[Congressional Record Volume 151, Number 48 (Wednesday, April 20, 2005)]
[Senate]
[Pages S3962-S3965]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONSTITUTIONAL CONFLICT
Mr. CRAIG. Mr. President, is it a religious test? Is it an
environmental test? Is it a right-to-life test? Is it a racial test?
No. Now we say it is Tom DeLay's test.
If it weren't so deadly serious, it would be laughably humorous.
But the other side has reduced what is a tremendously important
constitutional responsibility of this Senate into a political game.
From the very outset, when the Bush administration came to town,
telegraphed across the Nation was a very clear message by our
colleagues from the other side. Inside their internal party politics
and beyond, it was all about politics and who they would reject, or who
they would disallow the right to have a vote on the floor of the Senate
when nominated by this President--if that nominee made it through the
Judiciary Committee--whether they would be allowed to became a sitting
judge in one of the courts of the United States for which the
President, the Congress, and the Senate are responsible.
Religious test, environmental test, a right-to-life test, a racial
test, now a Tom DeLay test. Doesn't the other side have anything to
talk about nowadays? Don't they have a policy they can take to the
American people that will grasp the majority of the American people's
minds or is it simply targeting around the edges?
It is deadly serious, and it is not humorous at all.
I rise today to discuss what is a most important constitutional
conflict that has developed here in the Senate, and the response that I
believe the Senate must act clearly and profoundly on this issue.
In the time that I have been in public office, I have watched the
Congress and participated in the Congress in conflicts that some would
call historic by nature--an impeachment, a contested election, a
midsession shift of party control of the Senate, just to name a few.
But no issue, in my opinion, has threatened to alter the fundamental
architecture of Government in the way that it is now being threatened
today by the conflict over judicial nominees.
Some of our colleagues have attempted to downplay the importance of
the issue. I think that is what you heard this morning--a reduction of
the issue to a debate about Tom DeLay's wisdom or a quote about the
Internet. This is a lot more important than any one individual,
including Tom DeLay.
This is really about the Constitution of the United States. They have
attempted to call it, Well, it is ``just business as usual'' to oppose
nominees. They have tried to portray it as insignificant in terms of
the number of judges. You just heard that a few moments ago about their
selective filibuster. They say that is fair and full in the process.
They have characterized it as a simple political struggle between the
parties. Well, it is political, but it is constitutional.
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In reality, this issue has the potential of altering the balance of
power established by the Constitution between our two branches of
Government.
I say this because the Constitution gives the Senate a role in
Presidential appointments--the ability to accept or reject an
appointment--and when a filibuster stops the Senate from taking that
vote, it is frustrating the ability of all Senators to fulfill their
constitutional duty, to exercise their fundamental constitutional power
and participate in the essential function of the executive.
A filibuster doesn't just prevent the Senate from acting, it also
stops a nominee in midprocess without a final decision as to whether a
nominee is confirmed or rejected, in essence giving the minority of
Senators the power to prevent the executive branch from performing its
constitutional duty.
That is exactly what we have seen by design, by intent, and without
question by votes.
Let me talk about a candidate specifically. Let me talk about my own
home State of Idaho and the President's nominee to the Ninth Circuit,
Bill Myers.
Bill has had a distinguished career as an attorney, particularly in
the area of natural resources and the public land laws of our country
where he is nationally recognized by both sides as an expert. These are
issues of particular importance to public land States in the West, such
as Idaho, represented in the Ninth Circuit.
These issues aren't just professional business to him. In his private
life, he has also long been an outdoorsman, and he has spent a
significant amount of time volunteering for the National Park Service.
Bill Myers is a public lands man. He loves it, he enjoys it, and he
has participated in it. He came to this Senate to work for a former
Senator, Allen Simpson, Deputy General Counsel at the Department of
Energy, and Assistant to the Attorney General of the United States. The
Senate confirmed him by unanimous consent as the Solicitor to the
Department of the Interior in 2001.
The entire Idaho delegation supports him.
So what is wrong with Bill Myers? Is it a partisan issue? No.
Democrat Governor of Idaho, Cecil Andrus, Secretary of the Interior for
President Carter, said Bill Myers is a man of great ``personal
integrity, judicial temperament, and legal experience,'' as well as he
has ``the ability to act fairly on matters of law that will come before
him on the court.'' Democratic Governor from Wyoming, Mike Sullivan,
said the same thing.
So what is wrong with Bill Myers? Why, when last year the Senate
Judiciary Committee voted him out, to send him to the Senate floor, did
he never get a vote? Why was he refused a vote and filibustered?
Let me tell you why. I know it firsthand. I served on the Judiciary
Committee. I watched the vote. And the day the Senate Judiciary
Committee voted him to the floor of the Senate, a senior member from
the other side of that committee walked out with me and said: You know,
Larry, your nominee is not going to get a vote on the floor.
They had planned it well in advance. They had picked Bill Myers like
they have picked other judicial nominees for their political pawn. The
conversation went on, but it was private and I don't divulge it.
But I will say this: From the conversation, I understood very clearly
why Bill Myers would not get a vote and why they would filibuster him.
It was just prior to the election, a very important election, a
Presidential election. They had already picked the candidate they could
argue had racial undertones. They had already picked the candidate they
believed might be pro-life. They had already picked other candidates
who didn't fit their political demographics. They picked Bill Myers
because of his environmental record, and they told me so.
Is that picking a person because of their talent, because of their
experience, because of their judicial temperament, or is it simply
playing what I call the ``nominee process of political roulette''? Pick
the candidate who serves your political purpose and prove to your
constituent base that you are out there for them.
If that is what the nominating process has reduced itself to, then we
are not only in a constitutional crisis--we are without question in a
political constitutional crisis. No. What we do is important in the
Senate. We affect the lives of all Americans in one way or another. But
we have a constitutional responsibility when it comes to judges who are
nominated by our President who are sent forth by the Judiciary
Committee of this Senate once fully vetted and interviewed and
questioned.
Once the majority of that committee has spoken, and that nominee
comes to the floor of the Senate, I firmly believe that nominee
deserves an up-or-down vote. That is the history of the Senate. That is
the responsibility of advice and consent. That is what this Senate has
done down through the decades.
But not now. Not in the politics of the other side. It does not serve
their purpose anymore. So they have reduced it to the rhetoric of
saying this is normal; this is usual; this is the politics of the day.
Those Republicans are being terribly political at this moment.
I don't agree with that. I have watched this much too long. It is now
time the Senate act to establish once again our constitutional role in
the advice and consent with the executive branch of Government.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina is recognized.
Mr. BURR. Mr. President, I rise today to urge our leadership and the
rest of my colleagues in the Senate to preserve the significance of our
responsibility, enumerated in the Constitution, and to work together to
address the judicial crisis that threatens to severely damage our
system.
As Members of the Senate, we each bring our own unique background and
experience to this institution. And our progress as a body often
requires us to make difficult decisions as individuals. While our
individual positions on various issues will certainly differ, we must
stand together to repair the judicial confirmation process in this
body.
Several judicial vacancies have been lingering in our courts for
years, causing many jurisdictions, including one in my home State of
North Carolina, to be declared ``judicial emergencies.'' It is our
responsibility as Senators to respond to these judicial emergencies
with action and determination.
It is inexcusable that we allow judicial vacancies to linger for 6
years or, in some cases, longer. Such is the case for the people of my
State in the Eastern District of North Carolina. The North Carolina
Eastern District post is the longest district court vacancy in the
Nation--a seat vacant since 1997. In 1999, the administrative office of
the courts declared the district a ``judicial emergency'' and it has
been categorized this way for the last 6 years.
In North Carolina we face challenges on the appellate level as well.
There are 15 circuit court judgeships in the Fourth Circuit but only
one of these is occupied by a North Carolina judge. North Carolina is
significantly underrepresented at the circuit court level. A great deal
of this can, of course, be attributed to the political nature of the
debate surrounding nominations to the Fourth Circuit. All North
Carolinians deserve another voice on the Fourth Circuit.
Judge Boyle, currently serving as a District Court judge for the
Eastern District of North Carolina, was nominated in May, 2001, by the
President to serve on the Fourth Circuit Court of Appeals. The American
Bar Association has unanimously rated Judge Boyle as ``well-
qualified,'' and has stated he would make an outstanding appellate
judge.
The act of merely considering Judge Boyle's nomination should not be
a political issue for this distinguished body. Unfortunately, over the
past few years it has become one. Before the 108th Congress, when Judge
Boyle was first nominated, no judicial nomination which had a clear
majority of Senators supporting the nomination was ever prevented from
receiving an up-or-down vote. This current judicial confirmation
situation is unprecedented.
We should put aside the grievances that have prevented the
consideration of judges through the past three Presidential
administrations and work together to find a solution. As Senators we
must face this crisis with optimism and confidence. Working together we
must address this situation directly because I believe that our
constituents do
[[Page S3964]]
not hope for, nor do they expect, inaction from us on such an important
part of our system of government. Partisan bickering or avoidance of
our procedural challenges is not a responsible course of action.
Let me be clear. I believe if one of my colleagues objects to a
particular judicial nominee, it is certainly appropriate and fair for
my colleague to vote against that nominee on the Senate floor. But
denying these patriotic Americans, of both parties, who seek to serve
this country an up-or-down vote is simply not fair, and it certainly
was not the intention of our Founding Fathers when they designed and
created this very institution.
As our country plants the seeds of democracy across the world, we
have the essential obligation to continue to operate as the model. The
integrity of the judicial system is vital and will certainly suffer as
a result of inaction. Maintaining our Nation's long-standing
distinction requires that its legislature act to ensure harmony and
balance among its citizens and its branches of government.
We need to fix this broken process. We need to end the judicial
crisis. And we need to vote on our judges.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. How much time remains?
The PRESIDING OFFICER. There is approximately 14 minutes remaining.
Mr. HATCH. I ask unanimous consent I be permitted to finish my
statement if it goes a little bit longer.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, in Lewis Carroll's book ``Through the
Looking Glass,'' Humpty Dumpty has a famous exchange with Alice in
which he says:
When I use a word it means just what I choose it to mean--
neither more nor less.
Many partisans in the debate over judicial nominations or
appointments in the Senate and among interest groups, particularly,
have the same attitude. Let me offer two examples. One is, they play
games with the word ``filibuster.'' The current filibusters against
judicial nominations have four features: First, they involve defeating
attempts to end debate such as defeating a motion to invoke cloture
under rule XXII; second, they target nominations with clear bipartisan
majority support that would be approved if there were a confirmation
vote; three, they are not about debating these nominations but about
defeating them; and fourth, these filibusters are completely partisan,
organized, and driven by party leaders.
For 2 years, Democrats have claimed these filibusters are nothing
new, that they happened before the 108th Congress. Last Friday, the
distinguished assistant minority leader Senator Durbin offered his
evidence. He printed in the Record a document titled ``History of
Filibusters and Judges.'' It was a list of 12 judicial nominations
which it said ``needed 60 (or more) votes--cloture--in order to end a
filibuster.''
Yet these are filibusters only if, as Humpty Dumpty put it, the word
filibuster means whatever you choose it to mean.
Listed first is the 1881 nomination of Stanley Matthews to the
Supreme Court. President Rutherford B. Hayes nominated Matthews shortly
before leaving office and the Judiciary Committee postponed
consideration. Hayes' successor, President James Garfield, renominated
Matthews on March 14, 1881, and the Senate confirmed him on May 12.
That is hardly a filibuster, yet that is the big news. They have looked
so hard to try to find some justification for the inappropriate actions
they have taken in the Senate.
Two days ago, Senator Nelson of Florida repeated Senator Durbin's
claim that this was the first judicial nomination filibuster in
American history. That claim also appears on the Web site of the
leftwing Alliance for Justice whose president is shopping it around on
the talk radio circuit.
This claim is incomprehensible. There was no cloture vote on the
Matthews nomination for a very simple reason: Our cloture rule would
not exist, would not even come into existence, for another 36 years.
Nor were 60 votes needed even for confirmation since the Senate
contained only 76 Members.
If, as Senator Durbin apparently urges, we today use the Matthews
nomination as a model, we would debate judicial nominations, including
those resubmitted after a Presidential election, and then vote them up
or down because that is what happened in the Matthews case they used as
an example of a filibuster. Humpty Dumpty would be proud of them.
The other nominations on Senator Durbin's list fare no better.
Appeals court nominees Rosemary Barkett and Daniel Manion are on the
filibuster list even though we did not take a cloture vote on them.
Both of them were confirmed and currently sit on the bench.
Eight others, including Republican nominee Edward Carnes and
Democratic nominee Stephen Breyer, are on the list even though the
Senate voted to invoke cloture on their nominations. The purpose was to
get to the vote up and down.
Abe Fortas is on the list even though his nomination was withdrawn
after a failed cloture vote showed he did not have majority support and
the opposition was solidly bipartisan--almost as many Democrats as
there were Republicans. It was not an all-Democrat filibuster such as
these have been.
Here is the kicker: Eleven of the 112 nominees on Senator Durbin's
filibuster list were confirmed by the Senate--all 11 of them--with 9 of
them sitting on the Federal bench today. And as for Fortas, President
Lyndon Johnson withdrew his nomination, not because there was a
filibuster, because no less an authority than Robert Griffin, former
Senator from Michigan, who had a reputation of impeccable honesty, has
said that there was no filibuster. They had the votes to defeat Fortas
up and down. They wanted 2 more days of debate so they could make the
case better, but Fortas was going to be defeated up and down. So there
was no filibuster there either.
But even if there were, and even if you could stretch it and say
there were, it was a bipartisan filibuster, if you could use the term
filibuster, with almost as many Democrats as Republicans voting against
Fortas. But I would take Senator Griffin's word on that, a man of
impeccable honesty, who said there was no intent to filibuster by any
Republican or Democrat on that nomination.
None of these situations bears any resemblance to the filibuster of
majority-supported judicial nominations underway today.
Let me put this as clearly as I can. Not taking a cloture vote is no
precedent for taking a cloture vote. Ending debate is no precedent for
not ending debate. Confirming judicial nominations is no precedent for
not confirming judicial nominations. And withdrawing nominations
lacking majority support is no precedent for refusing to vote on
nominations that have majority support.
The second word they play on is ``extremists.'' Democrats and their
leftwing interest group allies tell us they only use the filibuster
against what they call extremist nominees. Trying to define this label,
however, is like trying to nail Jell-O to a cactus in the Utah desert.
Like the Constitution in the hand of an activist judge, it means
whatever you want it to mean.
No matter what the word means, this word extremist, Senators who
truly believe a judicial nominee is an extremist may vote against him.
They have a right to vote against anybody they think is an extremist.
But this is no argument for refusing to vote in the first place.
As our colleague Senator Kennedy said in February, 1998:
We owe it to Americans across the country to give these
nominees a vote. If our . . . colleagues don't like them,
vote against them. But give them the vote.
I wonder why the change today? I think he meant that statement back
then. Why doesn't he mean it today?
In September, 1999, the Judiciary Committee ranking member Senator
Leahy similarly said our oath of office requires us to vote up or down
on judicial nominations. Why the change today? It seems to me he meant
it back then.
Priscilla Owen, nominated by President Bush to the U.S. Court of
Appeals for the Fifth Circuit, was reelected to the Texas Supreme Court
in 2000, with 84 percent of the vote. There was no major party
opposition, and the endorsement of every major newspaper in the State
of Texas. Yet her opponents on the other side call her an extremist.
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No fewer than 15 presidents of the State bar of Texas, Democrats and
Republicans, strongly endorse her nomination. Yet these opponents call
her an extremist.
She has been praised by groups such as the Texas Association of
Defense Counsel and Legal Aid of Central Texas. Yet her opponents call
her an extremist.
The American Bar Association, often referred to by our friends on the
other side as the ``gold standard'' to determine whether a person can
sit on the bench, unanimously gave Justice Owen its highest rating of
``well qualified.'' This means she has outstanding legal ability and
breadth of experience, the highest reputation for integrity, and such
qualities as compassion, openmindedness, freedom from bias, and
commitment to equal justice under law. Yet some of the very Democrats
who once said the ABA rating was the gold standard for evaluating
judicial nominees now call Justice Owen an extremist.
Another nominee branded an extremist is California Supreme Court
Justice Janice Rogers Brown, nominated to the U.S. Court of Appeals for
the DC Circuit. She is the daughter of Alabama sharecroppers. She
attended segregated schools before receiving her law degree from the
University of California at Los Angeles--in other words, UCLA. She has
spent a quarter century in public service, serving in all three
branches of State government.
Off the bench, she has given speeches in which she expressed certain
ideas through vivid images, strong rhetoric, and provocative argument.
Yet it is what she does on the bench that matters most, and there she
has been an evenhanded, judicious, and impartial justice on the
California Supreme Court.
George Washington University law professor Jonathan Turley knows the
difference and recently wrote in the Los Angeles Times:
But however inflammatory her remarks outside the courtroom,
Brown's legal opinions show a willingness to vote against
conservative views, particularly in criminal cases, when
justice demands it.
In recent terms, Justice Brown has written more majority opinions
than any of her colleagues on the California Supreme Court. Yet some in
this body brand her an extremist. How can that be? Again, Humpty Dumpty
would be proud of this type of misuse of words.
A group of California law professors, including Democrats,
Republicans, and Independents, wrote to our Judiciary Committee to say
that Justice Brown's strongest credential is her openmindedness and
thorough appraisal of legal argumentation ``even when her personal
views conflict with those arguments.'' Yet some leftwing extremist
groups call her an extremist.
A diverse group of her current and former judicial colleagues wrote
us that Justice Brown is ``a jurist who applies the law without favor,
without bias, and with an even hand.'' It is no wonder that 76 percent
of her fellow Californians voted to retain her in her State's highest
court. Yet her opponents call her an extremist.
If words mean anything, if we in the Senate really want to have a
meaningful and responsible debate about such important things, then we
should stop playing games with words such as ``filibuster'' or
``extremist.'' There is no precedent whatsoever for these partisan,
organized filibusters intended to defeat majority supported judicial
nominations and, I might add, bipartisan majority supported judicial
nominations.
If Senators believe such highly qualified nominees, who know the
difference between personal and judicial opinions and are widely
praised for their integrity and impartiality, are extremists, then they
should vote against them. But these people should be given an
opportunity by having an up-and-down vote. Let's have a full and fair
debate. Perhaps the critics will win the day against one or more of
these nominees. I doubt it. But we must vote. That is what advise and
consent means.
Mr. President, as I close, let me return to the 1881 Matthews
nomination for a moment, the one they have had to stretch to try to
claim was a filibuster.
In the 47th Congress, a Senate equally divided between Republicans
and Democrats confirmed Justice Matthews by a single vote. No doubt,
some opponents called him many things, perhaps even an extremist. Well,
I doubt that because that has not happened until President Bush became
President, as far as I can see in the way it has happened here. But we
settled the controversy surrounding the Matthews nomination the old-
fashioned way--not by filibustering but by debating and voting up and
down. There is no question we should return to that standard.
I yield the floor.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The journal clerk proceeded to call the roll.
Mr. COCHRAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________