In Their Own Words: The Majority's Prerogative

May 01, 2009 10:27 am ET

In 2005, many Republican Senators went so far as to claim the filibuster of judicial nominees was unconstitutional. Now four years later, with President Obama's first Supreme Court appointment looming, will they remain consistent in their position or commit one of the most blatant acts of hypocrisy in the 220-year history of the United States Senate?

Sen. Lamar Alexander (R-TN)

"I am beginning to think it is a train and that there is not much way to avoid a train wreck. The train wreck I am talking about is a threat by the minority to 'shut the Senate down in every way' if the majority adopts rules that will do what the Senate has done for 200 years, which is to vote up or down the President's appellate judicial nominees." [Senate Floor Speech, 4/12/05]

Sen. Kit Bond (R-MO)

"By resorting to filibustering judicial nominees who have the support of a majority of Senators, which began in 2003 by colleagues on the other side of the aisle, they are throwing overboard 214 years of Senate courtesy and tradition...The Constitution of the United States does not contain a word about filibusters. The Federalist Papers do not contain the word 'filibuster.' Rather, the Constitution lays out the standards for confirming judges. It does not require a 60-vote majority for confirmation. It requires a majority vote to confirm members of the Federal judiciary." [Senate Floor Speech, 5/19/05]

Sen. Sam Brownback (R-KS)

"It's important to note that the Constitutional option is still on the table. If one of the president's nominees is filibustered at any point in the future, I will support the Senate leadership's implementation of the Constitutional option. [...] All of the president's nominees-both now and in the future-deserve a fair up or down vote, regardless of whether some members of the Senate feel they can be filibustered based on whatever they define to be extraordinary circumstances." [Brownback.Senate.gov, "Brownback Statement on Judicial Nominees," 5/24/05]

Sen. Jim Bunning (R-KY)

"The United States Senate faces an unprecedented crisis brought on by the minority party. Judges who have been nominated by the President of the United States to the federal bench have been held up by a filibuster and cannot get a fair up-or-down vote. [...] I support a change in the rules of the Senate to allow for an up-or-down vote on judicial nominations. We must not let the minority party circumvent the Constitution, and take away the right of the President to have his judicial nominees voted on by a simple up-or-down vote." [Bunning.Senate.gov, "The Duty To Vote Up-Or-Down," 5/29/05]

Sen. Richard Burr (R-NC)

"If anything, we are saying, for 214 years this institution, the Senate, had a gentleman's agreement, and that agreement was that the filibuster would never be used for judicial nominees. For 214 years they showed restraint, even though the rule allowed them to do it because they understood that the process was so important to make sure the best and the brightest found their way to the bench. For 214 years a handshake was all it took [...] What happened for 214 years? This debate is about principle. It is about allowing judicial nominees an up or-down vote on the Senate floor. And I believe it is an issue of fairness." [Senate Floor Speech, 5/19/05]

"But denying these patriotic Americans, of both parties, who seek to serve this country an up-or-down vote is simply not fair, and it certainly was not the intention of our Founding Fathers when they designed and created this very institution." [Senate Floor Speech, 4/20/05]

Sen. Saxby Chambliss (R-GA) & Sen. Johnny Isakson (R-GA)

"We both wholeheartedly support discussion and debate regarding judicial nominees. It is important for each judicial nominee to have his or her qualifications examined, undergo thorough background checks and be asked tough questions. But it is also important that after a time of extensive debate, there must also be a time for a decision. [...] Like many Americans, we believe that our nation's judicial system should be put above partisan politics and under no circumstances should either party obstruct the courts from doing their important work. In this particular case, the Senate must give each nominee a fair, up-or-down vote to fulfill its constitutional duty." [The Atlanta Journal Constitution via Isakson.Senate.gov, "Filibusters obstruct the Senate's duty," 5/24/09]

Sen. Tom Coburn (R-OK)

"For the first 214 years of our nation's history, the president has been able to nominate judges and expect that those nominees would receive the courtesy of a straight up-or-down vote on the floor of the Senate. During this time, the Senate operated within its Constitutional 'advice and c onsent' role. The president would nominate judges of his choice with advice from the Senate. The Senate would then either consent and confirm that nominee by a majority vote or reject that nominee...In 2003, however, obstructionist senators decided the system that was designed by our founders and practiced for 214 years was no longer fair. If the minority didn't like the judicial philosophy of one of President Bush's nominees they concluded it was their right to deny them the courtesy of an up or down vote through a filibuster. Instead of needing 51 votes to be confirmed, the minority unilaterally declared that judges who failed their liberal litmus test would need 60 votes to break their filibuster. Never before in American history has a judicial nominee with clear majority support been denied an up-or-down vote." [Coburn.Senate.gov, "President Bush's Nominees Deserve a Vote," 5/11/05]

Sen. Thad Cochran (R-MS)

"There should be no question in anyone's mind about my intentions. I will work in concert with our leader, and with the distinguished Majority Whip, Mr. McConnell, to end filibusters of judicial nominations in the Senate." [Cochran.Senate.gov, "Senator Thad Cochran Announces Support," 4/14/05]

Sen. John Cornyn (R-TX)

"I believe, about the process of reestablishing the precedent of majority rule that had prevailed for 214 years in the Senate, that would say any President's nominees, whether they be Republican or Democrat, if they have the support of a majority of the Senate, will get an up-or-down vote in the Senate. Senators who believe these nominees should be confirmed can vote for them and those who believe they should not be confirmed can vote against them." [Senate Floor Speech, 5/24/05]

"And we need to get a fresh start. And that means, I believe, an up-or-down vote for all presidents' nominees whether they be Republican or Democrat... We need a permanent solution to this problem. And I believe it should be along the lines that I suggested, that each president's nominees would be treated exactly the same and not dependent on who happens to take up the decision to block, in a partisan fashion, a bipartisan majority from being able to cast an up-or-down vote." [CQ Transcriptions "U.S. Senator John Cornyn Holds a News Conference on Judicial Nominees," 5/9/05]

Sen. Mike Crapo (R-ID)

"I think it should be clarified to the American people that the fact we are now seeing a filibuster sustained against nominees of the President turns the Constitution on its head and begins a very dangerous precedent with regard to how the nominees for the judicial branch are treated by this Senate." [Senate Floor Speech, 11/12/03]

"We are pleased that three of the President's judicial nominees will receive fair up-or-down votes - it is about time. However, we continue to stress that the Constitution requires the Senate to hold up-or-down votes on all nominees. We will continue to work to ensure that is the case." [Craig/Crapo Press Release: "Craig, Crapo React to Judicial Nominees Deal," 5/25/05]

Sen. Jim DeMint (R-SC)

"How can I advise and consent without the ability to cast a vote? Forty-one senators are preventing a bipartisan majority from carrying out the duty we were elected to fulfill. In 2003, Democrats used the filibuster to block up-or-down votes on 10 nominations - all had bipartisan, majority support. This was unprecedented. [...] We need to end the undemocratic blockade of judicial nominees, which is why I have urged Senate Majority Leader Bill Frist to consider the constitutional option. Senators were elected to advise and consent, not to grandstand and obstruct." [The State via Demint.Senate.gov, "It's Time for Votes on Judicial Nominees," 5/22/05]

"My goal is to confirm highly qualified judges by ensuring timely up-or-down votes for all nominees... Every nominee, no matter if the President is Democrat or Republican, deserves an up-or-down vote," [US Fed News "Sens. DeMint, Freshman GOP Call for end to Judicial Filibusters," 4/20/05]

Sen. John Ensign (R-NV)

"We must put an end to this mockery of our system before it becomes impossible to undo the damage.  I am sure a lot of Americans believe this is politics as usual. It is not. Filibustering of judicial nominations is an unprecedented intrusion into the longstanding practice of the Senate's approval of judges. We have a constitutional obligation of advise and consent when it comes to judicial nominees. While there has always been debate about nominees, the filibuster has never been used in partisan fashion to block an up-or-down vote on someone who has the support of a majority of the Senate." [Senate Floor Speech, 5/11/05]

Sen. Michael Enzi (R-WY)

"One has to wonder what Justice Marshall would think about what is going on in the Senate today. Would he agree with my colleagues across the aisle that it is all right to put partisan politics and partisan bickering ahead of the rights of judicial nominees if those impacted are just a small fraction of society. Would he agree with them that justice denied for a few was acceptable? Or would he hold true to the basic tenets of the Constitution that all men are created equal and that everyone has the right to their day in court? [...] I think this is wrong, and I sincerely hope we move off this obstructionism and have an up or down vote on these highly qualified individuals, whose talents, experience and integrity can easily be considered the ideal for what we want in judges. [...] If you don't agree with them, or feel they are not qualified, then vote against them. That is your prerogative and duty as a Senator. But do not continue to deny justice for the nominees or the courts any longer." [Senate Floor Speech, 11/12/03]

Sen. Chuck Grassley (R-IA)

"History has proven the wisdom of having the President place judges with the support of the majority of the Senate. That process ensures balance on the court between judges placed by Republican Presidents and those placed by Democrat Presidents. The current obstruction led by Senate Democratic leaders threatens that balance. It's time to make sure all judges receive a fair vote on the Senate floor." [Grassley.Senate.gov, "Talking Judges to Death," 5/8/05]


"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." [Senate Floor Speech, 4/23/05]

Sen. Judd Gregg (R-NH)

"'There never was a filibuster of a majority-supported judicial nominee until a couple of years ago... It is inconsistent with the Constitution and with the Framers' intent as documented in the Federalist Papers and the notes of James Madison." [Portsmouth Herald, "N.H. voice key on filibusters," 5/19/2005]

"From a constitutional perspective, judicial nominations have the right to an up or down vote in the Senate, and the filibustering of these nominations is inconsistent with over 200 years of tradition in the Senate and distorts our system of checks and balances." [Portsmouth Herald, "N.H. voice key on filibusters," 5/19/2005]

Sen. Orrin Hatch (R-UT)

"All we are asking is the 214-year tradition of the Senate that judicial nominees not be filibustered be followed. That has been the tradition of the Senate up until President Bush became President. All we are asking is that every one of these qualified nominees who have reached the floor receive an up-or-down vote. That is all we are asking." [Senate Floor Speech, 4/27/05]

"...I think we should bind both Democrats and Republicans that presidential nominees for the judiciary deserve an up-and-down vote once they reach the floor..." [NPR, "Orrin Hatch Discusses Debate in Senate," 5/19/05]

Sen. Kay Bailey Hutchison (R-TX)

"In all these cases, she had a majority of votes in the Senate for confirmation, but she is not on the Fifth Circuit Court of Appeals today. Why? Because her nomination is being filibustered by Democrats, and she has been held to a standard of 60 votes instead of 51. That is changing the Constitution of the United States. [...] It is not the rule that is being changed in this debate. It is the precedent of the Senate, for 200 years, that was changed in the 108th Congress, by requiring 60 votes for the confirmation of judges. And we are now looking to reaffirm the will of the Senate to do exactly what the Constitution envisions; and that is, a 51-vote majority for judges. Two hundred years of Senate precedent is being torn apart. Through Democrat majority control and Republican majority control over the years-the filibuster was not used as it was in the last session of Congress." [Senate Floor Speech, 4/27/05]

"They have gotten away with obstructing by exploiting the filibuster and denying Justice Owen a direct vote. Now, unfortunately, we must take action to ensure President Bush's nominees are getting the up-or-down vote they deserve." [San Antonio Express-News, "Senate showdown looms on judges," 4/22/2005]

Sen. James Inhofe (R-OK)

"But the Democrats, who cannot muster a majority to oppose him, are seeking, in effect, to change the Constitutional majority-vote requirement. By sustaining this filibuster, they are asserting that 60 votes, not 50, will be required to approve Mr. Estrada. If successful, their effort will amount to a de facto amendment to the Constitution. This outrageous grab for power by the Senate minority is wrong and contrary to our oath to support and defend the Constitution," Inhofe said. [Senate Floor Speech, 3/11/03]

Sen. John Kyl (R-AZ)

"For 214 years it has been the tradition of the Senate to approve judicial nominees by a majority vote. Many of our judges and, for example, Clarence Thomas, people might recall, was approved by either fifty-one or fifty-two votes as I recall. It has never been the rule that a candidate for judgeship that had majority support was denied the ability to be confirmed once before the Senate. It has never happened before. So we're not changing the rules in the middle of the game. We're restoring the 214-year tradition of the Senate because in the last two years Democrats have begun to use this filibuster. [...] This is strictly about whether or not a minority of senators is going to prevent the president from being able to name and get confirmed judges that he chooses after he's been elected by the American people. And it's never been the case until the last two years that a minority could dictate to the majority what they could do." [NewsHour with Jim Lehrer, "Judicial Wars," 4/25/05]

"All we seek is a return to 214 years of tradition in allowing presidential nominees the courtesy of an up-or-down vote... These men and women are great Americans who have devoted their lives to public service, universally regarded for their intelligence and integrity...Calling them names like 'radical' and 'extreme' is a partisan affront not only to them personally but also to the voters who have supported them and organizations like the American Bar Association that have declared them well suited for the bench " [Capitol Hill Press Releases "Kyl Calls for 'Up or Down' Vote on Judicial Nominees," 5/18/05]

"No. It's not a religious debate at all. I know that some of the media have portrayed it as such. I think that both Democrats and Republicans are talking to all kinds of folks, but I know because Sen. Durbin and I have both discussed this in the Judiciary Committee that neither of us believe that there should be any religious litmus test. This isn't about religion at all. This is strictly about whether or not a minority of senators is going to prevent the president from being able to name and get confirmed judges that he chooses after he's been elected by the American people. And it's never been the case until the last two years that a minority could dictate to the majority what they could do." [PBS News Hour, 4/25/05]

"Well, as a member of the bar, it's not my inclination to criticize justices by name or even decisions that they've rendered except on the merits. I don't agree with all the decisions of the Supreme Court. But it is wrong to believe that because people of faith happen to disagree with pronouncements of the Supreme Court and choose to call some of those decisions arrogant to therefore suggest that they don't have a part to play in the national debate.  Again, let's not get focused on that issue. It has nothing to do with the rules of the Senate and changing 214 years of tradition here in the United States Senate. That's following a tangent that's really not relevant to the debate that we're going to be focused on here." [PBS News Hour, 4/25/05]

"Just quickly respond to one point here: There has never been a successful filibuster of a nominee that had majority support in the history of the United States Senate. The incident that was mentioned by Sen. Durbin was a situation in which Trent Lott - the then majority leader - worked with Tom Daschle the then minority leader to be sure that two controversial choices of President Clinton got a vote up or down on the Senate floor. And we voted to allow them to have a vote. Now I voted for one of the candidates and I voted against one of the candidates. That's what we ought to allow here is an up or down vote. But we didn't stop those candidates from being voted on. They're sitting on the Ninth Circuit Court of Appeals right now." [PBS News Hour, 4/25/05]

Gwen Ifill (PBS): "Well, let's talk about what Sen. Durbin just outlined in which the Democrats would allow debate only on the issues which they cared about and they would basically close off debate on anything else. What do you think about that approach?"  Sen. John Kyl (R-AZ): "Well, I don't think it's productive obviously. And it kind of reminds me of the schoolyard bully. When the umpire makes a call against him, he picks up his ball and goes away. I don't think the American people will really appreciate that. [...] But what my colleague is talking about is using among other things the legislative filibuster. That's not going to go away. Senators want their right to filibuster. And they'll have it. But what would occur as a result of the question that will be asked to the presiding officer in this debate is basically, is it the tradition of the Senate to have an up or down vote to give these nominees an up or down vote with the majority vote prevailing or is the last two years the real precedent of the Senate to require 60 votes? And I think that the presiding officer will say no the tradition of the Senate has been that a majority vote prevails." [PBS News Hour, 4/25/05]

Sen. John Kyl (R-AZ): "Well, I'll tell you what is shutting down the judiciary is not filling vacancies. We have according to the commission on the courts several emergency judicial emergencies, situations in which we need to put judges in to vacant positions. They're not -- we're not being able to act on them. It really is true that justice delayed is justice denied. So we need to give these judges an up or down vote. That's all we're asking for, and if some of my colleagues think that they're too conservative or in some other way unqualified then vote against them." Gwen Ifill (PBS): "And should there be legislative oversight over individual judicial decisions?" Sen. John Kyl (R-AZ): "I don't think the Constitution allows us judicial oversight over individual decisions. Our authority under the Constitution is to define the jurisdiction of certain of the courts. That's really the only thing I think that constitutionally we can do. Now, I mean obviously we could change federal laws that the court has made pronouncements on."  [PBS News Hour, 4/25/05]

Sen. Mel Martinez (R-FL)

"As part of my duties as Senator, according to the Constitution, I have the obligation to provide 'advise and consent' on judicial nominees. I am unable to fulfill this duty when qualified judicial nominees are denied the opportunity for an up-or-down vote on the Senate floor [...] It is an integral part of maintaining a high-caliber judiciary that nominees are treated fairly and with respect. If we continue down this path and leave nominees in limbo for years - as has become common practice - we will be unable to recruit high-level attorneys to leave private practice and serve our federal judiciary. These people deserve their vote on the Senate floor." [Martinez.Senate.gov, "Judicial Nominees Deserve An Up Or Down Vote," 5/19/05]

Sen. Mitch McConnell (R-KY)

"Because of the unprecedented obstruction of our Democratic colleagues, the Republican conference intends to restore the principle that, regardless of party, any President's judicial nominees, after full debate, deserve a simple up-or-down vote.  I know that some of our colleagues wish that restoration of this principle were not required. But it is a measured step that my friends on the other side of the aisle have unfortunately made necessary. For the first time in 214 years, they have changed the Senate's 'advise and consent' responsibilities to 'advise and obstruct.' [...]Given those results, many of us had hoped that the politics of obstruction would have been dumped in the dustbin of history. Regretfully, that did not happen." [Senate Floor Speech, 5/19/05]

"What we're talking about here is not the filibuster rule overall, but getting back to the practice of allowing judicial appointments for judge candidates who have a majority support in the Senate to have an up or down vote." [CBS News, The Osgood File, 4/25/05]

 "...I don't want to get too technical here, but the point is, what Senator Frist is considering doing is not unprecedented. It was done by Senator Byrd when he was majority leader. What is unprecedented is the fact that the Senate, for the first time in 200 years, last Congress chose to filibuster judges for the purpose of defeating them. That had never been done before in the history of the Senate. That's what's new...What Senate Republicans are contemplating doing and what I think they should do is to get us back to the precedents that were established prior to the last Congress, in which judicial appointments were given an up-or-down - that is, a majority - vote." [Fox News Sunday, 3/27/05]

"Let's get back to the way the Senate operated for over 200 years, up or down votes on the president's nominee, no matter who the president is, no matter who's in control of the Senate. That's the way we need to operate." [Los Angeles Times, "The Nation; Clock Ticks on Effort to Defuse Senate Battle," 5/23/05]

Sen. Lisa Murkowski (R-AK)

"I take very seriously my obligation under the Constitution to provide the advice and consent to the judicial nominations of individuals who are nominated by the President to serve on the Federal bench. I have heard repeatedly over the hours the term 'rubberstamp,' there is a rubberstamp approval. Those on my side of the aisle would automatically take the President's nominees. I do not take part of my job to mean that my vote is intended to be a rubberstamp of approval for the President's nominations to these critical judicial positions. I am frustrated that after serving in the Senate for almost a year, and contrary to what some Members may assert, the Senate has not been permitted to vote up or down on the merits, on the qualifications of the individuals who are embroiled in this current dispute. Rather, we have been prevented, I have been prevented as a Member of the Senate, as an individual, from voting for or against a nomination by a legislative procedure, legislative procedural rules unique to this body." [Senate Floor Speech, 11/12/03]

Sen. Jeff Sessions (R-AL)

"Since the founding of the Republic, we have understood that there was a two-thirds supermajority for ratification and advice and consent on treaties and a majority vote for judges. That is what we have done. That is what we have always done. But there was a conscious decision on behalf of the leadership, unfortunately, of the Democratic Party in the last Congress to systematically filibuster some of the best nominees ever submitted to the Senate. It has been very painful." [Senate Floor Speech, 5/23/05]

"This past election in large part hinged, as George Allen said, on a debate over the judiciary and whether or not obstruction was justified. I think the American people sent a clear message and I believe it's time for this Senate to make sure that judges get an up-or-down vote." [CQ Transcriptions "U.S. Sen. Allen & Other Senate Republicans Hold a Media Availability on the Possibility of a Democrat Filibuster," 3/15/05]

Sen. Richard Shelby (R-AL)

"As a U.S. Senator, I believe that the review of judicial nominations is one of the most important responsibilities of the Senate, and I firmly believe that each of the President's nominees should be afforded a straight up-or-down vote. I do not think that any of us want to operate in an environment where federal judicial nominees must receive 60 votes in order to be confirmed. To that end I firmly support changing the Senate rules to require that a simple majority be necessary to confirm all judicial nominees, thus ending the continuous filibuster of them. Federal judges are invested with extensive power and are given lifetime tenure. Therefore, I pay particularly close attention to the records, backgrounds, and philosophical views of all judicial nominees prior to voting. Given the tremendous shortage of federal judges, it is my hope that the Senate will move quickly to confirm judicial appointments." [Shelby.Senate.gov, "Issue Statements: Judiciary," accessed 4/15/2009]

Sen. Pat Roberts (R-KS)

"Let me talk about cost. Taxpayers spend $5.1 billion for the Federal judiciary every year. The American people are paying for fully staffed courts and are getting obstructionism and vacant benches. Reckless behavior such as this is irresponsible and a waste of taxpayer dollars." [Senate Floor Speech, 11/12/05]

"You're getting my dander up now. It's not only Estrada; it is a new standard. If this sticks, if the filibuster sticks, it will mean that you will have to have 60 votes for any nominee. We are really changing the constitutional design of what it takes to basically nominate and approve any judge." [Fox News Sunday, 03/03/03]

Sen. John Thune (R-SD)

"I still believe that all judicial nominees with majority support deserve the fairness of an up or down vote on the Senate floor." [Thune.Senate.gov, "Senator Thune statement on judicial nominee compromise," 5/23/05]

"According to the Constitution, the President is entitled to nominate the individuals he desires to have on the courts, and we in the Senate must determine whether the nominee is fit and qualified. There should be no ideological litmus test for nominees. If a nominee is fit and qualified, he or she should be confirmed." [Senate Floor Speech, 9/28/05]

Sen. David Vitter (R-LA)

"This issue is primarily one of fairness to these individual nominees. As stated by our Majority Leader on numerous occasions, this chamber can confirm or reject nominees, and we will accept the outcome. We insist, however, on a yes or no vote on judicial nominees. [...] I think that every nominee deserves a vote. It's a matter of fairness." [Vitter.Senate.gov, "Vitter Supports Senate Vote on Judicial Nominees," 5/19/05]

Sen. George Voinovich (R-OH)

"Comparing the Senate now to the Senate prior to the 108th Congress when filibustering of judicial nominations first occurred, I have to say that I think the old system was a lot better than what we saw in the 108th Congress. Under that system, a nominee who had the support of a majority of Senators, who was reported out of the Judiciary Committee, would get an up-or-down vote after review of the nominee's record and a robust debate. That was the fair way to proceed. It has been that way many times. It has been that way, as a matter of fact, for 214 years. No judicial nominee sent to the Senate floor who had the support of a majority of Senators was denied an up-or-down vote. There were no judicial filibusters. Thus, I do not consider the constitutional option as a change in the rules but a restoration of a Senate tradition, the tradition that filibusters." [Senate Floor Speech, 05/19/05]

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