Congressional Record, Volume 151 Issue 59 (Monday, May 9, 2005)

[Congressional Record Volume 151, Number 59 (Monday, May 9, 2005)]
[Senate]
[Pages S4638-S4639]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PROTECTING THE INDEPENDENCE OF THE COURTS

Mr. BAUCUS. Mr. President, inscribed on the Justice Department
building are the words: ``No free government can survive that is not
based on the supremacy of law.''
Aristotle said: ``Where the laws are not supreme, there demagogues
spring up.''
And Balzac wrote: ``The soul of liberty is love of law.''
It is a free and independent judiciary that ensures the supremacy of
law. It is a free and independent judiciary that guards against the
demagogue. It is a free and independent judiciary that protects the
soul of liberty.
As Montesquieu wrote in The Spirit of the Laws: ``There is no liberty
if the judiciary power be not separated from the legislative and the
executive.''
And as George Washington wrote to John Jay in 1789, when Washington
invited Jay to be Chief Justice: ``The Supreme Court must be recognized
as the keystone of our political fabric.''
The effort by some to abridge the Senate's role in the confirmation
of judges is nothing less than an effort to diminish the independence
of the judiciary. That is the bottom line.
The Senate's rules and its paramount value of unlimited debate are
central to preserving that independence of the judiciary. The Senate's
involvement in the confirmation of judges helps to ensure that nominees
have the support of a broad political consensus. The Senate's
involvement helps to ensure that the President cannot appoint extreme
nominees. The Senate's involvement helps to ensure that judges are more
independent.
The Framers wanted the courts to be an independent branch of
government, helping to exercise the Constitution's intricate system of
checks and balances. The Senate's involvement in the confirmation of
judges helps to ensure that the judiciary can be that more independent
branch. And that independence of the judiciary, in turn, helps to
ensure the protection of personal rights and liberties.
Just witness the Bill of Rights and the Constitution and the degree
to which the court protects the Bill of Rights against improper
encroachment by the legislative branch and in some cases by the
executive branch.
The current fight over allowing the President to more easily gain
confirmation of Supreme Court Justices and Appellate Court judges
recalls another such effort by a President to affect the independence
of the judiciary. It was in 1937, when President Franklin Roosevelt
tried to pack the Supreme Court.
Roosevelt's effort to pack the Court failed in 1937 because enough
Senators from his own party stood up to their President. They stood up
for the Constitution that they loved.
One of those Senators was Montana's Burton K. Wheeler.
Until then, Burt Wheeler, a Democrat, had been an ardent champion of
New Deal causes. But that changed with Roosevelt's effort to pack the
Court.
In his book about Lyndon Johnson, Master of the Senate, the historian
Robert Caro recounts what happened:

Burton K. Wheeler of Montana, long a leader in Senate
fights for liberal causes, was coming to see that the Court
plan implied an alteration in the whole balance of
governmental power in favor of the White House. What, he
wondered, would come next? He refused to fight for this
cause. Wheeler was a senator other senators followed.
Roosevelt sent his aide Thomas G. Corcoran to him with an
offer. Its details would be a matter of dispute; at a very
minimum, Wheeler would be allowed to give `advice' on the
nominations of two of the six justices. Wheeler had accepted
other offers from Corcoran before, but he refused to do so on
the Court-packing plan. I'm going to fight it with everything
I've got,' he told Corcoran. The President hurriedly invited
his old friend Burt to dine at the White House that evening;
the Senator replied that the President had better `save the
plate for someone who persuaded more easily'.

And on the Senate floor, Senator Wheeler said:

I am saying to the Senator now that those connected with
the administration have said that they wanted six men upon
the Supreme Court whom they could trust, that they wanted men
on the Court who would decide cases as they wanted them to be
decided. That is the issue. It can be camouflaged as much as
one wants to attempt to camouflage it, but the truth is that
it is impossible to get away from the fact that this is a
proposal to make the Supreme Court of the United States
subservient to the executive branch of government.

[[Page S4639]]

Similar words could be said about the current effort to abridge the
Senate's involvement in securing the independence of the Court. There
are those connected with the current effort who want people ``on the
Court who would decide cases as they want them to be decided.'' And it
is impossible to deny that the effect of the current proposal would be
``to make the Supreme Court of the United States [more] subservient to
the executive branch of government.''
There is no doubt about it. That is the intent. That is the result.
On the Senate floor, Senator Wheeler also said:
I say the step proposed is one of the most dangerous ever
suggested, and it will set the most dangerous precedent of
which I can conceive. You can bring political pressure to
bear on me, you can say, `You you have to go along because of
the fact that the administration wants it.' You can say that
the privilege of appointing postmasters will not be accorded
me; you can say that I will get no more projects for my
State, worthy or unworthy; you can say what you please; but I
say to Mr. Farley [the Postmaster General and Chairman of the
Democratic National Committee] and to everyone else that, so
far as I am concerned, I will vote against this proposal
because it is morally wrong, morally unsound. It is a
dangerous precedent, . . . it gets us nowhere, it is an
expedient, it is a stopgap and dictatorial, and so far as I
am concerned, if I am the only man in the Senate to do so, I
shall vote against it.

Once again, similar words could be said about the current effort to
abridge the Senate's involvement in securing the independence of the
Court. ``[T]he step proposed is one of the most dangerous ever
suggested.'' ``[I]t will set the most dangerous precedent . . . .''
``[I]t is morally wrong, morally unsound.'' ``[I]t gets us nowhere . .
. .'' ``[A]nd so far as I am concerned, if I am the only man in the
Senate to do so, I shall vote against it.''
I only hope that enough Senators from the majority will have the
courage that Burt Wheeler had, to stand up to their President, and stop
this effort to undermine our Nation's cherished checks and balances.
In the latter half of the 19th Century, James Bryce was the
Ambassador of the United Kingdom to the United States. In 1888, he
wrote of America's independent judiciary:

The Supreme Court is the living voice of the Constitution .
. . . It is the guarantee of the minority who, when
threatened by the impatient vehemence of the majority, can
appeal to this permanent law, finding the interpreter and
enforcer thereof in a Court set high above the assaults of
faction.

For two centuries, the Senate's rules have protected the rights of
the minority party, Democrats and Republicans alike, and thereby
protected the independence of the judiciary. After two centuries, it
would be a mistake to change those rules.
As the Senior Senator from Tennessee, the Majority Leader, wrote in a
forward to a book published last year entitled Senate Procedure and
Practice, and I quote:

[A]bove all, together the Senate's rules and practices form
a whole. It is a whole that faithfully reflects the Framer's
design and ambition for the body. It is a whole that remains
true to the Senate's two paramount values: unlimited debate
and minority rights.
[U]nlimited debate and minority rights.

That is what the leader wrote just a year ago: unlimited debate is
one of the paramount values in the Senate's rules. Minority rights is
the other one.
``[U]nlimited debate'' allows Senators to protect ``minority
rights.'' The Senate's rules help to protect the independent judiciary.
The Senate's rules help to ensure that no one party has absolute power.
The Senate's rules help to give effect to the Framer's conception of
checks and balances to protect the rule of law.
John Locke wrote in The Second Treatise on Government:

Wherever law ends, tyranny begins.
John F. Kennedy said:

Law is the strongest link between man and freedom.
And the Greek philosopher Heraclitus of Ephesus wrote:

The people should fight for their law as for their city
wall.
I urge my Colleagues on the other side of the aisle to fight for this
city wall. I urge them to defend the independence of the judiciary. One
hallmark that sets the United States apart from most countries in the
world is a strong, independent judiciary: not bullied by the
legislative branch, not bullied by the executive branch; an independent
judiciary.

I urge my colleagues to defend that independence and I urge them to
reject this effort to overturn the Senate's rules.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. INHOFE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

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