Thank you, Mr. Chairman, and members of the Committee for the opportunity to participate in these very important hearings on our Senate rules. I wanted to come before the Committee to express my strong hope that the decisions we make in the days ahead will be made from a perspective that looks beyond the immediate partisan concerns of either political party.
Our paramount and overriding concern should be to protect the role of the Senate under the Constitution. There can be no doubt that the Framers intended us to have a unique and critical role in the system of checks and balances they created. They called it “the Senatorial trust.”
We were given special powers including the power over judicial appointments, through our power of advice and consent.
From the earliest days of our nation, Presidents have tried to dilute or resist our constitutional power over judicial appointments:
At least until now, the Senate has always said no to such Presidential overreaching. For over 200 years the Senate vigorously protected its own independent role in judicial selection.
As Pulitzer-prize winning author Robert Caro vividly demonstrated in his current volume, “Master of the Senate,” this institution has always understood that its assignment from the Framers was to be the independent force that can – and therefore must -- stand up to a President, regardless of party and regardless of popularity, when the President needs standing up to.
Extended debate and deliberation have always been the cornerstone of our ability to exercise that power and meet our responsibilities. We take the time to develop the issues properly, through vigorous debate, and to seek consensus and compromise.
To allow this process to thrive, the Framers gave us, above all, the power to set our own rules for Senate debates, including the rules on whether and how to end debate.
We do not hold our powers for ourselves. We hold them in trust for the nation. We hold them in trust for our successors in the Senate. We hold them because the Constitution intended the Senate to be strong and resolute, even when challenged by a strong and popular President.
The job of this Committee today and the Senate in the months ahead is not to adjudicate the legal arguments against Rule 22. Frankly, to anyone who has read the Constitution and the Federalist Papers, the assertion that our long tradition of extended debate is unconstitutional is frivolous.
The question posed to us is whether there is some pressing reason for the Senate to abolish a major feature of the Senatorial process and reduce the historic role of the Senate on judicial nominations.
The answer to that question is “no.” There is no grave threat or persistent crisis which calls upon us to eliminate our historic respect for the rights of a strong minority among our colleagues.
The delay of two highly controversial nominees at the insistence of over 40% of the Senate, while 127 nominees, some with significant opposition, have been approved without the need for cloture votes, does not constitute a threat to the nation or a crisis of such magnitude that any change in Senate powers is called for.
Under the proposal now before us, the number of votes required to terminate debate on nominations would be reduced from 60 to 51. A simple majority of the Senate would be able to end debate, and the Senate would put itself on a course to destroy the very essence of our constitutional role. It would inevitably lead to pressure to make the same change for ending debate on legislation.
There is a vast and fundamental difference between allowing 60 Senators to silence 40 Senators.
No Senator should want a bare majority of the Senate to be able to force a vote on lifetime judicial appointments that will continue to affect the courts long after the terms of the President and Senators have ended.
Once the Senate cedes any part of its power, it is most unlikely to be able to get it back. As an institution, we cannot afford to adopt a solution to a short-term or minor problem which involves a major reduction in our power. To do so is to abdicate power that is not ours to give away. It belongs to this institution. It belongs to the nation.
This should not be a partisan issue. If a Republican-controlled Senate gives away a major part of its power to a Republican President today, a Democratic President would surely use that power against a future Republican minority in the Senate.
There is no threat or crisis which requires the Senate to relinquish any of its power. I urge the Senate not to take such a fateful step.