Grassley: Give Judges a Fair Up or Down Vote

Sen. Chuck Grassley today released a statement given in the United States Senate on giving federal judges a fair up or down vote.

Prepared Floor Statement of Sen. Chuck Grassley, of Iowa                       Up or Down Vote                                                                     Monday, May 23, 2005

Thank you, Mr. President. For several days now, the Senate has been debating two nominees to the federal bench, Priscilla Owen and Janice Rogers Brown. I've come to the floor to express my support for these highly qualified women, and to urge my colleagues to support an up or down vote to confirm them.

One of the most important roles we Senators have is the responsibility of advising and consenting to individuals that the President has nominated to fill the federal bench. But this responsibility has been threatened by the actions of the Democrat Leadership. That has brought us to this debate today.

The Constitution is very clear on the role of the Senate in the judicial confirmation process. Judicial nominees are chosen by the President with the advice and consent of the Senate. Until President Bush was elected, no one ever interpreted this requirement to mean anything other than a simple majority vote. For over 200 years, no judicial nomination with clear majority support in the Senate had ever been denied an up or down vote on the Senate floor. This was the case, regardless of whether a Republican or Democrat President was in office. This was the case, regardless of whether the Senate was controlled by Republicans or Democrats.

But, in the 108th Congress, the Democrat Leadership decided it was going to change the ground rules. The Senate Democrats rejected this 200 year old Senate tradition of giving judicial nominees up or down votes. By doing this, they have rejected the Constitution, the traditions of the Senate, and the will of the American people.

The Democrat leadership targeted 16 of President Bush's 52 court of appeals nominees. They filibustered 10 and threatened filibusters against 6 more - a full 31% of President Bush's appellate court nominees. Because of this, President Bush has had the lowest percentage of his court nominees confirmed by any President in recent memory.

What's this debate all about? It's basically a debate about what the Constitution requires us to do, and it's a debate about fairness. These judicial nominees have been waiting for years to be confirmed - they have majority support here in the Senate.

But a minority of Senators is so opposed to President Bush's appellate court nominees, that it won't allow the Senate to give them an up or down vote. The Democrat leadership won't allow the Senate to exercise its constitutional duty of advice and consent. The Democrat leadership won't allow me to exercise my constitutional responsibility. They're denying me that responsibility. That's not right. The Constitution demands an up or down vote. Fairness demands an up or down vote.

Some have claimed that a rule change on this matter is a violation of Senators' free speech or minority rights. But it isn't. There isn't anything out the ordinary about the Majority wanting to exercise its right to alter Senate procedures by setting new precedent. For example, in 1977, 1979, 1980 and 1987, Senator Byrd led a Democrat Senate majority in setting precedents to restrict minority rights.

The Republicans, who were the minority party, did not respond by shutting down the Senate or stalling legislation.

On the other hand, the actions of the Senate Democrats is unprecedented obstruction, plain and simple. The Democrat leadership isn't interested in additional debate on the nominees. This isn't about the Minority wanting to exercise speech and debate on the nominations. The Republican Majority Leader has offered Democrats as much time as they want for debate. Yet the Democrat Leader indicated in so many words that the Democrats wouldn't agree to any time agreement. The Democrat leadership has taken the position that it won't ever allow an up or down vote on these nominees. The Minority Leader has indicated that there's no time long enough for the Democrats to debate these nominations.

I clearly understand the importance of filibusters and wouldn't want to see them done away with completely. However, it's also important to make a distinction between filibustering legislation and filibustering judicial nominations.

The interests of the Minority party are protected in the United States Senate. Filibusters are allowed to ensure that the Minority has a voice in crafting legislation. When working on a bill, it's possible to make changes and compromises to legislative language until you reach the 60 votes needed under the Senate rules to bring debate to a close. Unlimited debate ensures that compromise can take place.

Judicial nominees are very different from legislation. A person cannot be "redrafted" or compromised on as bills can. You can't cut off a left arm of a judicial nominee and put on a new left arm.

For judicial nominations, it's the Senate's responsibility to determine whether the nominees are qualified for the positions they're nominated to, and to vote them up or down. Throughout our nation's history, it's only taken a majority of Senators to determine a nominee's qualification. That's a history worth continuing.

So the reality about the Democrat Leadership's filibuster is that the Minority wants to block filling appellate court judgeships by requiring 60 votes to proceed to the nominations. But no other President has been required to get 60 votes for his judicial nominees. No other judicial nominees needed to pass the 60 vote hurdle, a supermajority vote. Many federal judges on the bench today would have never made it, not with that requirement.

In fact, all these Senators here got elected by a simple majority - 50% of the vote. If we had that supermajority rule for Senators, I can assure you that a lot of my colleagues wouldn't be here today. Why are Senators now wanting to approve judges only if they can get 60% of the vote?

The reality is that no other Senate majority has been excluded from the judicial confirmation process in over 200 years. We need to restore tradition and the law to the judicial process - we need to give these nominees an up or down vote. We need to stop this systematic denial of our advice and consent responsibility by use of the filibuster.

I've been a member of the Senate since 1981. Before I got here, I was in the House of Representatives since the early 70's. I love this body, and have worked very hard to be a productive Senator.

I want to do what is best for the Senate, for my constituents, for my country. That's what I was elected to do. I believe that the Republican Majority Leader also is trying to do what he thinks is the best thing for our country, by moving to reestablish over 200 years of Senate tradition of giving judicial nominees up or down votes. This won't destroy the Senate, it'll restore the Senate to its traditions and to the Constitution. I think it's just plain hogwash to say that moving to make sure the rule is to give judicial nominations up or down votes will hurt our ability to reestablish fairness in the judicial nominations process. It won't hurt Minority rights. It'll reestablish regular order. It'll be fair for both Republicans and Democrats alike.

All Majority Leader Frist wants is a chance to vote these nominees up or down. If these individuals don't have 51 votes, they'll be rejected. That'll be it. But if these individuals do have 51 votes, then the Constitution says that they'll be confirmed.

If a Senator disapproves of the individual, then vote against the nominee. But don't deprive the people of the right to support a nominee through their elected representative.

Some claim that many judicial nominees were filibustered by Republicans, particularly when President Clinton was in office. Well, that isn't accurate, to say it nicely.

Very few people, either inside or outside this chamber, have been as involved with the issue of judicial nominations and the use of the filibuster as I have. As a long time Chairman of the Judiciary Subcommittee that oversaw the federal courts, I have a unique perspective on the debate before us.

First, when the Democrats were in the Majority in the Senate, they blocked 30 of President Reagan's nominees and 58 of President Bush, Sr.'s nominees in the Judiciary Committee. Then, in the last few years of President Clinton's Administration, many Republicans became disillusioned with a number of the nominees that Administration had sent to the Senate. We felt that our own Republican leadership was allowing out of the mainstream nominees to be confirmed.

This all came to a head with the nominations of now Ninth Circuit judges Paez and Berzon. At that time, we had a Democrat President and a Republican controlled Senate. There was serious talk of filibustering these nominees. I've heard some Democrats and ill-informed pundits try to make the case that Paez and Berzon were filibustered.

Well, guess what? Those nominations were not filibustered.

The reality is that the Republican leadership, including the Chairman of the Judiciary Committee at the time, argued that there had never been a filibuster of an appellate court nominee. The Republican leadership argued Republicans shouldn't cross that Rubicon and set the precedent because then it'd be used against us in the future with a Republican Administration. So, it was decided there wouldn't be a filibuster and we wouldn't set that precedent. There would be a cloture vote, but everyone knew the cloture vote would prevail and the nominees would be confirmed with a majority vote.

So, the members who wanted to filibuster decided to go along with the leadership's wise counsel, even though these members never really trusted that the Democrat leadership would follow our example. I voted for cloture, but then voted against the nominees. I wasn't alone. Other Republican Senators did the same thing. But in the end, unfortunately, those members were right not to trust the Democrat leadership, because the Democrat leadership has now crossed the Filibuster Rubicon.

But we aren't only being denied the ability to perform our constitutional duty in the judicial selection process. This move to filibuster is upsetting the checks and balances and separation of powers principles our nation is founded on. The Democrats are the ones who are upsetting the checks and balances - they want to grind the judicial process to a halt for appellate court nominees so that they can fill the bench with individuals that have been rubberstamped by the left wing extreme groups.

Let me say something about the nominees that we have before us. Priscilla Owen and Janice Rogers Brown are both highly qualified individuals, with exceptional legal abilities. They are talented women, respected women. They are true pioneers. But, they've been drawn into the web of the far left wing special interest groups.

These women have been called outside the mainstream and unworthy of the federal bench. They've been labeled, among other things, as "activist", anti-civil rights, and anti-consumer. These claims are just not true. And the claims charged against other Bush judicial nominees are just as false. All these outrageous claims have consequences.

The travesty is that Priscilla Owen and Janice Rogers Brown have been waiting for years to be confirmed. The travesty is that worthy nominees, like Miguel Estrada, withdrew their nominations. The travesty is that a nominee, like Charles Pickering, is trashed. The travesty is the good name of a nominee, like William Pryor, is dragged through the mud.

Ripping to shreds the reputations of these individuals with unfounded allegations is unacceptable. This tactic just sends a clear message to good people who want to serve our country that they'll have to endure outlandish and baseless attacks on their records and character.

The Democrats are doing this because they're using a far-left litmus test to satisfy their left wing, out of the mainstream, special interest groups. So when the Democrat Leadership says that these nominees are outside of the mainstream, they're basically saying that these individuals haven't been approved by their allies, the far left special interest groups.

But judicial nominees shouldn't be subject to any litmus test. They shouldn't be subject to an ideology litmus test. A nominee should not be opposed, as Priscilla Owen and Janice Rogers Brown are being opposed right now, because they will strictly follow the law, rather than legislate the left wing's agenda from the bench.

Moreover, history has proven the wisdom of having the President place judges with the support of the majority - not supermajority - of the Senate. That process ensures balance on the courts between judges placed on the bench by Republican Presidents and those placed on the bench by Democrat Presidents.

The current obstruction led by Senate Democratic leaders threatens that balance. Priscilla Owen and Janice Rogers Brown deserve an up or down vote. It's high time to make sure all judges receive a fair up or down vote on the Senate floor. Up or down votes for the judicial nominees of both Republican and Democrat Presidents alike.

In my town meetings across Iowa, I hear from people all the time - why aren't the judges being confirmed? I think most people understand that the process is being politicized to the point that good men and women are being demonized and their records distorted to an unprecedented level. I hear from Iowans all the time that they want to see these nominees treated in a fair manner, and they want to see an up or down vote. The Democrat leadership likes to say that the Republicans are the ones that are changing the rules. But that just isn't true.

The Democrats are the ones that have engaged in extreme behavior and tactics, pulling out all the stops to defeat well qualified nominees who would have majority support of the Senate if they were given an up or down vote. They are the ones who have distorted the rules to the point that the Senate is being denied the ability to fulfill its constitutional duty.

Filibustering judicial nominees may be touted as standing firm on principle. On the contrary, what it boils down to is an obstruction of justice. Let's do the American people a favor. Let's stop the theatrics and get back to the people's business. All of the rallies and political spin-doctoring aren't clearing any court dockets. And they aren't impressing the American public either.

Let's debate the nominees and give our advice and consent. It's a simple yea or nay. Filibustering a nominee into oblivion is misguided warfare and the wrong way for the minority party to leverage influence in this body. Threatening to grind legislative activity to a standstill if they don't get their way is like the bully on the playground. Let's do our jobs.

Nothing is "nuclear" about asking the full Senate to take an up or down vote on judicial nominees. This is how the Senate has operated for over 200 years. The reality here is the Democrats are the ones who are turning Senate tradition on its head by installing the filibuster against the President's judicial nominees.

The Senate has a choice. We can live up to our constitutional duties to advise and consent President Bush's judicial nominations, or we can surrender our constitutional duties to the left wing special interest groups who apparently control the Democratic party. This Senator will choose to follow the Constitution.

We need a return to a respectable and fair process. We need a return to the law and the Constitution. We need a return to the Senate's longstanding tradition. We need an up or down vote for these judicial nominees.