[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.

                          ____________________