Statement Of Senator Patrick Leahy
On The Breach Of Judiciary Committee Rules
March 27, 2003

It should concern all members of the Committee, of both parties, that during the course of the February 27 business meeting, the Committee’s current majority repeatedly violated our longstanding Committee rules and unilaterally declared the termination of debate on two controversial circuit court nominations.  This is no small matter.  It is of significant importance not only for now, but also for the future, and my detailed statement this morning is offered so the record will be clear for audiences now, and later.

Senator Daschle termed this breach of the rules deeply troubling and a “reckless exercise of raw power by a Chairman,” and he is right.  He observed that the work of this Senate has for over 200 years operated on the principle of civil debate, which includes protection of the minority.  When a Chairman can on his own whim choose to ignore our rules that protect the minority, not only is that protection lost, but so is an irreplaceable piece of our integrity and credibility. 

The Democratic Leader noted that faithful adherence to rule is especially important for the Senate and for its Judiciary Committee.  He noted “how ironic that in the Judiciary Committee, a Committee which passes judgment on those who will interpret the rule of law,” that it acted in conscious disregard of the rules that were established to apply to its proceedings.  If this is what those who pontificate about “strict construction” mean by that term, it translates to winning by any means necessary. If this is how the judges of the judicial nominees act, how can we expect the nominees they support as “strict constructionists” to behave any better?  Given this action in disrespect of the rights of the minority, how can we expect the Judiciary Committee to place individuals on the bench that respect the rule of law?

In my 29 years in the Senate and in my reading of Senate history, I cannot think of so clear a violation of Senators’ rights.

As Chairman of the Agriculture Committee, as Chairman of the Subcommittee on Foreign Operations of the Appropriations Committee and as Chairman of the Judiciary Committee, I strove always to protect the rights of the minority.  I did not always agree with what they were saying or doing,   I did not always find it convenient, but I protected their rights.  It was not always as efficient as I might have liked, but I protected their rights.  That is basic to this democracy and fundamental to the Senate of the United States.  Senators respect other Senators’ rights and hear them out. 

There is no question that the Senate majority is in charge and responsible for how we proceed.  I understand that and always have – I only wish that some on the other side of the aisle had shared that view when I chaired the Judiciary Committee last year.  But in the Senate the majority’s power is circumscribed by our rules and traditional practices.  We protect and respect the rights of the minority in this democratic institution for the same reason we steadfastly adhere to the Bill of Rights.

I am concerned about this abuse of power and breach of our Committee rules.  When the Judiciary Committee cannot be counted upon to follow its own rules for handling important lifetime appointments to the federal judiciary, everyone should be concerned.  In violation of the rules that have governed that Committee’s proceedings since 1979, the Chairman chose to ignore our longstanding Committee Rules and short-circuit Committee consideration of the nominations of John Roberts and Deborah Cook.  Senator Daschle spoke to that matter that day.  Senator Feinstein, Senator Schumer, Senator Durbin and Senator Feingold have also spoken to this breach of our rules as well as a number of other liberties that Republicans have been taking with the rules.

Since 1979 the Judiciary Committee has had this Committee rule, Rule VI,  to bring debate on a matter to a close while protecting the rights of the minority.  It may have been my first meeting as a Senator on the Judiciary Committee in 1979 that Chairman Kennedy, Senator Thurmond, Senator Dole, Senator Cochran and others discussed adding this rule to those of the Judiciary Committee. 

Senator Thurmond, Senator Hatch and the Republican minority at that time took a position against adding the rule and argued in favor of any individual Senator having a right to unlimited debate– so that even one Senator could filibuster a matter.  Senator Hatch said that he would be “personally upset” were unlimited debate ended. 

He explained:

“There are not a lot of rights that each individual Senator has, but at least two of them are that he can present any amendments which he wants and receive a vote on it and number two, he can talk as long as he wants to as long as he can stand, as long as he feels strongly about an issue.  I think those rights are far superior to the right of this Committee to rubber stamp legislation out on the floor.”

It was Senator Dole who drew upon his Finance Committee experience to suggest in 1979 that the Committee rule be that “at least you could require the vote of one minority member to terminate debate.”  Senator Cochran likewise supported having a “requirement that there be an extraordinary majority to shut off debate in our Committee.” 

The Judiciary Committee proceeded to adopt Rule IV and it has been maintained ever since.  It struck the balance that Republicans had suggested by requiring the agreement of one member of the minority before allowing the Chairman to cut off debate. 

That protection for the minority has been maintained by the Judiciary Committee for the last 24 years under five different chairmen – Chairman Kennedy, Chairman Thurmond, Chairman Biden, under Chairman Hatch previously and during my tenure as chairman. 

Rule IV of the Judiciary Committee provides the minority with a right not to have debate terminated and not to be forced to a vote without at least one member of the minority agreeing.  That rule and practice had until last month always been observed by the Committee, even as we have dealt with the most contentious social issues and nominations that come before the Senate. 

Until last month, Democratic and Republican Chairmen had always acted to protect the rights of the Senate minority.  The rule has been the Committee’s equivalent to the Senate’s cloture rule in Rule 22.  It had been honored by all five Democratic and Republican chairman, including Senator Hatch – until last month. 

It was rarely utilized, but Rule IV set the ground rules and the backdrop against which rank partisanship was required to give way, in the best tradition of the Senate, to a measure of bipartisanship in order to make progress.  That is the other important function of the rule. 

Besides protecting minority rights, it enforced a certain level of cooperation between the majority and minority in order to get anything accomplished.  That, too, has been lost as the level of partisanship on the Judiciary Committee and within the Senate reached a new low when Republicans chose to override our governing rules of conduct and proceed as if the Senate Judiciary Committee were a minor committee of the House of Representatives. 

That this was a premeditated act is apparent from the debate in the Committee.  Senator Hatch indicated that he had checked with the parliamentarians in advance, and he apparently concluded that since he had the raw power to ignore our Committee rule so long as all Republicans on the Committee stuck with him, he would do so.  I understand that the parliamentarians advised Senator Hatch that there is no enforcement mechanism for a violation of Committee rules and that the parliamentarians view Senate Committees as “autonomous.”  I do not believe that they advised Senator Hatch he should violate our Committee rules or that they interpreted our Committee rules.

I cannot remember a time when Senator Kennedy or Senator Thurmond or Senator Biden were chairing the Committee when any of them would have even considered violating their responsibility to the Senate and to the Committee and to our rules.  Accordingly, we have never been faced with a need for an “enforcement mechanism” or penalty for violation of a fundamental Committee rule. 

In fact, the only occasion I recall Senator Hatch was previously faced with implementing Committee Rule IV, he did so.  In 1997 Democrats on the Committee were seeking a Senate floor vote on President Clinton’s nomination of Bill Lann Lee to be the Assistant Attorney General for Civil Rights at the Department of Justice. 

Republicans were intent on killing the nomination in Committee.  The Committee rule came into play when in response to an alternative proposal by Chairman Hatch, I outlined the tradition of our Committee.  I said:

“This committee has rules, which we have followed assiduously in the past and I do not think we should change them now.  The rules also say that 10 Senators, provided one of those 10 is from the minority, can vote to cut off debate.  We are also required to have a quorum for a vote.

I intend to insist that the rules be followed.  A vote that is done contrary to the rules is not a valid one.”

Immediately after my comment, Chairman Hatch abandoned his earlier plan and said: 

“I think that is a fair statement.  Rule IV of the Judiciary Committee rules effectively establishes a committee filibuster right, as the distinguished Senator said.”

With respect to the nomination in 1997, Chairman Hatch acknowledged:

“Absent the consent of a minority member of the Committee, a matter may not be brought to a vote.  However, Rule IV also permits the Chairman of the Committee to entertain a non-debatable motion to bring any matter to a vote. 

The rule also provides as follows:  ‘The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote.  If there is objection to bring the matter to a vote without further debate, a rollcall vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the Minority.”

Thereafter, given the objection, the Committee proceeded to a roll call vote whether to end the debate. 

That was consistent with our longstanding rule.   In that case, Chairman Hatch followed the rules of the Committee. 

At the beginning of our meeting on February 27, I referenced the Committee’s rules and during the course of the debate on nominations both Senator Kennedy and I sought to have the Committee follow them.  We were overridden. 

Last month the bipartisan tradition and respect for the rights of the minority ended when Chairman Hatch decided to override the rule rather than follow it.  He did so expressly and intentionally, declaring: “[Y]ou have no right to continue a filibuster in this committee.” 

He decided, unilaterally, to declare the debate over even though all members of the minority were prepared to continue the debate and it was, in fact, terminated prematurely.  I had yet to speak to any of the circuit nominees and other Democratic Senators had more to say. 

Senator Hatch completely reversed his own position from the Bill Lann Lee nomination and took a step unprecedented in the history of the Committee.  Contrast the statements of Senator Hatch in 1979 when he supported unlimited debate for a single Senator – with Republicans in the minority –  with his action overriding the rights of the Democratic minority and his recent letter to Senator Daschle in which, now that Republicans hold the Senate majority, he says that he “does not believe the Committee filibuster should be allowed and [he] thinks it is a good and healthy thing for the Committee to have a rule that forces a vote.” 

But our Committee rule, while providing a mechanism for terminating debate and reaching a vote on a matter, does so while providing a minimum of protection for the minority.  It is even that minimum protection that Chairman Hatch will no longer countenance.

Contrast Senator Hatch’s recognition in 1997 that Rule IV establishes a Judiciary Committee “filibuster right” and that “[a]bsent the consent of a minority member of the Committee, a matter may not be brought to a vote,” with his declaration last month that there is no right to filibuster in committee. 

In his recent letter to Senator Daschle he declared that he “does not believe that Committee filibusters should be allowed.”  It is Senator Hatch who “turned Rule 4 on its head” last month, after 24 years of consistent interpretation and implementation by five chairmen.  Never before his letter to Senator Daschle has anyone since the adoption of the rule in 1979 ever suggested that its purpose was to be narrowed and redirected to thwart “an obstreperous Chairman who refuses to allow a vote on an item on the Agenda.”  After all, as Senator Hatch recognizes in his letter, it is the chairman’s prerogative to set the agenda for the markup.

This revisionist reading of the rule is not justified by its adoption or its prior use and appears to be nothing other than an after the fact attempt to justify the obvious breaches of the longstanding Committee rule and practice that occurred last month.  It was not even articulated contemporaneously at the business meeting.

I appreciate the frustrations that accompany chairing the Judiciary Committee.  I know the record we achieved during my 17 months of chairing the Committee, when we proceeded with hearings on more than 100 of President Bush’s judicial nominees and scores of his executive nominees, including extremely controversial nominations, when we proceeded fairly and in accordance with our rules and Committee traditions and practices to achieve almost twice as many confirmation for President Bush as the Republicans had allowed for President Clinton, and I know how that record was mischaracterized by partisans.  Those 100 favorably reported nominations included Michael McConnell, Dennis Shedd, D. Brooks Smith, John Rogers, Michael Melloy and many others.

I know that sometimes a chairman must make difficult decisions about what to include on an agenda and what not to include, what hearings to hold and when.  In my time as chairman I tried to maintain the integrity of the Committee process and to be bipartisan.  I noticed hearings at the request of Republican Senators and allowed Republican Senators to chair hearings.  I made sure the Committee moved forward fairly on the President’s nominees in spite of the Administration’s unwillingness to work with us to fill judicial vacancies with consensus nominees and thereby fill those vacancies more quickly. 

But I cannot remember a time when Chairman Kennedy, Chairman Thurmond, Chairman Biden, Chairman Hatch previously, or I, ever overrode by fiat the right of the minority to debate a matter in accordance with our longstanding Committee rules and practices. 

The Committee and the Senate have crossed a threshold of partisan overreaching that should never have been crossed.  I urge the Republican leadership to recommit the nominations of Deborah Cook and John Roberts to the Judiciary Committee so that they can be considered in accordance with the Committee’s rules.  The action taken last month should be vitiated and order restored to the Senate and to the Judiciary Committee. 

I urge this Committee to rethink the misstep taken last month and urge the Chairman and the Committee to disavow the violations of Rule IV that occurred.  

Since January 24, the Democratic minority on this Committee has debated and voted upon a number of controversial circuit court nominees.  The Senate has moved forward to confirm Jay Bybee to the 9^th Circuit and by so doing has already confirmed more circuit judges this year than the Republican majority allowed to be confirmed in the entire 1996 session.

The Senate has voted to confirm 111 of President Bush’s judicial nominees, including 11 this year alone.  In 1999, the Republican leadership of the Senate did not move forward to confirm 11 of President Clinton’s nominees until July.

We have also worked hard to report a number of important executive nominations in spite of the continued partisanship by the White House and Senate Republicans.  As Senator Feinstein has recently noted, we have cooperated by not insisting on our rights to seven days’ notice or seven days’ holdover on various matters and we have not insisted on three days’ notice of items on the agenda. 

We have proceeded to debate with less than a quorum present and Democrats have been responsible for making quorum after quorum so that this Committee could conduct business.  Ironically, we did so even last month while our rights were being violated.  Order and comity need to be restored to this Committee. 

An essential step in that process is the restoration of our rights under Rule IV and recognition of our rights thereunder.

All of the Democratic Senators who serve on the Judiciary Committee have asked the Chairman to reconvene the hearing with Judge Cook and Mr. Roberts because of the circumstances under which it was held and not satisfactorily completed.  We have also taken the White House up on its offer to make the nominees available with a joint letter seeking an opportunity to make further inquiries of them.  Regrettably, the White House withdrew its offer and now refuses to proceed.  That change of position by the White House on top of the inadequate hearing on these important nominations has created another unnecessary complication.

That is why the minority, while prepared to debate and vote on the Bybee nomination to the 9^th Circuit and nine other presidential nominations on February 27, wished to continue the debate on the Cook and Roberts nominations.

Let me be specific:  On January 29, the Judiciary Committee met in an extraordinary session to consider six important nominees for lifetime appointments to the federal bench, including three controversial nominees to circuit courts, Jeffrey Sutton, Deborah Cook and John Roberts. Several Senators only officially learned the names of the nominees on the agenda for that hearing at 4:45 p.m. on the January 28, the day before.

On learning that the Chairman did indeed intend to include three controversial circuit court nominees on one hearing -- something virtually unprecedented in the history of the Committee, and absolutely unprecedented in this Chairman’s tenure – Democrats on the Committee wrote to the Chairman to protest.  We explained that since 1985, when Chairman Thurmond and Ranking Member Biden signed an agreement about the pace of hearings and the number of controversial nominees per hearing, there has been a consensus on the Committee that Members ought to be given ample time to question nominees, and that controversial nominees in particular deserve more time.

We explained that we were surprised by the Chairman’s rush to consider these three nominees at the same time, considering the pace at which President Clinton’s nominees were scheduled for hearings.  During the time Republicans controlled the Senate and Bill Clinton was president, there was never a hearing held to consider three circuit court nominees at once.  Never.

Finally, we explained the importance of giving Senators sufficient time to consider each nominee and properly exercise their Constitutional duty to give advice and consent to the President’s lifetime appointments to the federal bench.  

But our request went unanswered, and we were expected to question three nominees in the space of a single day.  That proved impossible, as was evident throughout that long day.  My colleagues and I asked several rounds of questions of Mr. Sutton, and were only able to ask a very few questions of the other two nominees.  We asked, during the hearing itself, that the Chairman reconsider and ask the other two nominees to return the next day or the next week, and to give them the time they deserved in front of the Committee, but he refused.

We asked the same thing after the hearing, and were told that indeed the nominees would make themselves available to meet with each of us, so we wrote to accept those offers, although as we explained, we would have preferred to meet with them altogether, and in a public session.  But again, we were rebuffed.  I wonder if they were available for one sort of meeting, why were they not available for another.  I regret that the White House refused our request to bring closure to those matters.

During the last four years of the Clinton Administration, his entire second term in office after being reelected by the American people, the Judiciary Committee refused to hold hearings and Committee votes on his qualified nominees to the D.C. Circuit and the Sixth Circuit.  Last month, in sharp contrast, this Committee was required to proceed on two controversial nominations to those circuit courts in contravention of the rules and practices of the Committee.  This can only be seen as part of a concerted and partisan effort to pack the courts and tilt them sharply out of balance. Unfortunately, the violations of Rule IV are now part of that effort, as well.

# # # # #