[Congressional Record Volume 151, Number 50 (Friday, April 22, 2005)]
[Senate]
[Pages S4141-S4144]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. BENNETT. Mr. President, the Senator from Colorado talked about
the ongoing conversation with respect to the filibuster in the Senate.
If I may, I would like to reminisce for a little while because I have
something of a history in the Senate. I have clearly not been here
nearly as long as many of my colleagues, but I first came into this
Chamber when I was a teenager. My father was a Senator. I was a summer
intern in his office. I suppose there was something strange about me as
a teenager because I was more interested in the Senate than I was in
sports or cars, the two subjects that young boys are supposed to be
paying attention to.
I remember sitting in the family gallery one evening listening to the
debates. In those days, there were debates. There was not the situation
we find now where Senators come to the floor to posture for the
television cameras. They came to the floor to have a clash of ideas. I
remember a particular debate where a Senator on the Democratic side of
the aisle was holding forth. He seemed to be winning the argument and
the Senators on the Republican side of the aisle sent up the call for
the chairman of the Finance Committee, who entered the back of the
Chamber. I remember the Democratic Senator saying, I see the
Republicans have brought up their heavy artillery. Then there was an
exchange between these two Senators which the chairman of the Finance
Committee clearly won.
The Democratic Senator got a little flustered and a little angry at
being bested in the debate and so he started to complain about the fact
that Colorado, a small State, had as many Senators as Illinois, the big
State, which he represented. Whereupon the chairman of the Finance
Committee from Colorado then said, the Senator is no longer opposed to
the bill. He is now opposed to the Constitution. I must say, I am not
surprised. And he turned on his heel and walked out and the debate was
over. It was an exciting thing to watch for those of us who were
political junkies.
We have come a long way from that. I don't think it is a long way
forward. We have come a long way from the give and take of debate into
an atmosphere where this Senate has become the platform for people to
express harsh views, strong political rhetoric, and occasionally, in my
view, go over the line of that which is appropriate. We have become a
sounding board for partisanship rather than a deliberative body for
debate.
I am not quite sure when we started in that direction or what brought
us from that old time to this present time. One of the moments might
have been the debate over the nomination of Robert Bork to the Supreme
Court. Robert Bork is the only nominee I know of whose name has turned
into a verb. We now hear groups, as they talk about a nominee, say
``we're going to Bork him.'' Look back at what was done with respect to
the nomination of Robert Bork and it was nothing short of character
assassination; or, to use a phrase that was popular in the last
administration, the politics of personal destruction.
We have seen that activity poison the comity of the Senate on both
sides of the aisle because when it was done to Robert Bork on behalf of
those who were opposed to the nomination made by President Reagan,
those who were Reagan supporters began to say, we will do the same
thing. When Democratic Presidents came along, their nominees began to
be attacked on a personal basis rather than on the merits of the
situation, much as Robert Bork had been. Now it becomes a standard
tactic on both sides of the aisle.
Why do I raise that with respect to the controversy over whether the
Senate has the right by majority vote to change its rules? I raise it
because too much of the current debate over that question has gone in
the direction of ``Borking''--Senators on both sides of the aisle, the
process on both sides of the aisle and, if you will, the institution
itself.
I have great reverence for this institution and I am distressed at
what I see as I look over the landscape with respect to this particular
debate. I see on one side e-mails and press releases saying we must
stop George W. Bush from packing the courts with right-wing whackos.
That is what this debate is about. The filibuster is our tool to
prevent right-wing whackos from getting on the court.
The first circuit court judge ever prevented from gaining a vote by
virtue of the filibuster in the history of the American Republic was a
man named Miguel Estrada. Miguel Estrada is an immigrant to this
country. He came here not speaking English. He graduated from the
Harvard Law School as the editor of the Harvard Law Review. He served
in the Justice Department under the first President Bush in the
Solicitor's Office and received glowing recommendations and reports
from every one of his superiors. Indeed, his performance was
sufficiently outstanding that he remained in the Justice Department in
the Solicitor's Office for 2 years while Janet Reno was the Attorney
General. Janet Reno is not known for harboring right-wing whackos.
The American Bar Association gave him their highest recommendation
for this position and they are not known for harboring right-wing
whackos.
Yet the level of debate has followed to the point that those who
decided they must oppose Miguel Estrada for whatever reason stand mute
while he and others like him are attacked as right-wing whackos.
Unfortunately, this kind of attack does not stay on one side or the
other. Today there are radio ads being run in the home states of
Senators who have still not made up their mind how they are going to
vote, radio ads that attack these Senators' integrity and suggest if
they do not vote as the majority leader would like them to vote, they
are not people of faith. They are attacking their integrity and their
religion. To me, that is as repugnant as attacking the President's
nominees as right-wing whackos.
This kind of vilification must stop, but I don't know how to stop it.
The first amendment gives us all a right to say whatever we want to
say, however ridiculous it may be, however offensive it may be. But it
is ridiculous and it is offensive to have the kind of debate going on
over this issue. This is a legitimate issue on which Senators can have
legitimately differing views. It should not become a vehicle for
practicing the politics of personal destruction. But it is going on.
I simply raise my voice in the hope that on both sides, the
temperature of the rhetoric can come down, and we can discuss the issue
on its merits. Let me do my best to discuss the issue on its merits in
the time I have.
First, what are we talking about? We are talking about changing a
Senate tradition. We are also talking about changing a Senate rule. I
want people to understand the two are not the same. Indeed, we have
formal rules in the Senate governing the way we do business. We have
created traditions
[[Page S4142]]
and, quite frankly, the tradition trumps the rule. If somebody invokes
the rule, they can overturn the tradition, but the tradition that has
taken hold trumps the rule.
I will give an example of which I am sure the Presiding Officer is
aware. The rule says the Presiding Officer is required to recognize
whichever Senator addresses the Chair first. The tradition is that the
Presiding Officer recognizes the majority leader first, even if he is
not the first one in a jump-ball situation to shout out the name of the
Presiding Officer. The tradition says the Presiding Officer recognizes
the minority leader second, recognizes the majority manager of the bill
third, the minority manager of the bill fourth, and then those Senators
who ask for recognition are recognized according to the rule.
We honor that tradition for a variety of good reasons. We have not
written it into the rules, but it does not matter because the tradition
trumps the rule and it helps the Senate move forward.
I make a point of this difference for this reason: those who say the
filibuster being used to stop judicial nominees are acting in
accordance with the rule, are exactly right. The rule has always been
there and those who used the rule to stop the nomination to prevent an
up-or-down vote on Miguel Estrada were entirely within their rights and
acting absolutely in compliance with the rules. Let's not demonize them
for using the rules.
However, those who say it is a violation of the Senate tradition to
use the filibuster to block a circuit court judge are also exactly
right. By tradition, we have always held in the Senate that a nominee
who gets out of committee and comes to the Senate is entitled to an up-
or-down vote. By invoking the rule in the last Congress, the then-
Democrat leader overturned the tradition. By talking about changing the
rule now, the Republican leader, the majority leader, is entirely
within his rights. Neither one should be demonized for the position
they took.
Let's look at why the tradition held for so many years. It held
because the spirit of comity ruled in the Senate and each party
recognized the time would come when the other party would control the
Presidency. Indeed, if you look at history, it is almost inevitable
that the other party will control the Presidency. Since the end of
World War II through the election of 2004, we have had 15 Presidential
elections. The party in power has won eight and the party out of party
has won seven. You cannot get any closer than that. There has been only
one time in that entire run where a single party won three consecutive
elections, Reagan in 1980, Reagan in 1984, and Bush in 1988. Every
other time the longest run either party has been able to have has been
8 years, so the historic norm says there will be a Democratic president
after 2008. I hope that is not the case, but that is what history
suggests will happen.
Each side has recognized that their side will have a President within
a relatively short period of time--since the end of World War II,
within less than 8 years. So each side has said, let us not invoke the
rule that says you can filibuster judges. Instead, let us abide by the
tradition that says every nominee is entitled to an up-or-down vote.
That way, when we get the Presidency, our President will have the same
courtesy we are now extending to their President.
I remember very clearly when President Clinton sent some nominees to
this body which members of my conference decided were left-wing
whackos, if I might use that phrase. They, fortunately, did not use
that phrase in public as it is being used now. And I do not think they
should. But they felt these nominees were too extreme to be on the
bench.
When it was clear we did not have the votes to prevent them from
going on the bench, there were those in the conference who said: We
have to filibuster. Let's use the filibuster to prevent them. We can
muster 41 votes.
The chairman of the Senate Judiciary Committee, my colleague from
Utah, Orrin Hatch, and the then-majority leader, the Senator from
Mississippi, Trent Lott, both pled with us: Don't do it. Don't start
down that road. We have never done it before. And we shouldn't do it
now.
And why not? Because, they said: After 2000, we are going to have the
Presidency, and we want our President to have the same courtesy we are
begging with you to extend to President Clinton. They carried the day.
There was no Republican filibuster on the floor of any circuit court
judge.
Now we find ourselves in a situation where the tradition has been
changed, and the question is, will we now change the rule to
reestablish the tradition? It is a legitimate debate. I have respect
for those who hold positions on both sides.
I do make this comment. If the rule change does not go through, and
the rule that now holds that says judicial nominees are fair game, I
guarantee the next time the Democratic Party has a President who sends
up a nominee that 41 Senators on the Republican side decide they do not
like, the Republicans will abide by the rule that has changed the
tradition, and they will filibuster the nominee.
Now, I have many of my colleagues who say: No, no, we would never do
that. We honor the tradition, and we would go back to that tradition.
I do not believe them. I do not say they are lying to us. I think
they believe what they are saying now. But I believe, in the heat of
the battle that would come with a Republican minority in the Senate and
a Democratic President, the Republicans, in the present atmosphere,
would say: Let's use the filibuster. Let's give them a taste of their
own medicine. The level of political dialogue would continue to go
down. The level of personal destruction would continue to go up.
The other question I raise for speculation: Suppose nothing happens
in this Congress, Democrats win the Presidency in 2008, the Republicans
do use the filibuster to stop judges a Democratic President sends
forward, but the Democrats are in control of the Senate. Will those who
are standing here saying this is a disaster for the Senate give a
pledge that they will not, when they are in the majority, suggest using
51 votes to get rid of the filibuster on judicial nominees?
I suggest they would be tempted to do the same thing the Republicans
are trying to do now in order to take care of their Democratic
President. Indeed, the record shows they have done that.
These quotations have already been given on the floor, but I want to
repeat them in this context.
Senator Byrd, in 1979, said:
Now we are at the beginning of Congress. This Congress is
not obliged to be bound by the dead hand of the past . . .
[I]t is my belief--which has been supported by rulings of
Vice Presidents of both parties and by votes of the Senate--
in essence upholding the power and right of a majority of the
Senate to change the rules of the Senate at the beginning of
a new Congress.
Senator Byrd now disavows that position. And I respect that. Each one
of us is entitled to change our mind. I have changed my mind. He is
entitled to change his. Will he make a pledge he will not change it
back when the Democrats are in the majority and say: ``We want to
prevent filibusters of our President's judicial nominees''?
Senator Kennedy said in 1975:
By what logic can the Senate of 1917 or 1949 or 1959 bind
the Senate of 1975? As Senator Walsh of Montana said during
the Senate debate in 1917 on the enactment of the original
rule XXII: ``A majority may adopt the rules in the first
place. It is preposterous to assert that they may deny future
majorities the right to change them.''
Senator Kennedy has obviously changed his mind. And I respect the
Senator's right to change his mind. But I ask again, What assurance do
we have he will not change his mind back if the Democrats get the
majority and are seeking to protect a President of their own?
In 1995, there were nine Senators who voted in favor of eliminating
all filibusters, not just judicial filibusters, all filibusters--nine
Senators still serving, Senator Bingaman, Senator Boxer, Senator
Feingold, Senator Harkin, Senator Kennedy, Senator Kerry, Senator
Lautenberg, Senator Lieberman, and Senator Sarbanes. They voted in
favor of eliminating all filibusters. They have now changed their
minds. They have the right to change their minds. And I respect that.
What indication do we have they will not change their minds back if we
do not get this thing settled in this Congress?
Going back to the newspaper that sometimes acts as the house organ
for the Democratic Party, the New York Times, this is what they had to
say in
[[Page S4143]]
1995, when Senator Harkin introduced the legislation to eliminate
filibusters.
Mr. President, I ask unanimous consent that editorials of the New
York Times be printed in the Record at the conclusion of my statement.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 1.)
Mr. BENNETT. The New York Times said: ``Time to Retire the
Filibuster.'' That is the headline on the editorial. It says:
The U.S. Senate likes to call itself the world's greatest
deliberative body. The greatest obstructive body is more like
it.
And they go on to attack filibusters and give a little of the
history. And then this is their summary of the filibuster, four
paragraphs down:
One unpleasant and unforeseen consequence has been to make
the filibuster easy to invoke and painless to pursue. Once a
rarely used tactic reserved for issues on which senators held
passionate convictions, the filibuster has become the tool of
the sore loser, dooming any measure that cannot command the
60 required votes.
Well, you would think, then, that when the Republicans are saying,
``Well, we don't want to eliminate the legislative filibuster, but we
do want to re-enthrone the Senate tradition that the filibuster is not
used on circuit court judges,'' the first cheerleader would be the New
York Times. Having labeled the filibuster ``the tool of the sore
loser,'' and saying that it is obstructionist, the New York Times ought
to be cheering the idea that finally a majority is about to follow
their advice offered in their editorial pages.
But, no, this is what the New York Times now says: ``The Senate on
the Brink.'' This is an editorial of March 6, 2005:
The White House's insistence on choosing only far-right
judicial nominees--
There is the politics of personal destruction I was referring to
earlier--``only far-right judicial nominees'' has already damaged the
federal courts. Now it threatens to do grave harm to the Senate. If
Republicans fulfill their threat to overturn the historic role of the
filibuster in order to ram the Bush administration's nominees through,
they will be inviting all-out warfare and perhaps an effective shutdown
of Congress.
Interesting what 10 years' time and a change of administrations can
do. The filibuster that was ``the tool of sore losers'' suddenly has
become ``the historic role,'' even though they cannot point to a single
case in history where the filibuster has been used to prevent an up-or-
down vote on a circuit court nominee who made it to the floor.
How they can call that a ``historic role'' is something I will leave
to the editorial writers of the New York Times.
I hope we will not see any more press releases attacking the
President's nominees as ``right-wing whackos,'' that we will not see
any more radio ads attacking Senators who are examining this matter as
being people of no faith, that we will stop the politics of personal
destruction on both sides of this issue, and we will look at it in its
historic pattern.
What we do or do not do on this issue will set the tone of where the
Senate and future Presidents go for decades to come. The Republic
survived for over 200 years without the minority of either party
exercising its right to filibuster judges. I think we should be very
careful about enshrining in tradition the rule that says it is time to
change.
I yield the floor.
Exhibit 1
[From the New York Times, Jan. 1, 1995]
Time to Retire the Filibuster
The U.S. Senate likes to call itself the world's greatest
deliberative body. The greatest obstructive body is more like
it. In the last session of Congress, the Republican minority
invoked an endless string of filibusters to frustrate the
will of the majority. This relentless abuse of a time-honored
Senate tradition so disgusted Senator Tom Harkin, a Democrat
from Iowa, that he is now willing to forgo easy retribution
and drastically limit the filibuster. Hooray for him.
For years Senate filibusters--when they weren't conjuring
up romantic images of Jimmy Stewart as Mr. Smith, passing out
from exhaustion on the Senate floor--consisted mainly of
negative feats of endurance. Senator Sam Ervin once spoke for
22 hours straight. Outrage over these tactics and their
ability to bring Senate business to a halt led to the current
so-called two-track system, whereby a senator can hold up one
piece of legislation while other business goes on as usual.
The two-track system has been nearly as obstructive as the
old rules. Under those rules, if the Senate could not muster
the 60 votes necessary to end debate and bring a bill to a
vote, someone had to be willing to continue the debate, in
person, on the floor. That is no longer required. Even if the
60 votes are not achieved, debate stops and the Senate
proceeds with other business. The measure is simply put on
hold until the next cloture vote. In this way a bill can be
stymied at any number of points along its legislative
journey.
One unpleasant and unforeseen consequence has been to make
the filibuster easy to invoke and painless to pursue. Once a
rarely used tactic reserved for issues on which senators held
passionate convictions, the filibuster has become the tool of
the sore loser, dooming any measure that cannot command the
60 required votes.
Mr. Harkin, along with Senator Joseph Lieberman, a
Connecticut Democrat, now proposes to make such obstruction
harder. Mr. Harkin says reasonably that there must come a
point in the process where the majority rules. This may not
sit well with some of his Democratic colleagues. They are now
perfectly positioned to exact revenge by frustrating the
Republican agenda as efficiently as Republicans frustrated
Democrats in 1994.
Admirably, Mr. Harkin says he does not want to do that. He
proposes to change the rules so that if a vote for cloture
fails to attract the necessary 60 votes, the number of votes
needed to close off debate would be reduced by three in each
subsequent vote. By the time the measure came to a fourth
vote--with votes occurring no more frequently than every
second day--cloture could be invoked with only a simple
majority. Under the Harkin plan, minority members who feel
passionately about a given measure could still hold it up,
but not indefinitely.
Another set of reforms, more incremental but also useful,
is proposed by George Mitchell, who is retiring as the
Democratic majority leader. He wants to eat away at some of
the more annoying kinds of brakes that can be applied to a
measure along its legislative journey.
One example is the procedure for sending a measure to a
conference committee with the House. Under current rules,
unless the Senate consents unanimously to send a measure to
conference, three separate motions can be required to move it
along. This gives one senator the power to hold up a measure
almost indefinitely. Mr. Mitchell would like to reduce the
number of motions to one.
He would also like to limit the debate on a motion to two
hours and count the time consumed by quorum calls against the
debate time of a senator, thus encouraging senators to save
their time for debating the substance of a measure rather
than in obstruction. All of his suggestions seem reasonable,
but his reforms would leave the filibuster essentially
intact.
The Harkin plan, along with some of Mr. Mitchell's
proposals, would go a long way toward making the Senate a
more productive place to conduct the nation's business.
Republicans surely dread the kind of obstructionism they
themselves practiced during the last Congress. Now is the
perfect moment for them to unite with likeminded Democrats to
get rid of an archaic rule that frustrates democracy and
serves no useful purpose.
____
[From the New York Times, March 6, 2005]
The Senate on the Brink
The White House's insistence on choosing only far-right
judicial nominees has already damaged the federal courts. Now
it threatens to do grave harm to the Senate. If Republicans
fulfill their threat to overturn the historic role of the
filibuster in order to ram the Bush administration's nominees
through, they will be inviting all-out warfare and perhaps an
effective shutdown of Congress. The Republicans are claiming
that 51 votes should be enough to win confirmation of the
White House's judicial nominees. This flies in the face of
Senate history. Republicans and Democrats should tone down
their rhetoric, then sit down and negotiate.
President Bush likes to complain about the divisive
atmosphere in Washington. But he has contributed to it
mightily by choosing federal judges from the far right of the
ideological spectrum. He started his second term with a
particularly aggressive move: resubmitting seven nominees
whom the Democrats blocked last year by filibuster.
The Senate has confirmed the vast majority of President
Bush's choices. But Democrats have rightly balked at a
handful. One of the seven renominated judges is William
Myers, a former lobbyist for the mining and ranching
industries who demonstrated at his hearing last week that he
is an antienvironmental extremist who lacks the
evenhandedness necessary to be a federal judge. Another is
Janice Rogers Brown, who has disparaged the New Deal as ``our
socialist revolution.''
To block the nominees, the Democrats' weapon of choice has
been the filibuster, a time-honored Senate procedure that
prevents a bare majority of senators from running roughshod.
Republican leaders now claim that judicial nominees are
entitled to
[[Page S4144]]
an up-or-down vote. This is rank hypocrisy. When the tables
were turned, Republicans filibustered President Bill
Clinton's choice for surgeon general, forcing him to choose
another. And Bill Frist, the Senate majority leader, who now
finds judicial filibusters so offensive, himself joined one
against Richard Paez, a Clinton appeals court nominee.
Yet these very same Republicans are threatening to have
Vice President Dick Cheney rule from the chair that a simple
majority can confirm a judicial nominee rather than the 60
votes necessary to stop a filibuster. This is known as the
``nuclear option'' because in all likelihood it would blow up
the Senate's operations. The Senate does much of its work by
unanimous consent, which keeps things moving along and
prevents ordinary day-to-day business from drowning in
procedural votes. But if Republicans change the filibuster
rules, Democrats could respond by ignoring the tradition of
unanimous consent and making it difficult if not
impossible to get anything done. Arlen Specter, the
Pennsylvania Republican who is chairman of the Judiciary
Committee, has warned that ``the Senate will be in turmoil
and the Judiciary Committee will be hell.''
Despite his party's Senate majority, however, Mr. Frist may
not have the votes to go nuclear. A sizable number of
Republicans--including John McCain, Olympia Snowe, Susan
Collins, Lincoln Chafee and John Warner--could break away.
For them, the value of confirming a few extreme nominees may
be outweighed by the lasting damage to the Senate. Besides,
majorities are temporary, and they may want to filibuster one
day.
There is one way to avert a showdown. The White House
should meet with Senate leaders of both parties and come up
with a list of nominees who will not be filibustered. This
means that Mr. Bush--like Presidents Bill Clinton, Ronald
Reagan and George H.W. Bush before him--would agree to submit
nominees from the broad mainstream of legal thought, with a
commitment to judging cases, not promoting a political
agenda.
The Bush administration likes to call itself
``conservative,'' but there is nothing conservative about
endangering one of the great institutions of American
democracy, the United States Senate, for the sake of an
ideological crusade.
The ACTING PRESIDENT pro tempore. The Senator yields back.
The Senator from Vermont.
Mr. LEAHY. Mr. President, in light of the speech of my distinguished
colleague from Utah, I have a few comments I think I will make about
this issue.
The ACTING PRESIDENT pro tempore. The Senator is recognized.
Mr. LEAHY. What is the parliamentary situation, Mr. President? Are we
in morning business?
The ACTING PRESIDENT pro tempore. Morning business, with a 10-minute
time limit.
Mr. LEAHY. Thank you.
Mr. BENNETT. Mr. President, I ask unanimous consent that the Senator
from Vermont be allowed to speak for more than 10 minutes. I certainly
did. I want to be sure he has the same courtesy.
The ACTING PRESIDENT pro tempore. Is there objection?
Hearing none, it is so ordered.
____________________