirmation process. Such ``deal-making'' confirms public cynicism about what goes on behind Washington's closed doors.

Instead, let the Senate consider each of the four without the constraints of party line voting. Let us revert to the tried and tested method of evaluating each nominee individually. By memorandum dated April 7, 2005, I circulated an analysis of Texas Supreme Court Justice Priscilla Owen's record demonstrating she was not hostile to Roe vs. Wade and that her decisions were based on solid judicial precedent. No one has challenged that legal analysis.

By memorandum dated January 12, 2005, I distributed an analysis of decisions by Judge William Pryor that shows his concern to protect the rights of those often overlooked in the legal system. Similarly, no one has refuted that analysis. California Supreme Court Justice Janice Rogers Brown has been pilloried for her speeches. If political or judicial officials were rejected by provocative/extreme ideas in speeches, none of us would hold public office.

The fact is that the harm to the Republic, at worst, by the confirmation of all pending circuit court nominees is infinitesimal compared to the harm to the Senate, whichever way the vote would turn out, on the nuclear or constitutional option. None of these circuit judges could make new law because all are bound, and each one agreed on the record, to follow U.S. Supreme Court decisions. While it is frequently argued that circuit court opinions are in many cases final because the Supreme Court grants certiorari in so few cases, circuit courts sit in panels of three so that no one of these nominees can unilaterally render an unjust decision since at least one other circuit judge on the panel must concur.

While it would be nai 4ve to deny that the ``quid pro quo'' and ``logrolling'' are not frequent congressional practices, those approaches are not the best way to formulate public policy or make governmental decisions. The Senate has a roadmap to avoid ``nuclear winter'' in a principled way. Five of the controversial judges can be brought up for up-or-down votes on this state of the record. The others are entitled to individualized treatment on the filibuster issue.

It may be that the opponents of one or more of these judges may persuade a majority of Senators that confirmation should be rejected. A group of Republican moderates has, with some frequency, joined Democrats to defeat a party line vote. The President has been explicit in seeking up-or-down votes as opposed to commitments on confirmations.

The Senate has arrived at this ``confrontation by exacerbation'' as each side ratcheted up the ante in delaying and denying confirmation to the other party's Presidential nominees. A policy of conciliation/consultation could diffuse the situation. This has already been offered by the Democrats, informally signaling their intentions not to filibuster Griffith or Boyle. Likewise, it has been reported that Senator REID has privately told Republicans that he doesn't intend to block votes on any Supreme Court nominees, except in extreme cases. A public statement with an amplification of what constitutes an ``extreme case'' could go a long way.

Sen. SCHUMER praised White House Counsel Gonzales's consultation with him on President Bush's judicial nominees. On April 11, 2005, the President's nominee for the U.S. District Court for the Southern District of New York, Paul Crotty, supported by Senator SCHUMER, was confirmed. Both New Jersey Senators, Bob Torricelli and Jon Corzine, approved all five district court nominations for their state in the 107th Congress. In the 107th Congress, Florida's Democratic Senators, BOB GRAHAM and BILL NELSON, appointed representatives to a commission which recommended Federal judges to President Bush.

President Bush recently nominated Minority Leader HARRY REID's pick for the U.S. District Court for the District of Nevada. I have reason to believe the President is considering consultation with the Michigan Senators on some Federal judicial vacancies in their State and perhaps beyond.

One good turn deserves another. If one side realistically and sincerely takes the high ground, there will be tremendous pressure on the other side to follow suit. So far, the offers by both sides have been public relations maneuvers to appear reasonable to avoid blame and place it elsewhere.

Meanwhile, the far left and the far right are urging each side to shun compromise: pull the trigger; filibuster forever. Their approaches would lead to extreme judges at each end of the political spectrum as control of the Senate inevitably shifts from one party to the other.

The Senate today stands on the edge of the abyss. Institutions like the Senate are immortal but not invulnerable. If we fail to step back from the abyss, we will descend into a dark, protracted era of divisive partisanship. But if we cease this aimless game of political chicken, we can restore the Senate to its rightful place as the world's greatest deliberative body. That will require courage. Courage from each senator. Courage to think and act with independence. Our immortal Senate is depending on our courage. Do we have it?

Since the U.S. and USSR avoided a nuclear confrontation in the Cold War by concessions and confidence-building measures, why couldn't Senators do the same by crossing the aisle in the spirit of compromise.

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