[Congressional Record Volume 151, Number 21 (Tuesday, March 1, 2005)]
[Senate]
[Pages S1831-S1834]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     UNLIMITED DEBATE IN THE SENATE

  Mr. BYRD. Mr. President, in 1939, one of the most famous American 
movies of all time, ``Mr. Smith Goes to Washington,'' hit the box 
office. Initially received with a combination of lavish praise and 
angry blasts, the film went on to win numerous awards and to inspire 
millions around the globe. The director, the legendary Frank Capra, in 
his autobiography, ``Frank Capra: The Name Above the Title,'' cites 
this moving review of the film, appearing in the Hollywood Reporter, 
November 4, 1942:

       Frank Capra's ``Mr. Smith Goes to Washington,'' chosen by 
     French Theaters as the final English language film to be 
     shown before the recent Nazi-ordered countrywide ban on 
     American and British films went into effect, was roundly 
     cheered. . . .
       Storms of spontaneous applause broke out at the sequence 
     when, under the Abraham Lincoln monument in the Capital, the 
     word, ``Liberty,'' appeared on the screen and the Stars and 
     Stripes began fluttering over the head of the great 
     Emancipator in the cause of liberty.
       Similarly, cheers and acclamation punctuated the famous 
     speech of the young senator on man's rights and dignity. ``It 
     was . . . as though the joys, suffering, love and hatred, the 
     hopes and wishes of an entire people who value freedom above 
     everything, found expression for the last time. . . .''


[[Page S1832]]


  For those who may not have seen it, ``Mr. Smith'' is the fictional 
story of one young Senator's crusade against forces of corruption and 
his lengthy filibuster--his lengthy filibuster--for the values he holds 
dear.
  My, how things have changed. These days, Mr. Smith would be called an 
obstructionist. Rumor has it that there is a plot afoot to curtail the 
right of extended debate in this hallowed Chamber, not in accordance 
with its rules, mind you, but by fiat from the Chair--fiat from the 
Chair.
  The so-called nuclear option--hear me--the so-called nuclear option--
this morning I asked a man, What does nuclear option mean to you? He 
said: Oh, you mean with Iran? I was at the hospital a few days ago with 
my wife, and I asked a doctor, What does the nuclear option mean to 
you? He said: Well, that sounds like we're getting ready to drop some 
device, some atomic device on North Korea.
  Well, the so-called nuclear option purports to be directed solely at 
the Senate's advice and consent prerogatives regarding Federal judges. 
But the claim that no right exists to filibuster judges aims an arrow 
straight at the heart of the Senate's long tradition of unlimited 
debate.
  The Framers of the Constitution envisioned the Senate as a kind of 
executive council, a small body of legislators, featuring longer terms, 
designed to insulate Members from the passions of the day.
  The Senate was to serve as a check on the executive branch, 
particularly in the areas of appointments and treaties, where, under 
the Constitution, the Senate passes judgment absent the House of 
Representatives.
  James Madison wanted to grant the Senate the power to select judicial 
appointees with the Executive relegated to the sidelines. But a 
compromise brought the present arrangement: appointees selected by the 
Executive, with the advice and consent of the Senate confirmed. Note--
hear me again--note that nowhere in the Constitution of the United 
States is a vote on appointments mandated.
  When it comes to the Senate, numbers can deceive. The Senate was 
never intended to be a majoritarian body. That was the role of the 
House of Representatives, with its membership based on the populations 
of States. The Great Compromise of July 16, 1787, satisfied the need 
for smaller States to have equal status in one House of Congress, the 
Senate. The Senate, with its two Members per State, regardless of 
population, is, then, the forum of the States.
  Indeed, in the last Congress--get this--in the last Congress 52 
Members, a majority, representing the 26 smallest States, accounted for 
just 17.06 percent of the U.S. population. Let me say that again. 
Fifty-two Members, a majority, representing the 26 smallest States--two 
Senators per State--accounted for just 17.06 percent of the U.S. 
population. In other words, a majority in the Senate does not 
necessarily represent a majority of the population of the United 
States.
  The Senate is intended for deliberation. The Senate is intended for 
deliberation, not point scoring. The Senate is a place designed, from 
its inception, as expressive of minority views. Even 60 Senators, the 
number required under Senate rule XXII for cloture, would represent 
just 24 percent of the population if they happened to all hail from the 
30 smallest States.
  So you can see what it means to the smallest States in these United 
States to be able to stand on this floor and debate, to their utmost, 
until their feet will no longer hold them, and their lungs of brass 
will no longer speak, in behalf of their States, in behalf of a 
minority, in behalf of an issue that affects vitally their 
constituents.
  Unfettered debate, the right to be heard at length, is the means by 
which we perpetuate the equality of the States. In fact, it was 1917, 
before any curtailing of debate was attempted, which means that from 
1789 to 1917, there were 129 years; in other words, it means also that 
from 1806 to 1917, some 111 years, the Senate rejected any limits to 
debate. Democracy flourished along with the filibuster. The first 
actual cloture rule in 1917 was enacted in response to a filibuster by 
those people who opposed the arming of merchant ships. Some might say 
they opposed U.S. intervention in World War I, but to narrow it down, 
they opposed the arming of merchant ships.
  But even after its enactment, the Senate was slow to embrace cloture, 
understanding the pitfalls of muzzling debate. In 1949, the 1917 
cloture rule was modified to make cloture more difficult to invoke, not 
less, mandating that the number needed to stop debate would be not two-
thirds of those present and voting but two-thirds of all Senators 
elected and sworn. Indeed, from 1919 to 1962, the Senate voted on 
cloture petitions only 27 times and invoked cloture just 4 times over 
those 43 years.
  On January 4, 1957, Senator William Ezra Jenner of Indiana spoke in 
opposition to invoking cloture by majority vote. He stated with great 
conviction:

       We may have a duty to legislate, but we also have a duty to 
     inform and deliberate. In the past quarter century we have 
     seen a phenomenal growth in the power of the executive 
     branch. If this continues at such a fast pace, our system of 
     checks and balances will be destroyed. One of the main 
     bulwarks against this growing power is free debate in the 
     Senate . . . So long as there is free debate, men of courage 
     and understanding will rise to defend against potential 
     dictators . . . The Senate today is one place where, no 
     matter what else may exist, there is still a chance to be 
     heard, an opportunity to speak, the duty to examine, and the 
     obligation to protect. It is one of the few refuges of 
     democracy. Minorities have an illustrious past, full of 
     suffering, torture, smear, and even death. Jesus Christ was 
     killed by a majority; Columbus was smeared; and Christians 
     have been tortured. Had the United States Senate existed 
     during those trying times, I am sure that these people would 
     have found an advocate. Nowhere else can any political, 
     social, or religious group, finding itself under sustained 
     attack, receive a better refuge.

  Senator Jenner was right. The Senate was deliberately conceived to be 
what he called ``a better refuge,'' meaning one styled as guardian of 
the rights of the minority. The Senate is the ``watchdog'' because 
majorities can be wrong and filibusters can highlight injustices. 
History is full of examples.
  In March 1911, Senator Robert Owen of Oklahoma filibustered the New 
Mexico statehood bill, arguing that Arizona should also be allowed to 
become a State. President Taft opposed the inclusion of Arizona's 
statehood in the bill because Arizona' State constitution allowed the 
recall of judges. Arizona attained statehood a year later, at least in 
part because Senator Owen and the minority took time to make their 
point the year before.
  In 1914, a Republican minority led a 10-day filibuster of a bill that 
would have appropriated more than $50,000,000 for rivers and harbors. 
On an issue near and dear to the hearts of our current majority, 
Republican opponents spoke until members of the Commerce Committee 
agreed to cut the appropriations by more than half.
  Perhaps more directly relevant to our discussion of the ``nuclear 
option'' are the 7 days in 1937, from July 6 to 13 of that year, when 
the Senate blocked Franklin Roosevelt's Supreme Court-packing plan--one 
of my favorite presidents.
  Earlier that year, in February 1937, FDR sent the Congress a bill 
drastically reorganizing the judiciary. The Senate Judiciary Committee 
rejected the bill, calling it ``an invasion of judicial power such as 
has never before been attempted in this country'' and finding it 
``essential to the continuance of our constitutional democracy that the 
judiciary be completely independent of both the executive and 
legislative branches of the Government.'' The committee recommended the 
rejection of the court-packing bill, calling it ``a needless, futile, 
and utterly dangerous abandonment of constitutional principle . . . 
without precedent and without justification.''
  What followed was an extended debate on the Senate floor lasting for 
7 days until the majority leader, Joseph T. Robinson of Arkansas, a 
supporter of the plan, suffered a heart attack and died on July 14. 
Eight days later, by a vote of 70 to 20, the Senate sent the judicial 
reform bill back to committee, where FDR's controversial, court-packing 
language was finally stripped. A determined, vocal group of Senators 
properly prevented a powerful President from corrupting our Nation's 
judiciary.
  Free and open debate on the Senate floor ensures citizens a say in 
their government. The American people are heard, through their Senator, 
before their money is spent, before their civil

[[Page S1833]]

liberties are curtailed, or before a judicial nominee is confirmed for 
a lifetime appointment. We are the guardians, the stewards, the 
protectors of the people who send us here. Our voices are their voices.
  If we restrain debate on judges today, what will be next: the rights 
of the elderly to receive social security; the rights of the 
handicapped to be treated fairly; the rights of the poor to obtain a 
decent education? Will all debate soon fall before majority rule?
  Will the majority someday trample on the rights of lumber companies 
to harvest timber or the rights of mining companies to mine silver, 
coal, or iron ore? What about the rights of energy companies to drill 
for new sources of oil and gas? How will the insurance, banking, and 
securities industries fare when a majority can move against their 
interests and prevail by a simple majority vote? What about farmers who 
can be forced to lose their subsidies, or western Senators who will no 
longer be able to stop a majority determined to wrest control of 
ranchers' precious water or grazing rights? With no right of debate, 
what will forestall plain muscle and mob rule?
  Many times in our history we have taken up arms to protect a minority 
against the tyrannical majority in other lands. We, unlike Nazi Germany 
or Mussolini's Italy, have never stopped being a nation of laws, not of 
men.
  But witness how men with motives and a majority can manipulate law to 
cruel and unjust ends. Historian Alan Bullock writes that Hitler's 
dictatorship rested on the constitutional foundation of a single law, 
the Enabling Law. Hitler needed a two-thirds vote to pass that law, and 
he cajoled his opposition in the Reichstag to support it. Bullock 
writes that ``Hitler was prepared to promise anything to get his bill 
through, with the appearances of legality preserved intact.'' And he 
succeeded.

       Hitler's originality lay in his realization that effective 
     revolutions, in modern conditions, are carried out with, and 
     not against, the power of the State: the correct order of 
     events was first to secure access to that power and then 
     begin his revolution. Hitler never abandoned the cloak of 
     legality; he recognized the enormous psychological value of 
     having the law on his side. Instead, he turned the law inside 
     out and made illegality legal.

  That is what the nuclear option seeks to do to rule XXII of the 
Standing Rules of the Senate.
  I said to someone this morning who was shoveling snow in my area: 
What does nuclear option mean to you?
  He answered: Do you mean with Iran?
  The people generally don't know what this is about. The nuclear 
option seeks to alter the rules by sidestepping the rules, thus making 
the impermissible the rule, employing the nuclear option, engaging a 
pernicious, procedural maneuver to serve immediate partisan goals, 
risks violating our Nation's core democratic values and poisoning the 
Senate's deliberative process.
  For the temporary gain of a handful of out-of-the-mainstream judges, 
some in the Senate are ready to callously incinerate each and every 
Senator's right of extended debate. Note that I said each Senator. Note 
that I said every Senator. For the damage will devastate not just the 
minority party--believe me, hear me, and remember what I say--the 
damage will devastate not just the minority party, it will cripple the 
ability of each Member, every Member, to do what each Member was sent 
here to do--namely, represent the people of his or her State. Without 
the filibuster--it has a bad name, old man filibuster out there. Most 
people would be happy to say let's do away with him. We ought to get 
rid of that fellow; he has been around too long. But someday that old 
man filibuster is going to help me, you, and every Senator in here at 
some time or other, when the rights of the people he or she represents 
are being violated or threatened. That Senator is then going to want to 
filibuster. He or she is going to want to stand on his or her feet as 
long as their brass lungs will carry their voice.
  No longer. If the nuclear option is successful here, no longer will 
each Senator have that weapon with which to protect the people who sent 
him or her here. And the people finally are going to wake up to who did 
it. They are going to wake up to it sooner or later and ask: Who did 
this to us?
  Without the filibuster or the threat of extended debate, there exists 
no leverage with which to bargain for the offering of an amendment. All 
force to effect compromise between the parties will be lost. Demands 
for hearings will languish. The President can simply rule. The 
President of the United States can simply rule by Executive order, if 
his party controls both Houses of Congress and majority rule reigns 
supreme. In such a world, the minority will be crushed, the power of 
dissenting views will be diminished, and freedom of speech will be 
attenuated. The uniquely American concept of the independent individual 
asserting his or her own views, proclaiming personal dignity through 
the courage of free speech will forever have been blighted. This is a 
question of freedom of speech. That is what we are talking about--
freedom of speech. And the American spirit, that stubborn, feisty, 
contrarian, and glorious urge to loudly disagree, and proclaim, despite 
all opposition, what is honest, what is true, will be sorely manacled.
  Yes, we believe in majority rule, but we thrive because the minority 
can challenge, agitate, and ask questions. We must never become a 
nation cowed by fear, sheeplike in our submission to the power of any 
majority demanding absolute control.
  Generations of men and women have lived, fought, and died for the 
right to map their own destiny, think their own thoughts, speak their 
own minds. If we start here, in this Senate, to chip away at that 
essential mark of freedom--here of all places, in a body designed to 
guarantee the power of even a single individual through the device of 
extended debate--we are on the road to refuting the principles upon 
which that Constitution rests.
  In the eloquent, homespun words of that illustrious, obstructionist, 
Senator Smith, in ``Mr. Smith Goes to Washington'':

       Liberty is too precious to get buried in books. Men ought 
     to hold it up in front of them every day of their lives and 
     say, ``I am free--to think--to speak. My ancestors couldn't. 
     I can. My children will.''

  I yield the floor.
  Mr. KENNEDY. Mr. President, I compliment my friend and colleague from 
West Virginia for his excellent comments about the responsibilities of 
the Senate under the Constitution and the implications of a 
parliamentary maneuver that would effectively undermine the 
constitutional rights of our Members to speak in accordance with the 
ways our Founding Fathers intended.
  Once again, the Senator from West Virginia has spoken eloquently and 
passionately about this institution and about this Constitution. He is 
in this body the true student of the American Constitution. There is in 
this body no one who works to preserve the rights and responsibilities 
of this institution the way those rights of individuals in this 
institution, within the framework of the Constitution, were so 
intended.
  We, once again, thank him and urge our colleagues in the Senate to 
pay close attention to his well thought out, reasoned, compelling, 
legitimate, and persuasive arguments.
  They are enormously important because they reach the heart and soul 
of this institution and the heart and soul of the whole constitutional 
framework that our Founding Fathers drafted when they wrote the 
Constitution. It was an extraordinary contribution to the whole debate 
that takes place in this body from time to time about the authority and 
the powers of the institution and the individuals who are elected to 
serve. We all will benefit from reading his comments closely.
  Mr. HATCH. Mr. President, as I listened to the distinguished Senator 
from West Virginia speak against filibuster reform, I wanted to make a 
few points that he did not say, at least as far as I could tell. I did 
not hear every word of his speech, but I did hear enough of it.
  Number one, he did not say that killing judicial nominations by 
filibuster is part of Senate tradition, nor could he have said that 
because for the first time in history, we have had filibusters of 
judicial nominees. Only President Bush's judicial nominees have been 
filibustered by our colleagues on the other side, and in every case 
where they were filibustered, those nominees had majority support.
  So filibustering judges is not a part of the tradition of the Senate, 
nor has it ever been.

[[Page S1834]]

  Some have said that the Abe Fortas nomination for Chief Justice was 
filibustered. Hardly. I thought it was, too, until I was corrected by 
the man who led the fight against Abe Fortas, Senator Robert Griffin of 
Michigan, who then was the floor leader for the Republican side and, 
frankly, the Democratic side because the vote against Justice Fortas, 
preventing him from being Chief Justice, was a bipartisan vote, a vote 
with a hefty number of Democrats voting against him as well. Former 
Senator Griffin told me and our whole caucus that there never was a 
real filibuster because a majority would have beaten Justice Fortas 
outright. Lyndon Johnson, knowing that Justice Fortas was going to be 
beaten, withdrew the nomination. So that was not a filibuster. There 
has never been a tradition of filibustering majority supported judicial 
nominees on the floor of the Senate until President Bush became 
President.
  Number two, if I recall it correctly, the distinguished Senator from 
West Virginia did not say ruling such filibusters out of order is 
against the rules. I do not believe he said that because it is not 
against the rules. At least four times in the past, some of which 
occurred when Senator Byrd, the distinguished Senator from West 
Virginia, was the majority leader in the Senate, there have been 
attempts to change the Senate's rules on the filibuster. Admittedly, I 
think in some of those cases the Senate backed down and changed the 
rules, but the effort was made to change the rules, and in the eyes of 
the Senator from West Virginia and others they should have and could 
have been changed by majority vote.
  Let me say, in fact, all of the examples the Senator from West 
Virginia cited of legislative filibusters would not be affected by the 
constitutional option. That is a constitutional option that would allow 
judicial nominees an up-or-down vote.
  That is a very important distinction because never before have 
judicial nominees been filibustered. Never before has one side or the 
other, in an intemperate way, decided to deprive the Senate as a whole 
from not just its advice function, but its consent function. We 
consent, or withhold that consent, when we vote up or down on these 
nominees.
  Filibustering against the legislative calendar items has been 
permitted since 1917, and with good reason. I, for one, agree that this 
is a very good rule. But those filibusters happen on the legislative 
calendar. That is the calendar of the Senate; it is our legislative 
responsibility. The filibuster rule, Rule XXII, is to protect the 
minority. Frankly, I would fight for that rule with everything I have. 
But executive nominees, filibustering on the executive calendar is an 
entirely different situation. And it is one that was not addressed in 
Senator Byrd's remarks.
  I myself had never looked at this very carefully until this onslaught 
of filibusters against 11 appellate court judges took place on this 
floor. Then I started to look at it, and others have, too, and we now 
realize there is a real disregard of a constitutional principle by 
these unwarranted and, I think, unjustified and unconstitutional 
filibusters. In these particular cases, every one of those people--
every one--had a bipartisan majority waiting to vote on the floor. This 
distinction is ultimately the critical one. Should a minority be able 
to permanently prevent a vote on a majority supported judicial nominee? 
I think the answer is clearly no, and there is nothing in the 
distinguished Senator from West Virginia's remarks that contradict that 
conclusion.

                          ____________________