[Congressional Record Volume 151, Number 62 (Thursday, May 12, 2005)]
[Senate]
[Pages S5008-S5010]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. DeMINT. Mr. President, in January of this year, I stood in this 
very Chamber, placed one hand on the Bible, and raised the other hand. 
In taking my oath of office, I made a simple pledge to uphold the 
Constitution of the United States of America. However, only 4 months 
later--because of the partisanship of some--I am prevented from 
fulfilling my oath.
  It is interesting to observe what the Constitution requires of the 
Senate and what it does not. Nowhere does it say that Congress must 
pass new laws. But it does specify Senators must ``advise and consent'' 
on the President's judicial nominees.
  How can I perform my constitutionally mandated duties to advise and 
consent without the ability to vote on the nominees sent to us by the 
President? How can I represent the people of South Carolina, who 
elected me to serve their interests, without the ability to vote yes or 
no?
  Today, 41 Senators are preventing a bipartisan majority from carrying 
out the duty we were elected to fulfill. This is outrageous.
  The President of the United States is given the authority, under the 
Constitution, to choose his own nominees. We have an obligation to vote 
on those nominees. Forty-one Senators are trying to thwart the will of 
the American people and the Constitution.
  Beginning in 2003, Democrats used the filibuster to block up-or-down 
votes on 10 nominations to the Federal appeals courts. All had 
bipartisan, majority support. Do not be fooled by the misinformation of 
a few. Never in history has a judicial nominee with clear majority 
support been denied confirmation due to a filibuster.

  Throughout my campaign, and each time I have been home this year, 
folks in South Carolina have told me how furious they are that the 
President's nominees are being denied a vote. Democrats have chosen to 
throw 200 years of tradition out the window by refusing to give 
judicial nominees a vote, and Americans are simply tired of the 
partisan obstruction.
  Before I was elected, I said the Senate had become a ``graveyard of 
good ideas'' due to partisan liberal obstruction. Unfortunately, it has 
now become a ``graveyard of good nominees,'' such as Janice Rogers 
Brown.
  California Supreme Court Justice Brown was nominated to the DC 
Circuit by President Bush in 2003. The first African American to serve 
on the California high court, Justice Brown received public support 
from 76 percent of California voters and is widely respected as a 
leading intellect on the bench. She has been unanimously voted as 
``well qualified'' by the American Bar Association, which has been 
described by those who oppose her nomination as the ``gold standard'' 
of judicial ratings.
  The daughter of sharecroppers, Justice Brown was born in Greenville, 
AL, in 1949. During her childhood, she attended segregated schools and 
came of age in the midst of Jim Crow policies in the South.
  She has dedicated 24 years to public service, serving as legal 
affairs secretary to California Governor Pete Wilson; deputy secretary 
and general counsel for the California Business, Transportation, and 
Housing Agency; deputy attorney general in the Office of the California 
Attorney General; and as deputy legislative counsel in the California 
Legislative Counsel Bureau.
  Just what is it that opponents of Justice Brown claim is their reason 
to deny her a fair vote? They obviously could not attack her experience 
or her character or her education or her intelligence, which are all 
impeccable.
  Instead, they have used the political equivalent of a desperate 
``Hail Mary Pass.'' They labeled Justice Brown as ``out of the 
mainstream.'' Really? Out of the mainstream?
  Were three-quarters of Californians out of the mainstream when they 
elected her overwhelmingly to the State supreme court? She was elected 
by the largest margin of any of the judges up for retention that year.
  Despite the claims of her opponents, her record demonstrates a 
commitment to interpreting the law, not legislating from the bench.
  If the obstructionist Senators who are vehemently opposed to her 
nomination feel so strongly that she is out of the mainstream, then 
they should put their money where their mouth is and come down to this 
floor and make their arguments against her nomination, then allow all 
of us to draw our own conclusions and cast our vote.
  If Justice Brown is so truly unqualified, then surely her opponents 
would

[[Page S5009]]

be confident of convincing a majority that this is the case. Otherwise, 
they are simply smearing the integrity of a highly respected jurist in 
order to score political points against the President at the expense of 
vandalizing the Constitution.
  One of my goals as a Senator is to confirm highly qualified judges by 
ensuring timely up-or-down votes for all nominees no matter who is 
President, no matter which party is in the majority. That is my 
commitment, and I have encouraged Senator Frist to consider all 
options, including the constitutional option, to end the undemocratic 
blockade of judicial nominees. Senators were elected to advise and 
consent, not to grandstand and obstruct.
  I would like to say something to my colleagues across the aisle. 
There is a reason George W. Bush was elected to serve as President of 
the United States. It is because the majority of Americans trusted him 
to nominate judges.
  There is a reason the American people elected a majority of 
Republicans to the Senate. They trusted our judgment to vote on 
judicial nominees.
  There is a reason the Democratic Party is in the minority in 
Congress. It is because the American people did not trust them to make 
these decisions.
  It is not a trivial matter. The issue of judicial nominations was at 
the forefront of every Senate campaign in the last two cycles. Voters 
across our Nation witnessed the obstruction of the Democrats over the 
last 4 years, and they rendered their judgment at the polls.
  In 2002, they returned the Republicans to the majority in the Senate. 
Then, after 2 years of unprecedented and, in my opinion, 
unconstitutional denials of simple votes on judicial nominees, 
Americans elected an even larger majority of Republicans. In fact, the 
Democrat leader, former Senator Tom Daschle, was defeated by my 
colleague, Senator John Thune, in large part due to his high-profile 
obstruction of judicial nominees.
  In my own campaign, I spoke frequently about the need to give every 
nominee a fair up-or-down vote. It was consistently the main issue 
voters brought up with me one-on-one.

  Now that the American people have clearly spoken, by democratically 
electing a Republican President and a Republican majority in the 
Senate, 41 Senators are attempting to deny the will of the people. 
Forty-one Senators believe they know better than the majority of 
Americans. Forty-one Senators seem to think the elections and 
constitutional duties we have do not matter. What matters to these 41 
Senators is petty partisan politics.
  This temper tantrum must end. The Democrats must accept the judgment 
of the American people. They cannot disregard election results simply 
because things did not go their way.
  Now let me speak to my own party's leadership. It is time for the 
Republican Party to lead, as Americans have elected us to do. We were 
not sent to the Senate as a majority to quibble about process and 
procedure. We were entrusted to carry out the duties laid out in the 
Constitution.
  We ran on a platform of ideas to secure America's future, and the 
Nation largely agreed with our vision. We also ran on the need to give 
the President's nominees a fair up-or-down vote. The Senate Republican 
majority must stand up for the Americans who elected us. We must have 
the courage and conviction to uphold the Constitution and end the 
partisan obstruction. The time to act is now.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Thomas). The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I am pleased to take the floor again on 
the matter of judicial nominations. As the emotions and politics of 
this issue keep building up, it is important we not lose sight of what 
this is all about. We have all heard the grim, little joke about the 
doctor who said: The operation was a complete success, but the patient 
died.
  Sometimes we get so caught up in process that we ignore the reasons 
we are here in the first place: to achieve an outcome for the American 
people to get things done, to make a difference.
  The outcome the people want, the outcome the President deserves, and 
the outcome the Constitution demands is an up-or-down vote--a simple 
up-or-down vote--on each of the appointments the President has 
submitted to us.
  A couple years ago, I stood right over there, in front of that desk, 
and swore an oath to the Constitution of the United States of America. 
The Constitution directs each Senator to ``advise and consent'' on 
judicial appointments by the President, not to advise and obstruct, not 
to advise and block, but simply advise and consent--which simply means, 
and has always meant in the history of this country, up until last 
year, the opportunity for an up-or-down vote.
  If you ask me, the term ``nuclear option'' belongs to the tactics 
taken by the minority, unfortunately, in the last 2 years. I would say 
they are treading on the traditions of this body, the balance of power 
between the branches, and the Constitution that we are sworn to uphold.
  As the Bible says, what you sow, you will reap. When some in the 
minority decide to flaunt the historical procedures and understandings 
of this body, they should not be weeping and wailing and gnashing their 
teeth when the majority steps up to restore--to restore--200-plus years 
of accepted practice in this body, which is an up-or-down vote on 
judicial nominees once they have passed through committee. If the 
minority is feeling injured, they brought it on themselves.
  Mr. President, I want to illustrate what a dramatic departure from 
historical precedent some in the minority have embarked upon in the 
last year when 10 of the President's judicial nominees were 
filibustered. For the first time, 10 circuit court nominees, at the 
level right below the Supreme Court, were filibustered.
  Just look back a few years to the nomination of Clarence Thomas to 
the Supreme Court in 1991. It was a media circus, riven with charges, 
accusations, and controversy. Clarence Thomas was confirmed with a vote 
of 52 to 48. If the Democrats had wanted to defeat him, they simply 
could have filibustered his nomination. But they did not.
  They could have filibustered his confirmation, but they did not. Did 
they fail to do so because they simply wanted to be nice? No. It is 
fair to state that they didn't filibuster because at that time, in 
1991, it wasn't even conceivable, it wasn't in the history and 
tradition of this body that nominees who get through committee or to 
the floor would fail to get an up-or-down vote, 52 to 48. Have no doubt 
about it, if what is going on today was going on then, Clarence Thomas 
would have been filibustered. It did not happen. At that time, my 
colleagues did the right thing. They honored two centuries of tradition 
and allowed him an up-or-down vote.
  I have done some quick research. Of the 109 Justices of the Supreme 
Court, my staff counted 55 Supreme Court Justices who could have been 
defeated if one of the parties had adopted the nuclear option, the 
filibustering of nominees, now employed by some in the Senate minority. 
Half of the Supreme Court Justices in our Nation's history might never 
have served. Who could that have cost us? Benjamin Cardozo, nominated 
by President Hoover, who gave us proximate cause, a cornerstone of 
today's tort law. Every college kid in America, including me, read 
Cardozo's opinion. How about Justice Marshall Harlan, appointed by 
President Hayes. He was the lone dissenter in Plessy v. Ferguson which 
upheld segregation policies. Fortunately, we did not force Justices 
Cardozo or Harlan or other Justices to overcome a partisan filibuster. 
It was not done. In fact, not only did we not filibuster the other 
party's nominees, we often elevated them, as was the case with Harlan 
Fiske Stone, who was appointed by a conservative President, Calvin 
Coolidge, and then elevated to Chief Justice by Franklin D. Roosevelt.
  I could go on. Does anybody in this Chamber doubt in today's 
environment that William O. Douglas would never have made it to the 
Supreme Court, that his nomination would have been filibustered? Does 
anyone in this Chamber doubt for a moment today that Justices Antonin 
Scalia and William Rehnquist would not have a chance to serve on the 
Supreme Court because of a filibuster?
  We have to think about the consequences of this dangerous precedent 
that unlimited debate be used to deprive the whole Senate of an up-or-

[[Page S5010]]

down vote. The consequences are that individuals with strong opinions--
and they may be liberal or conservative--and great intellect would not 
have an up-or-down vote.
  There has been an ebb and flow in American politics.
  The Bible says there is a time for every season. There are Republican 
Presidents. There are Democratic Presidents. There is ultimately a 
balance. What is happening today, what happened last year with the 
unprecedented filibustering of judicial nominees was an attempt to 
change the Constitution, to require a supermajority for Supreme Court 
and circuit court nominees. We are changing the flow, changing the 
balance. We are getting rid of and will deprive this Nation of people 
with great intellect and passion because they won't be able to get past 
the roadblock of the minority.
  The caution I hope some in the minority will take to heart is, what 
happens when the shoe is on the other foot. How would they feel if a 
future Democratic President's nominees were treated in the same 
fashion? In this body, we have to live with the precedents we set. The 
whole concept of due process is about guaranteeing a set of procedures 
which reach a fair outcome. It is not about guaranteeing one particular 
outcome.
  Some in the minority are so bent on defeating a few of the 
President's nominees that they will distort the process to achieve the 
outcome. They will distort precedent and tradition. They will distort 
what has given us a balance of great intellect and passion and great 
minds on the Supreme Court. We will lose that. That would be a terrible 
thing.
  We are stewards not only of government but of the Constitution. It is 
our solemn oath to maintain the orderly completion of the Senate's 
business, specifically the fulfillment of our constitutional 
responsibility. Today, we are on the cusp of having to assert the 
constitutional option. I hope it will not come to that.
  Now I hear rhetoric from some Members of the minority that they are 
prepared to compound their error by killing the remainder of the jobs 
agenda that we are ready to pass in the Senate. The National 
Association of Manufacturers said this week that passage of the jobs 
agenda items--including the highway bill, the Energy bill, the asbestos 
reform bill, and telecom rewrite--would be a $1 trillion jolt to the 
American economy, to the U.S. manufacturing industry. Any Senator from 
States that don't need manufacturing jobs should feel free to object.
  We need to focus not on the process but the result. I have a 
responsibility to advise and consent on the appellate judges the 
President has submitted. I will exercise that responsibility whether 
there be a Democratic President or a Republican President. I will look 
to their qualifications and then give them what they deserve: an up-or-
down vote.
  If need be, I support my leadership taking necessary steps to allow 
me to reach that constitutional decision with a simple up-or-down vote. 
That is all we are asking for.
  I yield the floor.
  The PRESIDING OFFICER. The majority whip is recognized.

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