[Congressional Record Volume 151, Number 28 (Thursday, March 10, 2005)]
[Senate]
[Pages S2406-S2413]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BANKRUPTCY REFORM
Mr. KENNEDY. I yield myself such time as I might use.
Mr. President, I speak now in morning business because at 11 o'clock
we will have a continuation of votes in the Senate on the bankruptcy
bill. Then we will have a series of votes later on in the afternoon,
with a time to be designated by the leadership. Then we will move to
final passage. There would not be otherwise an opportunity to express
my views about the bankruptcy bill in general and on a number of the
items we have debated and on which we have failed to persuade the
majority of our colleagues. I want to reference those in my remarks
this morning.
America at its best is when we are united in common cause and a
unified purpose. We came together to overcome the Great Depression. We
came together to fight two world wars against tyranny. We came together
in the Cold War years to contain and defeat Communism. We came together
to fight polio, to explore the heavens, and to create a secure
retirement for our seniors. We came together after much struggle to
expand the circle of opportunity in America for civil rights, voting
rights, disability rights, and women's rights. We came together on 9/11
as a nation determined to fight terrorism and defend our land.
As Americans, we know how to come together to achieve great goals, to
make stronger our communities, our families, our economy, our schools,
and our nation. That is the America I believe in. That is the America I
fight for every day. An America where we are joined arm in arm to
advance the cause of opportunity, freedom, and fairness for all of our
people.
But this legislation breaks the bond that unites America, the bond
that makes our country strong. It says the concerns of low and middle-
income families don't matter. They no longer have a voice in the United
States Senate. What matters are the special interests. This bill
sacrifices the hopes and dreams of average Americans to the rampant
greed of the credit card industry. It turns the United States Senate
into a collection agency for the credit card companies, reaching the
long arm of the law into the pocketbooks of average Americans who have
reached the end of their economic rope.
That is wrong. That is not what we should be doing here. We have a
responsibility to the people to fight for them and their needs, not to
do the bidding of the almighty credit card companies.
A lot of people are going to be pained with this bill. Make no
mistake. The idea that this bill is focused on spendthrifts is
laughable when the other side admits that the most we have in terms of
spendthrifts is maybe 10 percent of the total of those who go into
bankruptcy, and most of the bankruptcy attorneys say it is anywhere
from 5 to 7 percent. We are picking up all these individuals who are
going to be forced to pay and be treated more harshly with this bill
than they otherwise would be under the regular Bankruptcy Act.
Our bankruptcy laws are intended to give families a second chance. As
Americans, we believe that if you work hard, live responsibly, but fall
on hard times, our bankruptcy laws should be there to help you get back
on your feet. If you get sick and face a mountain of medical bills, if
you face divorce and no longer have two incomes to support your family,
if your job gets sent overseas, then Americans believe you should have
an opportunity to rebuild your lives.
These are the principal causes for bankruptcy. We know that more
children drop out of college every single year, not academically, but
because of the cost of student loans. They can't pay them. We have been
through this during the course of the debate. If you have a heart
attack, if you are diagnosed with cancer, even if you have health
insurance, you basically have overwhelming bills and more often than
not get thrown into bankruptcy. If you get divorced--as we will have a
chance to vote on--200,000 women don't receive alimony and don't
receive child support, these are hard-working Americans who are going
to get thrown into bankruptcy. And rather than be let out so that they
will have a new chance and a new opportunity in life because they have
done nothing wrong, they are going to be tied up and paying the credit
card companies for the next 5 years. That is the way this bill works.
This bill changes everything. It takes dozens and dozens of
bankruptcy rules and rewrites every single one of them in favor of the
credit card industry. Yesterday, we witnessed the powerful grip of this
industry over the Republican Party. The Republicans defeated amendment
after amendment after amendment after amendment that tried to give
average Americans a fair chance when they face the credit card company
lawyers in bankruptcy court. But when it appeared that a special
interest loophole for the financial services industry threatened to be
closed by the Leahy-Sarbanes-Warner amendment, the Republicans shut
down the Senate.
It is not as if the credit card industry is suffering. As we can see
from this chart, the profits are in the billions of dollars: $6.4
billion 1990; $12.9 billion in 1995; $20.5 billion in 2000; and they
expect as a result of this bill that it will be 5 billion more dollars
in profits. That is what this bill will mean. Over who? Over the
families going into bankruptcy because of a heart attack, a stroke,
children who have spina
[[Page S2407]]
bifida, over women who are not getting paid alimony or child support,
over those workers whose jobs have been shipped overseas trying hard to
pick up another job and can't keep up with the payments and go into
bankruptcy. Those are the people who are suffering. But when it came to
an issue involving the financial services industry, our Republican
leadership closed the Senate down last night.
In the 8 years that this bill has been before the Senate, credit card
profits have jumped 163 percent from $11.5 billion a year to more than
$30 billion a year.
We hear the proponents of this legislation say: Look, we have had
this legislation before us for 8 years. We have a problem. We have to
deal with the problem. A problem, with these kinds of profits?
We have a problem with health care coverage for Americans. We have a
problem with the cost of health care. We have a challenge in supporting
our schools and our local communities. That is what is on the minds of
Americans. Here we are in the Senate, taking 2 weeks of our time in
order to look out for the credit card companies and make sure there are
going to be greater profits for a single industry. That is the priority
of the Republican leadership, rather than dealing with the root causes
of so many of those who will be dragged into bankruptcy and made
indentured servants to the credit card industry for the next 5 years.
It does not make sense. These are the wrong priorities, the wrong
values.
Middle class families are facing tough times with incomes falling,
health costs out of control, college tuition through the roof, and now
gasoline prices rising once again.
But this bill says that what's going on in your life every day
doesn't matter.
You may be a member of the Guard or the Reserve called to Iraq and
your business failed because you were away serving your country. In
fact, 40 percent of those called up say they lost income, and over
19,000 soldiers declared bankruptcy just last year. They sacrificed
their lives in Iraq and their financial security here at home, but the
credit card companies will honor their service by squeezing every last
dime out of our veterans in bankruptcy court.
Here is a letter from the Military Officers Association of America:
On behalf of the nearly 370,000 members of the Military
Officers Association . . . I am writing to request your
support for the protection of servicemembers, veterans, and
military survivors from the increased bankruptcy penalties.
They have it right, ``increased bankruptcy penalties.'' And this was
written after Senators accepted the Sessions amendment which is just
eye dressing.
Our association is sensitive that overseas contingencies
disrupt the lives and finances of servicemembers and their
families. This is particularly true of the mobilized Guard
and Reserve members. Those who are self-employed, or who took
significant pay cuts from their civilian occupations, have
been placed at increased risk of facing bankruptcy because of
their service and sacrifice for our Nation. Survivors of
members killed on active duty also may find themselves at
increased financial risk. Many have left service rather than
be subject to similar recalls in the future, and we are
already concerned about the implications of this for long-
term retention and readiness.
MOAA does not believe this is the time to impose new
financial strictures . . .
There it is. Nonetheless, we have gone ahead and done that. Democrats
tried to correct this problem, to put some balance and fairness in the
bill. Senator Durbin offered an amendment to protect those who protect
us, but our Republican friends said no. Every single Republican in the
United States Senate voted for more credit card profits and against our
service men and women.
You may be a cancer survivor, but you can't survive the $35,000 in
medical bills that your insurance company won't pay, and you lost
another $20,000 for all the months you couldn't work and had to use
your credit cards to pay the mortgage, cover the car payments, pay the
utilities, and buy the groceries. You're doing everything you can to
pay down your debt. You have taken out a second mortgage. You have
cashed in your retirement savings. Your family is sharing one car.
But that doesn't matter. Under this bill, the profits of the credit
card companies are more important than your recovery from cancer. Tough
words; tough bill.
Democrats fought to correct this problem. I offered an amendment to
give responsible Americans who fall on hard times due to illness or
injury a fair chance in bankruptcy court. But the Republicans voted
against these Americans in favor of the credit card companies.
You may be a single mother trying to raise your family, juggle your
job and school, and rely on alimony and child support to pay the bills.
But more than 200,000 women owed alimony or child support are forced
into bankruptcy every year.
Democrats are addressing this problem, too. Republicans have a chance
to vote for single mothers later this morning. We have a chance to say
to women across America, who are taking responsibility every single day
for their children, but have a deadbeat dad who won't do his part, that
we're on your side. We believe it's more important for you to get back
on your feet than for the credit card companies to have greater
profits.
Maybe your job was one of the 2.8 million manufacturing jobs that
have been shipped overseas in the past 4 years. You found a new job,
but it pays only half as much. But under this bill, it doesn't matter.
In bankruptcy court you will still have to keep paying the exorbitant
interest payments to the credit card companies as if you still had your
old, better paying job.
It doesn't matter that you have worked hard and lived responsibly all
your life.
It doesn't matter that you were willing to take a lower paying job
because you wanted to be a contributing member of society.
It doesn't matter that you clip grocery coupons every week to try to
preserve the money you set aside to put your children through college.
It doesn't matter that you gave up your vacation to pay for repairs
to your leaky roof.
It doesn't matter that your lost job means you had to move your
elderly parents into a cheaper nursing home to try to avoid bankruptcy.
It doesn't matter. You can sacrifice and cut corners and put aside
hopes and plans and dreams. But all that matters in this bill is for
the credit card companies to have more and more profits.
We'll have a chance to vote on this question later this morning, too.
But I have a feeling that Republicans are going to say no to the needs
of Americans whose jobs have been outsourced overseas, just as they
have said no to Iraq veterans, to single mothers, to children, and to
seniors.
We should be working to unite the country to achieve great goals
again. Why are we not debating those issues here on the floor of the
Senate, instead of trying to get more profits for the credit card
industry--perhaps the most profitable industry in America--at the
expense of the mothers, children, veterans of Iraq, those who have
serious health care bills, and those whose jobs have been shipped
overseas. We should be battling for them. We should be battling to
improve our schools and make college more affordable. We should be
strengthening our economy and training our workers to compete against
globalization. We should be fighting to keep our country safe from
terrorism.
This bill makes these goals more difficult to achieve. It divides
America by rewarding the most powerful special interests at the expense
of low and middle-income families. A Republican supporter of the bill
said yesterday that this bill was ``fair and balanced.'' Where is the
fairness? Where is the balance?
It does nothing to fix the millionaires' mansion loophole that allows
millionaires to go into bankruptcy and still keep their massive
estates. You may lose your home, but they get to keep their palaces
under this bill. Where was the effort on the other side--talking about
a fair and balanced bill--to try to do something about that? All they
could do was whip up their own membership in order to defeat that
amendment to have one standard for all Americans. That is what I
thought we were about as a country one standard--not a dual standard
for wealthy millionaires that can hide the tens of millions of dollars
[[Page S2408]]
in their mansions and palaces in a handful of States.
It does nothing to help the thousands upon thousands of employees and
retirees of companies like Enron and WorldCom and Polaroid, who are
left out, twisting in the wind, after a bankruptcy process that lets
the responsible corporate executives go free. They go free. These
employees lose their pensions, their health insurance, their
retirement, and their investments, as they did at Polaroid. Is there
anything in this bill to try to help those individuals, many of whom
worked a lifetime for these companies? Absolutely not. They are fair
game. After these individuals, the Ebbers, the Skillings, Enron, and
the rest, robbed those companies, they are sitting in their mansions
now in Houston; but these other individuals will be dragged into
bankruptcy court if they get a serious illness or sickness, or if they
run into family problems.
Fair and balanced? No way, Mr. President. The Republicans and the
credit card companies may get their way, and the American people may
lose this round; but the fight is never over until we have assured
fairness and freedom and opportunity for every one of our citizens.
That is our pledge as Democrats today and tomorrow and in the future.
That is why I hope our colleagues will vote no.
I will mention a few further items. One is from the Children's
Defense Fund, who care about children. We tried to point out some of
the other groups that will be affected. Here is a letter from the
Children's Defense Fund. I will read excerpts of it. I ask unanimous
consent that this letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Children's Defense Fund,
Washington, DC, March 1, 2005.
Re: oppose S. 256, the Bankruptcy Act of 2005.
Dear Senator: The Children's Defense Fund is writing to
urge you to oppose S. 256, a bankruptcy bill that would hurt
many Americans facing financial problems due to job loss,
divorce, child-rearing, lack of medical insurance, or
predatory lending practices. This bill would inflict hardship
on more than one million economically vulnerable women and
families who are affected by the bankruptcy system each year.
Medical emergency, job loss or family breakups are factors
which account for nine out of ten filings.
The bill would also hurt women who are owed child or
spousal support by men who file for bankruptcy. The bill will
make it more difficult for mothers to collect support because
credit card companies and other commercial creditors will
have greater claims to the debtor's resources during and
after bankruptcy. Being first among unsecured creditors in
Chapter 7 bankruptcy is meaningless when over 95 percent of
debtors have no resources to pay unsecured creditors. In
Chapter 13, the bill would require larger payments to be made
to many commercial creditors, resulting in smaller payments
of past-due child support over a longer period of time,
increasing the risk that child support debts will not be paid
in full. And after the bankruptcy is over, more debts owed to
commercial creditors will survive--and mothers and children
owed support are not a match for the collection departments
of the commercial credit industry.
S. 256 contains a number of provisions which would have a
severe impact on families trying to regain their economic
stability through the bankruptcy process. S. 256 would make
it harder for women to access the bankruptcy system. Low and
moderate income families are not protected from many of the
bill's harsh provisions. Parents who desperately need to
preserve their homes from foreclosure or prevent their
families from being evicted, or keep a car to get to work,
would find it more difficult to do so. And, when the
bankruptcy process was over, parents already facing economic
disadvantage would find it harder to focus their income on
reasonable and necessary support for dependent children
because many more debts would survive.
Passage of the bankruptcy bill would make it harder for
families struck by financial misfortune to get back on track.
It would benefit the very profitable credit card industry at
the expense of the modest-income families who represent the
great majority of those who declare bankruptcy. Congress
should not enact reform that puts women and children at
greater risk. The bill is profoundly unfair and unbalanced.
Unless there are major changes to S. 256, we urge you to
oppose it.
Very truly yours,
Deborah Cutler-Ortiz,
Director of Family Income and Jobs,
Children's Defense Fund.
Mr. KENNEDY. In part, the letter says:
This bill would inflict hardship on more than 1 million
economically vulnerable women and families who are affected
by the bankruptcy system each year.
. . . and after the bankruptcy is over, more and more debts
owed to the commercial creditors will survive--and mothers
and children owed support are not a match for the collection
departments of the commercial credit industry.
There it is. The credit card companies and the mothers will be
scrambling over the nickels and dimes that might be left. Guess who is
going to win out? That is the fairness and balance that has been put in
here. That is why the Children's Defense Fund is strongly opposed to
this.
The National Women's Law Center wrote:
This bill would inflict additional hardship on over one
million economically vulnerable women and families who are
affected by the bankruptcy system each year: those forced
into bankruptcy because of job loss, medical emergency, or
family breakup--factors which account for nine out of ten
filings--and women who are owed child or spousal support by
men who file for bankruptcy.
It will make it ``harder for women to meet their children's needs
after bankruptcy because many more debts would survive.''
Finally, the Alliance for Retired Americans wrote:
The fastest growing group of Americans filing for
bankruptcy are those over 65. This unfortunate situation has
been caused by skyrocketing health costs that can drain a
lifetime of savings in a very short period of time. In
addition, many older Americans have seen their pensions and
retirement savings disappear as well. The result has been
that many older Americans cannot enjoy the security in their
retirement through no fault of their own. And they end up in
bankruptcy.
This legislation before the Senate actually increases the
burden on older Americans who undergo financially difficult
times through health care costs or loss of retirement income.
This administration wants to privatize Social Security. This is what
they say. That is why they are opposed to it. Those who represent the
children are opposed to it. The ones in the military are opposed to it.
Those who represent workers are opposed to it. Those who represent
women are opposed to it. The one group that is for it is the credit
card companies. Take your choice. I know how I will decide.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Ms. Murkowski). The Senator from Utah.
Mr. HATCH. Madam President, the crisis created by the unprecedented
use of filibusters to defeat judicial nominations must be solved while
preserving two important Senate traditions. On the one hand, extended
debate is an important part of how the United States Senate conducts
its legislative business. On the other hand, we have traditionally
given judicial nominations reaching the Senate floor a final
confirmation decision. Two years ago, this latter tradition was
attacked when the filibuster was used for the first time to defeat
majority supported judicial nominations. Mr. President, these are two
different and important traditions and each must be preserved.
Solving this crisis by restoring Senate tradition is not a partisan
step, but is in the interest of the Senate as an institution. Both
Republicans and Democrats should follow the same standard, no matter
which party occupies the White House or runs the Senate. Neither
Democrats nor Republicans should have to go through this vicious cycle
of filibusters against qualified judicial nominees.
Let me first clarify once again the situation in which we find
ourselves. Before 2003, no majority supported judicial nomination had
been defeated by a filibuster. Under our Rule XXII, we did vote on
motions to end debate on judicial nominations, though we did so just 15
times in 35 years. Simply taking a cloture vote, however, does not mean
a filibuster is underway. In fact, some of those cloture votes were
used deliberately to prevent filibusters, clearing the procedural path
and guaranteeing an up or down confirmation vote. Some have been used
for floor management purposes. We did so even on very controversial
nominations, such as President Clinton's choices of Richard Paez and
Marsha Berzon for the U.S. Court of Appeals for the Ninth Circuit.
Before 2003, only one judicial nomination on which cloture was not
invoked was not confirmed. Opposition to cloture on the controversial
1968 nomination of Abe Fortas to be Chief Justice was evenly bipartisan
and showed that
[[Page S2409]]
the nominee lacked clear majority support. At the nominee's request,
President Lyndon Johnson withdrew the nomination the next day. Senator
Robert Griffin, from Michigan, who led opposition to the nomination,
personally told me that there never was an intention to use the
filibuster to defeat the Fortas nomination. There was no need, since
the votes were there to defeat the nomination outright. Lyndon Johnson
knew it and that is why they withdrew the nomination rather than be
embarrassed by the bipartisan vote of both parties against the nominee.
Before 2003, if the Senate rejected a judicial nomination that
reached the Senate floor, we did so by voting it down; filibusters did
not prevent a final vote in order to keep a nomination from
confirmation. The break with that tradition came in 2003. During the
108th Congress alone, we voted on motions to end debate on judicial
nominations 20 times. Each vote failed, and opposition to cloture was
completely partisan. None of those nominees was confirmed, though each
had clear bipartisan majority support.
Those who want to end this Senate tradition of giving judicial
nominations reaching the Senate floor an up or down vote fear they will
lose if we follow that tradition. To them, the end of defeating
President Bush's judicial nominations justifies the means of destroying
Senate tradition. Being honest about it would reveal how such partisan
strategies are politicizing the judicial appointment process, so they
try to make other arguments.
They claim Republicans filibustered President Clinton's judicial
nominations, but each of his judicial nominees on whom we took a
cloture vote is today a sitting Federal judge.
They claim they don't filibuster very often, which is beside the
point if using the filibuster against judicial nominations violates
constitutional principles and departs from Senate tradition. There have
already been enough judicial nomination filibusters to give President
Bush the lowest appeals court confirmation rate of any president since
Franklin Roosevelt.
Or they claim they filibuster only nominees who are out of some kind
of mainstream. It is difficult to know what that charge really means,
especially since the American Bar Association--which Democrats once
considered the gold standard--has found them qualified. Senators may,
of course, vote against a judicial nominee for any reason they wish,
but we should stop pretending that out of the mainstream is anything
more than a prediction that the nominee may not always rule the way
liberal interest groups want. Considering the stream in which many of
those groups swim, I'm not so sure this isn't a compliment. If the
mainstream really mattered, though, these filibusters would never have
started. Newspaper editorials opposing filibusters of judicial
nominations outnumber those supporting them by at least six-to-one.
Madam President, I ask unanimous consent that some representative
editorials from mainstream newspapers be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, May 13, 2003]
The Politics of Filibusters
Where's Jimmy Stewart when you need him? Two historic
filibusters are currently under way in the Senate--one's been
going on for months--but next to no one outside the Beltway
has noticed.
Senate business proceeds as usual, the Members get to sleep
in their own beds at night, and Miguel Estrada and Priscilla
Owen's names come up only when repeated motions to close
debate and bring their judicial nominations to a vote are
defeated. Hollywood is not remaking ``Mr. Smith Goes to
Washington.'' All of which is exactly the way Democrats want
it: They can defeat two Bush judges, and more down the road,
without paying a political price.
So one can hardly blame Majority Leader Bill Frist for
trying to shine a little light on the problem. The Democrats
are imposing an extraordinary new standard for confirming
judges--not a simple majority of 51 votes but a super-
majority of 60, the number required to shut off debate. Both
filibustered nominees have the support of a bipartisan
majority, yet they are being denied the confirmation votes to
which they are entitled under the advice-and-consent clause
of the U.S. Constitution.
Mr. Frist's proposed solution is to change the procedure
under which debate ends and a vote is taken, a process known
as ``cloture.'' He would amend Senate Rule XXII so that the
number of votes needed to end a filibuster would fall from 60
to 57 to 54 to 51 on successive votes. This would preserve
the essential purpose of the filibuster--which is to give the
minority a chance to make their case--but not let them abuse
the system by holding confirmable nominees hostage forever.
Georgia Democrat Zell Miller made an even more ambitious
reform proposal on this page in March, when he called for new
cloture rules for nominations and legislation--not just
nominations, as Mr. Frist proposes. Mr. Miller's proposal was
in turn based on one in 1995 by Democrats Tom Harkin and
Joseph Lieberman.
That last one had the support of none other than Tom
Daschle, who said at the time that ``Democracy means majority
rule, not minority gridlock.'' Mr. Daschle hewed to a
different principle on Sunday, when he told NBC's ``Meet the
Press'' that Mr. Estrada and Judge Owen are ``exceptions to
the rule'' that every nominee deserves an up or down vote in
the Senate. Apparently he doesn't believe the Constitution
should be applied equally to every American.
Under current practice no Senate rule, including the 60-
vote cloture rule, can be changed except by a two-thirds
majority. Which is where things get interesting,
constitutionally speaking. Many legal scholars--liberal and
conservative--argue that Rule XXII is unconstitutional
because it binds future Senates to rules made by a past
Senate. ``It is an ancient principle of Anglo-American law
that one legislature cannot bind a succeeding legislature,''
Steven Calabresi of Northwestern Law School, told the Senate
last week.
Catholic University's Douglas Kmiec made a similar point on
this page in March, and Lloyd Cutler, White House Counsel to
Presidents Carter and Clinton, wrote in 1993 that ``the
Senate rule requiring a super-majority vote to cut off debate
is unconstitutional.'' Vice Presidents Nixon, Humphrey and
Rockefeller, while presiding over the Senate, have all held
that Senate rules can be changed by a simple majority.
If the current Senate did that with Rule XXII--obtain a
majority vote to change the cloture rules for nominations--
Vice President Cheney would presumably agree. That would
leave the Democrats with the option of going to court, where
the Supreme Court could take the case or, more likely, decide
it was a political dispute best left to the Senate to
resolve. The President's nominees would be seated.
We've said it before, but it's worth repeating that the
Democrats' judicial filibusters are unprecedented in Senate
history. Filibustering nominations wasn't even permitted
until 1949 and the sole judicial nominee stopped by a
filibuster was Abe Fortas, LBJ's nominee for Supreme Court
Chief Justice, who faced charges of corruption. Meanwhile,
the Democrats are just warming up. A third appeals-court
filibuster looks likely this spring, and a Supreme Court
filibuster could be next if there's a vacancy this summer.
The system for confirming judges is clearly broken.
Democrats are playing politics with Senate rules, but they
now profess shock and outrage that Republicans want to play
politics too and reform the filibuster rules being abused.
Sounds to us as if Republicans are on to something.
____
[From the Wheeling News Register Intelligencer, Sept. 8, 2003]
Time for Filibuster Rules To Change
Miguel Estrada, whose nomination to the U.S. Court of
Appeals was bottled up by hyper-partisan Democratic
opposition for more than two years, decided to get on with
his life and withdrew himself from the nomination process.
It should not have shocked Republicans to see their liberal
colleagues play hardball on judicial nominations. Democrats
have been doing it since the Reagan administration. Teddy
Kennedy and friends undoubtedly are astonished to encounter a
GOP Senate leadership so feckless that it has allowed them to
get away with imposing an extra-constitutional 60-vote
supermajority requirement on judicial nominations, by using
the filibuster technique to stall a vote on Estrada. It takes
60 votes to end a filibuster, and Senate leaders no less than
seven times mounted ``cloture'' votes to ``end debate,'' each
time coming up short.
But they never forced Democrats to take to the Senate floor
to expound at length about their opposition to Estrada or any
of the several other nominees now subject to powder-puff
filibusters. All a senator need do these days is threaten a
``filibuster,'' and--presto!--60 votes are required to
accomplish anything. The ``filibustering'' senators need not
worry about actually having to publicly defend their position
on the Senate floor.
Yes, long gone are the scenes from Frank Capra films in
which senators lose their voices trying to keep the floor to
maintain filibusters.
While Republicans have control of the Senate, they should
put an end to this practice that allows the will of the
minority to prevail without any effort being put into it.
The practical effect of GOP leaders allowing the minority
to so easily impose a 60- vote supermajority means there's a
new set of litmus tests for the courts: No judge may be
confirmed unless he or she agrees with the Senate's left
wing.
Now that there's nomination blood in the water, Republicans
can expect a lot more bare-knuckle torpedoing of President
Bush's
[[Page S2410]]
judicial nominees unless Republicans are willing to actually
get a little political dirt under their fingernails. And
maybe even--gasp!--sacrifice an all-nighter on the Senate
floor by making the ``filibusterers'' actually filibuster. If
they want it badly enough, they should have to work for it.
____
[From the Grand Forks Herald, Mar. 13, 2003]
Call End to Filibuster
(By Tom Dennis)
Our View: Don't set a new constitutional standard of
demanding a supermajority vote.
North Dakota's congressional delegation has to walk a
political tightrope. Sens. Kent Conrad and Byron Dorgan and
Rep. Earl Pomeroy are Democrats, while North Dakota itself
trends heavily Republican. The GOP's supermajorities in both
houses of the state Legislature, plus the fact that voters
chose Republicans for president in 1992, 1996 and 2000,
illustrate this.
But the delegation not only has walked that tightrope, it
has done handstands and even an occasional flip. All three
members are masters of wrangling federal dollars for North
Dakota projects. Furthermore, they've chosen their party-line
issues with care, voting with the Democrats on the budget but
showing more independence on some social and environmental
issues.
The Miguel Estrada filibuster in the Senate, however, may
change that perception.
Because the filibuster is as nakedly partisan as an issue
gets.
Estrada is President Bush's candidate for the District of
Columbia Circuit Court of Appeals. He's a Harvard Law School
graduate who clerked for a Supreme Court justice, worked in
the U.S. Solicitor General's office, argued cases in front of
the Supreme Court, earned the top ranking of ``well
qualified'' from the American Bar Association--and didn't
speak English when he immigrated to the United States from
Honduras, to boot.
Fifty-five senators (including four Democrats) support his
nomination. But the other 45 Senators won't let it come to
the floor for a vote. They've invoked a filibuster. They say
they're doing it because Estrada hasn't answered enough
questions, but that's patently false. Senators know as much
or more about Estrada as they have about most nominees.
Furthermore, when given the chance to ask Estrada more
questions in writing, not one Democratic senator took the
administration up on its offer.
No, the transparent reason for the filibuster is that
Estrada's a conservative Hispanic lawyer who has a shot at
being named to the U.S. Supreme Court.
And for the left wing of the Democratic party, that's do-
or-die unacceptable.
Conrad and Dorgan should distance themselves from this
scorched-earth tactic. The Constitution gives the president
the power to appoint ``with the Advice and Consent of the
Senate . . . Judges of the supreme Court and all other
Officers of the United States.'' It does so in the same
paragraph in which it lists a special power demanding a two-
thirds majority Senate vote--namely, the power to ratify
treaties.
The Founding Fathers could have held judicial confirmations
to that higher standard. But they didn't. Clearly, they
intended judges to be confirmed by a simple Senate majority.
Just as clearly, 200 years of Senate practice call for the
same thing.
The GOP won its Senate majority fair and square. The
filibustering Democrats smack of being spoilers when they
obstruct majority rule, especially because their objection in
this case is not based on truth, justice or the American way,
but on politics.
Fifty-five duly elected United States senators are willing
to give Estrada the nod. That's enough.
Let his nomination come to the floor, and call the vote.
____
[From the Buffalo News (New York), Mar. 19, 2003]
Let's Change Rules That Hang Up Judicial Nominees
Senate rules are an important part of American political
tradition, worthy of respect. Ditto for the constitutional
process by which the Senate confirms federal judges. The
abuse of one must not be allowed to undermine the other. But
that is precisely what is happening. No matter which party
controls the Senate gavel, when it comes to confirming
judges, those in power too often behave reprehensibly.
Senators grandstand and play games. They distort nominees'
records and views, misrepresent their positions and malign
them with words like ``extremist.'' It is no wonder there is
such a high number of judicial vacancies at the federal
level. . . .
The system is flat broken. And, finally, last week, thank
goodness, someone said so. President Bush is justifiably
upset at how Democrats have abused the filibuster to thwart
the nomination of Miguel Estrada. . . .
Now the president proposes something drastic: amend the
Senate rule book to require that, no matter which party
controls the White House or Senate, all federal judicial
nominees get an up-or-down vote. The practical application
would be to eliminate the filibuster with regard to judicial
nominees. Wow. It's not every day the president wants to
tinker with Senate tradition. . . . Thank goodness.
But the status quo is unacceptable. If Democrats have other
ideas, let's hear them. If not, Americans should push the
Senate to embrace Bush's suggestion. . . .
____
[Las Vegas Review Journal, June 20, 2003]
Advice and Consent
Has the fact that presidents of the United States appoint
the justices of the U.S. Supreme Court now become such an
obscure factoid that it's about to be relegated to an answer
in the new edition of ``Trivial Pursuit''?
Apparently the Democrats think so.
Since the nation's founding document says the president
``shall nominate, and by and with the advice and consent of
the Senate, shall appoint judges of the Supreme Court,''
Democratic Sen. Patrick K. Leahy of Vermont, on behalf of
fellow Senate Judiciary Committee member Charles E. Schumer
of New York and others, wrote to the president on June 11,
offering to help Mr. Bush choose his next high court
``nominee or nominees.'' There is speculation that one or
more member of the current court may step down after the
current term.
The offer sounds conciliatory on its face--after all,
wouldn't it be better for everyone to get together and choose
a consensus candidate beforehand, rather than subject a
string of nominees to hostile questioning and ultimate
rejection on political grounds?
The ``advice and consent'' clause might indeed lend itself
to such a novel reading--if the Senate were overwhelmingly
held by a party diametrically opposed to the president's
philosophical leanings.
But if this has never been the procedure in times when the
government was thus implacably divided, why on earth should
it be adopted now? It's not as though Sens. Leahy, Schumer
and Barbara Boxer of California represent the majority in the
U.S. Senate. In fact, their current efforts to bottle up Mr.
Bush's fully qualified appellate court nominees appear
desperate and divisive precisely because most of those
nominees would be quickly confirmed if an open vote were
allowed on the Senate floor--precisely as the founders
intended.
Rather, a small minority of these aging warhorses of the
failed policies of Lyndon Johnson's Great Society now use the
arcane and Byzantine rules of the Senate to keep those
nominations from coming to the floor.
``I am astounded by those letters. Does Charles Schumer
think he is the president?'' law professor John Eastman told
The Los Angeles Times.
Of course, there's a knife concealed in the folds of the
Democrats' proffered ``gift.'' The implication is that--if
they are not given this extraordinary power to hand the
president their own list of suitably liberal nominees, or to
strike names of known constitutionalists off any list the
president may have in hand--they might even filibuster a
nomination to the Supreme Court.
Wisely, Mr. Bush has now called that bluff.
White House counsel Alberto R. Gonzales replied in a letter
to Senate Democrats Wednesday that, ``If a Supreme Court
vacancy arises during his presidency, President Bush will
nominate an individual of high integrity, intellect and
experience,'' whereupon ``the Senate will have an opportunity
to assess the president's nominee and ... to vote up or
down.''
Will the last ponderous graybacks of the New Dealers' aging
herd squander their remaining political capital attempting a
last hurrah--lining up for a first-in-history filibuster
designed to prevent the entire Senate from voting on the
confirmation of a chief justice? It would be interesting to
watch them try.
____
[From the San Diego Union Tribune, Sept. 8, 2003]
Battle Over Judges--With Estrada Out, Senate Must End Turmoil
The battle between Democrats and Republicans in the Senate
over President Bush's judicial nominees may be the stuff of
interesting politics. But while this continuing controversy
makes for a potentially potent campaign issue, it makes for
bad government. After last week's withdrawal of Miguel
Estrada for consideration to the U.S. Circuit Court of
Appeals, antagonism in the Senate is only likely to grow.
Estrada, nominated to the appeals court more than two years
ago, had become the focal point of the controversy because
Democratic senators had used the filibuster seven times to
block votes by the full Senate on his nomination. If the
Senate had been allowed to vote on Estrada's nomination, a
majority would have confirmed him. But under Senate rules, 60
votes are needed to break a filibuster in the 100-member
chamber. The motions to end the filibuster never received
more than 55 votes.
In addition to Estrada, Democrats have blocked the
nominations of Alabama Attorney General William Pryor to the
11th U.S. Circuit Court of Appeals, which sits in Atlanta,
and of Texas Supreme Court Justice Priscilla Owens to the 5th
Circuit, which sits in New Orleans. Other filibusters are
likely, including one over Bush's appointment of Los Angeles
Judge Carolyn Kuhl to the 9th Circuit Court of Appeals, which
covers California and other Western states and territories.
But while Republicans put forth strong and justifiable
arguments over Democratic abuse of the filibuster, which
allows a minority to thwart the will of the majority,
antagonism over judicial nominees did not start with
President Bush's nominees. While one could go back to
President Reagan's 1987 nomination of Robert Bork to the U.S.
Supreme Court and his ultimate rejection by a Democratic
Senate, the real battle started during
[[Page S2411]]
the Clinton administration. During those years, even single
senators, using a ``blue slip,'' could block nominees. At
least two nominees to the court on which Estrada was to sit
were blocked in this manner.
Overall, nominees during the first three years of the Bush
administration and the first three years of the Clinton
administration have been confirmed at about the same rate. So
far, the Senate has confirmed 145 of Bush's appointments, 27
of them to the appeals courts, even though the discourse has
grown more strident.
In the interest of good government, a few senators have
talked of possible compromise, but nothing workable has yet
been put forward. Any compromise obviously would have to
involve the White House, and so far both the administration
and senators from each party are standing their ground.
But what's at stake here is the independence of the federal
judiciary and the public's respect for that branch's
interpretation of the laws Congress passes and the president
signs. If the Senate continues to fight over nominees, and
nominees are viewed as more political, there is a danger that
the public perception of judges who are eventually seated
could be tarnished. That would be disastrous for our system
of law and order. For this reason, and for others, both sides
must end this rancor.
Mr. HATCH. These may be their reasons, but there are no excuses. At
the mere suggestion of abandoning the Senate's tradition regarding
judicial nominations when President Clinton was in office, former
Democratic Leader Tom Daschle said, ``I find it simply baffling that a
Senator would vote against even voting on a judicial nomination.'' That
should be our response today as Senators on both sides of the floor.
Last week here on the Senate floor, the distinguished Senator from
West Virginia made his case against returning to Senate tradition
regarding judicial nominations. I respect him. I have a lot of regard
for him, but I have to confess I was surprised that someone with such
knowledge of the traditions and rules of this body would appear so
willing to abandon tradition.
He equated the filibuster with the Senate itself. He equated
filibustering judicial nominations with filibustering legislation and
concluded that returning to our tradition regarding judicial
nominations would be an attack on the Senate somehow. I would like to
address each of these elements because I do not believe they can
withstand fair scrutiny.
First, my friend from West Virginia argued that the Senate was
designed from its very inception as a place of absolutely unfettered
and completely unlimited debate. As such, he argues, any limitation of
debate strikes at the very heart of the institution itself. Yet in the
second volume of his own history of the Senate, he writes on page 115:
It is apparent that the Senate in the First Congress
disapproved of unlimited debate.
The original rule IV prohibiting a Senator from speaking more than
twice in any one debate on the same day without leave of the Senate
remains in only slightly modified form as our rule XIX today. Even more
significantly, rule VIII in the first Senate provided for a majority to
proceed to a vote by calling the previous question.
Coupled with the Founders' expressed commitment to majority rule,
these facts demonstrate that even with regard to legislation, the
possibility of preventing final action through extended debate was not
created by original design. It arose by default through dropping that
previous question rule in 1806.
It would still be decades before Senators who sought to protect the
institution of slavery would discover they could use this procedural
loophole to their advantage and, of course, the filibuster was born.
Its twin, however, was a parallel and ongoing effort at filibuster
reform by which we have actively sought properly to balance the
minority's right to debate and the majority's right to decide. The
solution we seek today is part of that ongoing effort.
The Senator from West Virginia next equated filibusters of judicial
nominations with filibusters of legislation. His policy arguments in
favor of the filibuster, however, apply only to the legislative
process. He said, for example, that without the filibuster ``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.''
I note that in previous debates about filibuster reform, such as in
1975, Democrats, such as the senior Senator from Massachusetts, Mr.
Kennedy, offered this very same argument against the filibuster. Still,
this notion obviously applies where the Senate either fashions or
effects legislation, but it is irrelevant to nominations.
The Senator from West Virginia has long been this Chamber's leading
expert on our history and procedure. For that I compliment him. For
this reason, though, I was disappointed that he would fail to make such
an important distinction between legislative and judicial nomination
filibusters, a distinction based on both historical fact and
constitutional principle. In other words, there is a difference between
the legislative calendar and the executive calendar in the Senate.
The Senator from West Virginia is not the first in the debate over
these new judicial nomination filibusters failing to make this critical
distinction. Other Democratic Senators, for example, want to use the
cup-and-saucer analogy by which George Washington allegedly described
pouring hot action from the House cup to cool in the deliberation of
the Senate saucer.
As Jeffrey Toobin's recent analysis in the New Yorker magazine points
out, however, not only is this story probably apocryphal, but the
supposed exchange between Washington and Jefferson specifically focused
on, you got it, legislation. In fact, that is the only context in which
it makes any sense. If they said it at all, they were talking about the
relationship between the two Houses within the legislative branch, not
the relationship between the legislative and executive branches.
The distinction between legislative and judicial filibusters is a
matter of historical fact. Every example offered last week by my friend
from West Virginia involved legislation. He opened and closed his
speech by evoking scenes from the classic film ``Mr. Smith Goes to
Washington.'' I went back and checked the script. Senator Jefferson
Smith in that movie, played by the great Jimmy Stewart, filibustered an
appropriations bill. That is legislation.
The example the Senator from West Virginia said was most relevant--
President Franklin Roosevelt's proposal to reorganize the judiciary--
was also, you got it, legislation. That example is actually not
relevant at all, however, because that 1937 legislation was not
defeated by a filibuster. The most definitive study of President
Roosevelt's plan by Mary McKenna concludes that it did not have
majority support in the Senate at all. There was no need for a
filibuster. Rather than the majority being stymied in its attempt to
pass the bill, the majority--and an overwhelming majority at that--sent
it back to committee.
To my knowledge, no Senators are today calling for an end to the
legislative filibuster as a group of Democratic Senators did a decade
ago. Nine of them, led by the Senator from Iowa, Tom Harkin, and the
Senator from Connecticut, Joseph Lieberman, serve in this body today.
They argued back then that all filibusters, including those of
legislation, unconstitutionally infringe on majority rule. The two
Senators from Massachusetts, Edward Kennedy and John Kerry, along with
the Senator from California, Barbara Boxer, the Senator from New
Jersey, Frank Lautenberg, the Senator from Maryland, Paul Sarbanes, the
Senator from New Mexico, Jeff Bingaman, and the Senator from Wisconsin,
Russ Feingold, voted against tabling that proposal.
I find it simply baffling that Senators who once supported abolishing
the Senate tradition of legislative filibusters would today support
establishing a tradition of judicial nomination filibusters--in other
words, filibusters of nominees by the President on the executive
calendar, not the legislative calendar.
Ignoring the distinction between legislative and judicial nomination
filibusters is necessary for the argument of the Senator from West
Virginia, as evidenced when he asked:
If we restrain debate on judges today, what will be next?
Yet for more than a century, filibusters of legislation coexisted
nicely with our tradition of giving up-or-down votes to judicial
nominations that reach the Senate floor.
Our experience under the current version of rule XXII shows that
these two traditions can peacefully coexist. That rule, by the way, was
born in 1917
[[Page S2412]]
after a filibuster of legislation. We have had the current version of
rule XXII since 1975. From 1975 to 2002, the 94th Congress through the
107th Congress, only 3 percent of cloture votes were judicial
nominations; 85 percent of those cloture votes passed, and all
nominations subject to cloture votes were confirmed.
During the 108th Congress, 49 percent of cloture votes were on
traditional nominations. None of them passed, and none of the
nominations were confirmed.
I must say, with all due respect to my dear friend from West
Virginia, that using the filibuster to defeat majority-supported
judicial nominations has not been part of even modern Senate practice,
let alone historic Senate tradition.
Let me repeat that. Using the filibuster to defeat majority-supported
judicial nominations has not been part of even modern Senate practice,
let alone historic Senate tradition.
In his op-ed piece in the Washington Post last week, the Senator from
West Virginia ignored our tradition regarding judicial nominations in
another way. He argued that by preventing a confirmation vote through a
filibuster, the Senate had formally rejected these judicial
nominations. How can it be a rejection of judicial nominations when a
majority of Senators supports confirmation of each one of those people?
Each nominee on whom cloture was not invoked remained on the Senate's
executive calendar. Our own rule XXXI states that nominations that are
``neither confirmed nor rejected'' shall be returned to the President.
Each of those filibustered nominations was, indeed, returned to the
President when the 108th Congress adjourned. By definition, common
sense, and our own rules, that means they were not rejected. My friend
from West Virginia cannot on the one hand claim these nominations were
rejected but on the other hand claim that these filibusters are about
deliberation and debate.
Legislative and judicial nomination filibusters are different as a
matter of historical fact because they are different as a matter of
constitutional principle. Legislation belongs to the legislative branch
under article I of our Constitution, while nomination and appointment
belong to the President under article II. In Federalist No. 65,
Alexander Hamilton wrote that the President would be the ``principal
agent'' in appointments. The Senate has an important role of advice and
consent that checks the President's appointment power, but we do not
control the executive process any more than the President controls the
legislative process. We recognize the difference between legislative
and executive business when we leave legislative session and proceed to
executive session to address nominations we have placed on the
executive calendar. My friend from West Virginia, I think, ignored
those differences.
Interacting with the executive branch is simply not the same as
interacting within the legislative branch. And thus it would seem
almost self-evident that procedures we use regarding our authority over
legislation might not be appropriate when we affect the President's
authority over appointments. We must preserve our tradition that
recognizes this constitutional distinction between the executive and
legislative branches, between our role of advice and consent on
judicial appointments, and our authority over legislation.
The Senator from West Virginia, in my opinion, used an unfortunate
analogy in attacking those who would return the Senate to its
confirmation tradition regarding judicial nominations. Others, such as
the Anti-Defamation League, have strongly objected to his reference to
Hitler's Nazi regime for various reasons. My point here is not that. It
is different. I object to his claim that returning to our tradition
regarding judicial nominations would be an example of ``how men with
motives and a majority can manipulate law to cruel and unjust ends.''
There is nothing cruel or unjust about the Senate returning to our
traditional advice and consent role regarding judicial nominations.
The Constitution gives the Senate the authority to determine our
procedural rules. It was pursuant to that authority that the Senate
dropped the previous question rule in 1806, adopted a cloture rule in
1917, and amended that rule several times since.
It was also pursuant to that authority that the Senator from West
Virginia aggressively used various strategies to change Senate
procedures when he served as majority leader of this body. This
includes approaches currently under discussion, such as seeking a
ruling from the Senate's Presiding Officer. Though the Senator from
West Virginia last week said such an approach would abandon the ``cloak
of legality,'' it would simply be following a procedural path that he
himself blazed. I was here for part of that.
The Senator from West Virginia said this approach ``seeks to alter
the rules by sidestepping the rules, thus making the impermissible the
rule.''
Yet the Senate operates on the basis of parliamentary precedents and
traditions, as well as by our standing rules, a history my friend from
West Virginia helped shape and has been recognized as helping shape
those rules.
In 1977, for example, the Senator from West Virginia made a point of
order that once cloture has been invoked, the Presiding Officer must
rule dilatory amendments out of order. One Senator criticized this
strategy as trying to change Senate rules by majority vote during the
heat of the debate. That criticism sounds an awful lot like the
criticism the Senator from West Virginia leveled last week against
those who might take the same approach today. Nonetheless, the strategy
succeeded when the full Senate tabled an appeal of the Presiding
Officer's ruling in favor of the distinguished Senator from West
Virginia.
In 1979, the Senator from West Virginia introduced Senate Resolution
9 to make various changes to rule XXII. He argued that notwithstanding
rule XXII's cloture requirement for rules changes, a simple majority
could change Senate rules at the beginning of a new Congress. He was
right. The current Senate, he argued, is not bound by the dead hand of
the past Senate. He threatened that if the Senate did not come to a
time agreement for considering his resolution, he would attempt to
proceed by seeking a parliamentary ruling.
Also in 1979, the Senator from West Virginia made a point of order
that the Presiding Officer, rather than the Senate, as required under
our rule XVI, ruled nongermane certain amendments to appropriations
bills.
As in 1977, that strategy worked when the Senate tabled an appeal of
the Presiding Officer's ruling in favor of the Senator from West
Virginia. In 1980, the Senator from West Virginia also secured a
helpful parliamentary precedent but from a different procedural
direction. He wanted to achieve confirmation for an individual nominee
on the Executive calendar.
At that time, while a motion to go into executive session was not
debatable, a subsequent motion to proceed to a specific item on the
Executive calendar was debatable. On March 5, 1980, the Senator from
West Virginia made a single motion for the Senate both to go into
executive session and to proceed to a specific nomination. When the
Presiding Officer sustained a point of order against this motion, one
Senator criticized this attempt to change procedure by majority vote.
Nonetheless, the Senator from West Virginia appealed the Presiding
Officer's ruling, which was his right to do, and the Senate overturned,
supporting the distinguished Senator's majority rule change.
This strategy might be described by some, using the Senator from West
Virginia's words last week, as altering the rules by sidestepping the
rules. It certainly limited what he now insists would be unfettered and
unlimited debate.
In 1987, the Senator from West Virginia secured a parliamentary
precedent that obviously dilatory requests by Senators to be excused
during a rollcall vote were out of order. This applied the same
strategy he had used in 1977, getting the Presiding Officer to rule
dilatory tactics out of order, in a new context. Each of these examples
has similarities and differences with the current situation.
I offer this detail only to demonstrate that Senate procedures have
been changed through parliamentary rulings as well as by formal
amendments to the rules themselves. As my friend from West Virginia has
demonstrated by pursuing each of these
[[Page S2413]]
strategies himself, the Senate can exercise its constitutional
authority to determine its procedural rules either way.
He may certainly believe that the changes he sought were warranted
while the change we may seek today is not. That is his right, and he
can express that right in debate by voting against such a change. But
that difference of opinion does not make his attempts to limit debate,
even on legislation, right and just while any attempt to do so today on
judicial nominations cruel and unjust.
We departed from our tradition of giving judicial nominations
reaching the Senate floor an up-or-down vote only 2 years ago. The
result has been the Senate's inability to do its constitutional duty of
providing advice and consent regarding judicial nominations. We were
able to give advice, I presume, but with regard to these 10 nominees we
were never able to give consent or not consent, whichever the case may
be. And that is done by a vote up and down. It demonstrates that the
confirmation process is, in the words of the Washington Post,
``steadily degrading.''
Returning to that tradition of giving up-or-down votes for judicial
nominations will not in the long run mean either party will always get
its way. Both the executive branch and the Senate do change partisan
hands from time to time. This standard, this tradition, knows no party
and guarantees no partisan advantage. It applies no matter which party
occupies the White House or which party controls the Senate. It would
bind Republicans as well as Democrats and preserve our institutional
traditions. I hope and believe, however, that restoring this tradition
will, despite some Senators' threats to blow up the Senate, help
restore some comity and good will to this body.
Returning to that tradition, which recognizes the difference between
our authority over legislation and the President's authority over
appointments, is not an attack on the Senate; rather, it affirms our
traditions and the Senate's unique place in our system of separated
powers. Returning to it both respects the President's authority over
appointments and asserts the Senate's role of advice and consent, not
just advice but consent as well.
A majority of Senators have been deprived of the right to give or not
give consent by these irresponsible filibusters of judicial nominations
on the Executive calendar. The deviation we have seen from that
tradition, wherein a filibuster prevents confirmation of nominees with
majority support, undermines the President's authority and distorts the
Senate's role. Preserving both of our traditions--extended debate
regarding legislation and up-or-down votes on judicial nominations
reaching the Senate floor--will restore the proper balance.
There is nobody in this body who respects the distinguished Senator
from West Virginia more than I do. I hope we can resolve these matters
so both parties are bound by the correct tradition that we are not
going to filibuster executive branch nominees and we will both preserve
the right to filibuster over the matters we totally control on the
legislative calendar. I would fight to my death to preserve rule XXII
on legislation because I have also been in the minority from time to
time, and it was the only way we could stop some things which would
have been just terrible for this country. But there is a difference
between the legislative calendar and the Executive calendar.
I respect my colleague from West Virginia. I can truthfully say I
love him because he has been a strong force around here for years, but
I hope he will look at some of these examples I have given and some of
these thoughts I have and help us stop this impasse that is occurring
in the Senate, not by preferring one party over the other but by
binding both parties to treat Presidential nominations with the respect
they deserve.
I have to say I never quite concentrated on this enough until these
judicial nominations were filibustered in 2003 and 2004. I myself am to
blame for not having thoroughly studied this until these problems
arose, but I have now studied it. I believe it would be far better for
our Senate to get rid of these animosities and threats to have nuclear
warfare and bind both the Republicans and the Democrats in the Senate
to do what is right, to give a vote up or down, so that we can not only
give advise but consent as well.
I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Madam President, what is the time that I have under the
order?
The PRESIDING OFFICER. The minority controls 14 minutes.
Mr. BYRD. Madam President, I ask unanimous consent that my time may
be extended to a total of 35 minutes and that the final 5 minutes be
under the control of the distinguished Senator from Delaware, Mr.
Carper.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. BYRD. I thank the Chair.
____________________