May 10, 2005

Senator Harry Reid’s Remarks at Media Availability

Reid responds to Frist’s proposal

As Prepared for Delivery:

Two weeks ago, Bill Frist and I exchanged proposals in an attempt to avert a vote on the nuclear option.

One proposal allowed for up or down votes on all but four judges – which many of us on both sides of the aisle considered to be the goal of this hyped battle over judicial nominations.

It also took the “nuclear option” off the table, which even Ken Starr said yesterday was damaging to the Senate as an institution and “amounts to an assault on the judicial branch of government.” This compromise would break the gridlock over these seven judges, and allow us to get back to doing the people’s business.

Senator Frist’s proposal does nothing to end the judicial impasse, as it would wipe away the very checks and balances that have prevented an abuse of power for more than 200 years.

That result is unacceptable.

I still consider this confrontation entirely unnecessary and irresponsible. The White House manufactured this crisis. Since Bush took office, the Senate confirmed 208 of his judicial nominations and turned back only 10, a 95% confirmation rate. Instead of accepting that success and avoiding further divisiveness and partisanship in Washington, the President chose to pick fights instead of judges by resubmitting the names of the rejected nominees.

This fight is not about seven radical nominees; it’s about clearing the way for a Supreme Court nominee who only needs 51 votes, instead of 60 votes. They want a Clarence Thomas, not a Sandra Day O’Connor or Anthony Kennedy or David Souter. George Bush wants to turn the Senate into a second House of Representatives, a rubberstamp for his right wing agenda and radical judges. That’s not how America works.

I believe there are two options for avoiding the nuclear showdown, which so many of us believe is bad for the Senate, and bad for America.

But I want to be clear: we are prepared for a vote on the nuclear option. Democrats will join responsible Republicans in a vote to uphold the constitutional principle of checks and balances.

If it does come to a vote, I asked Senator Frist to allow his Republican colleagues to follow their consciences. Senator Specter recently said that Senators should be bound by Senate loyalty rather than party loyalty on a question of this magnitude. But right wing activists are threatening primary challenges against Republicans who vote against the nuclear option. Senators should not face this or any other form of retribution based on their support for the Constitution. In return, I pledge that I will place no such pressure on Democratic Senators and I urge Senator Frist to refrain from placing such pressure on Republican Senators.

I also suggest two reasonable ways to avert this constitutional crisis.

First, allow up or down votes on additional nominees, as I addressed in my proposal to Frist two weeks ago. If this is about getting judges on the courts, let’s get them on the courts.

Second, allow the Senate to consider changing the rules without breaking the rules. Every one of us knows that there is a right way and a wrong way to change the rules of the Senate; the nuclear option is the wrong way. Senator Dodd will go to the floor this afternoon to expand on the way the Senate changes its rules.

I suggest that Senator Frist introduce his proposal as a resolution. If he does, we commit to moving it through the Rules Committee expeditiously and allow for a vote on the floor. It takes 67 votes to change the rules. If Senator Frist can’t achieve 67 votes, then clearly the nuclear option is not in the best interest of the Senate or the nation.

Either of these options offers a path away from the precipice of the nuclear option. But if neither of these options is acceptable to you, let’s vote.

Below is a copy of Senator Reid’s response to Senator Frist’s letter from 4/28:

May 10, 2005
The Honorable William Frist
Majority Leader
United States Senate
Washington, D.C. 20510

Dear Bill:

I have reviewed your April 28 letter to me regarding the current impasse over judicial nominations. In essence, you propose to eliminate the role of the Senate minority in considering judicial nominees. The rules changes you suggest would hand the President the power to make lifetime appointments to the federal courts without the check of meaningful Senate review. That result is unacceptable.

I still consider this confrontation entirely unnecessary and in this letter will suggest two options for avoiding it. But I want to be clear: we are prepared for a vote on the nuclear option. Democrats will join responsible Republicans in a vote to uphold the constitutional principle of checks and balances.

I call on you to allow your Republican colleagues to follow their consciences on this historic question – as Senator Specter recently said, Senators should be bound by Senate loyalty rather than party loyalty on a question of this magnitude. But at least one right-wing activist has threatened to sponsor primary challenges against Republicans who vote against the nuclear option. Senators should not face this or any other form of retribution based on their support for the Constitution and the integrity of the Senate. I pledge that I will place no such pressure on Democratic Senators and I ask for your commitment not to place such pressure on Republican Senators.

Turning to your April 28 letter, I want to thank you for recognizing that “some of President Clinton’s nominees were blocked in committee” and therefore “both parties have significant complaints about the process by which the Senate exercises its responsibility to advise and consent.” It is disingenuous for Republican Senators to insist that every judicial nominee is entitled to the courtesy of an up-down vote when 69 Clinton nominees were denied that very courtesy by the Republican-controlled Senate. Historians can debate whether President Hayes’s 1881 nomination of Stanley Matthews to the Supreme Court was filibustered (it was), but you and I don’t need to debate whether dozens of Clinton nominees were rejected by the Senate’s inaction – we served in the Senate during those years and we know that they were.

You now propose two changes to Senate procedure that would eliminate Democratic influence over President Bush’s judicial nominees by abolishing the same senatorial prerogatives that Republicans used to exert influence over President Clinton’s judicial nominees. Aside from the merits, your proposal is objectionable because it would enable the Republican majority to profit from its own overreaching during the Clinton years. The Senate rules should only be changed to improve the institution, not to achieve momentary partisan advantage. Neither of your proposed rules changes meets that standard.

First, you propose to streamline consideration of nominees in the Judiciary Committee. Unfortunately, this reform is unnecessary. Over the course of President Bush’s first term Chairman Hatch unilaterally eliminated each of the tools, such as the blue-slip process, by which the Senate minority traditionally exerted influence over judicial nominations. Your proposal would merely codify the current unfair practices.

These now-discarded Judiciary Committee procedures had the beneficial effect of encouraging White House consultation with the Senate minority and with home-state Senators in order to resolve disputes before nominations are presented to the Senate. Over the last four years President Bush too often failed to seek the advice of the Senate before making unwise nominations, and Democrats lacked any means short of a filibuster to carry out our duty under the Advice and Consent Clause of the Constitution. Consensus nominations are good for the Senate and good for the judiciary. If anything, we should reestablish the blue-slip process rather than formalize its demise.

Second, you propose to abolish minority rights on the floor of the Senate, replacing the 60 vote threshold established by Rule XXII with a new 51 vote threshold following 100 hours of floor debate. I cannot agree to this proposal because it denies the Senate minority a meaningful voice in confirming nominees and is therefore inconsistent with constitutional checks and balances. The principle at stake here is not the length of debate -- it is the role of the Senate minority to serve as a check on executive power. Your proposal simply places a delayed fuse on the nuclear option.

Incidentally, I am baffled by your suggestion that minority rights be terminated with respect to circuit court and Supreme Court nominations but not district court nominations. Surely appellate court nominees deserve greater scrutiny than trial court nominees, and in any event all nominations are governed by the same Advice and Consent Clause of the Constitution. I can only conclude that your real goal is not to vindicate a constitutional principle but to establish a 51 vote threshold for President Bush’s nominations to the Supreme Court.

Your proposal would embolden the President to nominate an extreme Supreme Court nominee, the last thing our country needs. The best thing for our country would be a consensus Supreme Court nominee of great stature who could command the support of a vast majority of Senators.

Even though your April 28 letter does not present an acceptable resolution of our current dispute, we should not stop trying. Our colleagues have implored us to work this out, and we owe them, the Senate itself and the American people our best efforts to negotiate a settlement. Let me summarize two ways to avoid a showdown:

Option 1: Up-Down Votes for Additional Nominees

The Senate has already confirmed 208 of President Bush’s nominees and yesterday I proposed that the Senate take up a 209th nominee -- controversial D.C. Circuit nominee Thomas Griffith -- under procedures that would guarantee him an up-down vote. In addition, as I have previously discussed with you, the Democratic caucus would be willing to debate and vote on four of the disputed court of appeals nominees -- the three Sixth Circuit nominees other than Henry Saad and one of the other four nominees who were previously filibustered. This additional concession would be contingent on your commitment to abandon the nuclear option for the remainder of the 109th Congress and reinstatement of the blue-slip process in the Judiciary Committee.

I have been faulted by some of my allies for making this offer because it would amount to Democrats yielding on our principled opposition to each of these nominations. I have responded to these critics by saying that Senate leaders must sometimes compromise, even on matters of principle, for the good of the Senate and the country.

Option 2: Allow the Senate to Consider Changing the Rules without Breaking the Rules

There is a right way and a wrong way to change the rules of the Senate; the nuclear option is the wrong way. While I personally oppose the rules changes you propose in your April 28 letter, I am willing to facilitate their consideration by the Senate under the well-established procedures for amending the Senate rules. I suggest that you introduce your April 28 proposal in the form of a Senate resolution, or reintroduce your similar proposal (S. Res. 138) from last Congress. When that resolution is referred to the Rules Committee, I would work with Ranking Member Dodd to ensure its full, fair and expedited consideration. And if the resolution is referred to the full Senate as I expect it would, I pledge that Democrats would approach it in good faith through the ordinary legislative process.

While Rule XXII establishes a 67-vote threshold for amendments to the Senate rules, I don’t think that is an insurmountable obstacle for some improvements in the process by which the Senate considers judicial nominees. I assure you that Democrats would be more receptive to rules changes presented in this way than in the form of the nuclear option, in which the Senate majority would break the rules to change them.

Either of these options offers a path away from the precipice of the nuclear option. Either would avert this confrontation and instead allow the Senate to continue working in a bipartisan way on matters of real concern to the American people. But if neither of these options is acceptable to you, let’s vote.

Sincerely,

HARRY REID
Democratic Leader

« Back to Press Releases