Statement Of Senator Patrick Leahy On Executive Nominations

Yesterday was a good day for the Senate.  I want to praise the Majority Leader, who brought the Senate back from the brink, and the hard work of Senators from both parties who listened to each other during a lengthy discussion.  In particular, I thank Senator Wicker for suggesting Monday night’s bipartisan caucus, which allowed for a much-needed dialogue among all Senators, and Senator McCain for his efforts to bring both sides together.  The last time we held a bipartisan caucus meeting, in April, it was to hear Senator McCain discuss his experience as a prisoner of war.  In all my time in the Senate, that was a particularly memorable evening for me.  It is my hope these kinds of bipartisan discussions, like the one we had Monday night, will lead to better communication in the Senate and help us work together more effectively so we can address the problems that Americans face.

Until yesterday, Senate Republicans had been blocking votes on several important Executive nominations, including Richard Cordray to be Director of the Consumer Financial Protection Bureau; Gina McCarthy to be Administrator of the Environmental Protection Agency; Tom Perez to be Secretary of Labor; and three of the five nominees to the National Labor Relations Board.  Rather than arising from substantive opposition to these individual nominees, this obstruction was a partisan attempt to sabotage and eviscerate these agencies which protect consumers, the clean air and water that the American people want and deserve, and American workers.  For example, I am unaware of any personal opposition to Richard Cordray, but Senate Republicans simply refused even to allow a confirmation vote for the director of an agency that they dislike.  His confirmation last night, two years after he was first nominated, means that the CFPB is now truly empowered to protect American consumers.

During my 38 years in the Senate, I have served with Democratic majorities and Republican majorities, during Republican administrations and Democratic ones. Whether in the majority or the minority, whether the chairman or ranking member of a committee, I have always stood for the protection of the rights of the minority.  Even when the minority has voted differently than I have or opposed what I have supported, I have defended their rights and held to my belief that the best traditions of the Senate would win out and that the 100 of us who represent over 310 million Americans would do the right thing.

Yet over the last four years, Senate Republicans have changed the tradition of the Senate with their escalating obstruction, and these actions threaten the Senate’s ability to do the work of the American people.

Instead of trying to work across the aisle on efforts to help the American people at a time of economic challenges, Senate Republicans have relied on the unprecedented use of the filibuster to thwart progress.  They have long since crossed the line from use of the Senate rules to abuse of the rules, exploiting them to undermine our ability to solve national problems.

Filibusters that were once used rarely have now become a common occurrence, with Senate Republicans raising procedural barriers even to considering legislation or to voting on the kinds of noncontroversial nominations the Senate once confirmed regularly and quickly by unanimous consent.  The Majority Leader has been required to file cloture just to ensure that the Senate makes any progress at all to address our national and economic security, and a supermajority of the Senate is now needed even to allow a vote on basic issues.

That is not how the Senate should work or has worked.  The Senate has a tradition of comity, with rules that function only with the kind of consent that previously was almost always given.  The rules are not designed to encourage Senators to obstruct at every turn.  The Senate does not function if an entire caucus takes every opportunity to use obscure procedural loopholes to stand in the way of a vote because they might disagree with the result.  Without serious steps to curtail these abuses, the approach taken during the Obama administration by Senate Republicans risks turning the rules of the Senate into a farce and calls into question the ability of the Senate to perform its constitutional functions.

I was hopeful that the agreement reached earlier this year by the Majority Leader and the Republican Leader represented a serious step toward restoring the Senate’s ability to work for the American people.  I was hopeful that the Republican Senators who joined with Senate Democrats in January would follow through on their commitment to curtail the abuse of Senate rules and practices that have marred the last four years.

That is why I was so disappointed by the continued obstruction President Obama’s nominees have been facing.  This obstruction has serious consequences for the American people.  The harm being done is no more readily apparent than with the Republican effort to shut down the National Labor Relations Board.  It was critical that we reach a workable agreement with Senate Republicans to confirm nominees to the NLRB to ensure it will be able to function – rather than leave it in its current situation of facing a shutdown due to lack of quorum at the end of next month.  Shutting down the NLRB would deny justice to American workers, stripping them of their right to organize and to speak out in favor of fair wages and decent working conditions without fear of retaliation.  It would also prevent employees from creating a union, or for that matter, voting to end union representation.  Without an NLRB, employers will also be hurt because they will be unable to stop unlawful activities by unions, including unlawful strikes.  Workers and employers depend on the NLRB, and Senate Republicans should allow votes on the President’s nominees so that the Board can do its job.

Last week, some Senate Republicans declared that they could never allow a vote on the NLRB nominees who had received recess appointments to those positions, because the recess appointments have been determined by the D.C. Circuit to be illegal.  However, according to that ruling by the D.C. Circuit, a total of 141 of President Bush’s recess appointments were illegal.  I do not recall any Senate Republicans arguing that those nominees should not be allowed a vote.  

Senate Republicans should have considered President Obama’s NLRB nominees on their own merits, and, even if they would ultimately have opposed them, they should have allowed the Senate to hold an up-or-down vote.  I have no doubt that if considered on their own merits the two previously recess appointed NLRB nominees would have been confirmed and would have continued to serve the Nation well.

These filibusters have been damaging to the Senate and our Nation.  When it comes to Executive nominations, a President should have wide discretion to staff his or her administration. 

Mr. President, our form of representative democracy requires a degree of self-restraint from all of us for the legislative system to work for the good of the Nation and for the well-being of the American people.  I believe that the strong cloture and confirmation votes on Richard Cordray’s nomination yesterday reflect an acknowledgement of this principle by some Senate Republicans.  While this deal leaves in place both the majority’s ability to pursue further rules reform and the minority’s ability to filibuster executive branch nominations, I hope that neither tool will be used.  If the Senate Republicans who voted with us yesterday to invoke cloture on Richard Cordray continue to cooperate and work with us to allow fair consideration of President Obama’s, or any president’s, executive branch nominations, the deal reached yesterday will rightfully be seen as an important step in restoring the Senate’s ability to function.

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