Executive Session

EXECUTIVE SESSION

Mr. CRAPO. Mr. President, I appreciate the opportunity our majority leader has given us to debate the issue of judicial nominations and the question of whether it is appropriate under our Constitution to have a filibuster of a judicial nomination by the President.

I believe we face a constitutional crisis. There are a lot of numbers that have been bandied back and forth between the various sides in this debate. I am going to try to make a little sense out of those in a few minutes, but I want to start with the Constitution of the United States, which in article II says that the President shall nominate, and by and with the advice of the Senate, shall appoint judges.

This Constitution does not provide a supermajority vote for the nomination, for the advice and consent process in the Senate. Our Founding Fathers were very capable and very good at pointing out those circumstances where they believed more than a majority vote was required for this interaction between the Senate and the President established in our Constitution.

In a number of different places in the Constitution, whether it is ratification of treaties or impeachment or Presidential veto overrides or the other occasions where our Founding Fathers believed the Constitution required more than a majority vote and instead a supermajority vote, they were very specific about laying that out.

With regard to judges, they did not lay out a supermajority requirement. Instead, it was stated-and until this Congress-that our Founding Fathers and the Constitution intended the advise and consent process in the Senate to require a majority vote and not to be "filibusterable."

We have seen a lot of debate on a lot of different numbers and I want to try to clarify some of these. One of the very common responses to us is: Well, we have stopped only 4 judges by filibuster this Congress and yet under the last Presidency, under Bill Clinton, over 60-I have heard different numbers, 55, 60, but whatever it is-judges were stopped by the Republicans.

It is critical for people to understand that we are talking about two very different things. All judges nominated by any President must go to the Judiciary Committee and must make it through the Judiciary Committee. In that process, under every President, a number of the judges do not make it.

In fact, we have a chart that shows under President Bush No. 1, 54 of his nominations did not make it through the committee or were voted down by the Senate.

Under President Clinton, our number, as we analyze it, is 41. Now I have heard the number 55 and the number 60, but somewhere between 41 and 60 or some other number in that category did not make it through the committee.

Actually, one of these nominees was voted down on the floor. The others did not make it through the committee. They do not make it through the committee often for a number of reasons. The point is that in the committee, there is a majority vote. It is the majority rule, as the Constitution requires, for these judges to make it through the process. Even if the committee does not act on these nominees, if the majority of the Senate wants to bring them forward, there is a discharge petition that can bring them forward.

The point is, it is important to understand the distinction between judges who are stopped in the normal course of the majority voting process of the Senate as they work through the committee and then on to the floor, and what we are debating today.

Let us go to the next chart. Today we are debating whether we should change what has never been done before. This number is the number of years in which the Senate, Republicans and Democrats, refused to uphold a filibuster against a judge. For the last 214 years, both Republicans and Democrats in the Senate have refused to uphold filibusters against judges.

Now, we are going to hear and have heard over the last number of hours a lot of debate about that as well. The Republicans have been accused of filibustering Democrat judges and Democrats have been accused of filibustering Republican judges over the years, and they would have everyone believe it is a common practice for the Senate to accept the filibustering of judges.

The reality is that although there have been efforts to try to filibuster judges in the past, until this Congress neither party has tolerated it because both parties recognized the intent of the Constitution that once a President's nomination gets to the floor, the President is entitled to a vote. Whether the Republicans or the Democrats tried to filibuster a judge, both parties in the past have ultimately come together to stop that filibuster from preventing the intent of the Constitution from being accomplished.

Let us get a little bit of history on this. The cloture rule in the Senate has been applicable to nominations since 1949. Since that time, cloture has been filed on only 35 nominations, meaning all the rest of the nominations basically made it through, once they got to the floor of the Senate, to a final vote. Of those 35 times that cloture had to be filed, 17 of them were judicial nominations, 18 were other executive nominations.

Of those 17 times since 1949, when we have had cloture on judicial nominations, cloture has been defeated on the first try in 11 of the 17 tries. Of all the other cases, cloture was defeated by the second try.

Now, people need to understand what cloture is. Every time there is a cloture vote, it does not necessarily mean there is a filibustering. It simply means that at that point, the Senate is not ready to vote. It may mean they want to wait a little longer before a vote is taken. But when we see a cloture tried again and again and the announcement that as many times as it wants to be tried it is going to be stopped, that is a filibuster. We are seeing that now on four judges, with a threat of it on seven more.

Let us put up the other two charts. There has been a lot of talk about how the Republicans stopped more of President Clinton's judges than the Democrats did of President Bush's judges. This number is the number of President Clinton's judicial nominations that reached the floor that were voted on and confirmed and the number that were filibustered. None of President Clinton's nominations was filibustered. There were some cloture votes. We can argue among ourselves whether or not that was a filibuster, but the point is that none of the efforts in the Senate against President Clinton was allowed to proceed to stop his judges from getting a vote. They all got a vote.

Let us look at the next chart. The next chart is the number of nominations of Presidents in the last 11 Presidencies where, when the candidate got to the floor, they were denied an up-or-down vote. Out of 2,372 nominations that have come to the floor during the last 11 Presidents, zero were filibustered. Zero were stopped from having a vote once they got to the floor of the Senate.

In this Congress, we have seen that happen four times, and it is now being threatened on seven more judges. A new trend, a new precedent, in American history is being set in the Senate and the American people need to pay attention to it because regardless of how one passes the numbers back and forth, the fact is that the precedent is now being set to require that not only does a nominee have to make it past the committee but they have to be subjected to the filibuster rule in contravention of the clear intent of the U.S. Constitution.

This is all leading up to a battle over a potential Supreme Court nomination. It will be very unfortunate for this country if the Senate, in this Congress, changes the history of our treatment of this critically important provision of our Constitution as we move forward in the analysis and handling of our responsibility on the advice and consent on judicial nominations.