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  • Executive Session

    by Senator Jeff Merkley

    Posted on 2013-12-11

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    MERKLEY. Mr. President, I appreciate the comments of my colleague from New York. He has been a tireless champion for the terrific, dedicated, self-sacrificing firefighters of New York City.

    Tonight we are on the floor addressing the question of whether we should confirm Cornelia Pillard as a candidate for the DC Circuit Court. She is a law scholar with a long track record of public service. She served twice in the Justice Department and successfully defended the Family and Medical Leave Act, a crucial piece of legislation for working families. She now teaches law at Georgetown University, one of the top law schools in the Nation.

    The truth is, she is an extremely well-qualified nominee who will be an excellent addition to the DC Circuit Court. She has personally argued and briefed Supreme Court cases brought or defended by government lawyers from Republican administrations, and Republican- appointed Justices have often authored majority opinions in her favor.

    She is currently the codirector of the Supreme Court Institute at Georgetown Law, where she personally assists lawyers preparing for the Supreme Court on a pro bono, first-come basis, without regard to which side they represent.

    In fact, Professor Pillard chaired the American Bar Association Reading Committee that reviewed Samuel Alito's writings during his nomination process for the Supreme Court. Her committee's assessment led the ABA to give Justice Alito their highest rating of ``well- qualified.'' Professor Pillard's unbiased approach to the law has won the respect of her colleagues in law and in government, including former Department of Justice officials in Republican administrations who have endorsed her nomination to the DC Circuit.

    In short, Professor Pillard is a fairminded, highly accomplished litigator, with an outstanding reputation for public service.

    Then why are we here now, after midnight, carrying on this debate? To get to the root of that question, we have to examine the dysfunction that is present in the Senate.

    Virtually all Americans know Congress is not working well. Virtually all Americans know the Senate is broken. I saw a poll that said 92 percent of Americans believe Congress is dysfunctional, and I wondered: What is wrong with the other 8 percent? They must not be paying attention. Because what we have experienced in the Senate is a continuous campaign of obstruction and paralysis of the normal proceedings.

    There was a time when we had a Senate that had a core principle, which was up-or-down votes, with rare exception--up-or-down votes, with rare exception. That was the tradition of the Senate. That tradition was rooted in the courtesy--the courtesy--of hearing out every Senator who wished to share their opinion on a topic before the Senate would make a decision.

    Maybe that was something easier to do when there were only 26 Members of the Senate. We now have 100 Members of the Senate. So maybe it takes a while to hear the opinions of every Member, but still that courtesy has been honored through the years. But the counterpart to that is that folks knew in the end the Senate, with very rare exception, would get to a simple majority vote. The entire structure of our Constitution and the vision of our Founders was that this body would make decisions with a simple majority vote.

    Recall, if you will, that the Founders put into the Constitution special occasions for a supermajority. Those special occasions were things such as overriding a Presidential veto. Those special occasions were things such as reviewing a treaty. But they envisioned a simple majority vote for the legislature because they felt the majority decision most of the time would be a better direction to go than the minority opinion. That is the principle of democracy. The direction that most Senators believe is the correct direction is the basis for going forward.

    This principle has been completely lost in the last few years. A small [[Page S8663]] group of Senators decided they should replace the constitutional principle of a simple majority with a supermajority, that virtually every action would be subject to a requirement to have 60 votes to close debate rather than the constitutional 51.

    This has been applied in ways American citizens cannot even imagine. Let's take motions to proceed. A motion to proceed simply says it is time to take up this bill. Let's vote yes or no on taking up this bill. That is the motion to proceed.

    But in recent times the minority has said: You know what. We can use this motion to proceed as an opportunity to paralyze the Senate. We can object to having that simple majority vote, and then we can deny--there being this supermajority to close debate--even if we have nothing to say, and we can simply waste the Senate's time on debating whether to debate.

    I have argued for a long time that this abuse must end. It is time to get rid of the filibuster on this motion to proceed. But nonetheless we have it and my colleagues in this permanent campaign to paralyze the Senate have chosen to exercise this filibuster, if you will, this supermajority requirement, simply on a motion to debate an issue as opposed to actually being in debate.

    Let's take conference committees. It was extraordinarily rare for conference committees--the formation of them--to be subject to a supermajority in the history of the Senate. Conference committees were very common in the seventies and eighties. I was first here as an intern in 1976 with Senator Hatfield, here on Capitol Hill working for Congress in the 1980s.

    If one Chamber of Congress and the other Chamber had both passed a bill, well then automatically you had a conference committee meet and resolve the differences. That is just common sense. Why would you delay that for a second? But when I came to the Senate in 2009 as a Senator, I was mystified to discover that conference committees were not being held. So I inquired why that was. The answer was that the minority had decided to use the filibuster, the supermajority, on establishing a conference committee; in other words, block the House and Senate from even talking to each other to resolve differences between two houses.

    That drove the debate out of the public realm, in a public room with a TV camera, into private discussions as negotiators tried to resolve and develop a common version of the bill. There too I proposed that we need to get rid of this filibuster on conference committees. It is disrespectful of the most valuable commodity of this body; that is, time; that is, time is wasted on filibusters on whether to start a discussion with the House when both the House and Senate have passed a version of the bill.

    Then, of course, we have the ongoing campaign of subjecting virtually every nomination to a supermajority. In fact, in the history of America, in the entire history, before President Obama, only three times was there a filibuster of a district court nominee. But in the time President Obama has been in office, we have had 20 filibusters of district court nominees. Only 3 in our history until President Obama is President and then 20 filibusters when he became President until now-- 20 out of 23.

    That is just a pure deliberate campaign of paralysis and obstruction, undermining the contribution of this body, its responsibility as a legislative body. It is not only judicial nominees, it is executive nominees as well. In our entire history as a nation, 168 nominations have been filibustered--168 in our entire history--82 of them have been nominations by President Obama; 82 nominees just in the 5 years President Obama has been in office out of the 168 in our entire history. So we see, whether we are looking at motions to proceed or conference committees or judicial nominees or executive nominees, a campaign of deliberate paralysis and obstruction rather than a dedication to serving our Nation as the Constitution requires.

    Indeed, some have justified this ongoing paralysis. Some of my colleagues have said: But remember, President Washington said the Senate should be a cooling saucer. That concept is that you have a cup of hot tea, and it is too hot to drink, you pour it into a saucer, it cools and then it is just right.

    President Washington would never recognize this strategy of obstruction and paralysis as legitimate under the U.S. Constitution. Indeed, there were elements designed to make this body deliberative. But there is a difference between deliberation and the destruction of the legislative process. There is a difference between a cooling saucer, thoughtful deliberation, and a deep freeze.

    But certain Members of this body have decided they did not come here to fulfill the constitutional vision of the Senate as a deliberative body, they instead have come to paralyze the function of this body, to obstruct this body.

    So there we see it in the filibuster of the conference committees, in the filibuster of the motions to proceed, in the filibuster of the executive branch nominees, filibuster of the judicial nominees, and, of course, the filibuster of legislation that has reached extraordinary levels never seen in the history of our Nation.

    Just a little while ago one of my colleagues chose to quote Alexander Hamilton in defense of this strategy of paralysis. I would encourage my colleague to actually read more of Alexander Hamilton because he actually directly addressed this question of filibusters and the potential to obstruct the will of the majority.

    What did Alexander Hamilton say? He said: The real operation of the filibuster ``is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice or artifices of a significant, insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.

    He went on to say: When the majority must conform to the views of the minority, the consequence is ``tedious delays, continual negotiation and intrigue, contemptible compromises of the public good.'' That is a pretty good description of what Americans see happening in this Chamber as a result of the deliberate campaign of paralysis and obstruction: tedious delays, continual intrigue, contemptible compromises of the public good.

    Many in this Chamber have tried to reason and convey to Members that we should return to the tradition of the Senate, up-or-down votes with rare exception. In 2005 it was the Democrats in the minority and it was the Republicans who were in the majority. At that time the Democrats decided to filibuster a series of judicial nominees. So this was certainly a tactic employed by both Democrats and Republicans.

    Our Republican friends who were in the majority said: That is not acceptable. They said: That is not consistent with the philosophy of up-or-down votes with rare exception. They said that is not consistent with the power vested in the Constitution and the President to be able to place forward his nominees for consideration under the advice and consent clause of the Constitution.

    Our Republican colleagues were persuasive. The Democrats in the minority agreed not to filibuster judges except under rare exceptions, exceptions of extraordinary flaws of character and experience. Then the clock turned. We came to 2009. Now we have a Democratic President and Democratic majority. The deal that was cut in 2005, agreed to by both sides, that there would be only rare filibusters based on exceptional flaws of character or experience disappeared. It disappeared completely. The new minority did not honor the deal that had been negotiated in 2005.

    So come January 2011, there was a debate on this floor about trying to again restore the traditional understanding, up-or-down votes with rare exception. There was a deal made. It did not last but a few weeks. Then there was another attempt in January 2013. On this occasion, there was a promise made on the floor of the Senate. The minority leader came to the floor and said: The Republicans will return to the norms and traditions of the Senate regarding nominations.

    What are those norms and traditions? Those norms and traditions are a simple majority vote with rare exception. Within weeks, that promise was completely shattered. The first ever filibuster in U.S. history of a Defense nominee, ironically a former colleague from the Republican side of the aisle.

    Then we had 43 Senators write a letter and say they would not allow anyone to be confirmed for the position as [[Page S8664]] Director of the Consumer Federal Protection Bureau, certainly inconsistent with up-or-down votes with rare exception for issues of character.

    Then there was another big effort in July of 2013, just earlier this year. We all got together in the Old Senate Chamber and we shared our frustrations and our views. Again, the promise was put forward: We will stop filibustering except under rare circumstances related to character or qualifications.

    Well, that was terrific.

    We had confirmation of the person who was awaiting to be Director of the Environmental Protection Agency, Gina McCarthy. We had confirmation of the person who had been waiting for a very long time as the nominee of the Labor Department, Tom Perez. We had the confirmation of the folks who had been waiting to be confirmed to the National Labor Relations Board. In fact, I think that was the first time we had all five members Senate confirmed in 10 years.

    We had the Director of the Consumer Financial Protection Bureau, Richard Cordray was finally confirmed. Shortly thereafter, we had Samantha Powers confirmed to the United Nations, and so forth. The norm was restored but only for a couple of weeks.

    Then came the nomination of Mel Watt to head the Federal Housing Finance Agency. Suddenly the commitment for up-or-down votes disappeared. Then we had a whole new strategy on the judiciary. This strategy had never been experienced in U.S. history. It was: No matter whom President Obama nominates for the DC Circuit Court, we are going to block that nominee because we only want to leave in place the nominees that were put in place by President Bush.

    That is in direct contravention of the vision of the Constitution where each President as elected has the power to nominate. This Chamber is a check. It gets to vote up or down and decide whether they should be in office. But this was a deliberate strategy to pack the Court, to say that when a President of my party is in power, there will be up-or- down votes, as was insisted in 2005 when the tables were turned, but when the President is of the other party, we are going to have a perpetual campaign and we are going to block up-or-down votes.

    Let's picture down the road and the new President is a Republican President. Is there truly any Member here who would say, from the Republican side, that when the Republican President is in place, they were still going to believe they should not fill vacancies on key courts around this country? It is too bad this campaign of paralysis has been allowed to go on so long. We should have acted long before to fulfil our responsibility to have a deliberative body because that is what legislation is. It is doing enormous damage to the United States of America. First, because of the paralysis, we are not doing the work we should be on legislation. We are not addressing the big issues facing America. There are all kinds of job creation bills that have not been able to get to this floor because they have not been able to get through the gauntlet of paralyzing filibusters that have been laid down.

    Americans actually want to work. Americans want to have living-wage jobs. They expect us to act, to make that happen, not to paralyze this institution so it is unable to do so. Indeed, in addition, we are damaging the view of the United States around the world because it used to be the world looked to the United States and said: Look how well their Congress works. They had this Great Depression. They took on and fixed all kinds of flaws in their financial system. They established insurance for bank accounts so there would not be runs on the banks. They replaced a flawed mortgage strategy, which involved callable balloon mortgages, with noncallable fully amortizing mortgages so we did not create a series of dominoes.

    They took and created organizations, the Securities and Exchange Commission, to oversee stock markets so folks could have faith, invest in stocks, and put their capital in knowing there was a very good chance that capital would be well utilized because there were accounting standards and qualifications that block predatory practices on Wall Street.

    The world saw the U.S. respond to World War II and convert our economy through enormous amounts of legislation in a single year to apply it to the war effort and take on the big challenge of defeating the Nazis.

    Then the world saw America use its legislative power to build the largest middle class the world has ever seen. Those living wage jobs, every one of them means a foundation for a family. If we want to talk family values, then fight to have this body, this Senate, work on legislation that creates living-wage jobs. Quit paralyzing the Senate.

    Then we have, of course, the fact of this new strategy in these recent months, a deliberate attack on the balance of powers. The Constitution envisioned three branches in balance. It has no hint of any kind that a minority of one branch should be able to undermine the operation of the other two branches. Some colleagues have seized upon a strategy of trying to undermine the integrity of our judiciary. Some colleagues have seized on a strategy of trying to undermine the capability of the elected executive branch, the President and his executive branch.

    Read your history--balance of powers, not the ability of the minority or one branch to undermine the success of the other two branches. We need these three branches each doing their assigned roles.

    We are at this point after this long set of strategies of paralysis, on motions to proceed, on legislation, on conference committees, on executive branch nominees, on judicial nominees. We have taken the first step toward restoring the function of the Senate, and we have said we should return to the notion of up-and-down votes as envisioned under advise and consent. This is as envisioned by Alexander Hamilton and the other Founders who railed against the notion that a minority would be able to block the will of a majority in the Chamber.

    We have done that with nominations. In a continuation of a strategy of paralysis, we are here tonight rather than having voted much earlier in the day. Instead of working on legislation that would create jobs, we are standing here through a series of nominations as the minority insists on wasting the valuable commodity of time in this Chamber.

    I hope my colleagues who are intent upon creating this huge imbalance between the branches will reconsider, that they will decide they want to see this Chamber become what it was when I was first here in the 1970s and when I worked for Congress in the 1980s, a great deliberative body. What it was when we took on the Great Depression, what it was when we took on World War II, what it was when we built the great middle class, this is what the United States wants to see. May we make it so.

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