[Congressional Record Volume 149, Number 164 (Wednesday, November 12, 2003)]
[Senate]
[Pages S14538-S14543]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Unanimous Consent Request--S. 1853

  In the interest of at least trying to do something constructive and 
legislative this evening, rather than just exchanging our comments back 
and forth, I am about to make a unanimous consent request that the 
Senate proceed to legislative session, and the Finance Committee be 
discharged from further consideration of S. 1853, a bill to extend 
unemployment insurance benefits for displaced workers, that the Senate 
proceed to its immediate consideration, and that this bill be read a 
third time and passed, and the motion to reconsider be laid upon the 
table.
  The PRESIDING OFFICER. Is there objection?
  Mr. SESSIONS. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DURBIN. I am not surprised because what we are about tonight is 
not the issues families care about. We are about a political script. 
Senator Reid of Nevada read to us this all-points bulletin that was 
sent out to the Senators saying: Be sure and get over here exactly at 6 
o'clock. It said: The Fox News channel is really excited about this 
marathon. Britt Hume at 6 would love to open with all of our 51 
Senators walking on to the floor. The producer wants to know, will we 
walk in exactly at 6:02 when the show starts so they can get it live to 
open Britt Hume's show, or, if not, can we give them an exact time for 
the walk-in?
  That is what this is about: It is about theater. The theater we are 
witnessing tonight is one where, frankly, the curtain should come down. 
We ought to start talking about things people really care about across 
America. I can tell you, it is not about 4 judges out of 172. We have 
approved for this President 168 of his nominees. I think it is a new 
record. I do not think any President in that brief a period of time has 
had 168 nominees approved. Lest you believe the Democrats dragged their 
feet, we approved 100 of these judges during the 17 months Pat Leahy 
was chairman of the Senate Judiciary Committee. The remaining 68 came 
through under Republican Chairman Hatch. I think there has been a 
concerted and conscientious effort to give the President

[[Page S14539]]

his nominees. Then, of course, there were 4 who were not approved--168 
to 4. So 98 percent of this President's nominees have been approved. By 
any reasonable standard, this President is doing very well. Most people 
would agree, except for the 51 Senators on the other side of the aisle. 
They believe unless the President gets every nominee, this is a 
miscarriage of justice.
  Sadly, though, they are ignoring the obvious. The obvious is the 
Constitution of the United States gives this Senate the authority to 
say yes or no, to advise and consent. Article II, section 2: Advice and 
consent of the Senate. Some of these Republican Senators would like to 
see this phrase go away and make their argument at least a little 
plausible, but it is a fact. We have the authority under the 
Constitution we swear to uphold to make these decisions; and we have 
made them.
  Of course, not only is the Constitution on our side, but the rules of 
the Senate are on our side. It reminds me in law school, they told you 
early in a trial advocacy course--and this a cliche, I know--they used 
to say: If you have the law on your side in your trial, beat on the 
law. If you have the facts on your side, beat on the facts. But if you 
do not have the law or the facts on your side, beat on the table. That 
is what is happening in this 30-hour marathon. Our Republican 
colleagues are beating on the table. The law is not on their side.

  The Constitution says we have the authority to say no. We have said 
no 4 times out of 172 opportunities. It is constitutional to do so. Are 
the facts on our side? Are we being unfair to stop 4 judges, approving 
168 and stopping 4? I do not think so.
  Frankly, if you look at the record of the Republicans in control of 
this same committee with a Democratic President, you will find some 63 
nominees were never given the decency of a hearing. They never had a 
chance to even appear and introduce themselves to the committee. The 
decision was made by the Republican leadership, with a Democratic 
President, not to even let them in the building.
  I have been through this. Three of my nominees that happened to. Do 
you know what it consisted of? If any one Republican Senator objected 
to any nominee, end of story. They effectively had a filibuster by one 
Senator. They stopped these nominees in their tracks.
  I can recall going to Senator John Ashcroft, our Attorney General, 
with one extraordinarily talented nominee, and pleading with him, after 
the man had waited for a year for a hearing, pleading with him to at 
least meet the man. Let him come before the committee. No way. The 
answer was no. End of story. End of nomination.
  That was the treatment accorded to three judges from my State during 
the short period of time when I was here and President Clinton was 
President, as the Republicans ruled the Senate Judiciary Committee.
  I lost 3 nominees. Did I rally my Democratic colleagues: ``Let's all 
get together and hold our breath and turn blue for 30 hours because I 
have lost 3 nominees''? No. Maybe I could have. Maybe I should have. 
But I did not. I understood it. I thought it was fundamentally unfair, 
and I still do.
  What we have done to these four nominees is not unfair. Each and 
every single one of them has had a hearing. Each and every one of them 
has been able to come to the committee and present their credentials. 
That never happened to 63 nominees offered by President Clinton.
  This President has a pretty good batting average when it comes to the 
Senate: 98 percent of his nominees have gotten through. But for the 2 
percent, we are meeting this evening.
  I might add here, if you take a look at the issues at hand, the 
Senator from Nevada raised an interesting one. Almost without fail, the 
majority of the 168 nominees were all members of this Federalist 
Society. It sounds like a secret handshake society. It is something 
else. I am not sure exactly what it is. I will tell you why I am not 
sure.
  I do know this. If you are an aspiring law student who one day wants 
to be a Republican nominee for a judgeship, my recommendation to you is 
to join the Federalist Society today and do not miss a meeting because, 
frankly, that is a requirement if you are going to make it into the 
ranks of judges in the future.
  What is it about this society? I don't know. But if you scratch the 
DNA of all these Republican nominees, you are going to find that 
Federalist Society chromosome. It is in every one of them. Time and 
again, I have said to these nominees: What is the Federalist Society? 
What does it mean to you? Some people say it is a rather extreme 
organization that views the law and the Constitution in a manner that 
most Americans do not. But when I ask these nominees--I can remember a 
Professor Viet Dinh of Georgetown Law School where I went to school 
many years ago. I said: You belong to the Federalist Society. Why? He 
said: Because I get a free lunch in Chinatown once a month.

  Well, I think it is more than that. If you go to their Web site and 
ask the Federalist Society what they believe, what they put on their 
Web site is they talk about how we have lost control of the law and the 
liberals are taking over--all the stuff you expect. Then when you ask 
each of these nominees: Well, do you agree with that? ``Oh, no,''--with 
one exception: Mr. Pryor. William Pryor of Alabama says, yes, he does 
agree with it. If you got to know Mr. Pryor, you would understand he is 
rather unabashed in his political beliefs.
  The fact of the matter is, the nominees we are receiving from the 
White House are not mainstream nominees. Sadly, of the 168 we have 
approved, many could be challenged as outside the mainstream, and that 
is not what America is looking for.
  President Clinton knew if he sent up a real liberal, someone who, 
frankly, had the credentials of the left, he did not stand a chance 
before Senator Orrin Hatch's Judiciary Committee. We would strive to 
find people with extraordinary legal credentials, people who really 
have made a difference in terms of their practice of law and what they 
have done; and they, too, suffered before that same committee.
  This President has no qualms. The people he sends to us, whether it 
is Miguel Estrada or whether it is William Pryor or Priscilla Owen, 
each and every one of them have come back--Charles Pickering--with 
credentials that just do not pass the middle-of-the-road test.
  Why are we doing this for 30 hours? Let's lay it on the line. This 
memo from Fox News tells you why we are here. We are here to grind raw 
meat for the Republican rightwing, so television networks like the fair 
and balanced Fox News network can rail on for days and weeks about this 
30-hour tribute to the Republican point of view, so the radio talk show 
hosts, who blather on every single day from the right, will have much 
more to talk about. And instead of dealing with real issues, paying for 
the Veterans' Administration, so we can get that done, and meet our 
obligations, taking care of the unemployed across America, so they can 
feed their families and avoid bankruptcy, we do not have time for that. 
Our time has to be focused and dedicated to this debate.
  I will say to my colleagues in the Senate, I think my friends on the 
Republican side will have to agree with this: Though they do not like 
the outcome of the four judges we have talked about here, we have given 
the nominees, even when Senator Leahy was chairman, ample opportunity 
to explain who they are and what they stand for. I think what we have 
asked for is reasonable.
  What we ask of every judicial nominee, from a Democrat or Republican 
President, is really basic. They have to be people who are honest, of 
high integrity. They have to understand the law. They should be people 
who do not come to this job with an ax to grind. That is not too much 
to ask. Four have failed that test; 168 have been approved.
  The PRESIDING OFFICER. The time of the minority has expired.
  The Senator from Alabama.
  Mr. SESSIONS. Mr. President, how much time is left in the first 
section for the majority?
  The PRESIDING OFFICER. Five minutes 45 seconds.
  Mr. SESSIONS. Mr. President, in response to a number of things that 
have been said, first of all, I want to correct Senator Durbin. I think 
he misspoke when he said the Senate has said no to these nominees. What 
the Senate has said no to is an up-or-down vote. They have denied these 
nominees a vote. In

[[Page S14540]]

each case, these nominees have proven they have a majority of the 
Senators in this body ready and willing to confirm them, if they are 
given the up-and-down vote. The systematic use of the filibuster that 
is occurring now has never before occurred in the history of this 
Senate.
  As to the Constitution, I will just point out article II, section 2, 
quoted by the Senator--this is what it says--the President ``shall have 
Power, by and with the Advice and Consent of the Senate, to make 
Treaties, provided two-thirds of the Senators present concur; and he 
shall nominate, and by and with the Advice and Consent of the Senate, 
shall appoint Ambassadors [and] judges. . . .''
  Historically, this body has felt that constitutional language meant 
treaties required a supermajority, two-thirds vote, and judges would be 
confirmed by a majority vote, and that is what we have done.
  I would just like to ask--I was going to ask Senator Reid early, the 
distinguished assistant Democratic leader--name one position taken by 
the Federalist Society that is extreme. He will not be able to give you 
one of those, and neither would Senator Durbin. This is a society of 
people who meet and discuss ideas. For example, they have had, in 
recent weeks, Senator Schumer's chief counsel speaking to the 
Federalist Society, as has Cass Sunstein, Marcia Greenberger, Laurence 
Tribe--three of the architects of the Democratic strategy for changing 
the ground rules of nominating judges.
  This is really odd for me. I know Senator Durbin said he has some 
legislation he would like to offer. Maybe he should have offered it 
Monday when the assistant majority leader was talking 10 hours down 
here about rabbits and cactus in Nevada and his book. That was all very 
interesting, but why weren't we doing any work then? I did not hear any 
complaints then when we were not passing legislation. That would have 
been an outstanding opportunity, I submit, to move forward.
  Let me just say one thing about where we are on nominations. 
President Clinton had 377 judges confirmed. One judge was voted down on 
an up-or-down vote on this floor, a majority voted no--only one. When 
he left office, there were 41 judges pending and unconfirmed--only 41. 
President Clinton personally withdrew the nominations of 18. That is 
how they get 60.
  When former President Bush left office, under Democrat control of the 
Senate, as Republicans were under Clinton, he had 54 nominees left 
unconfirmed. The record of the Republican Senate under President 
Clinton was superior under any standard of confirmations to that of the 
Democrats.
  I believe we need to remember those numbers. We need to remember the 
Republicans rejected consistently the use of the filibuster. It was 
discussed by people. They said: Why don't we filibuster? Senator Hatch 
and others would say: We do not filibuster judges. This is why you do 
not filibuster judges. We never filibustered judges. In fact, one 
nominee I felt strongly about, whom I voted against, I voted for 
cloture to bring that nominee up for a vote to overcome a hold that was 
on the nominee.

  My colleagues complain about the Federalist Society. They say they 
are extreme. They take no extreme positions whatsoever. They are a 
society that believes in the rule of law and they discuss those issues 
in free and open debate. But they have moved forward here such as 
Marsha Berzon and Ruth Bader Ginsburg on the Supreme Court.
  ACLU members, American Civil Liberties Union members--do you want to 
know what their stated positions are on a lot of issues? They oppose 
steadfastly the death penalty. They openly support partial-birth 
abortion. They are consistently hostile to law enforcement. They oppose 
pornography laws, all pornography laws, in fact, even child pornography 
laws. They favor legalization of drugs.
  We have confirmed a lot of ACLU members, as the Senator knows. They 
have stated positions that are contrary to the mainstream of American 
thought--no doubt whatsoever.
  Somebody such as Attorney General Bill Pryor, who has a record of 
following the law to the letter, whether he agrees with it or not, is 
castigated because he makes a talk to the Federalist Society. It is 
suggested that is an extreme thing for him to do and it is not correct.
  Mr. President, I yield back the time.
  The PRESIDING OFFICER. The Senator from Alabama has 15 seconds.
  Mr. SESSIONS. I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, parliamentary inquiry: Are we now 
starting 30 minutes of time on this side of the aisle?
  The PRESIDING OFFICER. That is correct.
  Mr. SPECTER. I thank the Chair.
  Tonight the Senate is engaging in a proceeding to call the attention 
of the American people to a very serious matter which exists on the 
confirmation of Federal judges. It is not a matter which occurs just 
when there has been a Republican President, but it has occurred also 
when there has been a President of the Democratic party, when the 
Republicans controlled the Senate. It has gone back at least to 1987, 
during the second 2 years of President Reagan's administration.

  When the Senator from Illinois calls this theater, he may be right, 
but it is factual theater, and it is worth the time of the Senate for 
the American people to focus on this important issue.
  It is now a little after 8 o'clock Eastern standard time. Frequently, 
the Senate Chamber is dark at this time. It is true we could be 
conducting other business, but there are many days when the Senate has 
tarried. For example, on Monday, the day before yesterday, when there 
had been a longstanding expectation that the Senate would not be in 
session because Veterans Day is traditionally not a day in session, but 
we came back specially to try to finish our work by the projected date 
of November 21, unexpectedly we were greeted with a 10-hour filibuster 
by Senator Reid on the other side of the aisle. He has a right to do 
that--he is a Senator--under our rules.
  It doesn't lie in the mouth of somebody to say we are spending time 
where we could have been working very hard on the appropriations 
process. I do hope we finish that process. I have been an appropriator 
for my 23 years in the Senate, and we should move to complete that work 
as promptly as possible.
  But the subject matter tonight is the confirmation process, and it is 
a very serious subject. When President Reagan was in office, during the 
first 6 years where the Republican Party controlled the Senate, 
President Reagan secured confirmation of 82 percent of his district and 
circuit court nominees. In 1987 and 1988, when the Democrats were in 
control, that percentage dropped from 82 percent to slightly above 63 
percent. When President George H.W. Bush was in office, all 4 years had 
the Senate in the control of the Democrats. The Senate confirmed 
slightly more than 62 percent of President Bush's nominees, and 54 
percent of his nominees to both circuit and district courts were still 
pending in the Senate when his term ended.
  President Clinton had about the same experience. In 1993 and 1994, 
there was an average of 79 percent of his district and circuit court 
nominees confirmed when his party controlled the Senate. For President 
Clinton's remaining 6 years, the percentage dropped to 54\1/2\ percent. 
So that the business of having the President of one party stymied or 
reduced in effectiveness on confirmation when the Senate is controlled 
by the other party has been really an apportionment of blame pretty 
much equally between Democrats and Republicans during the course of the 
Reagan, first Bush, and Clinton administrations.
  The matter has come to a substantial decline, when, for the first 
time in the history of the Republic, some 216 years, there has been a 
filibuster of circuit court nominees.
  I think it is important to note that we are not seeking tonight to 
break a filibuster. That would occur when we would seek to have those 
who were objecting to the judges continue to talk and talk until they 
ran out of energy or effort and stopped talking so that we could come 
to a vote. That was what happened in the filibusters on civil rights 
legislation in the 1960s.
  The last time there was a filibuster in the Senate was 1987 when the 
subject was campaign finance reform. Senator

[[Page S14541]]

Byrd was the leader of the Democrats. Senator Dole, the leader of the 
Republicans, called all of us into the cloakroom behind us in the 
Senate Chamber at about 2 o'clock one morning and said: I would like 
all Republican Senators to stay off the floor. The reason Senator Dole 
asked everyone to stay off the floor was to compel the party in power, 
the Democrats, to maintain a quorum of 51 Senators because if there are 
not 51 Senators present, then any Senator may suggest the absence of a 
quorum, and the Senate conducts no further business.

  When Republican Senators, including Arlen Specter, absented ourselves 
from the floor at Senator Dole's request, Senator Byrd, the leader of 
the Democrats, countered with a motion to arrest absent Senators. 
Sergeant at Arms Henry Giugni was then armed with warrants of arrest 
and started to patrol the halls, and the first Senator he found was 
Senator Lowell Weicker.
  Sergeant at Arms Henry Giugni was a little fellow, about 5 foot 6 
inches, 150 pounds. Senator Weicker was a big guy--still is--about 6 
foot 4 inches, 240 pounds. This was at about 3:30 in the morning. 
Sergeant at Arms Giugni decided not to arrest Senator Weicker. I think 
he made a good judgment. Then he started to go around and knock on 
Senators' doors.
  Senator Packwood foolishly answered his door. Senator Packwood was 
then carried feet first into the Senate Chamber. This is a true story. 
You don't get many out of Washington, but this is a true story. That 
incident attracted a great deal of attention. C-SPAN became the channel 
of choice instead of Jay Leno.
  In having this proceeding, it is more accurately called a marathon 
than a filibuster because it is not a filibuster. Republicans are doing 
most of the talking. We seek to attract the attention of the American 
people to what is going on in the judicial system.
  We have at the present time judicial emergencies in four of the 
circuit courts of appeals in the United States: the Fourth Circuit, the 
Fifth Circuit, the Sixth Circuit, and the Ninth Circuit. When these 
judicial emergencies occur, people are denied their day in court, cases 
languish, the matters are not decided, and the fact of life is that 
justice delayed is justice denied.
  Without burdening the record unduly, it is worth noting that in the 
Sixth Circuit where there is a judicial emergency, a 50-percent vacancy 
rate on that court, a death penalty case has been pending for more than 
8 years. A plaintiff in a civil case on a job discrimination suit 
trying to get a job had to wait some 15 months before the case came up. 
That individual died before the case was ever heard.
  The ultimate answer, I suggest, is that cooler heads are going to 
have to prevail, and we are going to have to establish a principle 
where it applies regardless of what party controls the White House or 
what party controls the Senate.
  Three years ago, I proposed a judicial protocol to establish a 
timetable that 60 days after the President submitted a nomination to 
the Judiciary Committee, there had to be a hearing; 30 days thereafter, 
there had to be action by the Judiciary Committee on the nomination; 30 
days later, the matter had to be brought to the floor of the Senate. 
Those times could be extended on cause shown by the chairman of the 
committee with notice to the ranking member or by the majority leader 
with notice to the minority leader. But those time parameters should be 
established.
  If there were to be a strictly party-line vote in the Judiciary 
Committee, then that matter ought to be advanced to the Senate floor 
even without having the customary majority vote to bring it to the 
floor.
  One of the grave problems which may confront the Senate is what is 
going to happen next when there is a Supreme Court vacancy. The 
filibusters conducted up until the present time constitute an effort to 
elevate the confirmation process which under the Senate rules calls for 
51 votes, or a majority, to 60 votes which it takes to end a 
filibuster.
  For those who may not know what a filibuster is, that is when one 
party keeps talking and talking and talking endlessly. But that may be 
brought to a close under the rules of the Senate with 60 Senators 
voting to cut off debate. That then leaves 100 more hours to debate, 
plenty of time even after cloture, even after debate is ended or 
limited, before the matter comes to a vote.
  It does not require a Nostradamus to predict or to understand that 
the current approach on imposing an ideological test is a precursor for 
the Supreme Court of the United States. When the Senate is constituted 
as it is at the present time, it is easy to project that we will find a 
Supreme Court nominee, who does not satisfy the standards of the other 
party, subjected to a filibuster and to have a vacancy on the Court. 
What we are moving toward is deadlock.
  Right now, there still remains an aura of some civility in this 
Chamber, notwithstanding our disagreements on the tactics that one side 
or the other may use in the Senate. We know that the next vote is the 
most important vote. Notwithstanding the rancor of the arguments, we do 
understand that we are here to conduct the business of the people of 
the United States. The judicial system is limping along--still in 
motion but limping along.
  We face a grave potential problem. If the current course of conduct 
continues so that when we have a nominee for the Supreme Court of the 
United States, we have this deadlock, and then with so many 5-to-4 
decisions by the Supreme Court deciding the cutting-edge questions in 
our society, we may look to 4-to-4 decisions, and that means no ruling 
by the Supreme Court of the United States.
  One additional thought. Senator Santorum and I use in Pennsylvania a 
judicial nominating panel under an arrangement where the President has 
three nominees and the Democrats have one nominee. During the 24-year 
period from the time President Nixon was elected until the time 
President Reagan was elected, Republicans controlled the White House 
for 20 of those 24 years. It seemed to me it was an undue balance of 
judicial nominees without having the Democrats with any nominees in the 
district courts, so an arrangement was made when Senator Heinz and I 
were the Senators, carried on by Senator Santorum and myself, to allow 
the party out of power, the Democrats, to have one nominee out of three 
for the President--one for the party out of power. That has had a very 
salutary effect in bringing a little bipartisanship into the process.
  I do not suggest that for the Supreme Court. I do not press it for 
the court of appeals. But I think it is an idea worth considering for 
the U.S. district courts.
  In conclusion--the two most popular words of any speech--it is my 
hope that something constructive will come out of this marathon. It is 
my hope that there will be some attention attracted to it. When the 
Senator from Illinois characterizes this as theater, I don't think that 
is especially derogatory because it is fact theater. The American 
people would be well advised to watch this theater than some of that 
which is on the national networks tonight. This is real. Those sitcoms 
go on and on and are repetitious. More important than the factual 
theater is that we are on a vital issue.

  I hope the Senators hear from the American people. I hope the 
American people tell us what they would like to have done: Whether you 
would like to have this kind of projected stalemate where nominees wait 
endlessly and where it takes 60 votes, a supermajority, to cut off 
debate and bring it to a vote, or whether you would like us to follow 
the constitutional mandate of 51 votes in confirmation so that these 
judges may be confirmed, may take their places to see that justice is 
done in an equitable way within a reasonable time period.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I want to focus on a chart that was 
displayed earlier by the Senator from New York where he proudly 
displayed the numbers 168 to 4. I think it is important we ask the 
question: what is that chart designed to prove?
  On one hand, our colleagues on the other side of the aisle in the 
Judiciary Committee and here in the Chamber rail against the 
President's judicial nominees, calling them out of the mainstream and, 
even worse, mean-spirited, right wing. But if, in fact, our colleagues 
on the other side of the aisle have voted to confirm 168 of President

[[Page S14542]]

Bush's nominees, it refutes that allegation because they have to agree 
that at least 168 of those nominees met their definition of mainstream.
  I would like to associate myself with the outstanding comments of the 
Senator from Kentucky, the assistant majority leader, Mr. McConnell. I 
wonder what their definition of mainstream truly is.
  The second number of 4 is a number they want to be congratulated for 
blocking. I submit that just because you observe a stop sign 168 times 
and comply with the law, you are not to be rewarded for running that 
stop sign four times. It is still a violation of law, and you are still 
likely to get a ticket from the police officer.
  This is more than just about breaking the law. This is about 
violating our Constitution, the fundamental law of this Nation.
  We know really, rather than 168 to 4, the true number we ought to be 
focusing on is 0 to 4, and let me explain.
  From 1789 to 2002--that is, for all of our Nation's history up until 
this year--the number of filibusters against judicial nominees of a 
President was--you guessed it--zero. But this year alone, because of 
this tactic that our colleagues have devised, to deny a bipartisan 
majority of this body its right under the Constitution to vote up or 
down on a judicial nominee, this number is 4.
  So rather than 168 to 4--and as I explained, I think that repudiates 
and flies in the face of some of their arguments about President Bush's 
judicial nominees, and I deny that they are to be congratulated for 
unconstitutionally obstructing only 4. The real number we ought to be 
focusing on, and I hope the American people are focusing on, is zero to 
four because never, ever, in the history of this Republic has a 
minority in the Senate denied the right of the majority the vote up or 
down on judicial nominees. It is just not right. It is not fair. It has 
resulted in a degradation and a downward spiral in the judicial 
confirmation process of which no one should be proud.
  I submit that four unconstitutional filibusters of these 
distinguished nominees is four filibusters too many. If we want to look 
at maybe a little bit of a history lesson, as this chart demonstrates, 
when Franklin Delano Roosevelt was President of the United States, 
4,473 laws were enacted, 4 civil rights laws were filibustered--hardly 
something to be proud of. But I guess if our colleagues across the 
aisle are proud of their four, the argument would be that the people 
who filibustered these civil rights laws during FDR's term ought to be 
proud of that number.
  When President Truman was in office, 3,414 laws were passed, 3 civil 
rights laws were filibustered. Is that something to be proud of? What 
our colleagues across the aisle say, because 3,414 laws were passed and 
only 3 were filibustered, that these folks who filibustered those three 
civil rights laws ought to be congratulated. I think not.
  Then when President Lyndon Baines Johnson was in office, 1,931 laws 
were enacted, 3 civil rights laws were filibustered. To this hall of 
shame, I would add the 168 to 4, which is nothing to be proud of; it is 
something to be ashamed of.
  Unfortunately, some people have lost their sense of shame in this 
process, which has become so degraded and so destructive. Indeed, I 
submit that the filibusters we have of the President's nominees are an 
abuse of the process. How can they justly claim that a 60-vote 
requirement to close off debate can somehow trump the Constitution?
  As we have heard before on this floor, everyone knows, who has 
studied the Constitution, that there are supermajority requirements for 
certain things, and they are stated in the Constitution: To ratify a 
treaty or to pass a constitutional amendment, the Constitution is very 
clear that it requires a supermajority. Everything else requires 
majority rule.
  Indeed, majority rule is fundamental to the democratic form of 
government. Majority rules: We fight our best fight; we make our best 
argument. Then we have a vote up or down. If we lose, well, we come 
back to fight another day. We try to persuade others that we were right 
and the majority was wrong. That is what our form of government is all 
about; not denying a majority their right, as stated in the 
Constitution, to let majority rule.
  Believe it or not, that is what is happening and that is the reason 
we are standing here tonight trying to let the American people know 
that a terrible abuse of this process is occurring and an abuse of the 
Constitution, indeed a violation of the Constitution, is occurring. It 
is a disgrace. It is nothing to be proud of.
  The other thing I would point out in the few minutes I have 
remaining, before I turn the floor over to the senior Senator from 
Texas, is this process is not only abusing the Constitution and 
creating a downward spiral in the judicial confirmation process that is 
very destructive of relationships in this institution, of our ability 
to get things done, it has made it too partisan, too bitter, too angry, 
and it is destructive.

  I would also point out that the tactics that are being used against 
some of these nominees are despicable. Unless we stand up and repudiate 
the tactics of some of those who are opposing the fine nominees of 
President Bush, such as Janice Rogers Brown, I believe those who have 
joined cause with them in opposing this fine nominee ought to examine 
their conscience. I think they ought to reconsider their tactics. I 
think they ought to reconsider whom they associate with, whom they are 
joining cause with to tear down some of the fine nominees of this 
President, such as Janice Rogers Brown.
  This is a cartoon that was posted on The Black Commentator on 
September 4, 2003, with President Bush, a racist caricature of Janice 
Rogers Brown with Justice Clarence Thomas, Colin Powell, Secretary of 
State, and Condoleezza Rice standing there. The caption says: ``Welcome 
to the Federal bench, Ms. Clarence--I mean, Ms. Rogers Brown. You'll 
fit right in.''
  It is easy to see why this process has gone downhill and needs a 
wake-up call from all of us, because we need a fresh start. We need to 
disavow tactics such as this. Those who are opposing Justice Brown and 
other nominees should not be proud of that association any more than 
they claim to be proud of an unconstitutional filibuster of four of 
these nominees, including Justice Brown, because if, in fact, we do not 
get a fresh start, we do not have a clean break with this destructive 
process, if we do not quit tearing down people who want nothing more 
than to offer themselves to the American people by serving in positions 
of honor, such as Federal judges, who will answer the call? If they 
know that answering the call of public service means that they are 
going to have their reputation destroyed, they are going to be 
besmirched, they are going to be painted into a caricature that bears 
no resemblance to who they really are, who will answer the call? We 
will all be poorer for it.
  I yield the floor.
  The PRESIDING OFFICER. Who seeks recognition?
  The Senator from Texas is recognized. The Chair informs the Senator 
from Texas that there are 2 minutes 20 seconds remaining on the 
Republican side.
  Mrs. HUTCHISON. Mr. President, just to get an understanding, after 
that 2 minutes 20 seconds, then it goes to the Democratic side for 30 
minutes and then back to the Republican side? Is that the way it is?
  The PRESIDING OFFICER. The Senator is correct.
  Mrs. HUTCHISON. Mr. President, in the 2 minutes that I have, I say I 
think the junior Senator from Texas made a very important point and 
that is the importance of the delicate balance of powers that was put 
in our Constitution. I think it is important that we do not say, well, 
98 percent of the time we adhere to the Constitution. We need to adhere 
to the Constitution 100 percent of the time.
  The Constitution has always said, from its beginning, that we would 
have a majority required to confirm the judicial nominees of the 
President. Now, this is by implication, because when the Constitution 
meant to have a supermajority, it so stated. We have always had a 
majority, and that is what, by its silence, the advise and consent part 
of the Constitution has required for judicial nominees, until last 
year.
  In fact, I think the President is losing his constitutional right to 
appoint Federal judges. I think this whole situation is going to deter 
good people from offering themselves for the bench,

[[Page S14543]]

and the judiciary must have good people if we are going to keep that 
very strong separation of powers with three separate but equal branches 
of Government.
  In his first 2 years of office, President Bush was able to get 53 
percent of his circuit court judges confirmed. The previous three 
Presidents each had 91 percent in the first 2 years of their office in 
the very important circuit court judge appointments.
  Now, the circuit court, of course, is the next step below the Supreme 
Court. So a 53 percent record in the first 2 years is something that I 
think should not be accepted. It is very important that we try to get 
votes on these judges.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The Senator from Nevada.
  Mr. REID. Mr. President, I yield 15 minutes to the Senator from 
Indiana and 15 minutes to the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Indiana.