Excerpts: The Senate Filibuster Debate

In tthe course of the opening Senate debate concerning the nomination of Priscilla Richman Owen to be U.S. Circuit Judge for the Fifth District senators frequently invoked history. Excerpts follow.

Bill Frist, Senate Majority Leader (R-TN)

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. ...

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.

Harry Reid, Minority Leader (D-NV)

Mr. President, the majority leader said that during the Dole years, Clinton nominees were treated fairly. Sixty-nine Clinton nominees were not even given the decency of a hearing. They never saw the light of day. We have participated in hearings. The matters have come to the floor. For my friend to say that Clinton was treated fairly under the Dole years is simply untrue....

The first filibuster in the Congress happened in 1790. It was used by lawmakers from Virginia and South Carolina who were trying to prevent Philadelphia from hosting the first Congress. Since then, the filibuster has been employed hundreds and hundreds and hundreds of times. It has been employed on legislative matters. It has been employed on procedural matters relating to the President's nominations for Cabinet and sub-Cabinet posts. And it has been used on judges for all those years. One scholar estimates that 20 percent of the judges nominated by Presidents have fallen by the wayside, most of them as a result of filibusters....

A conversation between Thomas Jefferson and George Washington I believe describes the Senate and our Founding Fathers' vision of this body in which we are so fortunate to serve. Jefferson asked Washington: "What is the purpose of the Senate?" Washington responded with a question of his own: "Why did you pour that coffee into your saucer?" Jefferson replied: "To cool it." To which Washington said: "Even so, we pour legislation into the senatorial saucer to cool it."

That is exactly what the filibuster does. It encourages moderation and consensus, gives voice to the minority so cooler heads may prevail. ...

I spoke yesterday about Senator Holt and his 1939 filibuster to protect workers' wages and hours. There are also recent examples of the filibuster achieving good. In 1985, Senators from rural States--even though there were few of them--used the filibuster to force Congress to address a major crisis in which thousands of farmers were on the brink of bankruptcy. In 1995, 10 years later, the filibuster was used by Senators to protect the rights of workers to a fair wage and a safe workplace.

I cannot stand here and say the filibuster has always been used for positive purposes. It has not. Just as it has been used to bring about social change, it was also used to stall progress that this country needed to make. It is often shown that the filibuster was used against civil rights legislation. But civil rights legislation passed. Civil rights advocates met the burden. It is noteworthy that today, as I speak, the Congressional Black Caucus is opposed to the nuclear option--unanimously opposed to it. ...

For 200 years, we have had the right to extended debate. It is not some ``procedural gimmick.'' It is within the vision of the Founding Fathers of this country. They did it; we didn't do it. They established a government so that no one person and no single party could have total control.

Some in this Chamber want to throw out 214 years of Senate history in the quest for absolute power. They want to do away with Mr. Smith, as depicted in that great movie, being able to come to Washington. They want to do away with the filibuster. They think they are wiser than our Founding Fathers. I doubt that is true....

For further analysis, let's look at Robert Caro. He is a noted historian and Pulitzer Prize winner, and he said this at a meeting I attended. He spoke about the history of the filibuster. He made a point about its legacy that was important. He noted that when legislation is supported by the majority of Americans, it eventually overcomes a filibuster's delay, as a public protest far outweighs any Senator's appetite to filibuster.

But when legislation only has the support of the minority, the filibuster slows the legislation--prevents a Senator from ramming it through, and gives the American people enough time to join the opposition....

The Senate is now being threatened with a fundamental change through a self-inflicted wound. ``Master of the Senate'' author Robert Caro recalled an important chapter in the Senate and the Nation's history. Consider this and contrast it with what is happening here today.

When Senator Lyndon Johnson of Texas left the Senate, he was the most powerful majority leader in the history of this country. When he was elected Vice President with President Kennedy and he was preparing to leave the Senate, he told his protege and successor, Senate Mansfield of Montana, that he, Johnson, would keep attending the Democratic luncheons and help his successor as majority leader in running the Senate. Senator Mansfield said no, Vice President Johnson was no longer a Member of the Senate, but an officer of the executive branch and by means of that office was accorded the privilege of presiding over the Senate.

What a contrast Senator Mike Mansfield's respect for the separation of powers and checks and balances is from those in power today. I say that as one who was privileged to serve here with Senator Mansfield. Instead, this White House took an active role in naming the present Senate leadership and this White House regularly sends Vice President Cheney and Karl Rove to Republican caucus luncheons to give the Republican majority its marching orders. What a difference from the days of Mike Mansfield and Lyndon Johnson.

Arlen Specter (R-PA)

As a starting point, it is important to acknowledge that both sides--Democrats and Republicans--have been at fault. Both claim they are the victims and that their party's nominees have been treated worse than the other's. Both sides cite endless statistics. I have heard so many numbers spun so many different ways that my head is spinning. I think even Benjamin Disraeli, the man who coined the phrase, there are ``lies, damn lies, and statistics,'' would be amazed at the creativity employed by both sides in contriving numbers in this debate.

In 1987, upon gaining control of the Senate and the Judiciary Committee, the Democrats denied hearings to seven of President Reagan's circuit court nominees and denied floor votes for two additional circuit court nominees. As a result, the confirmation for Reagan circuit nominees fell from 89 percent prior to the Democratic takeover to 65 percent afterwards. ...

A well-known story is told about Benjamin Franklin. Upon exiting the Constitutional Convention in Philadelphia, he was approached by a group of citizens asking what sort of a government the constitutional delegates had created. Franklin responded, ``A Republic, if you can keep it.''

In this brief response, Franklin captured the essential fragility of our great democracy. Although enshrined in a written Constitution and housed in granite buildings, our government is utterly dependent upon something far less permanent, the wisdom of its leaders. Our Founding Fathers gave us a great treasure, but like any inheritance, we pass it on to successive generations only if our generation does not squander it. If we seek to emulate the vision and restraint of Franklin and the Founding Fathers, we can hand down to our children and grandchildren the Republic they deserve, but if we turn our backs on their example, we will debase and cheapen what they have given us.

At this critical juncture in the history of the Senate, let us tread carefully, choose wisely, and prove ourselves worthy of our great inheritance. Since the United States and the Union of Soviet Socialist Republics avoided a nuclear confrontation in the Cold War by concessions and confidence-building measures, why should not Senators do the same by crossing the aisle in the spirit of compromise?...

Patrick Leahy (D-VT)

What the White House ignores is that President Bush completed his first term with the third highest total of confirmed judges in our history--in our history--and more Federal judges on the courts than at any time in our history. The truth is, Senate Democrats have cooperated extensively in confirming more than 95 percent of this President's judicial nominees--208 of them.

George Washington, the most popular and powerful President in our history, was not successful in all of his judicial nominations. The Senate rejected President Washington's nomination of John Rutledge to be Chief Justice of the Supreme Court. For example. And certainly I would hope that the current President would not assume he stands higher in our history books than George Washington.

The truth is, in President Bush's first term, the 204 judges confirmed were more than were confirmed in either of President Clinton's two terms, more than during the term of this President's father, and more than Ronald Reagan's first term when he had a Republican majority in the Senate. By last December, we had reduced judicial vacancies from the 110 vacancies I inherited in the summer of 2001 to its lowest level, lowest rate, and lowest number in decades, since President Ronald Reagan was in office. ...

How can any Senator look himself or herself in the mirror if they weaken the Senate, if they allow the Senate to no longer be the check and balance it should be? Why would anyone want to serve here if they come to this body with that in mind?

James Madison, one of the Framers of our Constitution, warned in Federalist Number 47 of the very danger that is threatening our great Nation, a threat to our freedoms from within: "[The] accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny."

That is what they are trying to do, put all the power into one hand. All of us should know enough of history to know we should not do that. George Washington, our great first President, reiterated the danger in his famous Farewell Address to the American People: "The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism."

Now, our freedoms as Americans are the fruit of too much sacrifice to have the rules broken in the Senate, especially to break them in collusion with the executive branch. What ever happened to the concept of separation of powers?...

Charles Schumer (D-NY)

The Senator from Tennessee, our majority leader, who got on the floor earlier today and said for 214 years there have not been filibusters of judges, has a very short memory. I asked him this morning, Did you not, on March 8, 2000, vote in favor of a filibuster of Richard Paez to the Ninth Circuit Court of Appeals? Here is a copy of the vote. Voting no: Frist, Republican of Tennessee. Did he think it was unconstitutional then? He said on the floor, in answer, Well, some are successful, some are not. I have never known the Constitution to say that something is unconstitutional if it fails and constitutional if it succeeds.

One out of every five Supreme Court nominees did not make it to the Supreme Court. That is part of the tradition of this country. Should the Senate have majority say? No. Should we have the say the majority of the time? No. Should we have the say some of the time? Yes. And there is the balance. The more a President consults, the more the President nominates moderate nominees, the more likely his nominees will succeed.

Dianne Feinstein (D-CA)

I think John Adams, in 1776, made it very clear on the point of checks and balances and an independent judiciary, when he said:

The dignity and stability of government in all its branches, the morals of the people and every blessing of society, depends so much upon on upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checked upon that . . . [The judges'] minds should not be distracted with jarring interests; they should not be dependent upon any man or body of men.

Now, that is the clearest statement of intent from our Founding Fathers, that the judiciary should be and must be independent. That is what is being eroded with the partisanship and with the nuclear option. The Senate was meant to play an active role in the selection process. The judiciary was not solely to be determined by the executive branch. Last week, I described how, in the Constitutional Convention, the first effort put forward was actually to have the Senate nominate and appoint judges. Then it was later on, with the consideration of others, changed to allow the President to nominate. But the explanation in the Federalist Papers is all centered around the Senate having the real power to confirm, and that power is not a rubberstamp....

I pointed out earlier where, in 1881, President Hayes nominated a gentleman to the Supreme Court. That was successfully filibustered throughout President Hayes' term. When President Garfield then came into office, he renominated the individual, and the Senate then confirmed that individual. But that does not negate the filibuster. It was the first recorded act of a filibuster of a judicial nominee, and it, in fact, took place and was successful for the length of President Hayes' term.

The following is a list of President Clinton's judicial nominees who were blocked:

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Circuit Court
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Charles R. Stack................. Eleventh Circuit.... 10/27/95
J. Rich Leonard.................. Fourth Circuit...... 12/22/95
James A. Beaty, Jr............... Fourth Circuit...... 12/22/95
Helene N. White.................. Sixth Circuit....... 01/07/97
Jorge C. Rangel.................. Fifth Circuit....... 07/24/97
Robert S. Raymar................. Third Circuit....... 06/05/98
Barry P. Goode................... Ninth Circuit....... 06/24/98
H. Alston Johnson, III........... Fifth Circuit....... 04/22/99
James E. Duffy, Jr............... Ninth Circuit....... 06/17/99
Elena Kagan...................... DC Circuit.......... 06/17/99
James A. Wynn, Jr................ Fourth Circuit...... 08/05/99
Kathleen McCree Lewis............ Sixth Circuit....... 09/16/99
Enrique Moreno................... Fifth Circuit....... 09/16/99
James M. Lyons................... Tenth Circuit....... 09/22/99
Allen R. Snyder.................. DC Circuit.......... 09/22/99
Robert J. Cindrich............... Third Circuit....... 02/09/00
Kent R. Markus................... Sixth Circuit....... 02/09/00
Bonnie J. Campbell............... Eighth Circuit...... 03/02/00
Stephen M. Orlofsky.............. Third Circuit....... 05/25/00
Roger L. Gregory................. Fourth Circuit...... 06/30/00
Christine M. Arguello............ Tenth Circuit....... 07/27/00
Andre M. Davis................... Fourth Circuit...... 10/06/00
S. Elizabeth Gibson.............. Fourth Circuit...... 10/26/00
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District Court
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John D. Snodgrass................ Northern District of 09/22/94
Alabama.
Wenona Y. Whitfield.............. Southern District of 03/23/95
Illinois.
Leland M. Shurin................. Western District of 04/04/95
Missouri.
John H. Bingler, Jr.............. Western District of 07/21/95
Pennsylvania.
Bruce W. Greer................... Southern District of 08/01/95
Florida.
Clarence J. Sundram.............. Northern District of 09/29/95
New York.
Sue E. Myerscough................ Central District of 10/11/95
Illinois.
Cheryl B. Wattley................ Northern District of 12/12/95
Texas.
Michael D. Schattman............. Northern District of 12/19/95
Texas.
Anabelle Rodriguez............... District of Puerto 01/26/96
Rico.
Lynne R. Lasry................... Southern District of 02/12/97
California.
Jeffrey D. Colman................ Northern District of 07/31/97
Illinois.
Robert A. Freedberg.............. Eastern District of 04/23/98
Pennsylvania.
Legrome D. Davis................. Eastern District of 07/30/98
Pennsylvania.
Lynette Norton................... Western District of 04/29/98
Pennsylvania.
James W. Klein................... District of Columbia 01/27/98
J. Rich Leonard.................. Eastern District of 03/24/99
North Carolina.
Frank H. McCarthy................ Northern District of 04/30/99
Oklahoma.
Patricia A. Coan................. District of Colorado 05/27/99
Dolly M. Gee..................... Central District of 05/27/99
California.
Frederic D. Woocher.............. Central District of 05/27/99
California.
Gail S. Tusan.................... Northern District of 08/03/99
Georgia.
Steven D. Bell................... Northern District of 08/05/99
Ohio.
Rhonda C. Fields................. District of Columbia 11/17/99
S. David Fineman................. Eastern District of 03/09/00
Pennsylvania.
Linda B. Riegle.................. District of Nevada.. 04/25/00
Ricardo Morado................... Southern District of 05/11/00
Texas.
K. Gary Sebelius................. District of Kansas.. 06/06/00
Kenneth O. Simon................. Northern District of 06/06/00
Alabama.
John S.W. Lim.................... District of Hawaii.. 06/08/00
David S. Cercone................. Western District of 07/27/00
Pennsylvania.
Harry P. Litman.................. Western District of 07/27/00
Pennsylvania.
Valerie K. Couch................. Western District of 09/07/00
Oklahoma.
Marian M. Johnston............... Eastern District of 09/07/00
California.
Steven E. Achelpohl.............. District of Nebraska 09/12/00
Richard W. Anderson.............. District of Montana. 09/13/00
Stephen B. Lieberman............. Eastern District of 09/14/00
Pennsylvania.
Melvin C. Hall................... Western District of 10/03/00
Oklahoma.