Mr. Chairman:

I thank you and the Committee for the opportunity to testify today in support of filibuster reform.  On May 9, along with a bipartisan group of eleven other Senators, I introduced Senate Resolution 138, a proposal that will alter the way the Senate concludes debate on nominations.  By progressively declining cloture requirements of 60, 57, 54, 51, and finally a simple majority of Senators present and voting, we can end the practice of filibustering nominations, if it is the will of the Senate to do so.

The first Senate cloture rule to end filibusters originated in 1917.   That rule and each subsequent amendment responded to rising tensions within the Senate over the best way to balance minority rights with the need for the entire Senate to work its will.  Beyond these adjustments, thoughtful and prominent Senators on both sides of the aisle proposed many other changes.  Cloture procedure has not been a matter of long-settled consensus.

S. Res. 138 draws upon this history, but it is also unique and innovative.  Since 1949, Rule XXII has been applied to all debatable propositions other than those controlled by rulemaking statutes or consent agreements.  Every subsequent reform effort, whether successful or not, has involved debate in its entirety.  This resolution is different.  It reforms the cloture process only for nominations and leaves cloture for the remainder of Senate debate as is. 

Our traditions are hallowed, and one of those traditions is a long history of matching our rules to the needs of an evolving institution. Senate rules are not immutable.  Over time, the texts of those rules and related precedents have been modernized to reflect changes in Senate practices. 

Nominations have never before been the focus of filibuster reform, presumably because the Senate did not previously face a problem.  Read the impassioned reform debates of 1967, 1969, 1975, 1979, and even 1995 and the word "nominations" never appears.  Great Senators offered profound arguments over the need for filibuster reform, without once mentioning "nominations" over days and even weeks of floor debate.   Filibustering nominations was simply not a problem then.  Some of my colleagues contend it is not a problem now.  Many of us would beg to differ.  A problem has emerged and there is an announced threat it will spread.  If we do not fix it now, filibustering nominations will become a new Senate tradition. I do not want the Senate to take that path.  To avoid that result, we must repair what is broken.

Mr. Chairman, S. Res. 138 establishes a distinctive cloture process for nominations.   By rules and precedents, there are deeply rooted differences between the conduct of executive and legislative business. 

For example, ever since the first Congress, executive business has been considered separately from legislative business. When committees report treaties or nominations, these are placed on the Executive Calendar, not on the Calendar of Business for legislative measures. 

When a motion is made to proceed to executive session, it may specify the nomination or treaty to be considered, but when a motion is made to return to legislative session, it may not specify the business.  This distinction, which stems from a 1980 precedent, effectively means that no filibuster can be conducted on a motion to proceed to a nomination or treaty, while the filibuster remains alive and well on a motion to proceed to a legislative measure.  The one judicial nomination that some would say was killed by filibuster, that of Abe Fortas for Chief Justice, was blocked by a 1968 failed cloture vote on a motion to proceed, something that was possible in 1968 but would not be possible now. 

Other differences also exist.  For instance, special procedures obtain for treaties.  A motion to postpone indefinitely always requires a simple majority vote, except when it relates to treaties, and then Rule XXX specifies that a two-thirds vote is needed. 

In addition, the chair has interpreted the word "day" to mean only a calendar day in executive session but it can mean legislative day in legislative session, an interpretation that could affect implementation of the two speech rule under Rule XIX.  

So, if the Senate adopts a special cloture procedure for debate of nominations, it will add another dimension to the differences in the way in which legislative and executive business is conducted. 

Mr. Chairman, the filibuster may be famous, but it is hardly sacrosanct.  More than 25 statutes exist that curtail by law the right to unlimited debate.  The most prominent of these is the 1974 Congressional Budget and Impoundment Control Act, which sets forth debate limitations on concurrent budget resolutions, reconciliation bills, and related amendments between Houses and conference reports.  Just last summer, the Senate passed legislation to implement a nuclear waste repository at Yucca Mountain, Nevada, considered under expedited procedures and debate limitations set out in the 1982 Nuclear Waste Policy Act.  The first of these debate-restrictive rulemaking statutes was enacted in 1939. Its enactment and the passage of so many provisions since, are evidence of the Senate's willingness to curb unlimited debate to further particular public policy objectives.

Especially during the presidencies of George W. Bush and Bill Clinton, the process of confirming nominees has grown more troublesome and corrosive of the public trust.  Scouring the Record over these years, one will find demands for action and defense of delays from Senators on each side of the aisle, varying by which party controls the White House and which one controls the Senate.  It rather reminds me of the old saw that, in Washington, it matters not whether you win or lose, it's where you place the blame.

We can do better than descend further down a course of finger-pointing, recriminations, and payback.  Filibuster reform sets us on a different path, one that will be fair to all Senators. It will empower them to meet their constitutional responsibility to advise and consent to nominations that have reached the Senate floor.

Mr. Chairman, it seems to me that in evaluating this proposal, two fundamental questions should be asked: is it necessary and is it sound?

Nomination filibusters by a disciplined minority, whoever it may be and whenever it may coalesce, are different from legislative filibusters.  On legislation, there is the potential safety valve that a troubled measure may be offered elsewhere as a non-germane amendment or be somehow addressed by the House.  Neither possibility exists on a nomination.  There is no safety valve. Filibustering nominations is filibustering in its most potent and virulent form, and even if a majority of Senators stand ready to confirm, such filibusters can be fatal. The Estrada and Owen filibusters, the publicly expressed threat of more filibusters to come, and the history of problems on which these filibusters are built, signal to me that reform is not just needed.  It is urgent.

My narrow remedy addresses a real problem.  Even with this reform, if a nomination is sufficiently controversial, the Senate cannot expedite it.  A nomination must be pending for 12 hours before a motion to invoke cloture can even be filed.  Filing additional cloture motions must await the outcome of previous cloture votes.  Before a majority of Senators present can work their will, a nomination would have been pending in the Senate for many days.  I have proffered reform that will permit ample debate while rejecting delay in perpetuity.  My remedy fits squarely within Senate traditions of balancing the right to debate with the responsibility to conclude the people's business.

Mr. Chairman, I welcome the opportunity to initiate this debate. I look forward to working with you and our colleagues on this Committee as we deliberate how the Senate should best address the need for filibuster reform, and restore fairness and equity to the confirmation process.