Replies

Kind of a long read, but here's his response to my somewhat terse email:

June 25, 2005

Dear Mark:

Thank you for contacting me regarding President Bush's federal judicial
nominees. I appreciate knowing your views on this very important issue.

Recently, the Senate confirmed six of the President's judges for the
federal bench -- Priscilla Owen, Janice Rogers Brown, William Pryor, David
McKeague, Richard Griffin, and Thomas Griffith. These confirmations are
the result of an historic, bipartisan agreement that I helped negotiate,
along with 13 of my Senate colleagues. I became involved in the
negotiations because too many circuit court judges were not being voted on
in the Senate and the filibuster was being abused to block these
nominations.

While we clearly needed to change the way the Senate was conducting
business, I also felt that it was really not in the best interests of the
Nation or the Senate to completely change the rules and totally eliminate
the filibuster, though I was prepared to do that if nominations continued
to be blocked. We needed, instead, an alternative that could restore the
Senate to where it was when I entered the Senate a decade ago -- a Senate
where the possibility of a filibuster for judicial nominations was there,
but rarely used.

That is what our agreement achieved. We agreed that a filibuster for a
judge should not be used unless it was under extraordinary circumstances.
Furthermore, we made sure the agreement included a provision that, if the
terms of the agreement were violated and a judge were filibustered in
circumstances that an individual Member considered not to be
extraordinary, then that Member has the right to pull out of the
agreement. That Member has the right to go back and use what has been
called the constitutional option to change the practice and the precedent
of the Senate. I insisted that this be part of the agreement.

As evidenced by the judges the Senate confirmed recently, the agreement,
so far, is working. It has cleared the field for the President's judicial
nominations, some of whom had been waiting over four years for a vote in
the Senate. Not only that, the agreement also has allowed the people's
agenda to move forward. Already, since the agreement was reached, the
Senate Judiciary Committee has passed out of the committee the Asbestos
bill, and the Senate Energy and Natural Resources Committee has passed the
Energy bill, and the full Senate is debating it.

Enclosed to provide further details is a copy of a speech I gave on the
Senate Floor recently regarding the Senate's use of the filibuster
regarding judicial nominees. Again, thank you for informing me of your
views. If you have any additional questions or comments, please feel free
to contact me.

Very respectfully yours,

MIKE DeWINE
United States Senator

RMD/aod
Enc.

FLOOR STATEMENT
JUDICIAL NOMINATIONS
U.S. SENATOR MIKE DEWINE
JUNE 9, 2005

Mr. DeWINE. Mr. President, we have just seen a major accomplishment in the
Senate in the last several weeks -- and that is the confirmation of five
nominees to serve on the Federal bench. These confirmations were achieved
after an historic agreement was reached in the Senate -- an agreement that
allowed us to proceed. We have seen five individuals confirmed by the
Senate -- Priscilla Owen, Janice Rogers Brown, William Pryor, David
McKeague, and Richard Griffin. The majority leader has indicated that
Thomas Griffith will be on the Senate Floor shortly, and we will take up
that nomination.

This represents a major accomplishment and a major change in the way the
Senate has been doing business. This shows bipartisanship. This is a step
forward. It is progress.

As one of the 14 Senators involved in negotiating the recent compromise
agreement on the use of filibusters to block judicial nominations, I am
very pleased to see this progress and to see what has happened since this
agreement was reached. As everyone knows, of these five nominations,
several of them have been held up for years. I have a particular interest
in two of these nominations, as they come from the Sixth Circuit from the
states of Ohio, Michigan, Kentucky, and Tennessee. These two come from the
State of Michigan, but are part of the Sixth Circuit, which has had
vacancies for many years. Now we have these two positions filled.

I am pleased to see the progress we have been making the last two weeks on
nominations, but also the progress we have been making in the Senate on
other matters, as well. It is good for the country. The agreement that
we entered into not only cleared the field for the President's judicial
nominations, some of whom, as I have said, have been waiting for over four
years, but by avoiding confrontation, it also allowed the people's agenda
to move forward -- and that is a very important matter. Already, since the
agreement was reached, the Senate Judiciary Committee has passed out of
the committee the asbestos bill, and the Senate Energy and Natural
Resources Committee has passed the Energy bill.

Now, as someone who was in the room for the negotiations of the filibuster
agreement, I would like to take just a few moments to talk about what
happened, why I was involved, and where we go from here. Candidly, I
became involved in the negotiations because I was not satisfied with what
I had seen in the Senate over the last few years. Everyone got in the
negotiations, I am sure, for different reasons. I am just speaking for
myself. I believed that judges were not getting voted on in the Senate,
that the circuit court judges were not being acted upon when they should
have been, and that many of them were being denied an up-or-down vote. I
believed the filibuster was being used in excess to block their
nominations. I felt that the status quo was simply not acceptable -- that
we could no longer continue down that path.

Well, what was the solution? How were we going to get judges voted on in
the Senate? The status quo abuse of the filibuster, which I felt clearly
was an abuse, was not acceptable to me. I was prepared to take action to
deal with that. Yet, I also felt that it was really not in the best
interests of the Nation or the Senate to totally change the rules and
totally eliminate the filibuster, if we could avoid that. I felt what we
needed basically was a resolution to this crisis -- a new option or
alternative that could restore the Senate to where it was when I entered
the Senate a decade ago. That was a Senate where the possibility of a
filibuster for judicial nominations was there, but hardly ever used.

I believe that is exactly what we were able to achieve with the agreement.

During our negotiations, we agreed that a filibuster for a judge should
not be used unless under extraordinary circumstances. Furthermore, we made
sure the agreement included a provision that, if the terms of the
agreement were violated and a judge were filibustered in circumstances
that an individual Member considered not to be extraordinary -- in other
words, if Mike DeWine or any Member considered that another Member was
filibustering a judge under a circumstance that was not extraordinary --
that any Member or I had the right to pull out of that agreement and to go
back and say: I am going to use the constitutional option to change the
practice and the precedent of the Senate.
That was my right. I insisted on that when I entered the negotiations. I
felt that was important and that was the only way I could be a part of the
negotiations. So, let me make that very clear. The constitutional option
was on the table, and it does remain on the table today. There was never
any question in my mind about that. In fact, let me repeat exactly what I
said at the press conference that the group held

on May 23rd, right after we had reached our agreement. This is what I said
that evening at that press conference when everyone -- at least 12 of the
14 people who had reached the agreement -- were there. This is what I
said:

"This agreement is based on good faith -- good faith among people who
trust each other. And, it's our complete expectation that it will work.
Senators have agreed that they will not filibuster except in extraordinary
circumstances. We believe that will, in fact, work. Some of you who are
looking at the language may wonder what some of the clauses mean. The
understanding is -- and we don't think this will happen -- but if an
individual Senator believes in the future that a filibuster is taking
place under something that's not extraordinary circumstances, we, of
course, reserve the right to do what we could have done tomorrow, which is
to cast a yes vote for the constitutional option. I was prepared to do
that tomorrow if we could not reach an agreement."

Mr. President, let me also quote from the May 30th, Washington Post
article by Dan Balz. He wrote the following about the agreement:

"[Senator] DeWine, Senator Lindsey Graham have disputed the assertion ...
that the nuclear option is off the table. DeWine said he explicitly raised
the issue just before the group announced the deal."

Balz then quotes me:
"I said at the end, 'Make sure I understand this now, that ... if any
member of the group thinks the judge is filibustered under circumstances
that are not extraordinary, that member has the right to vote at any time
for the constitutional option.' Everyone in the room understood that."

The article goes on to say:

"Senator Mark Pryor, [a Democrat and] another member of the group [of 14],
concurred, saying that while he hopes the nuclear option is gone for the
duration of the 109th Congress, circumstances could bring it back."
Quoting Senator Pryor, the article continues: "I really think Senator
DeWine and Senator Graham have it right."

Mr. President and Members of the Senate, Senate Majority Leader Frist also
agrees with this assessment. He said in this May 30th Dan Balz article:

"The nuclear option remains on the table. It remains an option. I will not
hesitate to use it, if necessary."

And later, Senator Frist was quoted in the June 5th New York Times from
his comments in a speech at Harvard University, as follows:

"The short-term evaluations, I believe, will prove to be shortsighted and
wrong after we get judge after judge after judge after judge through, plus
at least one Supreme Court nominee and an energy bill ... and we will get
Bolton."

Mr. President and Members of the Senate, as the recent judicial
confirmation votes in this Senate demonstrate, the Majority Leader is
right. We are getting things done. We are getting things done because this
agreement was negotiated in good faith by good people who want to get
things done and proceed step by step. It was negotiated in good faith by
Members working together in the best interests of this Senate and of our
Nation. It is a good agreement -- one that has enabled us in the Senate to
get back to doing the business of the people, for the people. That is what
the American public expects, and it certainly is what the American people
deserve.

We have made progress. We have been able to confirm judges and bring to
the Floor of this Senate for up-or-down votes three judges who have been
held up for years and two other judges in a circuit, the Sixth Circuit in
Ohio and three other States, that has suffered with a number of vacancies
for years. Today, we filled two of those vacancies. That makes a
difference. We are making progress.

I am not arrogant enough to come to the Floor today and say that
everything is going to work out perfectly. I don't know that it will. I
don't have a crystal ball. I just know that we have come a ways. We have
taken some steps. We have made some progress. I believe we can rely on the
good faith of Members to try to continue to work together, continue to
make progress, and continue to try to exercise good faith.

We have set a bar now, a standard. Seven Members of the Senate on each
side have said they will not filibuster except under extraordinary
circumstances. That is something that had not been set before. That is the
bar. No, it is not specifically defined. I understand that. But, at least
there is a bar. It is an understanding. That is progress. It is a
recognition that the filibuster is not something just to be used; it is
something to be used only in very rare cases. You have to use it after you
think long and hard about it. It is the recognition of 14 people that they
will only use that filibuster after thinking long and hard. That is
progress.

What we have seen with these five judges, Mr. President, is progress. So,
tonight we celebrate progress, not total victory. You are never done in
the Senate. We are always trying to move forward. But, at least we should
stop for a moment tonight and say: We have come this far. We know we have
a ways to go, but we have certainly made progress.

I thank the Chair and yield the Floor.

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