Alexander: Majority Leader’s “Unprecedented Action” on Judges Prevents Senate from Addressing “Big Issues Americans Want Us to Deal With”

Says “there has never been a successful filibuster of a district court judge”; notes that 76 of the president’s 78 nominees from the first two years of his administration have been confirmed

Posted on March 13, 2012

“I would respectfully suggest that it's not a good time for the Majority Leader to take a small disagreement and escalate it into a big one, jeopardizing our ability to deal with the big issues on jobs, cyber-security, postal service and others. …The American people want to see us get results. Why should we give them one more reason to suspect that because we can't agree on little issues, we're unable to agree on the big issues?” – Lamar Alexander

WASHINGTON – In a speech on the floor of the U.S. Senate this morning, U.S. Senator Lamar Alexander (R-Tenn.) called Senate Majority Leader Harry Reid’s filing of cloture on 17 District Court nominations “an unprecedented action” and urged him to “reconsider.” Alexander disputed Reid’s claim in calling for cloture that these 17 nominations had been unnecessarily delayed by Republicans, saying that six of them have only been nominated in the last 30 days, and 11 of them would likely have been confirmed in the typical “year-end” clearing process, which Alexander said “blew up” because “the president decided to violate the Reid rule, which calls for pro-forma sessions every three days to break up the Senate’s recesses and block recess appointments.”

Alexander continued: “I think the right thing to do is for the Majority Leader and the Republican Leader to… listen to the Speaker from Tennessee, Beth Harwell who suggests ‘work well together,’ that rather than escalating this into a high principle, big disagreement, that they retire to one of their offices and they sit down quietly and they take a time-out and they work this out. that's the way it's always been done in the United States Senate.”

Click HERE to watch the speech on YouTube; the transcript of Alexander’s speech follows:

Mr. President, I listened with great interest to the Senator from California [Barbara Boxer]. I thank her for her hard work on the transportation bill and her work with Senator Inhofe. I listened especially to her comments that it would be good for us to work well together. It reminds me of our new Speaker of the House of Representatives in Tennessee, Beth Harwell. She does a pretty good job, and she often reminds her colleagues in the Tennessee legislature that the first lesson they all learned in kindergarten is to work well together.

That is a good lesson for us as well.

I will take four or five minutes to simply talk about a development I think interferes with that. I came to the Senate floor with a group of Republicans and Democrats not long ago. We praised the Majority Leader Senator Reid and the Republican Leader, Senator McConnell, for their working together to try to bring the appropriations bill to the floor. We said we are going to work together to help them do that because a majority leader cannot lead if we don't follow. We complimented them for the work on the transportation bill, which hasn't been easy, but we are having a lot of votes today. We will offer our ideas and make votes.

It was disappointing to me yesterday to see the Majority Leader announce that he had filed 17 cloture motions on district judges. I am here simply as one senator to say respectfully to the Majority Leader that I hope he will reconsider and not do that. That is an unprecedented action. It has never happened like that before. In the history of the Senate, before 2011, a majority leader had filed cloture motions on district judges only three times.

What has happened with district judges in the history of the Senate?

They come up, get a vote, and there has never been a successful filibuster of a district judge because of a cloture vote. Let me emphasize that. There has never been a successful attempt to deny an up-or-down vote to a district judge by opposing cloture in the history of the Senate.

That was proven again last year with a judge from Rhode Island, Judge McConnell, who many believed should not be a judge. There were enough Republicans who did not take the opportunity to deny an up-or-down vote that he was confirmed even though many on this side didn't think he ought to be a judge. So we don't have a problem with filibustering district judges, and we have never had one with filibusters of district judges, at least given the present composition of the Senate.

What is the issue?  Senator Reid, the Majority Leader, said quite properly in his remarks yesterday that we have important work to do.

We have a jobs bill coming from the House, a Postal Service that is in debt, and we have cyber-security – we are having long briefings on that because of the threat.

The Leaders are working to bring the appropriations bills to the floor. We have only done that twice since 2000 – all 12 of them. So this is a little disagreement we have between the Majority Leader and the Republican Leader on the scheduling of votes on district judges.

It is not a high constitutional matter. It is not even a high principle. It is not even a big disagreement. It is a little one. What has always happened is in the back and forth of scheduling, and they work it out. They have been working it out.

In the first two years of the Obama administration, he nominated 78 district judges, and 76 of those were confirmed – 76 of 78 nominated in the first two years. He withdrew two. Last year, 61 more district judges were confirmed. What about 2012? The president has made a few nominations, but they haven't been considered yet by the Judiciary Committee. We do have 17 district-court judgeships reported by the Judiciary Committee. They could be brought up by the Majority Leader. He has the right to do that. But of those 17, six of them have been reported by the Judiciary Committee for less than 30 days. They just got here. That leaves 11. How long have they been there? They came in October, November, and December of last year. Normally, they would have been included in the year-end clearing.

Everybody knows what happened. The year-end clearing was thrown off track because the president threatened to make controversial recess appointments. Ultimately, the president decided to violate the Reid rule, which used pro-forma sessions every three days to break the Senate’s recesses and block recess appointments. That was invented by the Majority Leader, Senator Reid. President Bush didn't like it, but he respected it. President Obama violated it, and it blew up the year-end clearing of a number of nominees, including district judges.

We have some district judges waiting to be confirmed, but we don't have many. We have a history of confirming 76 out of 78 nominated during the first two years of this president, and last year, confirming 61. This year, of the 17 the Majority Leader filed the cloture motions on, six of them just got here. So that leaves 11. What do we do about that?

The right thing to do is that the Majority Leader and the Republican Leader should listen to what the senator from California just said, listen to the Speaker of the House from Tennessee; that is, work well together rather than escalate this into a highly principled, big disagreement, and retire to one of their offices and sit down quietly, take a timeout and work this out. That is the way it has always been done.

We are only talking about 11 judges. They have not been around that long – less than five months. We all know why they were delayed a little bit. The president can take just as much responsibility as anybody. In testimony this week, the Attorney General acknowledged the issue of the recess appointments made on January 4 is a serious constitutional issue that needs to be decided by the courts. While that is being done, we have not tried to stop the action of the Senate, even though we regard it as a great offense to the checks and balances and the separation of powers.

I respectfully suggest it is not a good time for the Majority Leader to take a small disagreement and escalate it into a big one, jeopardizing our ability to deal with big issues on jobs, cyber-security, the Postal Service, and others. It would not reflect well on the 23 candidates running for the Democratic Senate seats this year or on the 11 Republicans running for Senate seats this year, and it would not reflect well on the president.

The American people want to see us get results. Why should we give them one more reason to suspect that because we can't agree on little issues, we are unable to agree on the big issues? I know the job of the Majority Leader is a tough job, and there is a good deal of back and forth every day. The Majority Leader has been on both sides of this issue. I suspect if he and the Republican Leader were to sit down and look over the actual numbers and realize it is just 11 judges – we confirmed two last week – they could schedule the others and we could spend our time, starting tomorrow, not picking a fight with one another on the small disagreements, but on jobs, debt, the Postal Service, cyber-security, and the big issues the American people would like us to deal with.

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