Voting on Judicial Nominees
by Senator Jon Kyl

Mr. President, My colleague from Florida makes a point that he has voted for most of the President's judicial nominees, and indeed that's been the case with every Senator for every President. But until the last two years, we had voted both for district court nominees and circuit court nominees. Two years ago the Democratic minority began filibustering circuit court nominees. This is where President Bush has had a lower percentage of his nominee approved than any President since Franklin Roosevelt for those important circuit court positions.

In fact, a third of President Bush's circuit court nominees were filibustered or could not be brought to a vote because they would have been filibustered. Only 17 out of I believe around 35. So when our colleagues on the other side of the aisle talk about the large number of judges that they have approved, they are folding in all of the federal district court nominees that everybody has always voted for. That's not the appropriate measure.

The question is how many circuit court nominees. And never before in the history of our country have we seen circuit court nominees or district court nominees filibustered in this manner. Ten separate judges did not come to a final up-or-down vote. Seven more would have seen the same fate had they been brought forward. That's never happened before in the history of our country.

I saw our colleague from Illinois discussing the fact that a former Senator from New Hampshire had, on this floor, talked about filibustering a couple of judges for the 9th circuit court of appeals. And in fact that Senator had said that. And I think the interesting point is that even though he, a single Senator, wanted to filibuster the nominees -- their names were Berzon and Paez -- the Republican leader, Trent Lott from Mississippi , made an arrangement with the then-Democratic leader, Tom Daschle from South Dakota , that they wouldn't be filibustered. We filed cloture which is the petition to bring the matter to a close so that we could take a final vote. And Senators on both sides of aisle supported the cloture petition. They supported getting to a final vote on those two judges.

Of course, cloture was invoked, meaning that he was not filibustered. They were brought up for a vote. Some Senators voted against them. I, in fact, voted for Berzon and against Paez, but the net result was they were both sitting on the 9th circuit court of appeals. They were not filibustered. There is no case of a filibuster of a circuit court judge. None.

Secondly, the only other situation in which it is alleged that a filibuster occurred was with Abe Fortas, whose name was withdrawn by Lyndon Johnson the day after a cloture vote failed to succeed. But as Senator Griffin from Michigan , who was then leading that opposition to Abe Fortas, has told me and others, there was no effort to filibuster because they had the votes to kill the judge. They simply hadn't had time to debate him which is why they voted against the cloture. But as a result of the President acknowledging he had no support in the Senate, his name was withdrawn.

There has never been a filibuster of the Supreme Court or circuit court judge in the United States Senate. It's simply erroneous to suggest that there has been.

Nor is it correct to say we've been voting on all of these judges. If you take out the judges about whom there's no controversy, there's a huge issue because fully a third, a third of the President's circuit court nominees were not voted on because of this new filibuster by the Democratic minority.

I think we need to have some perspective. Who is changing the rules here? Until two years ago, all of judges got up-or-down votes. In fact, judges that couldn't even get out of Judiciary Committee without a majority were granted the privilege or courtesy of a vote on the Senate floor.

During the debate when Clarence Thomas was being confirmed, several leading Democratic Senators took the floor to oppose Justice Thomas. And they said they actually had thought about trying to filibuster his nomination but that that would be wrong because filibustering judicial nominees is wrong. Senator Leahy, Senator Kennedy, and others took to this very floor and said, we don't know whether we're going to defeat Clarence Thomas or not but we're not going to defeat with a filibuster because that would be wrong. And sure enough, they were correct, they lost the vote 48-52. He was confirmed, but I admired them because they stood for principle, the rule and the tradition of this body had always been to give the nominee as an up-or-down vote. But if they could get 51 votes for confirmation, they became a circuit court judge or a Supreme Court Justice. And that's what happened in the case of Clarence Thomas.

Now, all of a sudden, it's been turned around and the Democratic minority, almost to a person has said that they believe judges should be filibustered, that the President's nominees are not going to get an up-or-down vote if they decide that they want to filibuster a particular nominee. As I said, at least a third of circuit court nominees so far have been filibustered or threatened with a filibuster and it's our understanding that that practice will continue unless we can get back to the way it's always been, the traditional role of the Senate in providing advice and consent with a majority vote of or down.

It's also been suggested that the President is nominating a new, wild variety or variant of lawyers and judges to be circuit court judges now, way out of the mainstream people. This, of course is absolutely ludicrous. The people that President Bush has nominated are respected jurists or lawyers. The American Bar Association, which used to be the Democrat's gold standard for approving of judicial nominees has judged all of these candidates qualified. And yet, somehow, some of our colleagues on the left say they are out of mainstream.

Now, my colleague on the Judiciary Committee, the Senator from New York , for example, has made this charge on several occasions. But I just ask, who is probably more representative of mainstream -- a single Senator from a state like, for example, New York , or the President of the United States who had to get elected with support from all over this country? I don't think you would say George Bush is out of the mainstream of this country.

Who are some of the people that he has nominated? Some are judges that have had to stand for election. For example in California and Texas . And they have received supermajorities, 70% or 80% -- I've forgotten the exact numbers -- of support from the citizens of their states. And one is a blue state. One is a red state. But when well over 50% or over 60% of the citizens in those states vote to support these judges to continue in office on their state supreme court, you'd hardly say that these nominees are out of mainstream. And yet those are, in the case of these two particular judges, Janice Rogers Brown from California , Priscilla Owen from Texas , those are two of the judges for whom this filibuster has been applied.

It doesn't make sense, Mr. President, to suggest that a tradition of this Senate to give people an up-or-down vote is all of a sudden going to be overturned because all of a sudden a President is proposing people that are wildly out of mainstream.

So what has the Republican majority at least considered doing? Simply returning to the way it has always been. To going back to the 200 years before two years ago and giving people an up-or-down vote. You can still vote against the nominee. You don't have to vote for the nominee, but at least give them an up-or-down vote.

We do that based upon the precedents set by the then-Majority Leader of this body, Robert Byrd from West Virginia, who on not fewer than four separate occasions utilized the precedents of this body to insure that dilatory tactics could not prevail in this body and we could move forward with the business of the Senate. It is the same precedent that can be used to reestablish the up-or-down vote, which has been the tradition of this body all along. That is not rubber-stamping; that is giving due consideration and giving them an up-or-down vote at the end of the day.

When Americans look at this battle in the Senate, they have to wonder why this is happening, why it's so important. I suspect it may have something to do with the fact that there might be a vacancy on the U.S. Supreme Court and that our friends on the other side of the aisle are so afraid that President Bush might nominate someone who could gain majority support that they are prepared to actually refuse the nominee an up-or-down vote. That would be unprecedented in the history of this body.

Some have called this the nuclear option because they threaten to blow the Senate up if we try to return to the traditional rule of an up-or-down vote in the Senate. I think that's a very unfortunate name and a very unfortunate threat. Nobody should be threatening to “go nuclear” or “blow the place up” or prevent the Senate from doing its business. Our constituents sent us here for a reason, to get work done, to pass the budget, to pass the appropriations bill, to pass the bill before the body, the supplemental appropriations bill that will literally fund our troops' effort in Afghanistan and Iraq, to pass an energy, to pass a defense authorization bill, and all of the other important things that they want us to do here.

Yet, we have some colleagues suggesting if they don't get their way on these judges, like the schoolyard bully who has a call going against him by the referee picks up his ball and goes home so the rest of kids can't play. Is that the threat here to pick up the ball and go home so the rest of us can't do the business we were sent here to do?

Mr. President, let me make a final prediction here. Last time we met as members of Judiciary, we couldn't get a quorum to do business. Not one member of the minority party showed up. We have to have one to get a quorum. This was not at the last minute. There were three members who have gone to the funeral of the pope. That's three out of nine. None of the rest showed up. We have another meeting on Thursday and we're going to need to pass the judges out so that we can consider them on the floor here. I'm going to predict to you that they won't give us a quorum then either. They won't show up for this and no judges will be approved. I predict right now the Judges agenda will not be passed out. They might pass out one or two but they won't allow us to pass all of those judges so they can be considered by the full body. It was members of the minority that complained--while Republicans never filibustered -- that they kept some of President Clinton's judges bottled up in committee. There are six or seven judges pending and we'll see whether or not they show up for the meeting so there's a quorum. That would be a shame and a violation of what this Senate has always done in the past.

I close by urging my colleagues not to confuse this discussion with erroneous information or to talk about things that aren't so or history that never was. I rather ask them to approach this on the basis of moving forward in a bipartisan way to fulfill our constitutional responsibilities to grant these judges an up-or-down vote, to provide our advice and consent so-that we can put people on the court in these very important positions to serve the American people.

Jon Kyl was elected to the U.S. Senate from Arizona in 1994 and re-elected in 2000, after having served four terms in the U.S. House of Representatives. He serves on the Senate's Finance Committee , where he chairs the Subcommittee on Taxation and IRS Oversight, and on the Judiciary Committee , where he chairs the Subcommittee on Terrorism, Technology and Homeland Security . As chairman of the Senate Republican Policy Committee , he is one of six members of the Senate Republican Leadership.

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