The Top 10 Most Ridiculous Judicial Filibuster Defenses
Part of a Statement of Orrin G. Hatch
United States Senate
May 10, 2005
The Top 10 Most Ridiculous Judicial Filibuster Defenses. Time
permits only brief treatment, but then it was difficult to limit the list to ten.
Number 10
is the claim that these filibusters are part of Senate tradition. Calling
something a filibuster, even if you repeat it over and over, does not make it so. These
filibusters block confirmation of majority supported judicial nominations by defeating
votes to invoke cloture, or end debate. Either these filibusters happened before or they
did not.
Let us take the evidence offered by filibuster proponents at face value.
These two charts list some representative examples of what Democrats repeatedly
claim as filibuster precedents. As you can see, Mr. President, the Senate confirmed each
of these nominations. As ridiculous as it sounds, filibuster proponents claim, with a
straight face, that confirming these past nominations justifies refusing to confirm
nominations today.
Some examples are more ridiculous than others.
Stephen Breyer is here on the Democrats? list of filibusters, suggesting that the
Senate treated his nomination the way Democrats are treating President Bush?s
nominations today. The two situations could not be more different. Even though
President Carter nominated Breyer in November 1980 after losing his bid for re-election
and after Democrats lost control of the Senate, we voted to end debate and
overwhelmingly confirmed Stephen Breyer just 26 days after his nomination.
The suggestion that confirming the Breyer nomination for the party losing its
majority now justifies filibustering nominations for the party keeping its majority is, well,
just plain ridiculous.
Number 9
on the list of most ridiculous judicial filibuster defenses is that they are
necessary to prevent one-party rule from stacking the federal bench. If you win elections,
you say the country has chosen its leadership; if you lose, you complain about one-party
rule. When your party controls the White House, the president appoints judges. When
the other party controls the White House, the president stacks the bench.
Our Democratic colleagues say we should be guided by how the Democratic
Senate handled President Franklin Roosevelt?s effort to pack the Supreme Court. It is
true that FDR?s legislative proposal to create new Supreme Court seats failed ? and
without a filibuster, I might add. But as it turned out, packing the Supreme Court
required only filling the existing seats. President Roosevelt packed the Court all right, by
appointing no less than eight Justices in six years, more than any President except George
Washington himself.
As this chart shows, during the 75th, 76th, and 77th Congresses, when President
Roosevelt made those nominations, Democrats outnumbered Republicans by an average
of 70 to 20. Now that is one-party rule, and yet the Senate confirmed those Supreme
Court nominees in an average of just 13 days, one of them the very day it was made, and
six of them without even a roll call vote.
That is not because filibustering judicial nominations was difficult. In fact, our
cloture rule did not then apply to nominations. A single member of that tiny beleaguered
Republican minority could have filibustered these nominations and attempted to stop
President Roosevelt from packing the Supreme Court.
Mr. President, the most important number on this chart is the number right here at
the bottom, the number of filibusters against President Roosevelt?s nominees. Zero.
Number 8
is the claim that, without the filibuster, the Senate would be a patsy,
nothing but a rubberstamp for the President?s judicial nominations.
To paraphrase a great Supreme Court Justice, if simply stating this argument does
not suffice to refute it, our debate about these issues has achieved terminal silliness.
Being on the losing side does not make one a rubberstamp.
For all these centuries of democratic government, have we seen only winners and
rubberstamps?
Was the famous tagline for ABC?s Wide World of Sports, the thrill of victory and
the agony of rubberstamping?
Democrats did not start filibustering judicial nominations until the 108th
Congress. Imagine the American history books describing the previous 107 as the Great
Rubberstamp Senates.
Did Democrats rubberstamp the Supreme Court nomination of Clarence Thomas
in 1991 since they did not use the filibuster? That conflict lasting several months and
concluding with that 52-48 confirmation vote did not look like a rubberstamp to me.
Some modify this ridiculous argument by saying it applies when the same party
controls both the White House and the Senate. They make the stunning observation that
Senators of the president?s party are likely to vote for his nominees. The Assistant
Minority Leader, Senator Durbin, recently said, for example, that Republican Senators
are nothing but lapdogs for President Bush.
Pointing at others can be dangerous because you have a few fingers pointing back
at yourself. Counting both unanimous consent and roll call votes, more than 37,500 votes
were cast here on the Senate floor on President Clinton?s judicial nominations. Only 11
of them, just a teeny tiny three one-hundredths of one percent, were NO votes from
Democrats. Were they just rubberstamping lapdogs?
The Constitution assigns the same roles to the president and the Senate no matter
which party the American people puts in charge of which end of Pennsylvania Avenue.
In the 1960s, the Democrats were in charge, yet Minority Leader Everett Dirksen
refused to filibuster judicial nominees of Presidents Kennedy or Johnson. Was he a
rubberstamp?
In the 1970s, the Democrats were in charge, yet Minority Leader Howard Baker
refused to filibuster President Carter?s judicial nominees. Was he a rubberstamp?
In the 1980s, the Republicans were in charge, yet Minority Leader Robert Byrd
did not filibuster President Reagan?s judicial nominees. Was he a rubberstamp?
And a decade ago, the Democrats were again in charge, yet Minority Leader Bob
Dole refused to filibuster President Clinton?s judicial nominees. Was he a rubberstamp?
To avoid being a rubberstamp, one need only fight the good fight, win or lose.
Number 7
on the list of most ridiculous judicial filibuster defenses is that these
filibusters are necessary to preserve our system of checks and balances.
Mr. President, any civics textbook explains that what we call checks and balances
regulate the relationship between the branches of government. The Senate?s role of
advice and consent checks the president?s power to appoint judges, and we exercise that
check when we vote on his judicial nominations.
The filibuster is about the relationship between the majority and minority in the
Senate, not about the relationship between the Senate and the president. It actually
interferes with being a check on the president?s power by preventing the Senate from
exercising its role of advice and consent at all.
Former Majority Leader Mike Mansfield once explained that by filibustering
judicial nominations, individual Senators presume what he called ?great personal
privilege at the expense of the responsibilities of the Senate as a whole, and at the
expense of the constitutional structure of the federal government.?
In September 1999, the Senator from Massachusetts, Senator Kennedy, expressed
the same view when he said: ?It is true that some Senators have voiced concerns about
these nominations. But that should not prevent a roll call vote which gives every Senator
the opportunity to vote ?yes? or ?no.?? Those were the words of our colleague from
Massachusetts, Senator Kennedy, give every Senator the opportunity to vote yes or no.
That was then; this is now.
Mr. President, in case anyone needs further clarification on this point, I ask
unanimous consent that the definition of checks and balances from two sources,
congressforkids.net and socialstudieshelp.com, be entered into the record at this point.
Number 6
on the list is that these filibusters are necessary to prevent appointment
of extremists.
What our Democratic colleagues call extreme, the American Bar Association calls
qualified. In fact, all three of the appeals court nominees chosen four years ago who have
been denied confirmation received the ABA?s highest well qualified rating. The same
Democrats who once called the ABA rating the gold standard for evaluating judicial
nominees now disregard it.
Did 76 percent of Californians vote to keep an extremist on their Supreme Court
when they voted to retain Justice Janice Rogers Brown? Did 84 percent of Texans and
every major newspaper in the state support an extremist when they re-elected Justice
Priscilla Owen to the Texas Supreme Court?
Mr. President, the Associated Press reported last Friday that the Minority Leader
reserves the right to filibuster what he calls extreme Supreme Court nominees. That is
quite an escape hatch, if you will, since the minority already defines any nominee it does
not like as extreme. This is simply a re-packaged status quo masquerading as reform.
If Senators want to dismiss as an extremist any judicial nominee who does not
think exactly as they do, that is their right. That is, however, a reason for voting against
confirmation, not for refusing to vote at all. As our former colleague Tom Daschle said:
?I find it simply baffling that a Senator would vote against even voting on a judicial
nominee.?
Number 5
on the list of most ridiculous judicial filibuster defenses is the claim
that these filibusters are about free speech and debate. If Senators cannot filibuster
judicial nominations, some say, the Senate will cease to exist and we will be literally
unable to represent our constituents.
The same men who founded this Republic designed this Senate without the ability
to filibuster anything at all. A simple majority could proceed to vote on something after
sufficient debate. Among those first Senators were Oliver Ellsworth of Connecticut, who
later served on the Supreme Court, as well as Charles Carroll of Maryland and Richard
Henry Lee of Virginia, who had signed the Declaration of Independence.
When they ran for office, did they know they would be unable to represent their
states because they would be unable to filibuster?
Mr. President, these filibusters are about defeating judicial nominations, not
debating them. The minority rejects every proposal for debating and voting on
nominations it targets for defeat.
In April 2003, my colleague from Utah, Senator Bennett, asked the current
Minority Leader how many hours Democrats would need to debate a particular
nomination. His response spoke volumes: ?[T]here is not a number in the universe that
would be sufficient.?
Later that year, he said: ?We would not agree to a time agreement?of any
duration.? And just two weeks ago, the Minority Leader summed up what has really
been the Democrats? position all along: ?This has never been about the length of the
debate.?
He is right about that, this has always been about defeating nominations, not
debating them.
If our Democratic colleagues want to debate, then let us debate. Let us do what
Democrats once said was the purpose of debating judicial nominations. As my colleague
from California, Senator Boxer, put it in January 1998, ?let these names come up, let us
have debate, let us vote.?
Number 4
on the list is that returning to Senate tradition regarding floor votes on
judicial nominations would amount to breaking the rules to change the rules. As any
consultant worth even a little salt will tell you, that is a catchy little phrase. The problem
is that neither of its catchy little parts is true.
The constitutional option ? which would change judicial confirmation procedure
through the Senate voting to affirm a parliamentary ruling ? would neither break nor
change Senate rules.
While the constitutional option has not been used to break our rules, it has been
used to break filibusters.
On January 4, 1995, the Senator from West Virginia, Senator Byrd, described
how in 1977, when he was Majority Leader, he used this procedure to break a filibuster
on a natural gas bill.
I have genuine affection and great respect for the Senator from West Virginia.
Since I would not want to describe his repeated use of the constitutional option in a
pejorative way, let me use his own words:
?I have seen filibusters. I have helped to break them. There are few
Senators in this body who were here [in 1977] when I broke the filibuster
on the natural gas bill?.I asked Mr. Mondale, the Vice President, to go
please sit in the chair; I wanted to make some points of order and create
some new precedents that would break these filibusters. And the filibuster
was broken ? back, neck, legs, and arms?.So I know something about
filibusters. I helped to set a great many of the precedents that are on the
books here.?
He certainly did, and using the constitutional option today to return to Senate
tradition regarding judicial nominations would simply use the precedents he put on the
books.
Number 3 on the list of most ridiculous judicial filibuster defenses is that the
constitutional option is unprecedented.
In 1977, 1979, and 1987, the Majority Leader, Senator Byrd, secured a favorable
parliamentary ruling through a point of order, and a majority of Senators voted to affirm
it. He did this even when the result he sought was inconsistent with the text of our
written rules.
In 1980, he used a version of the same procedure to limit nomination-related
filibusters. Majority Leader Byrd made a motion for the Senate to both go into executive
session and proceed to consider a specific nomination.
At the time, the first step was not debatable, but the second step was debatable. A
majority of Senators voted to overturn a parliamentary ruling disallowing the procedural
change Majority Leader Byrd wanted. Seven of those Senators serve with us today and
their names appear here on this chart. They can explain for themselves how voting
against restricting nomination-related filibusters today is consistent with voting to restrict
them in 1980.
Number 2
on the list is that preventing judicial filibusters will doom legislative
filibusters. Our own Senate history shows how ridiculous this argument really is.
Filibusters became possible by dropping the rule allowing a simple majority to
proceed to a vote. The legislative filibuster developed, the judicial filibuster did not.
What we must today limit by rule or ruling we once limited by principle or self-restraint.
The filibuster is an inappropriate obstacle to the president?s judicial appointment
power, but an appropriate tool for exercising our own legislative power. I cannot fathom
how returning to our tradition regarding judicial nominations will somehow threaten our
tradition regarding legislation.
The only threat to the legislative filibuster, and the only votes to abolish it, have
come from the other side of the aisle.
In 1995, 19 Senators, all Democrats, voted against tabling an amendment to our
cloture rule that would prohibit all filibusters, of legislation as well as nominations. Nine
of those Senators serve with us still, and their names are here on this chart.
I voted then against the Democrats? proposal to eliminate the legislative filibuster
and I oppose eliminating it today. The Majority Leader, Senator Frist, also voted against
the Democrats? proposal to eliminate the legislative filibuster. In fact, that was his first
vote as a new member of this body. I join him in re-committing ourselves to protecting
the legislative filibuster.
I urge Democrats to follow the example of our colleague from California, Senator
Boxer, who recently said she has changed her position, that she no longer wants to
eliminate the legislative filibuster.
In 1995, USA Today condemned the filibuster as ?a pedestrian tool of partisans
and gridlock-meisters.? The New York Times said the filibuster is ?the tool of the sore
loser.? I hope these papers will reconsider their position and support the legislative
filibuster.
Mr. President, the
Number 1 most ridiculous judicial filibuster defense
is that
those wanting to filibuster Republican nominees today opposed filibustering Democratic
nominees only a few years ago.
In a letter dated February 4, 1998, for example, left-wing groups urged
confirmation of Margaret Morrow to the U.S. District Court for the Central District of
California. They urged us to ?bring the nomination to the Senate, ensure that it received
prompt, full and fair consideration, and that a final vote on her nomination is scheduled
as soon as possible.? Groups signing this letter included the Alliance for Justice,
Leadership Conference on Civil Rights, and People for the American Way.
As we all know, these left-wing groups today lead the grassroots campaign behind
these filibusters that would deny this same treatment to President Bush?s nominees. Their
position has changed as the party controlling the White House has changed.
Let me make it easy for the hypocrite patrol to check out my position on the
Morrow nomination.
In the February 11, 1998, Congressional Record, on page S640, three pages
before that letter from the left-wing groups appears, I opened the debate on the Morrow
nomination by strongly urging my fellow Senators to support it. We did, and she is today
a sitting federal judge.
The same Democrats who today call for filibusters called for up or down votes
when a Democrat was in the White House. In 1999, my good friend from California,
Senator Feinstein, a member of the Judiciary Committee, said of the Senate: ?It is our job
to confirm these judges. If we don?t like them, we can vote against them.? She said: ?A
nominee is entitled to a vote. Vote them up; vote them down.?
Another committee member, Senator Schumer, properly said in March 2000 that
?the President nominates, and we are charged with voting on the nominees.?
I have already quoted the Senator from California, Senator Boxer, once, but in
2000 she said that filibustering judicial nominees ?would be such a twisting of what
cloture really means in these cases. It has never been done before for a judge, as far as
we know ? ever.? She was right, it had never been done before.
I appreciate what another member of the Judiciary Committee, Senator Kohl, said
in 1997: ?Let?s breathe life back into the confirmation process. Let?s vote on the
nominees who have already been approved by the Judiciary Committee.?
The Senator from Iowa, Senator Harkin, who fought so strongly against the
legislative filibuster in 1995, said five years later about the judicial filibuster: ?If they
want to vote against them, let them vote against them?.But at least have a vote.?
The same view comes from three former Judiciary Committee chairmen and
members of the Democratic leadership. A former committee chairman, Senator Biden,
said in 1997 that every judicial nominee is entitled ?to have a shot to be heard on the
floor and have a vote on the floor.?
Former chairman Senator Edward Kennedy said in 1998: ?If [Senators] don?t like
them, vote against them. But give them a vote.?
And my immediate predecessor as chairman, Senator Leahy, said a year later that
judicial nominees ?are entitled to a vote, aye or nay.? In his own practical way, he said:
?Vote them up or down.?
The Assistant Minority Leader, Senator Durbin, had urged the same thing in
September 1998: ?Vote the person up or down.?
Finally, Mr. President, the Minority Leader, Senator Reid, expressed in March
2000 the standard that I hope we can re-establish: ?Once they get out of committee, bring
them down here and vote up or down on them.?
The Majority Leader, Senator Frist, recently proposed a plan to accomplish
precisely this result, but the Minority Leader dismissed it as, I want to quote this
accurately now, ?a big fat wet kiss to the far right.? I never thought voting on judicial
nominations was a far right thing to do.
These statements speak for themselves. Do you see a pattern here? The message,
at one time, seemed to be: let us debate, and let us vote. That should be the standard no
matter which party controls the White House or the Senate.
Mr. President, as I close, let me summarize these Top 10 Most Ridiculous Judicial
Filibuster Defenses in this way. Blocking confirmation of majority supported judicial
nominations by defeating cloture votes is unprecedented. In the words of the current
Judiciary Committee chairman, Senator Specter, ?what Democrats are doing here is
really seeking a constitutional revolution.?
We must turn back that revolution.
No matter which party controls the White House or Senate, we should return to
our tradition of giving judicial nominations reaching the Senate floor an up or down vote.
Full, fair, vigorous debate is one of the hallmarks of this body, and it should drive how
we evaluate a president?s judicial nominations.
Honoring the Constitution?s separation of powers, however, requires that our
check on the president?s appointment power not highjack that power altogether. This
means debate must be a means to an end rather than an end in itself. Senators are free to
vote against nominees they feel are extreme, but they should not be free to prevent other
Senators from expressing a contrary view.
In this body, we govern ourselves through parliamentary rulings as well as by
written rules. The procedure of a majority of Senators voting to sustain a parliamentary
ruling has repeatedly been used to change Senate procedure without changing Senate
rules, even to limit nomination-related filibusters.
Mr. President, I have tried here to deal with the substance of filibuster
proponents? arguments, albeit with some humor and a touch of sarcasm.
A few days ago, as the Salt Lake Tribune reported, the Minority Leader was in
my home state ?stopping just short of calling Utah Republican Sen. Orrin Hatch a
hypocrite.? That is at least how the newspaper described it.
That is not what I consider a substantive argument. Perhaps those who dismiss
their opponents as liars, losers, or lapdogs have nothing else to offer in this debate.
Yet debate we must, and then we must vote.
I yield the floor.
Anyone?
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