[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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