Cheney’s Speech

by Shannen W. Coffin

Today’s comments from the vice president on the subject of the Senate and judges in a speech to the Republican National Lawyers Association:

. . . To build a stronger, better America for the next generation, we must also uphold the values that sustain our society -– limited government, personal responsibility, free enterprise, reverence for life, and equal justice under the law. And in this second term, President Bush will also continue nominating federal judges who faithfully interpret the law, instead of legislating from the bench. (Applause.)

Staffing the federal courts is one of the most important responsibilities of any President, and is given to him directly by the Constitution. To fulfill that responsibility, President Bush has submitted the names of superbly qualified nominees for the federal district and circuit courts -– men and women of experience who meet the highest standards of legal training, temperament, and judgment.

The United States Senate has also the responsibility, under the Constitution, to advise and consent to judicial nominations. To win confirmation, a nominee needs only a simple majority of senators voting.

For more than 200 years, the Senate has exercised this responsibility by voting either to confirm or reject nominations sent up by the President. Recently, however, a minority of senators has turned away from two centuries of practice and begun filibustering judicial nominees. The filibuster, of course, is a procedural device used to kill legislation by insisting on unlimited debate. The only way to stop a filibuster is by a super-majority vote of 60 senators. Employed against a judicial nominee, the filibuster effectively prevents an up or down vote on the Senate floor, even if a majority of senators have indicated support for the nomination.

During the 108th Congress, 10 of President Bush’s judicial nominees were filibustered. I see one of them, retired Judge Charles Pickering, is here with us today. (Applause.) I want to thank Judge Pickering for his many years of service to the United States of America. His nomination, and the others that were filibustered, were not held up for a lack of support. On the contrary, each one of them had majority backing and would have been swiftly confirmed by the full Senate, if only given that chance.

These nominations were held up strictly for partisan political reasons, in an astounding departure from historical precedent. Until recently, not once in the history of the United States had a group of senators ever used the filibuster to block a judicial nominee having majority support in the Senate.

This year President Bush’s judicial nominees include seven who were filibustered in the last Congress. Two of them, Terrence Boyle of North Carolina and Patricia [sic: Priscilla] Owen, Texas, have been waiting almost four years for an up or down vote. And very soon the Senate will face an important decision. If a minority of members again chooses to filibuster judicial nominees, then the majority may choose to institute a rule change to ensure that the nominations go to the full Senate. Let me emphasize the decision about how to proceed will be made by the Republican leadership in the Senate.

But if the Senate majority decides to move forward, and if the issue is presented to me in my elected office as President of the Senate, and presiding officer, I will support bringing those nominations to the floor for an up or down vote. (Applause.)

On the merits, this should not be a difficult call to make. First, the Senate has full authority to set its own rules, and it is perfectly legitimate for the leadership, backed by a majority, to restore traditional practice. And let me emphasize that — to restore traditional practice.

Second, the Majority Leader, Senator Frist, has made clear that any action would be limited in scope, in no way altering the customs of debate or the availability of the filibuster where legislation is concerned.

Third, I believe there is an important principle at stake. When senators filibuster a nominee who has clear majority support, they are, in effect, trying to establish a 60-vote requirement for confirmation. A simple majority is what has been required for confirmation throughout our history. A filibuster of judicial nominees is, as a practical matter, an attempt to limit a President’s ability to appoint judges who have majority support in the United States Senate.

In short, there is no justification for allowing the blocking of nominees who are well qualified and broadly supported. The tactics of the last few years, I believe, are inexcusable, particularly when you’re dealing with men and women of the caliber of those nominated by George W. Bush. By any standard of judicial merit, they are fully qualified to serve. And by any standard of fairness, they deserve a vote in the United States Senate. (Applause.) . . .

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