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| May 10th, 2005 |
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Contact: Adam Elggren, (202) 224-3370 |
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Printable Version |
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| HATCH: TOP 10 MOST RIDICULOUS JUDICIAL FILIBUSTER DEFENSES |
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Washington – Sen. Orrin G. Hatch (R-Utah) today took to the Senate floor to note some of the most specious arguments made by proponents of the unprecedented filibuster campaign against President Bush’s judicial nominees. Among the highlights:
On an up-or-down vote being a “rubberstamp”: “Being on the losing side does not make one a rubberstamp. For all these centuries of democratic government, have we seen only winners and rubberstamps? Was the famous tagline for ABC’s Wide World of Sports, the thrill of victory and the agony of rubberstamping? Democrats did not start filibustering judicial nominations until the 108th Congress. Imagine the American history books describing the previous 107 as the ‘Great Rubberstamp Senates.’”
On the Democrats’ contradictory opinions of judicial nomination filibusters: “In September 1999, the Senator from Massachusetts, Senator Kennedy, ... said: ‘It is true that some Senators have voiced concerns about these nominations. But that should not prevent a roll call vote which gives every Senator the opportunity to vote ‘yes’ or ‘no.’’ Those were the words of our colleague from Massachusetts, Senator Kennedy: give every Senator the opportunity to vote yes or no. That was then; this is now.”
On smearing nominees with the label “extremist”: “What our Democratic colleagues call extreme, the American Bar Association calls qualified. In fact, all three of the appeals court nominees chosen four years ago who have been denied confirmation received the ABA’s highest well qualified rating. The same Democrats who once called the ABA rating the gold standard for evaluating judicial nominees now disregard it.”
On the claim that the Constitutional Option would be unprecedented: “In 1977, 1979, and 1987, the Majority Leader, Senator Byrd, secured a favorable parliamentary ruling through a point of order, and a majority of Senators voted to affirm it. He did this even when the result he sought was inconsistent with the text of our written rules.” Hatch pointed out that on one of those times, the maneuver was used to negate nomination-related filibusters.
The full text of Hatch’s speech follows:
Statement of Orrin G. Hatch
before the
United States Senate
Mr. President, yesterday marked the fourth anniversary of President Bush’s first judicial nominations, a group of 11 highly qualified men and women nominated to the United States Court of Appeals. As I sat in the East Room at the White House on May 9, 2001, I hoped that the Senate would at least treat these nominees fairly.
But many of our Democratic colleagues instead chose to follow their Minority Leader’s order, issued days after President Bush took office, to use “whatever means necessary” to defeat judicial nominees the minority does not like. While the previous three presidents saw their first 11 appeals court nominees confirmed in an average of just 81 days, today, 1461 days later, three of those original nominees have not even received a vote, let alone been confirmed.
In 2003, the minority opened a new front in the confirmation conflict by using filibusters to defeat majority supported judicial nominees. Mr. President, this morning I will briefly address the Top 10 Most Ridiculous Judicial Filibuster Defenses. Time permits only brief treatment, but then it was difficult to limit the list to ten.
Number 10 is the claim that these filibusters are part of Senate tradition. Calling something a filibuster, even if you repeat it over and over, does not make it so. These filibusters block confirmation of majority supported judicial nominations by defeating votes to invoke cloture, or end debate. Either these filibusters happened before or they did not.
Let us take the evidence offered by filibuster proponents at face value.
These two charts list some representative examples of what Democrats repeatedly claim as filibuster precedents. As you can see, Mr. President, the Senate confirmed each of these nominations. As ridiculous as it sounds, filibuster proponents claim, with a straight face, that confirming these past nominations justifies refusing to confirm nominations today.
Some examples are more ridiculous than others.
Stephen Breyer is here on the Democrats’ list of filibusters, suggesting that the Senate treated his nomination the way Democrats are treating President Bush’s nominations today. The two situations could not be more different. Even though President Carter nominated Breyer in November 1980 after losing his bid for re-election and after Democrats lost control of the Senate, we voted to end debate and overwhelmingly confirmed Stephen Breyer just 26 days after his nomination.
The suggestion that confirming the Breyer nomination for the party losing its majority now justifies filibustering nominations for the party keeping its majority is, well, just plain ridiculous.
Number 9 on the list of most ridiculous judicial filibuster defenses is that they are necessary to prevent one-party rule from stacking the federal bench. If you win elections, you say the country has chosen its leadership; if you lose, you complain about one-party rule. When your party controls the White House, the president appoints judges. When the other party controls the White House, the president stacks the bench.
Our Democratic colleagues say we should be guided by how the Democratic Senate handled President Franklin Roosevelt’s effort to pack the Supreme Court. It is true that FDR’s legislative proposal to create new Supreme Court seats failed – and without a filibuster, I might add. But as it turned out, packing the Supreme Court required only filling the existing seats. President Roosevelt packed the Court all right, by appointing no less than eight Justices in six years, more than any President except George Washington himself.
As this chart shows, during the 75th, 76th, and 77th Congresses, when President Roosevelt made those nominations, Democrats outnumbered Republicans by an average of 70 to 20. Now that is one-party rule, and yet the Senate confirmed those Supreme Court nominees in an average of just 13 days, one of them the very day it was made, and six of them without even a roll call vote.
That is not because filibustering judicial nominations was difficult. In fact, our cloture rule did not then apply to nominations. A single member of that tiny beleaguered Republican minority could have filibustered these nominations and attempted to stop President Roosevelt from packing the Supreme Court.
Mr. President, the most important number on this chart is the number right here at the bottom, the number of filibusters against President Roosevelt’s nominees. Zero.
Number 8 is the claim that, without the filibuster, the Senate would be a patsy, nothing but a rubberstamp for the President’s judicial nominations.
To paraphrase a great Supreme Court Justice, if simply stating this argument does not suffice to refute it, our debate about these issues has achieved terminal silliness. Being on the losing side does not make one a rubberstamp. For all these centuries of democratic government, have we seen only winners and rubberstamps? Was the famous tagline for ABC’s Wide World of Sports, the thrill of victory and the agony of rubberstamping?
Democrats did not start filibustering judicial nominations until the 108th Congress. Imagine the American history books describing the previous 107 as the Great Rubberstamp Senates. Did Democrats rubberstamp the Supreme Court nomination of Clarence Thomas in 1991 since they did not use the filibuster? That conflict lasting several months and concluding with that 52-48 confirmation vote did not look like a rubberstamp to me.
Some modify this ridiculous argument by saying it applies when the same party controls both the White House and the Senate. They make the stunning observation that Senators of the president’s party are likely to vote for his nominees. The Assistant Minority Leader, Senator Durbin, recently said, for example, that Republican Senators are nothing but lapdogs for President Bush.
Pointing at others can be dangerous because you have a few fingers pointing back at yourself. Counting both unanimous consent and roll call votes, more than 37,500 votes were cast here on the Senate floor on President Clinton’s judicial nominations. Only 11 of them, just a teeny tiny three one-hundredths of one percent, were NO votes from Democrats. Were they just rubberstamping lapdogs?
The Constitution assigns the same roles to the president and the Senate no matter which party the American people puts in charge of which end of Pennsylvania Avenue.
In the 1960s, the Democrats were in charge, yet Minority Leader Everett Dirksen refused to filibuster judicial nominees of Presidents Kennedy or Johnson. Was he a rubberstamp?
In the 1970s, the Democrats were in charge, yet Minority Leader Howard Baker refused to filibuster President Carter’s judicial nominees. Was he a rubberstamp?
In the 1980s, the Republicans were in charge, yet Minority Leader Robert Byrd did not filibuster President Reagan’s judicial nominees. Was he a rubberstamp?
And a decade ago, the Democrats were again in charge, yet Minority Leader Bob Dole refused to filibuster President Clinton’s judicial nominees. Was he a rubberstamp?
To avoid being a rubberstamp, one need only fight the good fight, win or lose.
Number 7 on the list of most ridiculous judicial filibuster defenses is that these filibusters are necessary to preserve our system of checks and balances.
Mr. President, any civics textbook explains that what we call checks and balances regulate the relationship between the branches of government. The Senate’s role of advice and consent checks the president’s power to appoint judges, and we exercise that check when we vote on his judicial nominations.
The filibuster is about the relationship between the majority and minority in the Senate, not about the relationship between the Senate and the president. It actually interferes with being a check on the president’s power by preventing the Senate from exercising its role of advice and consent at all.
Former Majority Leader Mike Mansfield once explained that by filibustering judicial nominations, individual Senators presume what he called “great personal privilege at the expense of the responsibilities of the Senate as a whole, and at the expense of the constitutional structure of the federal government.”
In September 1999, the Senator from Massachusetts, Senator Kennedy, expressed the same view when he said: “It is true that some Senators have voiced concerns about these nominations. But that should not prevent a roll call vote which gives every Senator the opportunity to vote ‘yes’ or ‘no.’” Those were the words of our colleague from Massachusetts, Senator Kennedy, give every Senator the opportunity to vote yes or no.
That was then; this is now.
Mr. President, in case anyone needs further clarification on this point, I ask unanimous consent that the definition of checks and balances from two sources, congressforkids.net and socialstudieshelp.com, be entered into the record at this point.
Number 6 on the list is that these filibusters are necessary to prevent appointment of extremists.
What our Democratic colleagues call extreme, the American Bar Association calls qualified. In fact, all three of the appeals court nominees chosen four years ago who have been denied confirmation received the ABA’s highest well qualified rating. The same Democrats who once called the ABA rating the gold standard for evaluating judicial nominees now disregard it.
Did 76 percent of Californians vote to keep an extremist on their Supreme Court when they voted to retain Justice Janice Rogers Brown? Did 84 percent of Texans and every major newspaper in the state support an extremist when they re-elected Justice Priscilla Owen to the Texas Supreme Court?
Mr. President, the Associated Press reported last Friday that the Minority Leader reserves the right to filibuster what he calls extreme Supreme Court nominees. That is quite an escape hatch, if you will, since the minority already defines any nominee it does not like as extreme. This is simply a re-packaged status quo masquerading as reform.
If Senators want to dismiss as an extremist any judicial nominee who does not think exactly as they do, that is their right. That is, however, a reason for voting against confirmation, not for refusing to vote at all. As our former colleague Tom Daschle said: “I find it simply baffling that a Senator would vote against even voting on a judicial nominee.”
Number 5 on the list of most ridiculous judicial filibuster defenses is the claim that these filibusters are about free speech and debate. If Senators cannot filibuster judicial nominations, some say, the Senate will cease to exist and we will be literally unable to represent our constituents.
The same men who founded this Republic designed this Senate without the ability to filibuster anything at all. A simple majority could proceed to vote on something after sufficient debate. Among those first Senators were Oliver Ellsworth of Connecticut, who later served on the Supreme Court, as well as Charles Carroll of Maryland and Richard Henry Lee of Virginia, who had signed the Declaration of Independence.
When they ran for office, did they know they would be unable to represent their states because they would be unable to filibuster?
Mr. President, these filibusters are about defeating judicial nominations, not debating them. The minority rejects every proposal for debating and voting on nominations it targets for defeat.
In April 2003, my colleague from Utah, Senator Bennett, asked the current Minority Leader how many hours Democrats would need to debate a particular nomination. His response spoke volumes: “[T]here is not a number in the universe that would be sufficient.”
Later that year, he said: “We would not agree to a time agreement…of any duration.” And just two weeks ago, the Minority Leader summed up what has really been the Democrats’ position all along: “This has never been about the length of the debate.”
He is right about that, this has always been about defeating nominations, not debating them.
If our Democratic colleagues want to debate, then let us debate. Let us do what Democrats once said was the purpose of debating judicial nominations. As my colleague from California, Senator Boxer, put it in January 1998, “let these names come up, let us have debate, let us vote.”
Number 4 on the list is that returning to Senate tradition regarding floor votes on judicial nominations would amount to breaking the rules to change the rules. As any consultant worth even a little salt will tell you, that is a catchy little phrase. The problem is that neither of its catchy little parts is true.
The constitutional option – which would change judicial confirmation procedure through the Senate voting to affirm a parliamentary ruling – would neither break nor change Senate rules.
While the constitutional option has not been used to break our rules, it has been used to break filibusters.
On January 4, 1995, the Senator from West Virginia, Senator Byrd, described how in 1977, when he was Majority Leader, he used this procedure to break a filibuster on a natural gas bill.
I have genuine affection and great respect for the Senator from West Virginia. Since I would not want to describe his repeated use of the constitutional option in a pejorative way, let me use his own words:
“I have seen filibusters. I have helped to break them. There are few Senators in this body who were here [in 1977] when I broke the filibuster on the natural gas bill….I asked Mr. Mondale, the Vice President, to go please sit in the chair; I wanted to make some points of order and create some new precedents that would break these filibusters. And the filibuster was broken – back, neck, legs, and arms….So I know something about filibusters. I helped to set a great many of the precedents that are on the books here.”
He certainly did, and using the constitutional option today to return to Senate tradition regarding judicial nominations would simply use the precedents he put on the books.
Number 3 on the list of most ridiculous judicial filibuster defenses is that the constitutional option is unprecedented.
In 1977, 1979, and 1987, the Majority Leader, Senator Byrd, secured a favorable parliamentary ruling through a point of order, and a majority of Senators voted to affirm it. He did this even when the result he sought was inconsistent with the text of our written rules.
In 1980, he used a version of the same procedure to limit nomination-related filibusters. Majority Leader Byrd made a motion for the Senate to both go into executive session and proceed to consider a specific nomination.
At the time, the first step was not debatable, but the second step was debatable. A majority of Senators voted to overturn a parliamentary ruling disallowing the procedural change Majority Leader Byrd wanted. Seven of those Senators serve with us today and their names appear here on this chart. They can explain for themselves how voting against restricting nomination-related filibusters today is consistent with voting to restrict them in 1980.
Number 2 on the list is that preventing judicial filibusters will doom legislative filibusters. Our own Senate history shows how ridiculous this argument really is.
Filibusters became possible by dropping the rule allowing a simple majority to proceed to a vote. The legislative filibuster developed, the judicial filibuster did not. What we must today limit by rule or ruling we once limited by principle or self-restraint.
The filibuster is an inappropriate obstacle to the president’s judicial appointment power, but an appropriate tool for exercising our own legislative power. I cannot fathom how returning to our tradition regarding judicial nominations will somehow threaten our tradition regarding legislation.
The only threat to the legislative filibuster, and the only votes to abolish it, have come from the other side of the aisle.
In 1995, 19 Senators, all Democrats, voted against tabling an amendment to our cloture rule that would prohibit all filibusters, of legislation as well as nominations. Nine of those Senators serve with us still, and their names are here on this chart.
I voted then against the Democrats’ proposal to eliminate the legislative filibuster and I oppose eliminating it today. The Majority Leader, Senator Frist, also voted against the Democrats’ proposal to eliminate the legislative filibuster. In fact, that was his first vote as a new member of this body. I join him in re-committing ourselves to protecting the legislative filibuster.
I urge Democrats to follow the example of our colleague from California, Senator Boxer, who recently said she has changed her position, that she no longer wants to eliminate the legislative filibuster.
In 1995, USA Today condemned the filibuster as “a pedestrian tool of partisans and gridlock-meisters.” The New York Times said the filibuster is “the tool of the sore loser.” I hope these papers will reconsider their position and support the legislative filibuster.
Mr. President, the Number 1 most ridiculous judicial filibuster defense is that those wanting to filibuster Republican nominees today opposed filibustering Democratic nominees only a few years ago.
In a letter dated February 4, 1998, for example, left-wing groups urged confirmation of Margaret Morrow to the U.S. District Court for the Central District of California. They urged us to “bring the nomination to the Senate, ensure that it received prompt, full and fair consideration, and that a final vote on her nomination is scheduled as soon as possible.” Groups signing this letter included the Alliance for Justice, Leadership Conference on Civil Rights, and People for the American Way.
As we all know, these left-wing groups today lead the grassroots campaign behind these filibusters that would deny this same treatment to President Bush’s nominees. Their position has changed as the party controlling the White House has changed.
Let me make it easy for the hypocrite patrol to check out my position on the Morrow nomination.
In the February 11, 1998, Congressional Record, on page S640, three pages before that letter from the left-wing groups appears, I opened the debate on the Morrow nomination by strongly urging my fellow Senators to support it. We did, and she is today a sitting federal judge.
The same Democrats who today call for filibusters called for up or down votes when a Democrat was in the White House. In 1999, my good friend from California, Senator Feinstein, a member of the Judiciary Committee, said of the Senate: “It is our job to confirm these judges. If we don’t like them, we can vote against them.” She said: “A nominee is entitled to a vote. Vote them up; vote them down.”
Another committee member, Senator Schumer, properly said in March 2000 that “the President nominates, and we are charged with voting on the nominees.”
I have already quoted the Senator from California, Senator Boxer, once, but in 2000 she said that filibustering judicial nominees “would be such a twisting of what cloture really means in these cases. It has never been done before for a judge, as far as we know – ever.” She was right, it had never been done before.
I appreciate what another member of the Judiciary Committee, Senator Kohl, said in 1997: “Let’s breathe life back into the confirmation process. Let’s vote on the nominees who have already been approved by the Judiciary Committee.”
The Senator from Iowa, Senator Harkin, who fought so strongly against the legislative filibuster in 1995, said five years later about the judicial filibuster: “If they want to vote against them, let them vote against them….But at least have a vote.”
The same view comes from three former Judiciary Committee chairmen and members of the Democratic leadership. A former committee chairman, Senator Biden, said in 1997 that every judicial nominee is entitled “to have a shot to be heard on the floor and have a vote on the floor.”
Former chairman Senator Edward Kennedy said in 1998: “If [Senators] don’t like them, vote against them. But give them a vote.”
And my immediate predecessor as chairman, Senator Leahy, said a year later that judicial nominees “are entitled to a vote, aye or nay.” In his own practical way, he said: “Vote them up or down.”
The Assistant Minority Leader, Senator Durbin, had urged the same thing in September 1998: “Vote the person up or down.”
Finally, Mr. President, the Minority Leader, Senator Reid, expressed in March 2000 the standard that I hope we can re-establish: “Once they get out of committee, bring them down here and vote up or down on them.”
The Majority Leader, Senator Frist, recently proposed a plan to accomplish precisely this result, but the Minority Leader dismissed it as, I want to quote this accurately now, “a big fat wet kiss to the far right.” I never thought voting on judicial nominations was a far right thing to do.
These statements speak for themselves. Do you see a pattern here? The message, at one time, seemed to be: let us debate, and let us vote. That should be the standard no matter which party controls the White House or the Senate.
Mr. President, as I close, let me summarize these Top 10 Most Ridiculous Judicial Filibuster Defenses in this way. Blocking confirmation of majority supported judicial nominations by defeating cloture votes is unprecedented. In the words of the current Judiciary Committee chairman, Senator Specter, “what Democrats are doing here is really seeking a constitutional revolution.”
We must turn back that revolution.
No matter which party controls the White House or Senate, we should return to our tradition of giving judicial nominations reaching the Senate floor an up or down vote. Full, fair, vigorous debate is one of the hallmarks of this body, and it should drive how we evaluate a president’s judicial nominations.
Honoring the Constitution’s separation of powers, however, requires that our check on the president’s appointment power not highjack that power altogether. This means debate must be a means to an end rather than an end in itself. Senators are free to vote against nominees they feel are extreme, but they should not be free to prevent other Senators from expressing a contrary view.
In this body, we govern ourselves through parliamentary rulings as well as by written rules. The procedure of a majority of Senators voting to sustain a parliamentary ruling has repeatedly been used to change Senate procedure without changing Senate rules, even to limit nomination-related filibusters.
Mr. President, I have tried here to deal with the substance of filibuster proponents’ arguments, albeit with some humor and a touch of sarcasm.
A few days ago, as the Salt Lake Tribune reported, the Minority Leader was in my home state “stopping just short of calling Utah Republican Sen. Orrin Hatch a hypocrite.” That is at least how the newspaper described it.
That is not what I consider a substantive argument. Perhaps those who dismiss their opponents as liars, losers, or lapdogs have nothing else to offer in this debate.
Yet debate we must, and then we must vote.
I yield the floor.
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And doing a bang up job doing it!
