Statement of Senator Russ Feingold On Judicial Nominations and the Nuclear Option From the Floor of the U.S. Senate May 17, 2005 MR. FEINGOLD: Mr. President, it is not uncommon for Senators to stand on this floor and tell their colleagues and the American people that an upcoming vote is one of the most important that the Senate will ever take. We are the masters of hyperbole in this body, forever standing on precipices and poised on the brink of momentous decisions. But today, I think most will agree with me that we are truly at such a moment. The Senate is on the verge of making a decision with potentially enormous consequences for this institution and for the country and people we serve. At stake is not just the fate of a handful of judicial nominations, or of a future Supreme Court nomination, as important as they may be. No. The decisions made this week will resonate far beyond this chamber, and far beyond the current controversy. I want to speak today about how we arrived at this moment of great peril, and how we might step back from the brink. I want to speak today about the consequences of the question that will apparently be put to the Senate prior to our next recess. And I want to speak today about principle, and about power. While they don't always attract a lot of public attention, judicial nominations are very important. We all know that. The judicial branch is a coequal branch of government. The interpretation and enforcement of the laws we pass in Congress depend greatly on the men and women who serve as judges. And, of course, federal judges serve lifetime appointments. Decisions made by the President and the Senate on judicial nominations have a long-term and a long-lasting impact on the nation. Disputes over how the Senate should exercise its constitutional power of advice and consent on such nominations are as old the Republic itself. Nominations have led to some of the most historic and divisive debates in this body, dating back at least to efforts to pack the courts with federalist judges in the waning days of Johns Adams' presidency. More recently, we have had debates about FDR's court-packing plan in the late 1930s, the Abe Fortas nomination in the late 60's, and the Robert Bork nomination in the late '80s, to name a few examples. Mr. President, debate -- even bitter, partisan debate -- over judicial nominations is nothing new. What is new is that the Senate is now poised to break with its rules and traditions. For the first time, the desire of one side to win a nominations battle has become so intense and so unyielding that it threatens the very rules by which this body has operated for centuries. In all of the previous controversies I mentioned, which I think most serious students of Congress and the courts would agree were more significant than the current debate over a handful of circuit court judges, the rules of the Senate have allowed the battles to be fought fairly. Only today, must those rules give way so that one side can have its way. The Majority Leader and those who support his extraordinary plan to change the Senate rules by fiat seek to cloak their grab for power in the source of our nation's loftiest principles -- the Constitution. This is not just a silly public relations effort to change the name of their plan from "the nuclear option," the term coined by the Majority Leader's predecessor, because that term fares poorly in public opinion polls. It is a cynical effort to distract the public from the extra-constitutional nature of the plan by invoking the Constitution itself. In the last Congress, as in this one, I served as the ranking member of the Senate Subcommittee on the Constitution. The subcommittee held a hearing in May 2003 with this grandiose title: "Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent." The hearing was certainly interesting and provocative but no witness could make a convincing case that there is any such right in the Constitution. Article II, Section 2 spells out the Senate's role in nominations. It states, in relevant part, that the President "shall nominate, and by and with the Advice and Consent of the Senate shall appoint…Judges of the supreme Court, and all other Officers of the United States…" That's it. Some have managed to find in those few words a requirement that the Senate give all judicial nominees up-or-down votes. Even if someone isn't a strict constructionist, I can't for the life of me understand where they get that from. It may be the policy they prefer, but it's not a constitutional requirement. In fact, the only language in the Constitution that directly addresses the issue we are faced with today is the following from Article I, Clause 5: "Each House may determine the Rules of its Proceeding." The Senate has determined its rules, and its rules also provide the means for changing the rules. The Senate is now being asked to change the rules by breaking the rules. There is no principle involved here. There is just power. It is a shame that those who support the President's nominees have inflated what is essentially a political dispute into a constitutional debate. For those of us who take the Constitution seriously, it is jarring to hear colleagues suggesting that one is violating one's oath of office by voting not to end debate on a nomination. As my colleagues know, I spent seven years in this body fighting to pass a campaign finance reform bill. For years that effort had the support of a bipartisan majority of Senators, but it was stymied by filibusters. Senators who supported reform had many spirited, sometimes even bitter, debates with Senators who opposed our bill. Never did we contend that they were violating their oaths of office by using every tool available to oppose a bill with which they strongly disagreed. The Constitution does not prohibit opponents of a judicial nominee, or any nominee for that matter, from using a filibuster to block a final vote on the nominee. The majority does not have a constitutional right to confirm a nominee and a nominee has no constitutional right to a vote. As the senior Senator from West Virginia said the other day, the Senate has often denied consent to a nominee in the past by refusing to schedule a final vote. I have not always supported those actions, but I have not pretended that they are unconstitutional. If the arguments advanced today are correct, then Republicans acted unconstitutionally in 1995 when they defeated the nomination of Henry Foster to be Surgeon General by using a filibuster. They violated the Constitution when they required cloture votes before ultimately confirming Stephen Breyer, Rosemary Burkett, H. Lee Sarokin, Richard Paez, and Marsha Berzon to circuit court judgeships, David Sacher to the Surgeon General's office, and Ricki Tigert to the FDIC, Walter Dellinger to the DOJ's Office of Legal Counsel, and the current Governor of Arizona, Janet Napolitano, to be U.S. Attorney. They violated their oaths of office when they forced the ambassadorial nomination of Sam Brown to be withdrawn because they refused to end debate on his nomination. These are just the cases where a cloture vote was required to get a nomination through. I won't even start on the list of nominees who never got a hearing or vote in the Judiciary Committee or any kind of debate on the floor if they cleared committee. But there were dozens of them. Wasn't the majority denied its right to consent just as much in those cases? Is there any meaningful constitutional difference between a filibuster on the one hand and, on the other hand, a hold on the Senate floor, or a wink and a nod between a committee Chairman and a member who just doesn't like a nominee? One could certainly argue that the denial of consent by failing to schedule a hearing or vote in Committee is on less firm constitutional ground than a filibuster because it allows just one Senator, the Chairman of the Judiciary Committee, to make the decision that the Senate's consent on a nominee will be withheld, whereas if all Senators vote, a filibuster can be sustained only with 41 or more votes. But there is no real argument that filibusters of judicial nominations are unconstitutional, just as blocking nominations in committee is not unconstitutional. There is no principle here that justifies eliminating the filibuster for judicial nominees, who have lifetime appointments, but leaves it intact for nominees to the executive branch who can only serve until the term of the appointing President ends, at the latest. There is no principle that can distinguish judicial nominations from legislation, which may also be passed by a majority, but can be amended or revoked by a majority in the same or a later Congress as well. This effort is not based on principle, it is based on power. The lack of a constitutional basis for the rule change by fiat is made even more clear by the specific plan that the Majority Leader spelled out in his press release last week. He intends, according to that release, to "seek a ruling from the Presiding Officer regarding the appropriate length of time for debate on such nominees." Surely the Presiding Officer cannot make that ruling on constitutional grounds. What is the constitutional basis for ruling that the Senate can debate a nomination only for a particular length of time? Is the Presiding Officer going to opine that it is constitutional to debate a nomination for 100 hours, but unconstitutional for us to have 101 hours of debate? That would be absurd. No, it appears that instead of following the existing precedents of the Senate, which state that there is no dilatory rule except after cloture has been invoked, the Presiding Officer will just announce a new rule and the Senate will then debate and vote on an appeal of that ruling. The rules of the Senate will be changed by fiat, by breaking the rules. Not principle, power -- the power of majority rule. But the Constitution did not set up the Senate to be a majoritarian body. And that is what why renaming the nuclear option as "the constitutional option" is so wrong. The Constitution allows citizens from smaller states who could be easily outvoted in a majoritarian legislature, like the House, to have the same power in the Senate as citizens of larger states. This is not a minor provision, either. The founders clearly didn't think so, because they made it the only provision in the Constitution that cannot be amended. They designed the Senate to be an important bulwark against majoritarian pressures. And the Senate rules from the very beginning have granted protections for the minority. There was no cloture rule at all until this century and the rule didn't cover nominations until 1949. While the cloture rule has changed over time, sometimes offering more protection to the minority and sometimes less, those rule changes have always been accomplished in accordance with the Senate rules. Until now. Until the demand for power trumped principle. The Framers intended the Senate to act as a check on the whims of the majority, not to facilitate them. I will not pretend that the Senate has always been on the right side of history. At times, most notably during the great civil rights debates of the 1950s and 60s, Senators have used the powers given them to block vital, majority-supported legislation. But, notwithstanding those dark moments, the Senate has also served throughout the history of this republic as a place where individuals with different beliefs and goals are forced to come together to work for the common good. By empowering the minority, the Framers created a body that that has served this country well. To continue down the road we are now on will be to irretrievably change the very character of the Senate, and irretrievably weaken the institution. Without the unique feature of extended debate, the Senate will be much less able to stand up to the President or to cool the passions of the explicitly majoritarian House. I know that my colleagues see themselves as guardians of this remarkable institution, as I do. When we leave the Senate -- and, some day, somehow or another, all of us will -- it is our responsibility to ensure that we do not leave this institution weakened. As Senators, we tend to see ourselves as pretty important, but none of us -- and certainly no judicial nomination -- is more important than the United States Senate. Mr. President, why is this extreme course necessary? Why are so many of our colleagues prepared to sacrifice the Senate's character, and its special power? Why are they bent on giving up their own power as Senators? Let me take a minute to respond to some of the charges that have been made about the behavior of the minority that supposedly has given the majority no choice but to use the nuclear option. First, we are told that using the filibuster to block a judicial nomination is unprecedented. As anyone who has studied the record knows, that is nonsense. Most famously, the Fortas nomination was filibustered. The Senator who led that filibuster, Robert Griffin of Michigan, has tried to claim in recent days that it really wasn't a filibuster at all. But he said at the time: "It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote." We are told, however, that the Fortas nomination was different because there were Southern Democrats opposed to the nomination as well as Republicans. But what difference does that make? This debate is not about the rights of the minority party, it is about the rights of a minority of Senators. Does anyone really think that if one or a few of our Republican colleagues joined a filibuster against one of the handful of circuit court nominees that have been blocked, it would make a difference to the Senators who support the nominations and want to change the rules? Fortas, of course, was a Supreme Court nominee, while the handful of nominees that have been blocked so far have been nominated to circuit courts. But there have been filibusters of circuit court nominees in the past as well, indeed in the very recent past. In 2000, cloture votes were held on two Clinton nominees to the Ninth Circuit, Marsha Berzon and Richard Paez. The current Majority Leader himself voted against cloture on Judge Paez's nomination on March 8, 2000. Apparently, these filibusters were different because they were unsuccessful. The handful of Democratic filibusters of President Bush's nominees are unprecedented, we are told, because the Republican filibusters of Richard Paez and Marsha Berzon didn't prevent them from being confirmed. Does anyone really think that if the current Majority Leader and the others who voted against ending debate on the Paez nomination had convinced their colleagues to join them they would have then changed their votes the next time around to make sure that the principle of an up or down vote was maintained? This is what now passes for debate and argument on the issue of so-called "obstruction" of President Bush's nominees. "The filibusters are unprecedented," they say. Never mind that Republicans including the Majority Leader used the same tactic against nominees they opposed. "Democratic obstruction of the President's nominations is unprecedented," we hear. Never mind that the Senate approved 204 out of 214 nominations that came to the floor in President Bush's first term, but in the last four years of President Clinton's presidency, only 175 nominees were confirmed and 55 were blocked, including 20 circuit court nominees. Many of those nominees never even got a hearing in the Senate Judiciary Committee. "Well that was different," we are told, "because President Bush's nominees have majority support in the Senate." But that distinction is nonsense as well. President Clinton's nominees had majority support. That is why they were held up in Committee and never reached the floor even for a cloture vote. Judge Paez, for example, was first nominated in January 1996. When he was finally confirmed in March of 2000, the vote on cloture was 85-14, and the vote to confirm him was 59-39. But one of the most foolish arguments we hear in support of the nuclear option is that there is a crisis in the courts because of the number of vacancies caused by Democratic filibusters. As of the end of President Bush's first term, during which the Senate confirmed 204 judges, there were only 27 vacancies on the federal bench. The courts had their lowest vacancy rate since 1990. Five months into his second term, there are now 45 vacancies, but the President has made nominations for only 15 of them. For 30 vacancies there are no nominees. The vacancy rate is still very low historically. If there is a crisis now, which there isn't, it surely is not the Senate's fault. There is no vacancy crisis. But we are about to be thrown into a constitutional crisis by a majority that is drunk with power. While there is plenty of blame to go around, the President precipitated this crisis. When he took office in 2001, he had an opportunity to end the bitterness that plagued judicial nominations over the previous decade by recognizing that an injustice had been done to a large number of Clinton nominees. Not an unconstitutional injustice, but an injustice nonetheless There were enough vacancies on the federal appellate courts for him to name most of the judges but give a few seats to Clinton nominees who had been blocked, or to other nominees suggested by Democrats in those states. In his first group of nominations, which were almost all to the appellate courts, he made a nod in that direction by nominating Roger Gregory to the Fourth Circuit. President Clinton's nomination of Gregory, the first African-American to sit on that circuit, had been blocked in the Judiciary Committee. He was eventually confirmed by a 99-1 vote. The hopes that the President would make good on his campaign promise to change the tone in Washington were short lived. He ignored pleas for consultation and conciliation on judicial nominations. Time after time, he has filled appellate court seats that had been kept vacant during the Clinton years with extremely conservative and often controversial nominees. Yet Democrats certainly didn't block all or even nearly a majority of those choices. Much to the displeasure of many of the groups on the left that work on nominations, Jeffrey Sutton and Deborah Cook now sit on the Sixth Circuit, Jay Bybee, who we later learned was the author of the infamous DOJ torture memo, is on the Ninth Circuit. Michael McConnell and Timothy Tymkovich are on the Tenth Circuit. In all, 35 of President Bush's nominations to the circuit courts have been confirmed, even though 9 of those seats became vacant during the Clinton years and were kept vacant by denying Clinton nominees an up or down vote. Only seven judges were blocked because of their views or records. Three others were held up because of the particularly egregious tactics used to block Michigan nominees to the Sixth Circuit during the Clinton Administration. The President has succeeded in reshaping the federal courts to his liking. He may soon have one or even two Supreme Court nominations to make. He ought to be proud of and pleased with his accomplishments, but winning almost all the time apparently isn't enough. And in order to win every time, he is willing to push the Senate to upend over 200 years of tradition and precedent and perhaps permanently damage the comity on which this institution functions. In the end, the seemingly insurmountable differences we have on judicial nominees can only be resolved the way that seemingly insurmountable differences are resolved on almost all other hotly contested issues in the Senate -- through negotiation and compromise. Of course, for there to be compromise, both sides have to be willing to engage in that effort. The offers made by the Majority Leader thus far do not retain the unique and crucial feature of the current Senate rules-- the right to unlimited debate. They amount to a slow motion nuclear option. It may be that a confrontation cannot be avoided. The groups that support the President's nominees are clamoring for the nuclear trigger to be pulled. The only hope for the Senate is the Senate itself. In the end, this decision will be made by the 100 men and women given the honor and responsibility of serving in this body at this point in our nation's history. The stakes could hardly be higher, or the consequences to this body more significant. I can only hope that my colleagues vote to let the Senate continue to be the Senate. The checks and balances that the Framers created are at great risk today. The American people will suffer a great loss if we step over this precipice. My fervent plea and hope is that the Senate will choose principle over power. I yield the floor.

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