[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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