Congressional Record, Volume 151 Issue 57 (Wednesday, May 4, 2005)

[Congressional Record Volume 151, Number 57 (Wednesday, May 4, 2005)]
[House]
[Pages H2950-H2956]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

IMPENDING CONSTITUTIONAL CRISIS IN U.S. SENATE

The SPEAKER pro tempore. Under the Speaker's announced policy of
January 4, 2005, the gentleman from Iowa (Mr. King) is recognized for
60 minutes as the designee of the majority leader.
Mr. KING of Iowa. Mr. Speaker, I appreciate this opportunity to
address the House. This issue before us in this discussion this
evening, Mr. Speaker, is the issue of an impending constitutional
crisis that I believe is taking place over in the other body, and it is
something that has been dealt with and worked with and rolled around by
the Senate with regard to the confirmation of the President's
appointments to the judicial branch of government. It is an
unprecedented use of the Senate rules with regard to filibusters.
About 2\1/2\ years ago, something like that, this process began, and
it began with a gentleman that was appointed to the D.C. Court of
Appeals. His name was Miguel Estrada, a very, very highly qualified
individual, an immigrant from Honduras, someone who English was his
second language. He learned that, studied hard, and worked his way up
through the process. He was very, very highly qualified.
But as highly qualified as he was, he was also apparently a political
threat to the minority on the other side, Mr. Speaker. So Miguel
Estrada hung on the vine because of this unprecedented utilization of
the Senate rules called filibuster, requiring 60 votes to gain cloture
so that they could go to a vote on the floor of the Senate.
In the history of this country, Mr. Speaker, there has never been,
until these last 2 to 3 years, that rule, the rule of the filibuster
used against judicial nominees when that nominee had a majority of the
votes on the floor of the Senate. The unprecedented use of that hung
Miguel Estrada on the vine for 28 months and 5 days, where he finally
could not stand it any longer. He had to get on with his life. He had
to make a living, had to take care of his family, and so he withdrew
his name.
I think that should have been lesson enough, but what happened was
that the minority in the other body continued with the filibuster
process. They held up a good number of the President's nominees, and I
believe that number was 10. Today, the President has pledged to
reappoint those nominees that were held up in the 108th Congress, and
so now those names are before the Senate again.

[[Page H2951]]

In speaking of this impending constitutional crisis, I would also,
Mr. Speaker, address the situation and ask that we remember the
nomination process for Justice Thomas, and the long, drawn-out grilling
affair that was used on him when he was finally confirmed by the Senate
by a majority vote. That process and what this country went through was
an agonizing thing. It was an embarrassment to the dignity of the
United States that we would bring out all those details. Yet now we
have a jurist who sits there and whose opinions I read, respect, admire
and appreciate. He is a Justice who reads the Constitution, understands
the letter of the Constitution, the intents of the framers, the effect
of the Constitution and its controlling factors within our laws and the
interpretation of congressional intent.

{time} 1800

I appreciate that in a justice, and apparently some of the other side
of the aisle do not, so they have been filibustering this second round
of appointments by our President in this unprecedented effort.
Now it does a number of things. It puts us into this pending
constitutional crisis because we are always one heartbeat away from a
vacancy on the Supreme Court. We are always one heartbeat away from
another national circus and confirmation like we saw with Justice
Thomas. This case, though, it would be even more intense, it would be
more difficult. It would be fought out more intensely, and that one
heartbeat away or one retirement announcement away, one that some of us
do anticipate could happen fairly soon, within the next few weeks or
the next couple of months, if that takes place, these appointees that
are hanging on the vine now that are held up by a Senate rule, a Senate
rule that I believe contravenes the Constitution, will become secondary
issues and the vacancy on the Supreme Court will become the primary
issue.
And if this precedent that they are seeking to establish is allowed
to stand, then a minority in the United States Senate will control who
is nominated and who is confirmed. I will say they will have influence
on who is nominated and they will control who is confirmed for all of
our courts in this land.
We know that it is difficult to get judges confirmed that rule on the
letter of the Constitution, the letter of the law, the intent of the
Framers, and the intent of Congress.
As we sit here with this impending constitutional crisis, this
filibuster over on the Senate side, I would ask the body to take a look
at the Constitution itself. And if we look to the directions that we
have that are framed within the Constitution and ratified by the
people, that would be Article I, section 5, it says, ``Each House may
determine the rules of its proceedings.'' One might read that and
conclude that the Senate can have their filibuster rules and they can
hold up the judicial appointments if they so choose, but the Senate
rules cannot contravene the Constitution. They cannot be outside the
Constitution. We are all bound by the Constitution. We take an oath to
uphold the Constitution of the United States.
I would say that the controlling factor is not that each body, each
House will establish its own rules, but Article II, section 2, where it
says, and I think I should read this for the body, ``He shall have
power,'' meaning the President, ``by and with the advice and consent of
the Senate, to make treaties, provided two-thirds of the Senators
present concur,'' and that is one specific time where we have more than
a simple majority.
There are two others in the Constitution. Continuing to quote, ``and
he shall nominate, and by and with the advice and consent of the
Senate, shall appointment ambassadors, other public ministers and
consuls, judges of the Supreme Court, and all other officers of the
United States, whose appointments are not herein otherwise provided
for, and which shall be established by law.''
So, Mr. Speaker, advise and consent of the Senate is the controlling
constitutional question here. Certainly there is no shortage of advice
from the Senate. We will concede they can have all of the advice they
would like to deliver to our Commander in Chief and chief executive
officer of the United States. We will concede that. They deliver that
consistently. It is the consent portion that I object to because under
consent, all analysis of the definition of consent is to a simple
majority of the United States Senate, not a super majority. When this
Constitution requires a super majority, it defines that in this
Constitution without exception. It is a simple reading of the
Constitution. The United States Senate needs to provide an up or down
vote for these nominees that the President has put before them. They
are qualified. They have a majority vote on the floor of the Senate.
They are being held up by a Senate rule that contravenes the
Constitution and it denies the representation of the people who elected
the majority members of the United States Senate their voice.
That is the essence of this, Mr. Speaker. To get into it further, I
would like to yield to the gentlewoman from North Carolina (Ms. Foxx).
Ms. FOXX. Mr. Speaker, I rise again today to add my voice to the
chorus that is convened in this House Chamber to denounce the grave
disservice that the Senate Democrats are doing to our fellow Americans.
I am pleasantly surprised at how many people at home keep encouraging
me to do all I can to see that the judges that the President has
nominated become confirmed.
When the Framers of our Constitution brilliantly crafted the greatest
form of government on earth, they deliberately installed a detailed
system of checks and balances, and I think the point that the gentleman
from Iowa (Mr. King) has made is very, very important. Where we needed
super majorities, they outlined that in the Constitution. Otherwise,
simple majorities are sufficient.

And under that system, judges and courts are not supposed to
legislate, and legislators are not supposed to make court decisions.
However, by refusing to do their jobs and not even considering judicial
appointments, Democrats in the Senate are making a mockery of the
government our forefathers put their lives on the line to obtain.
Mr. Speaker, just as many of my colleagues and I frequently contest
the dangerous trends and practices of activist judges, we have gathered
this evening to oppose the equally dangerous activities of partisan
activist Democrat senators, or should I say, inactive senators.
As any student of American government knows, it is the job of the
President to nominate fellow Americans to serve as Federal judges, and
it is the job of the Senate to approve or reject those nominations. It
is a simple system that guarantees proper checks and balances in the
manner our forefathers envisioned. Over the past 2 years, though,
Senate Democrats have exploited parliamentary loopholes to prevent the
Senate from voting up or down on many of President Bush's highly
qualified nominees. They are hiding behind the Senate filibuster to
judicial nominees who have the support of the majority of the Senate,
something which has never been done before in American history. They
are not asking for time to debate these nominees, they are not going to
the American people and explaining why they oppose them, they are not
even attempting to persuade their Republican colleagues to vote no. No,
they are just refusing to vote, and that is wrong.
I stand for this simple proposition that every judicial nominee of
the President deserves a fair yes or no vote. If Democrats do not like
the President's nominees, they can vote no; but to avoid voting all
together is a dangerous disservice to our Nation.
I urge Democrats in the Senate to stop playing politics with our
justice system and to start doing their job. I hope the Democrats in
the Senate are using their time off this week to contemplate their
recklessly irresponsible actions. It is time to put partisanship aside,
like many of my sensible colleagues have done in the House.
With no real agenda coming from their leadership, constructive
Democrats have found a legislative home with House Republicans this
year. As the Republican Party has made great strides for our Nation
during the first few months of this Congress, many House Democrats have
joined the majority in working for a better America.
Mr. Speaker, 73 Democrats voted to pass bankruptcy reform; 50
Democrats

[[Page H2952]]

voted for class action reform; 42 Democrats voted for the Real ID Act;
and 122 Democrats voted for Continuity in Government; and 42 Democrats
voted to repeal the death tax.
Mr. Speaker, the Republican Party is accomplishing great things for
America every day. Many House Democrats have joined in that progress. I
hope the Democrats in the Senate will put their partisan, irresponsible
instincts aside and do their job when they return to Washington. Stop
the filibuster on judicial nominees and put them to a vote.
Mr. KING of Iowa. Mr. Speaker, I thank the gentlewoman from North
Carolina (Ms. Foxx) for her contribution to this cause.
Mr. Speaker, I yield to the gentleman from Utah (Mr. Bishop).
Mr. BISHOP of Utah. Mr. Speaker, I thank the gentleman from Iowa (Mr.
King) for yielding me this time.
Mr. Speaker, in the late 1880s, House Speaker Thomas Brackett Reed
was easily one of the most powerful speakers that has ever served in
this body, and probably one of the most sarcastic speakers that ever
served. Anyone who can be asked if he is going to attend the funeral of
one of his political enemies and have the presence of mind to say,
``No, but I approve of it,'' one has to like that kind of a speaker.
One day Speaker Thomas Brackett Reed returned from watching
proceedings in the Senate, and looked at his colleagues sitting in this
Chamber and told them to thank God the House is not a deliberative
body. I would never deign to give advice, or for the sake of the
parliamentarian, to make a value judgment as to the actions of our
brethren, and sisters, over in the Senate, but as they contemplate what
is popularly called the ``Constitution option,'' or the Byrd option, or
the nuclear option, it would be useful to briefly review the history of
the House.
No Child Left Behind may not think history significant enough to be
tested, but an understanding of congressional history may indeed smooth
the troubled times ahead.
Historian David McCullough noted that ``Congress rolls on like a
river, always there and always changing.'' So for all the fealty we
give to traditions of each body, each tradition of both the House and
the Senate had a beginning point when the body made a conscious
decision to implement a tactical course of action. As McCullough
intimated, though we do not like to admit it, each body is constantly
making those course changes. The same principle applies to filibusters.

A filibuster is not a Constitution doctrine but a tactical course of
action, and the concept of the filibuster has often been used for noble
causes. During the 1990s, the Senate engaged in a filibuster of what I
saw as a devastating attack upon the economy of the west based upon
another administration's Federal land policies. I applauded them for
that effort, but what can be used for good can also be used to abuse.
And when that abuse becomes egregious, commonplace, and detrimental for
the overall well-being of this Nation, changes should then be
considered.
The Senate has changed its practices on filibusters several times
with this tactic. They did so in 1917 and again in the 1950s, and again
in the mid-1970s. And as the Senate considers whether to make an
adjustment again, they should review the House's tradition with a
tactic that was both similar and yet the exact opposite of the Senate
filibuster.
The Senate developed the filibuster, a tactic designed for the
minority to obstruct and frustrate the will of the majority by talking.
But in the 1800s, the House had an Act called the disappearing
majority. It was designed by the minority to obstruct and frustrate the
will of the majority by silence.
In the early 1800s, former President John Quincy Adams, the only
person to leave the White House and return here to this House body,
refused to vote on a pro-slavery amendment. When his name was called,
he just sat. Others joined him until there were not enough votes cast
to make a quorum and the motion failed. There would be few who would
criticize him for the nobility of that particular action; but
unfortunately, that tactic caught on and by the speakership of Thomas
Reed was being abused in an effort to frustrate any positive action in
this body. On a quorum call, those people would simply refuse to
answer, and with a lack of a quorum, all business would be brought to a
screeching halt; the same goal as a filibuster, just a different
approach.
This was common in the House practices in the 1800s, and the refusal
to allow a vote resulted in minority government. As Speaker Reed said
at the time, ``If the majority does not govern, the minority will; and
if you think the tyranny of the majority is hard, the tyranny of the
minority is unendurable.'' The rules then, he said, ought to be
arranged to facilitate action of the majority. The Speaker made up his
mind if, in his words, ``political life consisted of sitting helplessly
in the Chair and seeing the majority powerless to pass legislation,''
he had had enough of it and was ready to step down.
He did not step down. Instead, he decided to step up to the
challenge. Thus, he instituted a policy of counting as present Members
in this Chamber, whether they were speaking or voiceless, and it led to
a wonderful exchange between the Speaker and a Democrat Member from
Kentucky, James McCreary. The outraged McCreary demanded to know what
parliamentary right the Speaker had to declare him present. And Reed
simply responded, ``The Chair is making a statement of fact that the
gentleman from Kentucky is present. Does he deny it?''
Well, the precedent for the tactic was broken and even though the
minority took this issue, ironically enough, to the Supreme Court in
1892, the Supreme Court upheld the position of the Speaker.
The House then evolved into a body with centralized or majoritarian
authority, while the Senate remained decentralized with minority
authority. These tactics, all of them, are not ordained by the
Constitution, they are traditions of the Members of each body. House
historians Oleszek and Sachs once wrote, ``The forces of centralization
and decentralization are constantly in play, and they regularly adjust
and are reconfigured in response to new conditions and events.''
In less scholarly terms, whatever has been born in a noble cause can
degenerate into abuse; and if the abuse of that tactic harms the Nation
in such situations, Congress should make changes. They should adjust.

{time} 1815

The House did in the 1800s. The Senate would do well to learn from
our experience. As McCullough might be saying right now, the river is
ready to change.
Mr. KING of Iowa. I thank the gentleman from Utah. It would be
interesting to have heard the gentleman say, no, I am not here and see
that in the Record. That is a perspective that I appreciate being able
to hear here tonight. At this moment I would also like to yield to a
gentleman who has enormous experience in working with the judicial
branch of government, former attorney general of the State of
California and now a Congressman again, the gentleman from California
(Mr. Daniel E. Lungren).
Mr. LUNGREN of California. I thank the gentleman for recognizing me,
I thank the gentleman from Iowa for having this time, and I thank the
other Members of this body for entering into this discussion here this
evening.
In my former life as the attorney general of the State of California,
I was privileged to be on the confirmation panels for those members of
the bench who were nominated to appellate positions or the Supreme
Court of the State of California. In that regard, it was a three-person
panel of confirmation requiring a majority vote, a two-thirds vote
because there were three of us on that panel. During that time, I had
the opportunity to investigate, review, speak with and have public
hearings and then vote on more than a score, I believe, of nominees of
the Governor of the State of California during the 8 years I served as
the attorney general.
During that time, we were required to look at their record to see
whether or not they were qualified to serve in their positions, but
never did we misunderstand the responsibility we had, which was not to
nominate them in the first place but, rather, review their nomination
after it was made by the Governor of the State of California. While
that is not an absolute analogy,

[[Page H2953]]

it certainly is an apt analogy to the responsibility that the United
States Senate has under the Constitution of the United States to give
advice and consent to the President of the United States upon his
nomination of individuals to serve in the various courts in the Federal
system.
Tonight I would like to at least address briefly the process that has
developed in the Senate and the impact it has had on the nomination of
a particular individual from my home State of California. Her name is
Janice Rogers Brown. She is and has served for a significant period of
time as a member of the California Supreme Court. Prior to that, she
was on the Third District Court of Appeals for the State of California.
She has been nominated by the President of the United States to serve
on the District of Columbia Circuit Court of Appeals.
The gravamen of my observation is that the failure of the Senate to
allow her nomination to come to the floor thus far denies her, but more
importantly the American people, an opportunity to review her
qualifications, to review her personal history and to make a
determination as to whether she is a worthy individual to serve on the
District of Columbia Circuit Court of Appeals.
As a matter of fact, it is my observation that in the absence of the
opportunity to be voted up or voted down, to be subjected to a debate
on the floor of the United States Senate in the context of such a
consideration, that in fact the Janice Rogers Brown that I know in the
State of California, not only because of my personal experience with
her but because of my prior service in making a determination as to
whether or not she was worthy to serve on the California appeals court
and the California Supreme Court, that that person that I know is not
the person that I hear discussed, the person that I hear characterized,
or the person that I see presented in the press and in other places.
Her personal story is nothing short of inspirational. Janice Rogers
Brown comes from a family of Alabama sharecroppers. She was born and
grew up at a time in which there was still official discrimination in
that State. She was one of those people who suffered as the result of
official and unofficial discrimination in that State. Yet she rose from
those humble beginnings to receive her law degree from UCLA in 1977.
She served as a deputy attorney general in the California Department of
Justice from 1979 to 1987.
When I was elected the attorney general of the State of California
and took office in January of 1991, I asked a number of people who had
previously served in the attorney general's office for recommendations
of people who should serve at the top level of the Department of
Justice in my administration. Her name was always offered by those who
had had experience in that office.
I did talk with her. I did offer her the opportunity to serve as the
head of the civil division in the California Department of Justice.
That is an office that has over 1,000 attorneys in it, 5,000 employees,
I believe one of the finest law offices in the country. It probably
presents itself in argument before the U.S. Supreme Court more than any
other office outside of the U.S. Department of Justice, and I very much
believed that she would be someone who would bring tremendous esteem to
our office.
Unfortunately, Pete Wilson, the former United States Senator, then
Governor of the State of California, was successful in talking her into
accepting his offer to be the legal affairs secretary to him in his
administration. During that period of time that she served as legal
affairs secretary, I was the attorney general of California and worked
with her on many knotty legal issues. I found her to always be
professional, to always be measured in her tones, to always look to the
law first, and to give the best advice that she possibly could.
Later, the Governor nominated her to serve as justice on the Third
District Court of Appeals, and we listened to the testimony of those
who had worked with her, those who had seen her close at hand in the
office of the Governor, in the attorney general's office and in private
practice; and there was such a strong recommendation of those who had
worked with her that it was easy to vote for her confirmation to the
Third District Court of Appeals for the State of California.

Several years later, she was the first African American woman to be
nominated to serve on the California Supreme Court.
During the confirmation hearings that we had, I had the opportunity
to review the opinions that she had written while on the appellate
court. Interestingly enough, every single member of the appellate court
on which she served recommended her confirmation to the California
Supreme Court. I recall at the time that the chief justice of the
California Supreme Court, Justice Ron George, surprised the public
hearing that we had by actually putting on the table every single
written opinion that she had done and advising everybody there that he
had read every opinion she had written at that point in time, not once
but twice, and rendering his opinion that she was well qualified to
serve on the California Supreme Court.
I can recall of those who opposed her, some said she was not serious
enough and one of the things they cited was a particular case. So I
went to that case to see their suggestion that she was not serious
enough, and I found out that not only is she a legal scholar but she is
a well-read individual and someone who understands the culture of
America very well, because she had footnoted a routine done by George
Burns and Gracie Allen, and that routine that she footnoted was right
on point but made the point with humor.
I must say that having been involved in the law for 30-some-plus
years, having served in this body on the Judiciary Committee for now 11
years, having served as attorney general for 8 years, and been involved
in private practice in the other years, it is refreshing to find
members of the court who actually believe it is appropriate
occasionally to use humor to make a point.
It should be noted that Justice Brown was required to go before the
people of the State of California for confirmation in a direct vote of
the people and that in that she received over 75 percent of the vote of
the people of California who had the opportunity to review her
performance while serving on the California Supreme Court.
I have seen some criticism of some of her opinions. One cited in the
other body has to do with a case coming out of the city of San Jose,
and it had to do with whether or not the city of San Jose's ordinance
with respect to hiring or contracting policies had run afoul of a new
section of the California Constitution which was as the result of a
direct vote of the people in Proposition 209. Proposition 209 entered
the vast area of affirmative action and said in that vast area, we
believe it is inappropriate to use racial quotas and set-asides. It did
not condemn all affirmative action, but specifically said that the use
of race for purposes of contracting or hiring by State government or
its political subdivisions was inappropriate when it came by way of
quotas or set-asides. That was a vote of the people.
In the case brought by some who challenged the ordinance in the city
of San Jose, she wrote the majority opinion. Some have now criticized
her for that opinion, suggesting, as I have heard, that she is, quote-
unquote, out of the mainstream.
Well, that decision was a unanimous decision of the Supreme Court of
the State of California: 7 to 0. If she is out of the mainstream, the
entire Supreme Court of the State of California is, and the people of
California are, out of the mainstream as defined by those who would
criticize her.
The interesting thing is that she is a prolific writer in her
capacity as a jurist. In fact, in the year 2001 and the year 2002, she
authored more majority opinions than anyone else on the California
Supreme Court. As I mentioned before, her opinions reflect well-
reasoned analysis, a prosaic quality, as well as humor. In upholding a
drug-testing program, she observed, ``That is life. Sometimes beauty is
fierce, love is tough, and freedom is painful.'' Some have suggested
that such comments are inappropriate. I would suggest that such
comments are extremely appropriate because they are couched in the
reality of life as well as the reality of the law.
I have talked with those people who served with her directly while
she

[[Page H2954]]

served the Governor of the State of California, those who saw her on an
everyday basis, those who asked her legal advice, those who asked her
positions. Every single one of them will tell you that she is a
measured individual, she is a well-thought-out individual, she is one
who will give you what the law is; and if you ask her opinion, she will
give you that as well.
If you look at her opinions, they are the opinions of someone who
understands what I believe jurists ought to understand, that their
obligation is to interpret the law, not make the law. Their obligation
is to attempt to divine what the intent of the legislators was at the
time they passed the law, and similarly what the intent of the framers
of the Constitution meant at the time they wrote the Constitution.
Because, simply put, this is not a game. We have an obligation in a
democracy to be fair with the people who are members of that democracy,
the citizenry. And if in fact those who are on the bench speak in some
sort of Sanskrit, speak in some sort of code such that when they say
one thing that is understood in the common utterances one way but they
mean in their legalese something else altogether, that somehow that is
the way to legislate, I would suggest that is the wrong way to
legislate because it does not give the members of our society a fair
chance at ordering their lives in accordance with the laws.
That is something we have not talked about enough here. When we give
full flight of fancy to members of the court under the Federal system,
what we are doing is saying that the people should not have the
opportunity to fully understand the democracy in which they
participate, that the people somehow are incapable of governing
themselves and that somehow all the important decisions of life have to
be decided on a, quote-unquote, constitutional basis as opposed to
constitutional questions being the exception.
I would suggest that it is also not possible to pigeonhole Justice
Brown into a stereotype or ideological mold. She has surprised some in
the law enforcement community with her steadfast defense of individual
rights. For example, in a California case called People v. Woods, she
authored a lone dissent in a case which upheld a prosecution of two
defendants for drug offenses based on evidence seized without a warrant
from a residence defendants shared with a woman subject to a probation
search condition.

{time} 1830

In this dissent she observed, ``In appending the Bill of Rights to
the Constitution, the Framers sought to protect individuals against
government excess. High on that pantheon was the fourth amendment
guarantee against unreasonable searches and seizures, which generally
forbids such actions except pursuant to warrant issued upon probable
cause by a neutral magistrate.'' This hardly sounds like a caricature
of the right wing gargoyle which Justice Brown's critics have tried to
create.
Recently her critics have heaped criticism upon her for reference to
the cultural wars in a speech in which she acknowledged the secular
assault on religious freedom. First of all, everyone from Pat W.
Buchanan to Tammy Bruce has acknowledged that we are in the midst of a
titanic cultural struggle. As a matter of fact, if we looked at the
recent writings and utterances of James Carville, he has suggested that
maybe his party ought to pay more attention to the cultural argument
that is taking place, the cultural battle that is taking place. In
light of the fact that cases relating to the removal of reference to
God and the Pledge of Allegiance, which happened to come out of my
district, by the way, and the two Ten Commandment cases currently
before the United States Supreme Court, cases in courts around the land
involving the question of the continued definition of marriage, Justice
Brown would seem to be merely stating the obvious.
In fact, cities and counties across Southern California are being
coerced by lawsuits and threats of lawsuits to remove minuscule
depictions of the cross from city and county seals. Perhaps we ought to
pretend that the California missions never existed, and perhaps we will
be required soon to change the names of San Francisco, San Jose, and
Sacramento to more secular terms.
My point this evening is a simple one. That which we are observing in
the Senate is denying the American people an opportunity to review the
nominees of the President of the United States. It is my belief that
Janice Brown should be so presented to the United States Senate for
consideration. She is the American story. From the humblest background,
she has risen to the highest court in the most populous State in the
Nation. She subscribes to a judicial philosophy considered radical in
some circles, that the text of the Constitution actually means
something. She holds to a consistent enforcement of individual rights
that is not result oriented.
In my judgment, these are the qualities of a true jurist and is why
she should be confirmed to sit on the DC Circuit Court of Appeals, and
at very least, that her story be told in open debate on the floor of
the United States Senate in the context of the consideration of her
nomination by the whole body.
Mr. KING of Iowa. Mr. Speaker, reclaiming my time, I thank the
gentleman from California for his comments, and I appreciate more
insight into Justice Brown.
I also want to say that I looked to the gentleman from California for
his viewpoint on the law and on the Constitution because of the
experience he has and the fact that he had the opportunity to view her
from up close and share that with us tonight.
We are asking for an up or down vote for Janice Brown and the others
in the Senate.
And I yield to the gentleman from Indiana (Mr. Pence), the chairman
of the Republican Study Committee.
Mr. PENCE. Mr. Speaker, I thank the gentleman for yielding to me.
I thank the gentleman from Iowa for his stalwart and courageous and
unbending commitment to an independent judiciary and for calling this
forum tonight, which is really about this body speaking of the
obligations of the Congress as a whole to do what the American people
sent us here to do, and that is, in very simple terms, Mr. Speaker, we
vote for a living. And I am going to be in Muncie, Indiana on Friday.
We make a lot of car parts there. We have got a lot of corn and soybean
fields in Eastern Indiana, where they grow things for a living, they
make things for a living. We actually just vote for a living here. Any
other way one dresses it up, there are a lot of other aspects of our
job, but when the bells go off, legislators in the House and the Senate
vote. That is what taxpayers call us to do. This is not a debating
society, and the effort by our colleagues with the constitutional
option as it is rightly observed in the Congress is an effort to
reestablish a 214-year tradition in the Senate of either approving or
disapproving the President's nominations by a simple majority vote. As
many of my constituents love to say, this is not really rocket science.
I think for many Americans, the central question of the moment is can
Mr. Smith still go to Washington? I mean, we could get lost in Article
I, section 5 of the Constitution, and determining the rules and
proceedings and all of the gobbledegook, but in my heart, I think many
Americans just ask the question, can Jimmy Stewart still go to the
floor of the United States Senate and expose the corrupt dam project?
I really believe it comes down to that. With a lot of the hyperbole
and the hyper-rhetoric about the ending of filibusters and the ending
of democracy and great traditions in the Senate, I have got to think,
Mr. Speaker, that many Americans looking in are still asking that
question, can Mr. Smith still go to Washington? And I think it is
absolutely imperative that we say tonight an emphatic yes, Mr. Smith
can still go to Washington, that specifically all the duly-elected
majority of the United States Senate seeks to do is to eliminate
filibusters on judicial nominations, which, I will argue is
unprecedented in the Senate to begin with. It has never been accepted.
And recently, in the last 5 years, by prominent members of the
Democratic then majority of the Senate, people like Senator Teddy
Kennedy, people like Senator Patrick Leahy, people like Senator Tom
Daschle, decried the use of the filibuster on judicial nominations. The
filibuster that Jimmy Stewart used in the famous movie ``Mr.

[[Page H2955]]

Smith Goes to Washington'' was the legislative filibuster, the ability
to go to the floor and to use the rules of the Senate to tie the
institution up, to use a minority power in the institution to expose
truth. And the reality is that that remains untouched and ever should
it remain untouched, in this legislator's judgment. It is an essential
element of the power of the most deliberative body in the world.

But that being said, Mr. Speaker, the introduction in recent years of
filibusters on judicial nominations of the President of the United
States is unprecedented, and it is precisely that which the majority of
the United States Senate seeks to bring to an end.
And let me just give a couple of quotes. There are those who say that
filibusters on judicial nominations are a great part of the Senate
tradition and that, indeed, by their own rhetoric, Democrats
acknowledge this not to be the case. Senator Patrick Leahy, and I will
quote from the Congressional Record 18 June 1998, who said, ``I would
object and fight against any filibuster on a judge, whether it is
somebody I opposed or supported; that I felt the Senate should do its
duty.'' Senator Patrick Leahy.
Senator Teddy Kennedy in 1998, also in the Congressional Record in
March, said, ``We owe it to Americans across the country to give these
nominees a vote. If our Republican colleagues do not like them, vote
against them. But give them a vote.''
And Senator Tom Daschle, then I believe the majority leader of the
U.S. Senate, of Clinton nominees to the United States Senate, said,
``The Constitution is straightforward about the few instances in which
more than a majority of Congress must vote,'' and he names them: ``A
veto override, a treaty, a finding of guilt in an impeachment
proceeding.'' But he said, ``Every other action of Congress is taken by
majority vote.'' And he went on to say, this is Tom Daschle now: ``The
Founders debated the idea of requiring more than a majority . . . They
concluded that putting such immense powers in the hands of the minority
ran against the democratic principle. Democracy means majority rule,
not majority gridlock.''
Tom Daschle, Senator Patrick Leahy, Senator Ted Kennedy all
acknowledging the fact during the Clinton administration, that
filibusters have never been a part nor should they ever be a part of
the deliberation of the Senate over presidential judicial nominees.
I say as I close, and as I began, Congress is not a debating society.
We vote for a living. And what we call on our colleagues to do, as much
as our rules permit us, and I believe the American people that returned
a widening Republican majority in the United States Senate in the last
election and returned this President to office by the largest margin in
American history insist that the Senate do its duty, that the Senate
vote up or down, to quote Senator Ted Kennedy, up or down on the
President's nominees to the bench.
Mr. KING of Iowa. Mr. Speaker, reclaiming my time, I thank the
gentleman from Indiana for his comments.
Mr. Speaker, I now yield to the gentleman from Arizona (Mr. Franks).
Mr. FRANKS of Arizona. Mr. Speaker, I thank the gentleman from Iowa
(Mr. King) for yielding to me.
Mr. Speaker, our colleagues in the Senate in the coming days will
approach a crossroads that will forever impact the future of this
Republic. They will choose the road that will restore the
constitutional balance of power that our Founders so carefully
constructed, or they will travel the path that rewards a shameless
behavior that has deliberately injured this delicate balance by
transferring the executive power of judicial appointment to the
legislative minority.
The Constitution's advice and consent has been twisted into mockery.
Men and women of outstanding character have come forth as judicial
nominees to be undeservedly maligned, smeared, and ridiculed, and then
left in nominations limbo by this unprecedented, unconstitutional, and
outrageous judicial filibuster.
Mr. Speaker, this is a show of disregard and contempt towards the
world's flagship of freedom and toward her people and toward the time-
honored principles of the United States Senate.
We will recapture the civility that once presided over judicial
appointments, or we will forever surrender what Abraham Lincoln called
``the angels of our better nature'' to a bitterly partisan tactic that
threatens the constitutional prerogative of the President to appoint
good, decent, and honorable men and women to the Federal judiciary.
Advice and consent is clearly written in the United States
Constitution. This judicial filibuster to prevent fair up or down votes
is neither advice nor consent, and it is not in the United States
Constitution. Never before 2003, in 214 years of U.S. Senate
deliberations, has any judicial nomination with clear majority support
been denied a fair up or down vote. And yet the minority would have the
public believe that the majority is the one trying to change the rules
here. They call it the ``nuclear option.'' It is the Senate minority
that has launched the unprecedented ``nuclear option'' by devastating
the constitutionally required just consideration of judicial nominees
by the President of the United States.
What the majority seeks is the ``constitutional option'' that is in
total keeping with 214 years of the rules, traditions, and dignity of
the United States Senate. Senate Democrats have arrogantly and openly
threatened to shut down the operations of this government if
Republicans insist on the constitutional option.
Mr. Speaker, far better it is to let the Democrats shut down this
government temporarily than it is to allow them to shut down this
Republic permanently, because in this critical struggle for the future
of this Republic, one of two things will happen: Either the time-
honored tested provision of advice and consent written in the
Constitution will prevail or unprecedented judicial filibuster and
obstructionism will take its place and become the tragic legacy of
these days.
The people who have placed us here with their votes have entrusted us
to act in principle and for the common good. They are exhausted by the
mercenary partisanship of these attempts to destroy the reputations of
decent men and women. This destructive behavior has so insidiously
invaded every aspect of our political process that it will destroy this
Republic if we foolishly continue to reward it.
Mr. Speaker, I should not have to remind my Republican colleagues
that the people who have entrusted us with this majority have spoken
with resounding voice on the issue of judicial appointments. They hear
it and I hear it everywhere I go.

{time} 1845

The people of America have a profound sense of justice and fair play;
and they want a fair up-or-down vote on judges. Somehow, the people
understand how important this really is, and they understand it is
really about the Constitution itself. They seem to innately embrace the
message of Daniel Webster when he said those magnificent words: ``Hold
on, my friends, to the Constitution and to the Republic for which it
stands, for miracles do not cluster. And what has happened once in
6,000 years may never happen again. So hold on to the Constitution, for
if the American Constitution should fall, there will be anarchy
throughout the world.''
Mr. Speaker, the stakes could not be higher, and this Republic hangs
in the balance. We have a once-in-a-lifetime opportunity to pass along
the miracle of the American constitutional republic to any future
generations that are yet to be.
We owe it to the American people, we owe it to ourselves, we owe it
to those future generations, and we owe it to that vision of human
freedom our Founding Fathers risked their fortunes, their lives, and
their sacred honor to entrust to us.
We must not fail.
Mr. KING of Iowa. Mr. Speaker, I thank the gentleman from Arizona for
his eloquence, for his understanding of the Constitution, and for his
willingness to share that with us here tonight. I yield to the
gentleman from Missouri (Mr. Akin).
Mr. AKIN. Mr. Speaker, the Constitution calls upon the other body to
advise and give consent to judicial nominations. For 214 years, they
have done this effectively. Yet, today, we see what is becoming a
constitutional crisis which is completely unprecedented,

[[Page H2956]]

and that is the use of the filibuster to basically stop the
confirmation process both for circuit court and Supreme Court
nominations.
In light of this mounting problem, it may become necessary to restore
the confirmation process by adjusting the rules in the Senate. Of
course, the Constitution gives the Senate the right and the authority
to govern itself and has set up its own rulemaking. In fact, the
Democrats in the Senate, when they were in the majority, advocated the
total removal of the filibuster in 1995, and that was voted for by
Senators Boxer, Harkin, and Kennedy, and some others. So there has been
discussion on this subject in the past.
But we are not suggesting the removal of the filibuster, not at all.
But we do not stand for the complete filibuster of judicial
appointments. Rather, the so-called Constitutional Option actually is a
very narrow rule change, and it affects only the Supreme Court and
circuit court nominees.
So, once again, we come back to where we have been for 214 years, and
that is the fact that never, never in the history of this Republic has
it ever happened that a judge that was supported by a majority was
denied the right to have a simple vote on whether or not they could
serve. Never in our history has a nominee with clear majority support
failed to receive a vote in the U.S. Senate. This is our long-standing
tradition.
We believe that at least a majority should have the right to cast a
vote on whether or not we will seat a judge, and that is all that we
are talking about. It is an essential tenet of our whole representative
form of government, the idea that there should not be some tyranny
which makes it so nobody can even have a chance to vote. And that is
certainly a new use of the filibuster and something which threatens to
shut down our entire confirmation process for the courts.
We have never embraced a system in which it requires 60 votes to
confirm a judge, and we should not be doing that now. With this change,
Mr. Smith can still come to Washington, he can still filibuster
legislation, but our constitutional call to confirm judges will
continue so that the work of the judiciary may go on without the
obstruction that we have been seeing in the last several years.
Mr. KING of Iowa. Mr. Speaker, I thank the gentleman for his
contribution to this important subject matter that is before us here.
It is actually pending before the United States Senate.
A couple of pieces that I think came out in this discussion we have
had tonight has been that even though we are asking Mr. Frist to
utilize the Constitutional Option and to call for a rule decision that
would be that in the case of a constitutional issue in the United
States Senate, when the confirmation of judges are before the United
States Senate, a simple majority vote will have to prevail. It is not
unprecedented in the Senate rules. What it would do is it would set
aside the filibuster option with regard to judicial appointments.
There is no filibuster right now for appropriations bills for obvious
reasons, because if you allowed a single Senator or a minority of the
Senators to hold up the spending, then anyone could hold the
appropriations process hostage to their particular agenda and their
particular wishes. Those rules reflect the reason for suspending
filibuster for the purposes of appropriations.

Certainly, getting judges on the bench is as high a standard and
something that should allow for a simple majority vote over in the
Senate. If he exercises that option and the majority leader makes a
decision that they will have a vote on the rule, the rule can be
amended on the floor of the Senate with a simple majority vote. So if
51 Senators say, let us change the rule to a simple majority for
confirmation of judges, it is entirely within the Constitution. In
fact, it brings them back to the Constitution which says advice and
consent. Consent is defined as a simple majority, not a supermajority,
which is what prevails today.
I happen to have heard in the news media last week, or else early
this week, the former Governor of New York was on the media saying, and
that would be Governor Cuomo, saying that James Madison said the
Constitution is here to protect the rights of the minority, meaning the
minority in the United States Senate, from the tyranny of the majority.
Well, this is not the case. I will say, yes, the Constitution protects
those rights; it defines those rights. But what we have right now is
the tyranny of the minority in the United States Senate setting policy
and determining who will get through the confirmation process for
everyone in the United States of America.
So Mr. Smith, after this rule is changed, will still go to
Washington, we will still protect the rights of the minority by our
Constitution, but we will then prevent the minority, who have been
elected to serve in a capacity in the United States Senate, will allow
them their rights, will let the people who elected the majority in the
Senate make the decisions on who gets confirmed to the courts in this
land.
There is far more at stake here than these judges that are before the
court today. It is the impending nomination to the Supreme Court that
is at stake here. The hostages that are sitting over there right now in
the Senate include the energy bill, the transportation, the road bill,
other pieces of legislation that we passed over there from the House,
all sit there today waiting to be bottled up in a potential filibuster
that has to do with the threat that the process will be shut down in
the Senate.
Well, we know when somebody shuts down this legislative body by using
the rules, however they might use the rules, they have paid a price at
the ballot box. There are more Senators over there today on the
majority side than there were before the last election because the
public does not want obstruction. They want progress, they want an up-
or-down vote for these justices consistent with the Constitution, and
that is a simple majority.
My junior Senator from the State of Iowa is one of those people who
has taken a position and actually led an initiative back in 1995 to
change the rules in the Senate so there would not be a filibuster of
the justices. That was his opinion then; I am asking that it be his
opinion today. In fact, his wife was before the Iowa Senate to be
confirmed to a position there before the Board of Regents. If those
senators had determined, my former colleagues, my alma mater had
determined they wanted to use their rights to filibuster to hold that
up, the junior Senator from Iowa's wife would not be sitting on the
Board of Regents today like she is.
We want to have the voice of the people in this country heard. We
want to stay consistent with the Constitution. We want an up-or-down
vote. It is a simple process, a simple concept, and something that, in
214 years of the United States, has not been utilized, the filibuster,
to hold up these judicial appointments.
So, Mr. Speaker, I would ask this: let the people know that what we
are asking, the Constitutional Option, the up-or-down vote in the
United States Senate, let the people know that it is their voice that
will be heard when that option is exercised. We ask for that action
early in the United States Senate so that it does not bottleneck
legislation that is there; and we ask for this decision before such
time as we get into a real bare-knuckles brawl over a Supreme Court
Justice that might well be nominated within the next few months.
So with that, Mr. Speaker, I appreciate the opportunity to speak
before this House.

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