Speeches & Floor Statements

Floor Remarks of U.S. Senator Lamar Alexander (R-Tenn.) -- District Court Nominations and Cloture

Posted on March 13, 2012

Mr. President, I listened with great interest to the Senator from California. 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 4 or 5 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 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 cybersecurity -- 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 2 years of the Obama administration, he nominated 78 district judges, and 76 of those were confirmed -- 76 of 78 nominated in the first 2 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, 6 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 2 years of this President, and last year, confirming 61. This year, of the 17 the majority leader filed the cloture motions on, 6 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 escalating 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 5 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, cybersecurity, 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 just 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 2 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, cybersecurity, and the big issues the American people would like us to deal with.

I ask unanimous consent that, following my remarks, some documentation about the progress of district judge nominations of the 111th and 112th Congress be printed in the Record.