Nomination of Brian Morris to Be United States District Judge for the District of Montanaby Senator Orrin G. Hatch
Posted on 2013-12-11
HATCH. Mr. President, I have certainly enjoyed the remarks of the
distinguished Senator from North Dakota. He has done a terrific job in
the Senate and made a real difference, and I personally appreciate it
We all know we are here for one basic reason: I believe our friends on the other side believe that by creating this kind of a fuss and problem, they can get off of the issue of ObamaCare, which is a disaster, and everybody knows it, including them.
The fact is that I think they have gone from one extreme debacle to another in their desecration of this body by getting rid of a rule that is absolutely critical to this body--a rule of protection to the minority.
I can hardly wait for those on the other side of the aisle, who have never been in the minority, to get in the minority and realize what they have done is basically destroyed the thing which has made the Senate the greatest deliberative body in the world.
The cloture rule--rule XXII--was put in place to allow the majority to end filibusters. In the early part of the last century they couldn't get anything done, so they came up with rule XXII so they could invoke cloture, end the debate, and get back to whatever the Senate decided was the appropriate business. It has worked amazingly well and it would continue to work amazingly well, except for the fact that our colleagues on the other side have made the Senate no better than the House of Representatives.
The Senate was always supposed to be different from the House of Representatives. It was supposed to be the body that would be more deliberative. It was Washington who said to Jefferson that the Senate is the saucer which cools the tea. They were right. The Senate is the saucer which should cool the tea. It should cool debates around here. But now it is just whatever the majority wants, and they vote in unison. They vote in unison because they are supported in unison by a number of very well-heeled groups, especially including the unions, which Democrats are basically afraid of crossing. It is a pitiful shame.
I would like to chat just a little bit about this filibuster because it is a time-honored instrument which both sides have used. But I think there have been gross misrepresentations of what the filibuster is by the leadership of the other side, and these gross misrepresentations should never have been spoken on the floor. I don't know how they keep a straight face when they do it.
On November 21, 2013, the majority used a premeditative parliamentary gimmick to change more than two centuries of Senate confirmation practice. As a result, for the first time since 1806, the minority cannot extend debate on any nominations except for those that go to the Supreme Court. Democrats accomplished this on a purely party-line vote and by a maneuver designed to avoid scrutiny.
It would be hard to imagine a crisis so grave, a conflict so intractable that the only option was to fundamentally alter the very nature of this institution and further politicize the very confirmation process. I am here to say that the crisis the majority said could only be solved that way never existed.
The majority leader claimed on November 21 that this crisis was, as he put it, caused by ``unprecedented obstruction'' of nominations to both the judicial and the executive branches.
More specifically, he said there had been 163 filibusters of judicial and executive branch nominations, half of them during the Obama administration.
By the way, that is totally false and they know it. I don't know how they can stand on the floor and make these bald-faced assertions.
The only solution to the problem, the leader said, was simply to ban nomination filibusters.
I notice the majority leader made no attempt to either define the filibusters he was counting or to identify the nominations on his filibuster list. That was an odd omission because doing so would surely have proved his point. Wouldn't it? No.
There was a very good reason the majority leader simply threw out a big number and did identify the filibusters he claimed justified rigging the confirmation process. If he had simply listed those filibusters, we all would have seen dozens and dozens of nominations the Senate had confirmed, many without opposition at all.
Since I took my first oath of office on January 3, 1977, the Senate has confirmed more than 1,700 nominations to the U.S. district courts, the U.S. courts of appeal, and the U.S. Supreme Court, and they have defeated two--two--in all of that time the last 37 years. We confirmed 78 percent by unanimous consent without any rollcall vote at all. Two- thirds of the rollcall votes we did take were unanimous. Think about that. Where is the problem? No President gets every single appointment he or she wants, but every President gets the vast majority.
During his first term, for example, President Obama was 30 percent behind his predecessor in nominations. They were sloppy in putting forth nominations. But he ended up only 10 percent behind in confirmations. That could only mean the Senate handled his judicial nominations efficiently.
During his second term, so far the Senate has confirmed more than twice--twice--as many judicial nominees as it had by this point in President Bush's second term.
The Congressional Research Service says the Senate is confirming President Obama's appeals court nominees faster than the Senate confirmed President Bush's. In fact, President Obama has already appointed one-quarter of the entire Federal judiciary.
I can also comment on how executive branch nominations referred to the Finance Committee have been handled. Nearly 80 percent of the nominations sent to the committee during the 112th Congress have so far been confirmed.
Looking at executive branch filibusters overall, the same Democratic leaders who last month voted to abolish nomination filibusters voted to filibuster President Bush's nominees to be Assistant Secretary of Defense and EPA Administrators and twice voted to filibuster his nominees to be a U.N. Ambassador.
They must have thought very differently back then about whether the President deserves his team. We have heard a lot about that from current Democrats. Their actions then spoke more loudly than their words do today about whether they think all nominees do deserve an up- or-down vote. Look at the past. Look at what they have done. It is hypocritical.
However, the majority will not acknowledge those facts and others like them because those facts do not fit the spin they are putting on this.
It is hard, after all, to claim an obstruction crisis when so many nominees are confirmed and are being confirmed. So the majority instead makes a claim about what they call filibusters because that sounds bad to most people, and most people will not know whether the claim is even true. Calling something a filibuster does not make it so.
A filibuster occurs when the Senate cannot vote on passage of legislation or confirmation of a nomination because an attempt to end debate on it fails. That is why filibuster reform always focuses on making it easier to end debate.
The filibuster rule XXII came about after the turn of the last century because they couldn't get anything done in the Senate and they needed a way of bringing things to cloture so they could vote. We are headed into the same kind of disaster without this important rule.
It takes two steps to detect a filibuster--a cloture motion and a cloture [[Page S8755]] vote. You can't have a filibuster without both. As we can see, a vast majority of what our leader has claimed are filibusters are not because they haven't had a cloture vote.
A cloture motion is a request to end debate and a cloture vote answers that request. A filibuster occurs when a cloture vote fails and debate cannot be ended. That is the definition of a filibuster.
Some people listening to this might already be wondering whether these details matter, whether the difference between a cloture motion and a cloture vote or the definition of a filibuster are all that important after all. I am here today to say these details do matter because the truth matters.
The truth matters when Senators claim there is a crisis that needs a solution when there isn't.
The truth matters when the majority prohibits the very tool they used so successfully in the past against Republican nominees.
The truth matters when the entire confirmation process is going to be rigged and the judiciary further politicized--such as the DC Circuit Court of Appeals.
I have been on the Judiciary Committee 37 years. I chaired that committee. I was ranking on that committee. I can tell you never in the history of that committee has it been so brazenly ignored.
The truth matters because the American people need to know what their Senators are doing.
The truth was in short supply on November 21. The majority leader claimed 168 filibusters, but he was not counting filibusters at all. The majority leader was counting cloture motions, not filibusters. He had the habit of calling up a bill and almost immediately filing cloture as though there was a filibuster, when nobody intended to filibuster. Then, in prior years, he would fill the parliamentary tree so in the greatest deliberative body in the world we could not have amendments. The minority could not have amendments.
There is a time to fill the tree, but it is only after there has been a full and fair debate and amendments have had their opportunity to be brought forward. They do it to cut off amendments--unless the majority leader approved of whatever the amendments were.
I think it is nice to protect your fellow Senators on the majority side with legitimate ways of doing it, but this isn't one of them. That alone is causing a lot of discontent on our side because the majority leader was counting cloture motions, not filibusters, and claiming they were filibusters when they weren't. He was counting requests to end debate, not the answers to those requests.
Most people probably do not know that the majority leader files nearly all cloture motions--as he did just a few days ago--by adding 10 more to the list. So if the majority leader claims there are too many cloture motions filed on nominations, he has only himself to blame.
Under President Obama, half of the cloture motions filed on nominations do not result in a cloture vote at all. The rest just vanish into thin air, obviously, because they never should have been filed in the first place. Yet that is a scheme used by the other side, and then they claim this side is being obstructionists.
Two-thirds of the cloture votes that do occur on nominations pass. There has been no discussion of that by the other side. Two-thirds of them pass, preventing filibusters altogether.
Here is the filibuster fraud: The majority leader has been using the cloture rule more effectively than in the past--or should I say more obnoxiously than in the past--to prevent filibusters of President Obama's nominations while telling us about unprecedented obstruction. The truth is exactly the opposite of what he has claimed and what other Democrats on the other side of the aisle have claimed.
Perhaps the most astounding fact of all is that nearly 90 percent of Obama nominees to the executive or the judicial branch on whom cloture motions were filed have been confirmed. The majority told us that this was about obstruction, about how the minority was using the filibuster to prevent President Obama from appointing people. It is no wonder that the majority leader did not show the list of the nominations he claims have been filibustered. The claims are a fraud.
The majority created this crisis and damaged this institution by claiming that ending debate is really a filibuster and that confirming nominations is really obstructing them. Up is down, left is right, and confirmations are filibusters.
All of this is more than a little ironic since the Democrats were the ones who pioneered using the filibuster to defeat majority-supported judicial nominees. The first judicial nominee with clear majority support to be defeated by a filibuster was Miguel Estrada in 2003, one of the finest lawyers in the country. They didn't want him on the DC Circuit Court of Appeals because they knew getting on that court is a fast track to the U.S. Supreme Court. In fact, Democrats were so intent on keeping him off the DC Circuit that they filibustered Miguel Estrada, this Latino man, seven times--a record that stands to this day. I know. I was there. I was fighting for Miguel Estrada, as were all Republicans.
As of November 21, when the majority said there was an unprecedented filibuster crisis, there had been 12 cloture votes on Obama judicial nominations and 6 of them had failed. In other words, there was no obstruction. At that same point in the Bush administration, there had been 26 cloture votes on judicial nominations, and 20 of them had failed. Democrats used the filibuster to defeat Republican nominees to the Fifth Circuit, the Sixth Circuit, and the Ninth Circuit.
Three-quarters of all votes for judicial nomination filibusters in American history have been cast by Democrats, and they have the gall to stand on this floor and suggest that Republicans are using the filibuster to stop nominees.
The majority leader alone--at least before complaining of too many filibusters--voted no less than 26 times to filibuster Republican judicial nominees. As I said, the same Democratic leaders abolishing nomination filibusters today voted to filibuster President Bush's nominees to be Assistant Secretary of Defense and EPA Administrator and twice voted to filibuster his nominee to be United Nations Ambassador. I do not know what the majority understands the word ``unprecedented'' to mean, but this certainly is not it. This is why the truth matters.
As of November 21, when the majority leader claimed that there had been 168 nominations filibusters, only 56 cloture votes on executive or judicial nominations had ever failed and only 17 of those filibustered nominees had not been confirmed. The crisis that the majority claimed turns out to be a myth, a tale for the fiction section of the library. This is why the truth matters.
Let's not forget what the majority did on November 21. Rule XXII, the one that provides a way to end debate, is a written rule, a time- honored rule. It says what it says, and it says that ending debate on any matter before the Senate, with the exception of rules changes, requires three-fifths of all Senators. It said that on November 21, and it says that today. The technical term for what the majority leader did that day was to raise a point of order, but in practical terms, the majority leader asked the Presiding Officer to say that three-fifths actually means a majority vote. He might just as well have asked the Presiding Officer to say that Christmas is on December 29 or that the Nation's Capital is in Salt Lake City, UT. The Presiding Officer stated the obvious, that three-fifths means three-fifths, because that is what the rule says. That is what the Presiding Officer, advised by the Parliamentarian of the Senate, said--three fifths means what it says: three-fifths. That is what the rule says.
By a purely party-line vote, the majority said otherwise--that three- fifths is actually a majority--by overruling their own colleague in the Chair. This sounds absurd because it is. Now we are forced to act as if we cannot read, to suspend the most basic ability to understand the English language and set aside our common sense. We are forced to pretend that the rules of this body say what they do not mean and mean what they do not say. This, frankly, reminds me of ``The Wizard of Oz,'' where Dorothy and her friends were before the image of what they thought was the great and powerful Oz. Her dog Toto pulls on the curtain to reveal a [[Page S8756]] little man frantically operating dials and buttons and speaking into a microphone. The image commands: ``Pay no attention to that man behind the curtain.'' On November 21 the majority told each of us to pay no attention to the three-fifths in the cloture rule. That was quite a trick. The real question was why the majority would concoct such a fraud in order to rig the confirmation process. What could be so important that the majority would go through such contortions, peddle such myths, and play such word games? It certainly was not to solve a filibuster crisis, that is for sure. No, it was for a much more base political reason.
The President and the majority here in the Senate deliberately set up this political confrontation in order to implement a political agenda that could not get through Congress. That agenda requires actions and decisions by the two groups of Federal officials who are not directly accountable to the American people: bureaucrats in the executive branch and judges in the judicial branch.
The President appoints those two categories of officials but only with the consent of the Senate. For more than 200 years the process of deciding whether to give that consent included the right of the minority to slow things down and, yes, even block the most controversial nominees.
I have given you the numbers. Only 17 executive or judicial nominees who were filibustered were not eventually confirmed. But the majority wants it all. They want a clear path to stacking the executive branch with officials who will issue the rules and stacking the judicial branch with judges who will approve those rules.
The DC Circuit Court of Appeals is a perfect illustration of where much of the regulations are evaluated by the courts, and they want them decided in favor of President Obama. They want the courts to legislate from the bench that which they could never get through the Senate or the House of Representatives. This is a power grab--nothing more, nothing less. It appears that the ends justified the means, that short- term political gains justified long-term institutional damage.
I urge my colleagues, from the freshmen to the senior Members, to take some guidance from our own predecessors. Senator Mike Mansfield, a leading Democrat, majority leader in the Senate, had served in the minority and later became majority leader. In 1975, when Senators also proposed forcing a rules change by simple majority, he said that this tactic would ``destroy the very uniqueness of this body . . . and diminish the Senate as an institution of this Government.'' It would, he said, ``alter the concept of the Senate so drastically that I cannot under any circumstances find any justification for it.'' That was the Democratic leader in the Senate, a man of unquestionable integrity.
As I have explained here today, the majority has certainly not provided any justification for doing away with the filibuster rule either. There is no filibuster crisis. I think I have made that case. There is only a desire by the majority to win every time, to have everything they want when and how they want it. Most of the executive and judicial branch nominations the majority claims were filibustered were actually confirmed. Even in this town, known famously for masterful spin, that will surely go down as legendary. The majority abolished nomination filibusters by claiming nominations that were confirmed were actually obstructed--when they were confirmed. This amounts to filibuster fraud. That is why we are here today, because the truth matters. The integrity of the Senate matters.
I can only hope there is time for those two concepts to still prevail. What the Democrats have done here is not only extremely dangerous, it is outrageous. They have taken one of the things that really make the Senate the great body that it is and have desecrated it. They have done it because a number of the Democrats over here have never been in the minority. They do not realize how awful that rule- change is. They do not realize that the filibuster is a rule of freedom that protects the minority and makes the Senate debate on these matters.
I once said I would fight to my death for the filibuster rule because it is what makes the Senate different from the House of Representatives. The House of Representatives is the people's body. They can do anything once they get a rule and get 50 percent plus one of the votes--anything. It was structured that way. The Senate was structured another way. Our young new Senators on the other side don't seem to understand that.
I have chatted with a number of more senior Senators who have been through being in the minority, who have been through some of the battles here. Let me tell you, they are as concerned as I am that this body is totally damaged by this breaking of the rules, destroying the rules for purely partisan purposes. They can talk about how they just want the Senate to work all they want to. The Senate is never going to work as well without this rule. The minority will never be protected as well without this rule.
I have to say that I hope we can get this rule put back in place. Even though it is a disadvantage to Republicans right now because they now have three more liberal judges on the DC Circuit Court of Appeals, which was divided four to four, Republicans appointees to Democrat appointees--four to four. Now they stack it, the most important court in the country as far as regulatory affairs are concerned and administrative law is concerned, so they can pass through that court the Obama administration's regulatory measures and desires without having to face real debate.
There was a reason why the Founding Fathers created the three separate governmental powers, because each of those powers is to protect our country. They are making it so that regulatory matters, administrative matters, and so forth there is really only one-sixth who are Republicans.
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