Bill Frist

Mr. FRIST

Mr. FRIST. Mr. President, I move to instruct the Sergeant at Arms to request the presence of absent Senators, and I ask for the yeas and nays.

Mr. FRIST. Mr. President, for the information of our colleagues, we will be voting around noon tomorrow on the cloture motion with respect to Priscilla Owen. We will be in session through the night, and time is roughly equally divided.

Mr. FRIST

Mr. FRIST. Mr. President, through the Chair, I expect, because of the large amount of interest, that we will stay here until everybody does have that opportunity to speak. We will have the cloture vote, and you and I can discuss shortly the timing. But likely we will do the cloture vote possibly late tomorrow morning. We do want to give people an opportunity. We have spent 26 hours over the course of 3 days, but in all likelihood it will be a very late night tonight.

Mr. FRIST

Mr. FRIST. Mr. President, today we will resume executive session to consider Priscilla Owen to be a U.S. circuit judge for the Fifth Circuit. We have a lineup of speakers throughout the afternoon and likely into the evening. As I have stated previously, if Members want to debate the nomination, we will provide them with that opportunity for debate. We have spent about 26 hours over the course of 3 days on the Owen nomination. On Friday, we asked unanimous consent to have an additional 10 hours before the vote, but there was an objection. Because of that objection, we filed a cloture motion on the nomination, and that vote will occur tomorrow. I will be talking to the Democratic leader as to the exact timing of that cloture vote. At 5:30 this evening, Senators should anticipate a vote on the motion to instruct the Sergeant at Arms to request the presence of Members. This procedural vote is to ensure that Senators are here for this important debate.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that the Senate stand in recess subject to the call of the Chair.

Mr. FRIST

Mr. FRIST. Mr. President, more than 2 years ago, this Senate first took a cloture vote to end a filibuster on the nomination of Miguel Estrada for a seat on the DC Circuit Court of Appeals. Mr. Estrada epitomizes the American dream. An immigrant from Honduras, who arrived in America speaking no English, he graduated from Harvard Law School and became one of America's most distinguished lawyers. Mr. Estrada worked for Solicitors General under both President Bill Clinton and President George W. Bush. He argued 15 cases before the Supreme Court. The American Bar Association gave him its highest recommendation, and Miguel Estrada's confirmation by a bipartisan majority of the full Senate was assured. But the confirmation vote never came. Instead, Mr. Estrada's nomination was filibustered. Each time we sought a consent agreement to limit debate, the Democratic leadership objected. We asked over and over for a simple up or down vote. If you oppose the nominee, we stressed, then vote against him, but give him a vote. But the partisan minority refused. In open session, they remarked that no amount of debate time would be sufficient and that they would not permit the Senate to vote. After 13 days of debate, with no end in sight, I filed a cloture motion. Every Republican and a handful of Democrats voted for cloture, bringing us to 55 affirmative votes, 5 short of the 60 we needed. Shortly thereafter, we tried again. We got the same 55 votes. And then we tried five more times, never budging a single vote. It was crystal clear that the object of the filibuster was not to illuminate Mr. Estrada's record but to deny him an up or down vote. Debate was not the objective. Obstruction was the objective. Finally, to the shame of the Senate and the harm of the American people, Mr. Estrada asked President Bush to withdraw his nomination. Before the last Congress, the record number of cloture votes on a judicial nomination was two, and no nomination with clear majority support ever died by filibuster. The Estrada case rewrote that tradition, and for the worse. On Miguel Estrada, seven cloture votes were taken, to no avail. He was a nominee who plainly could have been confirmed, but he was denied an up or down vote. Miguel Estrada's nomination died by filibuster. And Mr. Estrada's case was just the beginning. After him, came the nomination of Priscilla Owen, a Justice on the Texas Supreme Court. Four cloture votes did not bring an end to the debate and we again were told on the record that no amount of debate would be enough and a confirmation vote simply would not be allowed. Thereafter, eight additional nominees were filibustered and Democrats threatened filibusters on six more. Something had radically changed in the way the Senate deals with nominations. Two hundred years of Senate custom lay shattered, with grave implications for our constitutional system of checks and balances. As the filibusters began to mushroom, Democratic Senator Zell Miller and I introduced a cloture reform resolution. Our proposal would have permitted an end to nominations filibusters after reasonable and substantial debate. The Rules Committee held a hearing on our resolution and reported it with an affirmative recommendation. But the proposal languished on the Senate Calendar, facing a certain filibuster from Senators opposed to cloture reform. Quite simply, those who undertook to filibuster these nominees wanted no impediments put in their way. When Congress convened this January, I was urged to move immediately for a change in Senate procedure so that these unprecedented filibusters could not be repeated. But I decided on a more measured and less confrontational course. Rather than move immediately to change procedure, I promoted dialogue at the leadership and committee level to seek a solution to this problem. Rather than act on the record of the last Congress, I hoped that the passage of a clearly won election and presence of new Democratic leadership would result in a sense of fairness being restored. Sadly, these hopes were not fulfilled. More filibusters have been promised, not only against seven nominees President Bush has resubmitted but also against other nominees not yet sent up. A renewal of filibusters against persons denied an up or down vote in the last Congress is a grave problem and would be reason enough for reform. Threatening filibusters against new nominees compounds the wrong and is further reason for reform. For many decades, two great Senate traditions existed side by side. These were a general respect for the filibuster and a consensus that nominations brought to the floor would receive an up-or-down vote. Filibusters have been periodically conducted on legislation, sometimes successfully and sometimes ended by cloture. However, filibusters have not impeded the Senate's advice and consent role on nominations. In the exceedingly rare cases they were attempted, cloture was always invoked with bipartisan support and the filibusters ceased. But in the last Congress, judicial filibusters became instruments of partisan politics. Organized and promoted by the Democratic leadership, these filibusters proved resilient to cloture. And that was the difference between these filibusters and the handful of judicial filibusters conducted in the past. For example, to close debate on President Clinton's nominees, Marsha Berzon and Richard Paez, the Republican leader, Senator Lott, took the initiative to file for cloture. Because he acted to conclude the debate, both Berzon and Paez sit on the bench today. Due to the current filibusters, two great Senate traditions that used to coexist now collide. If matters are left in this posture, either the power of advice and consent will yield to the filibuster or the filibuster will yield to advice and consent. Until these judicial filibusters were launched, the Senate observed the principle that filibusters would not impede the exercise of constitutional confirmation powers and that a majority of Senators could vote to confirm or reject a nominee brought to the floor. The unparalleled filibusters undermine that tradition, denying nominees the courtesy of an up or down vote. They represent an effort by a Senate minority to obstruct the duty of the full Senate to advise and consent. The current minority claims it has no choice but to filibuster, because Republicans control the White House and Senate. But the minority's conclusion defies history. For 70 of the 100 years of the last century, the same party controlled the Presidency and the Senate, but the minority party leadership exercised restraint and refused to filibuster judicial nominees. The past half century amply illustrates this point. During the Kennedy and Johnson administrations, Democrats controlled the Senate, but the Republican Minority Leaders Everett Dirksen did not filibuster judicial nominees. While President Carter was in office, Democrats controlled the Senate, but Republican Leader Howard Baker did not filibuster judicial nominees. For President Reagan's first 6 years, Republicans controlled the Senate, but Democratic Leader Robert Byrd did not filibuster judicial nominees. In President Clinton's first 2 years, Democrats had the Senate but Republican Leader Bob Dole did not filibuster judicial nominees. During all those years, all those Congresses, and all those Presidencies, nominees brought to the floor got an up-or-down vote. Each of those Senate minorities could have done what this minority has done, using the same rationale. But none of them did. To the great detriment of the Senate and to the constitutional principle of checks and balances, such self-restraint has vanished. Democrats argue that by curbing judicial filibusters, we would turn the Senate into a rubberstamp. But for more than two centuries, those filibusters did not exist. Shall we conclude that for 200 years the Senate was a rubberstamp and only now has awakened to its responsibilities? What of those minority leaders who did not filibuster? Were they also rubberstamps? Was Dirksen? Was Baker? Was Byrd? Was Dole? Can the minority be right that only through the filibuster may the Senate's advice and consent check be vindicated? This is a novel conclusion and it stains the reputation of the great Senators that have preceded us. To make their case against curbs on judicial filibusters, Democrats try to reach into history. In so doing, they cite the 1968 nomination of Abe Fortas to be Chief Justice of the U.S. Supreme Court, and Franklin Roosevelt's court-packing plan of 1937. But use of these examples is an overreach and draws false comparisons. In 1968, Abe Fortas was serving on the Supreme Court as an Associate Justice. Three years earlier, he had been confirmed by the Senate by voice vote, following a unanimous affirmative recommendation from the Judiciary Committee. Then Chief Justice Earl Warren announced his retirement, effective on the appointment of his successor. President Lyndon Johnson proposed to elevate Fortas to succeed Warren. The noncontroversial nominee of 1965 became the highly controversial nominee of 1968. Justice Fortas was caught in a political perfect storm. Some Senators raised questions of ethics. Others complained about cronyism. Yet others were concerned about Warren Court decisions. And still others thought that with the election looming weeks away, a new President should fill the Warren vacancy. But this political perfect storm was thoroughly bipartisan in nature, and reflected concerns from certain Republicans as well as numerous southern and northern Democrats. Senator Mike Mansfield brought the Fortas nomination to the Senate floor late on September 24, 1968. After only 2 full days of debate, Mansfield filed a cloture motion. Almost a third of the 26 Senators who signed the cloture motion were Republicans, including the Republican whip. The vote on cloture was 45 yeas and 43 nays, well short of the two-thirds then needed to close debate. Nearly a third of Republicans supported cloture, including the Republican whip. Nearly a third of Democrats opposed it, including the Democratic whip. Of the 43 negative votes on cloture, 24 were Republican and 19 were Democratic. Opponents of cloture claimed that debate had been too short in order to develop the full case against the Fortas nomination. In contrast to the Miguel Estrada and Priscilla Owen filibusters, no one claimed that debate would go on endlessly and that no amount of time would be sufficient. Indeed, those who opposed cloture denied there was a filibuster at all. So, Mr. President, the Fortas case is not analogous to the judicial filibusters we now confront. Support for and opposition to Fortas was broadly bipartisan, a fact that stands in stark contrast to the partisan filibusters that began in the last Congress as an instrument of party policy. At most, it was opposition to one man, and was not an effort to leverage judicial appointments through the threat of a filibuster-veto. The Fortas opposition came together in one aberrational moment. Nothing like it happened in the previous 180 years and nothing like it happened for the next 35 years. Absolutely, it did not represent a sustained effort by a minority party to shatter Senate confirmation traditions and exercise a filibuster-veto destructive of checks and balances. No comparison can be made between that single aberrational moment and the pattern of judicial filibusters we now confront. Democrats also contend that if we move against the judicial filibusters, we will follow in the footsteps of Franklin Roosevelt's attempt to pack the Supreme Court. But this is a scare tactic and it, too, is a comparison without basis. Frustrated by the Supreme Court's ruling unconstitutional several New Deal measures, President Roosevelt sought legislation to pack the court by appointing a new Justice for every sitting Justice over the age of 70. In a fireside chat, he compared the three branches of government to a three horse team pulling a plow. Unless all three horses pulled in the same direction, the plow could not move. To synchronize all the horses, Roosevelt proposed to pack the court. Roosevelt's effort was a direct assault on the independence of the judiciary and plainly undermined the principles of separation of powers and checks and balances. He failed in a Senate with 76 Members of his own party. But no good analogy can be drawn between what he attempted and our effort to end judicial filibusters. Unlike Roosevelt, Republicans are not trying to undermine the separation of powers. And unlike Roosevelt, Republicans are not trying to destabilize checks and balances, but to restore them. Mr. President, that the judicial filibusters undermine a longstanding Senate tradition is evident. But traditions are not laudable merely because they are old. This tradition is important because it underpins a vital constitutional principle that the President shall nominate, subject to the advice and consent of the Senate. When filibusters are used to block a vote, the advice and consent of the Senate is not possible. A cloture vote to end a filibuster is not advice and consent within the Constitution's meaning. Notwithstanding the minority's claim, nominees denied a confirmation vote due to filibuster have not been ``rejected.'' Instead, what has been rejected is the constitutional right of all Senators to vote up or down on the nominees. To require a cloture threshold of 60 votes for confirmation disturbs checks and balances between the Executive and the Senate and creates a strong potential for tyranny by the minority. A minority may hold hostage the nomination process, threatening to undermine judicial independence by filibustering any appointment that does not meet particular ideological or litmus tests. This is not a theoretical problem. Look what has happened already. Asserting claims that nominees from the last Congress were ``rejected,'' Democrats have urged President Bush to withdraw the nominations he has submitted anew. If he does not, they will ensure the nominees are denied a confirmation vote. It is but a tiny step from there to claim that any nominee must first secure minority clearance, or else be filibustered. And at that point, the nominating power effectively passes to the Senate minority. If Senate traditions are not restored, this audacious and unprecedented assertion of minority power is coming next, and Presidents will be subject to it from now on. The Constitution provides that a duly elected Executive shall nominate, subject to advice and consent by a majority of the Senate. Implicit in that structure is that the President and the Senate shall be politically accountable to the American people, and that accountability will be a sufficient check on the decisions made by each of them. That was the system by which we Americans addressed nominations for more than two centuries, until the last Congress. If we allow recent precedents to harden and give the minority a filibuster-veto in the confirmation process, that system and the checks and balances it serves, will be permanently destroyed. Trying to legitimize their judicial filibusters, Democrats have taken to the floor to extol the virtue of filibusters generally. And as to legislative filibusters, I agree with them. But judicial filibusters are not cut from the same cloth as legislative filibusters and must not receive similar treatment. So, I concur with the sentiments Senator Mansfield expressed during the Fortas debate: In the past, the Senate has discussed, debated and sometimes agonized, but it has always voted on the merits. No Senator or group of Senators has ever usurped that constitutional prerogative. That unbroken tradition, in my opinion, merely reflects on the part of the Senate the distinction heretofore recognized between its constitutional responsibility to confirm or reject a nominee and its role in the enactment of new and far-reaching legislative proposals. Mr. President, history demonstrates that filibusters have almost exclusively been applied against the Senate's own constitutional prerogative to initiate legislation, and not against nominations. The Frist-Miller cloture reform proposal from the last Congress dealt with nominations only, not legislation and not treaties. We addressed solely what was broken. Over many decades, numerous cloture reforms have been proposed. But ours was the only one to apply strictly to nominations. We left legislative filibusters alone. Contrary to what Democrats would have you believe, no Republican seeks to end legislative filibusters. The Democrats are creating a myth. These are the facts: my first Senate vote was to defeat a 1995 rules change proposal to curtail filibusters of every kind. Introduced by Democrats, it received 19 votes, all from Democrats. In 1995, we had a new Republican majority. We would have been the prime beneficiaries of the rules change, but we supported minority rights to filibuster on legislation. Some of the Senators who most vigorously promote judicial filibusters and condemn us for trying to restore Senate traditions, were among those voting for the 1995 change. And here is the irony: had the 1995 change been adopted, the judicial filibusters would be impossible. Some who oppose filibuster reform do so because they fear that curbing judicial filibusters will necessarily lead to ending the right to filibuster legislation. But history strongly suggests this slippery slope argument is groundless. In 1980, under the leadership of Senator Byrd and on a partisan vote, Senate Democrats engineered creation of a precedent to bar debate on a motion to proceed to a nomination. Before then, the potential existed for extended debate on the motion to proceed to a nomination and again on the nomination itself. Indeed, debate on the Fortas nomination occurred on the motion to proceed. The 1980 precedent rendered such debate impossible. Simple logic would dictate that a parallel precedent would be established next, to bar debate on motions to proceed to legislation. But that logic was not followed. The Byrd precedent of 1980 has stood for 25 years and no move has ever been made to extend it to legislation. Why not? I suggest there are two reasons. First, the Senate has recognized substantial distinctions between procedures applicable to Executive matters--nominations and treaties--and those applicable to legislation. Second, within the Senate there is no discernible political sentiment to curtail the right to debate a motion to proceed to legislation. Given those substantial procedural distinctions and the absence of such political sentiment, the spillover from the 1980 Byrd precedent has been nil. There is a further reason why I do not believe curbing judicial filibusters implicates legislation. For 22 years, between 1953 and 1975, floor fights over the cloture rule were a biennial ritual. Finally, in 1975, the rule was amended to require 60 votes before cloture could be invoked. A bipartisan consensus gathered around the new cloture threshold and, at least as to legislation, this consensus has held fast. That is the principal cause why the 1995 effort by certain Democrats to liberalize the cloture rule got only 19 votes. Indeed, both the Republican and Democratic leadership opposed it. The 30-year bipartisan consensus on cloture has unraveled on judges, where filibusters are new, but it remains intact on legislation, where filibusters are traditional. While no one can be sure what procedural changes a future majority may propose, this consensus is so broad and longstanding that predictions of a move against the legislative filibuster lack basis. Finally, Mr. President, I will repeat what I have said in a series of public statements both on this floor and to the press: the Republican majority will oppose any effort to restrict filibusters on legislation. All this, Mr. President, brings us to the question of how to address the problem of judicial filibusters. What might reform look like and how might the Senate adopt it? A good place to start is with first principles. In the case of judicial nominations, I believe the foundational principle is that if a majority of Senators wishes to exercise its right to advise and consent to a nomination, it must be able to do so. To that end, I have offered a Fairness Rule, which takes account of complaints set forth by both parties. My proposal addresses the question of holding nominations in committee, so that nominations can move to the floor for a conformation vote. By this step, the Senate would respond specifically to concerns Democrats have voiced about the treatment of Clinton nominees. So, if a majority of Senators wishes to advise and consent, committee inaction would not block it. Thereafter, a majority can bring a nomination to the floor. After 100 hours of debate, equally divided, the Senate can vote up or down on the nominee. This step responds specifically to concerns Republicans have had about filibusters of Bush nominees. The Fairness Rule is the product of listening to the often rancorous arguments expressed by Democrats and Republicans. It would reform the confirmation process fairly and completely, and well serve this and future Senates and this and future Presidents. The cycle of blame and finger-pointing must halt. We must stop nursing grievances and start addressing problems. Thus far, the Fairness Rule has received an unwelcoming response. I urge the minority to reconsider. I urge them to join hands with us in dissipating bitter partisanship by considering this proposal. For some time, the issue of judicial filibusters has captured considerable attention in the Senate. Both parties have had substantial opportunities to think about reform, so we can initiate consideration of it through the committee process and should be able to move ahead with alacrity. But to act on reform by this method, we must have a unanimous consent agreement that allows time for debate, a chance for amendment, and the certainty of a final vote. An agreement can provide for robust, principled, and lengthy discussion. Without an agreement, any reform we bring to the floor is subject to being filibustered itself. So, I ask the minority for an agreement to move matters forward. It represents an opportunity, much desired by Senators on both sides of the aisle, to avoid a confrontation on judges. But if the answer is obstruction, then we are faced with having to initiate exercise of the Senate's constitutional option--best understood as reliance on the power the Constitution gives the Senate to govern its own proceedings. The Senate is an evolving institution. Its rules and processes are not a straitjacket. Over time, adjustments have occurred in Senate procedure to reflect changes in Senate behavior. Tactics no longer limited by self-restraint became constrained by rules and precedents. This Senate, equal to the first Senate, has the constitutional right to determine how it wishes to conduct its business. Self-governance involves writing rules or establishing precedents, and the Constitution fully grants to the Senate the power to do either. Democrats contend that if the constitutional option is used to restore checks and balances, Republicans would be veering into unchartered waters. But history is rich with examples of how Senate rules and precedents have changed in response to changing conditions. And quite often, it was the credible threat or actual use of the constitutional option that caused these changes to be made. The cloture rule itself was created in 1917, under pressure from Montana Democrat Thomas Walsh. Fed up with obstruction and with the prospect that any effort to amend Senate rules would be filibustered, Walsh proposed exercising the constitutional option. Old Senate rules would not operate while the Senate considered new rules, including a cloture procedure. Meanwhile, general parliamentary law would govern-- affording the Senate a way to break the rules change filibuster. Faced with that pressure, and with an appropriate parliamentary tool at hand, the Senate adopted its first cloture rule. As the issue of civil rights gripped the Senate in the 1950s, a bipartisan group of Senate liberals, led by New Mexico Democrat Clinton Anderson, proposed using the constitutional option to liberalize a cloture process, because filibusters had either doomed or weakened civil rights legislation. Anderson's support grew throughout the decade. By 1959, it was apparent he might command a majority, which forced Senator Lyndon Johnson into a compromise by which the cloture threshold was relaxed. But for the credible threat the constitutional option would be exercised, the rules change would not have happened. In 1975, Minnesota Democrat Walter Mondale and Kansas Republican Jim Pearson pressed for cloture reform through the constitutional option. Majority Leader Mike Mansfield, who earlier in his career had supported this tactic, offered three separate points of order against it. Three times, those points of order were tabled. With a majority of Senators squarely on record supporting the constitutional option, the Majority Whip, Senator Byrd, offered a successful leadership compromise to lower the cloture threshold. But for the constitutional option, the change would not have happened. In 1979, Majority Leader Byrd sought to make a variety of rules reforms, principally with regard to cloture. Introducing a rules change resolution, he beseeched Republicans for a time agreement to consider it. But he also expressly warned that, if an agreement were not forthcoming, he would use the constitutional option to change the rules. Minority Republicans did not threaten to shut the Senate down. Instead, they gave him an agreement, from which followed a lengthy and spirited debate. In the end, the cloture rule was amended--a change that happened under pressure from the constitutional option. From this history, one must conclude that the threat or use of the constitutional option was a critical factor in the creation and development of the Senate cloture rule. The constitutional option is also exercised every time the Senate creates a precedent. Four examples will illustrate the point. I have spoken already of Senator Byrd's 1980 precedent to bar debate on motions to proceed to nominations. In 1977, 1979, and 1987 he led a Senate majority to establish precedents that restricted minority rights and tactics in use at the time. We do not have to pass judgment on the purposes or value of any of these moves to note the following: three of these cases were decided on a party-line or near party-line vote. Moreover, every time Senator Byrd commanded a majority to make these precedents, minority rights were limited. We have been publicly threatened that if we act to end judicial filibusters, Democrats will fundamentally shut the Senate down. To follow their logic, if we expect to get the public's business done, we must tolerate upending Senate traditions and constitutional checks and balances. I would strongly prefer that matters not come to that. It would be far better for the Senate to have a vigorous and elevated debate about reforming the entire confirmation process, followed by a vote. I am ready for that debate and willing to schedule the floor time necessary to make it happen. Mr. President, I introduced the Frist-Miller cloture reform proposal nearly 2 years ago, on May 9, 2003. The problem of judicial filibusters had just taken root. At the time, I said that I was acting with regret but determination. Regret, because no one who loves the Senate can but regret the need to alter its procedures, even if to restore old traditions. Determination, because I was determined that the changes judicial filibusters had wrought in the Senate could not become standard operating procedure in this Chamber. Since then, the Senate majority has exercised self-restraint, hoping for a bipartisan understanding that would make procedural changes unnecessary. But if an extended hand is rebuffed, we cannot take rejection for an answer. Much is at stake in resolving the issue of judicial filibusters. Senator Mansfield spoke to this issue during the Fortas debate in 1968. His words are instructive now: I reiterate we have a constitutional obligation to consent or not to consent to this nomination. We may evade that obligation but we cannot deny it. As for any post, the question which must be faced is simply: Is the man qualified for the appointed position? That is the only question. It cannot be hedged, hemmed or hawed. There is one question: shall we consent to this Presidential appointment? A Senator or group of Senators may frustrate the Senate indefinitely in the exercise of its constitutional obligation with respect to this question. In so doing, they presume 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. Mr. President, exercising the constitutional option to restore Senate traditions would be an act of last resort. It would be undertaken only if every reasonable step to otherwise resolve this impasse is exhausted. At stake are the twin principles of separation of powers as well as checks and balances bedrock foundations for the Constitution itself. And at stake is our duty as Senators of advice and consent, to confirm a President's nominee or reject her, but at long last to give her a vote.

Mr. FRIST. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. FRIST. Mr. President, I have had the opportunity to review the agreement signed by the Senator from Virginia, the Senator from Arizona, the Senator from Nebraska, and 11 other Senators, an agreement that I have reviewed but to which I am not a party. Let me start by reminding the Senate of my principle, a simple principle, that I have come to this Senate day after day stating, stressing. It is this: I fundamentally believe it is our constitutional responsibility to give judicial nominees the respect and the courtesy of an up-and-down vote on the floor of the Senate. Investigate them, question them, scrutinize them, debate them in the best spirit of this body, but then vote, up or down, yes or no, confirm or reject, but each deserves a vote. Unlike bills, nominees cannot be amended. They cannot be split apart; they cannot be horse traded; they cannot be logrolled. Our Constitution does not allow for any of that. It simply requires up-or-down votes on judicial nominees. In that regard, the agreement announced tonight falls short of that principle. It has some good news and it has some disappointing news and it will require careful monitoring. Let me start with the good news. I am very pleased, very pleased that each and every one of the judges identified in the announcement will receive the opportunity of that fair up-or-down vote. Priscilla Owen, after 4 years, 2 weeks, and 1 day, will have a fair and up-or-down vote. William Pryor, after 2 years and 1 month, will have a fair up-or- down vote. Janice Rogers Brown, after 22 months, will have a fair up- or-down vote. Three nominees will get up-or-down votes with certainty now because of this agreement, whereas a couple of hours ago, maybe none would get up-or-down votes. That would have been wrong. With the confirmation of Thomas Griffith to the DC Circuit Court of Appeals we have been assured--though it is not part of this particular agreement--there will be four who will receive up-or-down votes. And based on past comments in this Senate--although not in the agreement--I expect that David McKeague, after 3 years and 6 months, will get a fair up-or-down vote. I expect that Susan Neilson, after 3 years and 6 months, will get a fair or up-or-down vote. I expect Richard Griffin, after 2 years and 11 months, will get a fair up-or-down vote. Now, the bad news, to me, or the disappointing news in this agreement. It is a shame that well-qualified nominees are threatened, still, with not having the opportunity to have the merits of their nominations debated on the floor. Henry Saad has waited for 3 years and 6 months for the same courtesy. Henry Saad deserves a vote. It is not in this agreement. William Myers has waited for 2 years and 1 week for a fair up-or-down vote. He deserves a vote but is not in this agreement. If Owen, Pryor, and Brown can receive the courtesy and respect of a fair up-or-down vote, so can Myers and Saad. I will continue to work with everything in my power to see that these judicial nominees also receive that fair up-or-down vote they deserve. But it is not in this agreement. But in this agreement is other good news. It is significant that the signers give up using the filibuster as it was deployed in the last Congress in the last 2 years. The filibuster was abused in the last Congress. Mr. President, 10 nominees were blocked on 18 different occasions, 18 different filibusters in the last 2 years alone, with a leadership-led minority party obstruction, threatening filibusters on six others. That was wrong. It was not in keeping with our precedents over the past 214 years. It made light of our responsibilities as United States Senators under the Constitution. It was a miserable chapter in the history of the Senate and brought the Senate to a new low. Fortunately, tonight, it is possible this unfortunate chapter in our history can close. This arrangement makes it much less likely--indeed, nearly impossible--for such mindless filibusters to erupt on this floor over the next 18 months. For that I am thankful. Circuit court and Supreme Court nominees face a return to normalcy in the Senate where nominees are considered on their merits. The records are carefully examined. They offer testimony. They are questioned by the Senate Judiciary Committee. The committee acts, and then the Senate discharges its constitutional duty to vote up or down on a nominee. Given this disarmament on the filibuster and the assurance of fair up-or-down votes on nominees, there is no need at present for the constitutional option. With this agreement, all options remain on the table, including the constitutional option. If it had been necessary to deploy the constitutional option, it would have been successful and the Senate would have, by rule, returned to the precedent in the past 214 years. Instead, tonight, Members have agreed that this precedent of up-or-down votes should be a norm of behavior as a result of the mutual trust and good will in that agreement. I, of course, will monitor this agreement carefully as we move ahead to fill the pending 46 Federal vacancies today and any other vacancies that may yet arise during this Congress. I have made it clear from the outset that I haven't wanted to use the constitutional option. I do not want to use the constitutional option, but bad faith and return to bad behavior during my tenure as majority leader will bring the Senate back to the point where all 100 Members will be asked to decide whether judicial nominees deserve a fair up-or-down vote. I will not hesitate to call all Members to their duty if necessary. For now, gratified that our principle of constitutional duty to vote up or down has been taken seriously and as reflected in this agreement, I look forward to swift action on the identified nominations. Now, the full impact of this agreement will await its implementation, its full implementation. But I do believe that the good faith and the good will ought to guarantee a return to good behavior, appropriate behavior, on the Senate floor and that when the gavel falls on this Congress, the 109th Congress, the precedent of the last 214 years will once again govern up-or-down votes on the floor of the Senate. Now, this will be spun as a victory, I would assume, for everybody. Some will say it is victory for leadership, some for the group of 14. I see it as a victory for the Senate. I honestly believe it is a victory for the Senate where Members have put aside a party demand to block action on judicial nominees. They have rose to principle and then acted accordingly. I am also gratified with how clearly the Democratic leader has repeated over and over again during this debate how much he looks forward to working with us, and I with him, as we move forward on the agenda of the 109th Congress. Our relationship has been forged in part by circumstance, but it has been leavened by friendship. I look forward to working with him as we work together to move the Nation's agenda forward together. We have a lot to do, from addressing those vital issues of national defense and homeland security, to reinforcing a bill that hopefully will come very soon, addressing our energy independence, our role as a reliable and strong trading partner, to an orderly consideration of all the bills before us about funding, and to put the deficit on the decline. I look forward to working with the Democratic leader on these and many other issues of national importance. Mr. President, a lot has been said about the uniqueness of this body. Indeed, our Senate is unique, and we all, as individuals and collectively as a body, have a role to play in ensuring its cherished nature remains intact. Indeed, as demonstrated by tonight's agreement, and by the ultimate implementation of that agreement, we have done just that. It has withstood mighty tests that have torn other governments apart. Its genius is in its quiet voice, not in any mighty thunder. The harmony of equality brings all to its workings with an equal stake at determining its future. In all that the Senate has done in the last 2 years, I, as leader, have attempted to discharge my task to help steward this institution consistent with my responsibilities, not just as majority leader and not just as Republican leader, but also as a Senator from Tennessee. In closing tonight, with this agreement, the Senate begins the hard work of steering back to its better days, leaving behind some of its worst. While I would have preferred and liked my principle of up-or- down votes to have been fully validated, for this Congress now we have begun our labors for fairness and up-or-down votes on judicial nominees with a positive course. And as all involved keep their word, it should be much smoother sailing. Mr. President, I yield the floor.

Mr. FRIST

Mr. FRIST. The letter reads pretty clearly: ``Dear Chairman Specter''--and there was a copy sent to Senator Leahy. This is from the author of the legislation of which these accusations of judicial activism have been floating around on the floor. These are the authors, the people who wrote--who wrote--the legislation. I quote from the letter: I, along with my colleagues in the Texas Senate and Texas House of Representatives, am writing to express my full and unconditional support for Justice Priscilla Owen's nomination to the U.S. Court of Appeals for the Fifth Circuit. As the author of the Texas Parental Notification Act, I followed closely the Texas State Supreme Court rulings regarding that statute. As such, we are disturbed by the recent attacks on Justice Owen's review of the Texas Parental Notification Act. Justice Owen's opponents have characterized her as an activist member of the bench, and nothing could be further from the truth. The letter continues: To the contrary, her opinions interpreting the Texas Parental Notification Act serve as prime examples of her judicial restraint. Mr. President, I will have my colleagues read the remainder of the letter. It goes on and gives examples in explaining that statement. And then, down in the following paragraph, I quote: Throughout the series of cases, Justice Owen's interpretation of legislative intent were based on careful reading of the new statute and the governing U.S. Supreme Court precedent. This is the final sentence of the letter: In short, Justice Owen's academic and professional qualifications are beyond question. We strongly urge Senators to vote positively on her nomination. Again, it is signed by the author, Florence Shapiro, and, again, 26 others from the house of representatives and senate in Texas. In addition, a pro-choice Democratic law professor also has defended Justice Owen. This professor, Linda Eads, is a member of the Texas Supreme Court Advisory Committee that drafted rules to help judges deciding cases under this law, the parental notification law. She says Justice Owen's decisions ``do not demonstrate judicial activism. She did what good appellate judges do every day . . . if this is activism, then any judicial interpretation of a statute's terms is judicial activism.'' If you look fairly at Justice Owen's record, you will see a well- qualified, mainstream judge. But I will say, as we step back and look at the larger debate, some Senators may draw different conclusions about Justice Owen, and they may decide she does not deserve confirmation. Indeed, they may decide that none of the President's nominees deserve confirmation. And they, as Senators, are entitled to that choice. But they should express that choice, give that advice and consent by a vote, an up-or-down vote, ``yes'' or ``no,'' confirm or reject. They should not hide behind a procedure that prevents 100 Senators from their responsibility, their duty to vote ``yes'' or ``no'' on the nominee, up or down. As everyone knows, I have advocated fair up-or-down votes for judicial nominees again and again and again and will continue to do so. In the past, some of our colleagues on the other side of the aisle have shared this view. Many of them have argued forcefully and eloquently for up-or-down votes on judicial nominees. Let me share some of their arguments with you. One Senator on the other side of the aisle, in opposition to giving up-or-down votes today, said: [E]veryone who is nominated ought to have a hearing and to have a shot to be heard on the floor and have a vote on the floor. Another Democratic Senator said: A nominee is entitled to a vote. Vote them up; vote them down. . . . If there are things in their background, in their abilities that don't pass muster, vote no. Our institutional integrity requires an up-or-down vote. Another Democratic Senator noted that: According to the U.S. Constitution, the President nominates, and the Senate shall provide advice and consent. It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor. These are all arguments from my Democratic colleagues in years past. These quotes capture what this debate today is all about. It is about fairness. It is about principle. It is about the constitutional duty of every Senator. The Senate must do what is right. We must do what is fair. We must do the job the American people elected us to do. So let us continue to debate. Let Senators exercise their right to speak. We may not agree. We will not agree on every judicial nominee, but we can agree on the principle that every qualified judicial nominee deserves an up-or-down vote. I yield the floor. Exhibit 1 Texas State Senate, District 8, Plano, Texas, May 16, 2005. Hon. Chairman Arlen Specter, Committee on the Judiciary, U.S. Senate, Russell Senate Office Bldg., Washington, DC. Dear Chairman Specter: I, along with my colleagues in the Texas Senate and Texas House of Representatives, am writing to express my full and unconditional support for Justice Priscilla Owen's nomination to the U.S. Court of Appeals for the Fifth Circuit. As the author of the Texas Parental Notification Act (SB 30/HB 623), I followed closely the Texas State Supreme Court rulings regarding that statute. As such, we are disturbed by the recent attacks on Justice Owen's review of the Texas Parental Notification Act. Justice Owen's opponents have characterized her as an activist member of the bench, and nothing could be further from the truth. To the contrary, her opinions interpreting the Texas Parental Notification Act serve as prime examples of her judicial restraint. Although some might try to hold up the Texas Parental Notification Act as a litmus test on abortion, they simply cannot make the case. The Act is not about whether a minor is able to have an abortion or must receive parental consent, but whether a parent should be notified. The Act recognizes that a girl may have an abortion and does not question whether the Constitution guarantees that right. Throughout the series of cases, Justice Owen's interpretations of legislative intent were based on careful reading of the new statute and the governing U.S. Supreme Court precedent. For example, Justice Owen's opinion that a minor should ``indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion.'' This opinion is consistent with prior U.S. Supreme Court precedent stating: ``The waiting period, for example, may provide the parent or parents of a pregnant young woman the opportunity to consult with her in private, and to discuss the consequences of her decision in the context of the values and moral or religious principles of their family'' (Planned Parenthood v. Casey). In short, Justice Owen's academic and professional qualifications are beyond question. We strongly urge Senators to vote positively on her nomination. Very truly yours, Sen. Florence Shapiro, President Pro Tempore. Sen. Chris Harris; Sen. Jane Nelson; Rep. Brian McCall; Rep. Harvey Hilderbran; Rep. Suzanna Gratia Hupp; Rep. Betty Brown; Rep. Robert E. Talton; Rep. Kent Grusendorf; Rep. Gary Elkins; Rep. Edmund Kuempel; Rep. Joe Crabb; Rep. Leo Berman; Rep. Mike Krusee; Rep. Dianne White Delisi; Rep. Joe L. Driver; Rep. Frank J. Corte, Jr.; Rep. Fred Brown; Rep. Peggy Hamric; Rep. Joe Nixon; Rep. Mary Denny; Rep. Elvira Reyna; Rep. Geanie Morrison; Rep. Eugene Seaman; Rep. Anna Mowery; Rep. Richard L. Hardcastle; and Rep. Ray Allen.

Mr. FRIST. Mr. President, today we will resume executive session to consider Priscilla Owen to be a U.S. circuit court judge for the Fifth Circuit. We will continue the debate, as we did yesterday, by rotating back and forth between the aisle every 60 minutes. I think this orderly flow of debate will be helpful in terms of scheduling Members' speaking times. It worked well yesterday, and I would expect it to be orderly today as well. I know there is a large number of Senators who have indicated their desire to speak, and we will remain on the nomination to give everyone a chance to fully voice their concerns and their discussion on this very qualified nominee. I am hopeful that at some point we will be able to schedule a vote on the nomination, and I will update Members later today on the upcoming schedule as it relates to the nomination of Priscilla Owen. Mr. President, I will have a brief statement--the Democratic leader and I were just discussing our plans--and then he will have a statement, and then at that juncture I believe we will proceed as we set out the time schedule yesterday, alternating back and forth. Mr. President, we did, yesterday, have a vibrant and spirited debate on the Senate floor. We have been debating a very simple principle--one based on fairness and one grounded in the Constitution. The principle is that judicial nominees, with the support of a majority of Senators, deserve a fair up-or-down vote on the floor of the Senate. Yesterday, 21 Senators--evenly divided, I believe 11 Republicans and 10 Democrats--debated for over 10 hours on the nomination of Priscilla Owen. We will continue that debate--10 hours yesterday--maybe 20 hours, maybe 30 hours, and we will take as long as it takes for Senators to express their views on this qualified nominee. But at some point that debate should end and there should be a vote. It makes sense: up or down, ``yes'' or ``no,'' confirm or reject; and then we move on in regular order. Senators can vote to confirm or reject a nominee. But we should fulfill our constitutional responsibility to give advice and consent by voting up or down. The nominee before us is Priscilla Owen, a Texas Supreme Court justice nominated to serve on the Fifth Circuit Court of Appeals. I have studied her record. I have had the opportunity to meet with her personally. I believe she would serve our Nation well as a circuit court judge. Her academic and professional qualifications are outstanding. She graduated near the top of her class in law school, and she once achieved the highest score in the State of Texas on the bar exam. The American Bar Association unanimously rated her ``well qualified,'' its highest possible rating. Her opponents suggest she is a judicial activist who is out of the mainstream. Her record simply shows that is not true. She was reelected by 84 percent of Texans. Are 84 percent of Texans really out of the mainstream? She is supported by Republicans and Democrats on the Texas Supreme Court. She has been endorsed by every major newspaper in her home State. That is a mainstream record. In her judicial decisions, some on the floor over the last day, and actually last week as well, have criticized her as a judicial activist in cases, and the focus has always been on these cases involving a parental notification law. The law is not about whether a minor is able to have an abortion or whether a minor must receive parental consent before having an abortion. The law simply requires a parent to be notified if their child is having an abortion, except in certain circumstances. The author of the law, and 26 other members of the Texas legislature, have defended Justice Owen's opinions, and it is spelled out clearly in a letter of May 16, 2005, that is signed by the author of the legislation itself and 26 other members of the Texas legislature. The letter is interesting. It is a letter dated May 16, and it is a letter that was sent to Senator Specter, of the Judiciary Committee, and Senator Leahy. The letter is indeed quite powerful. I would like to read just a couple sections from the letter. Mr. President, I ask unanimous consent that following my remarks the entire letter be printed in the Record.

Mr. FRIST

Mr. FRIST. Mr. President, many Members have been inquiring about the schedule, but I do want to thank all Senators for their statements today, as well as yesterday. The debate time has been evenly divided. We have heard from a number of people. This is our second day of debate on the nomination of Priscilla Owen for the Fifth Circuit Court. We have not had very much in the way of pauses in the debate. We have used floor time well. And from both leaders, we thank everybody for their participation and cooperation. It has been a constructive debate. Tomorrow, we will resume debate. We will be continuing debate tonight, but for people's planning purposes, tomorrow we will resume debate on Priscilla Owen, and it would be my intent to ask consent for some limitation of time before we vote on the Owen nomination. If we are unable to reach an agreement, I would then file a cloture motion tomorrow, on Friday. On Monday, we would return to session and continue the debate on Priscilla Owen, much in the same vein it has been yesterday, today, and will be tomorrow. I encourage, once again, our colleagues to take advantage of the opportunity to speak. The reason we are spending the time is to make sure all ideas and thoughts and concerns are expressed. The Democratic leader and I have discussed this, and we will have a vote on Monday at approximately 5:30. It will be a procedural vote. I anticipate it will be--we will say 5:30 now. Senators should return for debate on this vote. On Monday, Senators will have as much time as they need to debate the pending nomination. We will file cloture tomorrow, and then we would have the cloture vote on Tuesday. And the timing of that vote is something the Democratic leader and I have not talked about but will do so and make our colleagues aware. With that understanding--and that is the plan--we will have no further votes this evening. And we would have no votes tomorrow as well but continue debate.

Mr. FRIST

Mr. FRIST. Mr. President, I now ask for a second reading and, in order to place the bills on the calendar under the provisions of rule XIV, I object to my own request, all en bloc.

Mr. FRIST. Mr. President, I understand that there are two bills at the desk, and I ask for their first reading en bloc.

Mr. FRIST

Mr. FRIST. Mr. President, I would be happy to.

Mr. FRIST. Mr. President, I would like to proceed with my statement and would be happy to yield for a comment. For 214 years the threshold for advice and consent in the Senate was 50 votes. In the last Congress the minority party radically increased that threshold to 60, and that is wrong, and we will restore the tradition. This unprecedented threshold gave the minority a virtual veto, in effect control, over the judicial appointments of the President. The minority destroyed 214 years of Senate tradition, defied the clear intent of the Constitution, and undermined the Democratic will of the American people. You can't get much more radical than that. This new precedent cannot be allowed to stand in this Congress. We must restore the 214-year-old principle that every judicial nominee with majority support deserves an up-or-down vote. Why? First, the American people elect their Senators for a reason. It is to represent them. And they expect us to do our job. The Senate is a deliberative body. We are a proudly deliberative body. But we also have certain responsibilities which include giving advice and consent on the President's judicial nominations. When a judicial nominee comes to this floor and has majority support but is denied a simple up-or-down vote, Senators are simply not doing their job. And the sad fact is we did not do our job in the last Congress. The minority's judicial obstruction has saddled President Bush with the lowest confirmation rate for appeals court nominees of any modern President. This is disgraceful. We owe it to the people we serve and to the Senate as an institution to do our job. We should vote up or down on judicial nominees. Second, the judicial branch also has a job to do and it needs judges to do it. Right now there are 46 vacancies on the Federal bench. That includes 17 vacancies on appeals courts. But it is not just the vacancies. Qualified nominees who can fill those seats can't get up-or- down votes to be confirmed in the Senate. Let me give you an example. Four of the 17 vacancies on Federal appeals courts are in the region that serves my home State of Tennessee--4 of the 17 vacancies. Those nominees have been waiting a combined 13 years for a simple up-or-down vote on this floor--13 years they have been waiting. Either confirm these nominees or reject the nominees but don't leave them hanging. Don't leave our courts hanging. Don't leave the country hanging. If nominees are rejected, fine, that is fair. At least rejection represents a vote. But give nominees the courtesy, the courtesy of a vote. Third, judicial nominees deserve up-or-down votes because they deserve to be treated fairly. Let me tell you about the nominees we are about to consider, Priscilla Owen and Janice Rogers Brown. Priscilla Owen has been a Texas Supreme Court Justice for the last 10 years. She was reelected with 84 percent of the vote in 2000. Her service won praise from Members of both parties. Former Justice Raul Gonzalez, a Democrat, said: I found her to be apolitical, extremely bright, diligent in her work and of the highest integrity. I recommend her for confirmation without reservation. Justice Owen has also been a leader for providing free legal service for the poor and she has worked to soften the impact of legal proceedings on children of divorcing parents. On May 9, 2001, President Bush nominated Priscilla Owen to the Fifth Circuit Court of Appeals. To this day, more than 4 years later, even though a majority of Senators in this body support her, she has been denied an up-or-down vote. That is just plain wrong, and it is unfair. Priscilla Owen deserves a vote. Now let me tell you about Janice Rogers Brown. She is the daughter of an Alabama sharecropper. She was educated in segregated schools and worked her way through college and law school. She went on to serve in prominent positions in California State government. Today Janice Rogers Brown is a justice on the California Supreme Court and she was retained as a justice by the people of California with 76 percent of the vote. On July 25, 2003, President Bush nominated Justice Brown for the U.S. Court of appeals. To this day, nearly 2 years later, even though a majority of Senators support her, she has been denied an up-or-down vote on the floor of the Senate. That is wrong. That is unfair. Janice Rogers Brown deserves a vote. Janice Rogers Brown can get 76 percent of the vote in California, Priscilla Owen can get 84 percent of the vote in Texas, but neither can get a vote here on the floor of the Senate. Why? The minority says they are out of the mainstream. Are 76 percent of Californians and 84 percent of Texans out of the mainstream? Denying Janice Rogers Brown and Priscilla Owen a vote is what is out of the mainstream. Justice Brown and Justice Owen deserve better. They deserve to be treated fairly. They deserve the courtesy of a vote. The consequences of this debate are not lost on any Member of this body. Soon we, 100 Senators, will decide the question at hand: Should we allow a minority of Senators to deny votes on judicial nominees who have the support of a majority of this body or should we restore the 214-year practice of voting up or down on all judicial nominees who come to this floor? I have to believe the Senate will make the right choice. We will choose the Constitution over obstruction. We will choose principle over politics. We will choose votes over vacillation. And when we do, the Senate will be the better for it. The Senate will be, as Daniel Webster once described it: . . . a body to which the country looks, with confidence, for wise, moderate, patriotic, and healing counsels. To realize this vision, we don't need to look as far back as the age of Webster or Clay or Calhoun. All we must do is look at the recent past and take inspiration from the era of Baker, Byrd, and Dole. For 70 percent of the 20th century, the same party controlled the White House and the Senate. Yet during that period, no minority ever denied a judicial nominee with majority support an up-or-down vote on this floor. Howard Baker's Republican minority didn't deny Democrat Jimmy Carter's nominees. Robert Byrd's Democratic minority did not deny Republican Ronald Reagan's nominees. Bob Dole's Republican minority did not deny Democrat Bill Clinton's nominees. These minorities showed restraint. They respected the appointments process. They practiced the fine but fragile art of political civility. Sure they disagreed with the majority at times, but they nonetheless allowed up-or-down votes to occur. The Senate must do what is right. We must do what is fair. We must do the job we were elected to do and took an oath to do. We must give judicial nominees the up-or-down votes they deserve. Let us debate, and let Senators be heard. Let the Senate decide, and let this body rise on principle and do its duty and vote.

Mr. FRIST. Mr. President, I rise today as the leader of majority party of the Senate, but I do not rise for party. I rise for principle. I rise for the principle that judicial nominees with the support of the majority of Senators deserve up-or-down votes on this floor. Debate the nominee for 5 hours, debate the nominee for 50 hours, vote for the nominee, vote against the nominee, confirm the nominee, reject the nominee, but in the end vote. Senators, colleagues, let's do our duty and vote. Judicial nominees deserve an up-or-down vote. In this debate we will discuss two of the President's judicial nominees. These outstanding nominees, Priscilla Owen and Janice Rogers Brown, had the support of a majority of Senators in the last Congress, but they were denied, they were denied up or down votes. I expect we will also discuss such consequential topics as the meaning of the Constitution and Senate rules and procedures. No doubt this will be a spirited debate, as it should be. And I also hope it will be a decisive debate. So let us begin. In the last Congress, for the first time in history a minority of Senators obstructed the principle of a fair up-or-down vote on judicial nominees. That was unprecedented. Never in 214 years of Senate history had a judicial nominee with majority support been denied an up-or-down vote. Yet it happened--again, and again, and again, and again, and again, and again. A minority of Senators denied an up-or-down vote not just once to one nominee but 18 times on 10 individual nominees. These men and women, these nominees are among the best legal minds in America and they all would be serving on the Federal bench today. All they needed was a vote. But they were not given the courtesy of an up-or- down vote on the floor of the Senate. The minority denied them a vote and set a new precedent. The minority in the last Congress rewrote the rules of advice and consent. They unilaterally increased the threshold for confirmation from 50 votes, where it had been throughout history, to 60 votes. Now some in the minority say they will harden the precedent and obstruct judicial nominees in this Congress. And if they are not allowed to do so, if the Senate returns to the way it worked for 214 years, they will retaliate. They will obstruct the Senate's other business. They will obstruct the people's business. They will hold back our agenda to move America forward. An energy strategy to reduce our dependence on foreign oil, held back; an end to the medical lawsuit abuse to reduce the cost of health care, held back; a simpler, fairer Tax Code to create jobs and to encourage economic growth, held back. A minority of Senators will hold America back just because a majority of Senators, a majority of people in this body want to do what most Americans of all things expect us to do, and that is to vote. The minority should allow Senators to fulfill our constitutional responsibility of giving advice and consent and vote. And they should allow America to move forward. The principles that endured for 214 years do not endure because they appeal to one party or the other. They endure because they serve a vital purpose. In this case, the principle of an up-or-down vote ensures the President can fulfill his constitutional duty to appoint judges. Let me read a passage in the Constitution. The President shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senate present concur, and he shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public ministers and consuls, judges of the Supreme court, and all other officers of the United States. The Framers wrote in the Constitution that two-thirds of Senators must approve treaties, but they specifically did not require the same number of votes to confirm judicial nominees. After much debate and compromise, the Framers concluded that the President should have power to appoint and the Senate should confirm or reject nominees by a simple majority vote. For 214 years Republican and Democratic minorities alike restrained themselves, they used restraint, they abided by the Framers' design and Senate tradition and gave nominees brought to this floor simple majority up-or-down votes. This was the practice. Then came the last Congress. With its obstruction the minority set a new precedent--60 votes before the Senate could proceed to an up-or- down vote on a judicial nominee. For 214 years the threshold for advice and consent in the Senate was 50 votes, a majority. In the last Congress----

Mr. FRIST. Mr. President, as always, we will take into consideration all suggestions and be happy to talk to the leadership on both sides of the aisle as to whether that suggestion is the most appropriate way. We have engaged in negotiations and attempts to satisfy both sides over the last 4 months, 5 months, since these unprecedented filibusters came before this body. After 214 years of a threshold of 50 votes, all of a sudden, in the last Congress, it was radically changed by the other side to become 60 votes, denying the sort of people--a little bit akin to what we just heard over the last few minutes, where I am trying to move to a qualified nominee, Priscilla Owen, and we hear these attempts to delay, even right now, and to sidetrack and consider somebody else. That is the challenge. That is why we are on the floor of the Senate, with the light of day, with the American people watching at this point, to take it to the body of the Senate and ask that fundamental question: Is Priscilla Owen out of the mainstream? Eighty-four percent of Texans think she is in the mainstream. Are 84 percent of Texans out of the mainstream? If the answer to that question is, no, they are not out of the mainstream, then all we want is a vote, an up-or-down vote--accept, reject; confirm, yes, no. That is all we are asking for. We do not want the constitutional option. We did not ask for the constitutional option. What has happened is because of the other side of the aisle, in shattering the Senate tradition for 214 years, where the filibuster was never even contemplated, now it is being used on a routine basis. One out of every four of the President's nominees who have come over for the circuit courts are filibustered, blocked, not given that courtesy of a vote, when that is our responsibility, to give advice and consent. So in response to my good friend, the Democratic leader, yes, as proposals come forward, we will consider all. Both leaders spent 50 minutes or so, as the papers reported, today talking with people who are trying to come to some reasonable conclusion. We will continue to do that. So I would be happy to consider another idea. I think what is important now, though, is to come to the floor of the Senate. Let's shed light on this. Let's do take this. Yes, it is an inside-the-Senate decision, and we make our own traditions and rules, but it is important for the American people to see is Priscilla Owen, is Janice Rogers Brown deserving of a vote, yes or no, on the floor of the Senate. So I would recommend we continue discussions and let's proceed with this nominee, continue the debate over the course of the day, or it may be 2 days, and answer this question: Is she qualified? Does she deserve an up-or-down vote?

Mr. FRIST

Mr. FRIST. I ask unanimous consent the Senate now proceed to consideration of S. Res. 148 submitted earlier today.

Mr. FRIST. I ask unanimous consent the resolution be agreed to, the preamble be agreed to, the motion to reconsider be laid upon the table, and any statements be printed in the Record.

Mr. FRIST

Mr. FRIST. I ask unanimous consent the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table.

Mr. FRIST

Mr. FRIST. I ask unanimous consent the Senate proceed to the immediate consideration of S. Res. 146, submitted earlier today.

Mr. FRIST. I ask unanimous consent that the resolution and preamble be agreed to en bloc, the motion to reconsider be laid on the table, and any statements be printed in the Record without intervening action or debate.

Mr. FRIST

Mr. FRIST. I ask unanimous consent that H.R. 3, as passed by the Senate, be printed as passed.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m. on Thursday, May 19. I further ask consent that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved, and that the Senate then return to executive session and resume consideration of the nomination of Priscilla Owen to the Fifth Circuit Court of Appeals; provided further that the time from 10 a.m. to 10:45 be under the control of the majority leader or his designee, and the time from 10:45 to 11:45 be under the control of the Democratic leader or his designee; provided further that from 11:45 to 1:45 be under majority control, and from 1:45 to 3:45 be under Democrat control. I further ask consent that the times then rotate every 60 minutes in a similar fashion; provided further that 6:45 to 8:15 be under the control of the Democratic leader or his designee, and that 8:15 to 8:45 be under the control of the majority leader or his designee.

Mr. FRIST

Mr. FRIST. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.