Nomintation of Priscilla Richman Owen to be United States Circuit Judge for the Fifth Circuit
NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT--Continued -- (Senate - May 23, 2005)
BREAK IN TRANSCRIPT
Mr. LEAHY. Mr. President, I have made no secret how I regard the Republican Leader's bid for one-party rule through his insistence to trigger the ``nuclear option.'' I view it as a misguided effort that would undercut the checks and balances that the Senate provides in our system of government, undermine the rights of the American people, weaken the independence and fairness of the Federal courts, and destroy minority rights here in the Senate. In that regard, I thank the Senators who joined in the debate on Friday for their contributions, including in particular Senator Dodd, Senator Levin, Senator Jeffords, Senator Dayton, Senator Lincoln, Senator Lieberman and Senator Dorgan. Theirs were outstanding statements.
The Senate is not the House. It was not intended to function like the House. The ``Great Compromise'' of the Constitutional Convention more than 200 years ago was to create in the Senate a different legislative body from the House of Representatives. Those fundamental differences include equal representation for each State in accordance with article I, section 3. Thus, Vermont has equal numbers of Senators to New York and Idaho, as compared to California. The Founders intended this as a vital check. Representation in the Senate is not a function of population or based on the size of a State or its mineral wealth.
Another key difference is the right to debate in the Senate. The filibuster is quintessentially a Senate practice. James Madison wrote in Federalist No. 63 that the Senate was intended to provide ``interference of some temperate and respectable body of citizens'' against ``illicit advantage'' and the ``artful misrepresentations of interested men.'' It was designed and intended as a check and to provide balance. In no way do I intend to disrespect the House of Representatives by these remarks. I respect the House. I respect its traditions. But it is the Senate that protects the minority and thereby serves a special role in our national government.
Others have alluded to some valuable history lessons during the course of this debate. One of those lessons comes from 1937, the last time a President sought to pack the courts. President Franklin Roosevelt was coming off a landslide victory over Alf Landon. He attempted to pack the Supreme Court. Democrats--Senators from President Roosevelt's own party--stood up to him. In May 1937 the Senate Judiciary Committee criticized the Roosevelt court-packing plan as an effort by the executive branch to dominate the Judicial Branch with the acquiescence of the legislative branch. The Senate stood up for checks and balances and protected the independence of the judiciary. It is time again for the Senate to stand up, and I hope that there are Senators of this President's party who have the courage to do so, today.
The Constitution nowhere says that judicial confirmations require 51 votes. Indeed, when Vermont became the 14th State in 1791, there were then only 28 Members of the U.S. Senate. More recently, Supreme Court Justices Sherman Minton, Louis Brandeis, and James McReynolds were confirmed with 48 votes, 47 votes and 44 votes, respectively.
As the Republican leader admitted in debate with Senator Byrd last week, there is also no language in the Constitution that creates a right to a vote for a nomination or a bill. If there were such a right, it was violated more than 60 times when Republicans refused to consider President Clinton's judicial nominees. According to the Congressional Research Service more than 500 judicial nominations for circuit and district courts have not received a final Senate vote between 1945 and 2004--over 500--that is 18 percent of those nominations. By contrast, this President has seen more than 95 percent of his judicial nominations confirmed, 208 to date.
The Constitution provides for the Senate to establish its own rules in accordance with article I, section 5. The Senate rules have for some time expressly provided for nominations not acted upon by the Senate--``neither confirmed nor rejected during the session at which they are made''--being ``returned by the Secretary to the President.'' That is what happened to those 500 nominations over the last 60 years.
What the Republican leadership is seeking to do is to change the Senate rules not in accordance with them but by breaking them. It is ironic that Republican Senators, who prevented votes on more than 60 of President Clinton's judicial nominees and hundreds of his executive branch nominees because one anonymous Republican Senator objected, now contend that the votes on nominations are constitutionally required.
No President in our history, from George Washington on, has ever gotten all his judicial nominees confirmed by the Senate. President Washington's nomination of John Rutledge to be Chief Justice of the U.S. Supreme Court was not confirmed by the Senate. Senate Republicans now deny the filibusters they attempted against President Clinton's judicial nominees and they ignore the filibusters they succeeded in using against his executive branch nominees. They seek not only to rewrite the Senate's rules by breaking them but to rewrite history. I ask that a copy of the recent article by Professor John J. Flynn be included in the RECORD.
Helping to fuel this rush toward the nuclear option is new vitriol that is being heaped both upon those who oppose a handful of controversial nominees and oppose the nuclear option, as well as on the judiciary itself. We have seen threats from House Majority Leader TOM DELAY and others about mass impeachments of judges with whom they disagree. We have seen Federal judges compared to the KKK, called ``the focus of evil,'' and we have heard those supporting this effort quote Joseph Stalin's violent answer to anyone who opposed his totalitarianism by urging the formula of ``No man, No problem.'' Stalin killed those with whom he disagreed. That is what the Stalinist solution is to independence. Regrettably, we have heard a Senator trying to relate the recent rash of courtroom violence and the killings of judges and judges' family members with philosophical differences about the way some courts have ruled.
This debate in the Senate last week started with rhetoric from the other side accusing disagreeing Senators of seeking to ``kill'' and ``assassinate.'' Later in the week another member of the Republican leadership likened Democratic opponents of the nuclear option to Adolph Hitler. Still another Republican Senator accused Senators who oppose judicial nominees of discriminating against people of faith. This is in direct violation of the Republican leader's own statement at the outset of this debate that the rhetoric in this debate should ``follow the rules, and best traditions of the Senate.'' This has sunk too low and it has got to stop.
It is one thing for those outside the Senate to engage in incendiary rhetoric. In fact, I would have expected Senators and other leaders to call for a toning down of such rhetoric rather than participating and lending support to events that unfairly smear Senators as against people of faith. Within the last several days, the Rev. Pat Robertson called Federal judges, quote, ``a more serious threat to America then Al Qaeda and the Sept. 11 terrorists'' and ``more serious than a few bearded terrorists who fly into buildings.'' He went on to proclaim the Federal judiciary ``the worst threat American has faced in 400 years worse than Nazi Germany, Japan and the Civil War.'' This is the sort of incendiary rhetoric that Republican Senators should be disavowing. Instead, they are adopting it and exploiting it in favor of their nuclear option.
It is base and it is wrong, and just the sort of overheated rhetoric that we should all repudiate. Not repeating such slander is not good enough. We should reject it and do so on a bipartisan basis. Republicans as well as Democrats should affirmatively reject such harsh rhetoric. It does not inspire; it risks inciting.
Last week as we began this debate, the Judiciary Committee heard the testimony of Judge Joan Lefkow of Chicago. She is the Federal judge whose mother and husband were murdered in their home. She counsels: ``In this age of mass communication, harsh rhetoric is truly dangerous. [F]ostering disrespect for judges can only encourage those that are on the edge, or on the fringe, to exact revenge on a judge who ruled against them.'' She urged us as public leaders to condemn such rhetoric. I agree with her. She is right and she has paid dearly for the right to say so.
Those driving the nuclear option engage in a dangerous and corrosive game of religious McCarthyism, in which anyone daring to oppose one of this President's judicial nominees is branded as being anti-Christian, or anti-Catholic, or ``against people of faith.'' It continued over the last several weekends, it continued last week on the Senate floor. It is wrong; it is reprehensible. These charges, this virulent religious McCarthyism, are fraudulent on their face and destructive.
Injecting religion into politics to claim a monopoly on piety and political truth by demonizing those you disagree with is not the American way. Injecting politics into judicial nominations, as this administration has done, is wrong, as well.
I would like to keep the Senate safe and secure and in a ``nuclear free'' zone. The partisan power play now underway by Republicans will undermine the checks and balances established by the Founders in the Constitution. It is a giant leap toward one-party rule with an unfettered Executive controlling all three branches of the Federal Government. It not only will demean the Senate and destroy the comity on which it depends; it also will undermine the strong, independent Federal judiciary that has protected the rights and liberties of all Americans against the overreaching of the political branches.
Our Senate Parliamentarian and our Congressional Research Service have said that the so-called nuclear option would go against Senate precedent. Do Republicans really want to blatantly break the rules for short-term political gain? Do they really desire to turn the Senate into a place where the parliamentary equivalent of brute force is what prevails?
Just as the Constitution provides in article V for a method of amendment, so, too, the Senate rules provide for their own amendment. Sadly, the current crop of partisans who are seeking to limit debate and minority rights in the Senate have little respect for the Senate, its role in our government as a check on the executive, or its rules. Republicans are in the majority in the Senate and chair all of its committees, including the Rules Committee. If Republicans have a serious proposal to change the Senate rules, they should introduce it. The Rules Committee should hold meaningful hearings on it and consider it and create a full and fair record so that the Senate itself would be in position to consider it. That is what we used to call ``regular order.'' That is how the Senate is intended to operate, through deliberative processes and with all points of view being protected and being heard.
That is not how the ``nuclear option'' will work. It is intended to work outside established precedents and procedures. Use of the ``nuclear option'' in the Senate is akin to amending the Constitution not by following the procedures required by article V but by proclaiming that 50 Republican Senators and the Vice President have determined that every copy of the Constitution shall contain a new section--or not contain some of those troublesome amendments that Americans like to call the Bill or Rights. That is wrong. It is a kind of lawlessness that each of us should oppose. It is rule by the parliamentary equivalent of brute force.
Never in our history has the Senate changed its governing rules except in accordance with those rules. I was a young Senator in 1975 when Senate rule XXII was last amended. It was amended after cloture on proceeding to the resolution to change the rule was invoked in accordance with rule XXII itself and after cloture on the resolution was invoked in accordance with the requirement then and still in our rules that ending debate on a rule change requires the concurrence of two-thirds of the Senate. That was achieved in 1975 due in large part to the extraordinary statesmanship and leadership of Senator Byrd. And then the Senate adopted the resolution, which I supported. The resolution we adopted reduced the number of votes needed to end debate in the Senate from two-thirds to three-fifths of those Senators duly chosen and sworn. The Senate has operated under these rules to terminate debate on legislative matters and nominations for the last 30 years. Before that the Senate's requirement to bring debate to a close was even more exacting and required more Senators to vote to end a filibuster. I say, again, that the change in the Senate rules was accomplished in accordance with the Senate rules and the way in which they provide for their own amendment.
There has been a good deal of chest pounding on the other side of the aisle recently about the supposed sanctity of 51 votes to prevail, to end debate, to amend the Senate rules. Senators know that, in truth, there are a number of instances in which 60 votes are needed to prevail. These are not theoretical matters, but matters constantly used by Republican leaders to thwart ``majority'' votes on matters they do not like.
The most common 60-vote threshold is what is required to prevail on a motion to waive a series of points of orders arising from the Budget Act and budget resolutions. In fact, just this year in the deficit-creating budget passed by the Senate with Republican votes, they created new points of order that will require 60 votes in order to be overcome.
There are dozens of recent examples, but a few should make this concrete. In March 2001, a majority of Senators voted to establish a Social Security and Medicare ``lockbox.'' That was a good idea. Had we been able to prevail then, maybe some of the problems being faced by the Social Security trust fund and Medicare might have been averted or mitigated. But even though 53 Senators voted to waive the point of order and create the lockbox, it was not adopted by the Senate.
There is another example from soon after the 9/11 attacks. A number of us were seeking to provide financial assistance, training and health care coverage for aviation industry employees who lost their jobs as a result of the terrorist attacks. We had a bipartisan coalition of more than 50 Senators; it was, as I recall, 56. But the votes of 56 Senators were not sufficient to end the debate and enact that assistance.
I also remember an instance in October 2001, when I chaired the Foreign Operations Subcommittee of the Senate Appropriations Committee. I very much wanted to have the Senate do our job and complete our consideration of the funding measure necessary to meet the commitments made by President Bush to foreign governments and to provide life-saving assistance around the world. We voted on whether the Senate would be allowed to proceed to consider the bill--not to pass it, mind you, just to proceed to debate it. Republicans objected to considering the bill both times. We were required to make a formal motion to proceed to the bill. Then minority Senators, Republican Senators, filibustered proceeding to consideration of the bill. We were required to petition for cloture to ask the Senate to agree to end the debate on whether to proceed to consider the bill and begin that consideration. Fifty Senators voted to end the debate. Only 47 Senators voted to continue the filibuster. Still, the majority, with 50 votes to 47 votes did not prevail. Although we had a majority, we failed and the Senate did not make progress.
It happened again, in the summer of 2002, a bipartisan majority here in the Senate wanted to make progress on hate crimes legislation. The Senate got bogged down when the bill was filibustered. The effort to end the debate and vote up or down on the bill got 54 votes, 54 to 43. Fifty Senators voted to end the debate. Only 43 Senators voted to continue the filibuster. Did the majority prevail? No. The bill was not passed.
More recently, in 2004, 59 Senators supported a 6-month extension of a program providing unemployment benefits to individuals who had exhausted their State benefits. Those 59 Senators were not enough of a majority to overcome a point of order and provide the much-needed benefits for people suffering from extensive and longstanding unemployment. The vote was 59 to 40, but that was not a prevailing majority.
Around the same time in 2004 we tried to provide the Federal assistance needed to fund compliance with the Individuals with Disabilities Education Act. Although 56 Senates voted in support and only 41 in opposition, that was not enough to overcome a point of order. The vote was 56 to 41, but that was not a sufficient majority.
Just last month, too recently to have been forgotten, there was an effort to amend the emergency supplemental appropriations bill to include the bipartisan Agricultural Jobs bill that Senator Craig has championed. That amendment was filibustered and the Senate voted whether to end debate on the matter. The vote was 53 in favor of terminating further debate and proceeding to consider this much needed and long overdue measure. Were those 53 Senators, Republicans and Democrats, enough of a majority to have the Senate proceed to consider an up or down vote on the AgJobs bill to help our local industries? No, here, again, the Republican leadership prevailed and prevented consideration of the bipartisan measure with only 45 votes.
Every Senator knows, and others who have studied the Senate and its practices to protect minority rights, know that the Senate rules retained a provision that requires a two-thirds vote to end debate on a proposed change to the Senate rules. Thus, rule XXII provides that ending debate on ``a measure or motion to amend the Senate rules'' takes ``two-thirds of the Senators present and voting.'' If all 100 Senators vote, that means that 67 votes are required to end debate on a proposal to amend the Senate rules. In 1975, for example, the vote to end debate on the resolution I have spoken about to change the Senate rules was 73 to 21.
Every Senator knows that for the last 30 years, since we lowered the cloture requirement in 1975, it takes ``three-fifths of the Senators duly chosen and sworn,'' or 60 votes to end debate on other measures and matters brought before the Senate. Just recently there was a filibuster on President Bush's nomination to head the Environmental Protection Agency, Douglas Johnson. Sixty-one Senators voted to end that filibuster, to bring that debate to a close, and Mr. Johnson was confirmed. I voted for cloture and for Mr. Johnson. Despite Republican filibusters of Dr. Henry Foster to be the Surgeon General, Sam Brown to be an ambassador and others during the Clinton years, I considered the matter on its merits, as I always try to do, and voted to provide the supermajority needed for Senate action.
So when Republican talking points trumpet the sanctity of 51 votes, Senators know that the Republican majority insists upon 60-vote thresholds all the time, or rather all the time that it is in their short-term interests.
Finally, Mr. President, for purposes of the record, I need to set the record straight, again. I have done so periodically, including most recently on May 9, 2005, and toward the end of the last session of Congress on November 23, 2004.
Unlike the frog in the water who fails to notice the heat slowly rising until he finds himself boiling, Democrats have been warning for years that the Republican destruction of Senate rules and traditions was leading us to this situation. The administration and its facilitators in the Senate have left Democrats in a position where the only way we could effectively express our opposition to a judicial nominee was through the use of the filibuster.
We did not come to this crossroads overnight. No Democratic Senator wanted to filibuster, not a one of us came to those votes easily. We hope we are never forced by an aggressive Executive and compliance majority into another filibuster for a judicial nominee, again. The filibusters, like the confrontation that the Senate is being forced into over the last several days, are the direct result of a deliberate attack by the current administration and its supporters here in the Senate against the rules and traditions of the Senate. Breaking the rules to use the Republican majority to gut Senate rule XXII and prohibit filibusters that Republicans do not like is the culmination of their efforts. That is intended to clear the way for this President to appoint a more extreme and more divisive choice should a vacancy arise on the Supreme Court.
This is not how the Senate has worked or should work. It is the threat of a filibuster that should encourage the President to moderate his choices and work with Senators on both sides of the aisle. Instead, this President has politicized the process and Senate Republicans have systematically eliminated every other traditional protection for the minority. Now their target is the Senate filibuster, the only tool that was left for a significant Senate minority to be heard.
Under pressure from the White House, over the last 2 years, the former Republican chairman of the Judiciary Committee led Senate Republicans in breaking with longstanding precedent and Senate tradition with respect to handling lifetime appointments to the Federal bench. With the Senate and the White House under control of the same political party we have witnessed one committee rule after another broken or misinterpreted away. The Framer's of the Constitution warned against the dangers of such factionalism, undermining the structural separation of powers. Republicans in the Senate have utterly failed to defend this institution's role as a check on the President in the area of nominations. It surely weakens our constitutional design of checks and balances.
As I have detailed over the last several years, Senate Republicans have had one set of practices to delay and defeat a Democratic President's moderate and qualified judicial nominations and a different playbook to rubberstamp a Republican President's extreme choices to lifetime judicial positions. The list of broken rules and precedents is long--from the way that home State Senators were treated, to the way hearings were scheduled, to the way the committee questionnaire was unilaterally altered, to the way the Judiciary Committee's historic protection of the minority by committee rule IV was repeatedly violated. In the last Congress, the Republican majority of the Judiciary Committee destroyed virtually every custom and courtesy that had been used throughout Senate history to help create and enforce cooperation and civility in the confirmation process.
We suffered through 3 years during which Republican staff stole Democratic files off the Judiciary computers reflecting a ``by any means necessary'' approach. It is as if those currently in power believe that that they are above our constitutional checks and balances and that they can reinterpret any treaty, law, rule, custom or practice they do not like or they find inconvenient.
The Constitution mandates that the President seek the Senate's advice on lifetime appointments to the Federal bench. Up until 4 years ago, Presidents engaged in consultation with home State Senators about judicial nominations, both trial court and appellate nominations. This consultation made sense: Although the judgeships are Federal positions, home State officials were best able to ensure that the nominees would be respected. The structure laid out by the framers for involving the Senate contemplated local involvement in the appointments, and for almost 200 years, with relatively few exceptions, the system worked. This administration, by contrast, rejects our advice but demands our consent.
The sort of consultation and accommodation that went on in the Clinton years is an excellent example. The Clinton White House went to great lengths to work with Republican Senators and seek their advice on appointments to both circuit and district court vacancies. There were many times when the White House made nominations at the direct suggestion of Republican Senators, and there are judges sitting today on the Ninth Circuit and the Fourth Circuit, in the district courts in Arizona, Utah, Mississippi, and many other places because President Clinton listened to the advice of Senators in the opposite party. Some nominations, like that of William Traxler to the Fourth Circuit from South Carolina; Barbara Durham and Richard Tallman to the Ninth Circuit from Washington; Stanley Marcus to the Eleventh Circuit from Florida; Ted Stewart to the District Court in Utah; James Teilborg to the District Court in Arizona; Allen Pepper to the District Court in Mississippi; Barclay Surrick to the District Court in Pennsylvania, and many others were made on the recommendation of Republican Senators. Others, such as President Clinton's two nominations to the Supreme Court, were made with extensive input from Republican Senators. For evidence of this, just look at ORRIN HATCH's book ``Square Peg,'' where he tells the story of suggesting to President Clinton that he nominate Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court and of warning him off of other nominees whose confirmations would be more controversial or politically divisive.
In contrast, since the beginning of its time in the White House, this Bush administration has sought to overturn traditions of bipartisan nominating commissions and to run roughshod over the advice of Democratic Senators. They changed the systems in Wisconsin, Washington, and Florida that had worked so well for so many years. Senators GRAHAM and NELSON were compelled to write in protest of the White House counsel's flaunting of the time-honored procedures for choosing qualified candidates for the bench. They ignored the protests of Senators like BARBARA
BOXER and John Edwards who not only objected to the unsuitable nominee proposed by the White House, but who, in attempts to reach a true compromise, also suggested Republican alternatives. Those overtures were flatly rejected.
Indeed, the problems we face today in Michigan are a result of a lack of consultation with that State's Senators. The failure of the nomination of Claude Allen of Virginia to a Maryland seat on the Fourth Circuit shows how aggressive this White House has been. Now, the White House counsel's office will say it informs Democratic Senators' offices of nominations about to be made. Do not be fooled. Consultation involves a give and take, a back and forth, an actual conversation with the other party and an acknowledgement of the other's position. That does not happen.
The lack of consultation by this President and his nominations team resulted in a predictable outcome--a number of instances where home State Senators withheld their consent to nominations. The next action, however, was unpredictable and unprecedented. The former Republican chairman of the Judiciary Committee went ahead, ignored his own perfect record of honoring Republican home State Senators' objections to President Clinton's nominees and scheduled hearings nonetheless. In defense of those hearings we have heard how other chairmen, Senators KENNEDY and BIDEN, modified the committee's policies to allow for more fairness in the consideration of a more diverse Federal bench. That is not what the former Republican chairman was doing, however. His was a case of double standards--one set of rules and practices for honoring Republican objections to President Clinton's nominees and another for overriding Democratic objections to President Bush's.
While it is true that various chairmen of the Judiciary Committee have used the blue-slip in different ways, some to maintain unfairness, and others to attempt to remedy it, it is also true that each of those chairmen was consistent in his application of his own policy--that is, until 2 years ago. When a hearing was held for Carolyn Kuhl, a nominee to the Ninth Circuit from California who lacked consent from both of her home State Senators, that was the first time that the former chairman had ever convened a hearing for a judicial nominee who did not have two positive blue slips returned to the committee. The first time, ever. It was unprecedented and directly contrary to the former Republican chairman's practices during the Clinton years.
Consider the two different blue slips utilized by the former Republican Chairman: one used while President Clinton was in office, and one used after George W. Bush became the President. These pieces of blue paper are what then-Chairman Hatch used to solicit the opinions of home-state Senators about the President's nominees. When President Clinton was in office, the blue slip sent to Senators, asked their consent. On the face of the form was written the following: ``Please return this form as soon as possible to the nominations office. No further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee's home state senators.''
Now consider the blue slip when President Bush began his first term. That form sent out to Senators was unilaterally changed. The new Republican blue slip said simply: ``Please complete the attached blue slip form and return it as soon as possible to the committee office.'' That change in the blue slip form marked the about-face in the direction of the policy and practice used by the former Republican chairman once the person doing the nominating was a Republican.
I understand why Republican Senators want to have amnesia when it comes to what happened to so many of President Clinton's nominees. The current Republican chairman calculates that 70 of President Clinton's judicial nominees were not acted upon. One of the many techniques used by the former Republican chairman was to enforce strictly his blue slip policy so that no nominee to any court received a hearing unless both home State Senators agreed to it. Any objection acted as an absolute bar to the consideration of any nominee to any court. No time limit was set for returning the blue slip. No reason had to be articulated. In fact, the former Republican chairman cloaked the matter in secrecy from the public. I was the first Judiciary chairman to make blue slips public. During the Clinton years home State Senators' blue slips were allowed to function as anonymous holds on otherwise qualified nominees. In the 106th Congress, in 1999-2000, more than half of President Clinton's circuit court nominees were denied confirmation through such secret partisan obstruction, with only 15 of 34 confirmed in the end. Outstanding and qualified nominees were never allowed a hearing, an up or down vote in committee vote or on the Senate floor. These nominees included the current dean of the Harvard Law School, a former attorney general from Iowa, a former law clerk to Chief Justice Rehnquist and many others--women, men, Hispanics, African Americans and other minorities, an extensive collection of qualified nominees.
Another longstanding tradition that was broken in the last two years was a consistent and reasonable pace of hearings. Perhaps it is not entirely accurate to say the tradition had been respected during the Clinton administration, since during Republican control months could go by without a single hearing being scheduled. But as soon as the occupant of the White House changed and a Republican majority controlled the committee that all changed. In January, 2003, one hearing was held for three controversial circuit court nominees, scheduled to take place in the course of a very busy day in the Senate. There was no precedent for this in the years that Republicans served in the majority and a Democrat was in the White House. In 6 years during the Clinton administration, never once were three circuit court nominees, let alone three very controversial ones, before this body in a single hearing. But it was the very first hearing that was scheduled by the former Republican chairman when he resumed his chairmanship. That first year of the 107th Congress, with a Republican in the White House, and a Republican chairman of the Judiciary Committee, the Republican majority went from idling--the restrained pace it had said was required for Clinton nominees--to overdrive for the most controversial of President Bush's nominees.
When there was a Democratic President in the White House, circuit nominees were delayed and deferred, and vacancies on the courts of appeals more than doubled under Republican leadership, from 16 in January 1995, to 33 when the Democratic majority took over midway through 2001.
Under Democratic leadership we held hearings on 20 circuit court nominees in 17 months. Indeed, while Republicans averaged seven confirmations to the circuit courts every 12 months for President Clinton, the Senate under Democratic leadership confirmed 17 circuit judges in its 17 months in the majority--and we did so with a White House that was historically uncooperative.
Under Republican control, the Judiciary Committee played fast and loose with other practices. One of those was the committee practice of placing nominees on markup agendas only if they had answered all of their written questions within a reasonable amount of time before the meeting. Last Congress that changed, and nominees were listed when the former chairman wanted them listed, whether they were ready or not. Of course, any nominee can be held over one time by any member for any reason, according to longstanding committee rules. By listing the nominees before they were ready, the former chairman ``burned the hold'' in advance, circumvented the committee rule, and forced the committee to consider them before they were ready. Another element of unfairness was thereby introduced into the process.
Yet another example of the kind of petty changes that occurred during the last Congress were the bipartisan changes to the committee questionnaire that were unilaterally rescinded by the former Republican chairman. In April of 2003 it became clear that the President's nominees had stopped filling out the revised Judiciary Committee questionnaire we had approved a year and a half earlier with the agreement of the administration and Senate Republicans. It was a shame, because my staff and Senator Hatch's staff worked hard to revise the old questionnaire, which had not been changed in many years, and was in need of updating for a number of reasons. There were obsolete references, vague and redundant requests for information, and instructions sorely in need of clarification. There were also important pieces of information not asked for in the old questionnaire, including congressional testimony a nominee might have given, writings a nominee might have published on the Internet, and a nominee's briefs or other filings in the Supreme Court of the United States. We worked hard to include the concerns of all members of the committee, and we included the suggestions from many people who had been involved in the judicial nominations process over a number of years.
Indeed, after the work was finished, Senator Hatch himself spoke positively about the revisions we had made. At a Committee business meeting he praised my staff for, ``working with us in updating the questionnaires.'' He noted: ``Two weeks ago, we resolved all remaining differences in a bipartisan manner. We got an updated questionnaire that I think is satisfactory to everybody on the committee, and the White House as well.'' I accepted his words that day.
As soon as he resumed his chairmanship, he rejected the improvements we made in a bipartisan way, however. The former Republican chairman notified the Department of Justice that he would no longer be using the updated questionnaire he praised not so long before but, instead, decided that the old questionnaire be filled out. He did not notify any member of the minority party on the committee. Unlike the bipartisan consultation my office engaged in during the fall of 2001, and the bipartisan agreement we reached, the former Republican chairman acted by unilateral fiat without consultation.
The protection of the rights of the minority in the committee was eliminated with the negation of the committee's rule IV, a rule parallel to the Senate filibuster rule. In violation of the rules that have governed that committee's proceedings since 1979, the former Republican chairman chose in 2003 to ignore our longstanding committee rules and he short-circuited committee consideration of the circuit court nominations of John Roberts and Deborah Cook.
Since 1979 the Judiciary Committee has had this committee rule to bring debate on a matter to a close while protecting the rights of the minority. It may have been my first meeting as a Senator on the Judiciary Committee in 1979 that Chairman KENNEDY, Senator Thurmond, Senator Hatch, Senator Cochran and others discussed adding this rule to those of the Judiciary Committee. Senator Thurmond, Senator Hatch and the Republican minority at that time took a position against adding the rule and argued in favor of any individual Senator having a right to unlimited debate--so that even one Senator could filibuster a matter. Senator Hatch said that he would be ``personally upset'' if unlimited debate were not allowed. He explained:
There are not a lot of rights that each individual Senator has, but at least two of them are that he can present any amendments which he wants and receive a vote on it and number two, he can talk as long as he wants to as long as he can stand, as long as he feels strongly about an issue.
It was Senator Bob Dole who drew upon his Finance Committee experience to suggest in 1979 that the committee rule be that ``at least you could require the vote of one minority member to terminate debate.'' Senator Cochran likewise supported having a ``requirement that there be an extraordinary majority to shut off debate in our committee.''
The Judiciary Committee proceeded to refine its consideration of what became rule IV, which was adopted the following week and had been maintained ever since. It struck the balance that Republicans had suggested of at least having one member of the minority before allowing the chairman to cut off debate. That protection for the minority had been maintained by the Judiciary Committee for 24 years under five different chairmen--Chairman KENNEDY, Chairman Thurmond, Chairman BIDEN, under Chairman Hatch previously and during my tenure as chairman.
Rule IV of the Judiciary Committee rules provided the minority with a right not to have debate terminated and not to be forced to a vote without at least one member of the minority agreeing to terminate the debate. That rule and practice had until two years ago always been observed by the committee, even as we dealt with the most contentious social issues and nominations that come before the Senate. Until that time, Democratic and Republican chairmen had always acted to protect the rights of the Senate minority.
Although it was rarely utilized, rule IV set the ground rules and the backdrop against which rank partisanship was required to give way, in the best tradition of the Senate, to a measure of bipartisanship in order to make progress. That is the important function of the rule. Just as we have been arguing lately about the Senate's cloture rule, the committee rule protected minority rights, and enforced a certain level of cooperation between the majority and minority in order to get anything accomplished. That was lost last Congress as the level of partisanship on the Judiciary Committee and within the Senate sunk to a new low when Republicans chose to override our governing rules of conduct and proceed as if the Senate Judiciary Committee were a minor committee of the House of Representatives.
That this was a premeditated act was apparent from the debate in the committee. The former Republican chairman indicated that he had checked with the Parliamentarians in advance, and he apparently concluded that since he had the raw power to ignore our committee rule so long as all Republicans on the committee stuck with him, he would do so. It was a precursor of what is happening now in the Senate.
I understand that the Parliamentarians advised the former chairman that there is no enforcement mechanism for a violation of committee rules and that the Parliamentarians view Senate committees as autonomous. I do not believe that they advised him that he should violate our committee rules or that they interpreted our committee rules. I cannot remember a time when Senator Kennedy or Senator Thurmond or Senator Biden were chairing the committee when any of them would have even considered violating their responsibility to the Senate and to the committee and to our rules or that we needed an enforcement mechanism or penalty for violation of a fundamental committee rule.
In fact, the only occasion I recall that the former Republican chairman was previously faced with implementing committee rule IV, he himself did so. In 1997, Democrats on the committee were seeking a Senate floor vote on President Clinton's nomination of Bill Lann Lee to be the assistant attorney general for civil rights at the Department of Justice. Republicans were intent on killing the nomination in committee. The committee rule came into play when in response to an alternative proposal by the Republican Chairman, I outlined the tradition of our Committee and said:
This committee has rules, which we have followed assiduously in the past and I do not think we should change them now. The rules also say that 10 Senators, provided one of those 10 is from the minority, can vote to cut off debate. We are also required to have a quorum for a vote.
I intend to insist that the rules be followed. A vote that is done contrary to the rules is not a valid one.
Immediately after my comment, the same former Republican Chairman abandoned his earlier plan and said:
I think that is a fair statement. Rule IV of the Judiciary Committee rules effectively establishes a committee filibuster right, as the distinguished Senator said.
With respect to that nomination in 1997, he acknowledged:
Absent the consent of a minority member of the Committee, a matter may not be brought to a vote. However, Rule IV also permits the Chairman of the Committee to entertain a non-debatable motion to bring any matter to a vote. The rule also provides as follows: `The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a rollcall vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the Minority.'
Thereafter, he made the nondebatable motion to proceed to a vote and under the rules of the committee there was objection and a rollcall vote was taken on whether to end the debate. In that case, the former Republican chairman followed the rules of the committee.
At the beginning of the last Congress, we reaffirmed our tradition and clarified that at the time the Senate was divided 50-50 and the committee was divided 50-50, the rules would be interpreted so that the minority was the party other than that of the chairman.
But when the nominations of John Roberts, Deborah Cook and Jeff Sutton were being considered simultaneously, Democrats sought to continue debate on some of them and focus first on Sutton. We were overridden and the bipartisan tradition and respect for the rights of the minority ended when the former Republican Chairman decided to override our rights and the rule rather than follow it. He did so expressly and intentionally, declaring: ``[Y]ou have no right to continue a filibuster in this committee.'' He decided, unilaterally, to declare the debate over even though all members of the minority were prepared to continue the debate and it was, in fact, terminated prematurely. I had yet to speak to any of the circuit nominees and other Democratic Senators had more to say. He completely reversed his own position from the Bill Lann Lee nomination and took a step unprecedented in the history of the committee.
I know the frustrations that accompany chairing the Judiciary Committee. I know the record we achieved during my 17 months of chairing that committee, when we proceeded with hearings on more than 100 of President Bush's judicial nominees and scores of his executive nominees, including extremely controversial nominations, when we proceeded fairly and in accordance with our rules and committee traditions and practices to achieve almost twice as many confirmation for President Bush as the Republicans had allowed for President Clinton, and know how that record was mischaracterized by partisans. I know that sometimes a chairman must make difficult decisions about what to include on an agenda and what not to include, what hearings to hold and when. In my time as chairman I tried to maintain the integrity of the committee process and to be bipartisan. I noticed hearings at the request of Republican Senators and allowed Republican Senators to chair hearings. I made sure the committee moved forward fairly on the President's nominees in spite of the administration's unwillingness to work with us to fill judicial vacancies with consensus nominees and thereby fill those vacancies more quickly. But I cannot remember a time when Chairman KENNEDY, Chairman THURMOND, Chairman BIDEN, or I, ever overrode by fiat the right of the minority to debate a matter in accordance without longstanding committee rules and practices.
By bending, breaking and changing so many committee rules, Republicans crossed a threshold of partisan overreaching that should never have been crossed. As they passed each awful milestone, I urged the Republican leadership to reconsider, to turn back and to reinstate comity.
That is the backdrop for this debate now before the Senate. An overly aggressive executive, added by a majority of the same political party in the Senate, acted last Congress to eliminate any meaningful role of the minority at the committee level and to eliminate our traditions, rules and practices that had protected the minority. This abuse of power and drive toward one-party rule by the Republican leadership has been building for years and is culminating this week through their unprecedented attack on the Senate's rules, role and history. For years now, Democratic Senators have been warning that the deterioration of Senate rules and practices that have protected minority rights was leaving us, the Senate, and the American people in a dire situation.
This systematic and corrosive erosion of checks and balances has brought the Senate to this precipice. The filibuster in the Senate is the last remaining check on the abuses of one-party rule and the undermining of the fairness and independence of the federal judiciary. If the Senate is to serve its constitutional role as a check on the executive, its protection must be preserved. That is the decision the Senate will be facing tomorrow.
[From the Salt Lake Tribune]
Hatch is Wrong About History of Judicial Appointments
(By John J. Flynn)
The Constitution provides the president ``shall nominate, and by and with the Advice and Consent of the Senate,'' appoint judges and all other officers of the United States.
Throughout most of the Constitutional Convention, the power to appoint ambassadors, judges and other officers of the United States was vested solely in the Senate. It was decided late in the convention that the Senate should share the appointment power with the president. Clearly, the framers expected the Senate would have an equal say in appointments.
Several nominations for positions in the executive branch have been rejected over the past two centuries. Even more nominations for life-time appointments to the judiciary have been rejected because such nominations are for life and they are nominations to an independent branch of government.
For many years rejections were often carried out by the informal process of senators withholding ``blue slips'' for nominees from their home states. When a senator did not return a blue slip approving the nominee, the nomination was killed without a vote by the full Senate. It was a method for insuring the president sought the ``advice'' of the Senate and senators before nominating a person for the judiciary. The result was that only qualified moderates were usually appointed to the bench.
Utah's Sen. Orrin Hatch ended the ``blue slip'' practice. Sen. Hatch also began the practice of ``filibustering by committee chairperson'' nominees proposed by President Clinton. He simply refused to hold hearings on nominations even where senators from the nominee's home state approved of the nomination.
More than 60 Clinton judicial nominees were not even accorded the courtesy of a hearing during the Hatch chairmanship of the Senate Judiciary Committee. They were never given the chance for an ``up or down vote'' by the full Senate. For Sen. Hatch to now object to the use of a filibuster to halt nominations is less than disingenuous.
Contrary to Sen. Hatch's representations in his Tribune op-ed piece last Sunday, Republicans led a filibuster of the nomination of Justice Abe Fortas to the position of chief justice in 1968. I watched the filibuster. When a cloture vote failed to muster the necessary super majority to end the debate after four days of the filibuster, Justice Fortas asked to have his nomination withdrawn.
The modem divisiveness in the Senate over judicial nominations is directly traceable to the Senate's partisan treatment of judicial nominations beginning with Justice Fortas. The level of divisiveness has been increased by President Bush. He threw down a partisan gauntlet by renominating several controversial candidates not confirmed by the prior Senate.
The main qualifications of these candidates appears to be their appeal to the religious right and their rigid ideological views calling into question their capacity to judge objectively contentious issues coming before the courts.
The Bush administration apparently believes that the Senate should simply rubber-stamp nominees it selects without Senate advice, much less the consent of a sizeable majority of the Senate. Slogans like seeking the appointment of judges who will not ``make law'' are trumpeted while President Bush nominates persons who will ``make law''--law of the sort advocated by his administration and its closed-minded right-wing supporters.
Because of the nature of the job of judges, the framers of the Constitution vested the Senate with a co-equal power over the nomination and confirmation of persons for lifetime appointments to the judiciary. The Senate's role is not a subservient one of rubber-stamping anyone the president nominates unless it is found that they are an ax murderer or child molester.
This was made clear in the Federalist Papers, numbers 76-78. Over the past two centuries, the Senate developed a number of checks on both the president and members of the Senate to prevent the president and a majority of the Senate from running roughshod over those with substantial objections to nominations made by the president.
The result, until the first Bush administration and Sen. Hatch's chairmanship of the Judiciary Committee, has been negotiation and compromise over judicial nominees and the appointment of qualified moderates to the bench for the most part.
The present dispute over whether to eliminate the filibuster as a device to block nominees that a sizeable block of senators finds objectionable presents a further and dangerous erosion of the Senate's advice-and-consent function.
The Republicans hold a 55-to-45 majority of the seats in the Senate. The Republican majority represents approximately 47 percent of the United States population, while the 45-member Democrat minority represent 53 percent of the population. Senators representing less than a majority of the population are advocating the complete ceding of the advice-and-consent function to any president with a numerical majority of the membership of the Senate from his or her own political party.
The end result of the political campaign to further weaken, if not eliminate, the advice and-consent function of the Senate, will be to establish powers similar to those of the English monarch in 1789. The founders expressly sought to avoid this result by requiring the independent advice and consent of senators in the nomination and confirmation of important executive branch positions and lifetime appointments to the bench.
For Republicans to repudiate that role of the Senate, especially after their sorry record in dealing with the judicial nominees of President Clinton, is not only the height of hypocrisy, but is a dangerous precedent they will live to regret.
This is not the time for political opportunism, presidential arrogance or misleading oped pieces by Sen. Hatch. It is a time for members of the Senate to begin to act responsibly when carrying out their advice-and-consent function rather than further erode an important institutional check upon executive branch power and a majority party in the Senate that does not represent a majority of the American people.
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