A picture of Senator Orrin G. Hatch
Orrin H.
Republican UT

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  • Executive Session

    by Senator Orrin G. Hatch

    Posted on 2013-12-10

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    HATCH. Mr. President, over the past few months, here on the Senate floor, in the Judiciary Committee, and in op-eds in national publications, I have explained why the pending nominees to the U.S. Court of Appeals for the DC Circuit should not be confirmed. Neither those facts nor the conclusion they compel have changed and [[Page S8584]] so I will vote against confirming the nominee before us.

    The majority changed more than 200 years of Senate practice, taking away one of the few tools the minority has to participate in either the confirmation or legislative process. On nothing more than a party line vote, the majority deployed a premeditated parliamentary maneuver to prohibit the very filibusters that majority Senators once used.

    Getting these three individuals on this particular court at this particular time is apparently so important that the majority is willing to change the very nature of this institution to do it. I believe the reason is the majority's belief that, as DC Circuit judges, these nominees will reliably support actions by the executive branch agencies that are driving much of President Obama's political agenda.

    Democrats enthusiastically embraced the filibuster when they used it to block Republican nominees to positions in both the executive and judicial branches. They used the filibuster to defeat nominees to be Assistant Secretary of Defense, Undersecretary of Agriculture, and U.N. Ambassador. They used the filibuster to defeat nominees to the Fifth Circuit, the Sixth Circuit, and the Ninth Circuit. They filibustered Miguel Estrada's nomination a record seven times to keep him off the DC Circuit. Three-quarters of all votes for judicial nominee filibusters in American history have been cast by Democrats. The majority leader alone voted to filibuster Republican judicial nominees no less than 26 times.

    That was then, this is now. Simply turning on a political dime and opposing today what Democrats used so aggressively just a few years ago would be bad enough. But this radical institutional change is being justified by patently false claims. The majority leader claims as proof of ``unprecedented obstruction'' that there have been 168 nominee filibusters in American history, half of them during the Obama administration.

    It turns out, Mr. President, that the majority leader is not even counting filibusters at all. He is counting cloture motions, which are nothing but requests to end debate on a matter pending before the Senate. A filibuster occurs only when that request to end debate is denied, when an attempt to end debate fails. Only 52 cloture votes on executive or judicial nominations have ever failed in American history, and only 19 nominees on whom cloture was filed were not confirmed. Looking at the Obama administration, only 14 cloture votes on nominations have failed and only six nominees have so far not been confirmed.

    During the Obama administration, a much lower percentage of cloture motions on nominations have resulted in cloture votes, a much higher percentage of those cloture votes have passed, and a much higher percentage of nominees on whom cloture was filed have been confirmed. By what I have called filibuster fraud, the majority ends up claiming that confirmed nominees were obstructed and that ending debate is a filibuster. The truth is the opposite of what the majority claimed as the justification for ending nominee filibusters.

    I regret that the President and the majority here in the Senate deliberately set up this political confrontation. I have explained in detail before how the DC Circuit's current level of eight active and six senior judges is sufficient to handle its caseload, which has been declining for years, while other circuits need more judges. I likely could support the nominee before us today had she been nominated to a seat that needed to be filled on a court that needed more judges.

    Using false claims to justify radically changing the confirmation process in order to stack a court with judges who will rubberstamp the President's political agenda is wrong in so many ways. I hope there is time to undo the damage.

    The PRESIDING OFFICER. Under the previous order, the question is, Will the Senate advise and consent to the nomination of Patricia Ann Millett, of Virginia, to be United States Circuit Judge for the District of Columbia Circuit? Mr. McCONNELL. I ask for the yeas and nays.

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