The Difference Between a Filibuster and a Motion to Cut Off Debateby Senator Lamar Alexander
Posted on 2013-02-27
ALEXANDER. Mr. President, I come to the floor to attempt to clear
up some confusion about Senate procedure. The confusion I wish to
address is that some observers of the Senate seem to have a hard time
telling the difference between a filibuster that is designed to kill
the nomination of a Cabinet member or a judge and a motion by the
majority leader to cut off debate. Let me say that again--the
difference between a filibuster that is designed to prevent the
nomination of a Cabinet member or a judge on one hand or a motion by
the majority leader of the Senate to cut off debate.
There is a big difference. But sometimes I read in the newspapers that Republicans are filibustering, for example, Senator Hagel, as if a majority of Republicans or a majority of the Senate intended to deny the confirmation of Senator Hagel through a filibuster, when, in fact, what most of the Republicans were saying was: The nomination of the former Senator has come to the floor only 2 days ago. We have Senators who have legitimate questions about the nomination, and we wish to have some time to discuss it.
In that case, we were forced to have a vote on a motion by the majority leader to cut off debate on Thursday before the recess, even though the [[Page S925]] Democratic leadership and the White House had been told by Republican Senators--enough of us--if we voted after the recess there would be plenty of votes to make sure the President's nominee had an up-or-down vote, as we have done throughout history in the U.S. Senate.
Now, for whatever reason, the majority leader and the White House felt they had to push through a vote and then went into a large complaint that Republicans are filibustering the President's nominee, Republicans are obstructionists of the President's nominee, when all we were doing was doing what Senators historically do, which is ask for a sufficient time to exercise our constitutional duty of advice and consent.
Advice and consent is our best known constitutional responsibility. Books have been written about it, movies have been written about it, and speeches have been made about it time after time. If we do not do it, we would be derelict in our duty.
So there is a big difference between asking for time to exercise our constitutional duty of advice and consent and using a filibuster to prevent the nomination of a Cabinet member or a judge.
I went back through history as best I could. The Congressional Research Service has issued a report on what has happened throughout the Senate's history on Cabinet members and judges.
On district judges, according to CRS, no district judge nomination has ever failed to be confirmed because they failed to obtain cloture. Did it take some time? Were questions asked? Yes, of course. That is part of the process. But the fact is, no district court nomination has ever failed to be confirmed because they failed to obtain cloture.
So if the majority leader will wait a sufficient amount of time for the minority members to have their questions answered, a district judge in this body today--and we have proved it time and time again--will not be denied his seat because of a 60-vote cloture vote. There will be an up-or-down vote on a district judge.
The same is true so far with a Cabinet member. The only exception I have found is when the Democrats, unfortunately, used a cloture vote--a 60-vote requirement--to block the nomination of John Bolton, President Bush's nominee to be U.S. Representative to the United Nations.
Some Presidents include that position in the Cabinet; some do not. But aside from that singular incident, which I point out was the Democrats--the Democrats--saying they are going to filibuster a nominee by the President and deny him a seat, so far as I have been able to tell, there has not ever been an instance in the history of the Senate where Republicans have used a filibuster to deny a Cabinet member an up-or-down vote when nominated by a President.
That only leaves circuit judge nominees. Up until 2003, so far as I have been able to find, the rule of the Senate was that the President's nominees to be on the Federal courts of appeals always received an up- or-down vote. They were decided by a vote of 51.
Then our friends on the Democratic side, when President Bush became President, decided they did not like that and they changed the practice. They began to filibuster President Bush's judges to deny them their seats.
I had just arrived in the Senate in 2003. I was very upset by that because I knew some of the nominees. I knew about Miguel Estrada. I knew how Charles Pickering, in Mississippi, had been a pioneer in the civil rights movement when people said he was not. I knew that William Pryor had been a law clerk to the Honorable John Minor Wisdom, the Federal courts of appeals judge for whom I clerked in New Orleans. I knew these were good people. They just happen to be conservative. They just happen to be Republicans. So our friends on the other side of the aisle said: We are going to filibuster and kill those nominees.
There were three others: Priscilla Owen, Carolyn Kuhl, Janice Brown. All the cloture votes failed. There was no final vote. And then there were four more in 2004. So there were 10 altogether. Democrats for the first time filibustered to kill 10 of President Bush's judges.
That produced a reaction. That produced Republicans who said: OK, we are going to change the rules of the Senate. We are going to make this a majoritarian institution. We are going to decide these questions by 51 votes.
Well, cooler heads prevailed and we adopted a consensus that only in extraordinary cases would Federal appellate court judges be denied their seat by a cloture vote, by a 60-vote margin. In every other case, it would be 51 votes.
Based on the research I have been able to make, only two of President Obama's circuit court nominees have failed to obtain cloture and were not confirmed, and those are Caitlin Halligan and Goodwin Liu.
So the bottom line of history is, no district judge has ever been denied his seat or her seat by a filibuster. No Cabinet member--with the exception of John Bolton by the Democrats, if you want to count that--has been denied his or her seat by a filibuster.
As far as circuit court nominations go, the score is 10 to 2. The Democrats have filibustered to death 10 of President Bush's nominees, and Republicans, in return, have filibustered 2. I think that is an unfortunate precedent. I would like for the Senate to go back to where it was when even a nominee such as Clarence Thomas for the Supreme Court of the United States was decided by a majority vote.
In addition to that, of course, there is the question of: Do we filibuster legislation? The answer is yes, we do. And sometimes we do on either side to kill a bill. If a bill comes over here to abolish the secret ballot in union elections, I imagine Republicans will do their best to kill the bill with a 60-vote margin. Democrats would do the same with a right-to-work provision if Republicans were in charge. That has happened throughout history. And with lesser nominations that has happened. If a National Labor Relations Board nominee is controversial, there might be a 60-vote requirement--even with a nomination to the Tennessee Valley Authority.
I remember when the distinguished majority leader held up President Bush's TVA nominees because he thought the President should have appointed Democrats instead of Republicans. I pointed out to him that the law did not say he had to do that. But the majority leader said, well, he was going to hold them up anyway. I could not get him to stop doing that until I held up somebody he wanted from Nevada.
So this has gone on throughout history with lesser nominees. It is a part of the advice and consent of the Senate. It is a way we gather information. It is a way we make a point. It is a way we sometimes get something in exchange. It is a power that an individual Senator has.
As with all the powers we have, it should be exercised with restraint. If all 100 of us exercised all the privileges we have at any given time, nothing would happen.
Let me conclude by remaking my first point. Advice and consent is the best known responsibility of this Senate. It is a constitutional duty. We exercise it diligently. It often involves some delay. It often involves asking for more time to consider someone, getting information that was not easily gotten before. Every Senator knows that the time to ask a nominee about an issue is before that nominee is confirmed. They are able to talk about something, it seems, easily. Their appointments are not hard to get. So that is a part of what we do every day.
But I hope the observers of the Senate will make a distinction in the future between the majority leader's effort to cut off debate and the minority's intention to kill a nominee with a filibuster. Because we do not do it with district judges--never have. We do not do it with Cabinet members--never have. We have done it twice on the Republican side with circuit court judges; Democrats have done it 10 times--both unfortunate precedents, I think. But with Cabinet members and district judges, that is the record.
So there is a difference. There is a difference between asking for a reasonable amount of time to debate and exercise advice and consent and a filibuster with the intention of preventing the nomination entirely, finally, of a judge or a Cabinet member.
I thank the Presiding Officer and yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.