"It is a shame that well-qualified nominees ... are threatened still with not having the opportunity to have the merits of their nominations debated on the floor." Frist: Agreement Falls Short of Principle

U.S. Senate Majority Leader Bill Frist, M.D. (R-TN), made the following statements on the Senate floor on Tuesday morning, May 24, and Monday evening, May 23, after the announcement of an agreement betwen 14 Senators to scale back the use of filibusters to block judicial confirmations:

Mr. President, though I am not a party to the memorandum of understanding signed last night by 14 of my colleagues, I have had the opportunity to further review the agreement in more detail.  I believe the memorandum of understanding makes modest progress, but falls far short, of guaranteeing up or down votes on judicial nominees.  It needs to be carefully monitored and executed in good faith. 

Let me briefly share my thoughts on the understanding reached last night and my expectations going forward.

First, the memorandum of understanding begins to break the partisan obstruction of the past two years and guarantee fair up or down votes on several judicial nominees.  Priscilla Owen, Janice Rogers Brown, and William Pryor all will receive the courtesy and fairness of up or down votes.  I will continue to fight for other qualified nominees who have been waiting for votes and deserve the same courtesy and fairness.

Second, the agreement, if followed in good faith, will make filibusters of judicial nominees in the future, including Supreme Court nominees, almost impossible. 

Third, let me be very clear: the Constitutional option remains on the table.  I will not hesitate to use it if necessary.  It has been and continues to be a last resort.  My goal is restoring the principle of fair up or down votes on judicial nominees.  However, if the minority again acts in bad faith – if they resume their campaign of routine judicial obstruction – I will ask all 100 senators to decide whether judicial nominees deserve fair up-or-down votes.

So let us begin today to execute this memorandum of understanding.  This afternoon, I expect the Senate to confirm Priscilla Owen and by the end of the week to process Janice Rogers Brown and William Pryor.  We will work with the Minority Leader, the Judiciary Committee and other Senators to move forward expeditiously on other nominees, including those from the Sixth Circuit and Tom Griffith. 

This has been a very significant debate.  By exposing the injustice of judicial obstruction in the last Congress, we have made progress on restoring a core Constitutional principle: all judicial nominees deserve fair up or down votes.  I hope that progress continues.

Mr. President. I have had the opportunity to review the agreement signed by the Senator from Virginia, the Senator from Arizona, the Senator from Nebraska, and eleven other Senators — an agreement that I’ve reviewed but to which I am not a party.

Let me start by reminding the Senate of my principle.

A simple principle that I’ve come to this floor day after day stating.  It’s really this, that I fundamentally believe that it is our constitutional responsibility to give judicial nominees the respect and the courtesy of an up or down vote on the floor of the United States Senate.

Investigate them.  And question them.  And scrutinize them.  And debate them.  In the best spirit of this body.

But then, vote.  Up or down.   Yes, or no.  Confirm or reject.  But each deserves a vote.

Unlike bills, nominees cannot be amended.  They cannot be split apart.  They cannot be horsetraded or logrolled. Our constitution does not allow for any of that.

It simply requires up or down votes on judicial nominees.

So, in that regard, this agreement announced tonight falls short of that principle.  It falls short.  It has some good news, and has some disappointing news, and will require careful monitoring.

Let me start with the good news.  I am very pleased that each and every one of the judges identified in this announcement will receive the opportunity of that fair, up or down, vote.

Priscilla Owen: after four years, two weeks, and one day, a fair, up or down, vote.

William Pryor: after two years and 1 month, he will have a fair, up or down, vote.

Janice Rogers Brown: after 22 months, a fair, up or down, vote.

Three nominees will get up or down votes with certainty now because of this agreement.  Whereas a couple of hours ago, maybe none would get up or down votes.  And that would have been wrong.  And, with the confirmation of Tom Griffith to the D.C. Circuit Court of Appeals, which we’ve been assured of, though it’s not part of this particular agreement, there will be four who will receive up or down votes.  And based on past comments, on this floor, although not in the agreement, I expect that David McKeague, after three years and six months, will get a fair up or down vote.  I expect that Susan Neilson, after three years and six months, will get a fair, up or down, vote.  I expect that Richard Griffin, after two years and 11 months, will get a fair, up or down, vote.

Now, the bad news.  It is a shame that well-qualified nominees identified by those twelve members are threatened still with not having the opportunity to have the merits of their nominations debated on the floor.

Henry Saad waited for three years for the same courtesy.  He deserves a vote.

William Myers has waited for two years and one week for a fair, up or down vote.  He deserves a vote.

If Owen, Pryor, and Brown can receive the courtesy and respect of a fair up or down vote, so can Myers and Saad.

So I will continue to work with everything in my power to see that these judicial nominees also receive that fair, up or down vote that they deserve.  But it is not in this agreement.

But in this agreement is other good news.

It is significant that the signers give up using the filibuster as it was deployed in the last Congress, in the last two years. 

The filibuster was abused in the last Congress.  Ten nominees were blocked on 18 different filibusters occasions, 18 different filibusters in the last two years alone.  With a leadership led minority party obstruction threatening filibusters on six others.

That was wrong.

It was not in keeping with our precedents over the past 214 years. 

It made light of our responsibilities as U.S. Senators under the Constitution. 

It was a miserable chapter in the history of the Senate and I believe brought us to a new low.

Fortunately, tonight, it is possible that this unfortunate chapter in history can close because this arrangement makes it much less likely—indeed, nearly impossible—for such mindless filibusters to erupt on this floor over the next 18 months.  And for that I am thankful.

Circuit Court and Supreme Court nominees face a return to normalcy here in the Senate, where nominees are considered on their merits.

Their records are carefully examined. 

They offer testimony, and are questioned by the Senate Judiciary Committee.

The Committee acts.

And then the Senate discharges its constitutional duty to vote, up or down, on a nominee.

So given this disarmament on the filibuster and the assurance of fair up or down votes on nominees, there is no need at present for the constitutional option.

But with this agreement, all options remain on the table – including the constitutional option.  If it had been necessary to deploy the constitutional option, it would have been successful, and the Senate would have by rule returned to the precedent of the past 214 years.  Instead, tonight, members have agreed that this precedent of up or down votes should be a norm of behavior as the result of mutual trust and goodwill in that agreement.

I of course will monitor this agreement carefully as we move ahead to fill the pending 46 vacancies on the Federal bench today, and other vacancies that may yet arise during this Congress.

I have made it clear from the outset that I haven’t wanted to use the constitutional option, I do not want to use the constitutional option, but bad faith and return to bad behavior during my tenure as Majority Leader will bring the Senate back to the point where all 100 members will be asked to decide whether judicial nominees deserve a fair up or down vote.

And I will not hesitate to call all members to their duty if necessary.

But for now, as reflected in this agreement, I look forward to swift action on the identified nominations.

Now the full impact of this agreement will await its implementation.  But I do believe that the good faith and good intentions ought to guarantee a return to good behavior on the Senate floor. 

And that when the gavel falls on the 109th Congress, the precedent of the last 214 years will once again govern: fair, up or down votes on the floor of the United States Senate.

Now this will be spun as a victory, I would assume, for everyone.  Some will say this is a victory for our leadership.  Some for the group of fourteen.  I see it as a victory for the Senate, I honestly believe it is a victory for the Senate.  Where members have put aside a party demand to block action on judicial nominees.  They rose to principle. And then acted accordingly.

I am also gratified with how clearly the Democratic Leader has repeated, over and over again during this debate, how much he looks forward in working with us and I with him as we move forward on the agenda of the 109th Congress.  Our relationship has been forged in part by circumstance, but leavened by friendship.  I look forward to working with him as we move the nation’s agenda forward together.

We have much to do, from addressing vital issues of national defense and homeland security, to reinforcing our energy independence and our role as a reliable and strong trading partner, to an orderly consideration of all the bills before us about funding and to put the deficit on the decline. 

I look forward to working with the Democratic leader on these and many other issues of national importance.

Mr. President, a lot has been said about the uniqueness of this body and indeed our Senate is unique, and we all as individuals and collectively as a body have a role to play in ensuring its cherished nature remains intact.

And indeed, as demonstrated by tonight’s agreement and by the ultimate implementation of that agreement, we have done just that.  It has withstood mighty tests that have torn other governments apart.  

The genius is in its quiet voice, not the mighty thunder; the harmony of equality brings all to its workings with an equal stake at determining its future.

In all that the Senate has done in the last two years, I as leader, have attempted to discharge my task as steward of the institution consistent with my responsibilities not just as the Majority Leader, not just as Republican Leader, but also as the Senator from Tennessee.

In closing tonight Mr. President, with this agreement, the Senate begins the hard work of steering back to its better days, leaving behind some of its worst.  While I would have liked my principle to have been fully validated, for this Congress, now, we have begun our labors for fairness and up or down votes on judicial nominees with a positive course.

And as all involved keep their word, it should be much smoother sailing.

I yield the floor.  

May 24, 2005
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