04.02.19

Senate Floor Address Of Sen. Patrick Leahy On The GOP Push To Change The Senate Rules To Ram Thru Trump Nominees

Address of Senator Patrick Leahy (D-Vt.),
Vice Chairman, Senate Appropriations Committee,
Former Chairman, Senate Judiciary Committee,
On Consideration of S.Res.50,
To Reduce Post-Cloture Debate Time for Certain Nominations
Senate Floor

April 2, 2019

To say that it is disappointing that the Senate will have a vote today in relation to the resolution to reduce post-cloture debate on nominations is an understatement. It is a resolution in search of a problem. It is an erosion of the Senate’s responsibility – our sworn constitutional duty – to advise and consent to the President’s nominations. It is a removal of one of the last guardrails for quality and bipartisanship in our nominations process.

It is a short-sighted, partisan power grab. And it is motivated by the far right’s desire to flood the federal judiciary with young, ideological nominees, many of whom– as we have seen time and again in the Judiciary Committee – are simply unqualified to serve on our nation’s courts. Post-cloture time is a critical tool for Senators, especially those who do not sit on the Judiciary Committee, to vet nominees for lifetime judgeships. Last Congress, more than one nominee had to withdraw after scrutiny during this time led to Republicans withdrawing their support.

But under Republican leadership, the nominations process in the Senate is about quantity, not quality. Let’s review: In the past two years Republicans have disregarded the important role of the ABA by denying it time to evaluate judicial nominees or ignoring unqualified ratings. Republicans have routinely stacked hearing panels with multiple circuit court nominees over Democrats’ objections. Republicans have even held several hearings over recess despite our objections.

And, upon the White House changing hands from a Democrat to a Republican, Republicans abruptly changed their policy on blue slips, abandoning the long-held tradition of honoring blue slips from home-state senators on circuit court nominees. When I was chairman of the Judiciary Committee I respected the input of all home state senators no matter who was in the White House. But Republicans only seem to insist on honoring blue slips when a Democrat is in the White House. Look no further than the Judiciary Committee’s markup this week, where it will ignore the opposition of two home state Senators and members of the Committee – including the Ranking Member – and advance two circuit nominees for whom blue slips were not returned.

Proponents of this resolution claim it’s necessary due to the slow pace at which President Trump’s judicial nominations are being confirmed. But let’s quickly review that, too: In his first two years, President Trump had more judicial nominations confirmed than President Obama did in his first four years. In just two years, he had almost double the number of circuit nominees confirmed compared to President Obama’s first four years. In fact, President Trump had more circuit nominees confirmed in his first two years than Presidents Obama, Bush, Clinton, and H.W. Bush.

I need no lectures from Senators in this chamber about the importance of judicial nominations, or the methods by which members can frustrate the confirmation process. I’ve lived it. I oversaw it. And regardless of whether it was a Republican president or a Democratic one, I respected the role of home state Senators, the role of the Senate as a whole, and our roles as individual Senators to evaluate the nominations before us.

In 2013, in a bipartisan vote, the Senate agreed to a resolution to reduce post-cloture debate. It was good for the life of the 113th Congress, not the permanent rules change proposed by Senate Resolution 50. But let’s also remember all the facts, not just some of them: All of the other guardrails on the nominations process were intact at the time. Nominations were thoroughly vetted by both the administration and the Committees here in the Senate. Nominees were still subject to a 60-vote threshold. For judicial nominations, including circuit nominees, cloture was never filed on the day in which a nomination was reported to the floor. And for judicial nominations, hearings were not routinely stacked with multiple circuit court nominees. The prerogatives of home-state senators, and their in-state judicial selection committees, were respected, both before and after the resolution.

I understand that the Republican majority now wants to cry foul and accuse Democrats of needlessly holding up our confirmation process. I could look back at the glacial pace at which Republicans allowed us to process judicial nominations for the first six years of the Obama administration. That includes from the very beginning, in 2009, when Republicans inexplicably withheld their consent to consider President Obama’s very first circuit nominee – one supported by his Republican home state Senator, the respected Richard Lugar. And I could look back at the shameful treatment of Merrick Garland to fill a critical vacancy on the Supreme Court, another political power grab that undermined the legitimacy of both the Senate and the courts.

Looking back might provide a glimpse at history, but will do little to restore the comity that was a hallmark of the United States Senate when I first came here. Looking forward, adopting this resolution will do little to restore that comity, either. It will set us further back, and will further polarize the United States Senate – what is supposed to be the world’s greatest deliberative body. And this resolution will only further contribute to the politicization of our courts, which President Trump clearly views as an extension of his power.

When Senate Rules Committee held a hearing to evaluate this proposal back in 2017, I remarked that the word “obstruction” has become a term thrown about in the Senate whenever unanimous consent is not provided. Duty is a word we hear too little. Vermonters have, time and again, given me their trust to not only represent Vermont values here in Washington, but to protect the centuries-old institutions that have sustained our democracy. The Senate should reject this resolution. We cannot abandon the traditions that have made the Senate, at its best, the conscience of the nation, in exchange for short-term political gain.

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