Speeches & Floor Statements

Hearing Statement: Remarks on John Ryder’s Nomination

Posted on November 15, 2018

Senator Alexander: Mr. President, as the world knows, the country’s largest public utility is the Tennessee Valley Authority and serves 9 million customers in our seven-state region. It is enormously important to our State of Tennessee. Its CEO, Bill Johnson, announced today that he is leaving. I will have more to say about him later, but he and the Board of Directors have led TVA in an excellent direction, and it is now up to the Board of Directors to choose his successor. It is a big job. As I said, it is a $10 billion-a-year company.

John Ryder, of Memphis, was nominated by President Trump 282 days ago to be one of those Directors. He has been approved by voice vote by the Environment and Public Works committee. For the last 176 days, he has been waiting for confirmation. He has the approval of the ranking Democrat on the committee, the Senator from Delaware, Mr. Carper. He has the approval of the ranking Democrat on the subcommittee, Senator Whitehouse. It is time Mr. Ryder, who is consistently named one of the finest lawyers in Memphis—he has been recognized by Business Tennessee Magazine as among the 101 Best Lawyers in Tennessee and listed in Best Lawyers since 1987. In other words, he is a well-qualified, noncontroversial nominee who is needed by the people of our region to select a successor to Bill Johnson, the CEO.

The other nominees have been confirmed. The nominee from Alabama was confirmed. The nominee from Kentucky was confirmed but not the nominee from Tennessee. I am taking the step today of coming to the floor to ask that he be confirmed by consent. I can think of no reason why he would not be.

Mr. President, I ask unanimous consent that the Senate proceed to the consideration of executive calendar No. 856, the nomination of John Ryder to be a member of the Board of Directors of the Tennessee Valley Authority; that the Senate vote on the nomination with no intervening action or debate; that if confirmed, the motion to reconsider be considered made and laid upon the table; that the President be immediately notified of the Senate’s actions; that no further motions be made in order; and that any statements relating to the nomination be printed in the Record. T

Senator Schumer: Reserving the right to object. Very simply, there has to be some comity here. Republicans cannot block Democratic nominees and then expect Republican nominees to go through, so I object.

Alexander: To my friend from New York, who is he talking about? He knows my record. I worked with him three times when President Obama was there, worked with him directly to make it easier for President Obama to have nominees. Let me go through that because I think it is important the people know the efforts we made together. In 2011, working with the Senator from New York, we got rid of secret holds. We permitted waiver of the 72-hour rule that was used to block nominations and delay. We created 272 expedited privilege nominations. In 2012, we eliminated Senate confirmations for 163 positions, all to make it easier for President Obama to make Presidential nominations. In 2013, we created some new rules which said that Executive nominees could only be debated post-cloture for 8 hours and district judges for 2 hours. I personally made sure the current chairman of the Democratic Party, Tom Perez, got cloture so the Senate could vote on him. I voted against him, but I made certain he could come to a vote. When President Obama had a vacancy in the Department of Education in his last year, I went to President Obama and said: “Mr. President, I think it is inappropriate for us not to have a confirmed Senate nominee in a principal position like U.S. Secretary of Education. If you will please nominate John King, with whom I disagree, I will make sure he is confirmed, and we confirmed him.” That has been my record in terms of dealing with nominees of the President of an opposite party.

I ask through the Chair, why pick on Tennessee? Why confirm Kentucky nominees, why confirm Alabama nominees, why work with me in three different Congresses to make it easier for President Obama to confirm nominees, why applaud me for allowing the chairman of the Democratic Party today to be confirmed as Secretary of Labor and then block a nominee for the Tennessee Valley Authority, who is eminently well-qualified, who is supported by the Democratic members of the committee who have jurisdiction and who is needed on the Board to pick a CEO for the millions of people in the seven-state region? Why pick on Tennessee, I would say to my friend from New York through the Chair.

Schumer: Mr. President, we have to have some bipartisanship here. I understand my friend from Tennessee. He is my friend. I hope he would work with us to create bipartisan packages to get nominees through. That is not happening. We need to do it. I yield the floor.

Alexander: Mr. President, I don’t know what he is talking about. I am the chairman of the Health, Education, Labor, and Pensions Committee. I have, during my time, regularly confirmed Democratic nominees and Republican nominees. I have worked with the Democratic leader to make it easier for President Obama to confirm nominees and now he gives me no specific reason why he is objecting to the nominee from Tennessee. I ask him further—even though he has left the floor in what I would consider to be an act of discourtesy while I am speaking to him, and I mean that. I am very upset about this. I consider that an act of discourtesy when the Democratic leader leaves the floor while I am speaking directly to him through the Chair on a matter of importance to 9 million people in our area. I ask him what kind of precedent is he setting, the Democratic leader.

Let’s think about this for a minute. One hundred and nineteen times the majority leader, Senator McConnell, has had to file cloture to cut off debate in order to just get a vote on a nominee like Mr. Ryder, named one of the best lawyers in Tennessee since 1987, approved by Democratic colleagues, needed by the Tennessee Valley Authority, certain to be confirmed here almost unanimously. One hundred and nineteen times the Democratic opposition has required the Republican leader, Senator McConnell, to use a whole week to confirm a nominee. That happened 12 times to President Obama. That happened four times to President George W. Bush. It happened 12 times to President Clinton and zero times to George H.W. Bush, whose administration I served in. That is the number of cloture votes on nominees required for previous presidents in the same timeframe as President Trump.

What kind of precedent does this set? Let’s talk about that for a moment. This is a body of precedents. For many years, we always confirmed nominees with 51 votes. That was until George W. Bush became President of the United States and the Senator from New York, before he was a Democratic leader, and others, decided they would use a cloture vote, a requirement for 60 votes, to block George W. Bush’s nominees. That was the first time that it had happened.

Up until that time, the tradition of this body was that while you could require 60 votes, at least since about 1920, no one ever did. Even Clarence Thomas—and that was a very controversial Supreme Court nomination— was confirmed by 52 to 48. No one thought at the time of requiring that his nomination require 60 votes. They could have but didn’t. So that was the tradition in the Senate—always nominations by 51 votes. The one exception in the Supreme Court throughout the history of the Senate was Abe Fortas, under President Johnson, and that was an unusual situation. Never had a Federal district judge been required to have 60 votes.

In fact, what the Democratic leader— I wish he were here on the floor to hear this—may have forgotten is that Senator McConnell tried at one time to require a cloture vote of Judge McConnell in Rhode Island, and I and a number of other Republicans objected because we had never done that before. We had never said that you have to have 60 votes to be confirmed as a Federal district judge. So we rejected that motion by the Republican leader, and as a result of that, never in the history of the Senate had we required 60 votes for a Federal district judge to be confirmed. Never in the history of the Senate had we required 60 votes for a Cabinet member to be confirmed.

But then in the early years of George W. Bush, in 2003, I had just come to the Senate. The Senator from New York and others said: “Well, we will do that for the first time. We will block George W. Bush’s nominees.” I don’t want to debate that back and forth today except to say that became a precedent. And, sure enough, what goes around comes around.

A few years later, by 2013, things had gotten so that the Democrats decided to break the rules to change the rules and used the so-called nuclear option, and when Republicans did the same thing that the Senator from New York had done, Democrats overruled that and seated judges on the Court of Appeals. So as a result of the precedent set by the Senator from New York on judges with George W. Bush, we had the nuclear option in the Senate, a using of that. Republicans then did what the Democrats did. That is what you call precedent.

Well, it happened a second time. That first use of the nuclear option left it so you could require 60 votes in order to have a Supreme Court Justice. When President Trump nominated Neil Gorsuch to be a Supreme Court Justice, the Democrats filibustered Justice Gorsuch, an enormously well-qualified person. Remember, throughout the history of the country, we had not blocked a Supreme Court Justice by filibuster with that single exception of the Abe Fortas instance. Yet they did that. And as a result of that, the Republicans then said: Well, we will use the nuclear option and change the rules to 51. So that is what happened with the precedent. Now let’s look at this precedent. Are we going to block for 282 days -- it is 176 days on the calendar awaiting confirmation—a noncontroversial Board of Directors member for the Tennessee Valley Authority. That is what we have come to. So are we going to say, as the U.S. Senate minority, that we will effectively block those kinds of nominations and effectively keep an elected President from setting up a government? Is that what we are going to say?

It looks like that is what we are saying if you are going to say that 119 times the majority leader of the Senate of whichever party will have to invoke cloture. That means it takes 3 or 4 days to confirm even a noncontroversial Presidential nomination, when there are 1,200 such nominations.

Let’s say we have a Democratic President one day and a Republican U.S. Senate, or a Republican President and a Democratic U.S. Senate. But let’s just for purposes of discussion, since we are talking about precedent, let’s say the Democrats make a big comeback and elect a Democratic President next time around. It is only 2 years before the Presidential election. And let’s say the Republicans stay in power and still have a majority in the Senate and Republicans say: Well, we are a body of precedent. We will do to the Democratic President exactly what the Senate did to President Trump. If Republicans are in the majority, the Democratic President might not even be able to staff the government because the Republicans could say: We will not confirm anybody. Or even if the Republicans were to be in the minority and there were a Democratic President and the Republican minority did to the next Democratic President what this minority is doing to this one, then 119 times you would see this happen, at least through the first part of the administration. So where does that leave us as a Government of the United States?

Well, here is where it would leave us. It would leave us with a government of the United States with the Senate having no role in the appointment of its principal officers. That is what it would leave, because there is on the books legislation called the Vacancies Act, which allows any President of the United States to appoint acting people to all of the positions in the government. They can serve for 210 days at least, and there are a wide variety of people who can be chosen for those positions. They can be people who are confirmed or they can be senior people in the government. We happen to have an example of that today in the United States Department of Justice—Matthew Whitaker. The Attorney General, Jeff Sessions, whom I admire and all of us know, resigned at the request of the President. And instead of nominating or picking a Senate-confirmed successor as the Acting Attorney General of the United States, President Trump did, as the Vacancies Act allows him to do, appointed Matthew Whitaker, Attorney General Sessions’ Chief of Staff. I suppose a President could do that for every position.

I mentioned earlier that toward the end of President Obama’s term, he had no Education Secretary. Arne Duncan had decided to leave, and they used the Vacancies Act to allow John King, who was not confirmed by the Senate, in effect, to be the Acting Secretary of Education. As I said earlier, I had that conversation with President Obama. I said: “Mr. President, I believe that, institutionally, we should have a Senate-confirmed Secretary of Education. Even if I disagree, as I did, with John King’s education views, I will see to it that if you nominate him, he is confirmed.”

President Obama did that. He respected the importance of having institutionally confirmed principal officers in the government, and then we confirmed him. So I don’t know where this is leading us. I think this is the same kind of dangerous precedent that was established when Democrats for the first time used a 60-vote opportunity to block President George W. Bush’s judges, and what the Democrats then did—what most of them tell me they wish they hadn’t done—was that they used the nuclear option and required a 51-vote cloture. So now they can’t eventually block anyone, even John Ryder, if we all decide that we want to take a whole week to confirm him. That is what Senator McConnell has been doing. He has been putting a priority on district judges and on circuit judges, and the Democrats have been saying: We are going to slow you down. But you can’t win that way. All that happens is that the Senate gradually gives up its advise-and-consent authority under the Constitution to help the President form a government. That is one of the important parts of what we do in this government.

The late Justice Scalia said: “Every tin horn dictator has a bill of rights.” What the United States has that is different is checks and balances. One of the most important parts of that checks and balances is for the Senate to advise and consent on about 1,200 different Presidential nominees. That is why I worked with Senator Schumer and other Democrats, like Senator Levin, and Republicans, like Senator McCain and Senator Barrasso, and we took steps during the Obama administration three different times to reduce the number of Presidential nominees, to speed up Presidential nominees, and to put 272 of them at a privileged status so they could come through more rapidly. This goes in entirely the opposite direction, and it is a terrible precedent for this institution.

So I am extremely disappointed. I am disappointed for John Ryder, who is a prominent lawyer, who thought he might get to be on the TVA Board and was nominated 282 days ago. I am disappointed for the people of Tennessee and the Tennessee Valley Authority region. There are millions of people who have had a very good Chief Executive Officer for the TVA for the last several years in Bill Johnson and now need a fully functioning Board of Directors to pick his successor, and yet the Democrats say: Even though we approve of him, even though we have no reason not to confirm him, we are just going to slow the train down just because we can. Well, if they can, someone else can later. That does not serve the people well. I don’t see any partisan political advantage to the Democrats for doing something like this. I never have thought that. I always thought that it was the right thing to do to let a President staff his administration. If you don’t like the nominee, you can always vote no, but at least you can have a vote. So he is talking about bipartisan packages. This nominee has been waiting for a long, long time. So I am not through with this. I think this is something that the people of Tennessee are going to be very disappointed about, and I would ask my friend from New York again: “Why are you picking on Tennessee? Why would you confirm the Alabama nominee? Why would you confirm the Kentucky nominee? And why would you not confirm the Tennessee nominee? Why would you make him swing in the wind for 176 days when everybody approves of him—even the Democratic ranking member of the committee and Democratic ranking member of the subcommittee?”

Something smells here, and it is a bad precedent for the Senate. It is not good for our country, and it is completely contrary to the way that I have enjoyed working with the Senator from New York in 2011, 2012, 2013 to make it easier, then, for President Obama, but later for every President of the United States, to have his Presidential nominees promptly considered by the Senate and voted up or down.