Elizabeth Dole

Judicial Nominees - April 27, 2005

Elizabeth Dole
April 27, 2005— U.S. Senate, Washington, DC
Congressional floor speech
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Madame President, today I want to express my concern over the judicial nominations process. It is clear that this process has completely broken down.

Unfortunately, the rhetoric surrounding this important issue has become increasingly bitter over the past several weeks. Sharp words have been exchanged. The intentions of my fellow Republicans have been unfairly characterized. And my colleagues on the other side of the aisle have even gone so far as to threaten to shut down the government if the Senate were to exercise its constitutional right to set its own procedural rules. And that's nuclear.

It's time to put aside the rhetoric for a moment and look at the facts:

It is a fact that my Democratic colleagues have taken the unprecedented step of blocking not one, not two, but ten nominees of President Bush to the federal circuit courts of appeals. As a result, President Bush has the lowest appeals court confirmation rate for any first-term President since Franklin Roosevelt.

It is a fact that each of these filibustered nominees has the support of a majority of Senators, and each has received a rating of "qualified" or "well qualified" by the American Bar Association.

It is a fact that today -- for the first time in our nation's history -- a President's nominees to the federal bench are being required to receive a 60-vote supermajority, rather than the traditional majority, the up or down vote, that has been the standard for 214 years. Now that's nuclear.

And it is a fact that the ongoing filibuster of the President's nominees has prevented the Senate from fulfilling its constitutional duty—to provide advice and consent to the appointment of men and women chosen to sit on our nation's highest courts.

The former Minority Leader from South Dakota once lamented that he found "it simply baffling that a Senator would vote against even voting on a judicial nomination." I completely agree and note that every single one of President Clinton's judicial nominees who reached the Senate floor received an up-or-down vote. And contrary to what my friends across the aisle are so fond of saying, this includes the Paez and Berzon nominations to the 9th Circuit.

By imposing a supermajority requirement for judicial nominees, the Democrats are disrupting the careful balance struck in the Constitution itself between Congress and the Executive Branch and allowing political considerations to play an even larger role in the confirmation process. They should heed the words of prominent Democrat legal adviser, Professor Michael Gerhardt, who in another context has written that a supermajority requirement for confirming judges would be "problematic because it creates a presumption against confirmation, shifts the balance of power to the Senate, and enhances the power of special interests."

For the last several weeks, instead of engaging in the hard work of compromise, some of my colleagues on the other side of the aisle have chosen to travel down the political road. We have seen pro-filibuster press conferences, other political events, and even an obstruction rally with the extreme liberal group, MoveOn.org. Liberal special interest groups are now spending millions of dollars across the country on television ads in support of judicial filibusters.

One cannot help but reach the conclusion that these organizations, having failed to defeat President Bush at the ballot box in November, are now trying to advance their own liberal agenda through the only avenue left open to them: the federal courts. The judicial filibuster is their way of establishing a liberal litmus test. If you are not a liberal activist, you cannot serve on a federal circuit court of appeals—or at least that's what the new standard appears to be.

Until now, every judicial nominee with support from a majority of Senators was confirmed. The majority-vote standard was used consistently throughout the 18th, 19th, and 20th centuries— for every presidents' nominees, Republican and Democrat, even Whig, until George W. Bush's judicial nominations were subjected to a 60-vote standard.

And, let me emphasize one additional point: My friends across the aisle are well aware that no Republican, not one, is seeking to eliminate the ability of Senators to filibuster on legislative matters. We all recognize that the legislative filibuster has served an important function in our system of checks and balances. It is ironic, though, that nine of my Senate colleagues who are now working so hard to block President Bush's judicial nominees once advocated the elimination of the legislative filibuster. So who's playing politics?

In closing, I want to commend Majority Leader Frist for his patience in trying to bring both sides together to develop a reasonable compromise on this difficult issue. Certainly no other Majority Leader has been faced with such unprecedented tactics in blocking the Senate's ability to fulfill its constitutional duty to provide advice and consent.

I know Senator Frist will continue to do what he feels is right for this body and for our country. If he decides that he is confronted with no other choice but to proceed with the constitutional option, I will fully support him.

This approach is consistent with Senate precedent and has been employed in the past by some of the best parliamentary minds in this chamber.

Let me repeat - - our goal is to restore the practice, the tradition of 214 years: a simple majority vote for a President's nominees to the federal bench.

Madame President, I yield the floor.