[Congressional Record Volume 151, Number 38 (Wednesday, April 6, 2005)]
[Senate]
[Pages S3267-S3269]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           THE NUCLEAR OPTION

  Mr. LEAHY. Mr. President, we heard a distinguished leader of a 
country pushing into democracy this morning, addressing a joint meeting 
of the Congress over in the other body. I think every time a country 
moves into democracy, and its leaders and citizens come to this 
country, one of the things they are thrilled about is the independence 
of our Federal judiciary and our judiciary overall. They say in their 
country, if they ever want to have democracy, they have to have the 
independence of the judiciary.
  I mention this because in recent weeks there seems to have been this 
escalating verbal attack by political leaders--and I must say, with all 
due respect, Republican political leaders--against Federal judges, 
including those who have been appointed by Republican Presidents, and 
against the Supreme Court, where most of the justices have been 
appointed by Republican Presidents.
  The Republican leader of the House has spoken seeking vengeance 
against judges involved in the Terri Schiavo matter. A Senate 
Republican has referenced the brutal murders in the State court in 
Georgia and of Judge Lefkow's family in Illinois as if they were 
somehow connected to judicial decisions that some people do not like 
and which lead to pressures that explode in violence.
  Now, I know all Senators, Republicans and Democrats, including the 
Senator who made those remarks, strongly agree there can be no 
justification for violence against judges or their families. In Iraq, 
judges are being attacked by insurgents. In Columbia, honest judges 
were murdered by drug-dealing thugs. That is not a circumstance we want 
to see anywhere in the world, especially here. We cannot tolerate or 
excuse or justify it here in the United States.
  When I chaired the Judiciary Committee in 2001, one of the first 
things I did was push for passage of the Judicial Protection Act, which 
toughened criminal penalties for assaults against judges and their 
families. I sponsored it

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with Senator Gordon Smith. We enacted it. We were right to do so. 
Protecting our judges and Federal law enforcement officers should be a 
top priority for us. I think sometimes the focus on terrorism distracts 
us from the day-to-day dangers for judges.
  I remember the autumn of 2001, when Senator Daschle and I were each 
sent anthrax-laced letters in an environment in which high-ranking 
Republican leaders had criticized us unfairly during the sensitive 
weeks leading up to that. People who touched the outside of the 
envelope addressed to me--the envelope I was supposed to open--people 
who simply touched it, doing their job, died as a result of that. And 
no perpetrator was ever arrested or convicted for these anthrax attacks 
by someone who may have thought himself a ``super patriot'' willing to 
will to make his point.
  I do not want to see more attacks on our Federal and State judges. So 
I urge those members of the other party who are making these attacks to 
disavow the rhetoric and those attacks. They should not be creating an 
atmosphere in which anyone will feel encouraged or justified in 
attacking our judiciary if they do not like a particular decision.
  In this regard, I thank the Senator from Texas for the comments he 
made Tuesday afternoon in which he expressed his regrets with regard to 
certain remarks he made on Monday that he says were taken out of 
context and misinterpreted. He has urged that the overheated rhetoric 
about the judiciary be toned down and acknowledged that ``[o]ur 
judiciary must not be politicized.''
  Mr. President, I became a Member of the Senate more than 30 years ago 
at a time when the country was recovering from an abuse of power by 
President Nixon. In the wake of the Watergate scandal, many of us were 
elected to be a forceful check on executive power. It was a mindfulness 
of the danger that absolute power corrupts that the Founders designed 
our Constitution to contain a vital set of checks and balances among 
the three branches of our Federal Government. Those checks and balances 
have served to guarantee our freedoms for more than 200 years.

  Today, Republicans are threatening to take away one of the few 
remaining checks on the power of the executive branch by their use of 
what has become known as their ``nuclear option.'' This assault on our 
tradition of checks and balances and on the protection of minority 
rights in the Senate and in our democracy should be abandoned.
  The American people have begun to see this threatened partisan power 
grab for what it is and to realize that the threat and the potential 
harm are aimed at our democracy, at the independent Federal judiciary 
and, ultimately, at their rights and freedoms. A thoughtful editorial 
appeared in one of my home State's newspapers today. In that editorial, 
The Barre-Montpelier Times Argus observed: ``Abolishing the filibuster 
for judicial nominees is another, more extreme, form of intimidation.'' 
I ask that a copy of that editorial be included in the Record at the 
end of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. Eliminating the filibuster by the nuclear option would 
violate and destroy the Constitution's design of the Senate as an 
effective check on the executive. The elimination of the filibuster 
would reduce any incentive for a President to consult with home-State 
Senators or seek the advice of the Senate on lifetime appointments to 
the Federal judiciary. It is a leap not only toward one-party rule and 
absolute majoritarianism in the Senate but to an unchecked executive.
  Recently Republican partisans have ratcheted up the vitriol even 
further with their direct threats upon the judiciary. They spare no 
one, neither State court judges, nor Federal judges, nor Federal judges 
appointed by Republican Presidents, nor the Supreme Court Justices 
themselves. Their goal is intimidation and subservience to an 
ideological agenda, rather than adherence to the rule of law. Worst of 
all, some Republican leaders have taken their rhetoric to a level that 
should concern all Americans, at a time when violence against judges, 
their families and courtroom personnel has shocked the nation. The 
Republican leader of the House has recently spoken of seeking vengeance 
against judges involved in the Terri Schiavo matter. I recall a similar 
call by that House leader in 1997 in which he called for the 
intimidation of judges. I spoke against it then and do so again today. 
It is essential that we preserve the independence of our judiciary and 
protect it from intimidation.
  In my time in the Senate we have often faced issues directly relevant 
to the separation of powers and the role this body plays as a check on 
executive power. As ranking Democratic member of the Judiciary 
Committee and as a former chairman of the committee, I have invested 
significant time and energy on providing resources to our third branch 
of Government. During the 17 months I chaired the committee, the Senate 
confirmed 100 of President Bush's judicial nominees. In the other 34 
months of the Bush administration, the Senate has confirmed but 104.
  The independent, nonpartisan role that judges play in our democracy 
is vital. I agree with Chief Justice Rehnquist when he called the 
independent judiciary the ``crown jewel'' of our democracy. It is the 
envy of and the model for the world. In order to keep this branch of 
Government independent and above politics, these nominations to 
lifetime appointments should be of the caliber to garner wide 
consensus, not political divisiveness. The goal should not consistently 
to be to see how many controversial nominees can be confirmed by the 
narrowest of partisan margins. Partisan passions must be kept in check 
when we are addressing an independent branch of Government, and no 
President should seek to pack the bench with unalloyed partisans or 
narrow ideologues.

  It is the Federal judiciary that is called upon to rein in the 
political branches when their actions contravene the Constitution's 
limits on governmental authority and restrict individual rights. It is 
the Federal judiciary that has stood up to the overreaching of this 
administration in the aftermath of the September 11 attacks. It is more 
and more the Federal judiciary that is being called upon to protect 
Americans' rights and liberties, our environment and to uphold the rule 
of law as the political branches under the control of one party have 
overreached. Federal judges should protect the rights of all Americans, 
not be selected to advance a partisan or personal agenda. Once the 
judiciary is filled with partisans beholden to the administration and 
willing to reinterpret the Constitution in line with the 
administration's demands, who will be left to protect American values 
and the rights of the American people? The Constitution establishes the 
Senate as a check and a balance on the choices of a powerful President 
who might seek to make the Federal judiciary an extension of his 
administration or a wholly-owned subsidiary of any political party.
  The Senate's role in advising the executive and determining whether 
to consent to confirmation of particular nominees is a fundamental 
check and balance on the executive. It is especially important with 
respect to lifetime appointments to the judiciary. The Senate's rules, 
already adopted and in place for this Congress, continue to provide for 
an orderly procedure to end debate on matters before the Senate and an 
orderly procedure for amending the Senate rules.
  Just as amending our fundamental charter, the Constitution, requires 
supermajorities, so amending our Senate rules does, as well. When the 
Senate rule for ending debate in the Senate has been amended in the 
past, the rules for amending those rules have been followed. Previous 
Senate majorities have followed the rule of law by amending rule XXII 
only after a supermajority has agreed to end debate on amending the 
rule. The nuclear option would circumvent rule XXII and would destroy 
the equivalent of the rule of law in the Senate.
  Even the Senate's Republican majority should not be above the law. 
The Senate has always protected minority rights. The nuclear option 
would bring an end to that tradition and to the comity and cooperation 
on which the Senate depends. The Senate and the House were designed by 
the Founders to serve different functions in our Government. The 
nuclear option destroys the fundamental character of the Senate. 
Breaking so fundamental a Senate rule by brute force is lawlessness. 
Over

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the past 2 years, the Republican majority has already bent, broken or 
ignored the rules governing committee consideration of judicial 
nominees. This year they are moving to destroy the one Senate rule left 
that allows the minority any protection and any ability to protect the 
rights of the American people.
  In political speeches we all talk about the importance of the rule of 
law. In Iraq over the last 2 years, young Americans have given the 
ultimate sacrifice seeking to help establish a democracy that upholds 
the rule of law. The governing transitional law that the Bush 
administration helped design for Iraq calls for a two-thirds vote of 
the Iraqi legislature to select the president and vice presidents. This 
was created to protect the minority and encourage consensus. Just today 
we hear that the long period of negotiations following the Iraqi 
elections has yielded an agreement on the presidency council, which is 
the next step in forming an Iraqi government, and that the Iraqi 
national assembly expects to have the two-thirds vote required to 
proceed to name a Kurdish leader, a prominent Shiite Arab politician 
and a Sunni Arab leader as the president and the two vice presidents of 
Iraq. While we recognize and fight for consensus-building and minority 
protection in Iraq, Republican partisans here at home are threatening 
the nuclear option to remove protection for the minority in the U.S. 
Senate. That is wrong.

  When President Bush last met earlier this year with President Putin 
of Russia, he spoke eloquently about the fundamental requirements of a 
democratic society. President Bush acknowledged that democracy relies 
on the sharing of power, on checks and balances, on an independent 
court system, on the protection of minority rights and on safeguarding 
human rights and human dignity. What we preach to others we should 
practice. Destroying the protection of minority rights, removing the 
Senate as a check on the President's power to appoint lifetime judges 
and undermining our independent Federal judiciary are inconsistent with 
our democratic principles and values but that is precisely what the 
nuclear option would do.
  Breaching the Senate rules to eliminate filibusters of nominations 
will only produce more division, bitterness and controversy. To date 
the Senate has proceeded to confirm 204 lifetime appointments to the 
Federal judiciary by President Bush. The Senate has refused to grant 
its consent to only a handful of his most controversial and divisive 
nominees and only after public debate and the votes of a substantial 
number of Senators. Those who now threaten the nuclear option were 
willing to forestall votes on more than 60 of President Clinton's 
moderate and qualified judicial nominees if only one anonymous 
Republican Senator had a secret objection.
  The way to resolve this conflict is for the President and Senate 
Republicans to work with all Senators and engage in genuine, bipartisan 
consultation aimed at the appointment of consensus nominees with 
reputations for fairness who can gain wide support and join the more 
than 200 judges confirmed during President Bush's first term. By last 
December, we had reduced judicial vacancies to the lowest level, lowest 
rate and lowest number in decades, since President Ronald Reagan was in 
office.
  There are currently 28 judicial vacancies for which the President has 
delayed sending a nominee. In fact, he has sent the Senate only one new 
judicial nominee all year. I wish he would work with all Senators to 
fill those remaining vacancies rather than through his inaction and 
unnecessarily confrontational approach manufacture longstanding 
vacancies.
  There are currently two of his nominees, Michael Seabright of Hawaii 
and Paul Crotty of New York, who the Republican leadership refuses to 
schedule for consideration. I believe that those nominees can be 
debated and will be confirmed by overwhelming bipartisan votes, if the 
Republican leadership of the Senate would focus on making progress 
instead of seeking to manufacture a crisis. They can become the first 
judges confirmed this year. Let us join together to debate and confirm 
these consensus nominees.
  Rather than blowing up the Senate, let us honor the constitutional 
design of our system of checks and balances and fill judicial vacancies 
with consensus nominees without unnecessary delay.

                               Exhibit 1

                  [From the Times Argus, Apr. 6, 2005]

                            Time To Stand Up

       Republicans and Democrats are headed for a showdown in the 
     Senate over the Democrats' insistence that, for a handful of 
     extreme and ill-suited judicial nominees, it will use the 
     filibuster to block action. Sen. Patrick Leahy, ranking 
     Democrat on the Senate Judiciary Committee, will be in the 
     center of the fight.
       Republicans have responded to the prospect of Democratic 
     filibusters by threatening to throw out the rule allowing 
     filibusters for judicial nominees. Democrats say that if that 
     happens they will halt all but the most essential Senate 
     action.
       The battle over the judiciary is a central political 
     struggle of our time. The congressional effort to meddle in 
     the Terri Shiavo case was a prelude to the battle over the 
     courts, and it revealed the dangerous degree to which the 
     nation's Republican leaders intend to twist the judiciary to 
     their will.
       The party line among Republicans is that they favor judges 
     who interpret the law rather than making it. They don't want 
     judges imposing outcomes or crafting decisions to carry out a 
     personal agenda.
       Yet the astonishing comments by Rep. Tom DeLay, House 
     Republican leader, show the Republicans' true aim. DeLay 
     revealed that, above all, he wants to impose outcomes. The 
     outcome in the Schiavo case didn't go his way so he began 
     talking of impeaching the judges involved. Judges whose 
     independence is curbed by that kind of intimidation will be 
     forced into outcomes demanded by politics, not by the law.
       The Schiavo case passed before judges in state and federal 
     courts, the federal appeals court, even the U.S. Supreme 
     Court, and all those judges, liberal and conservative, ruled 
     that Terri Schiavo's expressed wishes, as conveyed by her 
     husband, should prevail. There has been much debate about 
     whether the husband was reliable and whether the medical 
     diagnosis was correct. But those questions went to judgment 
     in the courts. That is what courts are for. The judiciary is 
     independent so that courts can weigh facts in a calm and 
     reasoned fashion, free of political pressures or the 
     enthusiasms of enflamed groups. Sometimes we don't agree with 
     the outcome, but citizens, like judges, are not supposed to 
     impose outcomes.
       Intimidation of the judiciary was also the approach of 
     former Attorney General John Ashcroft, who sought to 
     discipline judges who acted counter to his wishes. Abolishing 
     the filibuster for judicial nominees is another, more 
     extreme, form of intimidation.
       The Republican critique of the judiciary suggests they 
     believe judges are somehow outside the democratic system, 
     that they have no business thwarting the workings of the 
     legislative branch. But judges are an essential part of the 
     democratic system. For one, they are appointed by the elected 
     executive and confirmed by elected senators. And they exist 
     to safeguard our democratic system when the legislative or 
     executive branches try to ride roughshod over the law.
       In the Schiavo case, the executive and legislative branches 
     sought to abolish the constitutional role of the judiciary as 
     an independent branch. In those cases where President Bush's 
     judicial nominees exhibit similar lack of respect for the 
     law, senators have the duty to oppose them and to stand up 
     against the intimidating tactics of the Republican 
     leadership.

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