[Congressional Record Volume 151, Number 64 (Monday, May 16, 2005)]
[House]
[Pages H3300-H3305]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           SENATE FILIBUSTER

  The SPEAKER pro tempore (Mr. Dent). Under the Speaker's announced 
policy of January 4, 2005, the gentleman from New Jersey (Mr. Pallone) 
is recognized for 60 minutes as the designee of the minority leader.
  Mr. PALLONE. Mr. Speaker, I do not intend to use all the time this 
evening, but I did want to take to the floor this evening on the first 
day of this week because of my concern of what may be happening in the 
Senate on the issue of the filibuster.
  I know that the word filibuster to many may seem a little obscure. 
People ask what it is about, why it is significant, but I do want to 
say that in

[[Page H3301]]

my home State of New Jersey there have been many manifestations by New 
Jersey residents of all walks of life about their concern if the Senate 
Republicans were to go so far as to eliminate the filibuster.
  About 2 or 3 weeks ago, at Princeton University in New Jersey, a 
group of students started their own filibuster to basically point out 
how important they thought the filibuster was, and they went on for 2 
or 3 weeks, or as far as I know they may still be continuing, but all 
hours of the night, 24 hours a day, 7 days a week having different 
students and different people, including myself, I went one day on a 
Saturday with my kids to basically talk about the filibuster. My son 
read from one of his favorite Goosebumps novels.
  The point that so many of these Princeton University students and New 
Jersey residents were trying to make was that the filibuster is a 
guarantee of minority rights. They see it, and I see it, and the 
Democrats here in the House of Representatives see the filibuster as a 
way of checking the absolute power, the absolute power of the majority, 
in this case the Republican majority.
  And of course it is true that the Republicans are in the majority. 
They control the majority in the Senate, here in the House, the 
President is also Republican, but I would feel the same way regardless 
of which party was in power; that the filibuster is a way to guarantee 
that the Senate acts on a consensus basis, particularly with judicial 
nominees.
  It was always envisioned by our Founding Fathers that the Senate 
would be different than the House of Representatives. The House of 
Representatives, because each of us represents a fairly equal number of 
constituents, is the representative body of the people. We act through 
majority rule. However, in the Senate, it was always envisioned there 
had to be more of a consensus; that there would not be the power of the 
absolute majority. Because, after all, in the Senate they are not 
necessarily representative in the same way as the House. So you could 
have, as we have, two Senators from California, and they represent over 
50 million people, or millions of people, as opposed to a smaller 
State, like Delaware or Wyoming, where the numbers may be 500,000 
approximately.
  So it was always envisioned the Senate should act more on a consensus 
basis, and that is one of the reasons why the filibuster is in place, 
to provide a check on the power of the majority; to make sure that 
minority rights are represented.
  Now, I want to talk a little tonight, a little extended debate, if 
you will, on this whole issue, and I think it is important, first, to 
start with what the filibuster is. I am actually referencing a 
statement from the Filibuster Action Center at the People for an 
American Way. They say, what is the filibuster? The filibuster is one 
of our democracy's oldest and most important checks on the power of the 
majority. It preserves two of our bedrock values: One, protecting the 
rights of the minority; and, two, promoting compromise. And it works 
like this. If at least 41 Senators strongly oppose a bill or a judicial 
nominee, they can vote to continue debate and block a final vote on the 
issue. A final vote can only be taken if and when the majority wins 60 
Senators' votes.
  In the context of a Supreme Court battle, the filibuster means that 
60 Senate votes may be needed to confirm out of the mainstream judicial 
nominees rather than a simple majority of 51.
  For two centuries, our leaders have supported the tradition of the 
filibuster in order to promote cooperation and compromise, and because 
they have recognized the dangers of one-party control and the 
importance of protecting the rights of the minority.
  Now, there is a new word for what the Senate Republicans under 
Majority Leader Frist are trying to do, and it is called the nuclear 
option. I think that is their own phrase. Proponents of the nuclear 
option seek to break Senate rules and eliminate the filibuster on 
judicial nominations. They basically argue, and their justification is, 
the false argument, that the Constitution requires an up-or-down vote 
in the full Senate on every judicial nomination.
  This argument is very much refuted by more than 200 years of Senate 
history, during which literally thousands of judicial and executive 
branch nominees have been blocked in the Senate by filibusters, delays, 
and other tactics. Again, the idea being that it is necessary in the 
Senate, unlike the House, to have more of a consensus, hence the 60 
votes.
  Now, I would maintain, and I am continuing making reference to this 
document from the Filibuster Action Center, that the nuclear option 
proposed by the Senate Republicans is essentially a radical tactic that 
would prohibit Senators from using filibusters against extremist 
judicial nominees. Right-wing Senators and leaders are supporting this 
destructive action because they want to guarantee the Senate 
confirmation of far-right ideologues to our Federal courts, but 
especially our Supreme Court.
  The nuclear option is actually a series of steps that right-wing 
Senators would take to eliminate the filibuster. The nuclear attack 
would likely begin with one party's Senators provoking a filibuster, 
most likely by trying to force the confirmation vote on an out-of-the-
mainstream appeals court nominee. A Senator would then object, claiming 
that the filibuster could not be used on a judicial nomination. Vice 
President Cheney or another Senator presiding over the Senate would 
rule in the radical right's favor and then that ruling would be 
appealed. At that point, a simple majority, with Vice President Cheney 
as the tie-breaking vote, if necessary, would then uphold the ruling 
and the filibuster would be part of American history.

  Now, this nuclear option earns its name essentially for two reasons, 
Mr. Speaker. First, it breaks the Senate rules in order to eliminate 
another rule, the filibuster. Under normal Senate procedures it takes 
67 Senators, or two-thirds, to end debate on changing a Senate rule. So 
normally you would have to have 67 Senators, even more than 60, to 
change a Senate rule; but the nuclear option would violate Senate rules 
and require only 50 Senators, plus the Vice President's tie breaker.
  Secondly, the atmosphere in the Senate after this attack would 
resemble a nuclear winter. That is one of the reasons why they call it 
the nuclear option. All bipartisan cooperation would vanish and the 
Senate's legislative business would grind to a halt, only adding to the 
price Americans would pay for the right's reckless abuse of power.
  I wanted to make three points, again, this is from the People for the 
American Way from the Filibuster Action Center, three very important 
points that I think they make.
  One is that filibusters are in fact constitutional. The U.S. 
Constitution gives Senators the vital responsibility and power to 
confirm or reject the President's nominees to our Federal courts. That 
is in the Constitution, Article II, section 2. The Constitution also 
gives Senators the authority to create rules for their own Senate 
proceedings. That is in the Constitution, Article I, section 5.
  For over 200 years, almost since the very founding of this republic, 
the filibuster tradition has been maintained under this authority and 
used by Senators of both parties, including the GOP Senate majority 
leader Bill Frist, in an effort to prevent the confirmation of judicial 
and other nominees.
  The second point. If filibusters reflect the democratic vision of our 
Founding Fathers, a primary goal of the filibuster is to force greater 
deliberation and compromise on controversial Senate matters by 
requiring that they receive 60 votes to proceed. More of consensus. 
Since it is legitimate to filibuster controversial legislation that 
future Congresses can revisit, it is even more appropriate to allow 
filibusters when considering lifetime appointments to powerful 
positions on the Federal Judiciary.
  Remember, these Federal judicial appointments are for life. That is 
in the Constitution. Our Founding Fathers wanted America's courts to be 
an independent branch of government, free of partisanship. Because 
Federal judges serve lifetime terms it is important both parties help 
determine who is appointed to the Federal bench.
  Lastly, on this point, Mr. Speaker, and again I think this is so 
important, that filibusters are really necessary to prevent one party 
from having absolute power, which is what the Republican Party wants 
right now in Washington.

[[Page H3302]]

  The outgoing Republican chairman of the Committee on the Judiciary, 
Senator Orrin Hatch, has himself explained that the filibuster is, and 
I quote, ``one of the few tools that the minority has to protect itself 
and those the minority represents.''
  For 200 years, the filibuster has been an essential part of our 
system of checks and balances and has appropriated cooperation and 
compromise. I would say consensus. Senators have retained the 
filibuster rules because they recognize the dangers of one-party 
control and the importance of protecting the rights of the minority.
  I think America works best when no one party has absolute power.
  I just wanted to now go, if I could, Mr. Speaker, into this myth that 
I think Senator Frist and certainly the leadership on the Republican 
side in the Senate are trying to give out to the American people; that 
somehow the Constitution requires an up-or-down vote on a judicial 
nominee.
  If you look at the true history of checks and balances and the advise 
and consent in the Senate, it is often the case that a nominee never 
has a vote because the nominee is simply too far, in this case, to the 
right ideologically to achieve a consensus, to achieve the 60 votes. 
And there is nothing in the Constitution that says there has to be an 
up-or-down vote on a judicial nominee if that person is not acceptable 
because they are too extreme, which is essentially what we have in some 
of these cases.

                              {time}  2130

  Again, I am making reference to the People for the American Way 
report on this and they say: ``To justify a truly unparalleled nuclear 
option parliamentary maneuver to end filibusters of judicial 
nominations by breaking the Senate's rules, Senate majority leader Bill 
Frist asserts that Democratic filibusters are unprecedented and that 
Senators have a constitutional duty to give Presidential nominations an 
up-or-down vote on the Senate floor. This assertion is squarely refuted 
by the history of the confirmation process in the Senate.''
  To the contrary, as the examples that I am going to be giving 
illustrate, for over 200 years Members of the Senate have used delaying 
tactics, including the filibuster, to defeat Presidential nominations 
to both the Federal judiciary and the executive branch. On many 
occasions, they have been successful.
  Furthermore, nuclear option proponents themselves, including Senator 
Frist, have repeatedly used the filibuster themselves to delay 
nominations, including judicial nominations, and have been successful 
in defeating nominations through a filibuster and other delaying 
tactics, in which case the nomination never came to the floor for an 
up-or-down vote.
  Under the Senate rules, there is a right of unlimited debate on any 
question that comes before the Senate, including a nomination. It takes 
60 votes to invoke cloture, ending unlimited debate and bringing a 
nomination or other matter to a final vote. It takes two-thirds of the 
Senators present, as many as 67, to end debate or on a change to the 
Senate rules.
  So the nuclear option is a proposed parliamentary maneuver which 
requires a simple majority to get around the Senate rules and amend the 
Senate rules that requires 60 Senators to end a filibuster. Nowhere in 
the Constitution, in the text of the Constitution, is there a 
requirement for a simple majority for a vote on nominations or for any 
vote at all. What the Constitution does expressly say is that the 
Senate holds the sole power to make its rules, which certainly must 
include the rules governing debate on the Senate floor. Again, this 
interpretation is validated by over 216 years of Senate consideration 
of nominations.
  I want to give some examples because I do not want to just talk about 
this in the abstract. Until 1949 when Senate rule XXII was amended to 
allow the Senate to invoke cloture on any matter before the Senate, 
there was no way for the Senate to end extended debate or delaying 
tactics on a nomination. It simply kept going. In the last 32 years of 
the 20th century, the Senate leadership was forced to file cloture on 
at least 34 nominations to end a filibuster on the Senate floor.
  Among those 34 were 13 judicial nominations, of which three people 
were nominated to be justices of the Supreme Court. So 26 of the 34 
filibusters, including in these cases Federal judges, approximately 
three-quarters were led by Republican Senators.
  So when they talk about how it is the Democrats are trying to do 
this, they should keep in mind that in three-quarters of the cases 
where filibusters were used in the last 30 or 40 years to stop a 
judicial nomination, it was the Republicans that were using the 
filibuster.
  I will give some examples. Among these, Abe Fortas, nominated in 1968 
to be a Chief Justice of the U.S. Supreme Court, was denied a final up-
or-down vote by a Republican-led filibuster when the Senate failed to 
stop on a vote to invoke cloture by 45-43. In that case, while the vote 
indicates that a majority of the Senate supported a final vote because 
of primarily Republican obstructionism, a final up-or-down vote did not 
occur. Senator Howard Baker argued during debate in defense of the 
filibuster of Justice Fortas by a Senate minority: ``On any issue, the 
majority at any given moment is not always right.'' Basically invoking 
the argument about minority rights.
  Similarly, the nomination of Henry Foster to be Surgeon General was 
killed by a successful Republican filibuster in 1995, as was the 
nomination of Sam Brown to be a U.S. ambassador in 1994. On both of 
these votes, a clear majority of the Senate supported the nominations. 
The exact same advice and consent clause in the Constitution applies to 
both judicial and executive branch nominations.
  Mr. Speaker, I just wanted to point in several cases the proponents 
of the nuclear option are supporting or have supported several of these 
filibusters. For example, Senator Frist supported a filibuster against 
U.S. Circuit Court of Appeals nominee Richard Paez in 2000. Senate 
Republicans, including Frist, Lott and McConnell, were so adamant to 
try to block a final vote on Paez that they forced the Senate to vote 
an extremely rare motion to postpone the nomination indefinitely after 
cloture had been invoked.
  Some current nuclear option proponents have been among the most 
frequent Republican filibusterers of nominations. Senators Lott, Hatch 
and McConnell all voted against cloture to continue a filibuster on 11 
nominations during the first 3 years of the Clinton administration, 
including on two occasions where filibusters defeated nominees with 
majority support in the Senate.
  Former Senate majority leader Trent Lott on at least one occasion 
even prevented a cloture motion from being filed on a nomination. In 
1998, President Clinton named James Hormel to be the U.S. ambassador to 
Luxembourg. Despite an overwhelming bipartisan vote of approval in 
committee, 16 to 2, Lott simply refused to bring the nomination to the 
floor despite clear evidence that at least 60 Senators would have voted 
to confirm the nomination.
  I could give many more examples, but I am not going to. I am trying 
to point out the hypocrisy, essentially, in the fact the Senate 
Republicans, including some who oppose the filibuster, have in the past 
used it in so many cases, including against judicial nominees.
  Mr. Speaker, the gentleman from Michigan (Mr. Stupak) has joined me, 
and I yield to the gentleman.
  Mr. STUPAK. Mr. Speaker, I saw the gentleman speaking on the floor on 
this important issue, and I wanted to join the gentleman.


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mr. Dent). The gentleman will suspend. The 
Chair must advise the gentleman from New Jersey that, under clause 1 of 
rule XVII, his allusions to hypocrisy are improper.
  Mr. STUPAK. Mr. Speaker, I wanted to just come down here because it 
is a very important issue. It is often said in this House we sort of 
rush things through, and if it has 218 votes it passes; but the Senate 
is designed by our Founding Fathers to be more deliberate, more 
thoughtful, to take time and reason things out.
  In order to do that, the minority party, whichever party it may be at 
the time, has certain rights that must be respected and honored. And 
what we have seen these last few years, that has not happened.

[[Page H3303]]

  Unfortunately, when you have one party controlling the House, the 
Senate and the Presidency, at times they get caught up in their 
judicial power, their legislative power, their executive power; and 
they forget about the founding principles of this country, that is, 
that whether you are in the majority or minority party, there are 
certain things that should be respected and the right of the minority 
to be heard.
  Whether it is a filibuster, or whether it is on the floor to have an 
amendment or a substitute bill, the minority should always have that 
right. In the last few years, I know I and other members of the 
minority party have felt we have been blocked from even having any 
thoughtful consideration of legislation. It is the main bill, no 
amendments are made in order, especially Democratic amendments, and 
they just ram things through.
  Or with the Medicare reform bill, we have 15 minutes to vote; but it 
is left open for 3 hours and twist arms and have ethics investigations 
on the way those votes were obtained. Those are things when you do it 
at 3 in the morning and the vote closes at 6 in the morning like it did 
on the so-called Medicare reform bill, which is the prescription drug 
bill, and I am sure people will not be happy next year when they see 
it; but to hold a vote open from 3 to 6 in the morning, what is the 
majority afraid of?
  One of the founding principles of any democracy, the credibility of 
your democracy, is how does that majority party treat the minority 
party. I never learned more about this than when I was dealing with a 
number of issues dealing with NATO, the North Atlantic Treaty 
Organization. In order to be admitted to NATO, the dominant country, 
the majority population, has to treat that minority population with all 
due respect and courtesies in the legislature and in the executive and 
the way they are treated in their society.
  Being of Slovakian descent, I was instrumental in trying to get 
Slovakia, and one of the reasons they were not admitted to NATO sooner, 
there was concern with how Slovakia treated the Hungarian minority in 
their country. And until reforms were made to show that the Hungarians 
had a voice in that country and an opportunity to make their views 
known, they were not going to be allowed into NATO.
  So here we have the United States Senate, which says to bring 
anything before the floor, to have a thoughtful, deliberate 
consideration, you have to have 60 votes. It is 55-45. You have to have 
cooperation. The rules force you to cooperate.
  Not like here where it is martial law: there is a rule, it passes, no 
amendments, no substitute bill, go with the majority bill and that is 
it, vote ``yes'' or ``no.''
  But in the Senate, it is different. The rules force you to get along. 
It forces you to talk with each other and discuss the legislation. What 
do you object to, how do we do this.
  So that is why you have this 60-person majority to bring anything to 
the floor under a unanimous consent agreement.
  If we look at the judicial nominations that President Bush has 
enjoyed in his 4-plus years in office, there have been 250, and I think 
208 have been approved. This is 96 or 97 percent have been approved. 
That is the best record of any modern-day President: more than 
President Carter, President Clinton, or the first President Bush.
  Not everyone who is nominated who may be a Federal district court 
judge is automatically qualified to be elevated to the court of appeals 
or even the Supreme Court. You have a different set of facts. One is a 
trial judge; the other one is an appellate review judge. And the higher 
up, the broader your powers over a greater part of the Nation, 
especially the judicial circuits, all the way to the Supreme Court 
where one vote could determine the law of the land. So I think you need 
to have a certain judicial temperament to be elevated to each one of 
those steps. Those few who have been objected to have been based upon 
judicial temperament of the individual or the inexperience, whatever it 
may be; but that is for the Senate to decide.
  To change the filibuster rules, if you will, change it for all of it, 
but they only want to change it for judicial and Presidential nominees. 
Why not change it for all legislation?
  Mr. PALLONE. Mr. Speaker, I think it is just an excuse. I think they 
are using the judicial nominees and ultimately we will see it for 
everything else. There is no reason to make the distinction. I would 
argue there is a stronger case for judicial nominees because they are 
lifetime judges, and so it is an even stronger case why there should be 
a consensus and a filibuster should be used.
  Mr. STUPAK. Absolutely. If a filibuster is so bad, it should go to 51 
votes and not 60, and do it for everything. If you are going to do it 
for the judges, do it for everybody. Let us do it for the environmental 
laws, labor laws. Let us do it for trade agreements, defense; let us do 
it before we go to war, as we did in Iraq. That took 60 votes. But we 
only want to do it for the select few people.
  So if you are really going to have a majority and minority party, if 
you are going to respect the spirit and the thought behind a minority 
party being respected by the majority party, if you are going to change 
the rules, apply them to all of the rules, not selective rulemaking. 
That is worse than the autocracy or dictatorship or whatever word you 
want to use where one party determines everything. That is where you 
have to be very careful.
  In my home State of Michigan, we had a judge nominated by President 
Clinton, Judge White, who sat for over 7 years. Judge White never got a 
hearing, never did anything. The majority party, then the Republican 
Party, said we are not going to look at it. I am not saying that is the 
reason why they are blocking this handful of nominees by the President, 
because of Judge White; but the point being we have never seen the 
threat of nuclear option being used before. We saw Judge White sit 
there for 7 years and was certainly fit for the job. I am not saying 
tit for tat or anything like that, but what goes around comes around; 
and there will be a time, hopefully soon, when the Democratic Party 
will be back in the majority on the Senate side.

                              {time}  2145

  I would hate to see this where, well, you blocked us, we're going to 
block you, or you do this, we do that. That does not do anything for a 
democracy. The idea behind it that our Founding Fathers had for 217 
years has been, there is a minority party which slows things down in 
the Senate. You may not like it but we have got to take our time and 
make sure that we do it properly. This President enjoys 96 or 97 
percent of all his nominees being sent up and approved. But I guess 
they want 100 percent. I understand last week they even had an offer to 
approve a few more of these judges in good compromise, good spirit so 
we do not have any problems in the Senate. Because I really hate to see 
this nuclear option that you spoke so eloquently of become a reality in 
the U.S. Senate because that defeats the whole purpose of the Senate. 
We should have thoughtful deliberations, something we do not have a lot 
of time for here. And I understand the rules are different in the House 
because there are 435 of us. If we all got up to speak our mind, 
nothing would ever get done around here. But here is an opportunity to 
show the true principles of democracy and I think the true principles 
of democracy is again how the majority party treats the minority. They 
respect them. They give them an opportunity to be heard.
  Do they have an opportunity to follow the rules and abide by them, 
those rules, when it applies to the minority when they are the majority 
or the majority when they are back to the minority? I would hope we 
would not get to this nuclear option. I would hope that reasonable 
minds would prevail. For 217 years it has served our country well. I 
just hope we do not change those rules on judicial nominees. As you 
indicated, it is a lifetime appointment, cannot be really recalled 
unless there is gross, gross, gross, improper behavior on the judicial 
bench which usually does not happen thankfully in this country.
  We are a country of laws. We are a country of rules. No one party or 
no one person should prevail over them. This President has had, as I 
said, 96 or 97 percent, 208 of 215 nominees approved, some just in the 
last week or two. I do not think this nuclear option is viable. I would 
hope that we would

[[Page H3304]]

treat the Senate with all due respect. I would hope that the other body 
would take this decision carefully and not invoke a nuclear option. 
Because the only thing left then for the minority party on this side, 
being the Democratic Party on the Senate side, is to try to disrupt the 
proceedings of that Chamber.
  If they are going to change the rules to suit them every time 
something they do not agree upon comes up, that is not really a 
democracy anymore and I think then the Senate minority party has to do 
what they feel is appropriate to bring attention to the mistreatment or 
maltreatment by the majority party. I hope it would not come to that 
because it does not speak well of our democracy. We are supposed to be 
an example for the rest of the world and how you treat a minority party 
by the majority certainly is one of the most critical factors that they 
look to.
  We brag about how our country, that our President may ask us to 
declare war and if we do, the military listens to the civilian. That is 
a great respect that people always marvel at, how a popularly elected 
or electoral college-elected President can have control of the 
military, that the military does not see the President as a threat or 
the President does not see the military as a threat. That same 
principle should apply when we deal with one another in these great 
halls of Congress, whether it is the House or the Senate side.
  Unfortunately we are not seeing that. If we don't get our own way, 
we'll just change the rules. After 217 years, that is not the way to 
run this country. For whatever reason why they have to have these last 
seven or eight judges approved to give the President 100 percent, no 
one gets 100 percent nowadays. Not even the schoolyard bully gets 100 
percent. There are times when we have to stop and say, okay, step back 
a little bit. I would urge the majority party in the other body to step 
back and do not invoke this nuclear option.
  Reading Congress Daily today, I guess the first signs of it are set 
for Wednesday. We hope it does not get to that. They are talking about 
staying in all weekend and debating this issue. Debates are fine. Let 
us respect the rules of the body, whether it is the House or the 
Senate.
  I thank the gentleman from New Jersey for his leadership on this 
issue and others as he is down here each night working hard for the 
democracy and for the right of everyone to speak out during their time 
and place here on this House floor or in the other body.
  Mr. PALLONE. Mr. Speaker, I want to thank my colleague from Michigan 
and his willingness to come down here tonight. I know we both feel very 
strongly about this. Sometimes I think it is hard to explain because 
people's images of the filibuster are somebody standing up on the 
Senate floor reading the phone book, almost like ridiculing the 
process. But the bottom line is it is a very important part of our 
democracy.
  As you mentioned and I really did not get into it much tonight but I 
will mention briefly that we have seen here in the House many abuses of 
power by the Republican majority. You mentioned some of them, where 
bills do not even come to committee anymore, or bills in committee do 
not have a hearing, or they skip the subcommittee mark, or they go to 
full committee and they do not allow Democrats to offer amendments, or 
bills come to the House floor with a totally closed rule, so there is 
no opportunity for amendment, or there is very little time for debate. 
In fact, one of the reasons that you and I are here tonight doing 
special orders is because oftentimes we do not get a chance to speak 
during the day when legislation is being discussed because the rules 
are very limiting.
  We have just seen many examples where the Republican majority has 
limited in the House of Representatives the ability of the minority to 
speak or offer amendments or offer changes in policy. We do not want to 
see the Senate go down that route. Clearly, particularly on judicial 
nominations, the intent of the framers was that there had to be a 
consensus and the Senate was going to be a deliberative body that 
operated more, as I said, on a consensus basis.

  I just wanted to say again, I was making reference to this document 
from the People for the American way where Senator Frist is justifying 
this nuclear option or this parliamentary maneuver where he would 
simply have a majority vote on a rule change and that has never been 
done in the history of the United States Senate. For over 200 years, 
nearly as long as there has been a Senate, there have been documented 
examples of presidential nominations rejected by the Senate without 
even having an up-or-down vote, through delay, inaction, parliamentary 
tactics, including the filibuster. That history, I think, demonstrates 
conclusively that from the text of the Constitution there is no 
requirement for the Senate to vote on a presidential nomination. There 
is not a requirement that the Senate take any action at all on a 
nomination, which has often been the case. And the history of the 
confirmation process in the Senate illustrates another central fact, 
that Presidents have had the most success with their nominations when 
they have viewed the entire Senate as a partner in the nominations 
process, not an adversary. If you listen to Senator Frist, it is as if 
the Democrats are an adversary. That is not the way it is supposed to 
be. The better way out of this current stalemate and the best way to 
preserve our independent judiciary is not the tyranny of the majority 
in the Senate but a genuine bipartisan cooperation and consultation 
with Senators on both the Democrat and the Republican side of the 
aisle.
  Mr. Speaker, as I said and my colleague has said, we continue to see 
abuse of power by the congressional Republicans.
  I will give you another example. Earlier this year here in the House, 
Republican leaders ignored protocol and weakened the House ethics rules 
without ever talking with Democrats about the proposed rules change. It 
was the first time the House ethics rules have been changed without 
both sides, Democrats and Republicans, sitting at the table and writing 
new rules together. Fortunately, both conservative and liberal 
newspapers around the country and the American people saw the weakened 
rules for the Ethics Committee for what they were, just a power grab 
and an attempt by the Republican leadership to protect one of their 
own. The Republican leaders were forced to backtrack and reinstate the 
rules a couple of weeks ago after Democrats refused to allow the Ethics 
Committee to meet until the rules were reinstated and the pressure from 
the public became too great.
  But it appears that the Senate Republicans learned nothing from that 
experience in the House with the rules change that the House 
Republicans tried to make here. Instead, the Senate Republicans seem 
prepared to overreach this week, as my colleague said, we hear as early 
as Wednesday, in an attempt to blow up 200 years of tradition in the 
U.S. Senate. Majority Leader Frist and Senate Republicans are on the 
cusp of waging an unprecedented political grab, abusing their power in 
order to force through a few judges who have been unable to earn a 
bipartisan consensus for their lifetime judicial appointments.
  This power grab was initiated by the White House, which manufactured 
a judicial crisis. I think my colleague from Michigan mentioned that 
since President Bush has taken office the Senate confirmed 208 of his 
judicial nominations and turned back only 10, a 95 percent confirmation 
rate. That is the highest approval rating for any President in modern 
times, including Reagan, Bush and Clinton. Thanks to these 
confirmations, President Bush now presides over the lowest court 
vacancy rate since Ronald Reagan was President.
  There is no judicial crisis here, Mr. Speaker. It is manufactured by 
the Republicans. Despite the fact that Democrats have helped confirm 95 
percent of President Bush's judicial nominees, the President is 
choosing to pick fights and resubmit the names of nominees who have 
been rejected during his first term. There were 10 nominees that our 
Democratic colleagues in the Senate opposed because they had serious 
questions about their independence and fairness.
  One wonders, why are the Republicans preparing to throw out all these 
constitutional checks and balances just for a couple of extreme judges? 
Some people say it is because of the Supreme Court, that President Bush 
wants this fight on the filibuster before a Supreme Court justice 
retires, which is something that could happen anytime. That

[[Page H3305]]

may be what is behind it, but it is still really not the way to 
proceed. To say that Supreme Court nominees would only need 51 votes 
instead of 60, again there would be no consensus on the very important 
selection of Supreme Court judges.
  Again, I think it is just the right wing of the Republican Party that 
wants to appoint extreme conservatives to the highest court in the land 
and they simply know they cannot do it if they have to meet the 60-vote 
threshold. The White House does not want to nominate another David 
Souter or an Anthony Kennedy or a Sandra Day O'Connor or a Steven 
Breyer, all of whom were confirmed with nearly unanimous bipartisan 
support. Instead, it wants to divide the country by picking a right-
wing Supreme Court nominee that it knows could not garner bipartisan 
support.
  I just think that again although the motivation may be in terms of 
the Supreme Court, the bottom line is that we should not be sacrificing 
this very important safeguard of our democracy, the filibuster, just to 
appoint some conservative judges that the President wants to nominate.
  The last thing I wanted to say, again there is a difference between 
the House and the Senate. The framers did not want the Senate and the 
House to be the same. They saw two different bodies. One of the things 
that would likely happen is if this nuclear option was presented and 
the filibuster was overturned is the Senate would basically become a 
second House of Representatives. That is not what the Founding Fathers 
envisioned when they created two distinct Chambers.
  Again, I do not know what is going to happen, but I think we have to 
speak out and say that this is not just something that myself and my 
colleague from Michigan feel strongly about. I know and I have even 
seen polling that suggests that the American people feel very strongly 
about this. That is one of the reasons why we had this 2 or 3-week 
filibuster at Princeton University and why some of the Princeton 
students came down here last week and brought a bus, they called it the 
``filibus,'' we were down on the Mall and we spoke to make the point of 
how important the filibuster is as a safeguard of democracy.

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