Bill Frist

Mr. FRIST

Mr. FRIST. Mr. President, for the information of colleagues, we will have no more rollcall votes tonight. For my colleagues' planning purposes, we will come in tomorrow morning at 9:30 and have two cloture votes beginning at 10:30 tomorrow morning. Tonight, we will continue with the debate for which we will get unanimous consent in a moment. I encourage our colleagues to participate and to stay for this debate for which we will propound a unanimous consent request at this juncture. Again, we will have no more rollcall votes tonight. We will have two cloture votes at 10:30 tomorrow morning.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that the committee- reported substitute be agreed to; the bill, as amended, be read a third time and passed; the HELP Committee be discharged from further consideration of H.R. 1261; that the Senate proceed to its immediate consideration; provided that all after the enacting clause be stricken; the text of S. 1627, as amended, be inserted in lieu thereof; that the bill, as amended, be read a third time and passed, and the motion to reconsider be laid upon the table en bloc; that any statements relating to the bill be printed in the Record. I further ask unanimous consent that S. 1627 be returned to the calendar.

Mr. FRIST. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 366, S. 1627.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of Calendar No. 455, the nomination of Janice R. Brown, of California, to be a United States Circuit Judge for the District of Columbia Circuit.

Mr. FRIST. I send a cloture motion to the desk.

Mr. FRIST

Mr. FRIST. Mr. President, parliamentary inquiry: In terms of the time we used on our side, how much time, in terms of my initial speech, was used by this side?

Mr. FRIST. Mr. President, I now ask unanimous consent that the three live quorums required under rule XXII be waived en bloc.

Mr. FRIST. With that answer, Mr. President, I send a cloture motion to the desk.

Mr. FRIST

Mr. FRIST. Mr. President, in response, we plan on voting Friday morning at a reasonable hour to be defined. That means sometime after 8:30 Friday morning. I will be more specific.

Mr. FRIST. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of Calendar No. 169, the nomination of Carolyn B. Kuhl, to be a United States Circuit Judge for the Ninth Circuit.

Mr. FRIST. Given the objection, I send a cloture motion to the desk.

Mr. FRIST

Mr. FRIST. Responding, once again through the Chair, I will not be making that request tonight. Tonight we are going to stay on the judicial nominees. But I would like to discuss with you and the managers of the bill, and the Presiding Officer, the chairman of the Appropriations Committee, how we can best resolve that as quickly as we possibly can.

Mr. FRIST. Yes, sir.

Mr. FRIST. Thank you, sir.

Mr. FRIST. Yes, sir.

Mr. FRIST. Mr. President, through the Chair, I have had the wonderful opportunity of working in veterans hospitals myself for the last--until I got to this body--for 15 years, every day operating, giving care to veterans in medicine. So I appreciate veterans hospitals. I worked in veterans hospitals. I have probably spent more time than anybody in this Chamber in veterans hospitals--from early in the morning through many nights, just as we are going tonight. I care about hospitals. We are going to address them. What I would ask, in response, is if the Senator from West Virginia would agree to a 2-hour unanimous consent to finish this bill, VA-HUD, on Friday--on Friday--so we can answer your question. If we can do that, we will be able to do exactly what you want to accomplish, to finish that bill, and it allows me to keep a commitment to a packed Chamber right now where we can debate the issues that people are here to debate. And then, within 48 hours, we have accomplished my objective and your objective. Two hours, we will do it Friday, as soon as we finish the cloture votes?

Mr. FRIST. But for the length of my speech, it would be fine to apply that time to the first hour since we will be splitting the hours.

Mr. FRIST. That is fine, my 22 minutes apply, or whatever the time was I was actually speaking, to our first-hour agreement. I still have some unanimous consent requests.

Mr. FRIST. I do. And then we are going to subtract the time from the questions.

Mr. FRIST. Mr. President, responding, through the Chair, there is nobody on the floor of the Senate now--and I do appreciate this many people being here to debate the issue of our judicial nominations and the process, the process that the distinguished Senator from West Virginia probably understands better than anybody; that is cloture and the history of cloture--nobody understands better the challenges to me as majority leader than the distinguished Senator from West Virginia on the scheduling of this body. I know there are people questioning why we are working tonight, and even through the night. We tried to spend a full day this Monday on the floor of the Senate, which was not a Federal holiday--never has been a Federal holiday--but when I made it clear we were here to do appropriations, a specific appropriations bill, and then, yes, on Veterans Day had us here--and I know the distinguished Senator had wished we were not here on that day, but being here on Veterans Day, and talking about the Department of Defense authorization and military construction and preparing for the bill that we addressed today, we made it very clear we would be using this time from 6 o'clock tonight, a long time ago, weeks ago, to your side and my side--not weeks ago, probably last week--after we try to finish up our business. I put a huge priority on appropriations, a huge priority. We are going to kill ourselves to finish all these bills. I pledge to you by the end of next week is my goal to fully address all of the appropriations bills because I respect the process, and I have tried to bring every bill out. And as of today, we have brought every single bill to the floor. And for various reasons--not pointing fingers too much to either side--we have not been able to finish several of them. Thus, I am going to respectfully say that no, I am going to stick with the schedule because we have people here to talk about an issue that many believe equally important, some more important; that is, our responsibility to handle these judicial nominations responsibly, respectfully, and that is what people are here to debate. Then I would be happy to discuss how we complete this appropriations process with you and with the distinguished Presiding Officer because I am going to need your help to finish these in an orderly way. But for now, I think we need to progress with addressing another important issue that is the schedule I set out. I would ask your consideration for setting that schedule out and that we can figure out how to do these appropriations bills.

Mr. FRIST. Mr. President, once I run through these unanimous consent requests, I will yield the floor. Unanimous Consent Agreement--Executive Calendar Mr. President, I now ask unanimous consent that the Senate proceed to executive session for the consideration of Calendar No. 86, the nomination of Priscilla Richman Owen to be a United States Circuit Judge for the Fifth Circuit.

Mr. FRIST. Mr. President, a nomination filibuster by a minority whenever it may coalesce is different from legislative filibusters. On legislation, there is a potential safety valve that a troubled measure may be offered elsewhere as a nongermane amendment or somehow be addressed by the House or in conference. No such possibility exists on a nomination. There is no safety valve on a nomination. Filibustering nominations is obstruction in its most potent and virulent form. Even if a majority of Senators stand ready to confirm, nomination filibusters are fatal. Frist-Miller is a narrow remedy that addresses a real problem. It permits substantial debate but allows the full Senate to work its will. The Senate must halt the emerging and unwelcome practice of obstructing nominations. No change in the rules is needed if those who have filibustered will relent and permit the nominations to have a vote. If they do not, then amending the rules is imperative. We have sought consent for a time certain to vote on each of the nominees. Met with objection, we filed for cloture. Without either consent or cloture, the obstruction will continue and incessant demands for reform will grow louder. These demands will include the exercise of the Senate's constitutional rulemaking power to amend rules or precedents to end filibusters on nominees. Various proposals go far beyond the Frist-Miller filibuster reform. I would not support these efforts now but I reserve the right to support them later. During these recent days, the majority has come under vocal criticism from our colleagues on the other side for scheduling this executive session tonight and these cloture votes. The debate is a waste of time, they contend, because the Senate has many urgent matters to address, and we are short on time to address them. Indeed, our agenda is crowded. But the question of how this Senate discharges its constitutional responsibility on nominations is among the most important issues we can discuss. It affects how we relate to two coordinate branches of government. It concerns whether Senate traditions will be upheld or discarded. It involves the meaning and future of the confirmation process. Such deliberations are plainly worth the Senate's time and the close attention of the American people. In closing, by unanimous consent, time during these 30 hours has been equally divided between the two parties. This will allow for balanced arguments, good debate, a chance to focus on these issues without distraction. We have entered this consent agreement in good faith to foster a serious dialog on a serious subject. This means sticking to the subject and not undermining or trivializing this session by wasting time through meaningless quorum calls and other obstructionist tactics. The debate we launch tonight is fundamental to restoring fairness to our confirmation process and reaffirming two centuries of Senate tradition. The majority is here, prepared to do business. We want to meet our constitutional responsibility to advise and consent. Whenever the opposition ceases to obstruct, we are ready to vote. What we ask for is to be able to vote, up or down. Just give us a vote.

Mr. FRIST. Many proposals surfaced to change the cloture rule. Major amendments were adopted. In all those debates, not a word was mentioned about nominations. Why should the debate have focused there? Nominations were not filibustered. What is happening now breaks sharply with Senate tradition in ways that are corrosive for this institution. To restore those traditions, I have proposed filibuster reform. Along with Senators Zell Miller and nine additional cosponsors, I introduced S. Res. 138 in May. Our proposal was heard, reported by the Rules Committee in June, and now awaits Senate action. The Frist-Miller proposal will alter the way the Senate concludes debate on nominations. By progressively declining cloture requirements of 60 votes, then 57 votes, then 54 votes, then 51, and finally, with a simple majority of Senators present and voting, we can end the practice of filibustering nominations if the Senate has the will to do so. Every effort to reform the cloture rule, whether successful or not, has been debated in its entirety. Frist-Miller is different. It reforms the cloture process only for nominations and leaves cloture for the remainder of Senate debate alone. We fix only what is broken.

Mr. FRIST. Mr. President, tonight we embark upon an extraordinary session for the next 30 hours. Republicans and Democrats will debate the merits of three judicial nominees. We will be considering the meaning of our constitutional responsibility to advise and consent on nominations. We will discuss whether there is a need to enact filibuster reform so that nominations taken to the floor can get a vote. At the end of this time, the Senate will either vote on the nominees or we will try to break the minority's filibusters through cloture votes. Our goal is very simple: It is an up-or-down vote on these nominees. People can vote them up or they can vote them down. Just give us a vote. We hold this extraordinary session for truly extraordinary reasons. In the history of this Senate, through 107 Congresses, the filibuster was never used to block confirmation of judicial nominees enjoying majority support. When the Senate has refused to confirm a nominee brought to the floor, it has done so on an up-or-down vote. Permitting a vote was fair to the nominees and fair to the President who sent them to us. In theory, the filibuster has always been available as a tool to derail a nomination, but until this Congress it has not been successfully used. On rare occasions, confirmation filibusters were attempted, but the Senate always thwarted them. Up until now, no judicial nominee has ever failed on a filibuster. For the past 200 years, no judicial nominee has ever failed on a filibuster. This year, in this Congress, those norms have been shattered. A partisan filibuster destroyed the nomination of Miguel Estrada, an immigrant from Honduras. Mr. Estrada is a superb lawyer, a great American success story. He served with distinction in both the Clinton administration and the Bush administration. The American Bar Association gave him its highest rating. Senate confirmation by an ample majority was assured. But a filibuster blocked action and the Senate was denied the opportunity for an up-or-down vote. The remedy for the filibuster is a cloture vote. Before filing a cloture motion on the Estrada nomination, we waited several weeks. During that time, the nomination was debated on the floor for many hours. On more than 20 occasions we asked unanimous consent for a time certain to vote. Every time we did, the minority objected. They obstructed a simple up-or-down vote. From their standpoint, Mr. Estrada would never get a vote, not in a week, not in a month, not in a month or two, and not even for the whole Congress. When it became clear that consent was impossible and the filibuster would not voluntarily end, cloture was the only resource left. Until this Congress, the record number of cloture votes on a single judicial nomination was two. On the few occasions a filibuster had gotten that far, bipartisan majorities in both invoked cloture, shut it down, and immediately thereafter those nominees were confirmed. Not so for Miguel Estrada. Seven times--not two, seven times--we initiated cloture; seven times cloture failed. Each time more than a majority in this body voted to end the filibuster but never did we get 60 votes. The minority obstruction did prevail, but Mr. Estrada would never get an up-or-down vote. This body never gave Miguel Estrada an up-or-down vote. Finally, Mr. Estrada asked the President to withdraw his nomination. Who could blame him? He left the field with dignity. Meanwhile, the Federal courts--indeed, I would argue, therefore, the American people-- were denied the service of a brilliant intellect, and the Senate's confirmation process was tarnished with unfairness. Sad to say, Miguel Estrada was not an isolated case. Filibusters have also been mounted against Priscilla Owen, William Pryor, and Charles Pickering. In each of these instances, a majority of the Senate will confirm, a majority will confirm, but we cannot get 60 votes for cloture to allow the vote. Under Senate rules, the Presiding Officer cannot put the question to a vote if any Senator holds the floor or seeks to speak. If debate does not end, we cannot vote. To conclude debate, we must secure cloture, but cloture requires 60 votes. If a minority determines to obstruct, they never permit the Chair to put the question, and they withhold the votes for cloture to stop the filibuster. On Miguel Estrada, on Priscilla Owen, on William Pryor, and on Charles Pickering, the full Senate has been denied the right to vote on confirmation. And no amount of debate and no amount of time is sufficient so the opponents' obstruction thus far has prevailed. This week, I fear yet two more nominees may fall victim to the filibuster. Carolyn Kuhl and Janice Rogers Brown are able and talented candidates for the Federal bench. Either could be confirmed if they were ever given a vote. Will Senators be able to take those votes or will disciplined obstruction prevail yet again? I would like to be proven wrong, but I am not optimistic. We will hear in this debate over the next several hours that the Senate has confirmed over 168 Bush nominees, and only 4 have thus far been blocked. Some Senators will argue these numbers demonstrate fairness to the nominees overall and to the President. We hear again and again the Senate is not a rubber stamp. I am unimpressed with that argument. It uses a scorecard of a sort to mask the real issues. Can Senators vote up or down on a nominee? Or will obstruction by filibuster deny them that right to vote? Will Senators be held accountable for their vote? Will all nominees brought to the floor be treated fairly and get a vote? Will we be denied our right to give advice and consent? If Senators wish to oppose a nominee, that is their right. They may vote against him or her if they wish. If they can command a majority, the nominee simply will not be confirmed. That is how things should be. But that simple logic seems no longer to apply. Because of the filibuster, the majority is allowed to vote only if the minority consents. Filibustering judicial nominations breaks dangerous new ground. It is unprecedented. These filibusters are not business as usual. Obstructionists have eroded two centuries of Senate tradition. Those who obstruct have changed the ground rules by which the Senate votes on confirmations. Some contend the minority has no choice. These left-wing activists and special interests claim the minority must use every available tool to oppose even if it changes forever how the Senate does business. Only then, they say, can the separation of powers be vindicated. But let's look to history because history shows us a very different and a better path. For 70 percent of the 20th century the same party controlled the White House and the Senate. Franklin Roosevelt sent liberal nominees to a Senate dominated by Democrats. So did John Kennedy, Lyndon Johnson, and Jimmy Carter. Ronald Reagan sent conservative nominees to a Senate controlled by Republicans. The Senate confirmed most of those nominees and rejected some others. But nominations brought to the floor got a vote and never died due to a filibuster. All during those times the Senate had vigorous debate, effective debate. They had vigorous and effective minorities who sometimes filibustered legislation but never filibustered judges. Was Senator Dirksen's minority derelict in some way in not using the filibuster against Kennedy's and Johnson's nominees? What about the minority that served with Senator Baker but did not filibuster Carter judges, the minority that served with Senator Byrd but did not filibuster Reagan judges, or the minority that served with Senator Dole but did not obstruct Clinton judges? Because they did not filibuster judges, did those minorities abdicate their confirmation responsibilities? I think not. But now a different tradition has been launched. It is the obstruction of judges by a minority. This obstruction sets a novel threshold for confirmation: Nominees who are singled out because they fail someone's ideological test or because they showed general promise must have 60 votes to break a filibuster. The Constitution says that a simple majority is enough to confirm, but somehow that majority is no longer sufficient. Confronted with a filibuster and disciplined obstruction, the majority cannot vote at all. They are being denied a simple up-or-down vote on those nominees. Under the Constitution, the Senate has a confirmation veto; a majority can vote a nominee down but obstruction by filibuster is veto by a minority. Never did the framers envision that anti-democratic outcome. The American people are going to learn a lot about cloture over the next 30 hours. Cloture has applied to nominations since 1949 when the rule was expanded to address every debatable question except for motions to proceed to rules changes. The inclusion of cloture was merely incidental to a broader reform. In 1949, the change was controversial. It was well debated but not a word in all of that debate in 1949 was about nominations. The omission is not surprising because nominations simply were not filibustered then. For three decades thereafter many proposals surfaced to change the cloture rule, and in 1959, 1975, and 1979 major amendments were, in fact, adopted. In all those debates not a word was said about nominations.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 36, S. 1824.