[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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