[Congressional Record Volume 149, Number 164 (Wednesday, November 12, 2003)]
[Senate]
[Pages S14543-S14546]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Unanimous Consent Request--S. 1853
Mr. BAYH. Mr. President, I ask unanimous consent 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; the bill be read a third time and passed,
and the motion to reconsider be laid upon the table.
Mrs. HUTCHISON. Mr. President, I object.
The PRESIDING OFFICER. Objection is heard.
The Senator is recognized.
Mr. BAYH. Mr. President, this is an unfortunate debate, and I regret
that all of us are here this evening. This debate will do nothing to
speed the confirmation of judges about which this session has been
called to consider. It will do nothing for the economy, for health
care, for education, to protect the environment, or to advance the
interests of our Nation's security.
It will, however, at least in small part, bring this august body,
about which we care so much, to additional disrepute with the American
people, making us look ineffectual and irrelevant.
In some respects, the Senate is being reduced to something close to a
farce. It is becoming rapidly not the world's greatest deliberative
body but instead the world's greatest Kabuki theater, a place where
speeches are given to which very few people listen, no minds are
changed, and votes are then held with complete predictability of
results.
The search for principled compromise, which has always been a long
and honorable part, distinguishing this body from other legislative
bodies, has been abandoned in favor of sterile, ideological warfare,
satisfying to only the most fervent of partisans. After this debate, I
suspect that the far right will be satisfied, I suspect that the far
left will be satisfied, and that the rest of the American people will
be left scratching their heads, wondering, what on Earth are they
doing?
I am reminded of nothing quite so much as some lines from Shakespeare
when he characterized another instance as: Great sound and fury that
signifyeth nothing.
That is tonight's debate: Sterile, empty, barren of results.
This debate, unfortunately, is a microcosm of everything the American
people have come to not like about both the Congress and Washington,
DC, something that is all too often all process and partisanship, with
no progress on matters of substance and importance to the American
people.
Too often the American people view Washington as totally self-
absorbed, indifferent to their real concerns, and ineffectual in
accomplishing much of value on the things that do matter in their daily
lives: Health care, jobs, education for our children and grandchildren.
We must stop this cycle of constant recrimination, a process in which
the minority obstructs to gain power and then turns around and
complains about obstruction once power has been obtained. It makes us
all look bad.
If hypocrisy had a monetary value, we could easily erase the Federal
deficit because of debates such as the one we are engaged in tonight.
What is this all about? What are the facts that the American people
deserve to know? Is it true that judges are being obstructed solely
because of their partisan affiliation? That obviously cannot be the
case. One hundred and sixty-eight of President Bush's judicial nominees
have been confirmed. I assume that all of them, if not almost all of
them, are good card-carrying Republicans or he would not have nominated
them. Obviously, there cannot be some stonewall to object to
Republicans being appointed to the Federal judiciary. This simply is
not the case.
Are judges being rejected up to a point based solely upon ideological
concerns? This also cannot possibly be the case. Of these 168 judges
who have been confirmed, I assume that all, if not almost all, are in
fact fairly conservative jurists, or hold out the prospect of being
fairly conservative jurists. Otherwise, they would not have been
nominated by this President.
So up to a point, it is obvious that conservatives are not being
denied their place upon the Federal judiciary. This is all about power,
the balance of power between the executive and legislative branches and
whether the advise and consent function should be abolished whenever
the Senate is controlled by the party of the President. It is all about
the balance of power between the minority and the majority caucuses in
this Senate and whether the right to debate should be limited in the
case of judicial nominees, unlike any other business taken up by this
body.
It is also about tipping the balance of power within the Federal
judiciary and setting the stage for a Supreme Court vacancy to be
filled by someone of even the most extreme ideological conviction and
views.
Is that possibly what the Constitution had in mind when it
established the right of advise and consent in this Senate? Is that
something for which we should abrogate the right to unlimited debate in
this Senate, selecting judicial nominees in exclusion to all other
topics in this regard? Of course it is not.
We are ignoring the issues this evening that are of most importance
to the balance of the American people. When I go home, I hear great
talk about the economy and job losses. In the last 3 years, we in the
State of Indiana have lost approximately one out of every six of our
manufacturing jobs. One hundred fifty-nine thousand jobs, nonfarm jobs,
have been lost during this period of time. That is what I hear
people talking about. Small business men wonder how they are going to
compete in the global economy today. Large business men and women
wonder how they are going to make ends meet, particularly with the
skyrocketing cost of health care. Many people ask how we are going to
compete with China, India, and other countries that all too often seek
to abuse the rules of international trade to seek unfair economic
advantage. Those are the subjects we should be debating tonight.
Those are the topics that are on the minds of Hoosiers to whom I
talk. Very rarely am I asked about vacancies in the Federal judiciary.
When I was returning from Indiana just last evening, one of the
security guards, a gentleman who looked somewhat advanced in his years,
called out to me as I was going through security, saying: Senator, what
about the Medicare drug benefit? Is something going to get passed?
I said: I hope so.
He said: Well, it probably will not be structured the way it ought to
be anyway.
I said: Well, I hope not. We are going to go back and see if we
cannot hammer out a reasonable compromise.
I see some of my colleagues, including Senator Grassley, who are
laboring mightily toward that very end, and I salute him for that. That
is what we should be debating tonight, how to reconcile our differences
on providing drug coverage to senior citizens who are asking about it;
how to make health care available to the American people in a way that
is accessible and affordable. That is what is on the minds of Hoosiers
to whom I talk. That is what we should be debating this evening in this
body.
What about our education standards and what about providing our
children and grandchildren with access to quality affordable education?
When I think about the economy of the future, more than anything else
it is going to require advanced levels of education,
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skill, and know-how. We are going to prepare my young sons and the rest
of our children and grandchildren to have a better standard of living
in a prosperous economy. It is going to be based not upon how strong
they are but upon how knowledgeable they are, how well trained they
are, how skilled they are. That is going to enable us to build a better
economy. We are not debating that tonight.
At no point, in my recollection, have we set aside 30 hours to debate
quality health care. At no point, in my recollection, have we set aside
30 hours to debate the economy or what we are going to do to create
quality jobs. At no point, in my experience in the Senate, have we set
aside 30 hours to talk about what we can do to debate quality education
in the way we are setting aside these 30 uninterrupted hours in the wee
hours of the morning. This is a clear example of misplaced priorities.
I hope this Senate will extricate itself from the morass into which
we have sunk and begin to rehabilitate ourselves in the eyes of our
countrymen and women. I hope we can once again begin to address the
great issues that are of concern to the American people, that press all
around us--what our country can do to be more prosperous, more just and
more free. Above all, I hope that we as Senators can remember why we
are here, and that is not to wage war upon one another but instead to
once again renew the struggle against the ancient enemies of man:
Ignorance, poverty, disease. That is why we are here, not sterile
ideological debates.
I hope we can learn from this experience so that we will not have to
repeat it. I hope we can focus on making progress, not dividing this
body over the country. This aisle that separates the chairs,
Republicans on one side and Democrats upon the other, gives us the
opportunity to build bridges of reconciliation and
understanding, forging principled compromise which has always been the
hallmark of this institution. We have strayed from this heritage for
too long. It is a tradition to which we must return if we are to once
again recapture the confidence of the American people.
The final thing I will say is that we had an election in Indiana for
our mayors this last Tuesday, a week ago yesterday. Something on the
order of 20 percent of the people of my State turned out to vote for
our mayors. When I had the privilege of being elected to this body in
1998, about 36 percent of the eligible voters in my State took the time
to go to the polls. That is barely one out of three. In the closest
Presidential election in the history of our country 2 years ago,
decided finally by the Supreme Court, barely half of the American
people felt connected enough to their institutions of self-governance
to take even the most elementary step of citizenship--going to the
polls to register their preference.
What has happened to our democracy? What has happened when 20 percent
or 36 percent or a bare majority feel invested enough in the cause of
shaping their own destiny to take the time to participate in our
elections? If we are going to renew our democracy, if we are going to
lead this country to meet the great challenges of our time, if there is
one thing I am absolutely certain, it is that it will take all of us,
each and every one of us from every ethnic group, racial group, gender,
and walk of life.
Too many people have become disillusioned. Too many cynical, too many
skeptical whether this body and their government can make a difference
anymore. Events such as this debate tonight do not help.
We need to get back to the business at hand, putting before the
American people an agenda of hope and opportunity so we can once again
reenlist them in the cause of making this the greatest democracy known
to man. That, at the end of the day, is what has brought us here. I
suggest that is the business to which we must once again return.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois is recognized. There
are 16 minutes 54 seconds remaining.
Mr. DURBIN. I begin by commending my colleague from Indiana. That was
an extraordinary speech. I hope that for a moment Senators on both
sides of the aisle will stop and reflect on what he just said. I think
it was a challenge to everyone, as strongly as we feel about what we
are debating tonight, the appointment of Federal judges; the Senator
from Indiana is right. The people across America wonder why we are
wasting the time of the Senate on issues that have no importance or
relevance to their lives, and because they cannot understand us, they
are estranged from us. They do not feel invested in this process, they
do not feel a responsibility to vote; they, frankly, think we spend too
much time in partisan posturing. The 30 hours of this debate are a
classic example of that kind of partisan posture. That is unfortunate.
What the Senator hears in Indiana and I hear in Illinois and I
daresay every Senator hears in their State--I have been going back to
Illinois for 4 straight years in the month of August trying to tour the
State, meeting with business and labor leaders and community leaders,
to ask what is going on. For 4 straight years they told me the same
thing: Senator, can you do anything about the cost of health insurance?
It is killing us. It is killing my small business. It is killing my
large business. My family is worried about coverage. What are you going
to do in Washington about the cost of health insurance? I have to
basically shrug my shoulder and say: I am sorry, that is not on our
agenda. We have other things we debate in Washington, not the things
you and your family worry about, that keep you up at night. This is a
good example.
Would it not have been inspiring if we came together as Democrats and
Republicans on the floor to talk for 30 hours about the future of
health care in America, to speak to it in honest, nonpartisan fashion,
to try to address some of the most controversial parts of it in a
responsible, gentlemanly way?
That is what we are expected to do. That is not what this is about.
This is about alerting FOX News to grind out their cameras at the
entrance of the Senate to watch a parade of Senators come in--Senators
who have now disappeared. This is about charts being made, night and
day by Democrats and Republicans, to argue their case.
My people living back home in Springfield, IL, and Chicago, IL, I am
sure, turned off C-SPAN a long, long time ago, if this is the best we
can offer them. Sadly, that is all we are offering them.
We left the Veterans Administration appropriations bill--we could
have finished it--for veterans hospitals and the millions of veterans
across America because we did not have time; we had to start this
never-ending 30-hour debate. We cannot entertain a motion made by the
Senator from Indiana, a motion I made, as well, to try to do something
about the 9 million unemployed Americans whose benefits are running
out. We do not have time for that. We have time for this political
debate.
That is unfortunate. It is distressing. I have given 21 years of my
adult life to public service. I have never regretted a moment of it. I
walked away from a law practice and never looked back. This is the most
exciting and interesting thing I can think of to do with your life, to
be involved in public service. I encourage everyone, regardless of your
political stripe, to get involved. You will love the opportunity it
gives you to help people. But, frankly, we are not seizing that
opportunity or we would not be here tonight. We would not be here
discussing a question about whether 168 or 172 judges is the right
number.
Is this the best we can do? I think not. I think we can rise to a
greater challenge but we have to put aside the partisanship.
I readily concede I have struck a few partisan blows and a few have
been thrown my way. That is part of life in the Senate, I am sure, and
life in the big leagues. But at the end of the day when it is all over,
at the end of the year or end of the session, each of us would like to
point back to something we did to improve the lives of the people we
represent. What have we done to make the schools better? What have we
done to deal with the economic uncertainty of middle-income families?
What have we done to deal with the trade laws that are killing us in
the Midwest and across the Nation?
I have been a proponent of free trade. It is almost impossible to
defend at this moment in time. We are not enforcing our trade
agreements. We have lost five or six manufacturers in Indiana and the
same is true in Illinois. We
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lost 3 million jobs across America. Frankly, many of those jobs will
never come back. When we read headlines that say there are 120,000 new
jobs in America, that is good news. But ask the hard question, are the
jobs we created paying as much as the jobs we lost? If they were
manufacturing jobs, the answer is pretty obvious. The answer is no,
they are not. We are losing more and more good jobs. Instead of
focusing on that as we should, on the things that people care about, we
are spending our time in 30 hours of debate over four judges.
The senior Senator from Texas said earlier that the President has a
constitutional right to appoint judges. I don't want to correct the
Senator from Texas, but she is wrong. The President does not have a
constitutional right to appoint judges. The President has a
constitutional right to nominate judges. The judges are appointed
through the advice and consent of the Senate. Therein lies the
difference in our points of view. From the Republican side of the
aisle, the President has a constitutional right to name the judges he
wants. End of story. But the Constitution says otherwise. And it always
has.
Even the most powerful and beloved President has to be held
accountable to the people of America through the Senate, through the
House, and that is why we are here tonight. At one moment in history
when President Roosevelt had been reelected with the largest majority
in the history of the United States, Franklin Roosevelt, he decided he
had had his fill with the U.S. Supreme Court across the street and they
were not treating him well and he came up with a scheme to pack the
court, to add more Supreme Court Justices because they just were not
ruling on his laws the way he wanted them to. He proposed that to an
overwhelmingly Democratic Congress in the House and the Senate and ran
into a firestorm of opposition from his own party.
President Franklin Roosevelt, as popular as he was, with the mandate
he brought to office--and I will not reflect on this President's
mandate in this discussion, but President FDR's mandate was
substantial. He felt that he had a moment in history when he could
change the Supreme Court. And this Senate, the Democrats in the Senate,
said: No, we have to draw the line; this executive branch cannot
control the judicial branch and we will stand in the path of a popular
and beloved President. And they did. They stopped him.
That, to me, was an important moment in history--when Senators of the
same political party said to a President, this Constitution created
three branches of Government for good reason.
So tonight we are in a position where many are arguing that this
Senate should step back and not assert its constitutional right to
speak to the qualifications of judges. It will be a sad day if we allow
that to occur.
Let me try to synthesize this into what it is about. It is not about
the four judges or two more who might be added on Friday. It is about
the next appointment to the Supreme Court across the street. That is
the real story. There are a lot of good reasons we are here tonight but
the real reason is the next Supreme Court vacancy and the belief on the
Republican side of the aisle that if we can hold fast with our approach
in stopping people unqualified, unfit, to serve on a Federal court,
they will have a difficult time passing through a controversial nominee
to the U.S. Supreme Court.
I think, in my heart of hearts, that is why we are here this evening.
They are trying to smooth the road, prepare the way for that Supreme
Court nominee from this President.
Now, let me give advice to my friends--and they are not likely to
take it--on the Republican side. There is a way to avoid all that. Pick
a man or a woman who is of such impeccable legal background, great
credentials, the kind of person with the integrity that they will be
above this kind of political debate. It can happen and it has happened.
In my State of Illinois, a State with two Senators from opposite
political parties, we have not had one problem in filling the Federal
judicial vacancies. We have done so, Democrat and Republican, with good
men and women whom I am certain will serve this country well. I just
gave the green light to a nominee who sits on our calendar, and I hope
we will move quickly, Mark Philip, who was a clerk to Justice Antonin
Scalia. I am a Democrat, approving a former clerk to Justice Scalia. I
met him and trust him and I think he will be a great Federal district
court judge.
That can happen again. But we have to move away from those who are
ideological extremes. We have to move away from those who are lightning
rods. We have to move to a center path, which most Americans expect of
us.
Sadly, tonight, we are being told this Senate should not even ask
questions of these nominees. That is wrong. We have a constitutional
responsibility, a responsibility that must be met.
Some have said, incidentally, that ours are the first to ever
filibuster nominees. In fact, the Senator from Pennsylvania said it is
the first time in the history of the United States anyone has ever
filibustered a judicial nominee. Well, this chart shows that is not
correct. Abe Fortas of the Supreme Court, subject to cloture motion,
filibuster; Stephen Breyer, First Circuit--I am going through the
list--Rosemary Barkett, Eleventh Circuit; Lee Sarokin, Third Circuit;
Marsha Berzon, Ninth Circuit; and Richard Paez, Ninth Circuit.
The fact is, there have been judges brought to the Senate floor who
have been filibustered in the past. The fact is, most of those
filibusters failed. The motion for cloture prevailed but the filibuster
was on. On the four who are under contention this evening, the
filibuster has succeeded. The motion for cloture has not been filed
successfully. That is the difference. To say it has never happened
before in our history is to defy the obvious. It certainly has happened
before.
The point we are trying to make is it is not unreasonable to have 4
nominees out of 172 questioned, to be found lacking.
Let me close by saying, again I commend my colleague from Indiana
because I think he put it in perspective. We all know it is true. We
could be spending our time doing a lot more important things for
America and a lot more important things for the people we represent
than squabbling over four judges.
Mr. REID. Will the Senator yield?
Mr. DURBIN. I am happy to yield.
Mr. REID. I ask the Senator, through the Chair, there have been
statements made by the majority, for weeks, months, that never ever in
the history of the country has there been a filibuster conducted
regarding a Federal judge. Would the Senator again state whether or not
those statements regarding filibusters of Federal judges having never
been held is true or false?
Mr. DURBIN. It is false. It is clearly false. Justice Abe Fortas,
1968; Judge Stephen Breyer, 1990; Judge Rosemary Barkett, 1994; Judge
Marsha Berzon, 2000; Judge Paez, 2000. And many others.
The fact is, for those who say there have never been filibusters by
nominees, that is clearly not right.
Mr. REID. Another question I ask my friend from Illinois, through the
Chair, what I have heard the Senator state tonight is that on numerous
occasions--in fact, the chart that is behind you indicates this--that
there would be numerous occasions going back to at least 1968, there
have been filibuster after filibuster, and sometimes they have tried to
invoke cloture on more than one occasion; is that true?
Mr. DURBIN. That is accurate. As noted here, for Judge Breyer, twice.
That is a clear example. On some of the others, there could have been
more than one time, as well.
The point I would like to make to my friend from Nevada, we also know
that under President Clinton, 63 of his nominees never got a hearing.
They were never given a chance to come to the floor for this vote
because the Republican-controlled Senate Judiciary Committee would not
even give them a hearing.
Mr. REID. Will the Senator yield for a question that I ask through
the Chair?
Mr. DURBIN. I am happy to yield.
Mr. REID. The Senator from Illinois is a member of the Judiciary
Committee. Would you explain to the people watching this--whatever it
is--would you explain to the people how a person gets to the Senate
floor to be nominated for a judge? How do they
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get here? What is the process? Explain to the people of the country
what you mean when you say someone never had a hearing.
Mr. DURBIN. It is customary for a Senator of a State, depending on
the President's party, to be able to suggest to the White House a
nominee to fill a vacancy on the Federal district judge and the Federal
circuit court. That nominee is then given to the White House for
approval and investigation, FBI background checks, the normal things.
If the White House then clears that nominee, the name is sent to the
Senate Judiciary Committee. A hearing is scheduled in the normal course
where the person is brought before the committee. After the committee
has done its investigation, questions are asked and then the person is
brought for a vote and eventually finds their way to the floor.
Under the Clinton administration, after the nominee came out of the
White House, 63 times, 20 percent of the President's nominees were
stopped at that point and never brought to a hearing before the Senate
Judiciary Committee. So the argument that we have stopped four belies
the reality that when we looked at the numbers from the Clinton
administration, 20 percent, not 2 percent but 20 percent, of the judges
never got their chance before the Judiciary Committee to even present
their credentials and argue for their nomination.
I say to the Senator from Nevada, that is a sad reality. Frankly,
this President is being treated far better than President Clinton. This
Senate Judiciary Committee, under the leadership of Senator Patrick
Leahy, a Democrat, approved 100 of President Bush's nominees, gave them
hearings and moved them forward.
We tried in a bipartisan fashion to meet our constitutional
responsibility. Only 4 times out of 172 have we said no. Only four. It
is reasonable for us to stop and ask hard questions of nominees who are
asking for lifetime appointments to some of the highest courts of the
land.
Mr. REID. Will the Senator yield?
The PRESIDING OFFICER. The time of the Senator from Illinois has
expired. However, there is a minute and a half left on the Democratic
side.
Mr. REID. Will the Senator answer this question?
The PRESIDING OFFICER. The Senator from Nevada is recognized.
Mr. REID. I direct the question through the Chair to my friend from
Illinois. The number 168 on the chart behind you, does that represent
168 people who have been nominated by President Bush who are now
serving in the Federal judiciary who have lifetime appointments?
Mr. DURBIN. That is correct. I say to the Senator from Nevada that
there are some among those 168 about whom I have had misgivings. Many
of them I voted for anyway, understanding this is the President's
prerogative to nominate people for the Federal courts.
Going back to the point I made earlier, the President does not have a
constitutional right to appoint Federal judges. He has the right to
nominate them. Only with the advice and consent can they be appointed
to the Federal judicial vacancies. Therein lies the real difference in
the argument we brought forward this evening.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada has the floor with 27
seconds.
Mr. REID. When the majority uses their time, the half hour will be
divided in whichever way the Senator from Michigan, Mr. Levin, and the
Senator on the other side wishes to divide 30 minutes.
The PRESIDING OFFICER. The Senator from Texas is recognized.