[Congressional Record Volume 151, Number 28 (Thursday, March 10, 2005)]
[Senate]
[Pages S2413-S2415]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                FREEDOM

  Mr. BYRD. Madam President, freedom is a fragile thing and never more 
than one generation away from extinction. It is not ours by 
inheritance; it must be fought for and defended constantly by each 
generation, for it comes only once to a people. Those who have known 
freedom and then lost it have never known it again. These words come 
from the lips of former President Ronald Reagan.
  I rise today to discuss freedom, not the grandiose worldwide 
``freedom talk'' one hears so much about. No. Not far-flung foreign 
policy goals, but, rather, my concern today is preserving our freedoms 
right in our own backyard at home.
  Freedom, like a good garden, needs constant tending. One must watch 
for the worms in the wood. As Wendell Phillips, the abolitionist, 
orator, and the columnist, once said, ``eternal vigilance is the price 
of liberty.'' One must pay the price if one wants the blessing.
  In a culture where sports metaphors are more common public parlance 
than historical analogies, our unique form of government, carefully 
restraining powers while protecting rights, presents a special 
challenge to maintain. The ``winning is everything'' philosophy so 
beloved by Americans may, without careful balance, obscure the goal of 
justice for all that must be the aim of a representative democracy. 
Demeaning minority views, characterizing opposition as obstructionist--
these are first steps down the dark alley of subjugating rights.
  Majorities can prevail by numerical force. They do not need 
protection from minorities. Yet some would have us believe that 
minority voices threaten the larger public good in the case of 
Presidential judicial appointments. The opposite is true. It is 
minorities who are most in jeopardy without fairness from the Federal 
bench. I am talking about those who are in the minority. The 
persecuted, the disadvantaged, the poor, the downtrodden--these are the 
very citizens who need the strong protection of an unbiased legal 
system.
  Appointees to the Federal bench should be scrutinized for traces of 
ideological rigidity or allegiance to political movements which could 
cloud impartial judgment. I for one do not favor activist judges of any 
stripe. I do not think the proper role for a judge is to make new law 
from the bench. My own preference is usually for strict 
constitutionalists. Conservative judges can hold activist views, just 
as can liberal judges. Such labels tell us very little. What we should 
strive for on the Federal bench is blind justice; that is, justice 
absent a political agenda.
  Judicial appointments must never be a sure thing for the bench simply 
because they please the majority party, whether that majority is 
Democratic or Republican. Federal judges enjoy life tenure. Remember 
that. Federal judges enjoy life tenure, making decisions of huge 
importance to the lives and the livelihoods of our citizens. Are they 
accountable to anyone? No. They are accountable to no one, and no 
President can fire them. No President can say: Go home, you are sick 
today.
  It is ridiculous to suggest that mere superiority of numbers in the 
Senate should alone guarantee confirmation to a Federal judgeship. Such 
a claim reduces the constitutional advice and consent function of the 
Senate to a pro forma rubberstamping of Presidential judicial 
appointments whenever the President's party controls the Senate. We are 
talking about a separate branch of the Federal Government. We are 
talking about a separate branch of the

[[Page S2414]]

Federal Government here, which wields tremendous power.

  There is no God-given right to a seat on the Federal bench--no God-
given right. There is no God-given right to a seat on the Federal 
bench. Should a minority have only the recourse of delay to defeat a 
judicial candidate of concern, that minority is well within its rights 
to filibuster. In fact, the minority would be derelict in their duty if 
they did not filibuster. There is no shortage of candidates for the 
Federal bench, no shortage. Another name can always be offered. Our aim 
should be to select excellent judges acceptable across a wide spectrum 
of political views.
  There was a time in this country when men and women of opposite 
political parties could reason together to achieve such goals. There 
was a time when the concerns of honorable men and women serving in this 
Senate received the respect of fellow Members of the Senate, even 
though they were in the minority. Now I am very sorry to observe the 
Senate and the country are so polarized--so polarized, so politicized--
that nearly all dissent is discarded as obstructionist and politically 
motivated. ``Get out of the way'' is the cry. ``Get out of the way, get 
out of the way'' is the cry. Few take the time to consider other views.
  If 41 Members of the Senate have objections to any judicial 
candidate, perhaps those objections should be heeded. Those are 41 
Members. Perhaps that nominee should not serve. Forty-one Members, 
representing at the very least the people of 21 States, at the very, 
very least. Perhaps the minority is right. Perhaps the minority is 
right.
  Senate service often reminds me of a game of ``red rover.'' We line 
up like two opposing camps and run as hard as we can at each other to 
score points. The talk show mavens keep the fires fanned, and through 
the din, honest discourse is nearly impossible. I worry. Oh, yes, I 
worry about a country whose major political pastime is not in finding 
compromise but, rather, in seeking conflict. The people are not well 
served. The courage to speak out about one's convictions is in scarcer 
and scarcer supply. Where, oh, where are the 21st century's profiles in 
courage?
  President John F. Kennedy's Pulitzer Prize-winning book ``Profiles in 
Courage'' lionized public servants who did not fear to stand alone, 
like Senator George Norris of Nebraska. From 1806 to 1917, there was no 
ability to invoke cloture in the Senate. Why 1806? Because that was 
when the rule was dropped from the Senate rules asking for the previous 
question, which would shut off debate. Therefore, it was really from 
1789 to 1917 that there was no ability to invoke cloture in the Senate. 
But, in 1917, a cloture rule passed after a filibuster by 12 determined 
Senators who opposed U.S. intervention in World War I. That debate 
began when President Wilson asked Congress for the authority to arm 
U.S. merchant ships against Germany. The House of Representatives 
passed Wilson's bill, the ``Armed Ship'' bill, by a vote of 403 to 13. 
But a handful of determined Senators who opposed U.S. intervention in 
World War I, including Republican George W. Norris of Nebraska, 
launched a filibuster with far-reaching consequences.

  George Norris's filibuster killed President Wilson's bill, though 
Wilson resurrected its contents by Executive order shortly after the 
filibuster ended.
  I was born during the administration of Woodrow Wilson.
  Nebraskans and, in essence, all States, the entire nation, were 
consumed with rage at George Norris because of public disclosure that 
Germany had promised Mexico several United States States if Mexico 
would align itself with Germany in war against the United States.
  Well, there was a huge din, a huge outcry. The New York Times called 
Norris and others ``perverse and disloyal obstructionists.'' Does that 
recall anything of present-day vintage to Senators? The New York Times 
called Norris and others ``perverse and disloyal obstructionists'' and 
editorialized that:

       . . . the odium of treasonable purpose will rest upon their 
     names forevermore. The Hartford Courant called them 
     ``political tramps.'' The New York Sun called them ``a group 
     of moral perverts.'' The Providence Journal called their 
     action ``little short of treason'' and the Portland Free 
     Press said they should be ``driven from public life.''

  Senator George W. Norris, the Nebraskan from the heart of America, 
suffered merciless abuse, vicious invective and public scorn, tarred by 
public sentiment, savaged by a strident press and the grip of a public 
filled with hate of Germany and the start of World War I. Yet he was 
and is an American hero. George Norris was ``fearful of the broad grant 
of authority'' that President Wilson sought to go to war, and resentful 
of the manner in which that authority was being ``steamrolled'' through 
the Congress.
  Oh, how history repeats itself. How history repeats itself.
  In Senator Norris's words:

       I will not, even at the behest of a unanimous constituency, 
     violate my oath of office by voting in favor of a proposition 
     that means the surrender by Congress of its sole right to 
     declare war. . . . I am, however, so firmly convinced of the 
     righteousness of my course that I believe if the intelligence 
     and patriotic citizenship of the country can only have an 
     opportunity to hear both sides of the question, all the money 
     in Christendom and all the political machinery that wealth 
     can congregate will not be able to defeat the principle of 
     government for which our forefathers fought.

  That was George Norris speaking.
  When George Norris went home to explain why he had filibustered in 
the face of universal criticism, he sought an open meeting in Lincoln, 
NE.
  ``I had expected an unfriendly audience,'' Norris wrote, ``And,'' he 
said, ``it was with some fear that I stepped forward. When I stepped 
out on the stage, there was a deathlike silence.''
  Senator Norris began, President Kennedy tells us, by stating simply: 
``I have come home to tell you the truth.''
  After more than an hour, the crowd in Lincoln, NE, Kennedy wrote, 
roared its approval.
  Many have written extensively and with legitimate fear of what could 
happen if men without the courage of their convictions simply sat back 
and let themselves be swept away by a powerful majority, including 
George Orwell, writing of the horrors of power run rampant, of a world 
run by ``thought police'' who seek to control not just information but 
the speech and thoughts of every individual citizen. In ``1984'' Orwell 
recorded what life would be like under the thumb of Big Brother, with 
no autonomy of thought or speech.

  George Orwell's fictional warning against Big Brother should 
encourage us all to ponder, to cherish and to protect our precious 
freedom--our precious freedom to think and speak freely. And the means 
to that end is protecting the right to dissent. Orwell said of liberty:

       If liberty means anything at all, it means the right to 
     tell people what they do not want to hear.

  That right will be in jeopardy if a misguided attempt to eliminate 
the filibuster succeeds.
  Robert Caro, winner of the Pulitzer Prize for his renowned book about 
Lyndon B. Johnson, made Orwell's point in a letter to the Senate Rules 
Committee in June 2003.

       Many times in America's history the right of extended 
     debate has been used to defend causes with which I profoundly 
     disagree. Nonetheless, great care should be taken in placing 
     new restrictions on that right. Senators who are considering 
     doing so should understand that they will be taking a step 
     that has significant implications for the balance of powers 
     created under the Constitution, and also for another 
     fundamental concern in a democracy: the balance between 
     majority and minority rights.

  Caro stressed that the Framers gave the Senate strong protections 
from transient public passions or executive pressures and that the 
Constitutional Convention kept the Senate small so that it would have, 
in Madison's words:

       [less propensity] to yield to the impulse of sudden and 
     violent passions, and to be seduced by factious leaders into 
     intemperate and pernicious resolutions.

  Madison believed:

       . . . there are more instances of the abridgement of 
     freedoms of the people by gradual and silent encroachment of 
     those in power than by violent and sudden usurpations.

  Madison was right. The loss of freedom will not come as a 
thunderclap. I say again, the loss of freedom will not come as a 
thunderclap from Heaven. Rather, if it goes away, it will slip silently 
away from us, little by little, like so many grains of sand sliding 
softly through an hourglass.
  The curbing of speech in the Senate on judicial nominations will most 
certainly evolve to an eventual elimination of the right of extended 
debate.

[[Page S2415]]

And that will spur intimidation and the steady withering of dissent. An 
eagerness to win--win elections, win every judicial nomination, 
overpower enemies, real or imagined, with brute force--holds the poison 
seeds of destruction of free speech and the decimation of minority 
rights.
  The ultimate perpetrator of tyranny in this world is the urge by the 
powerful to prevail at any cost. A free forum where the minority can 
rise to loudly call a halt to the ambitions of an overzealous majority 
must be maintained. We must never surrender that forum--this forum--the 
Senate, to the tyranny of any majority.
  When Aaron Burr said farewell to the Senate, he urged the Senate to 
do away with the Senate rule that would close debate on the previous 
question. That previous question has seldom been used in the short 
time. And in 1806, the Senate carried out the will of Aaron Burr.

       This house is a sanctuary; a citadel of law, of order and 
     of liberty; and it is here--it is here, in this exalted 
     refuge; here, if anywhere, will resistance be made to the 
     storms of political phrensy and the silent arts of 
     corruption; and if the Constitution--

  This Constitution.

     --and if the Constitution be destined ever to perish by the 
     sacrilegious hands of demagogue or the usurper, which God 
     avert, its expiring agonies will be witnessed on this floor.

  On March 2, 1805, Aaron Burr stated that prophetic warning.
  The so-called nuclear option, if successful, will begin the slow and 
agonizing death spiral of freedom, speech, and dissent, and it will be 
witnessed on this floor.
  I yield the floor.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER (Mr. Ensign). There is 9 minutes 40 seconds 
remaining in total to the minority.
  Mr. BYRD. I thank the Chair. I believe Senator Carper is on his way. 
He wishes to have 5 minutes under the order following my remarks.
  The PRESIDING OFFICER. The Senator from Delaware.

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