April 28, 2005
Diagnosing The Filibuster Issue
By Senator Orrin Hatch

(Note: Senator Hatch delivered the following remarks yesterday on the floor of the United States Senate)

Mr. President, in politics as in medicine, an effective prescription begins with an accurate diagnosis. I would like to take a step back and offer a diagnosis of our current struggle over how to conduct the judicial confirmation process. I hope this will bring a few pieces together, connect some dots, and provide a little perspective.

Mr. President, the first principle is that every judicial nomination reaching the Senate floor deserves an up or down vote. This principle has constitutional roots, historical precedent, and citizen support.

I begin with the Constitution because that is where we should always begin.

The Constitution is the supreme law of the land. Along with the Declaration of Independence, it is one of the foundational organic laws of the United States.

It is the charter that each of us, as Senators, swears an oath before God to preserve, protect, and defend.

That Constitution separates the three branches of government, assigning legislation to us in the legislative branch and assigning appointments to the President in the executive branch.

We have heard that the Constitutional Convention considered other arrangements for appointing judges. That may be, but the Constitutional Convention rejected those arrangements. Rejected ideas do not govern us, the Constitution does. And the Constitution makes the President, in Alexander Hamilton’s words, the principal agent in appointments, while the Senate is a check on that power.

Giving judicial nominations reaching the floor an up or down vote, that is, exercising our role of advice and consent through voting on nominations, helps us resist the temptation of turning our check on the President’s power into a force that can destroy the President’s power and upset the Constitution’s balance.

Historically, we have followed this standard. When Republicans ran the Senate under President Clinton, we gave each of his judicial nominations reaching the floor a final confirmation decision. We took cloture votes, that is, votes to end debate, on just four of the hundreds of nominees reaching us here. All four were confirmed.

In fact, even on the most controversial appeals court nominations by President Clinton, the Republican leadership used cloture votes to prevent filibusters and ensure up or down votes, exactly the opposite of how cloture votes are used today.

Mr. President, this principle that every judicial nomination reaching the Senate floor deserves an up or down vote not only has constitutional roots and historical precedent, it also has citizen support. I saw in the Washington Post yesterday a poll framed in partisan terms, asking whether Senate rules should be changed “to make it easier for the Republicans to confirm Bush’s judicial nominees.”

With all due respect, this question could easily have been written in the Democrats’ new public relations war room. I am actually surprised that such a biased question did not get more than 66 percent support.

A more balanced, neutral, fair poll was released yesterday, asking whether Senate procedures should make sure that the full Senate votes, up or down, on every judicial nomination of any President. The results, not surprisingly, were exactly the opposite of the biased poll, with 64 percent of Americans, including 59 percent of moderates and almost half of liberals, embracing this common sense, fair, and traditional standard.

Mr. President, the second aspect of this diagnosis is that the judicial nominees being denied this traditional up or down vote are highly qualified men and women with majority bipartisan support.

Last week, I addressed how opponents of President Bush’s nominees play games with words like "extremist".

Just as they want to talk about a judicial appointment process the Constitution did not establish, these critics want to talk about everything but what these nominees would do on the bench. We know from abundant testimony by those who know these nominees best that, no matter how provocative their speeches off the bench or strongly held their beliefs in their hearts and minds, these nominees are or would be fair, impartial, and even-handed on the bench.

That is the real standard.

Mr. President, it is hard to believe that we are actually arguing over whether we should vote on judicial nominations and whether highly qualified nominees with majority support should be confirmed. And yet, the third part of this diagnosis is that Senate Democrats are trying to change our tradition of giving judicial nominations reaching the Senate floor an up or down vote.

Senators, of course, are free to vote against them for any reason and we must, of course, have a full and vigorous debate about these nominees and their qualifications.

The critics, however, do not want to have that debate.

Democrats in this body, and the left-wing interest groups that to a certain extent seem to control them, want only to seize what they cannot win through the fair, traditional system. Beginning in the 108th Congress, for the first time in American history, they are now using the filibuster not to debate, but to defeat, majority supported judicial nominations.

They are trying to rig the confirmation process, to pry us away from our tradition that respected the separation of powers, and force us into a brave new world which turns the judicial appointment process inside out. They want to turn our check on the President’s appointment power into a force that highjacks that power altogether. That would be serious, and constitutionally suspect, if a Senate majority did it. It is even more serious when, as we see today, a minority of Senators tries to capture the process.

For two years now, we have heard claims that these filibusters are nothing new, that they have been part and parcel of how the Senate has long done its confirmation business. While some questions in this debate may be subjective and complex, this is not one of them. The current filibusters target majority supported judicial nominations and defeat them by preventing confirmation votes. Either that happened before the 108th Congress or it didn’t.

Mr. President, let us look at what our Democratic colleagues have claimed.

On March 11, 2003, Senator Leahy displayed here on the Senate floor a chart titled Republican Filibusters of Nominees. He said his list proved that Republicans have “succeeded in blocking many nominees by cloture votes.” Anyone can look it up for his or herself, the whole chart is right there on page S3442 of the Congressional Record.

It turns out that only six of the 19 names on the chart were judicial nominations, that the Senate actually confirmed five of them, and the other one did not have majority support.

Far from justifying today’s filibusters, Senator Leahy’s chart proved no precedent exists at all.

On November 12, 2003, Senator Leahy tried again, this time with a list of what he claimed were Clinton appeals court nominees supposedly blocked by Republicans.

Once again, the list included nominations the Senate confirmed.
How can a confirmed nomination be called a blocked nomination?

It cannot.

Not a single nomination on Senator Leahy’s list is similar to the nominations being filibustered today.

That same day, November 12, 2003, Senator Durbin named five judicial nominations which he said had been filibustered.

Once again, not one of them is a precedent for the filibusters happening today. You would think no one with a straight face would claim that ending debate and confirming nominations is somehow precedent for not ending debate and refusing to confirm nominations.

On April 15, 2005, the distinguished Assistant Minority Leader, Senator Durbin, expanded his previous list, now offering us 12 examples of what he said were judicial nominations requiring at least 60 votes for cloture to end a filibuster.

I addressed this in more detail last week. Not one of Senator Durbin’s supposed precedents is any precedent at all.

The first nomination on his list occurred in 1881, 36 years before we even had a cloture rule. In fact, if we truly did what he apparently wants us to do, and treated his listed examples as a confirmation guide, we would vigorously debate judicial nominations, invoke cloture if we needed to, and then vote on their confirmation.

This game continued as recently as two days ago.

On Monday, April 25, on CNN’s Crossfire program, the leader of a prominent left-wing group claimed that more than 30 nominations had been filibustered. I have their list in my hand right here, it is titled Filibusters of Nominations. It lists 13 judicial nominations, and not one of them is at all like the filibusters being conducted today.

We did not even take a cloture vote on two of them. We invoked cloture on eight of them. We confirmed 12 of them.
And one did not have majority support.

Accepting such fraudulent arguments requires believing that ending debate on judicial nominations is the same thing as not ending debate, that confirming judicial nominations is the same thing as not confirming them, and that judicial nominations without majority support are the same as those with majority support.

As you can see, Mr. President, the liberal propaganda machine has been working overtime.

In addition to the bizarre claims I just described, they work to turn what once was considered common sense and accepted fairness into something that sounds sinister and unseemly.

They manufacture nasty phrases like court-packing and ominous warnings about one-party rule. Now, we are told, preventing up or down votes on even majority supported judicial nominations is the only way to prevent our entire constitutional order from imploding.

The sky is falling, and we are all about to slide into the abyss.
The purveyors of this fantasy would have us look to President Franklin Delano Roosevelt who, they tell us, wanted to pack the Supreme Court. The Senate rejected his legislative proposal to expand the Court so he could appoint more Justices. By taking this stand, the storytellers say, the Senate kept one-party rule from packing the Court.

As Paul Harvey might say, here is the rest of the story.

The Senate, even though dominated by President Roosevelt’s own party, did not support this legislative plan. And it turns out President Roosevelt did not need any legislative innovations to pack the Supreme Court. He packed it all right, doing it the old-fashioned way, by appointing eight out of nine Justices in just six years. Mind you, during the 75th to the 77th Congress, Democrats outnumbered Republicans by an average of 70 to 20.

Now that is one-party rule.

In those years, from 1937 to 1943, our cloture rule applied only to bills. This meant that ending debate on other things, such as nominations, required unanimous consent. A single Senator in that tiny beleaguered minority could conduct a filibuster of President Roosevelt’s nominations and thwart the real court-packing that was in full swing.

If the filibuster were the only thing preventing one-party rule from packing the courts, and the filibuster were so easily used, surely there were filibusters of President Roosevelt’s Supreme Court nominations. If the warnings, frantic pleas, and hysterical fundraising appeals we hear today make any sense at all, the filibuster would certainly have been used in FDR’s time.

I hate to burst anyone’s bubble, but there were no filibusters, not even by a single Senator, not against a single nominee. In fact, FDR’s eight Supreme Court nominees were confirmed in an average of just 13 days, and six of the eight without even a roll call vote.

Even when we look at the very examples and stories the other side uses, we see no support for using the filibuster against majority supported judicial nominations.

Last week, here on the Senate floor, Senator Durbin repeated a selective version of this FDR story and asked what would happen today in a Senate dominated by the President’s party. He asked: “Will they rise in the tradition of Franklin Roosevelt’s Senate?”

Mr. President, I hope we do.

I hope the Senate does exactly what Franklin Roosevelt’s Senate did, by debating and voting on the President’s judicial nominations. Franklin Roosevelt’s Senate did not use the filibuster, even when the minority was much smaller and the filibuster much easier to use, and this Senate should not either.

Finally, Mr. President, the fourth piece to this diagnosis of our current situation is that Senate Democrats have threatened to shut down the Senate if the majority moves us back to the tradition of debating and voting on judicial nominations. To avoid doing what most Americans believe Senators come to Washington to do, debate and vote, we are now threatened with a party policy of open obstruction.

I said a few minutes ago that the Constitution’s separation of powers assigns legislative business to Congress and executive business, including appointments, to the President.

Senators on the other side of the aisle are saying that if they cannot highjack what is not theirs, they will destroy what is theirs. If they cannot abandon Senate tradition and use the filibuster to defeat majority supported judicial nominations, they will undercut and disable the legislative process.

And they call us radical.

Mr. President, the Constitution gives the power of nomination and appointment to the President. The Senate provides a check on that power. I believe we must preserve that system of separated powers and checks and balances and resist those who would radically alter that system, turning the Senate’s check on the President’s power into a force that can overwhelm the President’s power.

Mr. President, every judicial nomination reaching the Senate floor deserves an up or down vote. That principle has constitutional roots, historical precedent, and citizen support.

President Bush has sent highly qualified nominees who we know have bipartisan majority support. They deserve to be treated decently and, after a full and vigorous debate, given an up or down vote.

Senate Democrats are trying to change our tradition. For the first time in more than two centuries, they want to use filibusters to block confirmation votes on judicial nominations here on the Senate floor. This radical innovation is not needed to prevent one-party rule from packing the courts; Republicans resisted using the filibuster under Roosevelt, and Democrats should resist using it today.

And finally, all Americans should be most concerned with the threats of Senate Democrats. Because they are unable to seize control of a judicial appointment process that does not belong to the Senate, Democrats say they will shut down the legislative process that does belong to the Senate.

This cannot stand.

With all due respect, they need to get both their principles and their priorities in order.

Our former Majority Leader Bob Dole has a thoughtful column in today’s New York Times also addressing Senate tradition and the prospect of returning to that tradition. No one loves this institution more than Senator Dole, and I ask unanimous consent that his column be placed in the Record.

As our current Majority Leader Bill Frist put it a few days ago, I never thought it was a radical thing to ask Senators to vote. That is what we have traditionally done on judicial nominations that reach the floor, and that traditional standard should apply across the board, no matter which party controls the White House and no matter which party controls the Senate.

That is the diagnosis, Mr. President, and I hope we see an effective cure soon so we can get back to doing the people’s business.

I yield the floor.

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