I’m opposed to this effort to discharge Vanita Gupta from the Judiciary Committee. In fact, it’s not properly in order.
In theory we’re moving this nomination because it failed in Committee by an even vote. But that vote should never have been called and it was improper when it was.
Under our Committee Rules, members have a right to unlimited debate. This can only be stopped either by a bipartisan vote to end debate under the Rules or by a vote of the majority of the Committee to set a time-certain to vote under Precedent.
Because Republicans at Ms. Gupta’s markup wanted to talk there couldn’t have been a bipartisan vote to end debate. In fact, some, like my colleague from North Carolina didn’t have a chance to speak and were still waiting their turn. And because the Democrats don’t have a majority of the Committee, they couldn’t have set a time-certain.
Under the Rules and Precedent of the Committee, then, they had to let Republicans talk. And if it took more than one markup, so be it. The Democrats did this when I was Chairman. During our second markup of 2017, in order to delay Senator Sessions’ nomination to be Attorney General, Democrats filibustered. When it happened, I didn’t interrupt anybody or break any rules. I simply continued the markup the next day checking to see who would want to be recognized and for how long.
The fact is that the Democrats frequently used these filibuster tactics against us over the past four years. We simply dealt with them from a position of confidence in the Rules and Precedents of the Committee. Sometimes being Chairman and moving nominees takes hard work, but we did the job we needed to do.
That’s not what happened here. Instead my colleague from Arkansas was interrupted and the roll was called while he was still speaking.
This was not the power of the majority being used, it was the power of the Chairman. What’s the point of having rules if you can just ignore them when you find yourself dealing with an unfamiliar situation?
So I don’t think the “even vote” in Committee ever properly happened. As far as I’m concerned, Senator Cotton had the Floor. That roll-call vote was illegitimate under Committee Rules, and so this one is, too.
And why did the Chairman scrap the Committee Rules for this nominee? This isn’t a Supreme Court nomination. The nominee’s a subcabinet official at the Justice Department.
I think it’s because the Democrats know how powerful she will be in the Justice Department. As Judge Garland told us during his hearing, he didn’t pick Ms. Gupta. He only got to know her after they were both picked. That’s quite the position for a subordinate to be in.
The late Congressman Dingell famously said – and I’ll clean it up – “you let me write the procedure, and I’ll [beat] you every time.” The Judiciary Committee has done him one better: now there is no procedure. But it’s the Senate that loses every time.
I urge my colleagues to vote no and protect the traditions of this body.