Majority Leader Frist Opens Judicial Debate

‘We must give judicial nominees the up-or-down votes they deserve,’ Frist says.

Opening the debate on Texas Supreme Court Justice Priscilla Owen’s nomination to a federal appeals court, Majority Leader Bill Frist made the following statement:

Mr. President, I rise today as the leader of the majority party of the Senate. But I do not rise for party.  I rise for principle. I rise for the principle that judicial nominees with the support of a majority of senators deserve up-or-down votes on this floor.

Debate the nominee for five hours.  Debate the nominee for 50 hours. Vote for the nominee.  Vote against the nominee. Confirm the nominee.  Reject the nominee. But, in the end, vote. Senators, colleagues, let’s do our duty and vote. Judicial nominees deserve an up-or-down vote.

In this debate, we’ll discuss two of the President’s judicial nominees.

These outstanding nominees -- Priscilla Owen and Janice Rogers Brown -- both had the support of a majority of senators in the last Congress. But they were denied up-or-down votes. 

I expect we’ll also discuss such consequential topics as the meaning of the Constitution and Senate rules and procedures. No doubt this will be a spirited debate – as it should be. And I also hope it will be a decisive debate.

So let us begin.

In the last Congress, for the first time in history, a minority of senators obstructed the principle of a fair up-or-down vote on judicial nominees. That was unprecedented.  Never in 214 years of Senate history had a judicial nominee with majority support been denied an up-or-down vote. Yet it happened – again … and again … and again … and again … and again … and again.

A minority of Senators denied up-or-down votes not just once to one nominee … but eighteen times to ten nominees. These men and women – these nominees -- are among the best legal minds in America. And they all would be serving on the federal bench today -- all they needed was a vote. But they weren’t given the courtesy of an up-or-down the vote on this floor.

The minority denied them a vote and set a new precedent. The minority in the last Congress rewrote the rules of advice and consent. They unilaterally increased the threshold for confirmation from 50 votes -- where it had been throughout history -- to 60 votes.

Now some in the minority say they’ll harden the precedent and obstruct judicial nominees in this Congress. And if they aren’t allowed to do so, if the Senate returns to the way it worked for 214 years, they will retaliate. They will obstruct the Senate’s other business. They will obstruct the people’s business. They will hold back our agenda to move America forward.

An energy strategy to reduce our dependence on foreign oil … held back. An end to medical lawsuit abuse to reduce the cost of health care … held back. A simpler, fairer tax code to create jobs and encourage economic growth … held back. A minority of senators will hold America back just because a majority of senators want to do of all things what the American people expect us to do -- vote. The minority should allow senators to fulfill our constitutional responsibility to give advice and consent and vote. And they should allow America to move forward. 

Mr. President, principles that endure for 214 years do not endure because they appeal to one party or another. They endure because they serve a vital purpose. In this case, the principle of an up-or-down vote ensures the President can fulfill his constitutional duty to appoint judges.

Let me read a passage in the Constitution:

"The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…."

The Framers wrote in the Constitution that two thirds of senators must approve treaties.  But they specifically did not require the same number of votes to confirm judicial nominees. After much debate and compromise, the Framers concluded that the President should have the power to appoint. And the Senate should confirm or reject nominees by a simple majority vote.

For 214 years, Republican and Democratic minorities alike restrained themselves. They abided by the Framers’ design and Senate tradition and gave nominees brought to the floor simple majority up-or-down votes. Then came the last Congress.

With its obstruction, the minority set a new precedent -- 60 votes before the Senate could proceed to an up-or-down vote on a judicial nominee. The threshold for advice and consent in the Senate was 50 votes. In the last Congress, the minority party radically increased that threshold to 60 votes. That was wrong.  We will restore Senate tradition.

This unprecedented threshold gave the minority a virtual veto and effective control over the judicial appointments of the President. The minority destroyed 214 years of Senate tradition, defied the clear intent of the Constitution, and undermined the democratic will of the American people. You can’t get much more radical than that.

This new precedent cannot be allowed to stand in this Congress. We must restore the 214-year-old principle that every judicial nominee with majority support deserves an up-or-down vote. Why?

First, the American people elect their Senators for a reason.  It’s to represent them.  And they expect us to do to our job. The Senate is a deliberative body.  We are a proudly deliberative body. But we also have certain responsibilities – which include giving advice and consent on the President’s judicial nominees. When a judicial nominee comes to this floor and has majority support, but is denied a simple up-or-down vote, Senators aren’t doing their job.

And the sad fact is: we didn’t do our job in the last Congress. The minority’s judicial obstruction has saddled President Bush with the lowest confirmation rate for appeals court nominees of any modern president. This is disgraceful. We owe it to the people we serve and to the Senate as an institution to do our job. We should vote up-or-down on judicial nominees.

Second, the judicial branch also has a job to do.  And it needs judges to do it. Right now, there are 46 vacancies on the federal bench.  That includes seventeen vacancies on appeals courts. But it’s not just the vacancies themselves. Qualified nominees who can fill those seats can’t get up-or-down votes to be confirmed in the Senate.

Let me give you an example. Four of the seventeen vacancies on federal appeals courts are in the region that serves my home state of Tennessee.  Those nominees have been waiting a combined thirteen years for an up-or-down vote on the Senate floor. Thirteen years!

Either confirm the nominees or reject them. But don’t leave them hanging. Don’t leave our courts hanging. Don’t leave our country hanging. If the nominees are rejected, fine, that’s fair.  At least rejection is a vote. But give nominees the courtesy of a vote.

Third, judicial nominees deserve up-or-down votes because they deserve to be treated fairly. Let me tell you about the nominees we’re about to consider -- Priscilla Owen and Janice Rogers Brown. Priscilla Owen has been a Texas Supreme Court justice for the last ten years. She was reelected with 84% of the vote in 2000. Her service has won praise from members of both parties.

Former Justice Raul Gonzalez, a Democrat, said:

"I found her to be apolitical, extremely bright, diligent in her work, and of the highest integrity.  I recommend her for confirmation without reservation."

Justice Owen has also been a leader for providing free legal services to the poor. And she has worked to soften the impact of legal proceedings on children of divorcing parents. On May 9, 2001, President Bush nominated Justice Owen to the fifth circuit court of appeals. To this day, more than four years later, even though a majority of senators support her, she has been denied an up-or-down.

That’s just plain wrong.  That’s unfair.  Priscilla Owen deserves a vote.

Now let me tell you about Janice Rogers Brown.

She’s the daughter of an Alabama sharecropper. She was educated in segregated schools and worked her way through college and law school. She went on to serve in prominent positions in California state government. Today Janice Rogers Brown is a justice on the California Supreme Court. And she was retained as a justice by the people of California with 76% of the vote.

On July 25, 2003, President Bush nominated Justice Brown to the U.S. Court of Appeals. To this day, nearly two years later, even though a majority of senators support her, she has been denied an up-or-down on this floor. That’s wrong.  That’s unfair.  Janice Rogers Brown deserves a vote.

Janice Rogers Brown can get 76% of the vote in California, and Priscilla Owen can get 84% of the vote in Texas, but neither can get a vote to be confirmed in the Senate. Why?  The minority says they’re out of the mainstream.

Mr. President, are 76% of Californians and 84% of Texans out of the mainstream? Denying Janice Rogers Brown and Priscilla Owen a vote is what’s out of the mainstream. Justice Brown and Justice Owen deserve better. They deserve to be treated fairly. They deserve the courtesy of a vote. The consequences of this debate are not lost on any member of this body.

Soon we -- 100 United States Senators -- will decide the question at hand. Should we allow a minority of senators to deny votes on judicial nominees that have the support of a majority of senators? Or should we restore the 214-year practice of voting up-or-down on all judicial nominees that come to this floor? I have to believe the Senate will make the right choice.

We will choose the Constitution over obstruction. We will choose principle over politics. We will choose votes over vacillation. And when we do, the Senate will be the better for it.

The Senate will be, as Daniel Webster once described it: “a body to which the country looks, with confidence, for wise, moderate, patriotic, and healing counsels.” To realize this vision, we don’t need to look as far back as the Age of Webster, Clay and Calhoun. All we must do is look at the recent past and take inspiration from the Era of Baker, Byrd and Dole.

For 70 percent of the 20th century, the same party controlled the White House and the Senate. Yet no minority denied a judicial nominee with majority support an up-or-down vote on this floor. Howard Baker’s Republican minority didn’t deny Democrat Jimmy Carter’s nominees. Robert Byrd’s Democratic minority didn’t deny Republican Ronald Reagan’s nominees. Bob Dole’s Republican minority didn’t deny Democrat Bill Clinton’s nominees. These minorities showed restraint. They respected the appointments process. They practiced the fine, but fragile art of political civility. Sure they disagreed with the majority at times. But they nonetheless allowed up-or-down votes to occur.

This Senate must do what’s right. We must do what’s fair. We must do the job we were elected to do and took an oath to do. We must give judicial nominees the up-or-down votes they deserve.

So let us debate. Let senators be heard. Let the Senate decide. Let this body rise on principle and do its duty and vote.