Speeches & Floor Statements

Floor Speech: Nuclear Option

Posted on November 21, 2013

   As Senator Byrd used to say: The purpose of the Senate is to have a place where there can be an opportunity for unlimited discussion, unlimited debates, and unlimited amendments.  That is why we are here. 

    Senator Byrd used to say so eloquently that the Senate was a unique body because it provided the necessary fence against the abuses of the executive.  That is what Senator Byrd said in his last speech to the Senate when he spoke before the Rules Committee.  He said the Senate is the necessary fence against abuses of the executive -- remembering how this country was founded in opposition to the king and the popular excesses.  That was what the Senate was supposed to be.  I am afraid that ended today.

    This action by the Democratic majority is the most important and most dangerous restructuring of the rules of the Senate since Thomas Jefferson wrote the rules at the founding of our country.  It creates the perpetual opportunity -- as Alexis de Tocqueville described -- that is most dangerous for our country.  He said that when he came to our country to visit in the 1830s.  The young Frenchman said:  I see two great dangers for this new American democracy.  One was Russia and the other was the tyranny of the majority. 


    The action that was taken today creates a perpetual opportunity for the tyranny of the majority because it permits a majority in this body to do whatever it wants to do anytime it wants to do it.  This should be called ObamaCare II because it is another example of the use of raw partisan political power for the majority to do whatever it wants to do any time it wants to do it.

    In this case what it wants to do is implement the president's radical regulatory agenda through the District of Columbia court.  That's what this is.  It is not about an abuse of the filibuster. 

    There is a big football weekend coming up in Tennessee.  Vanderbilt University plays the University of Tennessee in Knoxville. 

    Let's imagine this:  The Vanderbilt-Tennessee game, which is being played in Knoxville, home of the University of Tennessee, and Vanderbilt gets on the 1-yard line.

The University of Tennessee says:  Well, we are the home team, so we will just add 20 yards to the field or whatever it takes for us to win the game.  Or the Boston Red Sox are playing at home.  Let's say they are behind the Cardinals this year.  They get to the ninth inning and they are behind and they say:  Well, it is our home field.  We will just add a few innings or whatever it takes so we can win the game.  That is what the Democratic majority did today.  They say:  The rules don't allow us to do what we want to do, so we will just change the rules to do whatever it takes to get the result we want.

   That is what they did with Obamacare.  We remember that.  I was standing right here at the desk.  It was snowing.  It was the middle of the winter.  Senators were coming in, in the middle of the night, and what happened?  Among the things the American people like the least about Obamacare is that it was crammed down the throat of the American people by the raw exercise of partisan political power with not one single Republican vote.  That is not the way the civil rights bill was passed.  That is not the way Social Security and other great bills were passed.  They were passed by a bipartisan majority so we could gain the support of the American people.

   Our Democratic majority must have liked that Obamacare night.  The American people aren't liking it so much because apparently nobody read the bill very closely.  There are millions of Americans who have had their policies canceled.  There are going to be millions more when employers start looking at the cost of Obamacare.

   This is Obamacare 2; I say to my colleagues: This is another exercise of raw partisan political power for the Democratic majority to get the result it wants.  There is only one cure for it, and that is an election.  An election is coming up in about a year.  The American people can speak.  In the meantime, this has been the most dangerous, most important restructuring of the Senate since Thomas Jefferson wrote the rules.

   It is, according to the Senator from Nevada, who is the majority leader -- it is, according to his book in 2008, the end of the Senate.  That is what he said this would be, and now he has done it.  He has written the end of the Senate by his actions today.


   The Senator from Michigan, Mr. Levin, said to all of us when we were discussing this earlier this year -- he reminded us of the great Senator from Michigan, Arthur Vandenberg, who was the author of the idea of a bipartisan foreign policy.  Senator Vandenberg said shortly after World War II that a U.S. Senate in which a majority can change the rules anytime the majority wants is a U.S. Senate without any rules.  Let me say that again.  A U.S. Senate in which the majority can change the rules anytime the majority wants is a U.S. Senate without any rules. 

   So this is not about the filibuster.  This is another raw partisan political power grab so the Democratic majority can do whatever it wants to do whenever it wants to do it.  It is Obamacare II, and the American people will see it that way when they can take time away from the websites trying to fill out their new insurance policies to be able to pay enough attention to it.

   What is the excuse for this extraordinarily disturbing action today?  They are the flimsiest of excuses, and I will take a few minutes to outline what those are.

   The first allegation is that the Republican minority was using the filibuster to keep President Obama's appointees from gaining their seats.  Well, let's look at the history from the Congressional Research Service.  How many Supreme Court nominees have ever not been seated because of a failed cloture vote?  That is a filibuster.  The answer is zero in the history of the Senate -- not just President Obama but the history of the Senate.  Someone might point to the Abe Fortas case when President Johnson -- I guess it was in the late 1960s -- engineered a 45-to-43 cloture vote so, in Johnson's words, Abe Fortas could hold his head up, but, in fact, the filibuster has never been used to deny a Supreme Court Justice his or her seat.  How many Cabinet Members of President Obama have been denied their seat by a filibuster?  Zero.  This is the Congressional Research Service.

   The majority leader said:  Well, what about Secretary Hagel, the distinguished Defense Secretary?  He had to wait 34 days to be confirmed.  Why shouldn't he wait 34 days to be confirmed?  He was confirmed shortly after his name was reported.  We had a perfectly adequate Secretary of Defense sitting in the office at the time -- Secretary Panetta.  I remember the Senator from Nevada standing over there and asking:  What if we are attacked and Secretary Hagel is not there?  Well, Secretary Panetta was there. 

   The number is zero.


My point is that the charge is that Republicans had been denying President Obama his nominations by filibuster.  Not on the Supreme Court, not to his cabinet, and no district judges, I say to my colleagues. 

            How many in the history of the country have ever been denied their seats by a failed cloture vote, including President Obama?  The answer is zero.

             That is very interesting.  So what is the reason for this?  Well, let's go on.  Maybe it was some other nomination that caused such a problem that would justify this dangerous restructuring of the Senate rules. 

             Let's go to the subcabinet category.  These are all the executive appointments below the cabinet level.  How many of those have been denied?  Under President Clinton, the Senate rejected two nominees of his by a cloture vote.  Under George W. Bush, it was three.  Under President Obama, it has been two.  So in the history of the Senate, the cloture vote has been used to deny seven Presidential nominees their seat, including two for President Obama.

            Let's go to the one area where there has been a little bit more; that is, the circuit judges. Remember, on the Supreme Court, never; district judges, never; cabinet member, never; but circuit judges, yes.  There have been 10 instances where Presidential nominees for the federal circuit courts of appeals have been denied their seats because of a failed cloture vote -- that is a filibuster -- five Democrats, five Republicans.

            How did this happen?  If in all of these other areas it never happens, why did it happen here?  Because, as the Republican Leader explained this morning, Democrats got together in 2003 -- the year I came to the Senate -- and said, for the first time in the history of the U.S. Senate, we are going to use the filibuster to deny President George W. Bush 10 nominations to the circuit court because they are too conservative, not because they are not qualified.  One was Miguel Estrada, one of the most highly qualified nominees ever presented.  One was Judge Pickering.  One was Judge Pryor, who used to be a law clerk to Judge Wisdom, as I once was.  I know the high respect Judge Wisdom had for him.  The end result was that we had this Gang of 14, and the Democrats ended up only stopping five of President Bush's judges, but that was the first time in the history of the Senate.  To date, including the judges we are discussing now, the three on the DC Circuit Court, the total is five.  So that is it. 

             How can anyone say President Obama has not been treated fairly when, in fact, the answer is zero on the Supreme Court, zero on district judges, zero on cabinet and two on sub-Cabinet, and the same on circuit courts that President Bush had? 

   I asked the Senate Historian if President Obama's second term cabinet nominees had been moved through the Senate more swiftly or slower than those of his two predecessors, Bush and Clinton.  The Senate Historian told me it was about the same.  So on that question, that is a fake crisis.

   The second allegation is that it takes too long for President Obama's nominees to come through the Senate.  Well, we have something on our desks called the Executive Calendar.  Every Senator has this. There are 44 Senators in their first term, and maybe some haven't had a chance to read it very carefully, but it has on it all of the names of everyone who could possibly be confirmed.

   The way Senate procedure works is a nominee comes out of a committee to the Executive Calendar.  Let me state the obvious:  All of the committees are controlled by the Democrats.  So if we want to report someone for the National Labor Relations Board, it has to be approved by a majority of senators on the committee on which I serve. Democrats have a majority of the seats on the committee; so a nominee gets on this calendar by a majority of Democratic votes.

   So how long have the people on the calendar been waiting?  Well, 54 of them have been waiting only three weeks; in other words, they just got there.  Most of them aren't controversial.  Usually they are approved on a day such as this when we are wrapping up before we go home for a week or two, so half of them would probably be gone today.  There are 16 who have been on the calendar for up to nine weeks.  That is a very short period of time in the U.S. Senate for people to have a chance to do their other business and get to know the nominees.  There are eight who have been on the calendar more than nine weeks.  Of the eight, two are being held up by Democrats, and two more are Congressman Watt and Ms. Millett.  That leaves four, and one of those is a newscaster who has been nominated to be a member of the board of the Morris K. Udall Foundation and who is being moved along with other people to that foundation board. 

   In other words, it is not true that there are people being held up for a long period of time because the only way a nominee can be confirmed in the U.S. Senate is if the majority takes someone from this Executive Calendar, moves their nomination -- it doesn't have to go through any sort of other motion; he can do it on his own -- and then we move to consider that person. 

            Well, one might say:  But someone can hold each up one of those.  Yes, we can, under the cloture procedure.  But let's take an example.  Let's say Senator Reid, the distinguished majority leader, were to come, under the old rules, to the floor and say:  I believe Republicans are holding up 10 of our lower-level nominees in an obstructionist way.  So let's say he arrives on Monday and he files cloture.  He moves to confirm all 10 of those.  He takes them off this calendar, he moves them to be confirmed, and he files cloture on each of the 10 on Monday.  Tuesday is what we call an intervening day.  He can get the rest of them confirmed, by bankers' hours, by Friday if he wants to because after he has that intervening day, there could only be, because we changed the rules earlier this year, eight hours of debate, and his side can yield back their four hours, and then we go to the next one and then the next one.  So we have 40 or 45 hours, and we have them all.

              The majority leader, if he wished to, could confirm all of these people very easily unless 41 Republicans said no.  But what we have already seen is that almost never happens.  In the history of the country, it has happened twice to President Obama on his subcabinet members, never on a Cabinet member; and never on district judges.


   So the majority leader had plenty of opportunity to have everybody confirmed if he wanted to.  This is why Senator Byrd, who was majority leader and minority leader, in his last speech to the Senate said:  There is no need to change the rules -- and I am paraphrasing.  I was at the Rules Committee hearing when he spoke.  He said:  A majority leader can use the rules that we have -- that is, until today -- to do whatever he wants to get done.

   Then there is the last charge about the District of Columbia Circuit.  That was the other pretext for this. 

Somehow Republicans were doing something wrong by saying it is too soon to cut off debate on the President's three nominees for the District of Columbia Circuit.  

    Republicans were doing -- to the letter -- exactly what Democrats did in 2006 and 2007.  They were saying that court is underworked, that other courts are overworked, and we ought to move judges from where they are needed least to where they are needed most before we put anymore judges on the court. 

            This is the letter sent on July 27, 2006, by all the Democrats on the Senate Judiciary Committee, including Senators Leahy, Schumer, Feingold, Kohl, Biden, Feinstein, Ted Kennedy.  They said "under no circumstances" should President Bush's Republican nominee be considered, much less confirmed, by this committee before we address the very need for the judges on the committee. 


    All we in the Republican Party were saying is -- Senator Grassley has had his bill in since 2003; the Democrats said in 2006 we should not put anymore judges on the court until we look at where the judges are needed -- we are saying:  Consider Senator Grassley's bill before you confirm the judges. 

    So that is the excuse -- the flimsiest of excuses.  The idea that President Obama is not being treated at least as well as previous Presidents with his nominees is just not true.  The filibuster has not been used to deny him nominees, except in two cases for subcabinet members; and in the case of circuit judges, no more than with President Bush. 

    The majority leader has not used the rules he had before him to easily confirm the people on the Executive Calendar.  Those on the Executive Calendar for the most part have only been there for a few weeks.  So why then did the majority feel the need to take this extraordinary action? 

    That takes us back to where we started.  This is, very simply, another partisan political power grab to permit the majority to do whatever it wants to any time it wants to do it. 

    The American people -- millions of them -- are filling out their insurance forms.  They are trying to make the Web site work.  They are terrified by the fact that they may not have insurance by January 1.  That is totally the result of a partisan political power grab in the middle of the night three years ago that put Obamacare into place.  This is another example of that.  The only cure for that is a referendum next November. 

    I deeply regret the action the Democratic majority took today.  It is the most dangerous and the most consequential change in the rules of the Senate since Thomas Jefferson wrote those rules at the founding of our country. 

    Madam President, I would refer my colleagues to the letter I had included in the record yesterday, the letter from the Senate Democrats in 2006 arguing that the DC Circuit should have no more judges until we consider the proper number and also a one-page list of the total number of subcabinet members who have ever been denied their seat by a failed cloture vote -- and that number is seventeen in the history of the Senate; two under Clinton, three under Bush, and two under President Obama -- plus five Bush judges and five Obama judges.