[Congressional Record Volume 151, Number 49 (Thursday, April 21, 2005)]
[Senate]
[Pages S4047-S4049]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. JOHNSON. Madam President, as a Senator who has served in both the 
House of Representatives and the Senate, in both the majority and the 
minority in the House and both in the majority and the minority in the 
Senate, I am distressed at some of the rhetoric and debate that has 
gone forward relative to the role of the so-called filibuster rule or 
the nuclear option, as some people refer to it. It is my hope the 
debate can go forward in a more civil and thoughtful manner than has 
sometimes been the case up until now.
  I have served--and it has been an honor to serve--in both bodies. 
Each of the bodies, the House and the Senate, has a respective and 
important role to play. One of the factors, however, that most 
distinguishes the Senate from the other body is the existence of the 
60-vote rule, the so-called filibuster rule, which has the consequence 
of requiring both political parties to come to the center, to have some 
at least modicum of bipartisanship in the proposals they pursue, the 
nominees who are considered.
  That is one of the great strengths of the Senate. I know it 
frustrates some who would like to see the Senate operate more as the 
other body does, where a one-vote margin is all that is essentially 
ever necessary. A rules committee further streamlines things. As a 
consequence, the other body tends to be and has been over the years 
most often a far more partisan body than the Senate.
  The Founders designed the Senate with 6-year terms and a differing 
basis for selection as a body that would be the more thoughtful, more 
deliberative, would take the longer view of initiatives that are before 
the Congress. The Senate plays a very important role.
  There is too much partisanship in Congress. I have the honor of 
representing South Dakota, a State some would describe as a dark red 
State that President Bush won by a large margin this last time. I am 
very proud of the

[[Page S4048]]

Republican support that has been extended to me over the years I have 
had the honor of serving in the House and the Senate. The people of 
South Dakota are tired and grow weary of the intensity of the 
partisanship that too often exists in Washington, DC. The people of 
South Dakota want to see both sides brought together to govern as 
Americans rather than as Republicans or Democrats. That is not asking 
too much, for the traditions and the historic rules that have existed 
in this body that encourage bipartisanship should remain.
  This notion that somehow in the midst of Congress rules that have 
been in place for generations should be eliminated and the bipartisan 
mandate they allow for should be eliminated is a step in the wrong 
direction.
  One of the consequences of the 60-vote rule is it takes both parties 
by the scruff of the neck, brings them together and says: You will have 
to reach across the aisle and cooperate, coordinate with your 
colleagues from the other political party, whether or not you like it. 
That has been a very valuable asset to the Senate and, again, one of 
the things that distinguishes the debate and deliberation and progress 
of legislation in the Senate from what transpires with our colleagues 
in the other body.
  There is too much division in America today. There is too much 
partisanship. The rhetoric has grown far too bitter. It has grown far 
too extreme. What America wants, and what I believe my constituents 
want, is more governing from the center. Most South Dakotans and most 
Americans recognize neither party has all the answers, neither party 
has all the good or bad ideas, and we are governing best when we come 
together in the political center. That will leave the far left and the 
far right unhappy. They are unhappy most of the time, anyway. But I do 
think governing from the center, which the 60-vote rule requires, is 
one of the great strengths of the Senate.

  It would be a horrible mistake for this body to discard that 
bipartisan mandate that rule imposes on this body. A loss of 
bipartisanship would not only affect the consideration of judges, but 
the precedent would certainly be in place to affect consideration of 
all other legislation as well.
  Keeping in mind that this body, even with that rule in place, has 
approved some 205 Federal judges nominated by President Bush, has 
rejected roughly 10, and that we have one of the lowest judicial 
vacancy rates in American history right now--in fact, about 60 percent 
of all Federal appellate judges are appointees of Republican 
administrations over the last number of years--to suggest somehow there 
is a crisis with judges is a fabrication, frankly. It is simply untrue.
  Judges are being considered, voted on, approved at a record rate. In 
fact, all of these judges have had up-or-down votes as opposed, sadly, 
to the experience during the Clinton administration where some 60 of 
his nominees never received a hearing or a vote. In this case every 
nominee has received a vote in committee and on the floor, albeit that 
vote on the floor is consistent with the 60-vote parliamentary rule of 
the Senate which does require both sides to come together in the 
center.
  Clearly, President Bush can have the approval of 100 percent of his 
judges. All he has to do is to nominate conservative Republican judges 
who are part of the conservative mainstream of America, a very broad 
range of discretion that he has. Those judges will be confirmed, as 
have the 200 plus who have routinely been confirmed by this body.
  The Senate does have a constitutional obligation of advice and 
consent on these lifetime appointments. That is one of the reasons why 
this issue is so profoundly important, because this is not simply a 
legislative matter that will come and go and be reconsidered at another 
time. We are considering the appointments of people to high office for 
a lifetime. It is imperative the Senate insist that each of these 
individuals, men and women, be part of the political and judicial 
mainstream of America, albeit we have a Republican President, and 
certainly he will nominate conservative Republican judges, as well he 
ought, and they will be approved in a routine manner as over 200 have 
already.
  But there is an importance that the nominees do fall within the 
political mainstream, and the one test to see to it that is the case is 
the 60-vote margin rule where no judge, regardless of what their 
political background or judicial background might be, can be approved 
unless, in fact, there is some modest bipartisan support, not an 
overwhelming consensus.
  Nobody is suggesting a 90-percent rule or 75-percent rule or even the 
66-percent rule which used to be the case for filibusters some years 
ago but that there be a 60-vote margin. I don't think that is asking 
too much in the name of bipartisanship, in the name of requiring both 
parties to come together, and in the name of diminishing the level of 
partisan hardball that characterizes the other body and to some degree 
has infected the debate and the rhetoric even here in the Senate.
  Having witnessed the political dynamic in both bodies, having had the 
honor to serve in both bodies, having been in both the majority and 
minority, because the rule we are talking about of bipartisanship 
should prevail regardless of whether Republicans or Democrats are in 
the majority or the minority, having witnessed all of that and knowing 
where my constituents come from in terms of growing weary of the 
partisanship and the political efforts in Washington, DC, to jam one 
idea past another without the need for deliberation, without the need 
for give and take between the two parties, I have to believe we ought 
to reject the strategies that will play into the hands of the far left 
or the far right and continue the historic rules that have been in 
place for the Senate which, in fact, not only encourage but require at 
least a modest level of bipartisanship and deliberative thinking when 
we consider legislation or lifetime appointments to the U.S. courts.
  It is my hope cooler heads will prevail, that the historic rules of 
this body will prevail, and that the Senate will continue to play the 
incredibly important and unique role it has throughout 200 years of 
American history. That is a body where the hot rhetoric of the day is 
set aside and the two political parties are required to come together, 
to approach issues in a more thoughtful, more deliberative and 
bipartisan fashion. We would be a poorer nation, indeed, were it not 
for that kind of bipartisan mandate that the current rules of the 
Senate insist upon.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Madam President, how much time is remaining?
  The PRESIDING OFFICER. There is 4 minutes remaining.
  Mr. DURBIN. Madam President, I ask unanimous consent for an 
additional 6 minutes--I believe the majority party had about that added 
to their morning business--if there is no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Madam President, I thank my colleague from South Dakota 
who just spoke. I just left the Senate Judiciary Committee of which I 
have been a member for a number of years. It is not just an ordinary 
meeting of the committee today; it is a historic meeting. It is a 
meeting I am sure, when they chronicle this episode in the history of 
the Senate, they will point to as a catalyst for a constitutional 
confrontation, the likes of which the Senate has never seen in its 
history. Let me tell you what is going on.
  Many times in the history of this country, a President with a popular 
mandate comes to Washington in their second term unhappy with the 
judiciary, unhappy with judges who do not see the world as they do. 
These Presidents come to the conclusion that with their popular 
mandate, with their majorities in Congress, they can change the 
Constitution, they can change the courts.
  It is happening with President Bush, but he is not the first 
President who has been through this experience. President Thomas 
Jefferson, in the beginning of his second term, so angry over the 
opposition party that controlled judgeships, tried to impeach a member 
of the U.S. Supreme Court. He brought the issue to the floor of the 
Senate, to a floor that was dominated by his own political party, and 
said: Give me the power to get rid of these outrageous judges. His 
party turned on him and said: No, the Constitution, Mr. President, is 
more important than your

[[Page S4049]]

power. We reject your notion that you can pack the Supreme Court with 
friendly judges.
  Thomas Jefferson was not the last. A President whom I honor and 
venerate, Franklin Delano Roosevelt, in the beginning of his second 
term came to the White House with this large popular mandate and, in 
frustration, said: I am sick and tired of the ideas of the New Deal 
being killed in that Supreme Court. Give me the power as President, 
Franklin Roosevelt said, and I will replace and add to the membership 
of that Supreme Court until we get Justices who think like I do.
  He came to this Senate, this Chamber, dominated by Members of his own 
political party, and said: Stand with me. You voted for the New Deal, 
now stand with me. We are going to make sure the Supreme Court goes 
along. And his party said no. They said: Franklin Roosevelt, the 
Constitution is more important than your power as President. We will 
stand by the Constitution. You are wrong, Mr. President.
  But look what is happening today. President Bush, not content to have 
95 percent of his judicial nominees approved by this Senate, has now 
said: This Republican Party is going to change the rules of the Senate, 
change the constitutional principles that have guided us so that 
President Bush can have every single judicial nominee approved by the 
Senate, bar none.
  So what will happen in a Senate dominated by the President's party? 
Will they rise in the tradition of Thomas Jefferson's Senate? Will they 
rise in the tradition of Franklin Delano Roosevelt's Senate? Will they, 
as the President's party, stand up and say: The Constitution is more 
important than the power of any President? Sadly, it appears they will 
not. They are lapdogs as the President is demanding this power. They 
will come to the Senate with the so-called nuclear option. It is a good 
name. It is a good name because it signifies the importance and gravity 
of what they will do.
  The first thing they have to do is break the rules of the Senate. If 
you want to change a Senate rule, you need 67 votes. They do not have 
67 votes to give President Bush this unbridled power, so they will 
break the rules of the Senate with a so-called point of order to change 
the rules of the Senate and to say that this President, unlike any 
other President in history, will not have his judicial nominees subject 
to the rules of the Senate as we know them.
  Oh, they argue, this opposition to President Bush's nominees is 
unprecedented. Nobody has ever used the filibuster on a judicial 
nominee. That is what they say. But they are wrong. It has happened 11 
times. Most recently the Republicans used the filibuster against 
President Clinton's nominees. They have done it. They have done it 
because the rules allowed them to do it. And now, in the middle of the 
game, they want to change the rules and diminish the power of the 
Senate and attack the principle of checks and balances.
  The reason this great democracy has survived longer than any in 
history is that we have this tension between the branches of 
Government--the power of the Presidency checked by the power of 
Congress checked by the power of the judiciary--and this tension among 
the three branches of Government has given us this democracy that has 
survived while others have failed. Yet the majority party, the 
Republican Party in the Senate, would walk away from that fundamental 
principle, for what? For what? So that this President can have every 
single judicial nominee without fail? Madam President, 95 percent is 
not enough? And 205 out of 215 is not enough?

  I have stood with my colleagues and voted against some of these 
nominees. I will do it again. These are men and women far outside the 
mainstream of American political thought. They have been pushed to the 
forefront by special interest groups demanding they get lifetime 
appointment on a court in America to make decisions that will affect 
everyone--every family, every worker, the air we breathe, and the 
privacy we revere.
  What is the agenda? We hear this agenda. It is spelled out in detail 
by Congressman Tom DeLay of Texas. He threatens the judiciary: We are 
going to dismantle them if they don't agree with me, he says. Tom DeLay 
is going to set the standard for judges in America? This man who was 
pushing through the Terry Schiavo case, defying 15 years of court 
decisions, defying the wishes of that poor woman's family? He was so 
angry when the Federal judges did not agree with him, he said: We will 
get even with you. That is what this is about.
  So judicial nominees will come to the floor who will be approved who 
will follow the Tom DeLay school of thinking, who will follow something 
far outside the mainstream of America.
  We need to have bipartisanship. We need balance. We need fairness. We 
need to say to a President of any political party: As powerful as you 
may be, you are never more powerful than our Constitution. The 
Constitution, which is the one commonality in the Senate, of all the 
things we argue about and all the things on which we disagree, we--each 
and every one of us--stand proudly next to that well, raise our hands, 
and swear to uphold and defend the Constitution of the United States.
  To my colleagues and friends who are following this debate, the 
constitutional crisis we are facing is unnecessary. If the President's 
own party has the courage that Thomas Jefferson's party had, that 
Franklin Roosevelt's party had, they would say to the President: You 
have gone too far. The Constitution is more important than any 
President. But, sadly, we are on a path to this crisis.
  If it occurs--and I hope it does not--it is going to change this 
body. It is going to change it dramatically. The Senate is so much 
different from the House. The Senate is successful because each and 
every day you will hear said over and over, ``I ask unanimous 
consent.'' Unanimous consent is just as the phrase suggests--any 
Senator can object. But it seldom occurs because we agree to move 
forward together--Democrats on this side, Republicans on the other 
side--move forward with the people's business. But if the Republican 
majority pushes through this constitutional confrontation, destroys 
this tradition of the Senate, assaults the principle of checks and 
balances, then the courtesy, the comity, and the cooperation which 
makes this such a unique institution is in danger.
  I hope that cooler minds will prevail. I am heartened by the fact 
that Senator John McCain, a leading Republican, has stood up and begged 
his fellow Republican colleagues: Don't do this. The Senate and its 
traditions and the Constitution, Senator McCain says, are more 
important than any President or any party.
  I am confident the Judiciary Committee will send this nomination of 
Priscilla Owen of Texas to the floor. I hope that once it reaches the 
calendar, cooler minds will prevail and all of us who have sworn to 
uphold this Constitution will honor it by our actions on the floor of 
the Senate.

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