Wednesday, May 11, 2005

Orrin Hatch's "Top 10 most ridiculous judicial filibuster defenses."

Mr. HATCH. Mr. President, yesterday marked the fourth anniversary of President Bush's first judicial nominations, a group of 11 highly qualified men and women nominated to the U.S. courts of appeals.

As I said in the East Room at the White House on May 9, 2001: I hope the Senate will at least treat these nominees fairly. Many of our Democratic colleagues instead chose to follow their minority leader's order issued days after President Bush took office, to use ``whatever means necessary'' to defeat judicial nominees the minority does not like.

While the previous 3 Presidents saw their first 11 appeals court nominees confirmed in an average of just 81 days, today, 1,461 days later, 3 of those original nominees have not even received a vote, let alone been confirmed. Three have withdrawn.

In 2003, the minority opened a new front in the confirmation conflict by using filibusters to defeat majority-supported judicial nominees. This morning I will briefly address the top 10 most ridiculous judicial filibuster defenses. Time permits only brief treatment, but it was difficult to limit the list to 10.

9. JUDICIAL NOMINATIONS -- (Senate - May 10, 2005)


It's rather long so you'll have to click the link to read it in full. Here's a few that caught my eye.


No. 8 on this list is the claim that without the filibuster the Senate would be a patsy, nothing but a rubberstamp for the President's judicial nominations. To paraphrase a great Supreme Court Justice: If simply stating this argument does not suffice to refute it, our debate about these issues has achieved terminal silliness. Being on the losing side does not make one a rubberstamp.

For all of these centuries of democratic government, have we seen only winners and rubberstamps? Was the famous tag line for ABC's Wide World of Sports ``the thrill of victory and the agony of rubberstamping''? Democrats did not start filibustering judicial nominations until the 108th Congress. Imagine the history books describing the previous 107 Senates as the great rubberstamp Senates. Did Democrats rubberstamp the Supreme Court nomination of Clarence Thomas in 1991 since they did not use the filibuster? That conflict lasting several months and concluding with that 52-to-48 confirmation vote did not look like a rubberstamp to me.

Some modify this ridiculous argument by saying this applies when one party controls both the White House and the Senate. They make the stunning observation that Senators of the President's party are likely to vote for his nominees. The assistant minority leader, Senator Durbin, recently said, for example, that Republican Senators are nothing but ``lapdogs'' for President Bush.

Pointing at others can be dangerous because you have a few fingers pointing back at yourself. Counting both unanimous consent or rollcall votes, more than 37,500 votes were cast here on the Senate floor on President Clinton's judicial nominations. Only 11 of them, just a teeny, tiny, three one-hundredths of 1 percent, were ``no'' votes from Democrats--only 11 of 37,500. Were they just rubberstamping lapdogs in supporting President Clinton?


No. 6 on the list is that these filibusters are necessary to prevent appointment of extremists.

What our Democratic colleagues call ``extreme'' the American Bar Association calls ``qualified.'' In fact, all three of the appeals court nominees chosen 4 years ago who have been denied confirmation received the ABA's highest ``well qualified'' rating. Now, that was the gold standard under the Democrats when Clinton was President. The same Democrats who once called the ABA rating the gold standard for evaluating judicial nominees now disregard it and call these people extreme.


No. 4 on the list is that returning to Senate tradition regarding floor votes on judicial nominations would amount to breaking the rules to change the rules. As any consultant worth even a little salt will tell you, that is a catchy little phrase. The problem is that neither of its catchy little parts is true.

The constitutional option, which would change judicial confirmation procedure through the Senate voting to affirm a parliamentary ruling, would neither break nor change Senate rules. While the constitutional option has not been used to break our rules, it has been used to break filibusters.


No. 2 on the list is that preventing judicial filibusters will doom legislative filibusters. As you know, there are two calendars in the Senate. One is the legislative calendar. I would fight to my death to keep the filibuster alive on the legislative calendar to protect the minority. But then there is the executive calendar, which is partly the President's in the sense that he has the power of appointment and nomination and sends these people up here and expects advice and consent from the Senate. Advice we give. Consent we have not given in the case of these nominees who have been filibustered, or so-called filibustered.

No. 2 on the list is that preventing judicial filibusters, they claim, will doom legislative filibusters. That's pure bunk. Our own Senate history shows how ridiculous this argument really is. Filibusters became possible by dropping the rule allowing a simple majority to proceed to a vote. The legislative filibuster developed, the judicial filibuster did not. What we must today limit by rule or ruling we once limited by principle or self-restraint--for 214 years, that is. The filibuster is an inappropriate obstacle to the President's judicial appointment power but an appropriate tool for exercising our own legislative power. I cannot fathom how returning to our tradition regarding judicial nominations will somehow threaten our tradition regarding legislation. The only threat to the legislative filibuster and the only votes to abolish have come from the other side of the aisle. In 1995, 19 Senators, all Democrats, voted against tabling an amendment to our cloture rule that would prohibit all filibusters of legislation as well as nominations. As this chart shows, nine of those Senators still serve with us and their names are right here on this chart.


The No. 1 most ridiculous judicial filibuster defense is that those wanting to filibuster Republican nominees today opposed filibustering Democratic nominees only a few years ago. In a letter dated February 4, 1998, for example, the leftwing urged confirmation of Margaret Morrow to the U.S. District Court for the Central District of California. They urged us to ``bring the nomination to the Senate, ensure that it received prompt, full and fair consideration, and that a final vote on her nomination is scheduled as soon as possible.'' Groups signing this letter included the Alliance for Justice, Leadership Conference on Civil Rights, and People for the American Way. As we all know, these leftwing groups today lead the grassroots campaign behind these filibusters that would deny this same treatment to President Bush's nominees. Their position has changed as the party controlling the White House has changed.

Let me make it easy for the ``hypocrite patrol'' to check out my position on the Morrow nomination. In the February 11, 1998, Congressional Record, on page S640, three pages before that letter from the leftwing groups appears, I opened the debate on the Morrow nomination by strongly urging my fellow Senators to support it. We did, and she is, today, a sitting Federal judge, as I believe she should be. The same Democrats who today call for filibusters called for up-or-down votes when a Democrat was in the White House.

Let me refer to chart 10 here. I will just give some illustrations. In 1999, my dear friend from California, Senator Feinstein, a person I have great love and respect for, a Member of the Senate Judiciary Committee, said of the Senate:

It is our job to confirm these judges. If we don't like them, we can vote against them.

She said:

A nominee is entitled to a vote. Vote them up, vote them down.

Let me go to chart 11. Another committee member, Senator Schumer, properly said in March 2000:

The President nominates and we are charged with voting on the nominees.

He was right.

Let me refer to chart 12. I have already quoted the Senator from California, Senator Boxer once, but in 2000 she said that filibustering judicial nominees:

..... would be such a twisting of what cloture really means in these cases. It has never been done before for a judge, as far as we know--ever.

I appreciate what another member of the Judiciary Committee, Senator Kohl, said in 1997:

Let's breathe life back into the confirmation process. Let's vote on the nominees who have already been approved by the Judiciary Committee.

Well, let me go to chart 14. The Senator from Iowa, Senator Harkin, who fought so strongly against the legislative filibuster in 1995, said, 5 years later, about the judicial filibuster:

If they want to vote against them, let them vote against them. But at least have a vote.

The same view comes from three former Judiciary Committee chairmen, members of the Democratic leadership. Let me refer to chart No. 15. A former committee chairman, Senator Biden, said in 1977 that every judicial nominee is entitled:

To have a shot to be heard on the floor and have a vote on the floor.

Former chairman, Senator EDWARD KENNEDY, said in 1998:

If Senators don't like them, vote against them. But give them a vote.

And my immediate predecessor as chairman, Senator Leahy, said a year later, judicial nominees are:

entitled to a vote, aye or nay.

Now, the assistant minority leader, Senator Durbin, had urged the same thing in September 1998:

Vote the person up or down.

Vote the person up or down.

Finally, Mr. President, the minority leader, Senator Reid, expressed in March 2000 the standard that I hope we can reestablish:

Once they get out of committee, bring them down here and vote up or down on them.

The majority leader, Senator Frist, recently proposed a plan to accomplish precisely this result. But the minority leader dismissed it as--I want to quote this accurately now--

A big fat wet kiss to the far right.

I never thought voting on judicial nominations was a far-right thing to do.

These statements speak for themselves. Do you see a pattern here? The message at one time seems to be let us debate and let us vote. That should be the standard, no matter which party controls the White House or the Senate.

Mr. President, as I close, let me summarize these 10 top most ridiculous judicial filibusters in this way. Blocking confirmation of majority-supported judicial nominations by defeating cloture votes is unprecedented. In the words of the current Judiciary Committee chairman, Senator Specter:

What Democrats are doing here is really seeking a constitutional revolution.

We must turn back that revolution. No matter which party controls the White House or Senate, we should return to our tradition of giving judicial nominations reaching the Senate floor an up-or-down vote. Full, fair, and vigorous debate is one of the hallmarks of this body, and it should drive how we evaluate a President's judicial nominations.

Honoring the Constitution's separation of power, however, requires that our check on the President's appointment power not highjack that power altogether. This means debate must be a means to an end rather than an end in itself. Senators are free to vote against the nominees they feel extreme, but they should not be free to prevent other Senators from expressing a contrary view or advising and consenting. In this body, we govern ourselves with parliamentary rulings as well as by unwritten rules. The procedure of a majority of Senators voting to sustain a parliamentary ruling has been used repeatedly to change Senate procedure without changing Senate rules, even to limit nomination-related filibusters.

I have tried to deal with the substance of our filibuster proponents' arguments, albeit with some humor and maybe a touch of sarcasm. A few days ago, as the Salt Lake Tribune reported, the minority leader was in my State:

..... stopping just short of calling Utah Senator ORRIN HATCH a hypocrite.

That is at least how the newspaper described it. That is not what I consider to be a substantive argument. Perhaps those who dismiss their opponents as liars, losers, or lap dogs have nothing else to offer in this debate. Yet debate we must, and then we must vote.

Mr. President, how much remaining time do I have?

The ACTING PRESIDENT pro tempore. The Senator has 1 minute remaining.

Mr. HATCH. Let me just make this point. We confirmed, in 6 years of Republican control of the Senate, 377 judges for President Clinton. That was five less than the all-time confirmation champion Ronald Reagan. All of these people who are up have well-qualified ratings from the ABA, all had a bipartisan majority to support them. What is wrong with giving them an up-or-down vote and retaining 214 years of Senate tradition? What is wrong with that? I think it is wrong to try and blow up that tradition the way it is being done.

With that, I yield the floor.

I suggest the absence of a quorum.