[Congressional Record Volume 151, Number 45 (Friday, April 15, 2005)]
[Senate]
[Pages S3762-S3765]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           THE NUCLEAR OPTION

  Mr. DURBIN. Mr. President, I would like to address two issues that 
are related. The first issue is the so-called nuclear option. I think 
many people have read about it and heard about it. I would like to 
explain, from my point of view, the merits of that issue. Then I would 
like to address an article which appeared this morning on the front 
page of the New York Times relative to a meeting which will take place 
on April 24, sponsored by the Family Research Council, a meeting at 
which the majority leader of the Senate, Senator Bill Frist, is 
reported to be scheduled to speak. I would like to address both of 
those issues and try to make this as direct and concise as I can.
  First, let me say there is one thing that binds every Member of the 
Senate, Republican or Democrat or Independent. There is one thing that 
brings us together in this Chamber. It is an oath of office. That oath 
of office, where we stand solemnly before the Nation, before our 
colleagues, is an oath where we swear to uphold and defend the 
Constitution of the United States, this tiny little publication which 
has guided our Nation and our values for over two centuries.
  Though we may disagree on almost everything else, we swear to uphold 
this document. We swear that at the end of the day we will be loyal to 
this Constitution of the United States. That, I think, is where this 
debate should begin, because this Constitution makes it very clear that 
when it comes to the rules of the Senate, it is the responsibility and 
authority of the Senate itself to make its rules. I refer specifically 
to article I, section 5. I quote from the Constitution:

       Each House may determine the rules of its proceedings. . . 
     .

  Because of that, most courts take a hands-off attitude. It is their 
belief that we decide how we conduct business in this Chamber, as the 
House of Representatives will decide about theirs. That is our 
constitutional right.
  When this Constitution was written, there was a question about 
whether we could bring together 13 different colonies and they would 
agree to have one Federal Government. The first suggestion was that we 
create a House of Representatives with one Congressman for each 
American person who will be counted. There was, of course, a different 
system for counting those of color. But when the smaller States took a 
look at the House of Representatives, they were concerned. They 
understood in the House of Representatives the larger States would be a 
dominant voice because they had more people, more Congressmen. The 
Great Compromise said let us resolve this by creating a Senate which 
will give to every State, large and small, the same number of 
Senators--two Senators from each State. So today the State of Rhode 
Island has the same number of Senators as the State of New York; the 
State of South Dakota, the same number of Senators as the State of 
California--the Great Compromise, so the Senate would observe the 
rights of the minority, the smaller populated States, and give them an 
equal voice on the floor of the Senate.
  The Senate rules were written to reflect that unique and peculiar 
institutional decision. We said within the Senate, following this same 
value and principle, that our rules would be written so the minority 
within the Senate would always be respected. We created something 
called a filibuster, a filibuster which is unique to the Senate but is 
consistent with the reason for its creation.
  Some of you may remember the filibuster if you saw the movie ``Mr. 
Smith Goes to Washington.'' Jimmy Stewart, a brand new Senator, full of 
idealism, comes to the floor of the Senate and runs smack dab into this 
establishment of power in the Senate. He decides it is worth a fight 
and he stands at his Senate desk and starts to speak, and he continues 
to speak hour after hour until clearly he is about to collapse. But he 
holds the Senate floor because it was his right to do it as a Senator. 
As long as his throat would hold up, and other bodily functions, he 
continued.

  We all remember that movie. It spoke to the idealism of the Senate 
and it spoke to its core values--the filibuster. That is because it was 
part of checks and balances. It said we are saying to the legislative 
branch of Government: You are independent, you have your own power, and 
within that legislative branch you make your own rules. You define who 
you will be and how you will conduct your business.
  We said to the executive branch: We respect you, but you are 
separate. You don't make our rules; the legislature makes its own 
rules. The Senate makes its own rules. The House makes its own rules. 
It is because of that difference, because each branch--the executive 
with the President, the congressional branch of Government and the 
judicial branch of Government--is separate and coequal, that we have 
this great Nation we have today.
  It was an amazing stroke of genius that in this tiny publication 
these Founding Fathers understood how to create a government that would 
endure.
  Think of all the governments in the world that have come and gone 
since those men sat down in Philadelphia and wrote these words. We have 
endured. Each and every one of us comes to this floor before we can 
cast our first vote and we swear to uphold and defend this document and 
what it contains.
  The reason I tell you this is because at this moment there are those 
who are planning what I consider to be an assault on the very 
principles of this Constitution. There are those who wish to change the 
rules of the Senate and in changing the rules of the Senate, defy 
tradition, change the rules in the middle of the game, and have a full 
frontal assault on the unique nature of this institution. That, I 
think, is an abuse of power. I think it goes way too far. It ignores 
our Founding Fathers. This nuclear option ignores the Constitution. It 
ignores the rules of the Senate. For what? So the President of the 
United States can have every single judicial nominee approved by the 
Senate.
  What is the scorecard? How has President Bush done in sending 
judicial nominees to the Senate? I can tell you the score as of this 
moment. Since he was elected President, he has had 215 nominees on the 
floor for a vote in the Senate and 205 have been approved. That is 205 
to 10; over 95 percent of President Bush's judicial nominees have come 
to the floor and been approved. Only 10 have not been approved. They 
have been subject to a filibuster, part of the Senate rules.
  But this White House and majority party in the Senate have decided 95 
percent is not enough. They want it all. They want every nominee. 
Sadly,

[[Page S3763]]

they are about to assault this Constitution and the rules of the Senate 
to try to achieve that goal.
  This so-called nuclear option is a power grab. It is an attempt to 
change the rules of the Senate. It is an assault on the principle and 
value of checks and balances. It is an attempt by the majority party in 
the Senate to ram through nominees who will not pledge to protect the 
most important rights of the American people. It is an attempt to say 
we cannot demand of the President's nominees that each person be 
balanced and moderate and committed to the goals of ordinary Americans. 
The fact that the President has had 205 nominees approved and only 10 
rejected is not good enough. He wants them all.
  This is not the first President in history who has decided in his 
second term to take on the courts of our country, to say he wanted to 
put into that court system men and women who agreed with him 
politically at any cost. The first was one of our greatest Americans, 
Thomas Jefferson. Full of victory in his second term, he decided to 
attempt to impeach a Supreme Court Justice who disagreed with him 
politically, to show he had the political power, having just been re-
elected. His efforts were rejected. They were rejected by his own 
party, his own party in the Senate, who said: Mr. President, we may be 
part of your party, but we disagree with this power grab.
  We are going to protect the constitutional rights and power of our 
institution of the Senate.
  More recently, President Franklin Delano Roosevelt--one of the 
greatest in our history--as his second term began, became so frustrated 
by a Supreme Court that would not agree with him, that he sent to the 
Senate a proposal to change the composition of the Court to make 
certain that we filled the bench across the street in the Supreme Court 
with people who were sympathetic to his political agenda. He sent that 
legislative proposal to a Congress dominated by his political party, by 
his Democratic Party. What was their response? They rejected it. They 
said we stood by you in the election, we will stand by your policies, 
but we will not allow you to abuse this Constitution. We will not allow 
you to change the rules so you can have more power over our judges. 
That was the principle at issue. Frankly, Roosevelt lost the debate 
when men and women of his own party stood up and opposed him in the 
Congress.
  Thomas Jefferson lost the same debate.
  Here we go, again. For the third time in our Nation's history, a 
President, as he begins his second term, is attempting to change the 
rules of the Senate to defy the Constitution and to give the Office of 
the President more power to push through judges, to defy the checks and 
balances in our Constitution.
  I don't believe I was elected to the Senate to be a rubber stamp. I 
believe I was elected and took the oath of office to uphold this 
Constitution, to stand up for the precedents and values of Congress and 
our Nation. We need to have, in our judiciary, independence and 
fairness. We need to have men and women on the bench who will work to 
protect our individual rights, despite the intimidation of special 
interest groups, despite the intimidation of Members of Congress. They 
need to have the courage to stand up for what they believe, in good 
conscience, to be the rights and freedoms of Americans.
  I speak, as a Senator on the Democratic side, and tell you that our 
45 Members will not be intimidated. We will stand together. We 
understand these lifetime appointments to the bench should be subject 
to close scrutiny, to evaluation, and to a decision as to why they are 
prepared to serve and serve in a way to protect the rights and 
aspirations of ordinary Americans.
  The filibuster, which requires that 60 Senators come together to 
resolve the most controversial issues, that rule in the Senate, forces 
compromise. It forces the Republicans to reach across the aisle and 
bring in some Democrats when they have very controversial legislation 
or controversial nominees. It forces bipartisanship--something that 
tells us, at the end of the day, we will have more moderate men and 
women who will serve us in the judiciary. Those who would attack and 
destroy the institution of the filibuster are attacking the very force 
within the Senate that creates compromise and bipartisanship.
  Those who are forcing this nuclear option on the Senate are not just 
breaking the rules to win, but they want to break the rules to win 
every time.
  Despite the fact that President Clinton had over 60 judicial nominees 
who never received a hearing and vote when the Republicans were in 
control of the Senate, this President has only been denied 10 nominees 
out of 215. We have one of the lowest vacancy rates in the Federal 
court in modern memory. Yet, they are prepared to push through this 
unconstitutional and unreasonable change in the Senate rules. It is the 
first time in the history of the Senate, it is the first time in the 
history of the United States, that a majority party is breaking the 
rules of the Senate, to change the rules of the Senate in the middle of 
the game. I think that is truly unfortunate.
  I only hope that some Republican Senators, who value their oath of 
office and who value this institution, will have the same courage the 
Democratic Party had when it said to President Franklin Roosevelt: You 
have gone too far. We cannot allow you to impose your political will on 
the Supreme Court. They stood up to their President and said our first 
obligation is to the Constitution, our first obligation is to the 
Senate.
  We will be Democrats after that, but first we must stand behind the 
Constitution.
  I am only hoping that six Republican Senators will stand up, as 
Thomas Jefferson's party stood up and told him--one of our Founding 
Fathers--that he was wrong in trying to impose his political will on 
the Supreme Court and the Federal courts of the land. They had the 
courage to do it to their President.
  How many Republican Senators will stand up to this Constitution and 
for the values and traditions of this great Senate?
  I have a document which I ask unanimous consent be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   History of Filibusters and Judges

       Prior to the start of the George W. Bush administration in 
     2001, the following 11 judicial nominations needed 60 (or 
     more) votes--cloture--in order to end a filibuster:
       1881: Stanley Matthews to be a Supreme Court Justice.
       1968: Abe Fortas to be Chief Justice of the Supreme Court 
     (cloture required \2/3\ of those voting).
       1971: William Rehnquist to be a Supreme Court Justice 
     (cloture required \2/3\ of those voting).
       1980: Stephen Breyer to be a Judge on the First Circuit 
     Court of Appeals.
       1984: J. Harvie Wilkinson to be a Judge on the Fourth 
     Circuit Court of Appeals.
       1986: Sidney Fitzwater to be a Judge for the Northern 
     District of Texas.
       1986: William Rehnquist to be Chief Justice of the Supreme 
     Court.
       1992: Edward Earl Carnes, Jr., to be a Judge on the 
     Eleventh Circuit Court of Appeals.
       1994: H. Lee Sarokin to be a Judge on the Third Circuit 
     Court of Appeals.
       1999: Brian Theadore Stewart to be a Judge for the District 
     of Utah.
       2000: Richard Paez, to be a Judge on the Ninth Circuit 
     Court of Appeals.
       2000: Marsha Berzon to be a Judge on the Ninth Circuit 
     Court of Appeals.
       Because of a filibuster, cloture was filed on the following 
     two judicial nominations, but was later withdrawn:
       1986: Daniel Manion to be a Judge on the Seventh Circuit 
     Court of Appeals Senator Biden told then Majority Leader Bob 
     Dole that ``he was ready to call off an expected filibuster 
     and vote immediately on Manion's nomination.''--Congressional 
     Quarterly Almanac, 1986.
       1994: Rosemary Barkett to be a Judge on the Eleventh 
     Circuit Court of Appeals ``... lacking the votes to sustain a 
     filibuster, Republicans agreed to proceed to a confirmation 
     vote after Democrats agreed to a daylong debate on the 
     nomination.''--Congressional Quarterly Almanac, 1994.
       Following are comments by Republicans during the filibuster 
     on the Paez and Berzon nominations in 2000, confirming that 
     there was, in fact, a filibuster:
       ``. . . It is no secret that I have been the person who has 
     filibustered these two nominations, Judge Berzon and Judge 
     Paez.''--Senator Bob Smith, March 9, 2000.
       ``So don't tell me we haven't filibustered judges and that 
     we don't have the right to filibuster judges on the floor of 
     the Senate. Of course we do. That is our constitutional 
     role.''--Senator Bob Smith, March 7, 2000.
       ``Indeed, I must confess to being some what baffled that, 
     after a filibuster is cut off by cloture, the Senate could 
     still delay final vote on the nomination.''--Senator Orrin 
     Hatch, March 9, 2000, when a Senator offered a motion to 
     indefinitely postpone the Paez nomination after cloture has 
     been invoked.

[[Page S3764]]

       In 2000, during consideration of the Paez nomination, the 
     following Senator was among those who voted to continue the 
     filibuster:
       Senator Bill Frist --Vote #37, 106th Congress, Second 
     Session, March 8, 2000.
  Mr. DURBIN. Mr. President, to give credit to the authorship, my 
colleague, Senator Boxer of California, put her staff to work. She 
asked them to research how many times, in the history of the Senate, a 
filibuster had been used to slow down or deny a Federal judgeship. You 
see Senator Frist and others have stood before the press and said it 
has never been done. These Democrats have dreamed up something that has 
never been done. Using a filibuster to stop the judicial nominee has 
never occurred. I have seen those quotes. Unfortunately, they are 
wrong.
  Prior to the start of President Bush's administration in 2001, at 
least 12 judicial nominations needed 60 votes for cloture to end a 
filibuster: the first, 1881, Stanley Matthews to be a Supreme Court 
Justice; 1968, Abe Fortas to be the Chief Justice of the Supreme Court; 
and the list goes on. Twelve different judicial nominees that have been 
subject to filibuster, and they are not all in the distant past.
  The most recent occurred during the Clinton administration. Two 
nominees that he sent, Richard Paez and Marsha Berzon to the Ninth 
Circuit Court of Appeals, were filibustered by the same Republican 
Senate side that now argues this has never happened.
  We have seen this happen because of the filibuster--cloture--which is 
the way to close down the debate, close down the filibuster. Cloture 
motions were filed on two judicial nominations. It was done in 1986, 
Daniel Manion; in 1994, Rosemary Barkett.
  Some of the comments made by Republican Senators in the last few 
years about the filibusters on Clinton judicial nominees tell the 
story.
  Senator Bob Smith of New Hampshire, in March of 2000, said, as 
follows, on the floor of the Senate in the official Record, the 
Congressional Record of the Senate. Here is what he said:

     . . . it is no secret that I have been the person who has 
     filibustered these two nominations, Judge Berzon and Judge 
     Paez.

  He also said:

       So don't tell me we haven't filibustered judges and that we 
     don't have the right to filibuster judges on the floor of the 
     Senate. Of course we do. That is our constitutional role.

  I hear Senators now saying, on the Republican side, it has never been 
done, no one has ever considered it. In fact, it has happened--and 
repeatedly--in our history.
  In fact, in the year 2000, during consideration of the Paez 
nomination, there was one Senator who voted to continue the filibuster 
against Judge Paez. Who was that Senator? Senator Bill Frist, the 
majority leader of U.S. Senate. His own action speaks volumes. He 
understood then there was a filibuster on a Democratic nominee, and he 
joined them in filibustering it. It is a matter of record, vote number 
37, 106th Congress, second session, March 8, the year 2000. This is all 
in the Congressional Record.
  So there is no question we have used the filibuster on judicial 
nominees. It is not an extraordinary thing in terms of our rules. It is 
extraordinary in terms of the number of occurrences. But I think it 
tells us, if you look at the history and precedent of the Senate and 
the use of this Constitution, that the right of the filibuster on a 
judicial nominee is protected by this Constitution.
  So now comes the Republican majority. They say they are going to 
break the rules of the Senate to eliminate this filibuster of judicial 
nominees; to change the rules in the middle of the game; to stop the 
checks and balances which are an integral part of our legacy in this 
democratic form of government.
  It is bad enough that this constitutional assault is being planned 
and discussed. But this morning a new element was introduced into it 
which is very troubling.
  On the front page of the New York Times this morning is an article by 
David Kirkpatrick entitled, ``Frist Set to Use Religious Stage on 
Judicial Issue.''
  This article, which I will read from, says as follows:

       As the Senate heads toward a showdown over the rules 
     governing judicial confirmations, Senator Bill Frist, the 
     majority leader, has agreed to join a handful of prominent 
     Christian conservatives in a telecast portraying Democrats as 
     ``against people of faith,'' for blocking President Bush's 
     nominees.
       Fliers for the telecast organized by the Family Research 
     Council and scheduled to originate at a Kentucky megachurch 
     the evening of April 24, call the day ``Justice Sunday'' and 
     depict a young man holding a Bible in one hand and a gavel in 
     the other. The flier does not name participants, but under 
     the heading ``the filibuster against people of faith,'' it 
     reads: ``The filibuster was once abused to protect racial 
     bias, and it is now being used against people of faith.''

  Mr. President, this is a delicate issue--the role of religion in 
America in a democratic society. It is one our Nation has struggled 
with--not as much as the issue of race and slavery, but close to it 
since our founding.
  The men who wrote this Constitution said that we should be guided by 
three rules when it comes to religion in America. The three rules were 
embodied in the first article of the Bill of Rights. It says each of us 
shall have freedom of religious belief. What does that mean? We can 
rely on our own conscience to make decisions when it comes to religion. 
We can decide whether we will believe or not believe, whether we will 
go to church or not go to church, whether we will be a member of one 
religion or another. It is our individual conscience that will make 
that decision.
  In addition to that, of course, the Bill of Rights says that this 
Government shall not establish any church; there will not be an 
official church of America. There is a church of England. There may be 
religions of other countries, but there will not be a church of 
America--not a Christian church, not a Jewish synagogue, not a Muslim 
mosque. There will not be a church of America, according to the 
Constitution.
  The third thing it says, and this is especially important in this 
aspect of the debate, and this is article VI of the Constitution, is 
that no religious test shall ever be required as a qualification to any 
office or public trust under the United States. It couldn't be clearer. 
We cannot legally or constitutionally even ask a person aspiring to a 
judicial nomination to what religion they belong. They can volunteer 
it, they may give us some evidence to suggest what their religious 
affiliation might be, but we cannot ask it of them, nor can we use it 
as a test to whether they qualify for office. That is not my decision; 
it is a decision which I respect in this Constitution, and I have sworn 
to uphold it.
  Now come these judicial nominees, some of whom are controversial, 10 
of whom have been subject to a filibuster. They hold a variety of 
different positions on a variety of different issues. Some of them are 
purely governmental issues and secular issues, but some are issues 
which transcend--they are issues of government which are also issues of 
values and religion.
  A person's position on the death penalty is an important question to 
ask. It is an important part of our criminal justice system. It is also 
a question of religious belief. Some feel it is permissible in their 
religion; others do not. So when you ask a nominee for a judgeship, for 
example, What is your position on the death penalty, you are asking 
about a provision of our law, but you are also asking a question that 
may reach a religious conclusion, too. The lines blur.
  It isn't just a matter of the issue of abortion. It relates to family 
planning, to medical research, to the issue of divorce--all sorts of 
issues cross those lines between government and religion.
  I have been on the Committee on the Judiciary for several years. We 
have tried to be careful never to cross that line to ask a question of 
religious belief, knowing full well that most of the nominees sent to 
us had some religious convictions. Our Constitution tells us there is 
no religious test for public office in America, nor should there be if 
you follow that Constitution.

  So this event, April 24, in Kentucky, by the Family Research Council, 
suggests the real motive for the filibuster against judicial nominees 
is because those engaged in the filibuster are against people of faith. 
They could not be more mistaken. The leader on the Democratic side of 
the aisle is Senator Harry Reid of Nevada. Senator Reid and I have been 
friends and served together in Congress for over 20 years. I

[[Page S3765]]

know him. I know his wife Landra. I know the family he is so proud of. 
I told him I was going to come to the Senate to speak for a few minutes 
about this issue. I said: Harry, do you mind if I talk about your 
religious belief, since you are the Democratic leader? He said: I never 
talk about religion. To me, it is a personal and private matter; have 
you ever heard me bring up the issue of religion? And I said: Never, in 
any of the time I have known you. But, he said, you can say this: You 
can say that Harry Reid said, I am a person of religious conviction. It 
guides my life.
  So those on the side of the filibuster against 10 nominees out of 
215--many come to this debate on a personal basis with religious 
conviction and religious beliefs. We are not in the business of 
discriminating against anyone for their religious belief. I will fight 
for a person to have their protection under our Bill of Rights to 
believe what they want to believe, that our Government will not impose 
religious beliefs on anyone. That freedom, that right, is sacred and 
needs to be protected. What we find, unfortunately, is that those who 
are staging this rally have decided to make the issue of the filibuster 
a religious issue. It is not and never should be.
  Americans value religious tolerance and respect. Those who would use 
religion to stir up partisanship or political anger do a great 
disservice to this country and to this Constitution. We need to be 
mindful of our responsibilities now more than ever.
  Witness what has occurred in America in the last several weeks. The 
contentious national debate over the tragic story of Terri Schiavo, a 
woman who survived for 15 years, and after numerous court appeals 
involving statements by her husband as to her intentions, statements by 
her parents as to their beliefs and values, the courts ruled in Florida 
that ultimately her decision to not have extraordinary means to prolong 
her life would be respected. There were those in the House of 
Representatives, Congressman Tom DeLay of Texas and others, who would 
not accept the decision of the Florida courts. They wanted special 
legislation to give others, including those who were not members of her 
family, the right to go to court and to fight the family's wishes, to 
fight her husband's wishes, to fight the Florida court decisions.
  That matter came to the Senate. What we did here was the more 
responsible course of action. We said, yes, in this particular case 
they may appeal the Florida court decisions on the Schiavo matter to 
the Federal courts so long as the person who initiates the appeal is a 
person in interest, a member of her family, someone who has her best 
interests in mind, and ultimately the Federal court will decide whether 
it should be reviewed. That ultimately was enacted, and in a matter of 
7 days the Federal courts, from the lowest court to the highest court, 
said it has been decided; we are not going to intervene.
  What happened after that with the Schiavo case? Congressman DeLay and 
many others from organizations said: That's it, you cannot trust the 
Federal Judiciary. We have to impeach the judges who reach these 
decisions. They have decided that the independence of the judiciary 
needs to be attacked by our branch of government.
  Is that new? Of course it is not. Many are unhappy with decisions 
involving Federal courts from time to time. But to call for the 
impeachment of Federal judges--and some have suggested even worse--
crosses that line.
  Those who are holding some of these rallies have suggested--and I am 
reading directly from the Family Research Council release of April 
15. Let me read the entire first paragraph, in fairness.

  This is from the Family Research Council:

       A day of decision is upon us. Whether it was the 
     legalization of abortion, the banning of school prayer, the 
     expulsion of the 10 Commandments from public spaces, or the 
     starvation of Terri Schiavo, decisions by the courts have not 
     only changed our nation's course, but even led to the taking 
     of human lives. As the liberal, anti-Christian dogma of the 
     left has been repudiated in almost every recent election, the 
     courts have become the last great bastion for liberalism.

  They go on to say:

       We must stop this unprecedented filibuster of people of 
     faith.

  They call on people to join them on Sunday, April 24, for their so-
called Justice Sunday. It is reported in newspapers today that the 
majority leader of the Senate will be among those at their gathering. I 
do not dispute Senator Frist's right to speak his mind. I will fight 
for his right for free speech and for those who have written this 
publication. But I ask Americans to step back for a moment and ask, Is 
this what you want? Do you want to have a Federal judiciary and a 
Congress that intervenes in the most private aspects of your life and 
the life of your family? Do you believe, as most do in America, that we 
want to be left alone when it comes to our Government, that we want to 
face these critical life-and-death decisions as a family, understanding 
the wishes of the person involved, praying for the right way to go, but 
making the ultimate choice in that hospital room, not in a courtroom?
  Make no mistake, these decisions are made time and time again every 
day, hundreds of times, maybe thousands of times. Doctors, family 
members, ministers, and others, gather in the quiet of a hospital 
corridor and have to answer the most basic questions.
  It has happened in my family. It has happened in most.
  The first thing we ask is, What would my brother want? What would my 
mother want? It is a private, personal, and family decision. But some 
believe it should not be. They believe anyone should be able to go to 
court to overturn that family decision and to inject themselves into 
the most intimate decisions of our personal lives. Sadly, that is what 
part of this debate has disintegrated to.
  Let me close by saying this. I see my colleague and friend Senator 
Byrd has come to the floor. I do not need to ask him, I can guarantee 
you, without fear of contradiction, that in his suit pocket he carries 
the U.S. Constitution. There is no Member of the Congress, certainly no 
Member of the Senate, who honors this document more every day that he 
serves. And it has been my privilege and high honor to serve with him.
  I think he understands, as we do, that this nuclear option is a full-
scale assault on our Constitution. It is an assault on the checks and 
balances which make America different, the checks and balances in our 
Government which have led to the survival of this Nation for over two 
centuries.
  This nuclear option, sadly, is an attempt to break the rules of the 
Senate in order to change the rules of the Senate so this President and 
his majority party can have any judicial nominee they want. And, sadly, 
if they prevail, it will make it easier for them to appoint judges to 
the bench who are not in touch with the ordinary lives of the American 
people, who are not moderate and balanced in their approach, but, 
sadly, go too far.
  This is not an issue of religion. I cannot tell you the religious 
beliefs of any of the 10 nominees we have filibustered. By the 
Constitution, and by law, we cannot even ask that question, nor would 
I. But it is fair to ask those men and women, as we have, whether they 
will follow this Constitution, whether they will set out to make law or 
respect law, whether they will honor the rights and freedoms of the 
American people. In 10 cases out of 215, it has been the decision of at 
least 41 Members of the Senate or more that the nominees did not meet 
that test.
  We need to work together to respect the rights of the American people 
and to respect the Constitution which we have sworn to uphold and 
defend.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from West Virginia.
  Mr. BYRD. Mr. President, I thank the Chair.
  Mr. President, I thank the distinguished Senator from Illinois, Mr. 
Durbin, for his kind and overly charitable comments concerning me.

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