Speeches & Floor Statements

Floor speech: Breaking the rules of the Senate would be Obamacare II

Posted on November 20, 2013

    This weekend, Vanderbilt plays Tennessee in a football game in Knoxville.  Let's say Vanderbilt gets on the one-yard line of Tennessee, and Tennessee then says:  ‘Well, we are the home team.  Let's add 20 yards or whatever it takes to win the game.’  Or let's say in the World Series recently the Red Sox were behind St. Louis in the ninth inning and the Red Sox said:  ‘Well, we are the home team.  Let's add a couple of innings or whatever it takes to win the game.’  Everyone, I think, would say that is cheating.  Everyone would say:  ‘You are destroying the game’ of football or baseball. 

            If a home team could change the rules at any time during the game or whatever it takes to win the game, what kind of game is it?  That is what Senator Vandenberg said after World War II and Senator Levin repeated to all of us -- that a Senate in which a majority can change the rules any time the majority wants to change the rules is a Senate without any rules. 

            Yet we hear that is what the Democratic majority may be seeking to do this week.  They are unhappy, they say, that Republicans have said it is premature to vote up or down on three circuit judges nominated by President Obama -- even though that was exactly the position of the Democratic senators in 2006 and 2007 when they argued that the D.C. Circuit Court is underworked and that we should transfer judges from where they are needed the least to where they are needed the most.  So they are going to change the rules of the game during the game or whatever it takes to get the results they want. 

            We have a lot of new senators on both sides of the aisle.  Nearly half the Senate, 44 members, are in their first term.  It is important for them to remember that in Senator Reid's book he said that to do this would be the end of the U.S. Senate, that Senator Robert Byrd -- probably the most distinguished Senate historian in its history -- said in his last speech to us that the filibuster is the necessary fence against the excesses of the majority and of the executive.  It is the fence against what de Tocqueville called in the early 1830s the greatest danger to our country that he saw, which was “the tyranny of the majority.”

            You may ask, how could this possibly happen?  Here is how I am afraid it is happening.  Sometimes we get off in our rooms by ourselves -- and Republicans do it as well as Democrats -- and we give ourselves our own version of the facts.  The last time this came up, we tried to address this in the Old Senate Chamber.  I think all of us thought it was a pretty good session.  But this is my third opportunity to respond to these nuclear threats, and I am not going to do it again. 

            The president said during the government shutdown that he was not going to negotiate with a gun to his head -- neither will I.  Democrats have had their finger on the nuclear button for two years.  I hope they will reconsider.

            No. 1, I hope they will read Senator Leahy's letter, which I ask unanimous consent be printed in the Record.  It was signed in 2006 by all the Democratic members of the Judiciary Committee:  Senator Leahy, Senator Feinstein, Senator Kennedy, Senator Biden, Senator Schumer, Senator Durbin, Senator Feingold, and Senator Kohl.  These Senate Democrats said under no circumstances should we consider confirming a judge to the D.C. Circuit when it is so underworked.  So the Republican president and the Democratic Senate agreed with that and reduced the court’s size by one judge -- just the same argument being made today. 

            No. 2, any suggestion that the president's nominations are being held up is completely wrong.  I invited the Congressional Research Service into my office.  I asked that question.  They have said:  No.  President Obama's cabinet nominations in his second term are being considered at about the rate of those of President Clinton and President George W. Bush. 

            On every senator's desk is an Executive Calendar.  Every person who could be confirmed by the Senate is on this calendar.  There are about 11 pages.  The one who has been on there the longest goes back to February and six were reported in the summer.  But all the rest of them go back just to September 12 -- just a few weeks.  Most of them have been there just three or four weeks. 

            So people are not being held up.  The only way a nominee can be reported to the Senate floor is by a Democratic committee.  The only person who can bring them from the calendar to be confirmed is the Democratic leader.  Why doesn't he bring them to the floor and let them be confirmed? 

            In the history of the Senate -- and this is from the Congressional Research Service -- there have only been 17 executive nominees in its history who have failed to be seated because of a filibuster vote, a failed cloture vote.  There have been two under the Clinton administration, three in the Bush administration, two in the Obama administration.  There have been five Bush circuit judges and five Obama circuit judges.  Never a Supreme Court Justice -- there was a little exception with Abe Fortas, which was different -- never a district court judge, and never a Cabinet member denied a seat by a filibuster – a failed cloture vote.  So where is the crisis? 

            In conclusion, I would make this suggestion:  I think what makes Americans angry about Obamacare is it is taking us in the wrong direction, it is the 3,000-page bill, but as much as anything else it is the raw exercise of political power in the middle of the night during a snowstorm to pass a bill by a partisan vote, without any bipartisan support. 

            If the Democrats proceed to use the nuclear option in this way, it will be Obamacare II: It will be another raw exercise of partisan political power to say we can do whatever we want to do.”          

            Grantland Rice, a famous sportswriter, once said:  "It's not whether you win or lose, it's how you play the game."  In this case, it is not so much what the rule is, it is how you change the rule.  There have always been a few senators on either side of the aisle who care enough about our institution and enough about our Constitution of checks and balances to stop a stampede that we will later regret.  I hope that will be true again.  I hope we will resist turning the Senate into an institution where the home team can cheat to win the game, to get whatever result it wants at any time it wants.  Because as Senator Vandenberg said, and Senator Levin has repeated:  A Senate where a majority can change the rules any time it wants is a Senate without any rules at all. 

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