[Congressional Record Volume 151, Number 49 (Thursday, April 21, 2005)]
[Senate]
[Pages S4049-S4052]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     EXTENSION OF MORNING BUSINESS

  Mr. DURBIN. Madam President, I ask unanimous consent that the period 
for morning business be extended until 12 noon, with 45 minutes under 
the control of Senator Specter.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SPECTER. Mr. President, I thank the floor schedulers for 
reserving time for me this morning. I had hoped to be here at 11:15, 
but I have been chairing an executive business meeting of the Judiciary 
Committee where we voted on the nominations of Justice Owen and Justice 
Brown. Not unexpectedly, it went over the planned 11:15 conclusion, but 
I do appreciate the allocation of time. I asked for 45 minutes for a 
presentation, which I am about to make.
  Mr. SPECTER. Mr. President, I seek recognition today to address the 
subject of Senators' independence and dissent. As members of political 
parties,

[[Page S4050]]

we owe loyalty to the party that helped get us elected and which 
enables us to join together to achieve broad policy objectives. 
Historically, we have found our system of Government functions best 
with a two-party system. But as part of that historical perspective, we 
have simultaneously seen loyalty to our Nation take precedence to 
loyalty to party. At certain junctures of American history, the fate of 
our system of Government has rested on the ability of Members of this 
body to transcend party loyalty for the national interest. I believe 
the Senate currently faces such a challenge between party line voting 
on filibusters and potential voting on the constitutional, or so-called 
nuclear option.
  I have watched the issue on confirmation of Federal judges fester and 
become exacerbated as each party has racheted up the ante beginning 
with the last 2 years of President Reagan's administration when 
Democrats took control of the Senate and continuing to the present day.
  In 1987, upon gaining control of the Senate and the Judiciary 
Committee, on which I have served since being elected in 1980, the 
Democrats denied hearings to seven of President Reagan's circuit court 
nominees and denied floor votes to two additional circuit court 
nominees. As a result, the confirmation rate for Reagan's circuit 
nominees fell from 89 percent prior to the Democratic takeover to 65 
percent afterwards. While the confirmation rate decreased, the length 
of time it took to confirm judges increased. From the Carter 
administration through the first 6 years of the Reagan administration, 
the length of the confirmation process for both district and circuit 
court seats consistently hovered at approximately 50 days. For 
President Reagan's final Congress, after the Democrats took control, 
the number doubled to an average of 120 days for these nominees to be 
confirmed.
  The pattern of delay and denial continued through 4 years of 
President George H.W. Bush's administration. President Bush's lower 
court nominees waited, on average, 100 days to be confirmed, which was 
about twice as long as had historically been the case. The Democrats 
also denied committee hearings for more nominees. President Carter had 
10 nominees who did not receive hearings. For President Reagan, the 
number was 30. In the Bush Sr. administration, the number jumped to 58.
  When we Republicans won the 1994 election and gained the Senate 
majority, we exacerbated the pattern of delaying and blocking nominees. 
Over the course of President Clinton's presidency, the average number 
of days for the Senate to confirm judicial nominees increased even 
further to 192 days for district court nominees and 262 days for 
circuit court nominees. Through blue slips and holds, 70 of President 
Clinton's nominees were blocked. When it became clear that the 
Republican-controlled Senate would not allow the nominations to move 
forward, President Clinton withdrew 12 of those nominations and chose 
not to renominate 16.
  During that time I urged my Republican colleagues on the Judiciary 
Committee to confirm well-qualified Democratic nominees. For example, I 
broke ranks with many of my colleagues on the Republican side to speak 
and vote in favor of the confirmation of Marsha Berzon and Richard 
Paez, both to the Ninth Circuit Court of Appeals. While many of my 
Republican colleagues criticized me for voting for Berzon and Paez, I 
thoroughly reviewed their records and determined that both were 
qualified for the positions to which they had been nominated. While I 
did not agree with Ms. Berzon and Mr. Paez on every issue, I realized 
the importance of working toward solutions when the Senate is at an 
impasse on a nomination.

  After the 2002 elections with control of the Senate returning to 
Republicans, the Democrats resorted to the filibuster on ten circuit 
court nominations, which was the most extensive use of the tactic in 
the Nation's history. The filibusters started with Miguel Estrada, one 
of the most talented and competent appellate lawyers in the country. 
The Democrats followed with filibusters against nine other circuit 
court nominees. During the 108th Congress, there were 20 cloture 
motions on ten nominations. All 20 failed.
  To this unprecedented move, President Bush responded by making for 
the first time in the Nation's history two recess appointments of 
nominees who had been successfully filibustered by the Democrats. That 
impasse was broken when President Bush agreed to refrain from further 
recess appointments.
  Against this background of bitter and angry recriminations with each 
party serially trumping the other party to ``get even'' or, really, to 
dominate, the Senate now faces dual threats, one called the filibuster 
and the other the ``constitutional'' or ``nuclear'' option, which rival 
the US/USSR confrontation of mutual assured destruction. Both 
situations are accurately described by the acronym ``MAD'', which was 
used for the confrontation between our Nation and the Soviet Union.
  We Republicans are threatening to employ the ``constitutional'' or 
``nuclear'' option to require only a majority vote to end filibusters. 
The Democrats are threatening to retaliate by stopping the Senate 
agenda on all matters except national security and homeland defense. 
Each ascribes to the other the responsibility for ``blowing the place 
up.''
  The gridlock occurs at a time when we expect a U.S. Supreme Court 
vacancy within the next few months. If a filibuster would leave an 8-
person court, we could expect many 4-to-4 votes since the Court now 
often decides cases with 5-to-4 votes. A Supreme Court tie vote would 
render the Court dysfunctional, leaving in effect the circuit court 
decision with many splits among the circuits, so the rule of law would 
be suspended on many major issues.
  On these critical issues with these cataclysmic consequences, I urge 
my colleagues on both sides of the aisle to study the issues and to 
vote their consciences independent of party dictation. I have not 
rendered a decision on how I would vote on the constitutional/nuclear 
option, but instead have been working to break the impasse by 
confirming or rejecting the previously filibustered nominees by up or 
down votes.
  As Chairman of the Judiciary Committee, I selected William Myers as 
the first of the filibustered judges to be reported out of Committee 
for Senate floor action. Two Democrats, Senator Joe Biden and Senator 
Ben Nelson, had voted in the 108th Congress to end the filibuster on 
Mr. Myers, and Senator Ken Salazar made a campaign promise to support 
an end to the Myers filibuster, although he has since equivocated on 
that commitment. Being only 2 or 3 votes shy of 60, 55 Republicans plus 
presumably two or three Democrats, I thought Myers had a realistic 
chance for confirmation.
  With any judicial nominee, or any Senators for that matter, opponents 
can pick at their record. On the totality of his record, as 
demonstrated at two hearings and the Judiciary Committee Executive 
session, Myers is qualified for confirmation. Beyond the issue of his 
own qualifications, his conservative credentials would lend some 
balance to the Ninth Circuit.
  The Democrats have signaled their intent not to filibuster Thomas 
Griffith or Judge Terrence Boyle which may help to diffuse the 
situation. In addition, intensive efforts are being made to clear three 
of President Bush's nominees for the 6th Circuit. If enough of the 
President's nominees can be confirmed, we may be able to deflate the 
controversy without a vote on the constitutional/nuclear option. That 
is what I am trying to do in my capacity as chairman of the Judiciary 
Committee.
  In due course, I will have more to say about the other pending Bush 
nominees; but for now, I only urge my colleagues to be independent and 
to examine the nominees' records on the merits without having their 
votes determined by party loyalty.
  The fact is that all, or almost all, Senators want to avoid the 
crisis. I have had many conversations with my Democrat colleagues about 
the filibuster of judicial nominees. Many of them have told me that 
they do not personally believe it is a good idea to filibuster 
President Bush's judicial nominees. They believe that this 
unprecedented use of the filibuster does damage to this institution and 
to the prerogatives of the President. Yet despite their concerns, they 
gave in to

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party loyalty and voted repeatedly to filibuster Federal judges in the 
last Congress.
  Likewise, there are many Republicans in this body who question the 
wisdom of the constitutional or nuclear option. They recognize that 
such a step would be a serious blow to the rights of the minority that 
have always distinguished this body from the House of Representatives. 
Knowing that the Senate is a body that depends upon collegiality and 
compromise to pass even the smallest resolution, they worry that the 
rule change will impair the ability of this institution to function.
  The importance of independence was noted on November 3, 1774 in a 
speech of historical importance to the Electors of Bristol by Edmund 
Burke, a Member of the British Parliament:

       ``. . . his (the legislators) unbiased opinion, his mature 
     judgment, his enlightened conscience, he ought not to 
     sacrifice to you, to any man, or to any set of men living. 
     Your representative owes you, not his industry only, but his 
     judgment; and he betrays, instead of serving you, if he 
     sacrifices it to your opinion.''

  President John F. Kennedy, while a member of this body, wrote 
Profiles in Courage which cities the roles of courageous Senators who 
chose the national good over party loyalty. He summed it up on one of 
his famous quotations: ``Sometimes party loyalty asks too much.''
  As President Kennedy wrote in the introduction to his book:

       Of course, both major parties today seek to serve the 
     national interest. They would do so in order to obtain the 
     broadest base of support, if for no nobler reason. But when 
     party and officeholder differ as to how the national interest 
     is to be served, we must place first the responsibility we 
     owe not to our party or even to our constituents but to our 
     individual consciences.

  Kennedy further noted, in words which ring as true today as they did 
decades ago:

       Today the challenge of political courage looms larger than 
     ever before. For our everyday life is becoming so saturated 
     with the tremendous power of mass communications that any 
     unpopular or unorthodox course arouses a storm of protests 
     such as John Quincy Adams--under attack in 1807--could never 
     have envisioned. Our political life is becoming so expensive, 
     so mechanized and so dominated by professional politicians 
     and public relations men that the idealist who dreams of 
     independent statesmanship is rudely awakened by the 
     necessities of election and accomplishment.

  Continuing, Kennedy wrote:

       Of course, it would be much easier if we could all continue 
     to think in traditional political patters--of liberalism and 
     conservatism, as Republicans and Democrats, from the 
     viewpoint of North and South, management and labor, business 
     and consumer or some equally narrow framework. It would be 
     more comfortable to continue to move and vote in platoons, 
     joining whomever of our colleagues are equally enslaved by 
     some current fashion, raging prejudice or popular 
     movement. But today this nation cannot tolerate the luxury 
     of such lazy political habits. Only the strength and 
     progress and peaceful change that come from independent 
     judgment and individual ideas--and even from the 
     unorthodox, and the eccentric--can enable us to surpass 
     that foreign ideology that fears free thought more than it 
     fears hydrogen bombs.

  Beyond his stirring words, Kennedy provides us examples. John Quincy 
Adams' faced such a controversy when English ships seized American 
ships and conscripted American sailors who could not ``prove'' that 
they were not British subjects. Adams, a Federalist, was incensed. 
Ultimately, he voted with President Jefferson and the Republicans to 
enact an embargo against Great Britain. Yet most other Federalists, 
including those in Adams' home state of Massachusetts, preferred to 
make excuses for the British behavior and urge caution. Realizing the 
political suicide he was committing, Adams remarked to a friend, ``This 
measure will cost you and me our seats but private interest must not be 
put in opposition to public good.'' His prediction was right. He lost 
his seat.
  Kennedy recounts further in ``Profiles in Courage,'' how Senator 
Thomas Hart Benton, a Democrat from the slave-holding state of 
Missouri, elevated his love of the Union and his belief in manifest 
destiny over populist notions of secessionist Southern states. Though 
Benton owned slaves and was one of the few Senators to bring them with 
him to his Washington home, he refused to speak in favor of or against 
slavery in emergent states such as California and New Mexico, as they 
were added to the Union. Benton was known for his fiery rhetoric and 
independent streak throughout his thirty years in the Senate. In a 
prescient, foreboding statement, one of Benton's Missouri 
contemporaries remarked, ``[a]t an early period of [Benton's] 
existence, while reading Plutarch, he determined that if it should ever 
become necessary for the good of his country, he would sacrifice his 
own political existence.'' Senator Benton did exactly that.
  Courageous Senators and this institution as a whole resisted great 
political pressure to reject steps that would have threatened the 
separation of judicial powers and the independence of the President. 
These instances were the 1804-1805 impeachment and trial of Associate 
Justice Samuel Chase and the 1868 impeachment of President Andrew 
Johnson.
  Republicans under Thomas Jefferson sought to have Associate Justice 
Samuel Chase of the United States Supreme Court impeached in 1804. The 
outcome of Justice Chase's trial would largely determine whether the 
judiciary could remain independent or become a subordinate branch of 
government where justices looked to the legislature for patronage and 
job security.
  It was Justice Chase's penchant for politicking and expressing 
Federalist views from the bench that got him in trouble.
  Justice Chase was tried before the Senate. Aaron Burr, the 
controversial Vice President who was wanted in two states for his 
dueling homicide of Alexander Hamilton, presided at the hearing. During 
closing arguments, Justice Chase's counsel, Luther Martin, a Maryland 
delegate to the Constitutional Convention, predicted the outcome and 
noted the wisdom of the Founding Fathers in the constitutional 
provision giving the Senate the power to try and decide cases of 
impeachment. There were Senators in the Chase impeachment proceeding 
who transcended the pressures of their party, and bravely cast votes of 
``not guilty'' for Justice Chase, thereby protecting the independence 
of the U.S. Judiciary.

  A similar great example of Senate independence occurred in the 
impeachment trial of President Andrew Johnson. President Johnson 
achieved the ire of the Congress, and the public generally, when he 
suspended the Secretary of War, Edwin Stanton, in violation of the 10-
year Oath-of-Office Act which passed over the President's veto. That 
legislation prevented the President from removing, without the consent 
of the Senate, all new officeholders whose appointments require 
confirmation of that body. Public opinion ran very high against 
President Johnson.
  In ``Profiles in Courage,'' Senator Kennedy again described the 
unfolding drama:

       To their dismay, at a preliminary Republican caucus, six 
     courageous Republicans indicated that the evidence produced 
     so far was not in their opinion sufficient to convict Johnson 
     . . .

  There were public outcries and party outcries against the deviation 
from their party loyalty. The party said: ``All must stand together!'' 
All but one Republican Senator announced their opinions. One who would 
not was Edmond G. Ross of Kansas.

       The Radicals were outraged that a Senator from such an 
     anti-Johnson stronghold as Kansas could be doubtful. Indeed, 
     despite public clamor and partisan outcry against him, 
     Senator Ross was resolute in his unwillingness to signal his 
     thoughts in advance of the ultimate vote on the Articles of 
     Impeachment. As the impeachment trial droned on, he remained 
     the only unknown voter among Republican Senators.

  Ross ultimately voted not guilty, in defiance of party loyalty. 
Reflecting on what colored his odd voting pattern, given his disdain 
for President Johnson, and his near mechanical party loyalty until that 
single moment, Ross said, in historic words:

       In a large sense, the independence of the executive office 
     as a coordinate branch of government was on trial. . . . If . 
     . . the President must step down . . . a disgraced man and a 
     political outcast . . . upon insufficient proofs and from 
     partisan considerations, the office of President would be 
     degraded, cease to be a coordinate branch of the government, 
     and ever after subordinated to the legislative will. It would 
     practically have revolutionized our splendid political fabric 
     into a partisan Congressional autocracy. . . . This 
     government had never faced so insidious a danger . . . 
     control by the worst element of American politics.


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  Ross went on to say:

       If Andrew Johnson were acquitted by a nonpartisan vote . . 
     . America would pass the danger point of partisan rule and 
     that intolerance which so often characterizes the sway of 
     great majorities and makes them dangerous.

  Mr. President, I know morning business has expired. But in the 
absence of any other Senator seeking recognition, I ask unanimous 
consent to proceed for an additional 10 minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SPECTER. Mr. President, independence and dissent from the 
majority view has a great tradition in our country, further exemplified 
by independent, thoughtful U.S. Supreme Court Justices who formulated 
important legal principles which were later embraced as the law of the 
land.
  In a series of powerful and famous dissents, Justice Oliver Wendell 
Holmes and Justice Louis Brandeis, articulated a logic so compelling 
that it became the majority view within a generation. Their examples 
serve as a reminder of the importance of dissent and independence.
  As a law student, I was inspired by Justice Holmes's dissent in 
Abrams v. United States, when he wrote:

       But when men have realized that time has upset many 
     fighting faiths, they may come to believe even more than they 
     believe the very foundations of their own conduct that the 
     ultimate good desired is better reached by free trade in 
     ideas--that the best test of truth is the power of the 
     thought to get itself accepted in the competition of the 
     market, and that truth is the only ground upon which their 
     wishes can be successfully carried out. That, at any rate, is 
     the theory of our constitution.

  The theme of free-thought and independence, so artfully articulated 
by Justice Holmes, is also the foundation of ``Profiles in Courage.'' I 
think the essence of that theme was best summarized by then-Senator 
John Kennedy, when he said:

       Foreign ideology . . . fears free thought more than it 
     fears hydrogen bombs.
  Free thought is the ultimate road to truth. Free thought is the 
energy that drives the political machine that leads to good public 
policy in our society. Free thought, and its companion, freedom of 
speech and assembly and press, are the core attributes of democracy 
that are today taking root around the world.
  ``Free trade in ideas'' cannot flourish when Senators are constrained 
to follow a political party's edict. When the merits of individual 
judicial nominees are debated and considered, without the counter-
marjoritarian filibuster preventing resolution, only then do we achieve 
Holmes's ``best test of truth.'' Similarly, if the constitutional/
nuclear option is debated and considered without adherence to the party 
line, we will pursue the tested process to find the truth that is ``the 
only ground upon which [our] wishes can be successfully carried out.''
  The value of independence, expressed in the dissenting opinions of 
Holmes and Brandeis, called public attention to values which later 
became the pillars of our democracy. Dissenting in Olmstead v. United 
States, Justice Brandeis said:

       The makers of our Constitution conferred, as against the 
     Government, the right to be let alone--the most comprehensive 
     of rights and the right most valued by civilized men. To 
     protect that right, every unjustifiable intrusion by the 
     Government upon the privacy of the individual, whatever the 
     means employed, must be deemed a violation of the 
     [Constitution].

  That view of the most basic ``right to be let alone'' later became 
the pillar of civil rights in our society in many contexts. It is the 
foundation of today's debate on the Patriot Act where representatives 
of the political right and the political left reference that value as 
the barometer of the balance of governmental power to provide for our 
Nation's security.
  The Holmes/Brandeis independent views, expressed in Supreme Court 
dissents, later became the law of the land on such important issues as 
freedom of speech, prohibiting child labor, limiting working hours, and 
peremptory challenges in criminal cases.
  These illustrations of Senatorial and judicial independence 
demonstrate the value of free thinking in deciding what is best for our 
Nation's long-range interests. Central to the definition of 
deliberation is thought. And we pride ourselves on being the world's 
greatest deliberative body. And thought requires independence--not 
response to party loyalty or any other form of dictation. The lessons 
of our best days as a nation should serve as a model today for Senators 
to vote their consciences on the confirmation of judges and on the 
constitutional/nuclear option.
  If we fail, then I fear this Senate will descend the staircase of 
political gamesmanship and division. But if we succeed, our Senate will 
regain its place as the world's preeminent deliberative body.
  I thank the Chair and thank my colleagues and yield the floor.

                          ____________________