April 28, 2005
Ending the Judicial Nomination Impasse

By Senator Bill Frist

(Note: Majority Leader Frist delivered the following remarks on the floor of the United States Senate today.)

Throughout the judicial obstruction debate, emotions have run high on both sides. This should remind all of us, once again, of the need to return civility to our nation’s capital.

The American people want their elected leaders to work together to find solutions. To them -- doing what’s Republican or Democrat matters far less than doing what’s right for our country.

Let me briefly discuss how we got here.

Never in 214 years -- never in the history of the Senate -- had a judicial nominee with majority support been denied an up-or-down vote…until two years ago.

In the last Congress, the President submitted 34 appeals court nominees to the Senate. A minority of senators denied ten of those nominees -- and threatened to deny another six -- up-or-down votes.

They wouldn’t allow votes, because they knew the nominees would be confirmed and become judges. The nominees had the support of a majority of senators.

Now, in this new Congress, the same minority says it will continue to obstruct votes on judges. And, even worse, if they don’t get their way, they threaten to shut down the Senate and obstruct government itself.

Throughout this debate, we have held firm to a simple principle -- judicial nominees deserve up-or-down votes. Vote for them. Vote against them. But give them the courtesy of a vote.

Yet judicial nominees have not been given that courtesy. They’ve gone 2, 3, even 4 years without a vote. Now 46 seats on the federal bench are vacant -- as case after case and appeal after appeal stack up.

One nominee -- Priscilla Owen -- has served 10 years as a justice on the Texas Supreme court. She won reelection with 84% of the vote in Texas, yet she can’t get the courtesy of a vote to be confirmed by the Senate.

Judicial nominees are being denied. Justice is being denied. The solution is simple -- allow Senators to do their jobs and vote.

In the spirit of civility and with sincere hope for a solution, I make an offer.

This offer will ensure up or down votes on judicial nominees after fair, open, and, some might say, exhaustive debate. It’s a compromise that holds to constitutional principles.

First, never in the history of the Senate had a judicial nominee with majority support been denied an up-or-down vote until two years ago. However, it was not unprecedented either for Republicans or Democrats to block judicial nominees in committee.

Whether on the floor or in committee, judicial obstruction is judicial obstruction. It’s time for judicial obstruction to end no matter which party controls the White House or the Senate.

The judiciary committee will continue to play its essential oversight and investigative roles in the confirmation process. But the committee -- whether controlled by Republicans or Democrats -- will no longer be used to obstruct judicial nominees.

Second, fair and open debate is a hallmark of the Senate. Democrats have expressed their desire for more time to debate judicial nominees. I respect that request and honor it.

When a judicial nominee comes to the floor, we will set aside up to 100 hours to debate that nomination. Then the Senate as a whole will speak with an up-or-down vote.

The Senate operated this way before we began to broadcast debates on television in 1986. This would provide more than enough time for every Senator to speak on a nominee while guaranteeing that nominee the courtesy of a vote.

Third, these proposals will apply only to appeals court and Supreme Court nominees. Judges who serve on these courts have the awesome responsibility of interpreting the Constitution.

So far, only up-or-down votes on appeals court nominees have been denied. I sincerely hope the Senate minority does not intend to escalate its judicial obstruction to potential Supreme Court nominees.

That would be a terrible blow to constitutional principles and to political civility in America. I hope my offer will make it unnecessary for the minority to further escalate its judicial obstruction.

Fourth, the minority of senators who have denied votes on judicial nominees are concerned that their ability to block bills will be curbed. As Majority Leader, I guarantee that power will be protected.

The filibuster -- as it existed before its unprecedented use on judicial nominees in the last Congress -- will remain unchanged.

Senator Reid and I have been talking almost every day on this issue. And I’m hopeful he’ll accept my offer as a solution. It may not be a perfect proposal for either side, but it’s the right proposal for America.

For 70% of the 20th Century, the same party controlled the White House and the Senate. Yet no minority ever denied a judicial nominee with majority support an up-or-down vote until the last Congress.

These minorities showed self-restraint. They treated judicial nominees with fairness. And they respected the Senate’s role in the appointments process -- as designed by the Framers of the Constitution.

Resolving the judicial obstruction debate, for me, isn’t about politics. This is about constitutional principles. It’s about fairness to nominees. It’s about Senators doing their duty and doing what’s right for our country.

Arbitrarily voting on just a few judicial nominees, as some have proposed, will fail to restore the Senate’s 214 year practice of up-or-down votes for all judicial nominees that come to the floor.

Senators have a duty to vote up-or-down on judicial nominees -- confirm them or deny them -- but give them all the courtesy of a vote.

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