Hatch's Top 10 List

Sen. Orrin Hatch compiled a list of the TOP 10 MOST RIDICULOUS JUDICIAL FILIBUSTER DEFENSES.

He rips apart the Democrat talking points that are being circulated by liberal politicians and given credence by the Old Media.

The following are snippets of his May 10 speech before the U.S. Senate:

In 2003, the minority opened a new front in the confirmation conflict by using filibusters to defeat majority supported judicial nominees. Mr. President, this morning I will briefly address the Top 10 Most Ridiculous Judicial Filibuster Defenses. Time permits only brief treatment, but then it was difficult to limit the list to ten.

Number 10 is the claim that these filibusters are part of Senate tradition. Calling something a filibuster, even if you repeat it over and over, does not make it so. These filibusters block confirmation of majority supported judicial nominations by defeating votes to invoke cloture, or end debate. Either these filibusters happened before or they did not.

Number 9 on the list of most ridiculous judicial filibuster defenses is that they are necessary to prevent one-party rule from stacking the federal bench. If you win elections, you say the country has chosen its leadership; if you lose, you complain about one-party rule. When your party controls the White House, the president appoints judges. When the other party controls the White House, the president stacks the bench.

Number 8 is the claim that, without the filibuster, the Senate would be a patsy, nothing but a rubberstamp for the President’s judicial nominations.

To paraphrase a great Supreme Court Justice, if simply stating this argument does not suffice to refute it, our debate about these issues has achieved terminal silliness. Being on the losing side does not make one a rubberstamp. For all these centuries of democratic government, have we seen only winners and rubberstamps? Was the famous tagline for ABC’s Wide World of Sports, the thrill of victory and the agony of rubberstamping?

Democrats did not start filibustering judicial nominations until the 108th Congress. Imagine the American history books describing the previous 107 as the Great Rubberstamp Senates. Did Democrats rubberstamp the Supreme Court nomination of Clarence Thomas in 1991 since they did not use the filibuster? That conflict lasting several months and concluding with that 52-48 confirmation vote did not look like a rubberstamp to me.

Number 7 on the list of most ridiculous judicial filibuster defenses is that these filibusters are necessary to preserve our system of checks and balances.

Mr. President, any civics textbook explains that what we call checks and balances regulate the relationship between the branches of government. The Senate’s role of advice and consent checks the president’s power to appoint judges, and we exercise that check when we vote on his judicial nominations.

The filibuster is about the relationship between the majority and minority in the Senate, not about the relationship between the Senate and the president. It actually interferes with being a check on the president’s power by preventing the Senate from exercising its role of advice and consent at all.

...In September 1999, the Senator from Massachusetts, Senator Kennedy, expressed the same view when he said: “It is true that some Senators have voiced concerns about these nominations. But that should not prevent a roll call vote which gives every Senator the opportunity to vote ‘yes’ or ‘no.’” Those were the words of our colleague from Massachusetts, Senator Kennedy, give every Senator the opportunity to vote yes or no.

Number 6 on the list is that these filibusters are necessary to prevent appointment of extremists.

What our Democratic colleagues call extreme, the American Bar Association calls qualified. In fact, all three of the appeals court nominees chosen four years ago who have been denied confirmation received the ABA’s highest well qualified rating. The same Democrats who once called the ABA rating the gold standard for evaluating judicial nominees now disregard it.

Number 5 on the list of most ridiculous judicial filibuster defenses is the claim that these filibusters are about free speech and debate. If Senators cannot filibuster judicial nominations, some say, the Senate will cease to exist and we will be literally unable to represent our constituents.

...Mr. President, these filibusters are about defeating judicial nominations, not debating them. The minority rejects every proposal for debating and voting on nominations it targets for defeat.

...If our Democratic colleagues want to debate, then let us debate. Let us do what Democrats once said was the purpose of debating judicial nominations. As my colleague from California, Senator Boxer, put it in January 1998, “let these names come up, let us have debate, let us vote.”

Number 4 on the list is that returning to Senate tradition regarding floor votes on judicial nominations would amount to breaking the rules to change the rules. As any consultant worth even a little salt will tell you, that is a catchy little phrase. The problem is that neither of its catchy little parts is true.

The constitutional option – which would change judicial confirmation procedure through the Senate voting to affirm a parliamentary ruling – would neither break nor change Senate rules.

While the constitutional option has not been used to break our rules, it has been used to break filibusters.

On January 4, 1995, the Senator from West Virginia, Senator Byrd, described how in 1977, when he was Majority Leader, he used this procedure to break a filibuster on a natural gas bill.

Number 3 on the list of most ridiculous judicial filibuster defenses is that the constitutional option is unprecedented.

In 1977, 1979, and 1987, the Majority Leader, Senator Byrd, secured a favorable parliamentary ruling through a point of order, and a majority of Senators voted to affirm it. He did this even when the result he sought was inconsistent with the text of our written rules.

Number 2 on the list is that preventing judicial filibusters will doom legislative filibusters. Our own Senate history shows how ridiculous this argument really is.

Filibusters became possible by dropping the rule allowing a simple majority to proceed to a vote. The legislative filibuster developed, the judicial filibuster did not. What we must today limit by rule or ruling we once limited by principle or self-restraint.

Mr. President, the Number 1 most ridiculous judicial filibuster defense is that those wanting to filibuster Republican nominees today opposed filibustering Democratic nominees only a few years ago.

...The same Democrats who today call for filibusters called for up or down votes when a Democrat was in the White House. In 1999, my good friend from California, Senator Feinstein, a member of the Judiciary Committee, said of the Senate: “It is our job to confirm these judges. If we don’t like them, we can vote against them.” She said: “A nominee is entitled to a vote. Vote them up; vote them down.”

Another committee member, Senator Schumer, properly said in March 2000 that “the President nominates, and we are charged with voting on the nominees.”

I have already quoted the Senator from California, Senator Boxer, once, but in 2000 she said that filibustering judicial nominees “would be such a twisting of what cloture really means in these cases. It has never been done before for a judge, as far as we know – ever.” She was right, it had never been done before.

I appreciate what another member of the Judiciary Committee, Senator Kohl, said in 1997: “Let’s breathe life back into the confirmation process. Let’s vote on the nominees who have already been approved by the Judiciary Committee.”

The Senator from Iowa, Senator Harkin, who fought so strongly against the legislative filibuster in 1995, said five years later about the judicial filibuster: “If they want to vote against them, let them vote against them….But at least have a vote.”

The same view comes from three former Judiciary Committee chairmen and members of the Democratic leadership. A former committee chairman, Senator Biden, said in 1997 that every judicial nominee is entitled “to have a shot to be heard on the floor and have a vote on the floor.”

Former chairman Senator Edward Kennedy said in 1998: “If [Senators] don’t like them, vote against them. But give them a vote.”

And my immediate predecessor as chairman, Senator Leahy, said a year later that judicial nominees “are entitled to a vote, aye or nay.” In his own practical way, he said: “Vote them up or down.”

The Assistant Minority Leader, Senator Durbin, had urged the same thing in September 1998: “Vote the person up or down.”

Finally, Mr. President, the Minority Leader, Senator Reid, expressed in March 2000 the standard that I hope we can re-establish: “Once they get out of committee, bring them down here and vote up or down on them.”

The Majority Leader, Senator Frist, recently proposed a plan to accomplish precisely this result, but the Minority Leader dismissed it as, I want to quote this accurately now, “a big fat wet kiss to the far right.” I never thought voting on judicial nominations was a far right thing to do.