Bill Frist

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.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:45 a.m. on Wednesday, December 14. I further ask 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 the Senate then proceed to a period of morning business for up to 30 minutes, with the first 15 minutes under the control of the majority leader or his designee and the final 15 minutes under the control of the Democratic leader or his designee; further, that the Senate then proceed to the consideration of motions to instruct conferees with respect to the deficit reduction bill as under the previous order.

Mr. FRIST

Mr. FRIST. Mr. President, I will not reclaim the floor. But what happened to those judges? Not with my principle as an up-or-down vote, but I ask my distinguished colleague what happened. Ultimately, they got an up-or-down vote on the floor of the Senate. That is all this discussion is about.

Mr. FRIST. The Senator cited Paez. He got an up-or-down vote on the floor of the Senate. All I am arguing for is an up-or-down vote. It is simple. Vote for or against them, and they win or they lose, and you start over or not.

Mr. FRIST. Yes.

Mr. FRIST. And my response would simply be that the Constitution says advice and consent.

Mr. FRIST. And I think advice and consent for somebody who has gone through the nomination process, the recommendations, through the Judiciary Committee, hearings, recommended to this floor, I would argue, not written in the Constitution, but under advice and consent, you can't vote with your hands in your pocket. You can't say yes or no.

Mr. FRIST. I would argue that the dignity of this institution has worked for 214 years. So why deny it? Especially why deny it with a qualified nominee like Alito.

Mr. FRIST. I would be happy to.

Mr. FRIST. I am happy to yield.

Mr. FRIST. Let me yield to my distinguished colleague, and then I will be happy to yield to the Senator from West Virginia.

Mr. FRIST. Yes.

Mr. FRIST. Mr. President, that is my understanding. This is exactly where we were about a year ago, after this long period of 214--or 218 years, as my colleague from West Virginia was saying on the side. When we are talking about filibustering--this is important to say for the people watching, not so much for colleagues--it is a very important tool for this body to use, for the minority to use, and it has been used really all the time for legislative issues. As we design legislation, which can be shaped, manipulated, defeated, and approved, these nominees who come from the executive branch, the President, are different. Ultimately, you cannot cut a person in half. You can operate on them, but you cannot cut them in half. You cannot move them aside. Ultimately, the only way to give that advice and consent--and the way it has been done for those 218 years--is that once they come to the floor, having gone through committee, they get the courtesy, the dignity, consistent with the principles of this body, of an up-or-down vote.

Mr. FRIST. And then it changed about 3 years ago, where for all of this period of time, it didn't occur; that is, a nominee who had majority support being denied a vote on the floor of the Senate. Then it happened 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 times, all in a period of about 18 months. Then progress was made. We kind of put that all back in its cage. It still can be brought out. That is where some of these threatening issues are coming from. We don't think it should be brought out. Let's give the nominee an up-or-down vote after we have had plenty of time to debate and talk about and discuss that process. That is my understanding of the history. I know we will get a different version here shortly, but that is the lay of the land in the past and where we are today. I want to keep coming back to the Alito nomination. That is ultimately where the decision will be made. I yield the floor.

Mr. FRIST. Good. Good.

Mr. FRIST. Mr. President, I thank my distinguished colleague from West Virginia. Citing headlines, I guess to score political points, is useful. But I think the headlines you cite, without citing the headlines I cited--I had eight or nine that basically say Democrats are threatening filibuster, at least to our colleagues or to the American people. I think we have clarified that, where Democrats--and I named six Senators on your side of the aisle who are talking about filibuster. So we cleared that up. I appreciate my distinguished colleague saying that while I was on the floor so we can clear that up, the other side of the aisle having used filibusters in the past, having in an unprecedented way or at least talking about the filibuster out there. I also appreciate, secondly, the respect my distinguished colleague from West Virginia has on freedom of speech, which I share. You can start with the Alito nomination, which is the real thrust, the real crux of what we are talking about, this outstanding individual, and you could move to talking about the filibuster, which I certainly didn't start talking about but Democrats started talking about. Then you could move to what my response would likely be, and that is saying filibusters--I thought we had been through that. We said unless it is an extraordinary circumstance, filibusters are off the table. Yet you still hear about it. Then you move to, Well, if they do filibuster, Senator Frist, what are you likely to do? Then you can move off to freedom of speech. I think that was a useful discussion and conversation, but let's come back to what we are talking about. We ended pretty much saying that my distinguished colleague from West Virginia doesn't expect a filibuster, that he is not going to participate in a filibuster. I don't expect a filibuster. With the hearings starting on the 9th, with time on the floor, full hearings--and we have waited until after the Christmas holidays so people can actually be studying papers and all the 3,000 cases and 300 opinions--we are giving plenty of time for the process to work. So we don't expect a filibuster. I think we can hypothetically go across all of these potential happenings and occurrences. But all that does come back to the fact, and it centers on the Alito nomination, there is no reason for a filibuster, I don't believe. I believe my Democratic colleague doesn't believe that. Clearly, there is no reason at this juncture. A lot of the attacks, which are coming from the political left and the extreme left, are part of sort of a spaghetti strategy of throwing spaghetti against the wall and hoping something will stick and maybe that will precipitate votes against Alito for that reason. I don't think they are going to stick. A lot of the criticism we are hearing about Judge Alito today, or the critiques, you really just didn't hear over his 15 years on the bench or in these 3,500 cases. I think all of the attacks we hear on Alito himself are simply not working. The nomination is right on track. The leadership worked together with the Judiciary Committee in terms of setting a time line that we are right on track to fulfill. A lot of people are trying to say Alito is extreme, and those attacks simply are not sticking because he is not extreme. He is not an ideologue. He did not prejudge cases that came before him. As I was reading this weekend, I came across one of Alito's former law clerks who said this week--and he happens to be a registered Democrat; he still has the ``Kerry For President'' bumper sticker on the back of his car--he said: Until I read his 1985 Reagan job application, I could not tell you what his politics were. When we worked on cases, we reached the same result about 95 percent of the time. It was my experience that Judge Alito was and is capable of setting aside any personal biases he may have when he judges.

Mr. FRIST. The final words: He is the consummate professional. I think all these attacks that are going on, since that really is the issue at hand, we need to put aside all of these partisan attacks, all of these unfair attacks by either extremist groups or Senators, and let's look at his qualifications. Let's go through the hearing process. Let's come to the floor, let's have an orderly debate, and then let's, at the end of all of that, not deny people, not deny our colleagues, the opportunity, the right to be able to vote yes or no after we go through that process.

Mr. FRIST. I am happy to yield.

Mr. FRIST. I am happy to.

Mr. FRIST. Thank you, Mr. President. Let me take a look at the article. I haven't read the Washington Post today. But I appreciate my good friend and colleague bringing this to my attention. The Senator is right. It says, ``Frist cautions Senators against stalling Alito vote.'' It is pretty accurate. And I guess the Senator's followup statement is that no Democrat is talking about filibuster, and here you have the majority leader of this body saying if there is a filibuster he is going to ask for an up-or-down vote consistent with giving advice and consent. There are lots of ways of giving advice and consent. But I know the distinguished colleague from West Virginia has been focused on lots of things going on. But let me better inform him about what the other headlines have been saying about what Democrats are thinking and doing--the allegation that no Democrats are thinking about filibuster, citing headlines. It is a pretty accurate article, actually, as I glance through it. Associated Press, November 1, 2005. These are just some other headlines that are out there. Republicans Enthusiastic About Alito While Democrats Are Wondering Whether To Filibuster. That is November 1. Headline in the Bergen County, New Jersey Record: ``Democrats Mull Possible Filibuster,'' November 21. Boston Globe, November 4, 2005: ``Democrats Won't Rule Out Filibuster.'' The Hill, which we all see several times a week, November 1: ``Dems Hint At Filibuster.'' The Washington Times, November 3: ``Senators to Weigh `Circumstances' for a Filibuster.'' And the International Herald Tribune, other headlines: ``Democrats Don't Rule Out Filibuster To Block Nominee.'' Those are some of the other headlines that at least cause the leader on this side of the aisle to say--not just this majority leader, not just Chris Wallace. He asked the question, if a filibuster is conducted, you can see all around the country--whether it is up in New Jersey, in Boston, MA, or right here on the Hill--there must be some Democrats thinking, at least thinking, contemplating, how we can use a tool we use. I would argue, and I know there is a difference of opinion, unfairly, against not just one nominee or two or three but four, five, six, seven, eight, nine, 10 times in the last 3 years Presidential nominees who had gone through committee, come to the Senate, filibustered again and again and again--used as a regular tool. That is wrong. Therefore, I believe in the principle of an up-or-down vote. If someone is nominated by the President and has the highest qualifications according to the American Bar Association, with advice and consent under the Constitution, they have gone through the committee, come from the committee and were recommended to this Senate, I believe in that principle of an up-or-down vote. Those are the various headlines. The response would be, but those are the headlines and headlines are like these headlines in here, some headline writer writes it. Clearly, Democrats are thinking about it. What about individuals? Senator Reid himself said Democrats would consider all filibusters and a filibuster to Alito is possible. From November 1, the Boston Globe: Senate Minority Leader Harry Reid pledged that Democrats will consider all options at their disposal if they decide to stop Alito's nomination. Though Reid said Democrats will wait for confirmation hearings before choosing their strategy, he noted that Bush is `near the bottom of his popularity' in opinion polls and that a filibuster to defeat Alito is possible. The Democrat leader, talking about a filibuster being possible, so an accusation that this leader is the one initiating discussion about filibuster is wrong. I continue with Reid spokesman Jim Manley on Alito: All procedural options are on the table. Our colleague, Charles Schumer, from New York: Nothing is on the table, and nothing is off the table. Senator Barbara Boxer from California: The filibuster's on the table. These are all quotations, from Republicans enthusiastic about Alito and Democrats wonder whether to filibuster. The Associated Press, November 1, Senator Boxer: The filibuster's on the table. Senator Tom Harkin not only believes there will be a filibuster but relishes the prospect--that is not a quotation; this is sort of a point taken from the quotation from an article in the Baltimore Sun November 2. Senator Tom Harkin, Iowa, Democrat said: I believe Democrats will filibuster this nominee on the basis that he's way too ideologically to the right. We need a moderate on the court, not an avowed rightwinger like him that would upset the balance. These are from your side of the aisle. I know my distinguished colleague is not aware of these, but that comes to me. Senator Dick Durbin to CBC's Jan Crawford Greenberg: Are you refusing to rule that filibuster out now? Do you think that's still likely or is it just highly unlikely? Senator Durbin responds: Let's complete the hearing in January, then make a decision whether we should go forward with the nomination of Judge Alito. That was November 6. Senator Biden on November 17, from the Congress Daily AM: As Democrats stepped up questioning of Samuel Alito's Supreme Court nomination, Sen. Joseph Biden, D-Del., warned the nominee Wednesday he might need Biden's vote on a potential filibuster if the judge is not forthright during hearings . . . I told him you probably don't need my vote to get on the bench, Biden continues, but if you are disingenuous in the hearings, you may need my vote relating to a filibuster. Senator Russ Feingold--again, to show it is not just one or two or three or four, said it was perfectly fine to use a filibuster. Those are Senator Feingold's words on ABC's This Week. I think it's perfectly fine to use a filibuster if somebody is clearly unacceptable. That is an option we have. It has almost never been used with regard to a Supreme Court justice, so it takes an extreme case, but I was the one Democrat who was unhappy publicly with the sort of deal that was made earlier in the year that kind of let certain judges go through that shouldn't have gone through. The right to filibuster is part of our role in the Senate, and we should reserve the right but use it only very sparingly. After meeting with Judge Alito, Senator Tim Johnson basically refused to rule out supporting a filibuster. I will leave all those options on the table. That is a sampling of what I hear directly from the Senate. As my distinguished colleague from West Virginia knows, all these outside groups complicate matters on both sides. We have the sort of party activist and liberal interest groups. We have the DNC Chairman Howard Dean saying the following, from Reuters, November 13: Despite early signals to the contrary, U.S. Senate Democrats must keep open the option of blocking a confirmation vote on U.S. Supreme Court nominee Samuel Alito, Democratic Party leader Howard Dean said on Sunday . . . Dean, asked if Democrats should keep the possibility of a filibuster on the table, said, `Absolutely. Of course we should.' My response in large part is there is a lot of talk about filibuster out there. If the filibuster is going to be threatened by Democrats on a man such as Judge Alito who does have that modest temperament, who has been confirmed by this body two times, who has been involved with 2,500 cases before, has written 200 opinions, who my distinguished colleagues have had the chance to meet with, I have had the chance to meet with, has the sort of temperament where he will not be legislating from the bench, he deserves a vote in the Senate. Vote him up, vote him down, if that is the way Members feel, but he deserves a vote in the Senate. I don't think it will come to a filibuster. I don't want it to come to a filibuster. I haven't even brought the filibuster up except in response to a question on television on one of the Sunday shows, but I did make it clear at the Republican conference that I strongly believe a man of the quality of Sam Alito simply deserves the respect, the dignity of having a vote in this Senate. Everyone can vote the way they want to. Again, it will be overwhelming by the time we finish this process. That will be, I believe, before January 20, at some point. I don't want to posture on this. This is not a Democratic or Republican issue. This is an American issue. It is an issue that reflects on this Senate because it is our unique responsibility. I am absolutely confident in large part because of the challenges we have gone through for the last 2\1/2\ years in talking about filibuster and having it not used very rarely. We are not talking about filibustering legislation where you can come in and modify and go to conference and have all these procedural tools. We are talking about the dignity of giving up-or-down votes in the Senate. It has been tough. As the distinguished former majority leader knows, it has been very tough the last 3 years working through this process, where for 214 years, for judicial nominees coming from the executive branch, coming from the President of the United States, coming here is the tool of a filibuster being used routinely, 10 times--10 times--in the last 3 years, where for the 214 years before that, rare, rare, rare, rare. So I feel we are back on course today. I do not think we will see a filibuster. I do not think people really want a filibuster. I think there is a lot of posturing there. But I will do everything I possibly can. If your side chooses, if the Democrat side chooses to filibuster, chooses to obstruct, chooses to stop this Nation's business, I will use all the tools. If they pull that sheath out, if the other side pulls that sheath out, I will use all the tools I have to simply get an up-or-down vote on the floor of the Senate for the President's judicial nominees.

Mr. FRIST. Yes.

Mr. FRIST. Mr. President, if the distinguished Senator from West Virginia would let me answer, I would be happy to.

Mr. FRIST. It is not in the Constitution that a Senator specifically has the right for an up-or-down vote. I am saying the dignity of the institution to give advice and consent deserves an up-or-down vote on the floor of the Senate. What the Constitution does say--which is why it is called the constitutional option, not because it is written in the Constitution--is that this body makes its own rules. The constitutional option is basically just that. You take it to this body and you say: Do these Senators deserve an up-or-down vote on the floor of the U.S. Senate? Let's vote on that.

Mr. FRIST. That is what the constitutional option is.

Mr. FRIST

Mr. FRIST. Mr. President, today we are returning to session in order to conclude our work for the first session of the 109th Congress. I want to welcome everybody back after a couple of weeks where people have been with constituents and people have been working very hard to bring to conclusion many of the issues that were left unfinished a couple of weeks ago. Real progress has been made over the course of the last 2 weeks. Over the course of this past weekend, a lot of work has been done. As I mentioned prior to Thanksgiving, we will be working today and tomorrow on a number of issues. However, the first rollcall vote will be on Wednesday morning. Many of our colleagues have asked about the schedule for this week, this weekend, as well as next week. As things unfold and as my discussions with the Democratic leader continue, we will be forthcoming to let people know exactly what we expect. We would like to finish up our work as quickly as possible prior to the Christmas holiday. However, everyone does need to be prepared to stay as long as necessary to finish the work that is before us. Today, we expect to reach an agreement on several motions to instruct the conferees on the deficit reduction bill that is at the desk. We would have those motions debated tomorrow, on Tuesday, and on Wednesday, with votes to occur or begin to occur Wednesday morning. We also expect to debate the Bahrain Free Trade Agreement during tomorrow's session under a short time agreement. The PATRIOT Act conference report will arrive in the Senate sometime this week, and we will proceed to that conference report when it is available. Chairman Warner has completed work on the Defense authorization conference report, and that may also be around here midweek. We also need to complete the appropriations process by taking up and taking action on the final 2 conference reports. This week we need to act on the Labor-HHS appropriations as well as the Defense Appropriations Committee reports. I mentioned reconciliation. A lot of work has been done over the course of the last several weeks among the various committees. I want to continue to encourage all chairmen to aggressively work with their House counterparts on this important reconciliation bill. Clearly, a lot of work remains, but with the cooperation and patience of all Members, I believe we can get our work done and adjourn in a timely way. It is going to be up to each and every one of us to decide when we will be able to finish our business and adjourn this session. Senators will need to keep their schedules flexible over the course of this week and I believe we can finish everything this week. If not, we would have to continue into next week--or this week and this weekend, and if not, we would have to continue into the early part of next week, but we should be able to complete everything this week. Again, everybody, please keep your schedules flexible. I do want to thank all Senators in advance for their help as we schedule these final days. I yield the floor.