[Congressional Record Volume 151, Number 42 (Tuesday, April 12, 2005)]
[Senate]
[Pages S3446-S3448]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. ALLARD. Mr. President, I rise this morning to address one of the 
most important obligations that we, as Members of the Senate, are bound 
to fulfill--the approval or disapproval of the President's judicial 
nominations.

  Perhaps no other constitutional duty vests as much responsibility in 
the executive, or this body, than article II, articulating the 
President's power of appointment, a power that is only realized when 
the Constitution works as it was intended to, when we fulfill our 
obligation as laid out in the clause requiring this body's advice and 
consent.
  This fundamental duty carries with it the weight and responsibility 
of generations, a lifetime appointment to a position that requires a 
deep and mature understanding of legal thought, and a solemn oath to 
uphold the law.
  This debate is not about numbers. It is not about percentages, how 
many judges that Republicans confirmed or how many judges Democrats 
confirmed. To frame the debate as nothing but a statistical argument is 
to betray the American people.
  We were not sent to Congress to focus on a numerical count but 
instead to make sure that limited government allows for opportunity and 
promise without stifling individual freedom and liberty.
  We were sent here to build a stronger Union and to uphold our 
obligations under the Constitution.
  The Founding Fathers referred to judges as ``the guardians'' of the 
Constitution and gave to the President the responsibility to appoint 
them.
  Alexander Hamilton once wrote that, in order to maintain the health 
of the three branches of government, all possible care is requisite to 
enable the judiciary to defend itself.
  It is frightening to think that a minority in the Senate is eroding 
the foundation of the third branch by perpetuating obstruction and 
endangering the citadels of justice.
  No where does the Constitution give Congress the ability to ignore 
the appointment process.
  By refusing to give judicial nominations an up or down vote, it is 
nothing more than a Congressional veto with a fancy name.
  James Madison characterized the appointment of judges as the remote 
choice of the people.
  Failure to provide an up or down vote deprives the people of the 
United States the choice selected by their representatives, denying 
choice to the very same people who elected us to office and the same 
people who live under the Constitution that we have sworn to protect.
  The legal prowess of a nominee is obviously an important factor to 
consider when confirming a judge.
  The Constitution calls upon the Senate collectively to determine 
whether or not a particular nominee is qualified to serve. This 
determination is made in one gesture, the approval or disapproval of 
the nomination itself.
  In 2003 and 2004, a series of votes were held on various nominees. 
Some were approved, while others were denied a vote altogether, even 
though they were clearly supported by a majority of Senators.
  Procedural processes do not fulfill the advice and consent 
requirement. Advice and consent does not mean avoiding the question on 
a judicial nominee entirely by employing a filibuster.
  If a Member of the Senate disapproves of a judge, then let them vote 
against the nominee. But do not deprive the people of the right to 
support a nominee through their elected representative.
  It is our vote, the right of each Member to collectively participate 
in a show of ``advice and consent'' to the President, that exercises 
the remote choice of the people.
  The burden of obstruction is borne by the American people. Empty 
seats on our highest courts delays the recourse and justice guaranteed 
by the Constitution.
  As so many of my colleagues have stated before me, such justice 
delayed is justice denied.
  In the shadow of September 11, 2001, we now recognize the efforts 
being made by the enemies of the United States to destroy the liberties 
and freedom of our great Nation. The most basic of our country's values 
and traditions are under attack.
  Congress responded by enacting new laws and by providing financial 
assistance to businesses, families and defense; we acted swiftly to 
suffocate terrorists and destroy the hateful organizations that work to 
undermine our society.
  Through strong and courageous leadership, the President has stood 
firm against terrorist and terrorist regimes.
  But our government cannot function without an equally strong 
judiciary, the third branch of government. It is through the judiciary 
that justice is served, rights protected, and that law breakers are 
sentenced for their crimes.
  The Senate cannot willingly refuse to provide an up or down vote on 
judicial nominees without acknowledging that irreparable harm may be 
done to an equal branch of government.
  Judges must take an oath to uphold the law, regardless of their 
personal views.
  Time after time, a nomination has been blocked by a minority of 
Senators because they feel that they are better judges of a nominee's 
ability to fulfill that oath than a majority of the Senate.
  The result of this obstruction is a broken nomination process.
  I sincerely hope we can work through the impasse on the judicial 
nomination process.
  I hope those opposed to the President's nominees will vote against 
them and speak their mind about it. But I also hope that we will be 
allowed to provide the guidance we are required to provide under the 
Constitution.
  As I have said so many times before, ``vote them up or vote them 
down, but just vote.''
  The ACTING PRESIDENT pro tempore. The Senator from Tennessee is 
recognized.
  Mr. ALEXANDER. Mr. President, I am the Senator from Tennessee, and we 
know something about country music in our State. There is an old 
country music song with the line that goes something like this: There 
is light at the end of the tunnel and I hope it ain't no train.
  I am beginning to think it is a train and that there is not much way 
to avoid a train wreck. The train wreck I am talking about is a threat 
by the minority to ``shut the Senate down in every way'' if the 
majority adopts rules that will do what the Senate has done for 200 
years, which is to vote up or down the President's appellate judicial 
nominees.

[[Page S3447]]

  Until recently, not to vote at all on a President's judicial nominee 
was unimaginable. Take the case of Clarence Thomas in 1991: The first 
President Bush nominated him to the Supreme Court of the United States. 
I haven't seen any debate in this body with as much passion in it as 
the Thomas nomination. But he was nominated in July, the Senate voted 
in October 52 to 48, and it was done. Yet, in the last session of 
Congress, for some reason that escapes me, the minority felt it had to 
use the filibuster to deny an up-and-down vote 10 times on 52 of the 
President's appellate judicial nominees. That has never happened 
before. There are a lot of ingenious arguments being made on the other 
side, but that has never happened.
  Some people mention Abe Fortas in 1968--I was here then; I was 
working for Howard Baker in the Senate. The votes against Fortas were 
in the majority. But even if you give that to the other side, neither 
party has ever used the tactic of denying an up-or-down vote on 
judicial nominees in 200 years.
  The argument that the Senate doesn't have the power to change this 
procedure would get thrown out of court in a summary judgment. From 
1789 when the Senate first met and adopted its rules by majority vote, 
it has adopted its rules by majority vote as the Constitution provides.
  The nominees who the President put up who were rejected were badly 
abused. Charles Pickering, from Mississippi, was accused of not being 
sensitive to civil rights. In 1967, he put his children into 
desegregated schools in the middle of Mississippi. He testified in 
court against the grand wizard of the Ku Klux Klan, who was described 
by Time Magazine as the most evil terrorist in America.
  Bill Pryor, not sensitive on civil rights? Too conservative? Bill 
Pryor was law clerk to John Minor Wisdom in New Orleans, as the 
Presiding Officer knows, perhaps the leading civil rights judge in the 
South during the 1950s, 1960s, and 1970s, and Bill Pryor has repeatedly 
demonstrated he can separate his views from his judicial judgments. 
Most recently he was part of the court--by his recess appointment--that 
rejected an appeal on the Terri Schiavo case. I don't know how he felt 
personally about it, but he felt under the law there was no recourse in 
Federal courts. Chairman Arlen Specter has sent a certain memorandum 
around to Members asking us to look at Priscilla Owen's real views on 
Roe v. Wade. She hasn't said she wants to overturn Roe v. Wade.
  The question is not whether the Senate has the power to adopt the 
rules by majority vote--it unquestionably does; that is common sense--
but whether we should.
  I am one of the Republicans who believe such a rules change is not a 
good idea--not good for the Senate, not for the country, not for 
Republicans, and not for Democrats. The Senate needs a body that by its 
procedures gives unusual protection to minority rights.
  Tocqueville, in the early 19th century, warned of the tyranny of the 
majority. In South Africa we saw a political miracle when the new Black 
majority respected the property rights of the White minority. In 1967, 
when I came here--and I see the Republican whip here; he came about a 
year or two later--the Republicans were the ones worrying about 
protecting minority rights. There were 64 Democrats and 36 Republicans 
then. There were 38 Republicans in 1977 when I came back working with 
Howard Baker, and in 1979, when Senator Byrd eloquently argued the 
majority could make Senate rules, there were only 41 Republicans, so 
the Republicans were worrying about minority rights.
  But minority rights can also be abused. Remember what the filibuster 
was used for in the 1930s, the 1940s, the 1950s, and the 1960s. The 
filibuster was used to deny Black Americans the right to vote. It was 
used to keep the poll tax. It was used to stop a Federal anti-lynching 
law. It was used to keep African Americans from sitting down and having 
lunch in Nashville. So the filibuster can also be an abuse of minority 
rights.
  It is not my job to advise the Democrats, and I wouldn't presume to 
do it, but I believe it is a mistake for the Democrats to provoke a 
rules change, and I believe it is a bigger mistake, as they have 
threatened, to ``shut down the Senate,'' when it happens. Last month, 
three dozen Democrats stood on the steps of the Capitol and basically 
threatened to do that. On December 13, in the Washington Post, the 
Senator from New York, Mr. Schumer, said that the use of the nuclear 
option would ``make the Senate look like a banana republic . . . and 
cause us to try to shut it down in every way.''
  Consider what the Senator from New York is saying. Not only will the 
minority not allow a vote on judges up or down in a country where the 
rule of law is of paramount concern, but they will shut the Senate down 
in every way at a time when natural gas prices are at $7, shut the 
Senate down in every way at a time when oil prices and prices at the 
pump are at record levels, shut the Senate down in every way when there 
is a Federal deficit that needs to be brought under control, shut the 
Senate down in every way when the immigration laws need fixing, and 
shut the Senate down in every way while we are at war.

  I don't believe the American people like the idea of Washington 
politicians threatening to shut the Senate down in every way. As I 
remember, the last prominent political leader who said something like 
that was my friend, Newt Gingrich, 10 years ago. It backfired, and he 
was out of office in about a year.
  The people expect us to go do work, to do our jobs. They expect us to 
vote on judges, to lower natural gas prices, to reduce the deficit, to 
fix the immigration laws, and to win the war on terror. We cannot do it 
if part of the Senate wants to shut the Senate down in every way.
  Our Senate leader, Bill Frist, has been working hard to avoid this 
train wreck. I still hope we can avoid it. I believe my colleagues in 
this body know the enormous respect I have for the new Democratic 
leader, Harry Reid. He and I worked together on American history. I had 
the privilege of being with him in a delegation for 8 days in 
Palestine, Israel, Iraq, Kuwait, Georgia, Ukraine, and France, and not 
once in those 8 days did the Democratic leader undercut the policies of 
the President of the United States. He conveyed the U.S. position. I am 
not surprised by that. That is the way it should be. But I am impressed 
by that. I am impressed by the Democratic leader. I am convinced he and 
the majority leader can make this Senate do its job if given the 
chance.
  We need to avoid this train wreck if there is a way to do it. Twice I 
have offered in the Senate my suggestion about how I as one Senator 
could do it. I said 2 years ago that I would give up my right to 
filibuster a President's nominee for an appellate judgeship even if it 
were President Kerry or President Clinton or President Reid or any 
other Democrat. I might vote against that nominee, but I would never 
filibuster as long as I were a Senator.
  Now, if six Democrat Senators and six Republican Senators would say 
the same thing, then there would be no need for a rules change, and 
there would be no need for a train wreck. All we need are six Democrat 
Senators and six Republican Senators who believe there ought to be up-
or-down votes regardless of the President's party and who believe it 
would be wrong to shut the Senate down. The right thing to do is to 
have an up-or-down vote on any of the President's Federal appellate 
judicial nominees. That has been the way we have done it for 200 years. 
The wrong thing to do is to shut the Senate down in every way.
  I yield the floor, and I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DeMINT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeMINT. Mr. President, I rise today to address the current 
institutional crisis in the Senate brought on by the insistence of a 
few on defeating the will of the American people in preventing the 
Senate from doing its job of voting on the President's nominees to the 
Federal bench.
  We all know that the Constitution is very clear on this front. The 
judicial nominees are chosen solely by the

[[Page S3448]]

President with the advice and consent of the Senate. Until President 
Bush was elected, no one has ever interpreted this requirement to mean 
anything other than a simple majority vote. The Senate has never denied 
an up-or-down vote to any appellate court nominee who had majority 
support. But the Democrats have rejected this 200-year-old Senate 
tradition and, with it, the very will of the American people.
  The Democrats lost the election, and they seem unwilling to accept 
the fact. Instead, they unilaterally change the rules and politicize 
the judicial confirmation process. This is extreme behavior and extreme 
tactics--threatening to shut down the Senate if we should dare to 
confirm a well-qualified nominee with bipartisan majority support. This 
is an epitome of arrogance--assuming they know better than the majority 
of their colleagues and the President. The people back home want to see 
these nominees treated fairly and given an up-or-down vote.
  Is it fair to say to nominees that they are out of the mainstream 
when they have the support of the Democrats and the Republicans making 
up the majority of the Senate? I submit it is the obstructionists who 
are out of the mainstream when they block an up-or-down vote on 
nominations of justices such as Janice Rogers Brown for years.
  Extreme, arrogant, out of the mainstream--this is the anything-goes 
Senate Democrats who are willing to go to any length to deny exemplary 
judges the opportunity to dedicate their lives to service to the 
American people.
  By trying to shred the reputation of some of the most respected and 
admired judges in public service in this country, a few Senators are 
sending a very powerful message to any others who may aspire to the 
bench. They are telling us, don't bother. It appears to be increasingly 
likely that such talent, dedication, and personal sacrifice will be 
rewarded with attacks on the floor of the Senate and years of 
uncertainty while a bipartisan majority waits powerless to confirm 
these nominees.
  I call for a return to tradition. The American people have done their 
jobs and expect us to do the same. We in the Senate need to do our jobs 
and confirm fair judges through a fair process.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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