[Congressional Record Volume 151, Number 61 (Wednesday, May 11, 2005)]
[Senate]
[Pages S4888-S4893]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   NUCLEAR OPTION AND ABUSE OF POWER

  Mr. KENNEDY. Mr. President, from its beginnings, America has stood 
for fairness, opportunity and justice. Generation after generation our 
Nation has been able, often with intense debates, to give greater 
meaning to these values in the lives of more and more of our citizens. 
We know today we are a better Nation when our democracy and our 
policies reflect these values. We are a stronger America when our 
actions respect those values for all our citizens especially those who 
are the backbone of America those--who work hard every day, who care 
for their families, and who love their country.
  Fairness; opportunity; justice.
  But what we have seen in recent years is a breach of these values in 
order to reward the powerful at the expense of average Americans.
  Those in power passed massive tax breaks for the wealthy and short-
changed everyone else.
  They granted sweetheart deals to Halliburton Corporation in Iraq 
while our troops went without armor.
  They let the polluters write the pollution rules for our water and 
our air.
  They let the oil industry write the energy policy in secret meetings 
in the White House.
  Two weeks ago, over the opposition of every Democrat in the House and 
Senate, they forced through a Federal budget that preserves corporate 
tax loopholes at the expense of college aid, and slashes Medicaid for 
poor mothers to pay for tax breaks for millionaires.
  They twisted arms for 3\1/2\ hours in the dead of night on the floor 
of the House to pass by a single vote a so-called Medicare reform that 
lavishes billions of dollars on HMOs and drug companies at the expense 
of senior citizens and the disabled.
  They broke the ethics rules of the House of Representatives, then 
changed the rules to avoid investigation.
  They want to break the promise of Social Security to our citizens by 
privatizing it, handing it over to Wall Street, and cutting benefits 
for middle-income Americans.
  Their actions are a setback for the cause of fairness, opportunity 
and justice for all.
  Now, Republican leaders want to break the Senate to get their way 
this time with the Nation's courts.
  It's not as if the Senate has failed to confirm President Bush's 
nominations to the Federal courts. So far, we have approved 208 of his 
appointments and declined to approve only 10. We have blocked only the 
very, very few who are so far out of the mainstream that they have no 
place in our Federal judiciary. And yes, we have been willing to 
filibuster those nominees to protect America from their extremism.
  Yet, Republican leaders now propose to scuttle the very Senate rules 
that have protected our constitution and our citizens for more than two 
centuries in a no-holds-barred crusade to

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give rightwing activist judges lifetime appointments to the Nation's 
courts.
  They want to break the rules to put judges on our courts who are 
friendly to polluters and hostile to clean water and clean air.
  They want to break the rules to put judges on the courts who are 
hostile to civil rights, hostile to disability rights, hostile to 
women's rights, and hostile to workers' rights.
  They even want to break the rules to put judges on the bench who 
condone torture.
  The Nation's Founders understood that those in power might believe 
that the rules most Americans live by don't apply to them. That is why 
they put in place a democracy that preserves our rights and freedoms 
through checks and balances. These checks and balances protect our 
mainstream values by preventing one party from arrogantly and 
unilaterally imposing its extreme views on the Nation.

  The Constitution grants the President a check on Congress by allowing 
him to veto any measure that he believes crosses the line.
  It establishes an independent judiciary of judges with lifetime 
appointments and irreducible salaries, so they will be immune to 
political pressures and can serve as a valuable check against illegal 
or unconstitutional actions by the President or Congress.
  It gives the President and the Senate the shared duty of appointing 
qualified men and women to the courts, as a check against a President 
who tries to force his will on the courts.
  The Founders deliberately designed the Senate to be a special 
additional check. It is smaller than the House. It has 6 year terms 
compared to 2 years for the House, and 4 for the President. Our terms 
are staggered, so that at least two-thirds of us are veterans of a 
previous Congress. We have unique powers over treaties, appointments, 
and impeachments. We have full power over our own rules, so that we can 
be more deliberate and deliberative in our action. The Senate was meant 
to check an overreaching Executive--or an overreaching House as well, 
and to resist the fads of public opinion. Over the centuries, we have 
repeatedly played this balancing and stabilizing role, especially when 
the independence of the judiciary was threatened by an overreaching 
Chief Executive.
  Thomas Jefferson, at the peak of his popularity and with his party 
controlling Congress, pushed the Senate to remove a Supreme Court 
Justice whose decisions Jefferson disagreed with, but the Senate said 
``no.''
  Franklin Roosevelt tried to expand the Supreme Court, so that he 
could pack it with Justices who would support his views. Again, a 
Senate--a Senate under his party's control--said ``no.''
  Richard Nixon, having lost one Supreme Court nomination battle to a 
bipartisan coalition, dared us to reject a second, even worse 
candidate. But a bipartisan Senate majority honored the Founders' trust 
by saying ``no.''
  Throughout our history, the Senate, has structured its processes to 
reflect the unique powers entrusted to it. For such irreversible steps 
as conferring lifetime judicial authority on nominees for the bench, it 
has given the minority the ability to protect our republic from the 
combined tyranny of a willful executive branch and an equally willful 
and like-minded small majority of Senators. Thus the Senate's rules 
have allowed the minority to make itself heard as long as necessary to 
stimulate debate and compromise, and even to prevent actions that would 
undermine the balance of powers, or that a minority of Senators 
strongly oppose on principle. Especially with respect to appointments, 
as to which the Senate's ``advice and consent'' is a matter of 
constitutional prerogative, there has never been a constitutional 
right, or even a right under the Senate rules, to a floor vote on a 
nomination that would allow a bare majority to automatically 
rubberstamp the President's choice.
  In fact, until 1917, the Senate had no limit on debate at all, and 
during that time countless nominees, including judges, not only failed 
to receive Senate consent, but failed to receive the up or down vote 
that some pretend has been available as a matter of right.
  The cloture rule adopted in 1917 permitted debate to be ended on 
legislation if two-thirds of the Senate voted to do so, but that rule 
did not apply to Senate proceedings on nominations. In 1949, the rule 
was extended to all issues, including nominations. Still, there was no 
``right to an up-or-down vote on the floor'' on a matter, because there 
remained many different ways to prevent it from ever reaching the 
floor.
  In 1975, the two-thirds rule for cloture was reduced to three-fifths, 
but there was no change in the basic rule: the only floor vote you have 
``a right to'' is a floor vote on cloture, and if you lose that vote, 
the matter does not go forward unless a later cloture vote succeeds or 
until the opponents are prepared to vote. That has been the consistent 
practice since the first cloture rule 88 years ago. Everyone knows that 
is the rule. It has been followed without exception in every Senate 
since then. We can argue--and most of us have--whether cloture should 
or should not be invoked on a particular matter. But if the majority is 
not large enough to win a cloture vote, it cannot move ahead to a final 
vote on that matter, including a nomination. That is what the rules 
say. That is what they have always said. And that rule has never been 
broken, especially when the issue is changing the Senate rules 
themselves, which still requires a two-thirds majority for cloture.

  Just 19 years after the cloture rule was extended to nominations, 
Republicans in the Senate led a filibuster against a Supreme Court 
nomination, the nomination by President Johnson of Abe Fortas to be 
Chief Justice. The Senate Historian describes it accurately on the 
Senate website: ``October 1, 1968: Filibuster Derails Supreme Court 
Appointment.''
  Some have tried to rewrite the history of that filibuster. But three 
of us know what happened in 1968 because we were Senators then. 
President Johnson was one of the best vote counters in our history. If 
you want to hear a master at work, just listen to his detailed 
discussion of Senate and House votes on President Johnson's tapes. 
Lyndon Johnson would not have sent the Fortas nomination to the Senate 
if he was not completely confident that a majority of the Senate would 
support the nomination. And in fact those of us who favored the 
nomination believed he had that support.
  The Judiciary Committee reported the Fortas nomination favorably, but 
its Republican opponents, knowing that they still lacked the votes to 
defeat the nomination outright, launched a filibuster on the floor, 
attacking the nominee on a number of different fronts, in an effort to 
draw away his supporters. In the end, cloture failed, and President 
Johnson withdrew the nomination.
  We may never know what the final vote would have been if there had 
been no filibuster. But there can be no doubt that what occurred was a 
filibuster of a Supreme Court nomination, and that the purpose of that 
Republican-led filibuster was to prevent an up-or-down vote on the 
nomination. Even though there may have been a majority in support of 
the nomination when the process started, under the Senate rules at that 
time there was no way for the majority to cut off the minority's right 
to continue debate unless two-thirds of the Senate voted to do so. As 
that cloture vote made clear, there would never be a floor vote on the 
nomination, unless its opponents ended their filibuster.
  In fact the Senate has never allowed a bare majority to silence the 
minority on any bill or treaty or nomination, least of all on judicial 
nominees, whom the Framers were determined to keep independent, and 
whose independence was assured by the Senate's joint role in their 
appointment. The idea that we should relinquish any part of our power 
over judicial appointments, while leaving that power intact for 
nonjudicial nominations and for all legislation, is not only 
irrational, it is bizarrely backward.
  Certainly, this is no time to reduce the ability of the Senate as a 
whole, and of individual Senators, to assure judicial independence. We 
need independent courts more than ever. We know that activist groups 
and their supporters in Congress are putting heavy and well-organized 
pressure on the courts. They want to restrict rights and liberties in 
the name of national security. They want to subordinate individual 
interests to powerful economic interests. They want to intrude

[[Page S4890]]

Government into sacrosanct areas of family and religion. They want to 
reverse longstanding precedents that allow the Nation to realize its 
full potential.
  When one political party controls all the levers of power in both the 
White House and Congress, and that party feels beholden to a narrow 
ideological portion of its base, the independence of the courts is more 
vital than ever. Despite its razor-thin victory in the all-important 
political campaign last year, following its especially narrow victory 
in the election in 2000, which was decided by a 5 to 4 vote in the 
Supreme Court, the Republican party evidently believes it has absolute 
power. House Republicans yield to the White House, bending House rules 
to the breaking point to give the President his way. The President has 
personally picked the majority leader of the Senate and through him 
seeks to impose unprecedented strict party discipline on Republican 
Senators.
  Now, in a trial run for doing the same to the Supreme Court, the 
President wants to pack key appellate courts with activist ideological 
judges he knows could not possibly command a bipartisan consensus in 
the Senate. It is clear from their records and their resumes that they 
have been selected precisely because the most radical forces on the 
Republican right believe they will advance their ideological agenda on 
the bench.
  In these circumstances, we as Senators have not only the right, but 
the obligation, to use every power at our disposal, within the Senate's 
rules and traditions, to focus the attention of the Senate and the 
Nation, and ultimately the President, on the overreaching abuse of 
power by the White House and the Republican majority. That is what our 
Senate powers and our Senate rules are meant to do. That is what checks 
and balances are all about. That is why the filibuster exists.
  The Republican argument to the contrary is irrational, 
incomprehensible and hypocritical. They say that if we dare to use the 
well-established Senate rules to preserve the independence of the 
courts, then they are entitled to break the Senate rules to stop us. 
They assert--and this is the keystone of their argument--that we are 
abusing the filibuster by actually using it, even on a very few 
nominations. They seem to say it is permissible to filibuster if you 
already have a majority of Senators with you; that is, if you don't 
need to filibuster. But it is not permissible to filibuster if you are 
in the minority, which is, of course, the only time you need to 
filibuster. They say you are permitted to filibuster if you don't have 
the votes to prevent cloture, but are not permitted to do so if you do 
have the votes to prevent cloture. In short, their argument seems to be 
that you are allowed to filibuster only when you don't need it or can't 
make it stick. In a word, their argument is absurd.
  The fact is, the Republicans showed in 1968 how the filibuster can be 
used to change minds when you don't start with enough votes, whether it 
is Senators' minds, citizens' minds, or just the President's mind.
  During the Bush years, the filibuster has been used as an exceptional 
tool against a small number of judicial nominations--10 out of 218--in 
contrast to nearly 70 judicial nominations blocked from a floor vote by 
other Republican tactics during the Clinton administration.
  But here is the most important reason the Republican arguments make 
no sense: It is the President, not the Senate, who determines how often 
the filibuster is used.
  Whenever President Bush decides he would rather pick a fight than 
pick a judge, then he is likely to be creating the need to filibuster. 
There is no need for a filibuster if the President takes the ``advice'' 
of the Senate seriously, under the ``advice and consent'' clause of the 
constitution, when he nominates lifetime judges for important courts. 
President Clinton did so with Senator Hatch, the Republican chairman of 
the Senate Judiciary Committee at the time, on his nominations of 
Justice Ginsburg and Justice Breyer in the 1990s, and other Presidents 
have done so throughout history.
  Those who do not like the filibuster should take their complaints to 
the other end of Pennsylvania Avenue, where the real responsibility 
lies.
  The claim that filibustering judges is unconstitutional is without a 
shred of support in the Constitution or in history. The Republican 
leadership seems to be on the verge of abandoning that claim. The 
recent compromise suggested by Senator Frist would allow the practice 
to continue for legislation, and for all Cabinet and other executive 
branch appointments, and even for lifetime Federal district judges. 
None of these categories is constitutionally distinguishable from 
Federal appellate court nominations and Supreme Court nominations under 
the Senate rules. If anything, Article III lifetime appellate judges 
deserve the filibuster's extra insulation from Executive abuse even 
more than short-term Cabinet and diplomatic appointments, let alone 
legislative actions that can be reversed by future legislation.
  In short, neither the Constitution, nor Senate Rules, nor Senate 
precedents, nor American history, provide any justification for 
selectively nullifying the use of the filibuster.
  Equally important, neither the Constitution nor the rules nor the 
precedents nor history provide any permissible means for a bare 
majority of the Senate to take that radical step without breaking or 
ignoring clear provisions of applicable Senate Rules and unquestioned 
precedents.
  Here are some of the rules and precedents that the executive will 
have to ask its allies in the Senate to break or ignore, in order to 
turn the Senate into a rubber stamp for nominations:
  First, they will have to see that the Vice President himself is 
presiding over the Senate, so that no real Senator needs to endure the 
embarrassment of publicly violating the Senate's rules and precedents 
and overriding the Senate parliamentarian, the way our presiding 
officer will have to do.
  Next, they will have to break Paragraph 1 of Rule V, which requires 1 
day's specific written notice if a Senator intends to try to suspend or 
change any rule.
  Then they will have to break paragraph 2 of Rule V, which provides 
that the Senate rules remain in force from Congress to Congress, unless 
they are changed in accordance with the existing rules.
  Then they will have to break paragraph 2 of Rule XXII, which requires 
a motion signed by 16 Senators, a 2-day wait and a three-fifths vote to 
close debate on the nomination itself.
  They will also have to break Rule XXII's requirement of a petition, a 
wait, and a two-thirds vote to stop debate on a rules change.
  Then, since they pretend to be proceeding on a constitutional basis, 
they will have to break the invariable rule of practice that 
constitutional issues must not be decided by the presiding Officer but 
must be referred by the Presiding officer to the entire Senate for full 
debate and decision.
  Throughout the process they will have to ignore, or intentionally 
give incorrect answers to, proper parliamentary inquiries which, if 
answered in good faith and in accordance with the expert advice of the 
parliamentarian, would make clear that they are breaking the rules.
  Eventually, when their repeated rule-breaking is called into 
question, they will blatantly, and in dire violation of the norms and 
mutuality of the Senate, try to ignore the minority leader and other 
Senators who are seeking recognition to make lawful motions or pose 
legitimate inquiries or make proper objections.
  By this time, all pretense of comity, all sense of mutual respect and 
fairness, all of the normal courtesies that allow the Senate to proceed 
expeditiously on any business at all will have been destroyed by the 
preemptive Republican nuclear strike on the Senate floor.
  To accomplish their goal of using a bare majority vote to escape the 
rule requiring 60 votes to cut off debate, those participating in this 
charade will, even before the vote, already have terminated the normal 
functioning of the Senate. They will have broken the Senate compact of 
comity, and will have launched a preemptive nuclear war. The battle 
begins when the perpetrators openly, intentionally and repeatedly, 
break clear rules and precedents of the Senate, refuse to follow the 
advice of the Parliamentarian, and commit the unpardonable sin of 
refusing to recognize the minority leader.
  Their hollow defenses to all these points demonstrate the weakness of

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their case: They claim, ``We are only breaking the rules with respect 
to judicial nominations; we promise not to do so on other nominations 
or on legislation.'' No one seriously believes that. Having used the 
nuclear option to salvage a handful of activist judges, they will not 
hesitate to use it to salvage some bill vital to the credit card 
industry, or the oil industry or the pharmaceutical industry, or Wall 
Street, or any other special interest. In other words, the Senate 
majority will always be able to get its way, and the Senate our 
Founders created will no longer exist. It will be an echo chamber to 
the House, where the tyranny of the majority is so rampant today.
  Our Republican colleagues also claim that ``Senate Democrats have 
previously used majority votes to change the rules'', so they can do it 
too. That spurious claim depends entirely on a pseudo-scholarly article 
by two Republican staffers, who happen, unintentionally, to have 
provided enough facts to rebut the claim. As Senator Byrd and other 
experts on the rules have shown, the instances they rely on do not 
involve breaking the rules or changing the rules. They were narrow and 
minor interpretations to fill gaps in existing rules, but always 
consistent with the underlying rules and their purposes, and always in 
keeping with the regular procedures of the Senate. They never allowed 
debate on any nomination or bill to be cut off without the required 
cloture vote. The Nuclear Option, in contrast, involves major changes 
in the essence of key rules, without following the required procedures 
for changing the rules. In fact, even at the start of a new Congress, 
the one time when some of us thought the rules might be changed by a 
majority, the Senate has repeatedly and explicitly rejected the 
proposition that the rules can be changed without following the rules.
  Why would our Republican colleagues try to do this? The simplest 
answer is that they will do it because they think they can get away 
with it. If enough Republicans accede to this raw exercise of unbridled 
power, and ignore the rules and traditions and comity and history and 
purpose of the Senate, and think they can pull it off and not be held 
accountable, then they will try it.
  Obviously, their party is also being driven by an irresponsible 
fringe force that does not care about the credibility of their party or 
the institutional interests of the Senate or the future of our checks 
and balances form of government. They were the ones who compelled their 
leaders on both sides of the Hill to intrude in the tragic case of 
Terri Schiavo. The overwhelmingly hostile reaction to that fiasco 
should be enough to encourage the White House not to go down such paths 
again, especially after Stanley Birch, a conservative appointee of the 
first President Bush, on a conservative federal circuit court of 
appeals, excoriated Congress for its unconstitutional interference with 
the courts, and particularly excoriated Republican opponents of 
judicial activism for hypocritically pushing their own corrosive brand 
of judicial activism.
  Sadly, with Dr. Frist's encouragement and support, the same rabble 
rousers recently accused us of blocking nominees because they are 
``people of faith,'' thus suggesting that the 208 judges whom we have 
not blocked are not ``people of faith.'' Clearly these activist 
ideologues do not agree with the Founders about the need for judicial 
independence, for the separation of powers, or for the separation of 
church and state. They have no respect for history, no respect for 
checks and balances, and no respect for the role of the Senate. They 
simply want as many judges as possible who will follow their 
instructions.
  Fortunately, the vast majority of Americans' share our commitment to 
basic fairness. They agree that there must be fair rules, that we 
should not unilaterally abandon or break those rules in the middle of 
the game, and that we should protect the minority's rights in the 
Senate.
  Even in the darkest days of the government's failure to respond to 
the civil rights revolution, half a century ago, the Senate never tried 
to allow a bare majority to silence a substantial minority. Yet that is 
exactly what Republicans want to do now. There simply is no crisis 
which justifies such a drastic and destructive action.

  Who are the nominees the Republican leadership wants confirmed so 
desperately that they are willing to resort to tactics like these? 
Obviously, they are doing it in anticipation of the battle soon to come 
over the nomination of the next Supreme Court Justice. The judges 
nominated so far who have been filibustered by the Senate show how 
truly appalling a Supreme Court nominee may be, if the President can 
avoid a filibuster.
  President Bush has said he wants judges who will follow the law, not 
try to re-write it. But his actions tell a different story. The 
contested nominees have records that make clear they would push the 
agenda of a narrow far-right fringe, rather than protect rights 
important to all Americans.
  Priscilla Owen, Janice Rogers Brown, William Myers, Terrence Boyle, 
and William Pryor would erase much of the country's hard-fought 
progress toward equality and opportunity. Their values--favoring big 
business over the needs of families, destroying environmental 
protections, and turning back the clock on civil rights--are not 
mainstream values.
  As a Texas Supreme Court Justice, Priscilla Owen has shown clear 
hostility to fundamental rights, particularly on issues of major 
importance to workers, consumers, victims of discrimination, and women. 
Neither the facts, nor the law, nor established legal precedents, stop 
her from reaching her desired result.
  Owen was elected to the Texas Supreme Court with donations from Enron 
and other big companies. She consistently rules against employees, and 
consumers who challenge corporate abuses. She bent the law in an 
attempt to deny relief for the family of a teenager, who was paralyzed 
after being thrown through the sun roof of the family car in an 
accident. She wanted to reverse a jury award for a woman whose 
insurance company wrongly denied her claim for coverage of heart 
surgery. She argued that the Texas Supreme Court should reinterpret a 
key civil rights law to make it harder for victims of discrimination to 
get relief.
  It's not just Senate Democrats who question Justice Owen's record of 
judicial activism and her willingness to ignore the law. Even many 
newspapers that endorsed her campaign for the Texas Supreme Court now 
oppose her confirmation after seeing how poorly she served as a judge. 
The Houston Chronicle wrote that Justice Owen ``too often contorts 
rulings to conform to her particular conservative outlook.'' The paper 
also noted that ``It's saying something that Owen is a regular 
dissenter on a Texas Supreme Court made up mostly of other conservative 
Republicans.''
  The Austin American-Statesman wrote that she ``seems all too willing 
to bend the law to fit her views.'' The San Antonio Express-News 
opposed her nomination, reminding us that ``[w]hen a nominee has 
demonstrated a propensity to spin the law to fit philosophical beliefs, 
it is the Senate's right--and duty--to reject that nominee.''
  Her own colleagues on the conservative Texas Supreme Court have 
repeatedly accused her of the same thing. They clearly state that 
Justice Owen puts her own views above the law, even when the law is 
crystal clear. Justice Owen's former colleague on the Texas Supreme 
Court, our new Attorney General Alberto Gonzales, has said she was 
guilty of ``an unconscionable act of judicial activism.'' Some claim 
that Attorney General Gonzales didn't mean this criticism. But this was 
no single, stray remark. To the contrary, both he and her other 
colleagues on the Texas Supreme Court have repeatedly noted that she 
ignores the law to reach her desired result.
  In one case, Justice Gonzales held that Texas law clearly required 
manufacturers to be responsible when retailers sell their defective 
products. He wrote that Justice Owen's dissenting opinion would 
``judicially amend the statute'' to let the manufacturers off the hook.
  In a case in 2000, Justice Gonzales, joined by a majority of the 
Texas Supreme Court, upheld a jury award holding that the Texas 
Department of Transportation and the local transit authority were 
responsible for a deadly auto accident. They said that the result was 
required by the ``plain meaning'' of Texas law. Justice Owen 
dissented, claiming that Texas should be

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immune from these suits. Justice Gonzales again stated that her view 
misread the law, which he said was ``clear and unequivocal.''

  In another case, Justice Gonzales joined a majority opinion that 
criticized Justice Owen for ``disregarding the procedural limitations 
in the statute,'' and ``taking a position even more extreme'' than was 
argued by the defendant in the case.
  In another case in 2000, private landowners tried to use a Texas law 
to exempt themselves from local environmental regulations. The court's 
majority ruled that the law was an unconstitutional delegation of 
legislative authority to private individuals. Justice Owen dissented, 
claiming that the majority's opinion ``strikes a severe blow to private 
property rights.'' Justice Gonzales joined a majority opinion 
criticizing Justice Owen's view, stating that most of her opinion was 
``nothing more than inflammatory rhetoric which merits no response.''
  In another case, Justice Owen joined a partial dissent that would 
have limited the right to jury trials. The dissent was criticized by 
the other judges as a ``judicial sleight of hand'' to bypass the 
constraints of the Texas Constitution.
  For the very important D.C. Circuit, the President has nominated 
another extreme right-wing candidate. Janice Rogers Brown's record on 
the California Supreme Court makes clear that--like Priscilla Owen--
she's a judicial activist who will roll back basic rights. When she 
joined the California Supreme Court, the California State Bar Judicial 
Nominees Evaluation Commission had rated her ``not qualified,'' and 
``insensitive to established legal precedent'' when she served on the 
state court of appeals.
  All Americans, wherever they live, should be concerned about such a 
nomination to this vital court, which interprets federal laws that 
protect our civil liberties, workers' safety, and our ability to 
breathe clean air and drink clean water in their communities. Only the 
D.C. Circuit can review the national air quality standards under the 
Clean Air Act and national drinking water standards under the Safe 
Drinking Water Act. This court also hears the lion's share of cases 
involving rights of employees under the Occupational Safety and Health 
Act and the National Labor Relations Act.
  Yet Janice Rogers Brown's record shows a deep hostility to civil 
rights, to workers' rights, to consumer protection, and to a wide 
variety of governmental actions in many other areas--the very issues 
that predominate in the D.C. Circuit.
  Perhaps most disturbing is the contempt she has repeatedly expressed 
for the very idea of democratic self-government. She has stated that 
``where government moves in, community retreats [and] civil society 
disintegrates.'' She has said that government leads to ``families under 
siege, war in the streets.'' In her view, ``when government advances . 
. . freedom is imperiled [and] civilization itself jeopardized.''
  She has criticized the New Deal, which gave us Social Security, the 
minimum wage, and fair labor laws. She's questioned whether age 
discrimination laws benefit the public interest. She's even said that 
``Today's senior citizens blithely cannibalize their grandchildren 
because they have a right to get as much `free' stuff as the political 
system will permit them to extract.'' No one with these views should be 
confirmed to the Federal court and certainly not to the Federal court 
most responsible for cases affecting government action. It's no wonder 
that an organization seeking to dismantle Social Security is running 
ads supporting her nomination to the second most powerful court in the 
country.
  Janice Rogers Brown has also written opinions that would undermine 
civil rights. She has held, for example, that the First Amendment 
prevents courts from granting injunctions against racial slurs in the 
workplace, even when those slurs are so pervasive that they create a 
hostile work environment in violation of Federal job discrimination 
laws. In other opinions, she has argued against allowing victims of age 
and race discrimination to obtain relief in state courts, or to obtain 
damages from administrative agencies for their pain and suffering. She 
has rejected binding precedent on the constitutional limits on an 
employer's ability to require employees to submit to drug tests.
  President Bush has selected William Myers for the important Ninth 
Circuit Court of Appeals. Mr. Myers is a long-time mining and cattle 
industry lobbyist. He has compared Federal laws protecting the 
environment to ``the tyrannical actions of King George'' over the 
American colonies. He has denounced our environmental laws as 
``regulatory excesses.'' In the Interior Department, he served his 
corporate clients instead of the public interest. As Solicitor of 
Interior, he tried to give public land worth millions of dollars to 
corporate interests. He issued an opinion clearing the way for mining 
on land sacred to Native Americans, without consulting the tribes 
affected by his decision although he took the time to meet personally 
with the mining company that stood to profit from his opinion.

  William Myers is a particularly inappropriate choice for the Ninth 
Circuit, which contains many of America's most precious natural 
resources and national parks, including the Grand Canyon and Yosemite 
National Park, and which is home to many Native American tribes. The 
Ninth Circuit decides many of the most important environmental disputes 
affecting America's natural heritage. It has a special role in 
safeguarding the cultural and religious heritage of the first 
Americans. It deserves an impartial judge who will deal fairly with 
environmental claims, not a mining company lobbyist clearly opposed to 
environmental protections. The Ninth Circuit needs judges who will 
respect Native American rights, not a judge the head of the National 
Congress of American Indians has called the ``worst possible choice'' 
for Native Americans.
  The nomination of Terrence Boyle is still pending in the Judiciary 
Committee. By all appearances, he was chosen for his radical views, not 
his qualifications. His decisions as a trial judge have been reversed 
or criticized on appeal more than 150 times, far more than any other 
district judge nominated to a circuit court by President Bush. The 
Supreme Court unanimously reversed him in a voting rights case, in 
which Justice Clarence Thomas wrote that he had ignored established 
legal standards.
  In fact, he has made serious mistakes in cases that matter most to 
Americans' daily lives. Time and again, the conservative Fourth Circuit 
has ruled that Judge Boyle improperly dismissed cases asking protection 
for individual rights, such as the right to free speech, or the right 
of free association, or the right to be free from discrimination, or 
the right to a fair and lawful sentence in a criminal case. It's no 
wonder that his nomination is opposed by a broad coalition of 
organizations nationally and in his home state of North Carolina 
representing law enforcement officers, workers, and victims of 
discrimination.
  Last, but by no means least disturbing, the President has renominated 
William Pryor to the Court of Appeals for the Eleventh Circuit. Mr. 
Pryor is no true ``conservative.'' He has pushed a radical agenda 
contrary to much of the Supreme Court's jurisprudence over the last 
forty years, and at odds with important precedents that have made our 
country a fairer nation.
  Mr. Pryor has fought aggressively to undermine the power of Congress 
to protect civil rights and individual rights. He's tried to cut back 
on the Family and Medical Leave Act, the Americans with Disabilities 
Act, and the Clean Water Act. He's been contemptuously dismissive of 
claims of racial bias in the application of the death penalty. He's 
relentlessly advocated its use, even for persons with mental 
retardation. He's even ridiculed the current Supreme Court justices, 
calling them ``nine octogenarian lawyers who happen to sit on the 
Supreme Court.'' He can't even get his facts right. Only two of the 
nine justices are 80 years old or older.
  Mr. Pryor has criticized Section 5 of the Voting Rights Act, which 
helps ensure that all Americans can vote, regardless of their race or 
ethnic background. He's even called the Voting Rights Act, which has 
been repeatedly upheld by the Supreme Court, ``an affront to 
federalism.'' His hostility to voting rights belongs in another era--

[[Page S4893]]

not on a federal court. As Alabama's Attorney General, in a case 
involving a disabled man forced to crawl up the courthouse stairs to 
reach the courtroom, Mr. Pryor argued that the disabled have no 
fundamental right to attend their own public court proceedings. His 
nomination was rushed through the Committee despite serious questions 
about his ethics and even his candor before the Committee.
  History will judge us harshly in the Senate if we don't stand tall 
against the brazen abuses of power demonstrated by these nominees. The 
issues at stake in these nominations go well beyond partisan division. 
The basic values of our society--whether we will continue to be 
committed to fairness and opportunity and justice for all--are at 
issue.
  Many well-qualified, fair-minded nominees could be quickly confirmed 
if the Bush administration would give up its right-wing litmus test. 
Why, when there are so many qualified Republican attorneys, would the 
President choose nominees whose records raise so much doubt about 
whether they will follow the law? Why force an all-out battle over a 
few right-wing nominees, when the nation has so many more pressing 
problems, such as national security, the economy, education, and health 
care?
  Our distinguished former colleagues, Republican Senator David 
Durenberger and Democratic Senator and Vice President Walter Mondale, 
recently urged the Senate to reject the nuclear option. They reminded 
us that ``Our federal courts are one of the few places left where 
issues are heard and rationally debated and decided under the law.''
  Five words they used said it all--``let's keep it that way.'' To 
reach the goals important to the American people, let's reject the 
nuclear option, and respect the checks and balances that have served 
the Senate and the nation so well for so long.
  The PRESIDING OFFICER. The time of the minority has expired.
  The Senator from Nevada.

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