[Congressional Record Volume 151, Number 49 (Thursday, April 21, 2005)] [Senate] [Pages S4041-S4042] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] JUDICIAL NOMINATIONS Mr. THUNE. Mr. President, I rise today in morning business to speak about a matter of great importance, and that is our broken judicial nomination and confirmation process. As Senators, we have sworn to support and defend the Constitution, and on the issue of judicial nominations the Constitution is straightforward. It states that the President nominates judges and the Senate has the duty to give its advice and consent on those nominations. For over 200 years, that is exactly how it worked, regardless of which party was in power. Over the past 2 years, the Democrat minority has attempted to change the rules and stand 200 years of Senate tradition on its head. The Democrat minority now thinks that 41 Senators should be able to dictate to the President which judges he can nominate. The minority also thinks that it should be able to prevent the rest of the Senate from fulfilling its constitutional duty of voting up or down on judicial nominees. The Democrats' position is contrary to our Constitution, our Senate traditions, and the will of the American people as expressed at the ballot box this past November. It must stop. [[Page S4042]] The advice and consent provision in the Constitution has served us for over 214 years up until the last Congress. That meant that the Senate should vote, and for over 200 years no nominee with majority support has been denied an up-or-down vote in this body, zero. The Democrats have said that they have confirmed 98 percent of the President's nominees. The actual number is 89 percent. But even at that, are we to say that we are only going to follow the Constitution 89 percent of the time? Furthermore, this Senate's record on dealing with the President's appellate court nominees is the worst for any President in modern history. This President's record of having his appellate court nominees voted on is 69 percent, which ranks him lowest of any President in modern history. It would be one thing if these nominees did not have the votes for confirmation, but they do. These nominees will have 54 or 55, 56, 57 votes for confirmation. It is wrong to deny them what the Constitution says they deserve and for us to ignore our constitutional responsibility to see that they have an up-or-down vote in this body. The Democrats have said that it is their prerogative to debate. Well, that is great. Let us debate them on the floor of the Senate. But before they can be debated, a nomination has to be brought to the Senate floor for debate. We have a right to debate under the Constitution in the Senate. They have also suggested that judges ought to have broad support; that they ought to have more than the necessary 51 votes for the simple majority that has traditionally been the case in the Senate. There is nothing in the Constitution about filibustering judges. There is nothing in the Constitution about requiring a super-majority to confirm judges. If the Founders had wanted judges to get a super-majority vote, they would have put that in there. They did it for treaties, for constitutional amendments, and for overriding a Presidential veto. Clearly, that was not the case with judges. It was the Founders' intention that the Senate dispose of them with a simple majority vote. The Democrats in the Chamber have said that what we are trying to accomplish is ``the nuclear option,'' suggesting that somehow this is a radical process that we are trying to implement. Well, simply, that is not true. There is nothing nuclear about re-establishing the precedent that has been the case, the practice, and the pattern in this Senate for over 200 years. What is nuclear is what is being discussed by the Democrats in this body, and that is shutting the Senate down over the issue of judicial nominees, which means important legislation to this country, such as passing a highway bill that will create jobs and growth in this economy, could get shut down, or an energy policy which is important in my State of South Dakota. We have gas prices at record levels, we have farmers going into the field, the tourism industry is starting its season, so we need to do something to help become energy independent. I am very interested in the issue of renewable fuels. I want to see as big a renewable fuels standard as we can get on the Energy bill, but we have to get it on the floor to debate it first. We cannot have these attempts, these threats--and I hope they are just that: threats-- because it would be tragic, it would be nuclear, if the other side decided to shut this Senate down over the issue of judicial nominees. The Democrats in this Chamber have tried to confuse the issue of legislative and judicial filibusters, clearly trying to confuse the public about what this means. Well, what we are talking about is simply the narrow issue of judicial nominees. It is part of this Senate's constitutional responsibility and duty, and we must take it very seriously. However, in the last Congress that became extremely politicized. What we are talking about again is simply the issue of judicial filibusters. Incidentally, it was the Democrats who last voted on the filibuster in the Senate to do away with it back in 1995. It was a 76- to-19 vote. It had to do with the whole issue, not just judicial but legislative filibusters as well. Many of those Democrats who voted to end the filibuster still serve in this institution today. The American people see this as an issue of fundamental fairness. They understand that this body's constitutional obligation, responsibility, and duty is to provide advice and consent, and that means an up-or-down vote in the Senate. The Democrats in the Senate have said that this President's nominees are extreme. There are going to be a couple of them reported out of the Judiciary Committee today. Janice Rogers Brown received 76 percent of the vote the last time she faced the voters in California, which is not exactly a bastion of conservatism. Her nomination in this Senate has been stalled out for 21 months. Priscilla Owen will also be reported out today. She received 84 percent of the vote the last time she faced the voters in Texas. She has been waiting around for 4 years in the Senate to get an up-or-down vote on her nomination. She was endorsed by every major newspaper in the State of Texas. These nominees are not extreme. What is extreme is denying these good nominees a vote, and it betrays the role and responsibility the Founders gave the Senate. So as we embark upon and engage in this debate that is forthcoming on judicial nominees, let us keep in sight and in focus the facts, and the role and responsibility this institution has to perform its duty. And that is to make sure that when good people put their names forward for public service, they at least are afforded the opportunity that every nominee with majority support throughout this Nation's history has had, and that is the chance to be voted on in the Senate. I fully support what the other side is saying about wanting to debate these nominees. Let us do it. I am certainly willing and hopeful that we will be able to engage in a spirited and vigorous debate. Let us debate, but then let us vote. I yield the floor. The ACTING PRESIDENT pro tempore. The Democratic leader is recognized. ____________________