Sleepless in the Senate

This is a partial transcript from Hannity & Colmes, November 12, 2003, that has been edited for clarity.

SEAN HANNITY, CO-HOST: An historic night in our nation's capitol. Senators set up cots and coffee, and they have even received care packages. Now it may sound like summer camp, but there are no happy campers tonight on Capitol Hill.

We go now to Fox News correspondent, our own Major Garrett. He's in Washington with the very latest.

MAJOR GARRETT, FOX NEWS CORRESPONDENT: Sean, it's history of a different sort tonight at the United States Senate. It's not a filibuster, but a marathon session to debate a new use of filibusters, Democratic filibusters to block Bush judicial nominees.

There's a live shot, of Senator Carl Levin, Democrat, of Michigan. Thirty continuous hours of debate, organized by the majority Republicans to highlight Democratic filibusters that have blocked at least four Bush nominees, who have majority support.

(BEGIN VIDEO CLIP)

SEN. BILL FRIST, R-Tenn., MAJORITY LEADER: Our goal is very simple. It's up or down to vote on these nominees. People can vote them up or they can vote them down, just give us a vote.

(END VIDEO CLIP)

GARRETT: Democrats say the Senate has approved 164 Bush nominees, blocking only four. They blasted Republicans for devoting 30 hours to judges, and little time by comparison to the state of the U.S. economy.

(BEGIN VIDEO CLIP)

SEN. RICHARD DURBIN, D, ILL: A situation where four judges have been held out of 172 submitted by President Bush.

I would think that, frankly, we ought to spend a little time and really address the problem of unemployment in this country. This president has witnessed in his administration a loss of more than three million private sector jobs.

(END VIDEO CLIP)

GARRETT: Republicans summoned rollaway beds for the Senators to use during this all-nighter. Now how many senators will actually use makeshift sleeping arrangements such as these, well, that remains unknown.

The debate is of course about the Constitution, the ideological make up of the federal courts, executive and legislative power and numbers.

Now, President Bush has seen fewer of his judicial nominees confirmed in his first two years of office than any president since Jimmy Carter. Democrats ran the confirmation process during this time, and their filibuster strategy emerged only after they lost the majority.

Democrats say they're only blocking the most stridently conservative Bush nominees. Republicans counter that those nominees couldn't be that extreme because all were able to attract majority support on the Senate floor.

Sean, back to you in New York.

HANNITY: Fox News Channel's Major Garrett in Washington tonight, reporting for us.

And joining us from Capitol Hill is Texas Republican senator, Kay Bailey Hutchison, and Nevada Democratic senator and minority whip, Harry Reid, is with us.

Welcome both of you. Senator Reid, let me start with you. The Constitution of this country cites seven specific instances when a super majority is needed. The case of advice and consent with the president and judicial appointments is not one of them. This is the first time, in the case of Miguel Estrada, where an individual appointed for that court was ever filibustered in our history.

What justification do Democrats have to do this for the first time? And if they can have a majority vote, why don't you allow them to have a vote up or down?

HARRY REID,D-Nev, SENATE MINORITY WHIP: I listened to the introduction by Major Garrett.

Sean, the problem is this. We have the lowest vacancy rate in almost 15 years in the federal court. We have approved 168 of the president's nominees, turned down four. We've turned down two percent; we've approved 98 percent.

And we believe, as has been indicated, there have been many filibusters in the past dealing with judges, going back to 1968, when we had...We -- in fact, we've had a number of cloture petitions filed on individual judges. So this is nothing new.

Thinking this is new is something that has been dreamed up by the federal society, all they have to do is be able to read history and find out that the fact of the matter is, filibusters have been used in the past.

HANNITY: Let me ask you this...

REID: We approved 98 percent of the president's nominations.

HANNITY: But the Constitution, sir, specifically cites seven examples where a super majority is needed. This is not one of those examples. If we're looking at, you know, what the framers wanted, what they were designing, if they wanted a super majority for judicial nominees, would they not have cited it, as they did in the seven other instances?

REID: Sean, this Constitution that we have, I have it right here in my pocket. I don't have to mess up the microphone, it's so delicate here tonight. But there are all kinds of things in the Constitution. And one of them gives us the absolute ability to have a 60-vote majority in effort to stop lots of things that are bad.

Remember, the Constitution was set up to protect the minority. Not the majority.

HANNITY: I understand.

REID: That's what we're doing.

HANNITY: Let me -- I'm very convinced that Senator Kay Bailey Hutchison is going to have a different point of view.

Senator, you disagree.

SEN. KAY BAILEY HUTCHISON, R-TEXAS: I certainly do. I think what's happening here is we're amending the Constitution without going through the process.

I think the Constitution is very clear. It's a 51-vote requirement. And it's part of the delicate balance between the president, the executive branch and the Congress. And the president has the right to appoint, and the Congress has the right with 51 votes to say yes to an appointment, or if 51 votes are not gotten it's no.

And we've never seen a partisan filibuster like this. And there are now six people -- six people on the circuit court who are in the process of being filibustered.

HANNITY: But Senator Kay Bailey Hutchison...

HUTCHISON: That's too many, Sean.

HANNITY: I understand it's also the first time in history that this has ever happened to this court, correct?

HUTCHISON: Absolutely. These are circuit court nominees.

President Bush has had only 53 percent of his circuit court nominees confirmed in the first two years of his term. The previous three presidents had 91 percent. You know, the circuit court is in a different league from the district courts, because it is the next step before the Supreme Court.

HANNITY: Senator Reid, why don't you allow just a fair, up and down vote? Yes or no, let the Senate decide. Let the full Senate decide that's all the president, all the Republicans are asking for. Let the Senate vote, give these people a hearing, a shot, an opportunity.

Somebody like Miguel Estrada (search) waited two and a half years for his opportunity. He had the highest rating from the American Bar Association that any candidate can receive. Why not give him a vote? Why not give him that vote?

REID: Sean, they had a hearing. And the problem with Miguel Estrada is very clear. He refused to fill out his work application, and he refused to give information dealing with what he did when he was in the solicitor's office.

The four we turned down, four. We approved 168, remember. The lowest vacancy rate in some 50 years.

HANNITY: Why not an up and down vote?

REID: Why -- There is no reason within the framework of the Constitution that everything happens with the majority vote. This is the Senate. This is the Senate of the United States. And the president has gotten 98 percent of what he wants. What are we supposed to be, a rubber stamp? He is not...

HANNITY: No, just a vote.

REID: He's president. We have a vote ... Estrada had seven votes.

HANNITY: Now, earlier in the show tonight, Alan Colmes, he lost his voice, but he's sticking it out. He's here with us.

Feeling better?

ALAN COLMES, CO-HOST: Moral support.

HANNITY: We hope you feel better. Sitting next to me is Alan Colmes, who earlier tonight, just as we were starting the show, he lost his voice. But he remains with us.

COLMES: Greatest gift I ever gave you.

HANNITY: Maybe it's one of the best shows we've had -- No, we want Alan to feel better. He'll be back tomorrow.

All right. There is a proposal. Senator Frist (search) and Senator Zell Miller (search), Senator Hutchison, they are getting together and they're finding a way to get beyond this threat of a filibuster by the Democrats. And they're going to develop new rules for the Senate where you cannot filibuster judicial appointments.

Do you support that effort, and do you think it's what it's going to come down to?

HUTCHISON: Yes, I do support the effort. And what it does is it allows the super majority to be required for the first vote. And then it takes three votes off that requirement, until it gets down to 51.

So there can still be full debate. Something can be held, but in the end the person will get the up or down vote. And it will be the 51-vote majority that the Constitution envisioned.

HANNITY: Because there even are Democrats -- I know in the case of these judicial nominees, Senator Reid, that Zell Miller supports, I believe, all of them, and said of Janice Rogers Brown (search) that it was one of the most qualified people that he had ever met. And he was frankly disgusted with his party, your party. You know, it's obstruction here.

REID: I think that's a first time I've ever heard that Zell was disgusted with the party. I'm surprised he would say that.

HANNITY: Sounds like you're disgusted with Zell.

REID: Not at all. He said nice things about me in his book, and I always say nice things about him.

On -- very seriously, Kay is a fine lawyer. And I'm confident she, if she read that proposed rule change, she would make some changes in it. Because if you follow the logic that have rule change, you could you have 26 senators could break a filibuster. And we don't want that.

HANNITY: Senator...

REID: Let me just say this. Let me just say this. Sean, we have tonight 44 million Americans with no health insurance. They're going to bed with no health insurance. We have over nine million people who are on the unemployment rolls. That's what we should be talking about.

HANNITY: All right. But senator...

REID: I just think this is all such foolishness.

HANNITY: I think we ought to get back to that. But 30 hours is hardly a lot of time in the overall scheme of things for the United States Senate. You know that. I think everybody knows that.

But you never answered my fundamental question. Why...

REID: Please give it to me again, I'm sorry.

HANNITY: Why won't the Democrats allow a fair up and down vote for these candidates. Why won't you give them their chance?

REID: We have given -- we have had full hearings.

HANNITY: No, a vote. Give them a vote.

REID: And as I said with Estrada, we've had seven votes. With Owen we've had three. With Pryor we've had two. With the other one we've had...

HANNITY: Not on the Senate floor. Not on the Senate floor, where they will win and you know they will.

REID: Right on the Senate floor we've had those votes, every one of them.

The different reasoning, Sean, according to the Constitution in those instances, you needed 60 votes. And they didn't get 60 votes.

HANNITY: But the...

REID: The Constitution...

HANNITY: You're good. But you -- But the Constitution does specifically state when you need a super majority.

Senator Hutchison.

HUTCHISON: Yes.

REID: No way.

HUTCHISON: The filibuster or Senate rules, the Constitution says when you need two-thirds vote to ratify a treaty. But it does not require a super majority for the confirmation of presidential appointments. That's part of the balance of powers between the executive branch and the congressional branch.

HANNITY: Yes.

HUTCHISON: It's very delicate. It has lasted for all of these years. And I think to tamper with that and not go through a process of a constitutional amendment to change that requirement to a super majority is absolutely wrong and beyond the power...

REID: This is revisionism. This is revisionism. This is revisionism of history. We have had many cloture votes on judges. This is no different.

We've given the president 98 percent of what he wants. Does he get to -- need everything? Would he be happy with 99 percent?

HANNITY: Just a moment. Let me ask you both this question. I only have few seconds left.

Senator Hutchison, you know, we see this memo that came out in the Senate Intelligence Committee. We see what's going on here tonight. Is this all because, really, we just entered the political season and we're a year out of a presidential election?

We've only got about 10 seconds.

HUTCHISON: Well, Sean, I think that memo that came out of the intelligence committee also is breaking precedent.

We have always tried to keep the intelligence committee bipartisan; it has been. And now you have a memo that says, "Let's hold back until the political season starts. And then we're going to start asking for different kinds of investigations."

HANNITY: Thank you.

HUTCHISON: That is partisanship. And I don't like to see it.

HANNITY: Thank you both.

REID: Invite me back again, Sean. I'll respond to that.

HANNITY: I've got to run, senator, but it's good to see you.

And by the way, just to make all of you Alan Colmes fans out there feel OK, Alan has not left the building. He remains with us right here on the set, but he doesn't have the use of his voice. One of the finer moments in liberal activism.

COLMES: It's like Penn and Teller.

HANNITY: Yes.

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