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May 5, 2011

Nomination of John McConnell

[Page: S2648]  GPO's PDF 

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Mr. ALEXANDER. Madam President, we have a vote at noon. I know there are a number of Senators who wish to speak. I will take about 5 minutes, I suspect Senator Cornyn wants to speak, and I know Senator Grassley wants to speak. I also see Senator Reid.

The Senate is a body of precedent. One important precedent is that never in the Senate history has a President's district court nomination, reported by the Judiciary Committee, been defeated because of a filibuster; that is, because of a cloture vote. Once a nominee for Federal district judge has gotten to the floor, the majority of Senators have made the decision in an up-or-down vote.

Therefore, I will vote for cloture in order to allow an up-or-down vote on the President's nomination of John McConnell, then I will vote ``no'' on confirmation because I believe he is a flawed nominee.

I know most of my Republican colleagues are going to register their opposition to Mr. McConnell by voting to deny an up-or-down vote. I respect their decision. I understand how they feel. I also was outraged in 2003 when Democratic Senators filibustered President Bush's circuit court nominees simply because they disagreed with their philosophies. I made my first speeches on the floor of the Senate arguing against such a change in precedent.

On February 27, 2003, I said on this floor:

When it comes time to vote, when we finish that whole examination, I will vote to let the majority decide. In plain English, I will not vote to deny a Democratic President's judicial nominee just because the nominee may have views more liberal than mine. That is the way judges have always been selected. That is the way they should be selected.

That is what I said in 2003.

In 2005, Republicans grew so upset with the Democrats' continued filibustering of President Bush's circuit nominees, the Republican majority leader threatened to eliminate the right to filibuster in connection with judicial nominations. That proposal was called the nuclear option because it was said if Republicans succeeded in abolishing the filibuster, their actions would ``blow the place up.'' I suggested, in two Senate speeches, that a small group of Senators, equally divided by party, agree to oppose the filibustering of judges. The result of those remarks was the creation of the Gang of 14--the Gang of 14 Senators who preserved the tradition of up-or-down votes by agreeing to use the filibuster only in extraordinary cases. I have amended my own views to subscribe to the Gang of 14's standard for Supreme Court and circuit court judges.

It is true the Gang of 14 agreement didn't explicitly distinguish between circuit and district judges. But the debate then clearly was only about Supreme Court and circuit judges, and the Senate always thought of district judges differently. District judges are trial judges. Circuit judges also must follow precedent but have broader discretion in interpreting and applying the law. Circuit judges' jurisdictions are broader. Their attitudes and philosophies are much more consequential in the judicial process.

That is why the Senate has never allowed a Federal district court nomination to fail by denying cloture. According to the Congressional Research Service, in the history of the Senate----

The ACTING PRESIDENT pro tempore. The Senator's time has expired.

Mr. ALEXANDER. I ask unanimous consent for 1 additional minute.

The ACTING PRESIDENT pro tempore. Is there objection?

There being no objection, it is so ordered.

Mr. ALEXANDER. I thank the Chair.

According to the Congressional Research Service, in the history of the Senate, only three cloture motions have ever been filed on district judge nominations. In each case, the nomination eventually was confirmed.

In 1986 cloture was invoked by a vote of 64-33 on Sidney Fitzwater despite opposition to the nomination by Democratic senators. Mr. Fitzwater was then confirmed 52-42.

In 1999 cloture was not invoked by a vote of 55-44 on Brian Theodore Stewart's nomination because of Democrat opposition. He was confirmed two weeks later by a vote of 95-3.

In 2003 a cloture motion was filed on Marcia G. Cook's nomination but it was withdrawn and she was confirmed 96-0.

I certainly wish President Obama had nominated someone other than Mr. McConnell. During his confirmation hearings, questions arose about a possible role in stolen corporate documents, in soliciting contingency fee legal contracts, and about his judicial temperament. Some senators even feel misled by some of his statements. It was even said he is the only district judge to be opposed by the U.S. Chamber of Commerce in its 99-year history.

Well, the Senate has more than a 200-year history. And that history is not to use the filibuster to defeat a district judge nomination.

I am comfortable with the Gang of 14 precedent in the case of circuit justices and Supreme Court justices. I will continue to reserve the right to vote against allowing an up-or-down vote in an extraordinary case. I also understand the strategy of ``They did it to us, so we will do it to them.'' Unfortunately, that strategy, I am afraid, will lead us to a new and bad precedent, one which will weaken the Senate as an institution and come back one day to bite those who establish it.

I thank the Chair and I yield the floor.

(Senate - May 4, 2011)

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