Today, McConnell Ended What Schumer Began with Estrada Filibuster

There was much hand wringing over Senator McConnell being forced to invoke the constitutional option today to end the first successful partisan filibuster of a Supreme Court nominee, but partisan filibusters of judicial nominees are not a longstanding Senate tradition.  It began with now-Minority Leader Chuck Schumer's filibuster of Miguel Estrada (who was opposed in large part because he was a conservative Latino):

In a world of instant gratification that too often rewards boastful rhetoric over definitive accomplishments, Mitch McConnell stands out for his patience. The Senate majority leader expends political capital with ruthless efficiency, using it only when it can accomplish precisely what he intends. McConnell doesn’t start many fights; he finishes them. 

As the Senate moves toward confirmation of Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, that is exactly what is happening: McConnell is ending a fight that a young senator named Chuck Schumer started nearly 15 years ago by rallying the first-ever partisan filibuster of a nominee to the D.C. Circuit Court: Miguel Estrada. Previously, the Senate’s “advise and consent” role was vigorously deployed with fierce partisan tensions but ultimately settled with simple up-or-down majority votes. . . .  

Predictably, the misuse of the filibuster led to an existential threat to the filibuster itself. To confirm President Bush’s embattled judicial nominees, then-Majority Leader Bill Frist threatened the “nuclear option,” that is, changing Senate rules to ban the use of the filibuster in certain instances. A bipartisan group of senators known as the “gang of 14” de-escalated the situation by voting to confirm most of the filibustered nominees, staving off such a fundamental change to Senate procedure. . . .

In the most ironic plot twist, the man who started it all returns to the stage in the final scene. . . . Nearly 15 years after Schumer started this fight, he will have a front-row seat when McConnell finishes it. A uniquely perfect way for this story to end. Regrettable, perhaps; inevitable, to be sure.

It is important to remember that what happened today on the Senate floor did not abolish the legislative filibuster.  While also not enshrined in the Constitution, the legislative filibuster has a much longer tradition and has always been treated differently by senators.  

So did Leader McConnell "blow up the Senate" today?  No.  He simply completed a process started by then-Majority Leader Harry Reid in 2013 to restore the Senate to standard operating procedure prior to 2002.

Senate Tradition Requires a Majority Vote for SCOTUS

In the face of a promised filibuster by the Democrats of Judge Gorsuch's nomination to the Supreme Court, Republican senators have spoken out strongly against the use of the filibuster on Supreme Court nominees and have indicated their support if Leader McConnell is forced to exercise the constitutional option or "Reid Rule" on the Gorsuch nomination.

Senator Lamar Alexander noted earlier today that he has consistently voted for cloture on presidential nominees even when he voted against confirming them:

[W]hat the Democrats are proposing to do next week, quite apart from the fact that Judge Gorsuch is one of the most eminently qualified people we have seen come around in a long time, they're flying in the face of 230 years of tradition in the Senate by insisting that a presidential nominee to the Supreme Court require more than 51 votes to be confirmed. Now, I look very quickly back at my own votes. None of us are perfect, and I'm not asking for any merit badges, but I wonder where the Democrats are who are trying to do at least what I was trying to do when President Obama was there. And I found at least ten times where I voted for cloture, voted to cut off debate for controversial nominees with whom I disagreed with, and then I voted against them when the vote was 51. . . . [W]here are the Democrats looking to vote like that, to preserve the Senate's 230-year tradition of approving presidential nominees by a majority vote? I think this is a terrible precedent, not justified, and I'm sorry to see things heading in this direction. 

Senator Alexander gave extended remarks on the history and use of the filibuster in the Senate yesterday:

Throughout the Senate's history, approval of even the most controversial presidential nominations have required only a majority vote. . . . In fact, Senate rules have always allowed senators the option to filibuster to death a presidential nomination, yet it has almost never happened. . . . Filibustering a presidential nomination has always been treated differently than filibustering a legislative matter. . . . No one has ever disputed our right in the Senate, regardless of who was in charge, to use our constitutional duty of advice and consent to delay and examine, sometimes cause nominations to be withdrawn or even to defeat nominees by a majority vote. 

But as we approach a vote next week on Neil Gorsuch on the floor of the Senate, it is useful to remember that the tradition of the United States Senate has been to treat legislative matters one way and presidential nominations a different way. Filibustered to death legislation, yes. Filibustered to death presidential nominations, no. Should the Neil Gorsuch nomination come to the floor soon, as i believe it will, overwhelming Senate tradition requires that whether to approve it should be decided by a majority vote and there should be no attempt by the minority to filibuster the nomination, especially of such a qualified man, to death. 

Such long-serving, institutionalist senators as Senator Hatch, Senator Shelby, and Senator Graham have also supported confirming Judge Gorsuch even if faced with a Democrat filibuster, while they lament what the Democrats' forcing the Republicans to exercise the constitutional option means for the future of the Senate.

RNLA thanks these senators and the other Republican senators willing to uphold 230 years of Senate tradition by supporting an up-or-down vote for Judge Gorsuch.

There Is No 60-Vote Standard for Supreme Court Nominees

In an effort to justify their unprecedented and baseless opposition to Judge Gorsuch's nomination for the Supreme Court, some Democrats have claimed that there is a 60-vote baseline for confirming Supreme Court nominees in the Senate.  This is to avoid the charge that they are filibustering Judge Gorsuch, which will likely prompt Leader McConnell to exercise the constitutional option or "Reid Rule" and change the Senate rules on Supreme Court nominations.  

The problem with this 60-vote standard is, of course, that it does not exist:

FactCheck.org: “A confirmation vote for a Supreme Court nominee requires only a simple majority, or 51 votes.” (“Sanders On SCOTUS Filibuster, Factcheck.org, 2/6/17) 

The Washington Post’s Fact Checker: “Democrats are being slippery with their language. Sixty votes is not ‘a standard’ for Supreme Court confirmations, as two of the current justices on the court did not meet that supposed standard.” (“Senate Democrats’ Misleading Language On A 60-Vote ‘Standard’ For Supreme Court Nominees,” The Washington Post’s Fact Checker, 2/2/17) . . . 

No Democrats now serving in the Senate have EVER insisted that a Democrat President’s SCOTUS nominee meet a 60-vote standard. 

FactCheck.org: “…that was not the case for the two Supreme Court justices nominated by Obama and approved by the Senate. . . . (“Sanders On SCOTUS Filibuster, Factcheck.org, 2/6/2017) . . . The nomination of Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States did NOT require 60 votes.(PN506 Sonia Sotomayor, Roll Call Vote #262, 8/6/2009) . . .  [and the] nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States did NOT require 60 votes.(PN1768 Elena Kagan, Roll Call Vote #229, 8/25/2010)

Indeed, both Justice Clarence Thomas and Justice Samuel Alito were confirmed with fewer than 60 votes in favor.  The Democrats will continue touting fallacious liberal talking points supplied by radical progressive activists as unfounded reasons to oppose Judge Gorsuch, but this 60-vote threshold claim really should be laid to rest.

Debating the Filibuster

There is a legitimate debate on the Senate Filibuster going on within Republican ranks.   Should Republicans end the Senate Filibuster which required 60 votes on legislation?  Two months again Congressman Lamar Smith wrote a letter to Senate Leadership asking for just that:

Our request to eliminate the filibuster for some votes simply underscores that in a democracy the majority should decide. The super-majority now required to advance legislation is 60 votes, which is not serving our country well. We are under no illusion that the elimination of the Senate filibuster for some votes will guarantee the passage of legislation much less its enactment into law. However, a move by the Senate to a majority vote that can approve some legislation would make it much easier for Congress to advance meaningful solutions to challenges our country faces.  

56 other Republican members of the House joined Congressman Smith.  Rep. Smith also said at the time:

A bad Iran nuclear deal merits the use of the Senate’s so-called nuclear option. I respect the separate rules and role of the Senate and do not advocate this change for every small matter. But for the sake of American national security interests we must place every available option on the table to stop this bad Iran deal. Had a simple majority rule been in place this week, both chambers of Congress could have voiced their strong disapproval of the Iran deal. It is time to send a strong signal to this administration that it can no longer disregard the will of the American people and their representatives in Congress.

Longtime staffer to the House, Senate and the George W. Bush White House Bill Wichterman argues the other side:

The long-term damage that abandoning the filibuster would do to our form of government would be substantial. The Framers of the Constitution intentionally hobbled Congress. For the sake of preserving maximum freedom, they wanted to make it difficult to pass legislation. Consistent with that notion, the filibuster protects the rights of the minority and requires at least a minimum level of bipartisanship in legislating. (The passage of Obamacare on a strictly party-line basis was possible only because President Obama briefly had a rare supermajority — it is the only time in our history that a major entitlement program has been enacted on a party-line vote, and Obamacare will forever be controversial because of that.) . . .

The story goes that when Thomas Jefferson, who had been in France during the Constitutional Convention, asked George Washington why they had created the Senate, Washington replied, “We pour our legislation into the senatorial saucer to cool it.” Without the Senate, America would have been one step closer to being a democracy, and not the republic the Founders wanted. James Madison, the Constitution’s principal drafter, derided democracies as “spectacles of turbulence and contention.

Wichterman also points out that:

Conservatives have benefited from the filibuster in the past — using it to stop measures such as the pro-union “card check” and so-called “paycheck fairness,” and to preserve the Bush tax relief when the Democrats tried to rescind it — and we will likely benefit again if we at some point find ourselves in the minority.

It is unfortunate this debate has become necessary do to the extreme partisanship of today’s Democrats.  

Democrats and Republicans Agree Iran Deal is a Bad Deal

In a world where Tehran shouts “Death to America,” Obama strikes a new Iran nuclear agreement that is much weaker than his administration originally pitched. Many leaders note that the agreement is certain to lead to the emergence of a nuclear Iran.

The financial and economic sanctions against the Iran regime will drop, and new sanctions cannot be applied without a dispute resolution. The international community will assist Iran in nuclear research, and Iran will only grant the International Atomic Energy Agency limited access for inspections and reports. To receive these benefits, Iran must only limit its nuclear enrichment activities for eight years, limit its enriched uranium stockpile to 300 kg, and limit its research and development.

Speaker of the House John Boehner (R-OH) warns,

Instead of making the world less dangerous, this ‘deal’ will only embolden Iran — the world’s largest sponsor of terror — by helping stabilize and legitimize its regime as it spreads even more violence and instability in the region…Instead of stopping the spread of nuclear weapons in the Middle East, this deal is likely to fuel a nuclear arms race around the world.

Chairman of the House Committee on Foreign Affairs Representative Ed Royce (R-CA) stated,

The Obama Administration failed to mention that addressing the Iran nuclear program meant taking restrictions off.  The restrictions on Iran’s uranium stockpile only last 10 years and most Americans will take three times longer to pay off their mortgages. Once expired, Iran could enrich Uranium on an industrial scale and an international market like France. This agreement would endorse all these actions. The US and its allies will be left with no effective measures to prevent Iran from initiating an execrated nuclear program to produce a nuclear weapon.

Former U.S. Senator and Democrat Nominee for Vice President Joe Lieberman spoke to the House Committee on Foreign Affairs and advised,

This deal is much more risk for America and reward for Iran than should be in this agreement…The anti-American and anti-Sunni Iran will have nuclear weapons. Iran’s nuclear capabilities were previously unacceptable and are now they are inevitable.

Even current Democrats such as Representative Ted Deutch (D-FL) have concerns such as:

Why do we believe that Iran’s dangerous support for terror groups won't return in 5 years or that its desire for ballistic missile material will wane in 8 years?...The agreement cannot just be judged in the absence of an deal today, tomorrow, or 60 days from but also must be analyzed by what will happen under an agreement in 5 years, 8 years, 10 years and beyond.


The American Israel Public Affairs Committee (AIPAC) also released a statement opposing the deal and provided five requirements for a good deal with Iran. 

McConnell’s Win and Reid’s Loss

Under the leadership of Harry Reid the last few years, the Senate accomplished little and stifled almost all debate. Reid held minority opinions hostage, even when that opinion included members of his own caucus.  He even broke the Senate rules to change the rules just to give Senators in the minority less power by instituting the Nuclear Option. 

But thanks to the leadership of Senator Mitch McConnell and the new Republican majority, the Senate is a different institution today.  The Senate is actually having debates and amendments to bills by its members. 

However, Senator Reid is not done trying to screw up the Senate.  After a Human Trafficking bill passed a Senate committee unanimously and in a bipartisan fashion, Reid held up the bill because he did not like a small provision of the language. 

Reid stopped the bill.  In response, Senator McConnell refused to schedule a vote on Loretta Lynch to be Attorney General until the unanimously agreed on in committee bill on Human Trafficking went forward.  Democrats, led by Reid and Dick Durbin of Illinois even cried racism for the Republicans desire to have a vote to stop human trafficking first. 

Reid’s plan backfired on many levels thanks to McConnell’s leadership. 

First off, Senator McConnell with the power of the majority never wavered and the Human Trafficking bill was passed. 

Second, Loretta Lynch went from a sure thing to in doubt as time went on.  With more time to look at her record and her failure to distant herself from the most partisan Attorney General in recent memory, Lynch’s confirmation was much closer than originally expected with 43 votes in the end against her. 

Senator Reid’s antics accomplished nothing to stop the Human Trafficking bill but did hurt Obama’s choice for Attorney General.

Thank you to Senator McConnell for standing up and defeating Harry Reid.  Hopefully Senator Reid learned something but we doubt it.  We look forward to Senator McConnell continuing to lead an effective Senate.  

"It's Okay to Kill the US citizen, but Not to Detain Them"

The Republican National Lawyers Association joined a coalition of groups in opposing David Barron to be a judge on the First Circuit.  Barron’s nomination has drawn widespread criticism from the left (ACLU) and right-of-center groups.  An excerpt from the letter:

Because the First Circuit is so small – with a maximum of just six full-time judges – Barron could quickly do a lot of damage to the body of federal law governing the First Circuit. The people of Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico would suffer as a result.

For example, Professor Barron is not content to just praise Kelo vs. City of New London, the 2005 Supreme Court decision that allowed local governments to seize residents’ homes to give to private developers. Barron wants to go further in eroding private property rights, calling for "a degree of land use regulation that it is not clear current views of due process … permit." He would go so far as to “challenge the way state legislatures and executive branches are now configured” because "state legislatures … by most accounts are really not suited to assume the kind of [land use] planning tasks that a progressive vision would require."

Professor Barron’s desire to erode private property rights is just part of his push for a dramatic increase in the federal regulation of business and free markets generally. Barron advocates for “a progressive federalism” that “would give states and local governments much greater room to regulate the private market” and “private business.”

Although Barron sees himself as a progressive, his politicized view of the law should worry even progressives. For example, as head of the Justice Department’s Office of Legal Counsel (OLC), Barron was the legal architect of the Obama Administration’s strategy of using drone strikes to kill American citizens deemed wartime enemies without a trial or other due process. Even the liberal American Civil Liberties Union notes that Barron is apparently the only “federal government lawyer in modern American history” to sign “a legal opinion authorizing, without any judicial order, the killing of an American citizen away from a battlefield.” When asked by legal analyst Jeffrey Toobin whether this opinion means "it's okay to kill the US citizen, but not to detain them," Baron agreed.

Mr. Barron is an extremist who has no business being a judge.  Senator Reid executed the so-called “Nuclear Option” to clear the way for such nominees but we remain hopeful that moderate Democrats, or at least those in tough election races, will join with Republicans and stop this far outside the mainstream judge from being confirmed to a lifetime job.  

Senator Grassley on the State of the Senate

Senator Grassley is class act that has the respect of the Republicans and Democrats of the Senate.  Well accept one.  Senate Majority Leader Harry Reid who broke hundreds of years of Senate tradition in executing the Nuclear Option and ending many minority rights in the Senate has gone to the Senate floor to call Senator Grassley a liar.  Of course, Senator Grassley is no such thing and Senator Reid is having yet another fit.  Senator Reid is angry that Senators won’t treat him with the respect he feels he deserves as the new Senate dictator. 

Unlike Senator Reid, Senator Grassley remains a courteous class act in his response.  More importantly Senator Grassley uses something that Senator Reid does not use, FACTS.  While the rebuttal is long, it is an important primer on what is really going on in the Senate that Harry Reid is trying to destroy with his hypocritical and dictator-like ways.  We have bolded a few key parts. 

Prepared Floor Statement of Senator Chuck Grassley

Ranking Member, Senate Judiciary Committee

Nominations and the State of the Senate

Tuesday, March 4, 2014

Mr. President,

Several weeks ago, on February 12th, as Washington D.C. braced for a snowstorm and the Senate rushed to finish its business before the President’s Day recess, the senior Senator from Arkansas came to the floor to offer a Unanimous Consent request to confirm a district court judge from his state.

Before he made the request, I spoke with that Senator – who to his credit, was one of only three Democrats to vote against the so-called Nuclear Option last November.

Although I was sympathetic to his desire to see his home state judge confirmed, I objected to his request to bypass the procedure the Majority adopted in November, including recorded cloture and confirmation votes.

I did so based on principle.  I did so because, after 52 Democrats voted to strip the Minority of its rights, the very least we could do is ask the Majority to utilize the procedure they voted to adopt.

After all – the simple fact of the matter is that the Minority can no longer stop nominees.  That was the whole point of what they did in November.

So the Senator from Arkansas offered his Unanimous Consent request, and I withheld my consent.  We had our exchange on the floor.

But we did so courteously.  As senators should.

Later that evening, the Majority Leader came to the floor and made another Unanimous Consent request.  Senator Cornyn objected, for the same reasons as I had.  Thereafter, the Majority Leader exercised the power that he alone possesses to move these judges, and filed cloture on four district court nominees.

That set up several votes for last Monday evening.

That evening, during our side’s hour of debate time – and that’s all we have anymore on district court judges, one hour of debate time for each side – I spoke on the current state of the Senate with respect to the legislative process.

I spoke about how the Founding Fathers intended the Senate to operate.  I spoke about how the Senate used to operate. How it should operate.  And sadly, how it does operate.

I spoke about how the Majority Leader routinely files cloture on bills before debate has even begun.  I spoke about how in today’s Senate – in what is supposed to be the world’s greatest deliberative body – United States senators from great states all over this nation are shut out of the process.

As our side’s hour of debate time neared its end, the distinguished Chairman of our committee asked if I would yield him a few minutes of our time.

I of course agreed to extend him the courtesy.

I extended him the courtesy even though I knew he’d use that time to argue against everything I’d just said.

I extended him the courtesy because I know he’d do the same for me.  And, as a matter of fact, he has done the same for me.

That’s the United States Senate.  We’re courteous to each other.  Even when we disagree.

As I said, that was Monday night.

On Tuesday morning, we had a series of stacked votes related to those district court nominees.  We had several cloture votes, as well as confirmation votes. I voted against cloture – along with many of my colleagues.  I don’t presume to speak for my colleagues, but I voted against cloture to register my objection to a process arrived at via brute force.

We also had roll call votes on each nominee.

But the Majority Leader wasn’t content to simply use the procedures he led his caucus to adopt last November.

He wanted voice votes rather than recorded roll call votes on those lifetime appointments.

I objected.  And I exercised the right of a United States Senator to ask for a roll call vote of yeas and nays.  I supported each of the nominees on final confirmation.  Some of my colleagues opposed them.  But even if the votes had been unanimous, the right to demand a recorded voted is one the most basic and fundamental rights of a United States Senator.

There is absolutely nothing wrong with exercising that right --  especially on a lifetime appointment.

Before we had that recorded vote, I took the opportunity to remind my colleagues of how well this President is doing with respect to getting his judges that he nominates confirmed by the United States Senate.  Specifically, I informed everyone that thus far this Congress, we’ve confirmed 50 of President Obama’s judicial nominees.  By way of comparison, at this point in President Bush’s second term, we had confirmed only 21 judicial nominees.

Those numbers compare district and circuit nominations.  That’s the benchmark both sides typically use.

Those are basic, unassailable facts.

In response, the Majority Leader described our request for recorded votes as “a waste of taxpayer time.”

And then he concluded his brief remarks by saying this: “I would suggest to my friend the senior Senator from Iowa that he not believe his own words because they are simply not true.”

That was on Tuesday.

Two days later on Thursday evening the Majority Leader came to the floor and proffered a Unanimous Consent request for several district court judges.  Senator Moran was on the floor at the time and objected for our side.

Thereafter, the Majority Leader filed cloture on 4 district court judges and the nominee to lead the Justice Department’s Civil Rights division.

A few minutes later, the Majority Leader returned to the floor so he could, as he described it, “say a few words about the man who does all the objecting around here – or a lot of the objecting.”

He then proceeded to quote extensively from a speech I delivered in 2005.

He then accused me of violating senatorial courtesy during floor consideration of the immigration bill because I objected to consideration of amendments approved by Democrats, without assurances that we would vote on amendments that members on my side wanted to offer.

Even if some of the amendments the Democrats wanted had bipartisan support, I was the Senator standing up and defending the right of our members to offer amendments.  Even controversial amendments. 

To be clear.  I was prepared to vote on any Democrat amendment, provided that Republican amendments were not restricted.

The Majority Leader then concluded his highly discourteous remarks by saying this: “the Senior Senator from Iowa, he’s talking out of both sides of his mouth and the people of Iowa should check this out.  [They should] see what he says and what he does.”

Given how inappropriate these remarks were, and that they roughly coincided with several other inappropriate comments the Majority Leader made last week, I feel compelled to respond.

Let me start by reviewing briefly how we arrived where we are today.  As I said, the Majority Leader quoted from a speech I delivered in 2005. 

For the benefit of my colleagues who weren’t here at the time, that was back when the Democrats were indiscriminately filibustering a host of President Bush’s highly qualified nominees for the circuit courts.

And make no mistake, the Democrats were utilizing the filibuster on judges to an extent never witnessed before in our nation’s history.

During this time period, they were filibustering 10 different circuit court nominees.

So like I said, the Majority Leader quoted from a speech I delivered during that debate, on May 23, 2005.

What he failed to mention is that 6 days earlier, on May 17, 2005, he said this on the Senate floor regarding the nuclear option:

“It appears that the Majority Leader [referring to Senator Frist] cannot accept any solution which does not guarantee all current and future judicial nominees an up-down vote.  That result is unacceptable to me because it is inconsistent with the Constitutional checks and balances.  It would essentially eliminate the role of the Senate minority in confirming judicial nominations and turn the Senate into a rubberstamp for the President’s choices.”

I’m not going to re-litigate that fight today, except to say this.  At the time, Republicans, myself among them, were arguing those nominees should be afforded up and down votes.

But as the quotation I just read demonstrates, the Democrats refused.

At the end of the day, our side lost that debate.

We didn’t believe judicial nominees should be subjected to a 60 vote threshold.  But nor did we believe that we should play by two sets of rules.

So when the roles were reversed and there was a Democrat in the White House, Republicans utilized the tool as well.  The only difference was that we used it much, much more sparingly. 

But the Democrats, of course, didn’t like being treated to the tactic that they pioneered.  So, they began to threaten to utilize the so-called Nuclear Option.

A lot of negotiations ensued between our side, and the Majority Leader.  And again, I’m not going to review every detail.  But as any member of this body can tell you, the result of those negotiations was this: We relinquished certain rights regarding nominations.

For instance, District Court nominations used to be subject to 30 hours of debate time.  They are now subject to only 2 hours.

In exchange for relinquishing those rights, the Majority Leader of the United States Senate gave his word that he would oppose ANY EFFORT to use the Nuclear Option.

On January 27, 2011, the Majority Leader said this on the Senate floor: “I will oppose any effort in this Congress or the next to change the Senate’s rules other than through the regular order.”

Notwithstanding that promise, at the beginning of the next Congress, we were once again on the receiving end of threats regarding the Nuclear Option.  And once again, on January 24, 2013, after a lot of negotiations, the Majority Leader again gave his commitment.

Here is what the Majority Leader said on the floor of this chamber:

“Any other resolutions related to Senate procedure would be subject to a regular order process, including consideration by the Rules Committee.”

That commitment mattered.  It mattered to me.  It mattered to my colleagues.  We relinquished certain rights.  In exchange for extinguishing those rights, we received a commitment from the Majority Leader of the United States Senate.

And remember, colleagues.  This is the United States Senate.  Not only are we courteous to one another.  We keep our word.

10 months after making that commitment, on November 21, 2013, the Majority Leader and 51 other Democrats voted to invoke the Nuclear Option. They chose to adopt a new set of procedures for confirming judges.

So that is how we got where we are today.

And yet, three months later, when the Minority has the audacity to insist that the Majority utilize the procedures they voted to adopt, the Majority Leader comes to the floor to level an ad-hominem attack.

Amazingly, given the commitments he made at the beginning of the last two congresses, he accused me of speaking out of both sides of my mouth.

The fact of the matter is there is absolutely nothing wrong with demanding debate time and roll call votes – especially on lifetime appointments to the Judiciary.  And especially after the Majority chose to adopt these very procedures just last November.

That’s not “a waste of taxpayer time,” as the Majority Leader called it.  It’s representative government.

And while I’m on the subject of the floor procedure, let me say this about the legislative process we’ve been following on the floor. 

I spoke at length on this subject last Monday – just as I have on several other occasions.  I’ve been highly critical of the process we follow these days on the floor.

But I’ve always tried to avoid making my criticisms personal. I’ve always tried to be courteous.

But there is no getting around this fact:  it’s nothing short of a travesty that great senators from all over this nation must go to the Majority Leader to ask permission to offer amendments.

Proud senators from proud states.

Republican senators and Democrat senators.

Conservative senators.  Liberal senators.

Northerners and Southerners.

Appropriators and Authorizers.

Hawks and Doves.

All of these senators have been reduced to this:  They are forced to come before one individual, on bended knee, to ask permission – PERMISSION – to offer amendments.

That is NOT as it should be in the world’s greatest deliberative body.

So am I highly critical of the legislative process we undergo on the floor?  Absolutely I am.

But I didn’t criticize the Majority Leader in a personal or discourteous way.  I didn’t accuse him of “talking out of both sides of his mouth,” as he did me.

I wasn’t attacking him personally: I was defending the rights of 99 other senators.

And what, exactly, is the Majority afraid of, anyway?  Taking a few hard votes?

We’re paid to take hard votes.  We’re sent here to exercise our best judgment on behalf of our constituents. 

That’s how our Republic is designed.

It does not have to be this way.

Consider how amendments are handled in the Judiciary Committee, for example.

Our Chairman DOES NOT tell us what amendments we’re allowed to offer.  Nor does he tell us how many amendments we’re allowed to offer.

He controls the agenda.  But WE get to offer amendments.

As a result, every single member of our committee – whether they like it or not -- contributes to the process.

The Chairman controls the agenda.  The Minority offers amendments.  And the Majority has to vote on those amendments.  That’s the process.

That’s what happens when you have a Chairman who respects the rights of United States senators.

There is absolutely no reason we couldn’t take the same approach on the floor.

Now, let me mention one other thing about what the Majority Leader said the other night, because I found it particularly offensive.

Immediately after accusing me of “talking out of both sides of my mouth,” the Majority Leader suggested that the people of Iowa should pay attention to what I say and what I do.

Let me tell you something.

The people of Iowa know who they’ve elected to the Senate.  They know that ever since I was first sworn-in to this body in January of 1981, I have fought all day, every day, to represent them.

I know my constituents, and they know me.

I go to constituent meetings in every one of our 99 counties every year.

I talk to my constituents.  I read their mail.

And I know, for instance, how hard Obamacare has been on families in my state.

So I find it personally offensive for the Majority Leader to come to the floor –as he did last Wednesday - and accuse Americans – including my constituents – of telling lies when they share their stories about how Obamacare is impacting them.

So, last Thursday evening the Majority Leader came to the floor so he could, as he described it, “say a few words about the man who does all the objecting around here.”

Well, Mr. President.  Do I object?  You bet I do.

So do the rest of my committee members.  And so does the rest of our caucus.

We object to the authoritarian way this Senate is being run.

We object to being shut out of the legislative process.

We object to dismissing constituent stories about Obamacare as lies.

We object to taking to the floor of the United States Senate to attack fellow citizens as “un-American” because they have the audacity to exercise their First Amendment rights.

And yes, we object to discourteous ad hominem attacks on Senate colleagues because they choose to exercise their right to demand roll call votes on lifetime appointments.

It should stop.  The Senate should return to being the greatest deliberative body in the world.

I yield the floor.

A Nomination for DOJ Civil Rights so Extreme that Even a Liberal Democrat Senator Opposes

How extreme is Debo Adegbile, President Obama’s nominee to be the Assistant Attorney General for Civil Rights? He is so extreme that he opposed by reliably liberal Democrat Senator Bob Casey of Pennsylvania.  Senator Casey said in a statement on February 28.

The vicious murder of Officer Faulkner in the line of duty and the events that followed in the 30 years since his death have left open wounds for Maureen Faulkner and her family as well as the City of Philadelphia. After carefully considering this nomination and having met with both Mr. Adegbile as well as the Fraternal Order of Police, I will not vote to confirm the nominee.

While much of the focus has been on Adegbile’s defense of a vicious cop killer it is much more than that.  As we pointed out previously he was allegedly too extreme to be a judge for the ABA.  He attacks voter ID law as a modern poll tax despite the fact almost all, if not all, voter ID laws provide for a free ID for those who cannot afford it.

Instead he is predictably to the left, as in his assessment of a voter ID card as a “modern poll tax,” notwithstanding that 30 states have voter ID laws, and that the Supreme Court has sustained a voter ID law against constitutional challenge.

He opposes Criminal background checks before hiring. 

It's not unusual for businesses to conduct a check before hiring new employees. If the check uncovers that the applicant has, say, a felony conviction in his past — well, that can put a quick end to the application process.

But Obama's Equal Employment Opportunity Commission has ruled that the use of background checks in hiring is racially discriminatory. In 2012, the EEOC issued "guidance" to the nation's businesses, citing statistics showing blacks and Hispanics are convicted of crimes at significantly higher rates than whites. Therefore, the EEOC ruled, excluding job applicants based on their criminal records would have "a disparate impact based on race and national origin."

In written questions, Republican Sen. Chuck Grassley asked Adegbile whether he would, if confirmed, "take action to abridge or eliminate an employer's ability to perform criminal background checks on potential employees." Adegbile embraced the EEOC position and suggested it would guide his own actions in the Justice Department. "If employers do perform background checks, the EEOC has released guidance on the subject," he told Grassley.

As the Adegbile nomination nears a vote, the Civil Rights Commission's Kirsanow has written a letter to the Senate opposing Adegbile not just for his activities on behalf of Abu-Jamal -- still the hottest issue in the Adegbile debate -- but also for his support of the EEOC on background checks. "Mr. Adegbile's support for the guidance demonstrates his commitment to an ideological agenda at odds with the law and common sense," Kirsanow wrote.

We could go on but Debo Adegbile is a nominee that should be too extreme for all Democrats.  Hopefully enough Democrat Senators will join with Senator Casey and stand up against this extremist nomination.  

Obomination: Harry Reid and the Democrats Broke the Senate and They're Not Done Breaking

As usual the Democrats are trying to blame the Republicans with what is going wrong instead of trying to fix things.  Actually in this case it is because of something they broke. 

Senator Chuck Grassley has a unique perspective on this matter.  He has served long enough to be in the Senate in all control scenarios.  A Democrat or Republican President with both a Democrat and Republican Senate.  He knows how the Senate works and it is not working now. 
The reason is simple:

The Senate Majority Leader has effectively become a one man version of the House Rules Committee, dictating what amendments will be debated and which ones will never see the light of day.

This strips the ability of individual senators to effectively represent their state, regardless of party.

It also virtually guarantees that any legislation the Senate votes on will be more partisan in nature.

I would ask my colleagues across the aisle, isn’t your first responsibility to the people of your state, not your party leadership?

Unfortunately the answer to Grassley question is many of the Democrat Senators no longer care about the voters or the people of their states.  All they care about is the party and advancing President Obama’s regulatory agenda through appointments now. 

The situation is only getting worse.  It has spread to the committee level, where Patrick Leahy is once again making things up.  As Senator Grassley stated in response to Senator Leahy latest persecution fantasy:

There's no doubt that after the Democrats broke the rules to change the rules, it’s going to be harder to get things done.  There is only one party that voted for the irresponsible rules change.  And, the fact of the matter is that given the atmosphere the Democrats created by invoking the nuclear option, nominations are going to be given added scrutiny.

It’s interesting that Democrats are blaming Republicans for not being at an executive business meeting last month.  They must have a short memory.  That was the very day and time that the Democrats decided to ignore two centuries of Senate history and precedent to break the rules and invoked the nuclear option with a simple majority vote, thereby disrupting the committee mark-up.

The so-called obstruction of nominees is a figment of the Democrats’ imagination.  They are blatantly misleading the public.  We have confirmed 44 judicial nominees this year alone.  To put this number in context, the Democrats allowed only 21 of President Bush’s judicial nominees to be confirmed in the fifth year of his presidency.   The only thing being obstructed is the rights of the minority.

Now, they are resorting to new threats at the committee level.  It’s a sad commentary on the Democrats’ rule of the Senate and the Obama administration.  They are slowly but surely taking the world’s greatest deliberative body and moving towards a majoritarian body, all in the name of rubberstamping the President’s extremely unpopular regulatory agenda.

The only solution is a Republican Senate for Christmas in 2014. 

The IRS Nightmare Before Christmas

Overlooked fallout from the Democrats breaking hundreds of years of Senate tradition and destroying the rights of the minority over judicial extremist nominees by invoking the nuclear option are zombie agencies coming alive and other controversial nominees pushed through quickly.  On the latter is the nominee for IRS Commissioner John Koskinen. 

If there ever was a time to work together in a bipartisan fashion over a nominee; it is now over the next person to be IRS Commissioner.  In light of the unprecedented and illegal intimidation tactics of the left against conservative groups, the next IRS Commissioner should receive special scrutiny.  Instead Harry Reid is likely going to push ahead with Koskinen’s nomination. 

Why is this so important?  Koskinen will be overseeing the latest attempt by the IRS to chill and silence the speech of those it does not like.  As Hans von Spakovsky writes:

As if the indefensible attack on Tea Party and other conservative organizations documented by the IRS Inspector General wasn’t enough, the IRS is now proposing new regulations that would further restrict the activity of these organizations and give IRS officials even more power to intimidate – sorry, regulate – them. This is, of course, the exact opposite of what should be done to reverse the politicized targeting that IRS bureaucrats have been engaged in.

The proposed regulation would redefine what the IRS considers “candidate-related political activity” for §501(c)(4) organizations.  It is a thinly veiled attempt to overturn the U.S. Supreme Court’s decision in Citizens United by executive fiat, after the administration failed in a similar attempt when it couldn’t get the DISCLOSE Act  passed by Congress.  The regulation would seriously infringe the First Amendment rights of advocacy organizations.

. . . Finally, the proposed regulation very unsubtly tries to impose a new rule that the Supreme Court already found unconstitutional in Citizens United v. FEC.  One issue in that case was a federal campaign finance rule that prohibited labor unions and corporations – both profit and nonprofit – from running any broadcast ad that “refers to a clearly identified” federal candidate within 30 days of a federal primary or 60 days of the general election.  The problem with this provision was that it banned pure grassroots lobbying ads that had nothing to do with an election.

. . . Yet the IRS is proposing to implement the exact same language the Supreme Court found unconstitutional.  It defines as “candidate-related political activity” a communication “within 30 days of a primary election or 60 days of a general election that refers to one or more clearly identified candidates.”

The fears of conservatives and those who value free speech continued to be justified.  Harry Reid ramming through a nominee to oversee more partisanship and restriction of speech at the IRS is only going to make matters worse.  

The EAC, The Government’s Weekend At Bernie’s

Today the Senate will hold confirmation hearings for two commissioners to the Election Assistance Commission(EAC).  There are many problems with this.  First, the two potential commissioners are both Democrats with no similar Republicans.   The Federal Election Commission by contrast only approves paired, Democrat and Republican, nominees.  Second, the agency has served the purpose for which it was created and was supposed to sunset in 2005.  Third, read below for the House Administration Committee view:

“For the past two years, the EAC has limped along without purpose or benefit, costing taxpayers over 11 million each year.  It’s a zombie agency that epitomizes bureaucracy and government waste, which is why this Committee and the House have voted multiple times to shut it down – but not the Senate. To the contrary, Wednesday, the Democratic-controlled Senate is holding a confirmation hearing to place commissioners there for the first time in two years.

“The EAC is dead, and having two commissioners carrying it between them like a scene from Weekend At Bernie's doesn't make it any more alive, or any more useful. Unfortunately, since the Senate changed its rules, it could approve these nominations on a purely partisan basis and continue to force taxpayers to subsidize government waste."

To be clear with only two Democrats the agency cannot do much besides continue to waste taxpayers’ money and create more partisan elections. This is another fallout of the” nuclear option” passed by Senate Democrats to destroy hundreds of years of tradition and minority rights in the Senate.  Now bipartisan agencies that have sunseted will become partisan agencies, even on what should be the most non-partisan of activities, elections. 

Obomination: Illegal Appointments Spur The Democrats Need For Harry Reid's "Nuclear Option"

Yesterday, Harry Reid threatened to invoke the so-called nuclear option on the filibuster and change the Senate rules so that only 51 votes were required to overcome a filibuster, rather than 60, unless Republicans agreed to approve several stalled executive branch nominees.

Republican Leader Mitch McConnell stood on the floor yesterday trying to reason with Majority Leader Reid.  However nothing seemed to get through to the Nevada Democrat and he persisted with his stance on the nuclear option. The odd thing about it is that all this posturing by Reid is because three of the nominees were appointed illegally according to the National Labor Relations Board.

Senator McConnell in his speech on the floor yesterday laid out the whole situation:

“So let me sum up once what’s going on here: Senate Democrats are getting ready to do permanent damage to this body to confirm three unconstitutionally appointed nominees by a simple majority vote. If this isn’t the definition of a power grab, I don’t know what is: the President appoints three people unconstitutionally. The second highest court in the land confirms that they were unlawfully appointed. And Senate Democrats want to break the rules of the Senate to confirm them. This isn’t the story that Democrats like to tell, but it’s the truth. This entire phony crisis boils down to these three unlawful nominees.”

Senator McConnell then tried to explain how in fact Senate Republicans were not actually holding anything up and it is just a false narrative being pushed by desperate Democrats frustrated that they can’t get their illegally appointed nominees confirmed.

“The Democrats say we’re holding up others. It’s not true. The truth is, if there’s anyone to blame for holding things up in the Senate, it’s the Democrat Majority. They’re the ones blocking nearly 30 fast-track nominations, many of which Republicans have already agreed to confirm unanimously. And they’re the ones – Democrats – who have yet to schedule votes on the McCarthy and Perez nominations, despite the fact that both of these highly controversial nominees already have enough votes to clear a 60-vote hurdle.”

Senator McConnell then speculated into the real reasons behind this unlawful power grab that will permanently alter the Senate:

“No, the real reason, as I said, that the Far-Left and Big Labor are leaning hard on Democrats to ‘go nuclear’, and that the Majority Leader is about to sacrifice his reputation and this institution to go along with it, is because what they really want is for the Senate to ratify the President’s unconstitutional decision to illegally appoint nominees to the NLRB and the CFPB without the input of the Senate. They know they can’t get that done under the current rules, and they know time isn’t on their side. The second highest court in the land ruled unanimously that President Obama had no power to do what he did. Another court has since concurred, and now the Supreme Court is set to hear the case in just a few months.”

In conclusion Senator McConnell said:

“So this isn’t really a fight over nominees at all. It’s a fight over these illegal, unconstitutional nominees. It’s just laughable to think that Democrats would ever agree to such a thing if we were talking about a Republican President’s unlawful nominees. And it’s equally irrational to think we’d go along with this. In fact, no Senator, regardless of party, should ever consider ceding our Constitutional duties in such a way.

This whole situation comes down to Senate Democrats attempting to jam down the throat of the Senate Republicans, three unconstitutionally appointed nominees who currently are working in their position illegally according to the NLRB. Something needs to be done. The RNLA yesterday wrote a letter to the Republican Leadership in the Senate laying out the potential damage this nuclear option could cause.