Speeches & Floor Statements

Floor speech on presidential nominations and preserving the Senate

Posted on July 11, 2013

I thank the majority leader for his statement, for the time he has spent. 

I was looking at the Executive Calendar.  But, first, I have spent most of this week working on the student loan issue, as the majority leader knows.  And we are coming to an agreement, it looks like, as we have with a number of other things.  But I would like to renew to the majority leader the suggestion that we all get together next week and talk this through, as the senator from Mississippi has suggested.  I think it would be a wise thing to do. 

There are other senators here who wish to speak, so I will try to be succinct.  Let me address just a few of the points the majority leader made. 

One reason I think it would be wise for us to get together as Democratic and Republican senators is what he is saying is different from the way I read the facts, and one of us has to be wrong about that. 

For example, have Republicans used the filibuster to deny President Obama's nominees a position in government?  The answer is a fact.  I invited the Senate historian and the Congressional Research Service over to my office.  I asked them the question.  Here is the answer to the question:  In the history of the Senate, no Supreme Court Justice has ever been denied his or her seat by a filibuster.  There was a little incident with Justice Fortas that Lyndon Johnson engineered, but that was different.

So in the cases of the Supreme Court, zero. How many district judges have been denied their seat by filibuster?  The answer is zero. 

How many Cabinet members have been denied their seat by a failed cloture vote filibuster?  The answer, according to the Senate historian and the Congressional Research Service, is zero. 

How many circuit judges have been denied their seat by a filibuster?  The answer is seven.  How did that happen?  Democrats, for the first time in history, when President George W. Bush came in, blocked five.  And we said:  Well, if you are going to change the precedent, then we will change the precedent, so we blocked two.  That is what happens around here.  But other than that, it is zero. 

Then the majority leader said there has been some big delay about President Obama's nominees.  These are not throwing statistics around.  That is either true or it is not true. 

Here is what the Washington Post says and the Congressional Research Service says.  The Washington Post, by Al Kamen, on March 18, 2013:  President Obama's second-term Cabinet members are going through the Senate at a rate that "beats the averages of the last three administrations that had second terms." 

President Obama is being better treated in terms of his Cabinet nominees than the last three Presidents. 

I asked the Congressional Research Service the same question.  They said:  As of June 27 -- last month -- his nominees were still moving, on average, from announcement to confirmation, faster than those of President George W. Bush, faster than those of President Clinton.

Someone in the Democratic caucus needs to hear this.  The number of Cabinet nominees who have been denied a seat by filibuster is zero.  President Obama's Cabinet nominees are moving through the Senate faster than his last three predecessors.  That is important information. 

            Now, are there a lot of nominees sitting around for too long a period of time?  I have the thing we call the Executive Calendar right here.  Senator McConnell referred to it.  I could go through it quickly.  I count 24 people on the calendar.  The one who has been on there the longest was reported by committee on February 26 of this year.  That is a little over four months ago. 

Let's be very elementary about this.  The only way you get on this calendar is to be reported out of committee.  The only way you get out of committee is for the Democratic majority to vote you on to this calendar.  So we can fill this calendar up any time the Democratic committee majority wants to. 

Of the people here, there is a brigadier general named Long.  The committee has asked that we hold that.  There is Jacob Lew to the International Monetary Fund.  Bring him up.  Bring him up.  He will be confirmed. 

Let's go back to that.  The only way you get a name to a vote on the floor is if the majority leader brings his name to the floor.  Jacob Lew has been reported from committee since April 16.  Bring him up. 

Here is an Air Force person.  Here is Ms. McCarthy from Massachusetts.  She has been reported from the committee.  Bring her up.  The Republican leader has said she will get cloture.  That means she will be confirmed.  He said the same thing about the nominee for the Department of Labor.  He has been reported since May 16. 

I am not a very controversial person.  I was held up for 88 days by an ill-tempered Democratic senator, for what I thought was no good reason, relying on  article II, section 2 of the Constitution's right to advise and consent.  President Reagan's nominee for Attorney General, Ed Meese, was held up for one year, and nobody thought about changing the rules of the Senate because it used its constitutional authority to advise and consent. Former Senator Rudman was held up by his home state senator until Rudman withdrew his name, and then he ran against that senator and was elected to the Senate. 

The advice and consent responsibility of the Senate has gone on since the days this country was founded.

If you go down through this list of people, there are only 24 on the list.  He could bring them all up.  And 24 is not very many. 

Then it reminds me that right after that are the privileged nominations.  What are those?  Those are the result of our rules changes which removed a number of people from presidential confirmation and created a whole new category for several hundred executive positions so they do not go through a more cumbersome process, and that is working very well. 

So zero filibusters denying nominations, Cabinet members going through the Senate more rapidly than the last three presidents.  So what is the beef?  What is going on?  There are only three judges on this calendar, an embarrassingly small number for us to deal with.  We could clear this calendar in one afternoon.  How do we do that?  The majority leader brings them up -- except for three who are illegally appointed. 

Now, I will not go into a long thing about the three illegally appointed, except to say they are illegally appointed. 

Most of the Founders of this country did not want a king.  They created a system of checks and balances, and they created a Congress. And they created an ability for us to restrain an imperial Presidency.  That is what this advice and consent is supposed to do, and we should exercise that, as former Senator Byrd used to say most eloquently on this floor.  It is our opportunity to answer questions.  Just because the majority leader seeks to cut off debate does not mean that person is being denied confirmation. 

I will give you an example:  Secretary Hagel.  The majority leader tried to cut off debate two days after he came to the floor from the committee.  We said:  We want a little more time to consider this.  We will be glad to vote for him for cloture in 10 days.  He went ahead with the cloture vote and called that a filibuster.  But Secretary Hagel is sitting in his spot as secretary of defense today. 

So you can go down through all of these nominations and really find no evidence -- no evidence whatsoever.  So we need a meeting of the two caucuses to say:  What is going on?  Why are you seeking to do this? 

The last thing I would like to say is, it is appropriate from time to time in the case of subcabinet members to use the cloture to deny a seat.  That has happened seven times.  John Bolton was one that the Democrats did to President Bush. 

As I conclude my remarks, I would like to say this:  The majority leader said:  Well, we have changed the rules 18 times. 

Never like this.  What he is proposing to do is to turn this body into a place where the majority can do whatever it wants to do.  That is like the House of Representatives -- so the majority can do whatever it wants to do.  A freight train can run through the House of Representatives in one day, and it could run through here in one day if the majority leader does this.  This year it might be a Democratic freight train.  In a year and a half it might be the tea party express.  There are a lot of people on that side of the aisle who might be very unhappy with the agenda that 51 people who have creative imaginations on this side of the aisle could do if they could do anything they wanted to do with 51 votes. 

I like to read a lot of history.  John Meacham's book about Jefferson has a conversation between Jefferson and Adams at the beginning of our country.  They were president and vice president, I guess, at the time.  Jefferson said to Adams he feared for the future of the Republic if it did not have a Senate.  "[N]o republic could ever last which had not a Senate....[T]rusting the popular assembly" -- that means the House, that means a majority vote institution -- "for the preservation of our liberties....[is] the merest chimera” -- or illusion -- “imaginable."

One other distinguished public servant said the same thing in his book in 2007.  This is what Harry Reid said in his book when he wrote about the nuclear option.  He was talking about the then-majority leader, Senator Frist.  He decided to pursue a rules change that would kill the filibuster for judicial nominations. 

“Senator Frist of Tennessee, who was the Majority Leader, had decided to pursue a rules change that would kill the filibuster for judicial nominations.” This is Harry Reid writing.  “And once you opened that Pandora's box –” said Senator Reid – “it was just a matter of time before a Senate leader who couldn't get his way on something moved to eliminate the filibuster for regular business as well.” Senator Reid wrote: “And that, simply put, would be the end of the United States Senate.”

I do not want Senator Reid to have written on his tombstone he presided over the end of the Senate.  Yet if he does what he is threatening to do, that would be what he is remembered for in the history of this country. 

# # #