Executive Session

EXECUTIVE SESSION

Mr. DAYTON. Mr. President, I was on the floor the second time yesterday, 4 or 5 in the afternoon. I observed, then, the time we devoted to this had already become excessive as indicated by the fact the statements being mailed were becoming increasingly repetitive and redundant. Now I see the added problem is, as we go even further, they become less and less factually correct and reliable, which is bad enough under normal circumstances. But the accusations that are being made are the most serious accusations that can be directed toward another Senator.

One point of factual agreement is we all do take an oath of office when we are sworn in here in this Chamber by the Vice President of the United States and we do swear to uphold the Constitution of the United States. When I took that oath 3 years ago, that was the most solemn oath I have taken in my lifetime. There is nothing I ever committed to that I take more seriously, and I do my best, as I can possibly see to do so, to uphold that. I have never had occasion in my almost 3 years here to question or certainly not to cast aspersions on any other Member for failing to uphold that solemn oath as he or she believes it is best performed.

We have information available to us through the Library of Congress and the Congressional Research Service that has been in existence since just about the time the country began. We use it as a learned and nonpartisan and, as much as possible, nonbiased source of information about the 216-year history of this body. It is not hard to get this information. You just pick up the phone and call and ask to get it. So I did the other day.

They list the chronological history of efforts to limit debate in the Senate. It goes back to the Journals of the Constitutional Congress in 1778. It references the very first session of the Senate in 1789, which started adopting these rules of various sorts. You can read, and over and over in the summaries, I am sure you can go back to the Journals and read in greater detail, how this has been discussed, considered, debated, argued, voted upon, modified, turned down by Members of this body for 216 years.

When people are accusing us of acting outside the rules and the procedures of this body in doing what has been done here and debated about here for all that time, they either are woefully ignorant of the facts or they know the facts and they are being, I think, extremely irresponsible to the American people, if they have the misfortune to be watching this at this hour, to lead them to believe we are doing something here which is anything other than our right, well established in 216 years.

If the Members on the other side want to disagree with what we are doing, or why we are doing it, or who we are doing it for or against, they are perfectly within their rights to do so. But to say we are violating the rules of this body is not true. To say we are violating the Constitution of the United States is a heinous fault and I will go with the Senator from South Carolina, I will join with him going to the courts of this country, right up to the Supreme Court and let's get the ruling he wants. Because I guarantee what it will be. Courts have ruled for the last 216 years the House and the Senate have the right under the Constitution to establish their own rules. That is what we have done. That is what this book is about.

This book is 1,524 pages, called "Senate Procedure." These are all the precedents and changes in the rules and modifications and the like. It only goes up to about 1992 because over the last 11 years the chief Parliamentarian, who is the editor of this book, hasn't had the time to add to it. There are probably another 500 pages or whatever that have not been added to this that are all the different precedents, all the different changes. Any time any one of us thinks anybody else here is acting in violation of those, we have somebody right there. Every minute we are in session we have somebody we can ask and get a factual answer, an impartial and nonpartisan answer, and that is the Parliamentarian.

I ask the Parliamentarian if anything in these books for 216 years precludes our right to do what we are doing and if it is not within the rules of this body. I think it is shameful that anybody states otherwise.

One important rule, in 1902, was adopted. Rule XIX was amended by inserting at the beginning of clause No. 2 the following:

No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.

I can't think of any imputing of any conduct or motive more unworthy to a United States Senator than the violation of the U.S. Constitution, violation of the Constitution that we each took the oath of office to uphold. To do so without basis in fact is just beyond the pale.

The Senator from Mississippi, the chairman from Mississippi, earlier today said he had his disagreements, he thought we should review these matters in the Rules Committee. I laud him for saying so. He doesn't have to agree with what we are doing. He has every right to disagree and he has every right as the chairman of the committee to go through that process and I welcome the opportunity for him to bring in constitutional scholars, the Congressional Research Service, the Library of Congress authorities, and go through all this and consider other questions about whether the minority should be able to hold up the nominations of some 60 nominees of a President of the other party when they are in the majority; as the Senator from Florida suggested, whether these should be lifetime appointments. By the time he passed away, Thomas Jefferson was opining that they should not be, to the Federal judiciary.

Let's get the facts. Let's ask the Library of Congress, the Congressional Research Service, to tell us if this is wrong. It's on their stationery that up until 1917, when the Senate first adopted a cloture rule, until 1949, I read directly:

. . . cloture could be moved only on legislative measures and nominations could not be subjected to cloture attempts.

But then the Senate rule was changed, by the Senate. Following the rules and procedures of Senate they changed it so these steps could be taken with regard to nominations.

I am on page 3, reading again exactly:

Even after Senate rules began to permit cloture on nominations, cloture was sought not until 1968 on a motion to proceed to consider the nomination of Justice Abe Fortas which was debated at length.

Moving ahead:

Cloture was sought on no other nomination until 1980. Subsequent to 1980, of the 12 nominations on which cloture occurred during the 103d Congress, ten were for executive branch positions except in that Congress most nominations on which cloture had been sought have been to judicial positions.

They have a table which says between 1967 and 2002 on judicial nominations cloture was invoked by the Senate 11 times; cloture was not invoked 6 times. Executive branch nominations, cloture was invoked 10 times, not 8 times.

It is pretty easy to get this information. If somebody thinks they are just making it up, they are wrong. They should make that case. But otherwise people are making up misrepresentations and misinformation. It is outright false. They are doing a great disservice to this body and to the credibility we all strive to maintain.

One of our predecessors from Minnesota, a man I worked for back in 1975 as a legislative aide, Walter Mondale, former attorney general of Minnesota, served for 11 years as a Senator. He said one of his proudest accomplishments was modifying the procedures under rule XX from two-thirds to three-fifths of Senators. On behalf of the change, Senator Mondale said at the time as sponsor of this resolution the proposal was a reasonable accommodation of the right to debate and the right to decide. We believe this might be harmonized in such a way as to protect action.

Anybody in this body has a perfect right to disagree with that statement by Senator Mondale with the actions of the majority of his colleagues in that session to make this modification and to leave this rule as it essentially is today. But to just imply it is a violation of the rules in what we are doing-implying we disrespect the body and the purpose of the established procedures and upholding the best interests of this country for 216 years-by people who have been here less than a year themselves I think is an abomination. Then to go beyond that and say we are in violation of our oath to uphold the Constitution of the United States is I think a disgrace.

I yield to my colleague from New Jersey the balance of our time.