Speeches & Floor Statements
Posted on March 9, 2005
During the last session of Congress, Democratic senators blocked an up or down vote 20 times on 10 of President Bush’s nominees for the federal appellate courts. Filibusters were threatened against five more judicial nominees. With one possible exception, this had never happened before. The Senate has a 200-year tradition of majority rule when it comes to confirming judges. In fact, until the last session of Congress, the idea of not voting on a president’s judicial nominee once it reached the floor was unthinkable. It would be difficult to imagine a case in which passions ran higher than during the confirmation proceedings for Justice Clarence Thomas in 1991. Yet, the first President Bush nominated him in July of 1991, and three months later the Senate voted to confirm him, 52 to 48. There was never any discussion of blocking his nomination by blocking an up or down vote. So in the spirit of compromise, I would like to once again offer my solution for avoiding what some in the minority call the “nuclear option” that would change senate rules to prevent filibusters of President Bush’s judicial nominees. In an address on this floor two years ago, March 17, 2003, I said that I would reserve the right to vote against any judicial nominee of any president but that I would not filibuster the qualified court nominee of any president. That was before I knew whether the president would be named Bush or Kerry. This is what I said then: “Before I finish my remarks, I make this pledge: I may be here long enough, and I hope it is awhile, before I have an opportunity to cast a vote for a nominee for a federal judgeship that is sent over by a Democratic president, but I can pledge now how I will cast my vote. It will be the same way I appointed 50 judges when I was governor. I look for good character. I look for good intelligence. I look for good temperament. I look for good understanding of the law and of the duties of judges. I will look to see if this nominee has the aspect of courtesy to those who come before the court. I will reserve the right to vote against some extremists, but I will assume that it is unnecessary and unethical for the nominee to try to say to me how he or she would decide a case that might come before him or her. When it comes time to vote, when we finish that whole examination, I will vote to let the majority decide. In plain English, I will not vote to deny a vote to a Democratic president's judicial nominee just because the nominee may have views more liberal than mine. That is the way judges have always been selected. That is the way they should be selected. Mr. President that was my pledge two years ago and that is my pledge today. If a few other Senators of both parties would individually make this same pledge - to eventually allow up and down votes on all judicial nominees - then there would be an end to the discussion of the nuclear option. I have no doubt that changing the Senate’s cloture rule by a majority vote is clearly constitutional. Some have argued that the Senate’s cloture rule, which allows just 41 senators to block up or down votes, carries over from one Congress to the next by Rule 5. But no less an authority than the distinguished senior senator from West Virginia, when he was majority leader, argued very persuasively and with his great common sense that this is not true. According the senator from West Virginia: “This Congress is not obliged to be bound by the dead hand of the past. The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have changed from time to time… So the members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding senates would be bound by that Senate…. It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any member of this body knows that the next Congress would not heed that law and would proceed to change it and would repeal it by majority vote. So, very simply, the Constitution provides that 51 senators can change Senate rules to allow a majority to cut off debate on a president’s nominee of an appellate court judge. That does not mean, however, that we ought to rush to make that change in that way. To extend the analogy, nuclear weapons have been effective in world history because of the threat of their use, not their actual use. That has been true as well on the Senate floor. In the debates on the adoption of Senate Rule XXII that raged on the Senate floor in 1917, and its later modifications from 1953 – 1959, and then 1960 – 1975, the debate and eventual compromises were driven by the threat of the constitutional option, which we are discussing today. Senator Specter, the chairman of the Judiciary Committee, has said that he “intends to exercise every last ounce of his energy to solve this problem without the nuclear option.” I hope he will continue that effort. The Senate protects the minority party’s rights for a reason. In his early writings about America, Alexis De Tocqueville warned that one of the potential failings of democracy would be the “tyranny of the majority.” South Africa succeeded in creating a constitutional government because the new black majority was willing to protect the minority rights of white citizens. And as we watch Iraq struggle to create a constitutional government, we know that a major sign of their success is whether they will be able to include and protect the rights of Sunnis who are only 20 percent of the country and who formerly dominated the country. I can remember when I came to the Senate as a legislative assistant to Howard Baker in 1967 that Republicans were the ones worrying about protecting minority rights. There were then 64 Democrats and 36 Republicans. In 1977, when I came back to the Senate staff for a few months to help Senator Baker when he was elected Republican leader, there were 38 Republicans. In 1979, when Senator Byrd made his persuasive arguments that a majority of the Senate could change Senate rules, there were 58 Democrats and 41 Republicans. So just as our Republican majority should be cautious about making changes that would lessen minority rights, I would respectfully suggest that the minority should be equally cautious about provoking such a change. One way of course to avoid provoking rules changes would be for Democratic senators who opposed the president’s nominees in the last session to look them over again and reconsider the basis for their opposition. For example, I believe if some of the senators on the other side would really study the record of Judge Charles Pickering of Mississippi, they’d be impressed with his commitment to civil rights at a time when that was hard to do - testifying in open court against the Grand Wizard of the Ku Klux Klan in 1967 and putting his children in public schools while others were putting theirs in so called “segregation academies.” Any senator who carefully looks at the record of former Attorney General Bill Pryor from Alabama, I believe would admire his record on civil rights and his willingness to separate his vies as a judge from his political philosophy. He was law clerk for Judge John Minor Wisdom, probably the leading civil rights federal judge of the last century. And Bill Pryor showed as attorney general, that he could take a position on abortion, on prayer before football games, on reapportionment, and on the Ten Commandments that were at odds with his personal views because he believed the decisions of the Supreme Court and the United States Constitution required it. Both Judge Pickering and Judge Pryor have served in recess appointments and have even more of a record now to consider favorably. But the other way to avoid a lengthy and damaging procedural battle is simply for individual senators now to declare their willingness to support allowing an up or down vote of any qualified nominee for the bench by any president. This would apply to this Republican president’s nominees or to some future Democratic president’s nominees. I do not know what terrible grievance in the past caused such strong feelings on the other side that they would take these unprecedented steps to block an up or down vote on nominees once they get to the floor. As I’ve said, there is a 200-year tradition in this body to moving to an up or down vote. It never happened like this before, and if it continues – even though I hope it does not - it will almost certainly force a Senate rules change. I hope we don’t come to that. I’ve suggested two ways to avoid it. I have taken a step myself to forgo some of my rights as an individual senator as one way to help to solve the problem. I hope others do the same. I ask unanimous consent that my remarks from March 17, 2003 be included in the record.