[Congressional Record Volume 151, Number 65 (Tuesday, May 17, 2005)]
[Senate]
[Pages S5250-S5251]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. REID. Mr. President, yesterday afternoon the majority leader and 
I met one last time trying to reach a compromise that would avert the 
so-called nuclear option. The so-called nuclear option is nothing that 
we named. I know for cosmetic purposes those in the majority now have 
tried to call it a ``constitutional option,'' which must be directly 
out of Orwell's book ``1984'' because it means everything but a 
constitutional option. The name came from the Republican leadership 
last year. So the ``nuclear option'' is a name from the majority, not 
us.
  I do not know if they met with my friend, Frank Luntz, or with whom 
they met to change the name from ``nuclear option'' to a softer 
sounding proposal, ``constitutional option.'' As I said, violating 217 
years of standard procedure in the Senate, changing the rules by 
breaking the rules, is about as far as you could get from a 
constitutional option.
  But it appears that my distinguished friend, the majority leader, 
cannot accept any solution which does not guarantee all current and 
future judicial nominees an up-or-down vote. That result is 
unacceptable to me because it is inconsistent with constitutional 
checks and balances. It would essentially eliminate the role of the 
Senate minority in confirming judicial nominations and turn the Senate 
into a rubber stamp for the President's choices. In fact, the majority 
should look carefully at what they are getting because not only would 
this eliminate the role of the Senate's minority but also the majority 
in judicial confirmations. The majority would be eliminated, too. The 
Senate would no longer have a role.
  I can only conclude that the true purpose of the nuclear option is 
not to win confirmation of some or all of the small handful of nominees 
Democrats filibustered last year. Remember, today it stands at 208 to 
10. And focusing on the number 10 is somewhat misleading because of the 
10, 3 have either withdrawn or retired. And we have said, time and time 
again, that 2 of the remaining 7 we would agree to 10 minutes from 
now--2 Michigan judges. So it is really 208 to 5--208 to 5.
  So the goal, it appears to me, of the Republican leadership--and note 
I do not say of the mainstream Republicans in this country, I do not 
say of the Republicans in the Senate--but, rather, the goal of the 
Republican leadership in this body and their allies in the White House 
is to pave the way for the future, so that the Senate would basically 
be eliminated from the confirmation process. They don't want consensus, 
they want confrontation.
  Yesterday, after rejecting our last attempt at a compromise, the 
majority leader issued a statement. In this statement, the majority 
leader said there is going to be an upcoming debate over judicial 
nominations, and he said he hoped the upcoming debate is free from 
``procedural gimmicks like the filibuster.'' That is a quote: 
``procedural gimmicks like the filibuster,'' ``procedural gimmicks like 
the filibuster.''
  We had a freshman Senator go to the Middle East and tell the leader 
of Iraq that the United States was different than any other country in 
the world because of the filibuster--a Republican Senator. A gimmick?
  The filibuster is not a procedural gimmick. The filibuster is an 
important check on executive power and part of every Senator's right to 
free speech in the Senate. Robert Byrd, on Thursday, from this desk 
right behind mine, talked about free speech.
  Senator Robert Byrd has been in the Senate for approximately 25 
percent of

[[Page S5251]]

the time this country has existed. I should say in the Congress--47 
years in the Senate, 6 years in the House of Representatives--more than 
50 years, approximately 25 percent of the time that we have been a 
country. He should know something about free speech. He was here on the 
Senate floor when the great Margaret Chase Smith, a Republican Senator 
from Maine, talked about the value of free speech in the Senate. He was 
in the Senate when the Republican Howard Baker talked about the 
importance of the filibuster in protecting our democracy. A gimmick? I 
think not.
  Senator Byrd was in the Senate when the debate over civil rights took 
place. I heard Barack Obama upstairs with the press corps say: Isn't it 
interesting, the filibuster was used against African Americans but they 
worked around it and prevailed in spite of it. They didn't move to 
change the rules in the middle of the game.
  Senator Robert Byrd was here when Dan Inouye, the Medal of Honor 
winner from Hawaii, a new Senator, came to the floor, and as an Asian 
American whose friends and family were put in internment camps during 
the Second World War, spoke on the Senate floor about what it means to 
be a minority and how the filibuster should be available to protect the 
minority. A gimmick? I think not.
  Over the years, the filibuster has proven to be an important tool of 
moderation and consensus, which partly explains why the Republican 
leadership is opposed to it. They aren't interested in moderation. They 
are only interested in advancing their right-wing, radical political 
agenda, an agenda being driven by the people who are saying we are 
filibustering against people of faith.
  Mr. President, every day--for 23 years--with rare exception, I go to 
the House gym and work out. There I met Congressman Rush Holt. He is a 
nuclear scientist, a Congressman from New Jersey. Rush's father, also 
named Rush Holt, served in this Chamber in the late 1930s. As a 
freshman United States Senator, he led a filibuster to preserve wage 
and hour protections for American workers. Rush Holt, Jr., is so proud 
of his father. He talked to me about the pride he had in his father 
being a United States Senator, and he told me this story about the 
filibuster his father conducted alone to preserve wage and hour 
protections that had come about as part of the New Deal. He wasn't 
using a political gimmick. He was using something that was part of the 
vision of our Founding Fathers, something they wanted in this body to 
make it unique and different--free speech. An important tool to stand 
up for working men and women in this country, that is what Senator Rush 
Holt, Sr., was using.
  Of course, the filibuster has not always been used for good. I 
acknowledge that. Just as it has been used to bring about social 
change, it was also used to stall progress--I have talked about that--
things this country needed to change, such as civil rights legislation.
  But Senator Barack Obama speaks in favor of the filibuster. He 
understands, as an African American, why it is important. But at these 
times people have spoken and public opinion has spurred this Chamber 
into action, as indicated, it brings about compromise. So you see the 
filibuster is not a political gimmick. It is part of the fabric of this 
institution we call the Senate, the greatest debating society in the 
world--or at least it has been so far. Is that going to be taken away 
from us?
  While I was in the gym this morning, Mr. President, I was stopped by 
a Republican House Member. I will not name him for fear the Republican 
leadership in the House will remove him from a subcommittee or whatever 
they do to punish people over there, and we know that happens. But 
everyone within the sound of my voice should know that I am telling the 
truth. A Republican House Member came to me this morning and said: I 
never thought I would say this to the Democratic leader of the Senate, 
but I am praying for you, that you prevail in this battle going on in 
the Senate. A Republican House Member is praying for me and this 
institution to maintain the institution as it is.
  So as the moment of truth draws near, I, too, am praying, Mr. 
President. I do not say that lightly. I pray that cooler heads will 
prevail and the responsible Republicans--and they are there, I know 
they are there--such as this Congressman who spoke to me this morning, 
will join Democrats in standing up against this abuse of power, to 
maintain our checks and balances, to maintain the separation of powers 
that has made this country the power that it is, one that the world 
looks upon with awe, inspiration and admiration.

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