Congressional Record, Volume 151 Issue 69 (Monday, May 23, 2005)

[Congressional Record Volume 151, Number 69 (Monday, May 23, 2005)]
[Senate]
[Pages S5715-S5743]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE SESSION

______

NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE
FOR THE FIFTH CIRCUIT--RESUMED

The PRESIDENT pro tempore. Under the previous order, the Senate will
proceed to executive session for consideration of Calendar No. 71,
which the clerk will report.
The legislative clerk read the nomination of Priscilla Richman Owen,
of Texas, to be United States Circuit Judge for the Fifth Circuit.
Mr. FRIST. Mr. President, over the last 3 days, for 26 hours, the
Senate has debated a very simple, straightforward principle. Qualified
judicial nominees, with the support of the majority of Senators,
deserve a fair up-or-down vote on the Senate floor. A thorough debate
is an important step in the judicial nominations process.
Debate should culminate with a decision, and a decision should be
expressed through that up-or-down vote, confirm or reject, yes or no.
The Constitution grants the Senate the power to confirm or reject the
President's judicial nominees. In exercising this duty, the Senate
traditionally has followed a careful and deliberative process with
three key

[[Page S5716]]

components: first, we investigate; second, we debate; and third, we
decide. We investigate by examining nominees in committee hearings and
studying their backgrounds and qualifications. We debate by publicly
discussing the nominees in committee and on the floor, and we decide
through an up-or-down vote. Investigate, debate, decide--that is how
the Senate and the judicial nominations process operated for 214 years.
But in 2003, the Senate stopped short of a decision. A minority of
Senators began routinely blocking final votes on judicial nominations.
As a result, the nominees have been left in limbo. Courthouses sit
empty. Justice is delayed. Political rhetoric has escalated, and
political civility has suffered. It is time once again to decide.
The moment draws closer when all 100 Senators must decide a basic
question of principle--whether to restore the precedent of a fair up-
or-down vote for judicial nominees on this floor or to enshrine a new
tyranny of the minority into the Senate rules forever. I favor
fairness and an up-or-down vote.

The individual nominee now before this body is Priscilla Owen.
Justice Owen is a qualified, mainstream judicial nominee. She is a
sitting member of the Texas Supreme Court who has received the highest
possible rating by the American Bar Association. She has been reelected
by 84 percent of the people in her home State. More than 4 years ago,
the President nominated her to be a judge on the U.S. Court of Appeals
for the Fifth Circuit. Since then the Senate has thoroughly and
exhaustively investigated and debated her nomination. A brief look at
the record tells the story.
The Judiciary Committee has held two hearings on her nomination
lasting more than 9 hours. During the hearings, Justice Owen answered
more than 400 questions from Senators on the committee. After the
hearings, Justice Owen submitted 90 pages of responses to an additional
118 written questions. The Judiciary Committee has debated her an
additional 5 hours before committee votes. Today marks the 20th day of
Senate floor debate on Justice Owen's nomination. We have spent more
floor time on Priscilla Owen than on all the sitting Supreme Court
Justices combined.
Yes, Justice Owen has not received one single up-or-down vote on the
Senate floor--not one. Four years of waiting, 9 hours of committee
hearings, more than 500 questions answered, another 5 hours of
committee debate, and 20 days of floor debate, but not 1 up-or-down
vote to confirm or reject--not 1.
As majority leader, I have tried for 2 years to find a mutually
agreeable solution that will resolve this issue without sacrificing the
core principle of an up-or-down vote. I have offered to guarantee up to
100 hours of debate for every judicial nominee, far more than has ever
been necessary for any nominee in the past. I have offered to guarantee
that no nominee ever becomes unjustly stalled in the Judiciary
Committee, as some colleagues have alleged has occurred in previous
Congresses. Thus far these efforts have not been successful. I remain
hopeful that the Senate will restore the tradition of fair up-or-down
votes without the need for procedural or parliamentary tactics.
Tomorrow, Senators will have another opportunity to diffuse this
controversy. A cloture motion is pending before the Senate. If cloture
is invoked, it will bring debate to an orderly close. With cloture
pending, 60 votes cast in the affirmative tomorrow would yield a fair
up-or-down vote on Justice Owen. I look forward to the debate ahead. I
look forward to hearing from my colleagues. And I look forward to a
decision by all 100 Senators on the nomination of Justice Owen, a
decision expressed through a vote, a vote to confirm or reject, a vote
up or down.
The American people expect us to act and not just debate. They expect
results and not just rhetoric. We may not--in fact, we will not--agree
on every judicial nominee, but we can agree on the principle that
qualified judicial nominees deserve an up-or-down vote. Tomorrow, we
will vote, and all 100 Senators will decide--judicial obstruction or
fair up-or-down votes.
I yield the floor.
The PRESIDENT pro tempore. The Democratic leader is recognized.
Mr. REID. Mr. President, I wish to respond briefly to the
distinguished Republican leader's comments. Priscilla Owen has had
numerous votes. She has had three that I am aware of on the Senate
floor. Those votes dealt with whether we should stop debating her. The
votes three times have said no.
The Senate reception area is a beautiful part of the Capitol. I can
remember coming here in 1974 and Hubert Humphrey coming off the Senate
floor. He had to sit down. He couldn't stand to talk to me. I remember
the first time I had a conversation in that beautiful hall. I worked
here 10 years before that as a policeman. Of course, I recognized the
beauty of the building and of that beautiful room.
We have put out there what we refer to as a Hall of Fame of Senators.
It is a place where you have photographs of Senators who were extra
special Senators, people who the rest of the Senate, after that Senator
left the Senate, determined was somebody who deserved to be in the Hall
of Fame. One such man is Arthur Vandenberg. I wish I could have known
him. He was a wonderful Senator, a very progressive, thoughtful man.
My distinguished colleague, the Senator from Michigan, Mr. Levin,
read into the Record last week, May 20:

What the present Senate rules mean: and for the sake of law
and order, shall they be protected in the meaning until
changed by the Senate itself in the fashion required by the
rules?

He summarized this issue that is before the Senate today and did it
about 60 years ago on an occasion similar to this. How prescient are
his comments to the situation in which we find ourselves today.
Senator Vandenberg:

. . . [T]he rules of the Senate as they exist at any given
time and as they are clinched by precedents should not be
changed substantively by the interpretive action of the
Senate's Presiding Officer, even with the transient sanction
of an equally transient Senate majority. The rules can be
safely changed only by the direct and conscious action of the
Senate itself, acting in the fashion prescribed by the rules.
Otherwise, no rule in the Senate is worth the paper it is
written on, and this so-called ``greatest deliberative
body in the world'' is at the mercy of every change in
parliamentary authority, which means the Republicans are
in power today and the Democrats may be tomorrow, and a
simple majority can change anything.

Mr. President, this is the way it should be. You should not be able
to come in here and change willy-nilly a rule of the Senate. A rule of
the Senate, you change by the rules. This so-called nuclear option has
now been stood on its head, and they are now using what I refer to as
the Orwellian language, saying that it is the ``constitutional
option,'' and that, by all legal scholars, is foolishness.
I served in the Senate with Malcolm Wallop of Wyoming and Jim McClure
of Idaho, westerners who are extremely conservative politically. But
here is what they said, and they wrote this in the Wall Street Journal:

. . . [I]t is naive to think that what is done to the
judicial filibuster will not later be done to its legislative
counterpart. . . . [E]ven if a Senator were that naive, he or
she should take a broader look at Senate procedure. The very
reasons being given for allowing a 51-vote majority to shut
off debate on judges apply equally well--in fact, they apply
more aptly--to the rest of the Executive Calendar, of which
judicial nominations are only one part. That includes all
executive branch nominations, even military promotions.
Treaties, too, go on the Executive Calendar, and the
arguments in favor of a 51-vote cloture on judicial
nominations apply to those diplomatic agreements as well. It
is little comfort that treaty ratification requires a two-
thirds vote. Without the possibility of a filibuster, a
future majority leader could bring up objectionable
international committments with only an hour or two for
debate, hardly enough time for opponents to inform the public
and rally the citizenry against ratification.

What they are attempting to do in this instance is really too bad. It
will change this body forever. We will be an extension of the House of
Representatives, where a simple majority there can determine
everything. Those of us who went to law school--and the Presiding
Officer is a Harvard graduate. I went to George Washington. We know the
precedent in the law is important. A precedent of the Senate is even
more important. There will be a precedent set that will be here forever
if the vote we take tomorrow prevails.
I feel there are Republicans of good will who are willing to be
profiles in courage and step to this well tomorrow afternoon or evening
and say we cannot do that. We believe that conservative Senators such
as Malcolm Wallop

[[Page S5717]]

and Jim McClure are right. They believe--Malcolm Wallop and Jim
McClure--that especially small Western States need protection. The
reason we had the Great Compromise of 1787 was to allow the State of
Rhode Island to have equal power in the Senate with New York. What is
being attempted will take that away, change the Senate forever.
So I am convinced and hopeful and confident that there will be six
courageous Republican Senators who will step down here and go against
their leader, go against their President, as was done by Thomas
Jefferson's Senate when he had a significant majority and tried to play
with the courts; and when Franklin Roosevelt, with a tremendous
majority--and no President has ever been more popular than he was when
elected in 1936--tried to pack the courts. His Democratic Senators said
no. Even the Vice President who served under President Roosevelt, James
Garner, said no deal. The President called the Democratic leadership to
the White House and said this is what we are going to do. He never
conferred with them. And they, wanting to go along with what was the
most popular President, probably, in many years--when they walked out,
they said no, we are not going to do that. Democratic Senators made the
difference. We need Republican Senators here to make the difference,
stand and be counted when we vote. We only need six courageous people
to stop the Senate from becoming an extension of the House of
Representatives.
I suggest the absence of a quorum.
The PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. DOLE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Mrs. DOLE. Mr. President, before I speak to the important principles
at stake in this debate, I want to take this opportunity to thank the
Majority Leader for doing everything in his power to avoid the impasse
we face today.
We have arrived at this moment in the Senate's history not because of
a failure of effort, but because of a failure of cooperation.
Over the past two years, Senator Frist and other members of the
Republican leadership have made compromise an important objective.
We have repeatedly offered to extend the period of debate on the
President's judicial nominees. Fifty hours, 100 hours, have been
offered--even 200 hours of debate on some of these nominees--all in an
effort to ensure that our Democrat colleagues have sufficient time to
raise and explain their concerns. Without exception, these offers to
provide more time have been rejected out-of-hand.
In May of 2003, Senator Frist and then-Senator Miller of Georgia
introduced compromise legislation that would allow the filing of
successive cloture motions on judicial nominees, with each motion
requiring fewer votes for passage, and ultimately a simple majority.
When it came time to consider this sensible legislation in the Rules
Committee, my Democrat colleagues boycotted the mark-up.
In April of 2004, the current Chairman of the Senate Judiciary
Committee, Senator Specter, introduced legislation to help remove
politics from the judicial confirmation process and ensure that
nominees would be given a hearing, that they would be reported out of
committee, and would receive a vote on the Senate floor. The Democrats
reacted to this proposal with silence.
Senator Frist has been in regular communication with Senator Reid,
and on March 17 of this year, he formally wrote to Senator Reid
expressing his hope that a compromise could be fashioned, and
indicating that the constitutional option would only be exercised if
there were no reasonable alternatives.
And, on April 28, Majority Leader formally reached out again to
Senator Reid, proposing to grant 100 hours of floor debate on each of
the filibustered nominees--that's more than twice the time spent by the
Senate debating any of the nominations of the current Supreme Court
Justices. Senator Frist also proposed to develop a process to ensure
that nominees are not bottled up in the Judiciary Committee, a
complaint often made by my Democrat colleagues. Once again, this
sincere effort at compromise was immediately rebuffed.
So let the record be clear: The Majority Leader has pursued
compromise with vigor, and he should be commended for doing so.
But, of course, when compromise fails, action must take its place. We
are here today because there are important principles at stake . . .
principles that are worth defending.
Does the President have the right to expect that his nominees to the
Federal bench will be fully considered by the United States Senate?
Does the Senate have a constitutional obligation to offer ``advice and
consent'' on these nominations? And are judicial nominees entitled to
an up-or-down vote on the Senate floor?
The answer, of course, to each of these questions is a resounding
``yes.''
For more than 214 years, judicial nominees with clear majority
support have received an up-or-down vote on the Senate floor, with a
majority vote leading to confirmation. Until just two years ago, a 60-
vote supermajority was never the standard for confirmation to the
Federal bench. Those are the facts.
By blocking not one, but ten, of President Bush's judicial nominees
through the inappropriate use of the filibuster, my Democrat colleagues
are doing nothing less than setting Senate tradition on its head. They
are rewriting the rules of the game while abandoning the custom of
self-restraint that has enabled the Senate to function so effectively
in the past. And three of these nominees have now withdrawn their names
from consideration.
To justify their actions, my colleagues on the other side of the
aisle would have us believe that filibustering judicial nominees is
just business as usual. They specifically cite the nominations of Abe
Fortas, Marsha Berzon, and Richard Paez as examples of Republican-led
obstruction efforts.
Justice Fortas, of course, lacked majority support when, in 1968,
President Johnson withdrew his nomination to be Chief Justice of the
Supreme Court. Today's filibuster victims, on the other hand, all have
bipartisan, majority support . . . and are being permanently blocked
despite this fact. Fortas' nomination was opposed not just by members
of one party, as is the case today, but by Democrats and Republicans
alike. And let's not forget: Justice Fortas' nomination was debated for
just several days before President Johnson took action. Many of
President Bush's nominees have been pending before the Senate not for
days, but for years.
I am not sure what citing the Berzon and Paez nominations proves,
since both individuals were given the courtesy of an up-or-down vote,
and both were ultimately confirmed. They are now sitting judges. In
fact, the Majority Leader at the time--Trent Lott--worked to end debate
on both nominations, believing then, as we do now, that judicial
nominees deserve a vote on the Senate floor.
So, what we are witnessing today is something wholly different: it is
a highly organized obstruction campaign that is partisan in origin,
unfair in its application, harmful to this institution, and
unprecedented in our Nation's history.
Now, let's take a moment to examine the record of the individual
whose nomination is before the Senate today. Justice Priscilla Owen has
been called everything from an ``extremist'' to a ``far-right
partisan'' to someone who is ``out of the mainstream.''
But the simple fact is that Justice Owen's record is that of a
distinguished jurist who enjoys broad support and who understands that
her role is to apply the law fairly and impartially.
Twice elected to the Texas Supreme Court after a long career as a
litigator in a prominent Texas law firm, Justice Owen earned the
highest score on the December 1977 Texas bar exam and ranked near the
top of her class at the Baylor University School of Law. She has been
endorsed by a bipartisan group of 15 past presidents of the Texas State
bar. An advocate for providing pro bono legal services to the poor,
Owen also received a unanimous ``well-qualified'' rating from the
American Bar Association, the highest rating given by that
organization--I add, the ``gold standard'' for our Democrat friends.
And in her last election to the

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Texas supreme court, Justice Owen earned a stunning 84% of the vote and
was endorsed by every major newspaper in the Lone Star State.
Justice Owen received her vote in Texas and she deserves her vote on
the floor of the United States Senate.
Mr. President, there is another important issue that must be raised
beyond that of the rules and procedures of the Senate: It is the impact
this episode in the Senate's history will have on the willingness of
men and women of talent to serve their country by serving on the
Federal bench.
Millions of Americans have watched as the good reputation of Justice
Owen has been unfairly tarnished. As have the reputations of Justice
Janice Rogers Brown, and Judge Terrence Boyle, Miguel Estrada, and the
other nominees. Their lives and careers have been reduced to partisan--
and wholly inaccurate--television sound bites with words like right-
wing, radical, extremist.
For those of either party contemplating future service on the Federal
bench, this spectacle of unfairness must be chilling--chilling--a
glowing ``proceed with caution'' signal, suggesting that other career
options should be pursued instead.
For the sake of the Federal courts in our country, we must do better.
We can start by restoring the traditional standard for the confirmation
of judicial nominees. Guaranteeing every nominee the opportunity of an
up-or-down vote on the Senate floor will dramatically reduce the role
of outside interest groups who see the filibuster as a way to exert
pressure and score political points. It will force us to debate these
nominees on the merits, with real arguments, not with politically
convenient slogans and labels. And hopefully, it will help make an
appointment to the Federal bench an attractive option for those young
people out there who may be thinking about a career in service to the
public.
I yield the floor.
The PRESIDENT pro tempore. Under the previous agreement, the time is
now divided 1 hour on each side with the first hour under the control
of the majority leader or his designee.
Does the Senator from Kentucky seek recognition?
Mr. BUNNING. Mr. President, I do.
The PRESIDENT pro tempore. The Senator is recognized.
Mr. BUNNING. Mr. President, what is the current business before the
Senate?
The PRESIDENT pro tempore. The nomination of Priscilla Owen.
Mr. BUNNING. I thank the Chair.
Mr. President, it is important for Senators to understand what we are
talking about here. We are talking about the nomination of Texas
Supreme Court Justice Priscilla Owen to be a Federal circuit judge. We
are talking about her qualifications and about fulfilling our
constitutional responsibilities to give advice and consent. We are
talking about whether each Senator will vote yes or no in an up-or-down
vote on the nomination of Justice Owen. And soon we will be talking
about the long-blocked nominations of California Supreme Court Justice
Janice Rogers Brown, former Alabama Attorney General Bill Pryor, and
others passed by the Judiciary Committee.
As the Presiding Officer said, the Senate's pending business is the
nomination of Justice Priscilla Owen. Justice Owen has had a
distinguished record as a judge who respects the rule of law. She
understands that elected legislators write the law, not judges. As a
judge, she has applied the law as it is written, not as she wished it
were written.
The American Bar Association unanimously rated Justice Owen ``well
qualified.'' Everyone here knows that the ABA is not exactly a
conservative organization, so that rating speaks volumes. She has
served on the Supreme Court of Texas for more than 10 years, where she
has earned the respect and endorsements of Democratic justices and
attorneys, and more impressively than that, in her most recent
election, she received 84 percent of the vote. I cannot imagine getting
84 percent.
Just last week, I met with Justice Owen. I was impressed with her
intelligence and honesty. I was impressed with her energy and
determination to see this through. But most of all, I am satisfied that
Justice Owen will interpret the law rather than try to write it, and I
am convinced that she will stand up to any other judges on the Fifth
Circuit Court of Appeals who try to rewrite the law from the bench.
Why has Justice Owen been denied an up-or-down vote? As best I can
tell, it is because they crossed the radical left when she voted not to
take away a mother's right to know that her teenage daughter wanted to
have an abortion. Justice Owen did not write the Texas law requiring
notification. The legislature did. She merely agreed with the two lower
courts that the requirement of the exceptions in the law had not been
met.
In the time when a teenage girl cannot get her ears pierced at the
mall or take an aspirin at school without parental consent, it is not
out of the mainstream to enforce a law requiring notice to a parent
before that same teenager can get an abortion.
Another nominee we are discussing this week, California Supreme Court
Justice Janice Rogers Brown, is also a nominee who will stand up to the
activist judges on the Ninth Circuit Court. Justice Brown has been on
the California Supreme Court for 9 years, and she received 76 percent
of the vote in her last election, the most of any justice on that
year's ballot.
Justice Brown has earned a reputation as a judge who respects the law
and the California Legislature's decisions. She has consistently
deferred to the legislature's judgment and not substituted her own
political views. In other words, she knows the role of a judge is not
to write the law but to apply the law.
Justice Brown has also earned the respect of her California
colleagues. In recent years, she has been chosen by the court to write
the majority opinions more times than any of her fellow justices. She
has the endorsement of both the Republicans and Democratic judges,
lawyers, and law professors in California.
Critics point to the statements that Justice Brown made about her
policy views outside--outside, I say--of the courtroom. While some may
not agree with her personal opinions on issues, outside the courtroom
is the place where she should feel free to make her policy views known.
Some of her political views may conflict with the laws of the State
of California, but Justice Brown has had no problem applying those laws
to the cases before her. That is exactly what a judge is supposed to
do--apply the law to the facts of the case regardless of whether the
judge would have voted for that law if she or he had been in the
legislature.
Mr. President, 5 years ago, a discussion like this about nominees
would have been overlooked by most Members of this body. A few Senators
would give a statement on the Senate floor in support of a nominee to a
circuit court. A few more Senators would insert a statement into the
Record. And then the Senate would confirm the nominee by a rollcall
vote or even a voice vote. That was the ordinary course of business in
this body for 214 years. But that is not the case anymore.

Ever since President Bush was elected, his nominees to the circuit
court have been denied an up-or-down vote. During the 107th Congress,
many of his nominees did not advance when the Senate was under
Democratic control. During the 108th Congress, Democrats instituted the
first partisan filibuster of judicial nominees, all of whom have
majority support in this body.
We hear a lot from the other side about minority rights. No one on
this side of the aisle wants to restrict the opposition's ability to
speak their objections and vote against these nominees. I invite
Senators who oppose these nominees to come to this floor and speak
their objections. I encourage them to try to convince me why I should
vote against these nominees.
Instead, this is about a minority of Senators trying to take for
themselves a power that the Constitution gives only to the President of
the United States. This is about a minority of Senators thwarting 214
years of Senate tradition. This is about the obligation and fairness of
giving a nominee a vote. This is all about whether elections in this
country mean anything.
We are currently engaged in a war against terrorism. We have helped
the Iraqi people conduct peaceful democratic elections; also the people
of Afghanistan. We have seen the power of the democratic process in the
Ukraine,

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and we have seen the strength of the voice of the people longing for
freedom in Lebanon. Even Kuwait is taking steps to allow women to vote
for the first time. How can we as a nation speak of the power of the
people, the validity of the democratic process and the strength of the
vote, if we let a minority in this body thwart the will of the
democratically elected President and majority of this body?
Last fall, the American people spoke clearly. In the highest numbers
in history, the American people went to the polls and voiced their
opinion with their votes. The American people chose George W. Bush as
their President, and the American people created a 55-vote majority for
the Republicans in this Senate by electing 7 new Republican Senators.
The message the American people sent is clear. They support President
Bush and Republican policies and values more than what the other side
of the aisle had to offer.
The Constitution gives the President, and only the President, the
power to make nominations. It is up to him to pick a nominee. We in the
Senate are only empowered to speak for or against and to vote for or
against a nominee.
The nominees' records have been examined. Senators have come forth
with their objections, and there is still time for objections to be
spoken. We have offered to debate the nominations for as much time as
the minority wants, to be followed by an up-or-down vote. But the time
has come for us to set that vote. The President deserves to have that
vote, the majority of the Senate deserves to have that vote, but
particularly the nominees deserve to have that vote, and the American
people deserve to have that vote. The American people deserve to see
how their elected representatives vote on these nominations and to see
what kind of judges their Senators support.
We have a crisis in the Federal judiciary. We have too many judges
who act like they are in Congress, not on the bench. Those judges are
imposing their values on the American people through their decisions.
That is why we must confirm nominees like the ones before the Senate,
to stand up to activist judges and uphold the law and the Constitution
and not write new laws from the bench. Liberal special interests have
taken over the Democratic Party and are fighting to stop these
nominees, and therefore a minority of Senators is thwarting more than
200 years of Senate tradition to block votes on these nominees.
The other side has no other way to advance its ultraliberal agenda.
They cannot pass their laws through this Congress or through State
legislatures. They cannot even get elected by running on these issues.
So they must turn to the courts, the last holdout of active liberal
power to impose their agenda.
What is that agenda? It is unlimited abortion on demand, without even
notice to the parents of a minor child or the father of that child. It
is about allowing partial-birth abortions. That liberal agenda is about
rewriting the definition of marriage. It is about stripping down the
pledge of allegiance because it recognizes God. That agenda is about
banishing the Ten Commandments from public buildings. That agenda is
allowing pornographic photos and other things into our libraries and
across the Internet.
That ultraliberal agenda does not sell in the heartland around the
dinner table. It does not even sell here in the Congress. So the last
great hope for the liberals is the judicial bench, and that is why they
fight these judicial nominees who do not give in to their liberal,
activist agenda. The only thing that can stop the rewriting of our
Constitution and laws is judges who will stand up to that activism and
fight for the rule of law. President Bush has nominated such
individuals. Now the Senate must allow an up-or-down vote on those
nominees.
There are other consequences to this debate as well. The confirmation
process has become quite a burden on the nominees and their families.
In the last Congress, one of the most qualified judicial nominees ever,
Miguel Estrada, asked for his nomination to be withdrawn because of the
strains on his personal life and family. Several more nominees asked
not to be renominated in the 109th Congress because of those same
burdens. There are also practical consequences for the American people
who rely on a functioning court system.
Because of the vacant seats, our appeals courts are experiencing huge
delays that are unfair to the parties and put added strain on sitting
judges. Nowhere is that more pronounced than in the Sixth Circuit,
which encompasses my State. One-quarter of the seats of that court sit
empty because the nominees from one State, Michigan, are being denied
an up-or-down vote. Those vacancies have a real effect on the lives of
30 million people who live in the Sixth Circuit. The people of
Kentucky, Ohio, Tennessee, and Michigan, the people of the Sixth
Circuit, are being denied justice in a timely manner.
This issue is far too important to leave unresolved any longer. We
must move to a vote. The record is clear. The nominees before the
Senate are qualified to serve on the Federal bench and deserve to be
confirmed by the Senate. They have the proper understanding of the role
of each branch of Government under our Constitution. They will stand up
to those who wish to use the court as an unelected legislature. They
deserve an up-or-down vote.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Alexander). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. GRASSLEY. Mr. President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, I am going to speak on the judge issue
that is before the Senate. I was wondering what the time constraints
are.
The PRESIDING OFFICER. The time until 1 o'clock is controlled by the
majority.
Mr. GRASSLEY. That means I can speak until 1 o'clock; is that right?
The PRESIDING OFFICER. The Senator is correct.
Mr. GRASSLEY. Mr. President, for several days now, the Senate has
been debating two nominees for the Federal bench, Priscilla Owen and
Janice Rogers Brown. I come to the floor to express my support for
these two highly qualified women, and I also do it to urge my
colleagues to support an up-or-down vote so that these folks know
whether a majority of the Senate is consenting to their nomination by
the President of the United States, in other words, confirm these two
highly qualified judges.
One of the most important roles that we Senators have is the
responsibility of advising and consenting to individuals that the
President has nominated to fill positions on the three levels of the
Federal judiciary. But this responsibility has been threatened by
actions of Democratic leadership. Of course, that has brought us to
this extended debate, over several days now, about the role of the
Senate as expressed in the Constitution about the handling of Federal
judges nominated by the President.
It seems to me the Constitution is very clear on the role of the
Senate in this judicial confirmation process. Judicial nominees are
chosen by the President with the advice and consent of this body. Until
President Bush was elected, no one ever interpreted this requirement to
mean anything but a simple majority vote of those present and voting in
the Senate. For over 200 years, no judicial nomination, with a clear
majority support in the Senate, had ever been denied an up-or-down vote
on the Senate floor. This was the case regardless of whether a
Republican or Democratic President was in office. This was the case,
regardless of whether the Senate was controlled by Democrats or
Republicans.
Recently, in the last Congress, the Democratic leadership decided it
was going to change the ground rules. The Senate Democrats rejected a
200-year-old Senate tradition of giving judicial nominees an up-or-down
vote. By doing this, the Democratic leadership has rejected the
Constitution, rejected the traditions of the Senate, and it seems to me
as a result of the last election, when approving judges was very much
an issue to the American electorate, they are now rejecting the will of
the American people.
The Democratic leadership targeted 16 of President Bush's 52 court of
appeal nominees. They actually filibustered 10 and threatened to
filibuster 6

[[Page S5720]]

more, a full 31 percent of President Bush's appellate court nominees
being stymied. Because of this, President Bush has had the lowest
percentage of his court nominees confirmed by any President in recent
memory.
What is this debate all about? It is basically a debate about what
the Constitution requires of the Senate. It is a debate about fairness
to the individuals who do not have an opportunity to see whether a
majority of the Senate supports them and approves their appointment.
And in the case of fairness to the individual nominees, they have
been waiting for years to be confirmed. They have majority support in
the Senate, but a minority of Senators is opposed to President Bush's
appellate court nominees and, as a consequence, will not allow the
Senate to give these individuals an up-or-down vote. The Democratic
leadership will not allow the Senate to exercise its constitutional
duty of advice and consent.
The Democratic leadership will not allow even this one Senator to
exercise my constitutional responsibilities. In a sense, this Senator
from Iowa and 99 others are being denied an opportunity to carry out
their constitutional responsibility. That is simply not right. The
Constitution demands an up-or-down vote. Fairness demands an up-or-down
vote.
Some have claimed a rule change on this matter is a violation of
Senators' free speech and minority rights. Let me make it very clear,
we are not talking about changing rules in this process, we are talking
about abiding by the practice of the Senate, until 2 years ago, over
the 214-year history of the Senate. So no rule change, just doing what
the Senate has always been doing, and no one has raised the issue
before about a Senator's free speech and minority rights being
violated. There is not anything out of the ordinary then about a
majority wanting to exercise its right to keep Senate procedures the
same as they have always been.
For example, we were faced with problems in 1977, 1979, 1980, and
1987, problems that were visualized by the Senate majority leader at
that time as stopping the Senate from doing what is constitutionally
necessary for the Senate to do. In those years, Senator Byrd led a
Democratic Senate majority in setting precedents to restrict minority
rights. The Republicans, who were the minority party, did not respond
by threatening the shutdown of the Senate or the stalling of
legislation.
On the other hand, the actions of the Senate Democrats now are an
unprecedented obstruction, plain and simple. The Democratic leadership
is not interested in additional debate on the nominees. This is not
about minorities wanting to exercise speech and debate on the
nomination as long as they might want. The Republican majority leader
has offered the Democrats time and again as much time as they want for
debate. Yet the Democratic leader indicated in so many words that the
Democrats would not agree to any time agreement.
The Democratic leadership has taken the position that it will not
even allow an up-or-down vote on these nominees. The minority leader
has indicated there is no time long enough for Democrats to debate
these nominations.
I clearly understand the importance of filibusters and would not want
to see them done away with completely. However, it is also important to
make a distinction between filibustering legislation and filibustering
judicial nominations. The interests of the minority party are protected
in the Senate. It is the only segment of our Government where minority
points of view are protected. It has served a very good purpose over
200 years bringing about compromise. Filibusters are meant to allow
insurance that the minority has a voice in crafting legislation.
When working on a bill, it is possible to make changes in compromises
to legislative language until you get the 60 votes needed under Senate
rules to bring debate to a close.
In the tradition of the filibuster on legislation, unlimited debate
ensures that compromise can take place, protecting some of the desires
of the minority. That minority might not be a partisan minority; that
minority could be a bipartisan minority that wants to make sure certain
changes are made in legislation.
Judicial nominees, however, are very different than legislation. An
individual such as Judge Brown or Judge Owen cannot be compromised some
way so the filibuster, the way it is used in legislation, can be used
to bring about compromise of an individual because you cannot redraft a
person like you can redraft legislation to get over a filibuster, to
get to finality so a majority can rule. In a sense, the minority is
saying it is possible to use the filibuster to cut off the left arm of
one of these nominees and put on a new arm so they are compromised to
get to finality. That is ridiculous. It just does not work.

But it also illustrates the rationale behind a filibuster applicable
to legislation, not applicable to an individual.
For judicial nominations, it is the Senate's responsibility to
determine whether nominees are qualified for a position they are
nominated to, and to say so through an up-or-down vote. Let a majority
of the Senate decide if they are qualified.
Throughout our Nation's history, it has only taken a majority of
Senators to determine a nominee's qualification for the judge position
they are appointed to. It seems to me after a 214-year history, that is
history worth continuing.
The reality about the Democratic leadership's filibuster is that the
minority wants to block filling appellate court judgeships by requiring
60 votes to proceed to the nomination. But no other President has been
required to get 60 votes for his judicial nominees. No other judicial
nominee needed to pass the 60-vote hurdle of a supermajority.
Many Federal judges on the bench today would have never made it, not
with that sort of requirement. In fact, all Senators here got elected
by a simple majority, 50 percent of the vote. If we had requirements
for supermajority rule for Senators to be elected, a lot of Senators
who are my colleagues might not be here today. Why are Senators now
wanting to approve judges only if they get a 60-percent vote? The
reality is no other Senate majority has been excluded from judicial
confirmation process in 214 years. We need to restore tradition and the
law of judicial process. We need to give these nominees the up-or-down
vote the Constitution requires. We need to stop a systematic denial of
our advice and consent responsibilities which have been shuttered by
the use of the filibuster.
I have been a Member of the Senate since 1981. Before I got to the
Senate I served in the other body since 1974. I love the Senate. I have
worked hard to be a very productive Senator. I want to do what is best
for the Senate, for my constituents, and for my country. That is not
different than the other 99 Senators most of the time. That is what we
were all elected to do. The Republican majority leader is also trying
to do what he thinks is the best thing for this country by moving to
reestablish the over 200-year Senate tradition by giving judicial
nominees the up-or-down vote.
This is not going to destroy the Senate. It is in the tradition of
the Senate and it is within the tradition of the Constitution. The 214-
year history of this Senate speaks louder than just the last 2 years,
but the last 2 years will trump the first 214 years if we do not take
action to keep the advice and consent confirmation process within the
tradition of the Senate.
It is just plain hogwash to say that moving to make sure the rule is
to give judicial nominees an up-or-down vote will hurt our ability to
reestablish fairness in the judicial nominating process. It is not
going to hurt minority rights. It establishes what we call regular
order as it has been for 214 years. It will be fair both to Republicans
and Democrats alike. All the majority leader wants to do is to have a
chance to vote these nominees up or down. If these individuals do not
have 51 votes, they will be rejected and should be rejected. But if
these individuals do have 51 votes, then they should be confirmed. That
is according to the Constitution.
If a Senator disapproves of any one of these individuals, vote
against the nomination. I have done that in the past. But do not
deprive the people the right to support a nominee through their elected
Senator.

[[Page S5721]]

Some claim many judicial nominees were filibustered by Republicans,
particularly when President Clinton was in office. That isn't accurate
and that is a nice way for me to say it. Very few people either inside
or outside this Chamber have been as involved in the issue of judicial
nominations and the use of the filibuster as I have. As a long-time
chairman of the Judiciary Subcommittee on the Federal Courts, I have a
unique perspective on the debate and the use of filibusters.
First, when the Democrats were in a majority in the Senate under
President Reagan--and this goes back to my starting in the Senate in
1981--they blocked 30 of President Reagan's nominees and 58 of
President Bush Senior's nominees. They did that in the Judiciary
Committee.
Now, that is not equivalent to a filibuster. I do not want to mislead
anybody. Then, in the last few years of President Clinton's
administration, many Republicans became disillusioned with the number
of nominees the administration had sent to the Senate, and we felt our
own Republican leadership was allowing out-of-the-mainstream nominees
to be confirmed. This all came to a head with the nominations of Ninth
Circuit Judges Paez and Berzon. Now, understand these people are
serving as judges now. They were nominated to that position by
President Clinton.
Going back to this time of Judges Paez and Berzon, at that time we
had a Democratic President and a Republican-controlled Senate. There
was serious talk of filibustering these nominees. I have heard some
Democrats and ill-informed pundits try to make the case that Paez and
Berzon were filibustered. Well, they were not.
The reality is, the Republican leadership, including the chairman of
the Judiciary Committee at the time, argued that there had never been a
filibuster of an appellate court nominee. The Republican leadership
argued Republicans should not cross that Rubicon and set the precedent
because then it would be used against Republicans in the future when we
had a Republican administration. So it was decided at that time there
would not be a filibuster and we would not set that precedent. There
would be a cloture vote, yes, but everyone knew that cloture vote would
prevail and the nominee would be confirmed by a majority vote.
So the Members who wanted to filibuster decided to go along with the
leadership's wise counsel even though these Members never trusted that
the Democratic leadership would follow our example. I voted for
cloture. I voted to get over 60 votes so we could move on with what we
knew should have been done by the Senate. But I want you to know that I
voted against these two nominees, Judges Paez and Berzon. And I was not
alone. Other Republican Senators did the same thing. But in the end,
unfortunately, those Members were right not to trust Democratic
leadership because Democratic leadership has now crossed the filibuster
Rubicon.
We are not only being denied the ability to perform our
constitutional duty in the judicial selection process, the move to
filibuster is upsetting the checks and balances and the separation of
powers principle our Nation is founded upon. The Democrats are the ones
who are upsetting the checks and balances. They want to grind the
judicial process to a halt for appellate court nominees so they can
fill the bench with individuals who have been rubberstamped by leftwing
extreme groups.
Let me say something about the nominees, then, because these are the
folks whom we are debating, these are the folks whose professional
future, personal future is at stake by what we do here of allowing 51
votes when they will be approved or 60 votes when they will not be
approved.
Priscilla Owen and Janice Rogers Brown are both highly qualified
individuals, with exceptional legal abilities. They are talented women,
respected women, true pioneers. But they have been drawn into the web
of the far leftwing special interest groups. These women have been
called outside the mainstream by their opponents. They have been called
unworthy for the Federal bench.
They have been labeled, among other things, as ``activist,''
``anticivil rights,'' and ``anticonsumer.'' These claims are not true.
And the claims charged against other of President Bush's judicial
nominees are just as false. All these outrageous claims have
consequences.
The travesty is Priscilla Owen and Janice Rogers Brown have been
waiting for years to be confirmed. The travesty is other worthy
nominees such as Miguel Estrada got tired of putting up with the antics
of the Senate, a Senate untraditional of its first 214-year history,
and just said: I am not going to fight it anymore. So Miguel Estrada
withdrew his nomination. The travesty is that a nominee like Judge
Pickering is trashed. The travesty is that the good name of a nominee
like William Pryor is dragged through the mud.
Ripping to shreds the reputation of these individuals with unfounded
allegations is unacceptable. This tactic sends a clear message to good
people who want to serve their country that they will have to endure
outlandish and baseless attacks on their record and character if they
ever want to be a Federal judge. The Democrats are doing this because
they are using a far left litmus test to satisfy their leftwing--their
leftwing that is out of the mainstream--special groups. So when the
Democratic leadership says these nominees are outside the mainstream,
they are basically saying these individuals have not been approved by
their allies, the far left special interest groups.
But judicial nominees should not be subject to a litmus test. They
should not be subject to an ideology litmus test. A nominee should not
be opposed, as Priscilla Owen and Janice Rogers Brown are being opposed
right now, because they will strictly follow the law, be
constitutionalists, rather than legislating from the bench some
leftwing agenda.
Moreover, history has proven the wisdom of having the President place
judges with the support of the majority, not a supermajority, in the
Senate. That process ensures balance on the courts between judges
placed on the bench by Republican Presidents and those placed on the
bench by Democratic Presidents.
The current obstruction led by Senate Democratic leaders threatens
that balance. Priscilla Owen and Janice Rogers Brown deserve an up-or-
down vote. It is high time to make sure all judges receive fair up-or-
down votes on the Senate floor, up-or-down votes for judicial nominees
of both Republican and Democratic Presidents alike in the tradition of
the Senate for 214 years, until 2 years ago.
In my town meetings across Iowa, I hear from people all the time, Why
aren't the judges being confirmed? If we do not take care of this issue
this week, I am going to hear it in my 22 town meetings across
northwest Iowa next week when we are not in session. I think most
people understand the process is being politicized to the point that
good men and women are being demonized and their records distorted at
an unprecedented level.
I hear from Iowans all the time that they want to see these nominees
treated in a fair manner, and they want to see an up-or-down vote. The
Democratic leadership likes to say the Republicans are the ones who are
changing the rules. But that is not true. The Democrats are the ones
who have engaged in extreme behavior and tactics, pulling out all the
stops to defeat well-qualified nominees who would have majority support
in the Senate if they were given an up-or-down vote. They are the ones
who have distorted the rules to the point that the Senate is being
denied its ability to fulfill its constitutional responsibility. And if
Senator Frist has to do it, what he is doing is leaving the rules
practiced exactly the way they were for 214 years.
Filibustering judicial nominees may be touted as standing firm on
principle. On the contrary, what it boils down to is an obstruction of
justice. Let's do the American people a favor. Let's stop the theatrics
and get back to the people's business. All the rallies and political
spin doctoring are not clearing any court dockets, and they are not
impressing the American public either.
Let's debate the nominees and give our advice and consent. It is a
simple ``yea'' or ``nay,'' when called to the altar to vote.
Filibustering a nominee into oblivion is misguided warfare and the
wrong way for a minority party to leverage influence in the Senate.
Threatening to grind legislative activity to a standstill if they do
not get

[[Page S5722]]

their way is like being a bully on the school yard playground. Let's do
our jobs.
Nothing is nuclear about asking the full Senate to take an up-or-down
vote on judicial nominees. It is the way the Senate has operated for
214 years. The reality here is the Democrats are the ones who are
turning Senate tradition on its head by installing a filibuster against
the President's judicial nominees.
The Senate has a choice. We can live up to our constitutional duties
to advise and consent to President Bush's judicial nominees or we can
surrender our constitutional duty to the leftwing special interest
groups who apparently control the Democratic Party. This Senator
chooses to follow the Constitution.
We need to return to a respectable and fair process. We need to
return to the law and the Constitution. We need to return to the
Senate's longstanding tradition. We need an up-or-down vote for these
judicial nominees.
In case there are some people sincerely led to believe that somehow
appointing certain people with a strict constitutionalism to the courts
is something to worry about, I would simply ask them to look at how
history works in bringing balance to our judiciary throughout the
history of our country. Think in terms of 8 years of a Republican
President appointing maybe people who are strict constitutionalists to
the judgeships--and not all of them are; but just say that they might
all be--then you have 8 years of a Democratic president with people of
an opposite point of view being appointed to the judgeships. That
brings balance.
But also think in terms of how it is difficult to predict down the
road 25 years how judges are going to rule. Think of two of the
foremost liberal people on the Supreme Court, Justice Souter and
Justice Stevens. Who do you think appointed these most liberal members
to the Supreme Court? Republican Presidents did. And then balance that
with the two other most liberal members on the Supreme Court, Breyer
and Ginsburg. Who appointed them? A Democratic President. You could
make an argument that Republican Presidents have brought more balance
to the Supreme Court than Democratic Presidents have.
Then the other thing is, look at somewhere you thought they were
going to be predictable where they would end up, and you have Justice
Kennedy and you have Justice O'Connor, who were supposed to be very
strict constructionists when they were appointed to the Supreme Court,
but they go back and forth between the conservative wing of the Court
and the liberal wing of the Court.
So whatever worries the Democratic Senators of today, I wish they
would take a look at history. Time answers a lot of these problems.
Elections answer a lot of these problems. And we have a great
constitutional system that has worked for so long over such a long
period of time that in the final analysis everything is going to work
out OK.
I yield the floor.
The PRESIDING OFFICER (Mr. Roberts). The Senator from California.
Mrs. FEINSTEIN. Mr. President, I come to the floor to make a plea to
my colleagues and my friends on both sides of the aisle. I have spoken
on this issue twice. But within 24 hours, the time will come when the
Senate may well be changed. Right now is the time to let political
pressures cool, to step back from the brink and to reflect on the long-
term consequences rather than the short-term gain. The time has come to
walk away from a decision that will turn our governmental system on its
head.
The reason this is called the nuclear option is not necessarily what
it would do to the body but what it does to our ability to control the
rules of the body. Because for the first time in history, a rule will
be changed or, as we on this side of the aisle say, broken, by a
majority vote, 51 votes, a majority of the Senate, when in fact rule
changes require a two-thirds majority vote. There is virtually no rule
that I know of in this body that can be changed with 51 votes.
I understand that it is going to be done without consultation of the
Parliamentarian. My understanding is that he would say it is not within
the Senate rules or precedent to change this rule with only 51 votes.
Nonetheless, it is going to be done.
When taken to its logical conclusion, a majority vote in favor of the
nuclear option will fundamentally alter our democracy, not only by
breaking the rules as I just described but by altering the fundamental
balance between this body and the other House and, most particularly,
the role that Senators have had representing their constituents for
over 200 years.
I recognize we may not agree on the qualifications of the nominees
before us. I recognize many of my friends on the other side of the
aisle feel very strongly about confirming these candidates to the
court. But in the end, regardless of who is right and who is wrong,
changing the Senate's rules, throwing out precedent, will profoundly
harm this body, the comity we enjoy, the moderation that has defined
the Senate, the bipartisanship that is essential, and the balance of
power that is needed to maintain any form of a democratic government,
particularly this one.
This nuclear option changes the deliberative nature of this body
because it, in effect, ipso facto changes the Senate into the House of
Representatives so that the Senate will work its will by majority. That
has never necessarily been the case before. We all know the Senate is
like a huge bicycle wheel. When one of the 100 spokes is out of line,
it stops the wheel. So everybody respects that and pulls back from the
brink because of it because we know if we are the one that puts on the
hold or stops the wheel from turning, that we also can feel that happen
to us with our legislation and our bills.
Former Republican Senator Warren Rudman, whom I greatly respect--he
represented New Hampshire from 1980 to 1993--was quoted in the press
this weekend. Let me share with you what he said:

I will lament this vote if it succeeds. People tend to look
at the history of the Senate and how it functions, and my
bottom line is that the Founding Fathers wanted a true
balance of power and this would shift the balance of power to
the White House. My sense is, thinking back on it, that I
don't think you could have gotten 51 votes on this sort of
thing in the past. . . I would have clearly voted against it.

That was Warren Rudman this past weekend.
I urge my colleagues on the other side of the aisle to stand up
against the political tidal wave pushing this agenda and let the
passions of the moment cool. The debate last week was overwhelmed with
fiery rhetoric and political posturing. One Republican compared
Democrats to Adolf Hitler. Another Senator insinuated that Democratic
opposition is based on a nominee's religious faith. Others twisted the
history of judicial nominations beyond recognition. And to be fair,
some Senators on our side of the aisle also employed fiery language.
Just listening to this debate, we can see what will happen if the
majority goes forward on this path. The Senate will most certainly face
a loss of civility, a loss of respect for differences. Political
message will overwhelm substantive policy, and political potshots will
drive our debates rather than the best interests of the American
people. Playing to the base rather than playing out the real-life
consequences of our acts will rule the day. Regardless of each of our
opinions on whether each nominee before the Senate should be appointed
to the appellate courts, the aftermath of the nuclear option will not
serve the American people well.
On two prior occasions, I have come to the floor to talk about the
importance of checks and balances, the intentions of our Founding
Fathers, the structure of the Constitution, and the inherent benefits
of conflict and compromise. Our forefathers knew, as do our modern
counterparts, that essential to a true democracy is the need for a
balance of power because who is in the minority has, and will,
constantly change. Democrats held the House majority for over 50 years,
and now Republicans have been in the majority for over a decade.
Democrats held the White House for 8 years. Now Republicans will have
occupied the White House for 8 years. The swing back and forth between
the majority and the minority applies not just to political parties but
to populations and ideas as well. Populations change and the political
pendulum swings, but what moderates those swings and the tidal wave

[[Page S5723]]

of power is the role and influence of the minority.
While it is true many of us on this side of the aisle were frustrated
when Republicans used their rights and the Senate rules to block
Clinton's judges and our legislative agenda, we aired our frustration.
At that time, I urged my colleagues to allow a vote. However, I did not
advocate breaking the rules with 51 votes and employing the nuclear
option as a way to force Republicans to their knees. The role of
moderation has worked and has been an important balance in our country.

As my colleague, Senator Lieberman, said last week:

In a Senate that is increasingly partisan and polarized
and, therefore, unproductive, the institutional requirement
for 60 votes is one of the last best hopes for bipartisanship
and moderation.

For example, President Clinton understood the strong feelings of our
Republican colleagues on judges, and he went to extensive efforts to
consult Republicans on judges that would be nominated. In describing
these efforts, Senator Hatch wrote in his book that he ``had several
opportunities to talk privately with President Clinton about a variety
of issues, especially judicial nominations.''
Senator Hatch described how when the first Supreme Court vacancy
arose in 1993, ``it was not a surprise when the President called to
talk about the appointment and what he was thinking of doing.'' He went
on to describe that the President was thinking of nominating someone
who would require a ``tough political battle.'' Senator Hatch recalled
that he advised President Clinton to consider other candidates and
suggested then-DC Circuit Judge Ruth Bader Ginsburg, as well as then-
First Circuit Judge Stephen Breyer.
So there was a defined, informal consultation that showed the power
and authority of the Republican chairman of the Judiciary Committee,
who actually submitted to the President--at that time Bill Clinton--the
names of Ruth Bader Ginsburg and Stephen Breyer for appointment to the
Supreme Court. However, today there is not really active consultation
by this administration in most cases. Instead, there appears to be a
kind of disregard for the opinions of all Democratic Senators, even
home State Senators. I know my colleagues from Michigan have been
extremely frustrated in their efforts to find a solution to the
stalemate over the Sixth Circuit.
I am also concerned that if the nuclear option moves forward, there
will no longer really be a need for the Judiciary Committee. I ask my
colleagues to think about this. If the President is to be given
unlimited power to appoint whomever he chooses, there will be no need
for hearings, there will be no need for an examination of a nominee's
record. Any dissent or concerns will fall on deaf ears, so long as
there are at least 50 Senators willing to confirm the President's
choices for the Federal bench.
Checks and balances are not new. Our country's 200-year tradition of
working through our differences is not new. The need for consultation
is not new. The important role of the Judiciary Committee--and I have
served as a member for 12 years now--in examining a nominee's
qualifications, is not new. What is new is the majority party's
decision that if you win an election, you should have absolute power.
Earlier this week, the Senator from Pennsylvania, Mr. Santorum,
stated:

I guess elections do not matter. I guess who people vote
for for President is of no concern to the minority in the
Senate. . . If someone happens to be reported out and a
majority defeats, fine, majority rules.

It is this very sentiment that concerns me and many others because
this logic ignores that the Democratic Senators won their elections,
too, and that while President Bush did win the election, those who did
not vote for him still maintain their rights to have their voices
represented in Government. Our country is not an autocracy. It is a
democracy, where the minority enjoys an active role, particularly in
the Senate.
Protecting the minority and ensuring it is not overrun by a strong
majority is central to the need for an independent judiciary. In fact,
this is a basic lesson taught in elementary civics in schools across
the country. One teacher's notes found on the Internet as a model for
civic teachers states:
Purpose/Rationale/Goals of the day's lesson:

Students should understand that majority rule does not take
precedence over minority rights. The lesson should promote
thought, understanding, and acceptance that unpopular ideas
are protected under the United States Constitution. Students
should also understand that it is the independent judiciary
that protects these rights.

So it is a basic lesson we all learn in school from a very early age.
Federal judges are meant to be independent. That is one of the reasons
why the nuclear option is so dangerous--because it completely quells
the arguments, the views, and the votes of the minority and, therefore,
eases the way for absolute power to prevail with absolutely partisan
appointments. There is nothing the minority can do to stop that.
I have quoted John Adams before on the specific need for an
independent judiciary.
He stated in a pamphlet called ``Thoughts on Government,'' which was
distributed in 1776, the following:

The judicial power ought to be distinct from both the
legislative and the executive, and independent upon both, so
that it may be a check upon both, as both should be checked
upon.

Today, I also want to quote from Alexander Hamilton, who, in the
Federalist Papers, No. 78, published in 1788, wrote:

As liberty can have nothing to fear from the judiciary
alone, it has everything to fear from its union with either
the [executive or legislative] departments.

These statements by Adams and Hamilton clearly set forth the intent
of our forefathers that the judiciary should be and must be
independent. The Senate was meant to play an active role in the
selection process, and the judiciary was not solely to be determined by
the executive branch.
As a matter of fact, I pointed out earlier on that in the early days
of the Constitutional Convention, it was proposed that the Senate
solely determine who would sit on the federal bench, and then that was
changed to give the President a role in the nomination of judges
confirmed by the President.
I have also spoken about the history of judicial nominations under
the Clinton administration. As I have explained in great detail, during
the previous administration, Republicans used the practice of blue
slips, or an anonymous hold, to allow a single Senator, not 41, to
prevent a nomination from receiving a hearing, a markup, a cloture
vote, or an up-or-down vote. This demonstrates that Senate rules have
been used throughout our history by both parties to implement a strong
Senate role and minority rights, even the right of one Senator to block
a nominee. As has been illustrated by my colleagues on the other side
of the aisle, both parties have bemoaned the impact of procedural
delays on confirming judges.
However, President Clinton's nominees were pocket filibustered by as
little as one Senator in secret and, therefore, provided no information
about why their nomination was being blocked, let alone an opportunity
to address any concerns or criticisms about their record--no up-or-down
vote, no cloture vote, no vote in the Judiciary Committee, nothing.
There were 23 circuit court nominees handled this way--filibustered by
as few as 1 person, 1 Senator--and 38 district court nominees were
filibustered by as little as 1 Senator.
In addition, unlike what some have argued, this practice was
implemented throughout the Clinton administration when Republicans
controlled the Senate, not just in the last years or months.
The question I have posed to this body twice now--and I do it a third
time--is whether the public interest is better served by 41 Senators
taking an openly declared position, publicly debating an individual's
past speeches, temperament, opinions, or a filibuster of 1 or 2
Senators in secret when one does not know why or who? I think the
answer is pretty clear.
This weekend, I read the press coverage on the nuclear option with
great interest. I was heartened to realize that Democrats are not the
only ones who are concerned with the idea of drowning out minority
views and turning the Senate into the House.
The New York Times editorialized:

The Republican attack is deeply misguided. There is a
centuries-old Senate tradition that a minority can use a
filibuster to block legislation or nominees. The
Congressional Research Service has declared that

[[Page S5724]]

the nuclear option would require that ``one or more of the
Senate's precedents be overturned or interpreted otherwise
than in the past.'' The American people strongly oppose the
nuclear option, according to recent polls, because they see
it for what it is: rewriting the rules to trample the
minority.

That is the New York Times.
The Associated Press reported on a new poll that asked about judges
and the Senate's role. The results found that 78 percent of those
polled stated that the Senate should ``take an assertive role in
examining each nominee.'' And a Time poll said 59 percent of Americans
believe Republicans should not be able to eliminate the filibuster.
Whereas, in sharp contrast, a poll released last Thursday by NBC News/
Wall Street Journal found that only 33 percent of those surveyed
approve of the job being done by the Congress. This is a monumental
number. I submit that as partisanship and the polarization of this body
increases, the poll numbers will continue to decrease because that is
not what the American people want us to do.
In addition, there were more reports of former Republican Senators
who are also concerned about the impact of a nuclear option. Former
Senator Clifford Hansen, a Wyoming Republican who served from 1967 to
1978, was quoted as stating:

Being a Republican, we were the minority party, and I
suspect there are some similarities between our situation
then and those that the Democrats find themselves in today. I
am sure that it would have concerned me if there were limits
on the filibuster. When I was in the Senate, the Democrats
were in control, and we made a lot of friends with the
Democratic Party, and I realized then that if I were going to
get anything done, I had to reach out and establish some real
friendships with members on the other side.

That is what this Democrat has tried to do over the past few years as
well.
The Los Angeles Times wrote:

If a showdown over President Bush's nominees goes forward
as planned next week, it would mark one more significant step
in the Senate's transformation from a clubby bastion of
bipartisanship into a free-wheeling political arena as
raucous as the House of Representatives.

And The Economist wrote:

Amid all this uncertainty, the filibuster debate has almost
certainly harmed one institution: the Senate. It was
deliberately designed by the Founding Fathers to be the
deliberative branch of the American Government. Senators who
sit for 6 years rather than the 2 years of the populist
House, have long prided themselves on their independence. The
politics of partisanship has now arrived in the upper Chamber
with a vengeance. The Senate has long stood as a barrier to
government activism on either side.

As all these accounts acknowledge, the nuclear option will turn the
Senate into a body that could have its rules broken at any time--and
this is significant--not by 60 votes but by a majority of Senators
unhappy with any position taken by the minority. It begins with
judicial nominations. Next will be executive appointments, and then it
will be legislation. If this is allowed to happen, if the Republican
leadership insists on forcing the nuclear option, the Senate becomes
the House of Representatives, where the majority rules supreme and the
party in power can dominate and control the agenda with absolute power.
This country is based on a balance between majority rule and minority
rights. I believe it is important to reflect on what our country is
facing while this debate is moving forward.
We had another sharply divided election, where the President was
elected by a slight margin. The differences in American beliefs have
been highlighted through heated debate over the budget, Social
Security, the war in Iraq, increased tax cuts, funding for education,
health care, and law enforcement. At times, the level of disagreement
can seem overwhelming. Yet, with all this tension, the majority party
is attempting to implement a strategy to completely silence the
minority. It is no longer acceptable to have differences. The defining
theme now seems to be ``my way or the highway.''
Last week, I said, when 1 party rules all 3 branches, that party
rules supreme, but tomorrow, if the nuclear option proceeds, the
Republican party will be saying that supreme rule is not enough; total
domination is what is required. The nuclear option is the majority's
strategy to completely eliminate the ability of the minority to have
any voice, any influence, any input. When might makes right, someone is
always trampled. Instead, I believe we should be ruled by the
philosophy that right makes might.
Thomas Jefferson consistently advocated for our country based on the
free flow of ideas and open debate. And maybe up to this point we have
taken for granted that a government of the people must be based on
reason, on choice, and on open debate. But before our Nation was
founded, modern governments were based on authoritarian domination. The
people, in general, were considered little more than cattle to be
governed and controlled by those possessing wealth, property,
education, and power. The Founding Fathers introduced the revolutionary
idea that government could rest on the reasoned choice of the people
themselves.
In a free society, with a government based on reason, it is
inevitable that there will be strong disagreements about important
issues. But a government of the people requires difference of opinion
in order to discover truth.
As I said at the beginning of this statement, I am deeply troubled
that legitimate disagreements over a nominee's qualifications to be
elevated to a lifetime appointment have been turned into a strategy to
unravel our constitutional checks and balances.
Unfortunately, while the Department of Defense authorization bill sat
on the calendar for the past week, we have wasted time on a clear
stalemate. There are many urgent problems the Senate needs to be
focused on and Americans want us to focus on: the war in Iraq,
protecting our homeland, addressing the high cost of prescription
drugs, alleviating rising gas prices, ensuring our Social Security
system is stable and working, and reducing the Federal deficit. I am
fairly certain we will not all agree on the best means to address these
issues.
I very much regret what we are in today. To give you just a small
example--and I think the Presiding Officer knows this--I sit on three
committees. These three committees, for markups of critical bills, are
meeting simultaneously. They are Intelligence, marking up the Patriot
Act; Judiciary, marking up the asbestos bill; and the Energy Committee,
marking up the Energy bill at the same time. This is not the way to do
the people's business--constrained by time limits artificially imposed
because of this present situation.
I very much agree with the sentiment expressed by my colleague,
Senator Specter, when he said:

If [during the cold war] the United States and the Soviet
Union could avoid nuclear confrontation . . . so should the
United States Senate.

I hope Republicans will choose to honor the tradition of our
democracy and walk away from this confrontation. I know if the shoe
were on the other foot, I would not advocate breaking Senate rules and
precedent.
Thank you, Mr. President. I yield the floor.
The PRESIDING OFFICER. The distinguished Senator from Hawaii is
recognized.
Mr. AKAKA. Mr. President, I rise today in opposition to the
nomination of Texas Supreme Court Justice Priscilla Owen to the U.S.
Court of Appeals for the Fifth Circuit. After being rejected by the
Senate Judiciary Committee in 2002, and after being renominated and
successfully filibustered by the full Senate in the 108th Congress,
Justice Owen has been nominated yet again to the U.S. Court of Appeals
for the Fifth Circuit.
In my opinion, Justice Owen has not demonstrated an appropriate
judicial temperament for a lifetime appointment to the Federal bench.
More importantly, her own colleagues on the conservative Texas State
Supreme Court have described her dissents as ``nothing more than
inflammatory rhetoric.'' In another case, the majority stated that
Justice Owen's dissenting opinion, ``. . . not only disregards the
procedural limitations in the statute but takes a position even more
extreme.'' However, I will not dwell too long on Justice Owen's record.
It speaks for itself, and as I mentioned earlier, we have given much
time and thought to this nomination. Much has already been said in
opposition to her nomination. Instead, I will spend some time on the
majority's plan in this Chamber to subvert the minority's right to
extended debate.

[[Page S5725]]

I have spent the past few weeks listening to the debate over seven
nominees who were not confirmed in the 108th Congress and have been
renominated to the Federal bench by President Bush. We are nearing the
end of a debate that may forever change the very nature of how this
great institution operates: by a delicate balance of the majority's
ability to set the agenda and the protection of the minority's rights.
One thing is clear to me, this discussion about the minority's right to
extended debate is not getting us any closer to enacting much-needed
legislation to assist our constituents.
Outside of Washington, DC, on a day-to-day basis our constituents
face many challenges: escalating health care costs, record high gas
prices, and mounting debt that will be handed down to our children and
grandchildren. Despite these day-to-day challenges, the majority party
continues to put seven judicial nominations at the top of its agenda.
Let it be clear to those following this debate. This discussion is
over the fact that the Senate has passed only 95 percent of President
Bush's nominees, not 100 percent. I take my responsibilities as a
Senator very seriously. I am to provide the President with my advice
and consent regarding the individuals he nominates for a lifetime
position to the Federal judiciary. Let me say that again: a lifetime
position on the Federal judiciary. Many have asked why the Democrats
are so vigorously defending the rights of the minority in this case?
Why do we need to preserve the tradition of extended debate with regard
to judicial nominations?
The reason why we are taking a stand against these nominees is
because once they gain the Senate's advice and consent, nominees are
free to decide thousands of key cases that affect millions of Americans
on a day-to-day basis. If there are any objections we may have to
a judicial nominee's lifetime appointment to the Federal judiciary,
this is the time for each Senator to voice that opposition. Unlike
legislation, which may be amended and refined over time, judges on the
Federal bench sit for a lifetime appointment with little recourse for
correction or change. The only chance we as Senators have to voice our
positions on their appointments is now.

From civil rights to personal privacy, from environmental protections
to a corporation's financial matters; these nominees will affect public
policy for decades to come. In fact, I dare say that we would be remiss
in our Constitutional duties if we did not object to those nominees
with whom we find unfit for a lifetime appointment to the Federal
bench. It troubles me that the Senate has focused so much in the past
few weeks discussing the fact that we have not acted on 7 of 218 of the
President's nominees to the Federal judiciary.
We are talking about seven individuals, seven individuals who have
jobs, while 1.2 million people are without jobs since President Bush
took office, seven individuals who most likely have health insurance,
while 45 million Americans do not have health insurance. We should be
talking about jobs and access to health care. We should be focusing on
the need to increase funding to ensure that veterans, especially those
returning from the global war on terror, have access to quality health
care and benefits. We should be looking at energy legislation that will
address the vital energy needs of our Nation. In short, we should be
doing what the American people sent us to Washington to do; to govern,
not engage in an effort to ensure that this President has a 100 percent
success rate for his judicial nominations.
If we want to start talking about legislation that is important to us
as individual Senators, we could be talking about Federal recognition
for Hawaii's indigenous peoples, Native Hawaiians, an issue of extreme
importance to my constituents in Hawaii. We could be talking about
ending mutual fund abuses for investors or promoting financial and
economic literacy for our youth and adults alike. We could be talking
about how to fund the promises we extended when we passed the No Child
Left Behind Act which has been severely underfunded since its
enactment.
Instead, over these past few weeks out of 218 judicial nominations
approved we focus on the seven that Democrats have opposed. Despite
confirming 208 nominations for a lifetime appointment on the Federal
bench, there are those in this body who seek to subvert the rights of
the minority for the sole purpose of ensuring that instead of a 95-
percent success rate, the President has a 100-percent success rate with
respect to his judicial nominations. This action will serve to deny me
my ability to truly provide my advice and consent on individuals
nominated to serve in the judiciary that our predecessors have
preserved. It is sad that we have come to this point. During my tenure
in the Senate, we have been able to work in a bipartisan manner to
achieve our goals.
Some of my colleagues from the other side of the aisle argue that
this is the first time a filibuster has been used for a judicial
nominee. Republicans have openly filibustered a number of nominees on
the floor of the Senate, five of whom were circuit court nominees. As
we have heard multiple times during this debate, during President
Clinton's two terms, close to 60 of his nominees were held in the
Senate Committee on the Judiciary and never brought to the Senate
floor, never given the same up-or-down vote Republicans today say every
Republican nominated judge deserves.

My colleagues on the other side of the aisle say they have never
engaged in efforts to block a judicial nomination. I want to share with
my colleagues a situation I encountered during the 104th and 105th
Congresses. An individual from Hawaii was nominated to serve on the
U.S. District Court, District of Hawaii. This was a nominee strongly
supported by both Senators from Hawaii. This nominee had a hearing
before the Senate Judiciary Committee and was reported favorably.
However, this is where the process stopped for a period of 2\1/2\
years.
A colleague from another State placed a hold on this nominee for over
30 months before allowing us to confirm this nomination. In effect, a
Senator from a State thousands of miles from Hawaii blocked a district
court nominee that the senior Senator from Hawaii and I supported. This
colleague is a former Attorney General of the United States and happens
to be a good friend of mine. I found this situation to be so unusual,
that a colleague from another State would place a hold on a district
court nominee from my State when both Hawaii Senators strongly
supported the nomination. I raise this issue to dispute the notion that
this is the first time a nomination has been blocked, after the Senate
Judiciary Committee favorably reported the nomination to the Senate for
consideration.
I could also speak about the nomination of Justice James Duffy to the
U.S. Court of Appeals for the Ninth Circuit. A fine nominee, described
by his peers as the ``best of the best,'' he had strong support from
Senator Inouye and me to fill Hawaii's slot on the Ninth Circuit. Yet,
Justice Duffy never received a hearing in the Senate, which had a
Republican majority at the time. He went 791 days without a hearing,
Mr. President. I should mention that Hawaii now benefits from James
Duffy's service on the Hawaii State Supreme Court, who was appointed
with bipartisan support.
Justice Duffy is one of the well-qualified and talented men and women
nominated during the Clinton administration, individuals with
bipartisan and home-State support, whose nominations were never acted
on by the Senate. My colleagues on the other side of the aisle refused
to hold hearings for nominees they did not agree with, effectively
blocking the Senate's consideration of President Clinton's nominees.
Let's look at the substance and not the rhetoric.
The last person I will mention is Richard Clifton, who is now serving
on the U.S. Court of Appeals for the Ninth Circuit. Mr. Clifton was
nominated after President Bush withdrew Justice Duffy's nomination.
Richard Clifton served as the Hawaii State Republican Party Counsel.
While I do not necessarily agree with all of his views, I supported his
nomination, because I have confidence in his ability to appropriately
apply the law. He was confirmed within a year of his nomination.
Since President Bush took office, we have been working in a
bipartisan manner with our colleagues on the other side of the aisle to
fill the vacancies on

[[Page S5726]]

the Federal judiciary, creating the lowest vacancy rate in 13 years.
According to the Administrative Office of the United States Courts,
there are 45 vacancies on the Federal bench. This is a decrease in
total vacancies from 97 when this President first took office. Let's
return to urgent legislation which will truly help our constituents--
jobs, access to health care, education, the minimum wage, and helping
the poor.

In a Senate where the divide between the majority and minority is
held by a handful of votes, and that division reflects the viewpoint of
the American body politic at-large, it is imperative that we work
together to resolve the many issues that are important to our
constituents. When it comes to judicial nominations, the confirmation
of 208 judges clearly shows that we in the minority are doing what we
can to work with the majority in upholding our constitutional
obligation to provide advice and consent to the President on judicial
nominations. I can only hope we achieve a success rate of 95 percent in
enacting legislation addressing funding for education, access to health
care, increases to the minimum wage, benefits and services for our
veterans, business and economic development, and financial literacy to
enable individuals and families to make sound decisions in their lives.
Mr. President, I ask unanimous consent that the remainder of my time
be provided to the Senator from New York.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, how much time do I have until the time of
the Senator from South Dakota begins?
The PRESIDING OFFICER. There has been no time allocated among
Senators. There is a total time of 17 minutes 3 seconds and counting.
Mr. SCHUMER. I ask that I be yielded 2 minutes so that the remaining
15 minutes be provided to the Senator from South Dakota.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, I thank my colleague from Hawaii for his
kind remarks and for his graciousness in yielding. I just want to make
a point that we have not heard enough. It is these numbers: 2,703 to 1.
This is the number of times Republican Senators have voted for court of
appeals nominees either by direct vote or cloture versus the number of
times they voted against them--2,703 yes, 1 no. The one ``no'' vote was
Trent Lott who voted against Mr. Gregory to the Fourth Circuit who
Jesse Helms would never allow to go on the bench. So when we are
talking about up-or-down votes, we are really not. We do not have any
diversity of opinion on the other side. Nominees who are way off the
deep end, every member of the other side votes for them. So there is no
great deliberation here. In fact, what 2,703 to 1 means is a
rubberstamp.
The reason we are standing for what we believe in is very simple.
There should be some input. But when it comes to the other side, the
White House says, This is the nominee, and everyone votes for that
nominee no matter how extreme.
If there were 40 or 50 or 60 negative votes compared to, say, 2,600,
you might say up-or-down votes might mean something. But they do not
because, unfortunately, for every single nominee on every single
cloture vote, the Members on the other side just do whatever the
President wants and vote for whoever the President sends us. That is
not deliberation. In my judgment, that is not what the cries for an up-
or-down vote call for. They call for honest deliberation. I will have
more to say about that later.
I yield the floor.
The PRESIDING OFFICER. The time of the Senator has expired.
The distinguished Senator from South Dakota is recognized.
Mr. JOHNSON. Mr. President, I thank my colleague from New York for
his excellent point.
Mr. President, tomorrow we may be casting a historic vote in this
Chamber. It has to do with a fundamental decision that we, as Senators,
must make as to the very nature of government in our democracy, as to
the fundamental values of this body, the Senate. We must choose between
whether we will remain with the 200-year-old parliamentary rules of
this body, which assure that at least there will be some modicum of
bipartisanship on virtually all issues of import, or whether, in
unprecedented fashion, we will wind up stripping away that fundamental
rule, that 60-vote rule, the filibuster rule which for over 200 years
has brought both parties together whether they liked it or not. We must
choose whether we should discard that and, in effect, create an
environment where it is very clear that the Senate, as has happened all
too often to our colleagues in the House, will collapse into a spirit
of partisan vituperation that will undo efforts at bringing the parties
together, will undo our efforts to build bridges between Republicans
and Democrats, and will push governance in this body to the far
extremes, far outside the political centrism that is the genius of the
American people.
In my State of South Dakota, we have a heavy party registration on
the side of the Republican Party. I respect that. I am proud of the
support over the years that a great many South Dakotans have cast for
me. But whether they are Republicans or Democrats, I think the
overwhelming view across my State is one of common sense. It recognizes
that neither one of the political parties has all the answers, that
both parties have their share of bad ideas, and that governance from
the far left or the far right is equally unacceptable. Wisdom in
America, more often than not, is found in the political center. That is
what the filibuster rule, that is what the filibuster margin has forced
upon the Senate and is what makes the Senate unique, different from the
House of Representatives.

I served 10 years in the House. It was an honor to serve there. But I
know the nature of the rules there and what happens. One party can run
roughshod over the other. All too often, bipartisanship is viewed by
the current leadership on the House side with contempt. The thought
that there ought to be governance from the center, and bipartisanship,
is viewed by some in the other party as ``girly-man'' politics,
unworthy of their radical agenda. It is here in the Senate that the
Founders, 200 years ago, understood that this body's orientation would
be to take the longer view. This body was to be the more deliberative
body. This body would not march lockstep to any ideological drummer.
More than any other factor in the Senate, what has enforced that
different character on the Senate, a character which has served the
American people so well, has been the 60-vote margin rule. Both parties
know that in order to make much of anything happen here, they must
reach across the aisle. Not a lot. It doesn't require a huge number of
members of the opposing political party, but it requires some. That has
had a wonderful beneficial consequence for the wisdom of legislation in
America, and certainly for the selection of judges.
There is no judicial crisis. We all know. One doesn't have to be a
cynic to understand that the judicial crisis, if you will, is a
fabricated political vehicle. President Bush has had 208 of his judges
approved by broad, bipartisan margins. Essentially each and every one
of them was a conservative Republican judge. That is the President's
prerogative. The Senate has not reacted negatively to that.
Put this in contrast with what we saw only a few years ago during the
Clinton administration. President Bush has had all of his nominees
receive hearings. All of his nominees, who were so chosen, received a
vote up or down--a 60-vote margin vote but a vote nonetheless. Every
Senator has been required to stand up and be counted and reflect back
to his or her constituencies where they stood on that judge.
In the case of President Clinton, however, over 60 of his nominees
received no hearing or no vote. Where was the clamor then? Where was
the cry of unfairness then? I think, to Senator Reid's great good
credit, as well as Senator Leahy, we have agreed that what was done to
President Clinton should never be done to President Bush. That was
unfair from either political angle. In fact, all of President Bush's
nominees should get hearings. If their nomination stands, they should
be voted on, publicly, on the record. That is exactly what has
happened.
But now there are some who suggest that 208 to 10 is unsatisfactory
and, for that reason, they are going to upend

[[Page S5727]]

these historic rules of the Senate. They are going to discard the
Senate as the one body of the two that forces bipartisanship and
political centrism.
Senator Reid deserves great credit for his efforts to try to reach
some compromise with the majority leader. Unfortunately, those effort
have--to this point, in any event--been futile. One can only come to
the conclusion that the majority leadership has reached such an impasse
because of a certain amount of pandering to the radical right that now
no compromise of any kind is acceptable. So here we stand with the very
likely, very clear possibility that the fundamental checks and balances
of American government--the requirement that there be moderation, the
requirement that we govern from the center and not from the far left or
far right--is about to be discarded.
Let no one believe that this has to do only with judges. The
political tactic here once used is then available. The precedent is
available for all issues, whether they have to do with education,
environment, health care, the budget, war--all of these issues will
henceforth be susceptible to a partisan party-line vote from one side
of the political spectrum or the other. That is a tragic change after
200-some years of the Senate being the body of deliberation, being the
body of political moderation.
We ought to be dealing, rather than with this issue, with the core
issues that my constituents--and I think all Americans--care about. We
have great undone business relative to the deficit, relative to job
creation, relative to trying to make sure all Americans have access to
affordable health care. We have changes that are needed in our
educational system, both under No Child Left Behind as well as
reauthorization of the Higher Education Act. We have a transportation
bill. We have an energy bill before us. Yet here we are, arguing about
a parliamentary step which--while many people will view as ``inside
baseball,'' as something of no great consequence, this issue, this vote
we will take soon--is of monumental consequence to the nature of the
institution that will be deciding all these other matters in the years
to come.

I wish there were no need for any of us to be rising on this occasion
for such an extraordinary, such a potentially tragic step that this
body may be taking. The Founders of our country understood, over 200
years ago, that the House of Representatives would be the hot house,
the people's House. It would be immediately responsive to whatever wind
is blowing through Washington. Their rules, which give virtually no
rights to the minority, and their 2-year terms, assure the nature of
that House.
But the Founders also understood that Senators representing entire
States would be more moderate in their outlook, and the 6-year terms
would give them a longer view of what is right or not in legislation
pending before us. Within the rules of the Senate, the filibuster rule,
the 60-vote margin rule, has served America well. It has pushed the
political debate to a commonsense point--common sense being a value
that my constituents would tell me is all too rare in Washington, DC,
but which does occur as often as it does in no small measure because of
the filibuster rule and its insistence, grabbing both political parties
by the collars, pushing them together, and saying, You must work
together or otherwise neither of you will have your way.
This is an effort to radicalize the Senate, to radicalize government
in America in a way that many Americans will never understand. They
will never recognize how this could have happened.
It is my hope as we come down to these final hours that my colleagues
on both sides of the aisle will pause and take a long view of the role
of this institution, of the importance of centrism, cooperation, of
bipartisanship and all that means, if we truly are to reflect the
values and priorities of the American people here in the Senate. If we
allow this institution to veer off sharply to either ideological end of
the spectrum, we will have done a horrible disservice to the American
people, to future generations of Americans, and, frankly, to the world.
This issue is that fundamental. It goes to the very nature of
governance in America.
It is my hope all our colleagues will rise to stand as statesmen at a
time when political pressures are great for what is right and will cast
a loud vote to be counted by the American people on behalf of what is
right rather than what is politically convenient at this particular
time in our history. It is my hope that in these intervening hours we
will have a significant number of people who will understand what is at
stake and, in fact, uphold the values and priorities of the American
people by retaining the parliamentary rules of this body that have
prevailed for well over 200 years, will understand there is no judicial
crisis, will understand when it comes to giving lifetime appointments
to the bench it would be very easy for President Bush to have 100
percent of his judges approved simply by nominating judges who can be
approved by 60 Members of this body. That is a modest request. That is
the kind of consultative role the Founders envisioned under their
constitutional provision of advice and consent.
The goal was not to create a lockstep ideological opportunity. The
goal was for both parties to work together and in good faith evaluate
the qualities of people who will serve our judiciary for lifetime
appointments. It is my hope we will not abuse that opportunity and that
we will cast that vote to preserve that orientation, preserve the very
values of the Senate.
Mr. President, I yield my time.
The PRESIDING OFFICER (Mr. Burr). The majority controls the next 60
minutes.
The Senator from Kansas.
Mr. ROBERTS. Mr. President, our former Senate majority leader, Howard
Baker, reportedly tells the story about his late father-in-law, Senator
Everett Dirksen, who admonished him to occasionally allow himself the
luxury of an unexpressed thought. After listening to the current debate
on judicial nominations, there is a temptation to say, after all is
said and done, pretty much all that can be said has been said.
I rise today because I do have something to say. What I want to talk
about is of very crucial importance not only with regard to the
judicial nominations but, perhaps more important, how we are meeting
our obligations in the Senate--or better put, how we are not meeting
them.
This weekend, an elderly gentleman spotted my Senator's car tag on my
car in a parking lot. He wandered up to me and asked: Are you a
Senator?
And I responded: Yes, sir, I am.
Well, he has some rather succinct advice for all of us who ask for
and gain the public trust.
He said: You know, you fellows up there ought to get busy and quit
talking past one another.
I think probably no matter the issue, most would agree he was right.
I am concerned, and so are a lot of other people--people who care,
people who have given much to this country and whose advice we should
be taking. One of those people is Dr. David Abshire who is president of
the Center for the Study of the Presidency and whose credentials for
public service are well-known and admired. Dr. Abshire recently
authored a treatise, ``The Grace and Power of Civility'' and the
necessity for renewed commitment and tolerance. He quoted John
Witherspoon and Samuel Cooper during the days of our Founding Fathers
and highlighted what they called ``the consonance of faith and
reason,'' if we are to cross the bridge of united purpose.
We are not doing what our Founding Fathers did so well. As a matter
of fact, we are in pretty sad shape with the shape we are in. Across
the bridge? Well, today, the bridge is washed out. We can't swim. And
the judges are simply on the other side.
I am going to paraphrase from Dr. Abshire. Today, as our Nation and
the world confront new and great perils, there are paralyzing forces of
incivility and intolerance that threaten our country. Divisions in
Congress also reflect the divisions in the country. The so-called wedge
issues seem and appear endless. These challenges, if allowed to divide
the Nation, might well deny the next generation the prosperity and
civic culture that we have inherited.
It was Benjamin Franklin who stated that Congress should be a mirror
image of the American people. In the sense that there are divisions in
the country, the sad fact is, as evidenced by this debate, we seemingly
cannot transcend

[[Page S5728]]

these divisions. We keep talking past one another, saying the same
things, but basically being in disagreement.
Dr. Abshire quoted the poet William Yeats, who said this, a dire
prediction:

Things fall apart; the center cannot hold;
Mere anarchy is loosed upon the world,
The blood--dimmed tide is loosed, and
Everywhere the ceremony of innocence is drowned;
The best lack all convictions, while the worst are
full of passionate intensity.
Surely some revelation is at hand.

My colleagues, on this issue and so many others, we seem to be locked
into an era of partisanship that echoes a mindset of absolutism that
can close off dialogue and also mutual respect.
In that vein, let me take up the matter of judicial nominations,
obviously, the issue at hand that currently has us tied up in partisan
knots.
First, I understand the opposition on the part of my colleagues to
many of the President's nominations. I understand some of my colleagues
do not support certain nominees. Their opposition is well within their
rights and their belief that they are reflecting the will of their
constituents.
I have a very simple solution. If you believe that your constituency
does not approve of certain nominees, then simply vote against them. I
have done that, but I have never denied any Member of this body the
right to an up-or-down vote, knowing full well that 214-year tradition
of the Senate ensures that a majority vote would confirm or deny a
confirmation. Contrary to the great majority of statements made by some
of my friends across the aisle, the practice of filibustering judicial
nominations is not steeped in Senate history or precedent.
This is a brandnew application, quite frankly, of an obstruction tool
that the minority has suddenly seized, collapsed to their breast. We
are seeing the reinterpretation of history and the claiming of
precedent when there is none. Again, the minority is asking the
American people to ignore the obvious tradition of a simple majority
vote for judicial nominations that has been honored in the Senate for
214 years.

Serving in public office for over 25 years in both the House and
Senate, I am familiar with the broader points of our Constitution. What
I gather from all the lather from my friends across the aisle is that
President Bush should just stop nominating these ``out of the
mainstream judges,'' for approval.
In fact, the President should consult with the minority party to find
a judicial nominee that is more appropriate and more mainstream or more
in line with their thinking.
By this logic, the minority party--not the elected majority, the
minority party--would have the determining role in choosing who is
acceptable and who is not. Yet article II, Section 2 of the
Constitution states that the President ``shall nominate, and by and
with the Advice and Consent of the Senate, shall appoint Ambassadors
and other Public Ministers and Counsels, Judges of the Supreme Court,
and all other Officers of the United States whose appointments are not
herein otherwise provided for and which shall be established by law.''
Here's the rub: The power to choose nominations is not vested in the
Senate's advice and consent role. The Senate's constitutional
responsibility is to ratify or to reject.
Let's talk about this new higher standard that was put into place
only 2 years ago and advocated so eloquently today by my friends across
the aisle. Since 2003, two short years ago, 60 votes have been the new
minority criteria forced upon the Senate in order to confirm judicial
nominations. The Framers of the Constitution identified seven
circumstances in which a supermajority vote is warranted by one or both
chambers of commerce. Here are some examples: Impeachment--we have done
that; overriding a Presidential veto--haven't done that for a while;
amending the Constitution--and there are quite a few bills in the
hopper that would do that.
However, Senate approval of judicial nominations is not among the
seven instances identified by the Constitution. Here is the heart of
the matter. We do not propose to change anything. We propose to return
to the tradition that governed the Senate for 214 years and an up-or-
down majority vote on pending nominations.
Then there is the charge that somehow restoring Senate precedent is
reactionary. I have heard a lot of people compare the Senate to the
House. I served in both bodies. Intuitively then, blocking judicial
nominations is, therefore, a hallowed and sacred tradition of the
Senate Chamber. But history does not support that assumption. In fact,
for over 200 years, judicial nominations required a simple majority
vote. And again, a simple fact that I seldom read or hear within the
national media, paragraph after paragraph after paragraph about the
majority trying to change the rules, we are just trying to go back to
the rules that were in evidence prior to the last 2 years.
This new 2003 standard through the unprecedented use of the judicial
filibuster is the result of the minority not making the case against
the nominees as demanded by special issue interest group ideology. Why?
They are not able to convince the majority of Senators that these
nominees are radical and wrong. It has been pointed out that during
this debate, for 58 percent of the last 50 Congresses--well over half,
almost 60 percent--the same party did control the Senate, the House,
and the White House. Now, in all that time, the minority, whether it
was the Democrat or the Republican Party, never, ever resorted to this
systematic filibustering of judicial nominations.

So if the contention is that returning to a simple majority standard
for judicial nominations would abridge minority rights, my question is,
then why in the last 100 years has that bridge never been built until
2003?
Our official Senate majority leader, Bob Dole, summed it up when he
said:

When I was the leader in the Senate, a judicial filibuster
was not part of my procedural playbook. Asking a Senator to
filibuster a judicial nomination was considered an abrogation
of some 200 years of Senate tradition.

And there is the related issue that has been talked about in the
Senate. Unfortunately, the disease of obstruction infected other
aspects of our work in the Senate last week. Obviously, the fever will
not break until high noon tomorrow. Senate business and the committee
hearings and the markup of legislation are in early morning slow-
motion. In the afternoon, they come to a grinding halt.
For those not familiar with the Senate business, for business to be
conducted off and on the Senate floor, it takes only one Senator, or in
this case the minority leadership, to call a halt to the Senate
conducting business off of the floor.
I am chairman of the Intelligence Committee. We get hotspot briefings
every week, two or three times a week. We are marking up the PATRIOT
Act. I asked why this practice was initiated so early; why last week,
at a time when our Nation is fighting the global war on terror. I found
that obstruction rather appalling. The answer was pretty simple: We
wanted to send you a message. That message, as I interpreted it, was
whoa, stop the Senate, let me get off until we get our way--something
akin to a toddler throwing a temper tantrum in the middle of a grocery
store with much of the same rhetoric and name calling.
What is the real problem? Let's fully understand where the real
controversy lies. Too many in the Senate and too many pundits have been
masking the real issue, in this Senator's opinion. It is not about
preserving great Senate traditions such as minority rights. It is not
about lengthy debate and cooling passions of the day. That is an
oxymoron in regard to the Judiciary Committee. It is not about doing
away with the filibuster. By the way, it is not about Jimmy Stewart and
``Mr. Smith Goes to Washington.'' That was a classic movie, but it is
the wrong plot unless we are talking about other Jimmy Stewart movies.
The movies ``Vertigo'' and the ``Supreme Court'' come to mind. Or
perhaps the minority is hoping they can have the Glenn Miller Band play
``Pennsylvania 65000'' within Pennsylvania 1600 in 2008.

And it is not about unqualified or unacceptable judicial nominees. It
is about a brandnew 2-year-old procedure that will deny--is denying--a
majority of Senators their right and constitutional duty to vote on
judicial nominees. In my view, we are riding into a box canyon here,
where incivility and partisanship and absolutism and further division
await. There is going to

[[Page S5729]]

be a lot of milling around. We do not have to go there. Let us restore
the 214-year-old precedent of an up-or-down majority vote and see if we
cannot reach accord and ride to a higher--a higher--common ground.
I yield back.
The PRESIDING OFFICER. The Senator from Utah.
Mr. BENNETT. Mr. President, we turn on the television these days and
get bombarded with advertisements saying: ``Write your Senator.''
``Call your Senator and preserve the filibuster.'' ``Get ahold of your
Senator and make sure this tool that provides rights and protections of
the minority gets preserved.''
I have been associated with the Senate now since I was a 19-year-old
intern sitting in the family gallery in the 1950s, falling in love with
the debate that was going on, on the Senate floor. I must say there
were usually more Senators here in the 1950s than there are now, but I
understand, with television, the Senators stay in their offices and
watch, and I am happy to accept that. But I understand the traditions
of this body have great roots in history that many times get ignored.
That is, these roots get ignored by people writing columns and stories
today.
I want to go on record very firmly as being on the same side as those
people who are buying the ads saying: ``Preserve the filibuster.'' I
have watched the filibuster be used to help shape legislation. I
watched the filibuster be used as a tool of compromise. I think the
filibuster is a very worthwhile thing to hang on to in order to
preserve the rights of the minority.
Now, that position of saying ``let's save the filibuster'' has not
always been popular. If you go back 10 years ago, when a proposal was
made on the Senate floor to abolish the filibuster, the New York Times
editorialized in favor of that position. The New York Times told us

. . . the filibuster has become the tool of the sore loser.

The Times was anxious to have the whole thing wiped away. There were
only 19 Senators who voted to abolish the filibuster, 9 of whom are
still serving today. The rest of us all voted to preserve the
filibuster. So I am on record as saying: We must preserve the
filibuster. I value it. I believe it has a place in the Senate.
However, I also believe we have the right to shape the filibuster, to
focus the filibuster, to reform the filibuster, so it can be used in a
more effective way.
There are those now who, when they say ``save the filibuster,'' mean
``save the filibuster the way we like it,'' not ``save the filibuster
in its historic form, because its historic form has changed over the
years.
The first point, as far as history is concerned, is this: The
filibuster did not come into existence with the Constitution. I had a
phone call over the weekend from a very dear friend who said: This is a
constitutional issue that goes back all the way to the Founding
Fathers. However, the filibuster, Rule XXII, came into the Senate
history in 1917. That is a long time after the Founding Fathers. And it
has been changed several times since that time, some times by formal
Senate rule. It was changed in 1949. It was changed again in 1959. And
it was changed again in 1975. So for those who run the ads saying
``save the filibuster,'' maybe the first question is, which filibuster
do you have in mind that you want us to save?
But there is another aspect of the filibuster. I turn again to the
New York Times. It is amazing how much they have changed their minds in
the intervening 10 years. After the New York Times said the filibuster
was a tool of the sore loser, now in this debate they decide that

. . . the filibuster [is] a time-honored Senate procedure . .
.

They editorialize: ``Keep it just the way it is.'' Well, I want to
talk a little bit about time-honored Senate procedures, and
particularly time-honored Senate procedures with respect to the
filibuster. It is a time-honored Senate procedure that the filibuster
can be changed by majority vote. There are a number of Senators who
have served here and are still serving here who, at least at one time
in their careers, agreed with that.
Senator Kennedy had this to say in 1975, when there was a debate on
what kind of filibuster we could have and what the time-honored Senate
procedures would say about the filibuster. Senator Kennedy said:

A majority may adopt the rules in the first place. It is
preposterous to assert they may deny future majorities the
right to change them.

Senator Kennedy was enunciating a time-honored Senate procedure that
said a majority had the right to change the rules. This was in 1975.
Senator Mondale served in 1975. Senator Mondale had this to say about
what was done in 1975. For those who are talking about time-honored
Senate procedures, this was the Senate procedure 30 years ago. And for
30 years it has stood the test of time. Senator Mondale said:

. . . the President of the Senate . . . and the membership of
the Senate . . . have both clearly, unequivocally, and
unmistakably accepted and upheld the proposition that the
U.S. Senate may . . . establish its rules by majority vote,
uninhibited by rules adopted by previous Congresses.

Somehow this happened. Senator Mondale said it happened ``clearly,
unequivocally, and unmistakably,'' and the place did not blow up. There
were no threats to shut everything down, to object to every unanimous
consent request, to cause a ``nuclear bomb'' to go off in this Chamber
if this policy were to happen. This is a time-honored Senate procedure
and it happened with both the membership of the Senate and the
President of the Senate in 1975, according to Senator Mondale.
I picked Senator Mondale because in 1976 he was elected Vice
President, which meant he became the Presiding Officer of the Senate.
And something happened while he was the Presiding Officer of the Senate
in this same time-honored Senate procedure.
The majority leader at the time was Senator Byrd of West Virginia.
And he has described what happened while Vice President Mondale was
presiding over this body. Here is what Senator Byrd had to say in 1995,
as a bit of historic information for the rest of us who may not have
been present back in the time when Mr. Mondale was the Vice President.

Senator Byrd explained:

I have seen filibusters. I have helped to break them. There
are few Senators in this body who were here when I broke the
filibuster on the natural gas bill. . . . I asked Mr.
Mondale, the Vice President, to go please sit in the chair; I
wanted to make some points of order and create some new
precedents that would break these filibusters.

Interesting choice of words, because that is what we are talking
about here under the name ``nuclear option,'' making a point of order
and setting a new precedent. Senator Byrd, the majority leader, asked
Vice President Mondale to ``please sit in the chair,'' to be there when
Senator Byrd made ``some points of order'' and created ``some new
precedents'' to ``break these filibusters.'' He goes on to describe
what happened:

And the filibuster was broken--back, neck, legs, and arms.
It went away in 12 hours.
So I know something about filibusters. I helped to set a
great many of the precedents that are in the books here.

A time-honored Senate procedure.
Senator Byrd did it again. Going ahead to 1980, Senator Byrd led 54
Senators, all but one of whom were Democrats, in overturning the Chair
and eliminating all debate on motions to proceed to nominations. The
point here is an important one. He did not abolish the filibuster. He
did not say: Get rid of the filibuster. He did not abide by the advice
of the New York Times that said it was a tool of sore losers. But he
helped shape it. He helped focus it. He said the filibuster should not
be quite as broad as it may have been in the past. And using the time-
honored Senate procedure of making a point of order, and getting the
Senate to vote, he helped shape it, and the Senate Democrats set this
precedent before the Senate had even begun to debate the motion, so
that the filibuster that used to apply to motions to proceed to
nominations no longer does.
And how was the rule changed? It was changed by a time-honored Senate
procedure.
Now, there is one other time-honored Senate procedure that Senator
Leahy has spoken of. This goes to a floor statement Senator Leahy made
in 1997, as he was talking about nominations for the Federal bench.
Senator Leahy,

[[Page S5730]]

who at the time was the ranking minority member of the Judiciary
Committee--he went on later to become the chairman--said:

I cannot recall a judicial nomination being successfully
filibustered.

I find that interesting because many of our Democratic friends are
now saying: ``Oh, filibusters of judicial nominations are normal. They
have happened before.'' Well, at least in 1997, Senator Leahy said:

I cannot recall a judicial nomination being successfully
filibustered. I do recall earlier this year when the
Republican chairman of the Judiciary Committee and I noted
how improper it would be to filibuster a judicial nomination.

I have the same recollection. I remember in our conference when the
issue of filibustering some of President Clinton's judges came up, it
was the Republican chairman of the Judiciary Committee, my senior
colleague, Senator Hatch, who stood before the conference and said:
``Do not do it. It would be improper to filibuster a judicial nominee.
Having judicial nominees get a vote is a time-honored Senate
precedent.'' Senator Lott was the majority leader. He took the floor,
after Senator Hatch had spoken, and said: ``Senator Hatch is right.''
We should not cross the line and start to filibuster judicial
nominations because the Senate tradition has said no.
So that is where we are now. The Senate tradition has been changed.
The Members of the minority have exercised their right, which has
always been on the books, to change the precedent which had held for so
long that even Senator Leahy could not recall an exception to it. What
we are talking about doing now is using the time-honored Senate
procedure of changing the rule by majority vote to see to it that the
prior precedent remains--or, rather, returns because it was broken in
the 108th Congress.
So I value the filibuster. I am in favor of the filibuster. But I
think the filibuster has been and still can be shaped and changed so it
is more focused than simply an across-the-board procedure.
I want to close by putting something of a human face on this whole
issue because we are talking about this filibuster of judicial nominees
almost as if the judicial nominees were not people, almost as if the
judicial nominees were spectators in this activity. They are not
spectators. They are seeing their reputations smeared. They are seeing
their history attacked. It is time we spent a little time thinking
about them.
I know the nomination on the floor is Priscilla Owen, but over the
weekend I had called to my attention an article that appeared in the
Sacramento Bee by one Ginger Rutland that I would like to close with.
It is entitled: ``Worrying about the right things.'' Ginger Rutland
identifies herself as ``a journalist of generally liberal leanings,''
and she talks about the nomination of Janice Rogers Brown.
Both Ms. Rutland and Ms. Brown live in California. Ms. Rutland says:

I've been trying to get a fix on Brown since President Bush
nominated her for the influential U.S. Circuit Court of
Appeals for the District of Columbia.

It talks about the experience. And then she makes this comment:

Championed by conservatives, Brown terrifies my liberal
friends. They worry she will end up on the U.S. Supreme
Court. I don't. I find myself rooting for Brown. I hope she
survives the storm and eventually becomes the first black
woman on the nation's highest court. I want her there because
I believe she worries about the things that most worry me
about our justice system: bigotry, unequal treatment and laws
and police practices that discriminate against people who are
black and brown and weak and poor.
She was born and raised poor, a sharecropper's daughter in
segregated Alabama. She was a single mother for a time,
raising a black child, a male child. I don't think you can
raise a black man in this country without being sensitive to
the issues of discrimination and police harassment.

She goes on in the article. I ask unanimous consent that the entire
article be printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. BENNETT. She concludes with this comment:

I don't pretend to know how Brown will rule on other
important issues likely to reach the Federal courts. I only
know that I want judges on those courts who will defend the
rights of the poor and the disenfranchised in our country.

She believes Janice Rogers Brown is one of those jurists.
I am not sure whether she is right or wrong. But I do know Janice
Rogers Brown deserves the opportunity to have her nomination voted on.
And if one use of the filibuster has been to prevent Priscilla Owen and
Janice Rogers Brown and others like them from getting this vote, a
time-honored procedure of the Senate can be used with equal
justification to see to it that the filibuster gets tweaked a little
bit to make sure we go back to the practice that existed here for
decades.
For that reason, I will support the motion of the majority leader if
it becomes necessary to make sure that we have an opportunity to a vote
on Priscilla Owen. I hope as a result of this debate, our friends on
the Democratic side of the aisle will step back a little from their
position of saying no to a vote on Priscilla Owen and allow us to have
a vote. If they do, they are acting in accordance with the history of
the Senate for past decades, the history of the Senate going back so
far that even Patrick Leahy cannot remember an exception to it. If they
do and we have an up-or-down vote on Priscilla Owen, it may well be
that all of this talk about changing the rules will go away.
The outcome lies in their hands. If they allow us to vote on
Priscilla Owen, we will not have the lack of civility, the shutting
down of the Senate, the collapse of Government, all of the other things
that have been predicted. If, on the other hand, they say no, we will
not allow this woman who has been unanimously rated as well qualified
by the American Bar Association to even get a vote, then we will see
the majority leader follow the practice, follow the precedent, follow
the example set by Senator Byrd, the example endorsed by Senator
Kennedy, endorsed by Senator Mondale, and use the time-honored Senate
procedure to change the rule by majority vote. If the majority leader
so moves, I will support it.

Exhibit 1

[May 8, 2005]

Ginger Rutland: Worrying About the Right Things

(By Ginger Rutland)

I know Janice Rogers Brown, and she knows me, but we're not
friends. The associate justice of the California Supreme
Court has never been to my house, and I've never been to
hers. Ours is a wary relationship, one that befits a
journalist of generally liberal leanings and a public
official with a hard-right reputation fiercely targeted by
the left.
I've been trying to get a fix on Brown since President Bush
nominated her for the influential U.S. Circuit Court of
Appeals for the District of Columbia. She won't talk to the
press. Friends, associates, even a former teacher, say the
same things about her: She's ``brilliant,'' ``hardworking,''
``stoic'' and ``kind.''
Her opponents on the left tell me she's a fundamentalist
Christian who will bring her religious values into the
courtroom. But I've never been frightened by people of faith.
Brown is Church of Christ. So is my mother-in-law, a good,
gentle woman and lifelong Democrat who voted for John Kerry
for president and opposed the war in Iraq because, as she
told me when it started, ``I've never understood how killin'
other folks' children ever solved anything.''
I'm almost embarrassed to admit it, but desperate for
deeper insight, I visited Brown's church last Sunday, the
Cordova Church of Christ. The judge wasn't there, but her
mother, Doris Holland, was. She was polite but understandably
guarded. She told me that as a young girl Brown liked to read
and had an imaginary friend; that was about it.
The congregation is integrated and friendly. Church members
know Brown and her husband, jazz musician Dewey Parker, and
like them. The church itself is conservative, allowing no
instrumental music in its services, no robes, no bishops or
hierarchy of any kind. The religious right may have taken up
Brown's cause in Congress, but the sermon at Cordova that day
contained no political content.
Championed by conservatives, Brown terrifies my liberal
friends. They worry she will end up on the U.S. Supreme
Court. I don't.
I find myself rooting for Brown. I hope she survives the
storm and eventually becomes the first black woman on the
nation's highest court.
I want her there because I believe she worries about the
things that most worry me about our justice system: bigotry,
unequal treatment and laws and police practices that
discriminate against people who are black and brown and weak
and poor.
She was born and raised poor, a sharecropper's daughter in
segregated Alabama. She was a single mother for a time,
raising a black child, a male child. I don't think you can
raise a black man in this country without being sensitive to
the issues of discrimination and police harassment.

[[Page S5731]]

And yes I know. People said that Clarence Thomas would be
sensitive to those issues, too, and he's been a
disappointment.
But in Brown's case, I have something more concrete on
which to base my hopes--her passionate dissent in People v.
Conrad Richard McKay.
The case outlines a single, unremarkable instance of police
harassment, the kind of petty tyranny that plays out on the
streets of big cities and small towns across America every
day.
In 1999 a Los Angeles sheriff's deputy stopped Conrad
Richard McKay for riding his bicycle in the wrong direction
on a residential street, a minor traffic infraction. The
deputy asked McKay for a driver's license. McKay had none.
Instead, he provided his name, address and date of birth.
The officer arrested him for failing to have a driver's
license. Then he searched him, finding a baggie of what
turned out to be methamphetamine in his left sock. McKay was
charged with illegal drug possession, convicted and sentenced
to 32 months in prison.
He appealed, arguing that the arrest and the search were
unreasonable, a violation of his Fourth Amendment rights to
be protected from unreasonable searches. The officer searched
him, he said, because he didn't have a driver's license, a
document he was not required to carry to ride a bicycle.
Six members of the California Supreme Court rejected that
argument, ruling that McKay's arrest was within the officer's
discretion and therefore constitutional.
Brown was the lone dissenter. What she wrote should give
pause to all my friends who dismiss her as an arch
conservative bent on rolling back constitutional rights. In
the circumstances surrounding McKay's arrest, the only black
judge on the state's high court saw an obvious and grave
injustice that her fellow jurists did not.
``Mr. McKay was sentenced to a prison term for the trivial
public offense of riding a bicycle the wrong way on a
residential street,'' Brown wrote.
``Anecdotal evidence and empirical studies confirm that
what most people suspect and what many people of color know
from experience is a reality: There is an undeniable
correlation between law enforcement stop-and-search practices
and the racial characteristics of the driver. . . . The
practice is so prevalent, it has a name: `Driving while
Black.' ''
After a scholarly discussion on the origin of the Fourth
Amendment and an exhaustive review of the case law on
unlawful searches, Brown used plain words to get to the heart
of what really bothered her about what happened to Conrad
McKay on that Los Angeles street. It's what bothers me, too.
``I do not know McKay's ethnic background. One thing I
would bet on: He was not riding his bike a few doors down
from his home in Bel Air, or Brentwood, or Rancho Palos
Verdes--places where no resident would be arrested for riding
the `wrong way' on a bicycle whether he had his driver's
license or not. Well . . . it would not get anyone arrested
unless he looked like he did not belong in the neighborhood.
That is the problem. And it matters. . . . If we are
committed to a rule of law that applies equally to
`minorities as well as majorities, to the poor as well as
the rich,' we cannot countenance standards that permit and
encourage discriminatory enforcement.''
In her dissent, Brown even lashed out at the U.S. Supreme
Court and--pay close attention, my liberal friends--
criticized an opinion written by its most conservative
member, Justice Antonin Scalia, for allowing police to use
traffic stops to obliterate the expectation of privacy the
Fourth Amendment bestows.
``Due to the widespread violation of minor traffic laws, an
officer's discretion is still as wide as the driving
population is large,'' she wrote. In her view, court
decisions have freed police to search beyond reason not just
drivers of cars but ``those who walk, bicycle, rollerblade,
skateboard or propel a scooter.''
She reserved special scorn for judges who permit police to
discriminate while advising the targets of discrimination to
sue to challenge their oppressors. ``Such a suggestion
overlooks the fact that most victims . . . will barely have
enough money to pay the traffic citation, much less be able
to afford an attorney. . . . To dismiss people who have
suffered real constitutional harms with remedies that are
illusory or nonexistent allows courts to be complacent about
bigotry while claiming compassion for its victims,'' she
wrote.
``Judges go along with questionable police conduct,
proclaiming that their hands are tied. If our hands really
are tied, it behooves us to gnaw through the ropes.''
With that last pronouncement, Brown confirms what many of
her enemies have said--that she's an ``activist judge.''
Judges who ``gnaw through ropes'' to protect people being
hassled by cops represent the kind of judicial activism I can
support.
Liberals prefer to overlook Brown's strong dissent in
McKay. Conservatives mention it only in passing, as if
embarrassed that one of their own might have qualms about law
enforcement bias or a creeping police state.
I don't pretend to know how Brown will rule on other
important issues likely to reach the federal courts. I only
know that I want judges on those Courts who will defend the
rights of the poor and the disenfranchised in our country
against the rich and the powerful when the rich and the
powerful are wrong. I want someone who will defend people
like Conrad McKay.

Mr. BENNETT. I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. HUTCHISON. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. HUTCHISON. Mr. President, I rise to talk about Priscilla Owen, a
woman who serves on the Texas Supreme Court, a woman of the highest
moral character, and a woman whose confirmation has been held up by the
Senate for over 4 years--Justice Owen was first nominated on May 9,
2001, by President Bush. Her nomination has actually been voted on four
times by the Senate: May 1, 2003, a cloture vote, she won 52 votes; May
8, 2003, she won 52 votes; July 29, 2003, she won 53 votes; November
14, 2003, she won 53 votes.
If one looks back on a 200-year Senate tradition, the Constitution's
requirement for simple majority votes on judicial nominations--as well
as the specific instances where the Constitution does, in fact, specify
super-majority votes, one would presume that Priscilla Owen would be
sitting on the Fifth Circuit Court of Appeals and the majority in the
Senate would not have to be restoring precedent. My goodness, why isn't
she sitting on the Fifth Circuit Court of Appeals bench?
Priscilla Owen is not sitting on the Fifth Circuit Court of Appeals,
even though she received a majority of the votes in the Senate four
times, because a new standard is now being required, a new standard of
60 votes. Did we have a constitutional amendment that would require 60
votes? No. Did we have a new rule that required 60 votes? No. We just
have the use of a filibuster by the minority in the Senate in the last
session of Congress--the first time in the history of our country when
a majority of the Senate has been thwarted by the minority on Federal
judicial appointments.
There have, from time to time, been filibusters when the person did
not have 51 votes in the Senate; never when a majority of the Senate
voted to support that nominee. Yet that is exactly what has happened to
Priscilla Owen.
There has been a change in the balance of power that was envisioned
in the Constitution without a constitutional amendment. Last Friday on
the Senate floor, some Democratic Members of the Senate actually said:
We should have a 60-vote requirement for Federal judges to be confirmed
by the Senate. That is worthy of discussion. It is worthy for us to
have that debate. But the debate should be in the context of a
constitutional amendment--going through the process our Founding
Fathers said would be required for a constitutional amendment. Let's
put it to a test. Let's determine if that is the right thing and do it
the right way. But that is not what is happening here today.
In fact, it is significant that we look at the historical comparison
of the first term of a Presidency and the confirmation of appeals court
nominees. President George W. Bush has the lowest percentage of
confirmations of any President in the history of the United States.
President Clinton had 77 percent of his appellate court nominees
confirmed. President George H.W. Bush had 79 percent. President Reagan
had 87 percent. President Carter had 93 percent. President Ford had 73
percent. President Nixon had 93 percent. President Johnson had 95
percent. President Kennedy had 81 percent. President Eisenhower had 88
percent. President Truman had 91 percent. But President Bush today has
69 percent, the lowest of any President in the history of our country.
Almost 30 percent of his circuit court nominees were filibustered and
let die by the Senate.
The balance of power is delicate--founded in a Constitution that is
not easily changed. It is important that those who are sworn to uphold
the Constitution, not tread on it without going through the proper
procedures of a constitutional amendment. Thwarting the majority by
requiring 60 votes on qualified judicial nominees, as the minority did
last session, undermines the delicate balance of power.
I hope the Senate will come to its senses. There has been a lot
written lately about the Senate, about the process in the Senate being
broken. Last week, I talked to a well-known

[[Page S5732]]

journalist to discuss his views of what is happening in Washington. I
asked him a number of questions, but the most difficult was the one
that he posed to me: What in the world is the Senate thinking about in
the confirmation process? Don't you realize that this is impeding the
President's ability to recruit quality people for Government service?

Mr. President, my colleagues on the Democratic side of the aisle are
correct. We are heading for a crisis, but it is not a crisis over
minority rights. No one on our side of the aisle has even suggested
that minority rights should be overrun. The filibuster will remain
intact. What we are trying to do is get the constitutional process for
confirmation of Federal judges back to what has been the tradition in
the Senate and what the Constitution envisioned, and that is a 51-vote
majority.
Never, until the last session of Congress, was the majority will
thwarted in Federal judge nominees and circuit court most particularly.
So the crisis is not over the Senate process; the crisis is how group
influence is turning the Senate into a permanent political
battleground. It is unseemly, it is wrong, and it is going to harm the
quality of our judiciary because we are going to start seeing nominees
who are not the best and the brightest, who don't have clear opinions,
and who are not well-published and renown constitutional experts.
I think it was pretty well brought out in an article in the
Washington Post yesterday, titled ``The Wreck of the U.S. Senate.'' It
quoted John Breaux, our former Democratic colleague. He said:

Today, unfortunately, outside groups, public relations
firms, and the political consultants who are dedicated to one
thing, a perpetual campaign to make one party a winner and
the other a loser, has snatched the political process.

Some years ago, we started on a road downward toward a low common
denominator, and I think we are continuing that descent. In the
article, I think it mentioned that the point of embarkation for this
descent was the nomination process of John Tower, a former Senator who
had an incredible record on national defense, who was perhaps the most
knowledgeable Senator in the Senate on that subject, who was turned
down for his Secretary of Defense with innuendo, things that were
totally untrue being said about him. Many of my colleagues who are in
this body today say it was unconscionable what was done to Senator John
Tower.
Mr. President, I am sorry to say I think it has happened again and
again. I look at Priscilla Owen, who is one of the best and brightest,
who is a judge with judicial temperament, who has shown her brilliance
from the days she graduated from Baylor Law School cum laude, top of
her class, Baylor Law Review, to making the highest score on the Texas
bar exam the year she took it. The distortions of this fine judge's
record have been incredible. She has been meticulous in following the
law, in not trying to make law but interpret the law; and I am really
concerned that if someone like Priscilla Owen, who is a judge who has
the backing of 15 former State bar Presidents--probably most of the
ones who are still alive--Republicans and Democrats, the support of 3
Democrats with whom she served on the Supreme Court, as well as every
Republican, the support of the Attorney General of the United States,
with whom she served, who actually sought her out for appointment
because he was so impressed with her judicial standards. If someone
like that has to take ``brick baths'' for 4 years, how are we going to
recruit the very top legal minds in our country, people who have shown
themselves time and time again to be excellent at what they do? How are
we going to recruit them to submit themselves to this kind of process?
The National Abortion Rights Action League was reported by columnist
Bob Novak to have hired an opposition research team not just for
Priscilla Owen--and they have certainly been active against her--but to
look at the records of 30 sitting judges, including Judge Edith Jones
from Houston, and why would they be doing that? Why would the National
Abortion Rights Action League start looking at sitting judges in our
country today to try to find some way to harm them or distort their
records? Why would they do that? Interestingly, it looks as if the
people chosen to be investigated are people who might be potential
appointees to the United States Supreme Court.
Mr. President, we are in a downward spiral in this country. Prior to
holding federally-elected office, I remember watching the Senate debate
over Clarence Thomas. I thought the Senate did an excellent job of
debating Clarence Thomas, bringing out the major points. But the
hearings on Justice Thomas' nomination were brutal. They were brutal.
They were personal. It was something which I am sure was very difficult
for him to overcome. I don't think we have to be personal to make
points. I don't think we have to distort records. I don't think we
should employ innuendo in looking at nominees for our Federal bench.
I think the Senate needs to take a very hard look at the processes we
are using, at the outside influences and the motivations of these
groups. When I turn on my television in Washington, I see ads for and
against Priscilla Owen. Priscilla has been silent for four years,
unwilling to lash out at her opponents and too respectful of Senate
procedure to defend herself against empty criticisms. But I am glad she
has been defended. I visited with her last week when she was here, and
there is a personal toll on the people in this process. She will be a
fine judge, but was she prepared for the four years of ``brick baths''
to which she could not respond? You know, she had several very nice
opportunities to do something else in these four years, but she is such
a fine person, with such a strong backbone, that she did not want to
withdraw her name from consideration so it could be used in the
Presidential election. She didn't want to leave President Bush
vulnerable to an attack that her nomination was a mistake and that
there was something hidden in her record. She is proud of her record,
and she knows President Bush is proud of his appointment of her. She
has nothing--nothing--upon which she can base any kind of decision to
leave this nomination process. She is sticking with President Bush
because he made a good decision, and he is sticking with her.
But these judges are not people who have put themselves in the arena
in the same way that partisan politicians do. I don't think she was
prepared to be attacked on a weekly or monthly basis and have her
record distorted when she submitted herself for this important
nomination. She was rated unanimously by the American Bar Association
committee that gives its recommendations on judges to the Judiciary
Committee as ``well qualified,'' the highest rating that can be given
by the ABA. It was unanimous. Yet, this fine person has been raked over
the coals, has had misrepresentations and distortions made about her. I
recently spoke about Priscilla Owen, the person--I shared what kind of
person she is. I talked about her service as a Sunday school teacher
and that she lost her father when she was 10 months old. I talked about
what a lovely person she is.
One of my colleagues came to the floor and said, yes, she is a lovely
person, but that is not enough; we should not be talking about whether
she is lovely or not. Well, I wanted people to see that in addition to
a stellar record, an even-handed disposition, a great legal mind, and
impeccable integrity, Priscilla Owen is also a lovely person. An honest
person who has even gone against the prevailing view of the Republican
Party in Texas by suggesting we not elect Supreme Court justices in
Texas. She has actually written on that subject, saying we should not
taint the judiciary with partisan politics. So, I want the record to
reflect that she is a lovely person--but also a person of principle, of
strength, and of profound wisdom. She is as excellent a nominee, with
as excellent a record as we have ever seen come before the United
States Senate.
Mr. President, I think the Senate, as a body, should think about how
we treat the people who come to submit themselves for public service.
Many of them do so because they believe this is their calling and they
do so with every good intention, including taking large salary cuts.
Priscilla Owen chose to take a huge salary cut to run for the Supreme
Court of Texas instead of continuing as a partner in a major law firm
in Texas.

[[Page S5733]]

She has shown in every way that she is qualified for this position,
and I hope we will give her what she deserves after four years of
waiting, and that is an up-or-down vote. When we do, she will be
confirmed and she will be one of the finest judges sitting on the
Federal circuit court of appeals today.
I yield the floor.
The PRESIDING OFFICER. The Senator's time has expired. The next hour
will be controlled by the minority.
The senior Senator from West Virginia.
Mr. BYRD. Mr. President, how much time do I have?
The PRESIDING OFFICER. The minority controls the next 60 minutes.
Mr. BYRD. Mr. President, I rise today to speak sadly. I have been a
Member of Congress--now I am in my 53rd year. Two other members have
served longer than I. Only 11,752 men and women have served in the
Congress of the United States since the Republic began in 1789. That is
217 years. Those two Members were the late Senator Carl Hayden of
Arizona, who was chairman of the Appropriations Committee when I came
to this body, and Representative Jamie Whitten of Mississippi, who was
a member of the House Appropriations Committee, a man with whom I
served. So only two others have served longer in the Congress, meaning
the House of Representatives or the Senate or both--only two.
I say to Senators and you, Mr. President, can you imagine my feelings
as I stand now to speak in this Senate, which tomorrow--24 to 36 to 48
hours from now--may be changed from what it was when it began, when it
first met in April of 1789 and from what it was when I came here to the
Senate now going on 47 years ago.
I can see Everett Dirksen as he stood at that desk. He was the then-
minority leader. Lyndon B. Johnson of Texas was the majority leader.
Yes, I can see Norris Cotton. I can see George Aiken. I can see Jack
Javits. I can see Margaret Chase Smith of Maine, the only woman in the
Senate at that time, as she sat on the front row of the Republican side
of the aisle. I can see others, yes.
How would they have voted? How would they have voted on this question
which will confront us tomorrow? How would they have voted? I have no
doubt as to how they would have voted. I have no doubt as to how they
would vote were they here tomorrow. And so my heart is sad that we
would even come to a moment such as this. Sad, sad, sad, sad it is.
I rise today to make a request of my fellow Senators. In so doing, I
reach out to all Senators on both sides of the aisle, respectful of the
institution of the Senate and of the opinions of all Senators,
respectful of the institution of the Presidency as well. I ask each
Senator to pause for a moment and reflect seriously on the role of the
Senate as it has existed now for 217 years, and on the role that it
will play in the future if the so-called nuclear option or the so-
called constitutional option--one in the same--is invoked.
I implore Senators to step back--step back, step back, step back--
from the precipice. Step back away from the cameras and the
commentators and contemplate the circumstances in which we find
ourselves. Things are not right, and the American people know that
things are not right. The political discourse in our country has become
so distorted, so unpleasant, so strident, so unbelievable, it is no
wonder, then, that people are turning to a place of serenity, a place
that they trust to seek the truth. They are turning to their religious
faith in a time of ever-quickening contradictory messages transmitted
by e-mail, by BlackBerrys, by Palm Pilots, answering machines, Tivo,
voice mail, satellite TV, cell phones, Fox News, and so many other
media outlets. America is suffering sensory overload.
We hear a lot of talk, but we do not know what to make of it. So some
are turning to a place of quiet, a secure place, a place where they can
find peace. They are turning to their faith, their religious faith.
Our Nation seems to be at a crossroads. People are seeking answers to
legitimate questions about the future of our country, the future of our
judiciary, and what role religions play in public lives. But it is
difficult to find the quiet time to contemplate or to build a consensus
in response to these profound questions when the venues for serious
discussion of these issues often amount to little more than
``shoutfests,'' ``hardball,'' and ``Crossfire.''
Mr. President, what is next, ``Slash and Burn'' ``Your faith or
mine?'' Perhaps because so few traditional channels of communication
even now in the Senate provide a venue for thoughtful discussion,
Americans are seeking answers to political and legal questions not in
Congress or in the courts but through a higher power, through their
religious faith.
In fact, it is the reaction of some to recent court decisions that
has fueled the drive by a sincere minority, perhaps, in this country,
the drive, where it might be a majority in this country, the drive
toward the pillars of faith.
Many American citizens since the early religious people are angered
and alienated by a belief that their views are not respected in the
political process. They are deeply frustrated, and I am in sympathy
with such feelings. I do not agree with many of the decisions that have
come from the courts concerning prayer in school or concerning
prohibitions on the display of religious items in public places.
For example, concerning freedom of religion, the establishment clause
of the first amendment to the Constitution states:

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof. . . .

In my humble opinion, too many have not given equal weight to both of
these clauses but have focused only on the first clause which prohibits
the establishment of religion, with too little attention and at the
expense of the second clause, which protects the right of Americans to
worship as they please. I have always believed that this country was
founded by men and women of strong faith whose intent was never to
suppress religion but to ensure that our Government favors no single
religion over another. This is reflected in Thomas Jefferson's
insistence on religious liberty in the founding of our Republic. In his
Virginia Act for Establishing Religion Freedom, Jefferson wrote that no
man shall be compelled to frequent or support any religious worship or
shall otherwise suffer on account of his religious opinion or belief,
but all men shall be free to profess and by argument to maintain their
opinions in matters of religion, and that shall in no wise diminish,
enlarge, or affect their civil capacities.
In 1962, the U.S. Supreme Court decided a case called Engel v.
Vitale. In that case, a group of politically appointed State officials
drafted a prayer to be recited every day in the New York public
schools, but the Supreme Court struck down the law, holding that the
practice violated the establishment clause of the U.S. Constitution.
While I strongly support voluntary prayer in schools, I can understand
how the Supreme Court refused to require schoolchildren to recite a
prayer that was drafted by government bureaucrats to be force-fed to
every child. That decision rested on a principle that makes a lot of
sense to me--namely, that government itself may not seek either to
discourage or to promote religion.
In response to a question about the role of religion in society,
President Bush recently stated that he believes religion is a personal
matter--and it is a personal matter. It is a personal matter, something
that must be revered but not imposed by the Government. The Federal
Government must not prevent us from praying, but it should not tell us
how to pray, either. That is a personal matter. That is a personal
decision.
On May 5, our National Day of Prayer, the President reminded us that
this special day was an annual event established in 1952 by an act of
Congress. Yet, as said, it is part of a broader tradition that reaches
back to the beginnings of America. So the President reminded us that
from the landing of the Pilgrims at Plymouth Rock to the launch of the
American Revolution, the men and women who founded this Nation in
freedom relied on prayer to protect and to preserve it. And, of course,
the President was right.
Thus, we can all understand the outrage of many good people of faith
who decry the nature of our popular culture with its overt emphasis on
sex, violence, profanity, and materialism.

[[Page S5734]]

They have every reason to seek some sort of remedy, but these
frustrations, great as they are, must not be allowed to destroy crucial
institutional mechanisms in the Senate that have protected minority
rights for over 200 years and, when necessary, must be available to
curtail the power of a power-hungry Executive. Yet this is the outcome
sought by those who propose to attack the filibuster.
At such times as these, the character of the leaders of this country
is sorely tested. Our best leaders search for ways to avert such
crises, not ways to accelerate the plunge toward the brink. Overheated
partisan rhetoric is always available, of course, but the majority of
Americans want a healthy two-party system built on mutual respect, and
they want leaders who know how to work together. In fact, Americans
admire most leaders who seek to do right, even when doing so does not
prove politically advantageous in the short term.
The so-called nuclear option has been around for a long time. It
didn't require a genius to figure that one out. Any cabbagehead who
fell off of a turnip truck could have done that. That is easy to figure
out. It has been around since the cloture rule was adopted in 1917--
yes. I call it the turnip truck option, not the nuclear option, not the
constitutional option. I call it the turnip truck option. It could have
been talked about and suggested by someone who fell off a turnip truck
and got up and dusted himself off and got back on the truck and fell
off the turnip truck again--so turnip truck No. 2. Let it be that.
The nuclear option, as I say, has been around for a long time, but
previous leaders of the Senate and previous Presidents, previous White
Houses, did not seek to foist this turnip truck option upon the Senate
and upon the right of the American people to have freedom of speech on
the part of their representatives in the Senate.
So the nuclear option--yes, it has been around for a long time.
Nobody wanted to resort to such a suicidal weapon. But until today,
wisdom and cooler heads prevailed. In 1841, for example, a Democratic
minority tried to block a bank bill supported by Henry Clay. Clay
threatened to change the Senate's rules to allow the majority--have you
heard that before?--to allow the majority to stop debate, just like our
current majority leader. I say this respectfully. But Thomas Hart
Benton angrily rebuked his colleague, Henry Clay, accusing Clay of
trying to stifle the Senate's right to unlimited debate.

There is no need to tamper with the Senate's right of extended
debate. It has been around for a long time. In 1806, the Senate left it
out of the Senate's rules. In the 1806 version of the Senate's rules,
``the previous question,'' as it now is still being used in the House,
``the previous question'' was left out, left behind. It had only been
used a few times prior to 1806. It was in the 1789 rules of the Senate,
yes. It was in the rules of the Continental Congress, ``the previous
question.'' It is in the rules of the British Parliament, yes. But the
Senate, in 1806, decided, on the basis and upon the advisement of the
Vice President of the United States, Aaron Burr, to discard it.
The text of the actual cloture rule, rule XXII, was not adopted by
the Senate until 1917, the year in which I was born. Today, rule XXII
allows the Senate to end a debate with 60 votes, what we call invoking
cloture. I offered that resolution, to provide for a supermajority of
60 votes to invoke cloture. I believe it was 1975. That was a
resolution which I introduced. So that is what we have today. But from
1919 to 1962, the Senate voted on cloture petitions only 27 times and
invoked cloture only 5 times.
Political invective and efforts to divide America along religious
lines may distract the electorate for the moment, but if, heaven
forbid, there should be a true crisis or calamity in our country, the
American people will stand shoulder to shoulder to support our country.
Why can't we, then, their Senators, their leaders, find the courage to
come together and solve this problem?
Nearly 4 years ago, our Nation was attacked by al-Qaida. In a
Herculean effort, we came together to help the good people of New York
and the patriotic citizens who worked at the Pentagon. Why can't we
find some of that spirit today in the Senate? The time-honored role of
the Senate as protector of minority views is at risk, and those who are
in the majority today may be in the minority tomorrow. Don't forget
that--the worm turns.
Our country has serious problems. Baby boomers are facing retirement
with sorely diminished savings, savings hard to accrue in the face of
exploding prices for gasoline, prescription drugs, housing, fuel,
medicine and shelter--not frivolous purchases, all essential to
survival. Alarmingly, all are becoming less affordable, even for
affluent Americans. But beyond them, what is happening to America's
poor today? Has anybody noticed? Has anybody noticed?
The point is that the current uproar over the filibuster serves only
to underscore the mounting number of real problems--real problems--not
being addressed by this Government of ours. Over 45 million persons in
our country, some 15 percent of our population, cannot afford health
insurance. Is your father included? Is your mother included in that
number? Is your grandfather included? Is your grandmother included in
that number?
Our veterans lack adequate medical care after they have risked life
and limb for all of us. Our education system produces 8th graders
ranked 19 out of 38 countries in the world in mathematics and 12th
graders ranked 19 out of 21 countries in both math and science. Poverty
in these United States is rising, with 34 million people or 12.4
percent of the population living below the poverty level. Think of it.
Our infant mortality rate is the second highest of the major
industrialized countries of the world.
Yet we debate and we seek solutions to none--none--none of these
critical problems. Instead, what do we focus on? We focus all energy--
we sweat, we perspire, we weaken ourselves, we focus all energy on the
frenzy over whether to confirm seven previously considered nominees who
were not confirmed by the Senate in the 108th Congress. Doesn't that
seem kind of odd? Isn't that kind of odd? That seems a bit irrational,
doesn't it, I say. Hear me. Maybe it sounds crazy. If I wanted to go
crazy, I would do it in Washington because nobody would take notice, at
least, so said Irvin S. Cobb. Would anyone apply such thinking to their
own lives? My colleagues, would you insist on resubmitting the same
lottery ticket if you knew it was not a winner?

Unfortunately, many Americans seek as an anecdote to their
frustrations with our current system a confrontation--yes, we have to
have it--a confrontation over these seven nominees and the preposterous
solution of permanently crippling freedom of speech and debate and the
right of a minority to dissent in the Senate.
I ask the Senate, please, I ask the Senate majority leader, please, I
ask the Senator minority leader, please, I ask the White House.
I noticed the other day, I believe last Thursday, in the Washington
Post--I will bring it with me tomorrow--I noticed that the White House
did not want to compromise on this matter. The White House did not want
to compromise. Here we have the executive branch talking to the
legislative branch, two of the three branches, two of the three equal
coordinate branches of Government, talking through the newspapers that
it does not want to compromise.
I ask the Senate to take a moment today to reflect on the potentially
disastrous consequences that could flow from invoking the so-called
nuclear option. Anger will erupt. It may not be the next day or
immediately. One may not see these things come about immediately, but
in time they will come. They will come, they will come, they will come.
Anger will erupt in the Chamber and it will be difficult to address
real problems.
I implore, I beseech, I importune, I beg the Senate to consider how
posterity will review such a significant occurrence, destroying 217
years of checks and balances established so carefully by the Founding
Fathers 219 years ago. Will the light of posterity shine favorably on
the shattering of Senate precedent solely to confirm these seven
nominees, nominees whose names have been before the Senate for
consideration in the previous administration? Won't this maneuver be
viewed for what it really is, a misguided attempt to strong-arm the
Senate for a political purpose driven by

[[Page S5735]]

anger and raw ambition and lust for power? Will that be remembered as a
profile in courage?
What has happened to the quality of leadership in this country that
will allow us even to consider provoking a constitutional crisis of
such magnitude?
I tell you, I am deeply, deeply troubled. I am almost sick about it,
the frustration that I have had over thinking about this, this awful
thing that is about to happen, unless we draw back.
Have we lost our ability to look toward the larger good? Even a child
is known by his doings, whether his work be pure and whether it be
right. That is according to Proverbs, 20th chapter, 11th verse.
I ask the Senate to come together and to work toward a compromise.
Yes, the Washington Post last Thursday said the White House doesn't
want a compromise. But I beg the Senate, I beg those on the other side
of the aisle and those on my side of the aisle to reach a compromise,
work toward a compromise.
What the current majority seeks to employ against the minority today
can be turned against the majority tomorrow.
John Adams once said:

Even mankind will, in time, discover that unbridled
majorities are as tyrannical and cruel as unlimited despots.

Does not history prove as much? I ask the Senate to seek a
compromise. Where is the gentle art of compromise? Edmund Burke once
stated:

All government, indeed every human benefit and enjoyment,
every virtue and every prudent act, is founded on compromise
and barter.

Let the Senate step away from this abyss and see the wisdom of coming
together to preserve the checks and balances. May we stop and draw back
and remember that we are all Americans before we permanently damage
this institution, the Senate of the United States, and in doing so,
permanently damage the Constitution as we permanently damage this
institution, the Senate of the United States, and the country we love.
I yield the floor.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. Mr. President, how much time remains on the minority?
The PRESIDING OFFICER. The minority controls 23 additional minutes.
Mr. BIDEN. Mr. President, my friends and colleagues, I have not been
here as long as Senator Byrd, and no one fully understands the Senate
as well as Senator Byrd, but I have been here for over three decades.
This is the single most significant vote any one of us will cast in my
32 years in the Senate. I suspect the Senator would agree with that.
We should make no mistake. This nuclear option is ultimately an
example of the arrogance of power. It is a fundamental power grab by
the majority party, propelled by its extreme right and designed to
change the reading of the Constitution, particularly as it relates to
individual rights and property rights. It is nothing more or nothing
less. Let me take a few moments to explain that.
Folks who want to see this change want to eliminate one of the
procedural mechanisms designed for the express purpose of guaranteeing
individual rights, and they also have a consequence, and would
undermine the protections of a minority point of view in the heat of
majority excess. We have been through these periods before in American
history but never, to the best of my knowledge, has any party been so
bold as to fundamentally attempt to change the structure of this body.

Why else would the majority party attempt one of the most fundamental
changes in the 216-year history of this Senate on the grounds that they
are being denied ten of 218 Federal judges, three of whom have stepped
down? What shortsightedness, and what a price history will exact on
those who support this radical move.
It is important we state frankly, if for no other reason than the
historical record, why this is being done. The extreme right of the
Republican Party is attempting to hijack the Federal courts by
emasculating the courts' independence and changing one of the unique
foundations of the Senate; that is, the requirement for the protection
of the right of individual Senators to guarantee the independence of
the Federal Judiciary.
This is being done in the name of fairness? Quite frankly, it is the
ultimate act of unfairness to alter the unique responsibility of the
Senate and to do so by breaking the very rules of the Senate.
Mark my words, what is at stake here is not the politics of 2005, but
the Federal Judiciary in the country in the year 2025. This is the
single most significant vote, as I said earlier, that I will have cast
in my 32 years in the Senate. The extreme Republican right has made
Federal appellate Judge Douglas Ginsburg's ``Constitution in Exile''
framework their top priority.
It is their purpose to reshape the Federal courts so as to guarantee
a reading of the Constitution consistent with Judge Ginsburg's radical
views of the fifth amendment's taking clause, the nondelegation
doctrine, the 11th amendment, and the 10th amendment. I suspect some
listening to me and some of the press will think I am exaggerating. I
respectfully suggest they read Judge Ginsburg's ideas about the
``Constitution in Exile.'' Read it and understand what is at work here.
If anyone doubts what I am saying, I suggest you ask yourself the
rhetorical question, Why, for the first time since 1789, is the
Republican-controlled Senate attempting to change the rule of unlimited
debate, eliminate it, as it relates to Federal judges for the circuit
court or the Supreme Court?
If you doubt what I said, please read what Judge Ginsburg has written
and listen to what Michael Greve of the American Enterprise Institute
has said:

I think what is really needed here is a fundamental
intellectual assault on the entire New Deal edifice. We want
to withdraw judicial support for the entire modern welfare
state.

Read: Social Security, workmen's comp. Read: National Labor Relations
Board. Read: FDA. Read: What all the byproduct of that shift in
constitutional philosophy that took place in the 1930s meant.
We are going to hear more about what I characterize as radical view--
maybe it is unfair to say radical--a fundamental view and what, at the
least, must be characterized as a stark departure from current
constitutional jurisprudence. Click on to American Enterprise Institute
Web site www.aei.org. Read what they say. Read what the purpose is. It
is not about seeking a conservative court or placing conservative
Justices on the bench. The courts are already conservative.
Seven of the nine Supreme Court Justices appointed by Republican
Presidents Nixon, Ford, Reagan, and Bush 1--seven of nine. Ten of 13
Federal circuit courts of appeal dominated by Republican appointees,
appointed by Presidents Nixon, Ford, Reagan, Bush 1, and Bush 2; 58
percent of the circuit court judges appointed by Presidents Nixon,
Ford, Reagan, Bush 1, or Bush 2. No, my friends and colleagues, this is
not about building a conservative court. We already have a conservative
court. This is about guaranteeing a Supreme Court made up of men and
women such as those who sat on the Court in 1910 and 1920. Those who
believe, as Justice Janice Rogers Brown of California does, that the
Constitution has been in exile since the New Deal.
My friends and colleagues, the nuclear option is not an isolated
instance. It is part of a broader plan to pack the court with
fundamentalist judges and to cower existing conservative judges to toe
the extreme party line.
You all heard what Tom DeLay said after the Federal courts refused to
bend to the whip of the radical right in the Schiavo case. Mr. DeLay
declared: ``The time will come for men responsible for this to answer
for their behavior.''
Even current conservative Supreme Court Justices are looking over
their shoulder, with one extremist recalling the despicable slogan of
Joseph Stalin--and I am not making this up--in reference to a Reagan
Republican appointee, Justice Kennedy, when he said: ``No man, no
problem''--absent his presence, we have no problem.
Let me remind you, as I said, Justice Kennedy was appointed by
President Reagan.
Have they never heard of the independence of the judiciary--as
fundamental a part of our constitutional

[[Page S5736]]

system of checks and balances as there is today; which is literally the
envy of the entire world, and the fear of the extremist part of the
world? An independent judiciary is their greatest fear.
Why are radicals focusing on the court? Well, first of all, it is
their time to be in absolute political control. It is like, why did
Willy Sutton rob banks? He said: Because that is where the money is.
Why try it now--for the first time in history--to eliminate extended
debate? Well, because they control every lever of the Federal
Government. That is the very reason why we have the filibuster rule. So
when one party, when one interest controls all levers of Government,
one man or one woman can stand on the floor of the Senate and resist,
if need be, the passions of the moment.
But there is a second reason why they are focusing on the courts.
That is because they have been unable to get their agenda passed
through the legislative bodies. Think about it. With all the talk about
how they represent the majority of the American people, none of their
agenda has passed as it relates to the fifth amendment, as it relates
to zoning laws, as it relates to the ability of Federal agencies, such
as the Food and Drug Administration, the Environmental Protection
Agency, to do their jobs.
Read what they write when they write about the nondelegation
doctrine. That simply means, we in the Congress, as they read the
Constitution, cannot delegate to the Environmental Protection Agency
the authority to set limits on how much of a percentage of carcinogens
can be admitted into the air or admitted into the water. They insist
that we, the Senate, have to vote on every one of those rules, that we,
the Senate and the House, with the ability of the President to veto,
would have to vote on any and all drugs that are approved or not
approved.
If you think I am exaggerating, look at these Web sites. These are
not a bunch of wackos. These are a bunch of very bright, very smart,
very well-educated intellectuals who see these Federal restraints as a
restraint upon competition, a restraint upon growth, a restraint upon
the powerful.
The American people see what is going on. They are too smart, and
they are too practical. They might not know the meaning of the
nondelegation doctrine, they might not know the clause of the fifth
amendment relating to property, they may not know the meaning of the
tenth and eleventh amendments as interpreted by Judge Ginsburg and
others, but they know that the strength of our country lies in common
sense and our common pragmatism, which is antithetical to the poisons
of the extremes on either side.
The American people will soon learn that Justice Janice Rogers
Brown--one of the nominees who we are not allowing to be confirmed, one
of the ostensible reasons for this nuclear option being employed--has
decried the Supreme Court's ``socialist revolution of 1937.'' Read
Social Security. Read what they write and listen to what they say. The
very year that a 5-to-4 Court upheld the constitutionality of Social
Security against a strong challenge--1937--Social Security almost
failed by one vote.
It was challenged in the Supreme Court as being confiscatory. People
argued then that a Government has no right to demand that everyone pay
into the system, no right to demand that every employer pay into the
system. Some of you may agree with that. It is a legitimate argument,
but one rejected by the Supreme Court in 1937, that Justice Brown
refers to as the ``socialist revolution of 1937.''
If it had not been for some of the things they had already done,
nobody would believe what I am saying here. These guys mean what they
say. The American people are going to soon learn that one of the
leaders of the constitutional exile school, the group that wants to
reinstate the Constitution as it existed in 1920, said of another
filibustered judge, William Pryor that ``Pryor is the key to this
puzzle. There's nobody like him. I think he's sensational. He gets
almost all of it.''
That is the reason why I oppose him. He gets all of it. And you are
about to get all of it if they prevail. We will not have to debate
about Social Security on this floor.
So the radical right makes its power play now when they control all
political centers of power, however temporary. The radical push through
the nuclear option and then pack the courts with unimpeded judges who,
by current estimations, will serve an average of 25 years. The right is
focused on packing the courts because their agenda is so radical that
they are unwilling to come directly to you, the American people, and
tell you what they intend.
Without the filibuster, President Bush will send over more and more
judges of this nature, with perhaps three or four Supreme Court
nominations. And there will be nothing--nothing--that any moderate
Republican friends and I will be able to do about it.

Judges who will influence the rights of average Americans: The
ability to sue your HMO that denies you your rights; the ability to
keep strip clubs out of your neighborhood--because they make zoning
laws unconstitutional--without you paying to keep the person from
building; the ability to protect the land your kids play on, the water
they drink, the air they breathe, and the privacy of your family in
your own home.
Remember, many of my colleagues say there is no such thing as a right
to privacy in any iteration under the Constitution of the United States
of America. Fortunately, we have had a majority of judges who disagreed
with that over the past 70 years. But hang on, folks. The fight over
judges, at bottom, is not about abortion and not about God, it is about
giving greater power to the already powerful. The fight is about
maintaining our civil rights protections, about workplace safety and
worker protections, about effective oversight of financial markets, and
protecting against insider trading. It is about Social Security. What
is really at stake in this debate is, point blank, the shape of our
constitutional system for the next generation.
The nuclear option is a twofer. It excises, friends, our courts and,
at the same time, emasculates the Senate. Put simply, the nuclear
option would transform the Senate from the so-called cooling saucer our
Founding Fathers talked about to cool the passions of the day to a pure
majoritarian body like a Parliament. We have heard a lot in recent
weeks about the rights of the majority and obstructionism. But the
Senate is not meant to be a place of pure majoritarianism.
Is majority rule what you really want? Do my Republican colleagues
really want majority rule in this Senate? Let me remind you, 44 of us
Democrats represent 161 million people. One hundred sixty-one million
Americans voted for these 44 Democrats. Do you know how many Americans
voted for the 55 of you? One hundred thirty-one million. If this were
about pure majorities, my party represents more people in America than
the Republican Party does. But that is not what it is about. Wyoming,
the home State of the Vice President, the President of this body, gets
one Senator for every 246,000 citizens; California, gets one Senator
for 17 million Americans. More Americans voted for Vice President Gore
than they did Governor Bush. By majoritarian logic, Vice President Gore
won the election.
Republicans control the Senate, and they have decided they are going
to change the rule. At its core, the filibuster is not about stopping a
nominee or a bill, it is about compromise and moderation. That is why
the Founders put unlimited debate in. When you have to--and I have
never conducted a filibuster--but if I did, the purpose would be that
you have to deal with me as one Senator. It does not mean I get my way.
It means you may have to compromise. You may have to see my side of the
argument. That is what it is about, engendering compromise and
moderation.
Ladies and gentlemen, the nuclear option extinguishes the power of
Independents and moderates in this Senate. That is it. They are done.
Moderates are important only if you need to get 60 votes to satisfy
cloture. They are much less important if you need only 50 votes. I
understand the frustration of our Republican colleagues. I have been
here 32 years, most of the time in the majority. Whenever you are in
the majority, it is frustrating to see the other side block a bill or a
nominee you support. I have walked in your shoes, and I get it.
I get it so much that what brought me to the Senate was the fight for
civil

[[Page S5737]]

rights. My State, to its great shame, was segregated by law, was a
slave State. I came here to fight it. But even I understood, with all
the passion I felt as a 29-year-old kid running for the Senate, the
purpose--the purpose--of extended debate. Getting rid of the filibuster
has long-term consequences. If there is one thing I have learned in my
years here, once you change the rules and surrender the Senate's
institutional power, you never get it back. And we are about to break
the rules to change the rules.
I do not want to hear about ``fair play'' from my friends. Under our
rules, you are required to get 2/3 of the votes to change the rules.
Watch what happens when the majority leader stands up and says to the
Vice President--if we go forward with this--he calls the question. One
of us, I expect our leader, on the Democratic side will stand up and
say: Parliamentary inquiry, Mr. President. Is this parliamentarily
appropriate? In every other case since I have been here, for 32 years,
the Presiding Officer leans down to the Parliamentarian and says: What
is the rule, Mr. Parliamentarian? The Parliamentarian turns and tells
them.
Hold your breath, Parliamentarian. He is not going to look to you
because he knows what you would say. He would say: This is not
parliamentarily appropriate. You cannot change the Senate rules by a
pure majority vote.
So if any of you think I am exaggerating, watch on television, watch
when this happens, and watch the Vice President ignore--he is not
required to look to an unelected officer, but that has been the
practice for 218 years. He will not look down and say: What is the
ruling? He will make the ruling, which is a lie, a lie about the rule.
Isn't what is really going on here that the majority does not want to
hear what others have to say, even if it is the truth? Senator
Moynihan, my good friend who I served with for years, said: You are
entitled to your own opinion but not your own facts.
The nuclear option abandons America's sense of fair play. It is the
one thing this country stands for: Not tilting the playing field on the
side of those who control and own the field.
I say to my friends on the Republican side: You may own the field
right now, but you won't own it forever. I pray God when the Democrats
take back control, we don't make the kind of naked power grab you are
doing. But I am afraid you will teach my new colleagues the wrong
lessons.
We are the only Senate in the Senate as temporary custodians of the
Senate. The Senate will go on. Mark my words, history will judge this
Republican majority harshly, if it makes this catastrophic move.
Mr. President, I ask unanimous consent that the full text of my
statement as written be printed in the Record.
There being no objection, the statement was ordered to be printed in
the Record, as follows:

The Fight for Our Future: The Courts, the United States Senate, and the
American People

introduction

Make no mistake, my friends and colleagues, the ``nuclear
option'' is the ultimate example of the arrogance of power.
It is a fundamental power grab by the Republican Party
propelled by its extreme right and designed to change the
reading of the Constitution, particularly as it relates to
individual rights and property rights
Nothing more, nothing less.
It is the elimination of one of the procedural mechanisms
designed for the express purpose of guaranteeing individual
rights and the protections of a minority point of view in the
heat of majority excess.
Why else would the majority party attempt such a
fundamental change in the 216 year history of this Senate on
the grounds that they are being denied seven of 218 federal
judges?
What shortsightedness and what a price history will exact
on those who support this radical move.
Mr. President, we should state frankly, if for no other
reason than an historical record, why this is being done. The
extreme right of the Republican Party is attempting to hijack
the federal courts by emasculating the courts' independence
and changing one of the unique foundations of the United
States Senate--the requirement for the protection of the
right of individual Senators to guarantee the independence of
the federal judiciary.
This is being done in the name of fairness. But it is the
ultimate act of unfairness to alter the unique responsibility
of the United States Senate and to do so by breaking the very
rules of the United States Senate.
Mark my words. What is at stake here is not the politics of
2005, but the federal judiciary and the United States Senate
of 2025.
This is the single most significant vote that will be cast
in my 32-year tenure in the United States Senate.

the future of our courts

The extreme Republican Right has made Judge Douglas
Ginsberg's ``Constitution in Exile'' framework their top
priority. It is their extreme purpose to reshape the federal
courts so as to guarantee a reading of the Constitution
consistent with Judge Ginsberg's radical views of the 5th
Amendment Takings Clause, the non-delegation doctrine, the
11th Amendment, and the 10th Amendment.
If you doubt what I say then ask yourself the following
rhetorical question: Why for the first time since 1789 is the
Republican controlled United States Senate attempting to do
this?
If you doubt what I say, please read what Judge Ginsberg
has written. And listen to what Michael Greve, of the
American Enterprise Institute has said: ``what is really
needed here is a fundamental intellectual assault on the
entire New Deal edifice. We want to withdraw judicial support
for the entire modern welfare state.''
If you want to hear more about what I am characterizing as
the radical view and what must certainly be characterized as
a stark departure from current constitutional law, click on
the American Enterprise Institute's website www.aei.org.
This is not about seeking a conservative court and placing
conservative judges on the bench.
The courts are already conservative: 7 of 9 current Supreme
Court Justices, appointed by Republican Presidents Nixon,
Ford, Reagan, Bush I; 10 of 13 federal circuit courts
dominated by Republican appointees, appointed by Presidents
Nixon, Ford, Reagan, Bush I, and Bush II; and 58 percent of
all circuit court judges, appointed by Presidents Nixon,
Ford, Reagan, Bush I and Bush II.
No, friends and colleagues, this is not about building
conservative courts. We already have them. This is about a
Supreme Court made up of men and women like those who sat on
the Court in 1910, 1920.
My friends and colleagues, the nuclear option is not an
isolated instance. It's part of a broader plan to pack the
courts with fundamentalist judges and to cower existing
conservative judges to toe the party line.
You all heard what Tom DeLay said after the federal courts
refused to bend to the whip of the Radical Right in the
Schiavo Case. DeLay declared:
The time will come for the men responsible for this to
answer for their behavior.
Even current conservative Supreme Court Justices are
looking over their shoulders. One extremist has referred to
Justice Kennedy by recalling a despicable slogan attributed
to Joseph Stalin. When Stalin encountered a problem with an
individual, he would simply say ``no man, no problem.'' The
extreme right is adapting Stalin's adage in their efforts to
remove sitting judges: ``no judge, no problem.''
And let me remind you, Kennedy was appointed by President
Reagan.
Have these people never heard of the independence of the
judiciary--as fundamental a part our constitutional system of
checks and balances as there is; the envy of the world; the
system that emerging democracies are clamoring to copy?
You must ask yourself why the fundamentalist Republican
right is focusing so clearly on the federal courts? I'll tell
you why.
Because they are unable to seek their agenda through the
political branches of our government.
That's why they are trying to move their agenda by
fundamentally changing the courts.
I believe that the American people already intuitively know
what's going on; they're too smart; they're too practical.
The strength of our country lies in our common sense and our
pragmatism, which is antithetical to the ideological purity
of the fundamentalist Republican Right.
The American people will soon learn that Janice Rogers
Brown has decried the Supreme Court's ``socialist revolution
of 1937,'' the very year that a 5-4 Court upheld the
constitutionality of Social Security against strong
challenges.
The American people will soon learn that one of the leaders
of the ``Constitution in Exile'' school--the group that wants
to reinstate the Constitution as it existed in the 1920s--
said that another of the filibustered judges--William Pryor--
was ``key to this puzzle; there's nobody like him. I think
he's sensational. He gets almost all of it.''
These are judges who will serve on the federal circuit
courts of appeal for a quarter of a century. And no general
election of Congress and the President will be able to change
it.
And you may ask yourself why the focus on the circuit
courts? I'll tell you why.
Today, it is more than four times as difficult to get an
opportunity to argue your appeal before the Supreme Court as
it was 20 years ago. Today, the Supreme Court reviews less
than two tenths of one percent of the caseload of the appeals
courts.
Without the filibuster, President Bush will be able to put
on the bench judges who would reinstitute the ``Constitution
in Exile.'' I suggest that it is these judges who are the
ones who should be exiled.
And if the actuarial tables comply there is the possibility
that President Bush will possibly nominate as many as 3-4
Supreme Court Justices--and there will be little that

[[Page S5738]]

my moderate Republican friends and I will be able to do about
it.
The consequences for average Americans will be significant.
They will include the ability to sue when HMOs deny you your
rights; the ability to keep strip clubs out of your family's
neighborhood; the ability to protect from environmental
degradation the land your kids play on, the purity of the
water they drink, the cleanliness of the air they breathe;
and the ability to preserve the privacy that you and your
family expect the Constitution to provide.
The fight over judges, at bottom, is not about abortion and
about God; it is about giving greater power to the already
powerful.

The Future of the Senate

The exercise of the nuclear option also has another
fundamental impact on the government--it will transform the
Congress from a bifurcated legislature where political
parties were never intended to rule supreme into a quasi-
parliamentary system where a single party will dominate.
There would have been no Constitution were it not for the
Connecticut Compromise--that is the compromise that
guaranteed states two U.S. Senators regardless of the state's
population.
The Connecticut Compromise was also done expressly to
guarantee the right of the small states, as well as less
powerful interests, as well as individuals, to be protected
from temporary passion and excesses of the moment--whether
borne out of a demagogic appeal or the overwhelming supremacy
of a political party.
The guarantee of unlimited debate in the United States
Senate assured not that the minority would be able to get its
way but that the minority would be able to generate a
compromise that would keep them from being emasculated. And
this included ensuring the independence of the federal
judiciary.
We have heard a lot in recent weeks about the rights of the
majority. But the Senate was not meant to be a place of pure
majoritarianism. Is majority rule what this is about? Do my
Republican colleagues really want majority rule?
We 44 Democrats represent 161 million people in the Senate;
the 55 Republicans only 131 million. By majoritarian logic,
the Democrats would be in the majority in the Senate.
Wyoming, the home state of the President of this Body, gets
1 Senator for every 246,891 citizens. By that measure,
California is entitled to 137 U.S. Senators.
More Americans voted for Vice President Gore in 2000 than
for George W. Bush. By majoritarian logic, Gore won that
election.
But Republicans control the Senate, California only gets 2
Senators, and Vice President Gore lost the 2000 election for
the same reason--under our constitutional system, a majority
doesn't always get what it wants; that's the system the
Founders created.
At its core, the filibuster is not about stopping a nominee
or a bill, it's about compromise and moderation.
The nuclear option extinguishes the power of independents
and moderates in the Senate. That's it, they're done.
Moderates are important if you need to get to 60 votes to
satisfy cloture; they are much less so if you only need 50
votes.
Let's set the historical record straight. Never has the
Senate provided for a certainty that 51 votes could put
someone on the bench or pass legislation.
The facts are these. There was no ability to limit debate
until 1917. And then the explicit decision was made to limit
debate on legislation if 2/3 of the Senators present and
accounted for supported cloture. Even then, the Senate
rejected a similar limitation on executive nominations,
including nominees to the federal bench. It wasn't until 1949
that the new cloture rule also applied to nominations.
The question at present is, will the Senate actually aid
and abet in the erosion of its Article I power by conceding
to another branch greater influence over who ends up on our
courts? As Senator Stennis once said to me in the face of a
particularly audacious claim by President Nixon: ``Are we the
President's men or the Senate's?''
My friends on the other side of the aisle like to focus on
the text of the Constitution. Tell me: Where does it state
that it is necessary for each bill or each nominee that comes
before us to receive a simple majority vote? Where does it
state that the President should always get his first choice
to fill a vacancy?

Fundamental Fairness--Playing by the Rules

The nuclear option makes a mockery of the Senate rules.
You'll notice that when the nuclear option is triggered, the
Presiding Officer will refuse to seek the advice of the
Parliamentarian, his own expert. He won't ask because he
doesn't want to hear the answer.
Isn't that what's really going on here? The majority
doesn't want to hear what others have to say, even if it's
the truth. Well, as Senator Moynihan used to say, ``You're
entitled to your own opinions, but not your own facts.''
The nuclear option abandons our American sense of fair
play. If there is one thing this country stands for it's fair
play--not tilting the playing field in favor of one side or
the other, not changing the rules unilaterally.
We play by the rules, and win or lose by the rules. That is
a quintessentially American trait, and it is eviscerated by
the ``nuclear option.''

Conclusion

The Senate stands at the precipice of a truly historic
mistake. We are about to act on a matter that will influence
our country's history for the foreseeable future.
We are only the Senate's temporary custodians--our careers
in the Senate will one day end--but the Senate will go on.
Over the course of the next hours and days, we must be
Senators first, and Republicans and Democrats second.
We must think of the rights and liberties of the American
people, not just for today but for the rest of our lives.
Again, ask yourself why is this extreme change being put
forward over 7 out of 218 federal judges?
As I said earlier, history will judge this Republican
Majority harshly if it succeeds in changing the way the
Founders intended the Senate to behave, emasculating it into
a parliament governed by a single party's ideology and unable
to be thrown out be a vote of no-confidence.
Mr. BIDEN. I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, over the last several days we have debated
some of the most important issues that most of the Members will ever
face. Should the same powerful tool, such as the filibuster, that we
have long used in the legislative process be part of the confirmation
process to defeat a President's judicial nominees? That is a big
question. Can the Senate's role of advice and consent regarding
judicial nominations be exercised equally by either the majority or
minority of Senators? The answer to each of these questions is no.
America's Founders designed the Senate without the ability to
filibuster anything at all. The filibuster became available later but
was restricted to the legislative process which we control. It was not
part of the appointment process which the President controls. Allowing
a minority of Senators to capture this body's role of advice and
consent will allow that minority to hijack the President's power to
appoint judges. I admit that we have control of the Executive Calendar,
but the President has rights in that calendar, too. We cannot hijack
the President's power to appoint judges. Doing so distorts the balance
the Constitution establishes and mandates. That situation should not
stand.
I urge my friends, Senators from the minority, to abandon their
destructive course and return to the tradition we followed for more
than two centuries. The Senate, acting through a majority, checks the
President's power to appoint by voting on whether to consent to those
appointments. You will notice it is the Senate--not the minority--who
does that check. Any Senator may vote against any nominee for any
reason, but we must vote. We followed that tradition for more than 200
years, and we should recommit ourselves to it now.
If the minority insists on distorting the Constitution's balance and
rejecting Senate tradition, then I believe the Senate must firmly
reestablish that tradition by exercising our constitutional authority
to determine our own rules and procedures. If the minority will not
exercise the same self-restraint this body exercised for the last two
centuries, then I believe the Senate must vote to return formally to
our tradition. It is surely not a sign of our political culture that we
have to enforce by majority vote what we once offered by principle and
self-restraint. But the Constitution's balance is too important to
allow a minority to erode our principles and past practices.
The problem and the solution each have their own frame of reference
drawn from the Constitution. The frame of reference for evaluating
these judicial filibusters is the separation of powers into three
branches. The frame of reference for the solution to this judicial
filibuster crisis is the Constitution's grant of authority for us, the
Senate, to determine how we want to conduct Senate business.
Let me first address the judicial filibuster crisis through the lens,
the frame of reference, of the separation of powers. In Federalist No.
47, James Madison wrote of the separation of powers that ``no political
truth is certainly of greater intrinsic value or

[[Page S5739]]

stamped with the authority of more enlightened patrons of liberty.''
Two points are particularly important here. First, the separation of
powers is exclusive. The powers assigned to one branch are denied to
the others.
Like our Federal charter, each State constitution also divides the
legislative, executive, and judicial branches into separate branches.
More than two-thirds of them, however, go even further and make the
exclusive nature of separation explicit. They affirmatively prohibit
each branch from exercising the powers assigned to the others. The
separation of powers is that important.

While each branch may not exercise the powers given to the others, we
can check the powers given to the others. A check on another branch's
power is a safeguard. It is not a separate coequal power. It is neither
separate from nor as significant as the power being checked. Nomination
and appointment of judges is described in article II which outlines the
President's power. Not a word is found in article I which describes our
powers.
The second point about the separation of powers is equally important.
Just as the powers belong to the branches, checks and balances are
exercised by the branches. The President, to whom the Constitution
gives executive power, can check Congress's legislative power through
the veto that he has a right to exercise. He cannot delegate it to
someone else in the executive branch. Similarly, the Constitution
assigns the role of advice and consent to the Senate, not just to the
minority, to the Senate.
The question raised by the current filibuster campaign, however, is
this: What is the Senate, the minority or the majority? I do not want
to get too technical, but these are basic civics principles that apply
to legislative bodies everywhere that you can find in most high school
textbooks. We must have what we call a quorum, a minimum number of
Senators present to be open for business. Senate rule VI defines a
quorum as a ``majority of Senators duly chosen and sworn.'' Today that
means 51 Senators. Unless the Constitution that created this body says
otherwise, when a majority of those Senators acts, it is the Senate
itself that acts.
This is no different from the Supreme Court. When a majority of its
members votes the same way, we say it is the Court that has decided the
case.
Only the Senate itself can exercise its constitutional role of advice
and consent on the President's judicial nominations. That is, only a
majority of Senators can exercise that role. I make this point so
strongly because the minority is claiming the right to exercise this
body's role of advice and consent strictly by the minority.
Last Thursday, the Senator from Massachusetts, Mr. Kerry, on the
Senate floor, charged that ``the Republican leadership is determined to
deny the minority the right to hold the executive responsible for
lifetime appointments to the judiciary.''
He was not the first to make this argument. We have heard for a long
time now from many Senators who support these filibusters that the
Senate rejects a nomination not when the majority has voted it down but
when the minority has prevented a final confirmation vote, even though
there is a bipartisan majority for the nominee. I should say in this
case nominees.
The minority does not check the President's power. The Senate itself
does. And that means a majority of Senators checks the President's
power. When the minority has prevented a confirmation vote, the
minority has prevented the Senate from exercising its role of advice
and consent altogether. I do not speak primarily of the majority or
minority party. I speak of the numerical majority that is required in
order for the Senate to act at all. The vast majority of judicial
nominations are confirmed either by unanimous consent or by
overwhelming margins on rollcall votes. The number of truly
controversial, hotly contested judicial nominations is small. Still at
least 18 Members of this body have voted against a judicial nomination
of their own party.
If the case against some of these nominees is so strong--and we have
heard a great hue and cry about how some of them are out of some sort
of mainstream--then Senators may do so again. But the prospect of being
on the losing side of a small number of confirmation votes does not
justify turning these fundamental principles of separation of powers
inside out. It does not justify the minority hijacking the Senate's
role of advice and consent so it can hijack the President's power to
appoint judges.
Yet that is indeed what these filibusters are attempting to do.
Defeating a vote to end debate can serve a laudable, temporary purpose
of ensuring full and vigorous debate. That full and vigorous debate can
help the Senate make a more informed confirmation decision. But these
recent unprecedented, leader-led filibusters defeat all votes to end
debate for the purpose of preventing confirmation of these nominations
altogether. Doing so turns the separation of powers on its head.
Mr. President, the frame of reference, the organizing principle for
evaluating these judicial filibusters, is the separation of powers. I
think the case is compelling that the judicial filibuster campaign
underway today, by which the minority tries to commandeer the Senate's
role of advice and consent so they can wrongly attempt to trump the
President's constitutional authority to appoint judges, violates that
principle and cannot be allowed to continue.
If the minority will not relent and return to the tradition by which
the Senate, through a majority, exercises its role of advice and
consent, then I believe the majority must act to restore that
tradition. The frame of reference for solving this judicial filibuster
crisis is the Senate's constitutional authority to determine our own
rules and procedures.
Just as the Constitution establishes a system of self-government for
the Nation, it establishes a system of self-government for the Senate.
Subject always to the Constitution itself, we choose for ourselves how
we want to do business. It may not always be nice, neat, and orderly,
but it is up to us to decide. One of the cliches that the judicial
filibuster proponents dreamed up is the cry that any solution to this
crisis would require ``breaking the rules to change the rules.''
Presumably, that catchy little phrase refers to the fact that invoking
cloture on an amendment to the text of our written rules requires not
just 60 votes but two-thirds of the Senators present and voting. This
argument is, I suppose, intended to make people think our written rules
are the only guide for how the Senate operates.
Most of our citizens may not know one way or the other. Nobody can
fault them for not being schooled in the peculiar art of Senate
procedure. But my fellow Senators certainly know the answer.
Every Senator in this body knows that the Standing Rules of the
Senate are only one of several things that guide how we do business.
The solution to the judicial filibuster crisis which the majority
leader, Dr. Frist, will pursue will neither break the rules nor change
the rules. The Standing Rules of the Senate will read the same next
week as they did last week. Instead, the solution we will utilize is a
parliamentary ruling by the Presiding Officer, something that is at
least as important as our written rules for the way we conduct our day-
to-day business.
When a Senator asks the question of procedure or raises a point of
order, the Presiding Officer's answer to that question, or his ruling
on that point of order, becomes a precedent for the Senate. These
parliamentary precedents guide what we do as much as our written rules.
Let me stress something very important at this point. The Constitution
gives the role of advice and consent to a majority, not to a minority.
Similarly, the Constitution gives the authority to decide how the
Senate does business to the Senate, not to the Presiding Officer.
There are no monarchs or dictators in America, or in the United
States Senate. Should the Presiding Officer rule that the Senate may
proceed to vote on judicial nominations after sufficient debate, that
will become a parliamentary precedent guiding this body only after a
majority of Senators votes to make it so.
As I have discussed before in the Senate, this mechanism might better
be called the Byrd option because, when he was majority leader, the
distinguished Senator from West Virginia, Mr. Byrd, repeatedly used it
to change how the Senate does business.
The Senator from West Virginia knows that I have the greatest respect
for him. I heard him on the Senate floor again this afternoon. But as I
will

[[Page S5740]]

describe in the next few minutes, I believe my friend from West
Virginia doth protest too much.
In 1977, for example, then-Majority Leader Byrd used this mechanism
to eliminate what was called the postcloture filibuster. If the Senate
voted to invoke cloture on a bill, rule XXII imposed a 1-hour debate
limit on each Senator. Senators could get around that limit, however,
by introducing and debating amendments. Rule XXII allowed this
practice, but the majority leader opposed it--Byrd. He made a point of
order against it, the Presiding Officer ruled in his favor, and a
simple majority of Senators voted to back up the ruling.
Nearly two decades later, the Senator from West Virginia reflected on
how he used the Byrd option in 1977. Let me refer to the chart. He
described it this way:
I have seen filibusters. I have helped to break them. There
are few Senators in this body who were here in 1977 when I
broke the filibuster on the natural gas bill.

I was here, by the way. To continue:

I asked Mr. Mondale, the Vice President, to go please sit
in the chair; I wanted to make some points of order and
create some new precedents that would break these filibusters
And the filibuster was broken--back, neck, legs, and arms. .
. . So I know something about filibusters. I helped to set a
great many of the precedents that are in the books here.

So don't say we are trying to change the rules. We are following the
Byrd rule that was set four times as he was majority leader. He changed
Senate procedures without changing Senate rules.
The Senator from West Virginia did it again in 1979. Rule XVI
explicitly states that the Senate itself must decide whether amendments
to appropriations bills are germane. Then-Majority Leader Byrd made a
point of order that the Presiding Officer may decide that question
instead. The Presiding Officer ruled in his favor and a majority of
Senators voted to affirm the ruling. Once again, a parliamentary ruling
changed Senate procedures without changing Senate rules.
It happened again in 1980. As we have discussed, rule XXII requires
60 votes to invoke cloture, or end debate, on any matter pending before
the Senate. This includes bills or nominations, but it also includes
motions to proceed to those bills or nominations.
Then-Majority Leader Byrd wanted the Senate to confirm an individual
nomination. He made a single motion to go into executive session to
consider a nomination, a step that is not debatable under our rules,
and to proceed to an individual nomination, a step that was debatable.
This time, the point of order came from a Republican Senator, arguing
that this procedural two-step was improper. The Presiding Officer
agreed, ruling against what Majority Leader Byrd was trying to do. He
still prevailed when a majority of Senators voted to overturn the
Presiding Officer's ruling. Doing so eliminated the filibuster on a
motion to proceed to a specific nomination.
Mr. President, this chart shows that seven Democratic Senators
serving in this body today voted to eliminate those nomination-related
filibusters. They proved not only that the Byrd option is legitimate,
but also that it can be used to limit debate. I leave it to these
Senators to explain how they could vote to eliminate nomination-related
filibusters in 1980 but support nomination filibusters today.
This 1980 example is particularly relevant because it utilized a
parliamentary ruling to eliminate a nomination-related filibuster--not
a filibuster of the nomination itself but a filibuster on the motion to
proceed to the nomination. That is, of course, a distinction without a
difference. Either one keeps a nomination from final approval.
Mr. President, still other examples exist, but I will not go into
more detail. Suffice it to say that using parliamentary rulings to
change Senate procedures without changing Senate rules is a well-
established method for the Senate to govern itself. Should the majority
leader, Senator Frist, utilize it, he will be on solid ground. He will
simply be relying upon the precedent that his predecessor, Senator
Byrd, helped put on the books.
If the majority leader does utilize the Byrd option, nobody will be
able to suggest, let alone charge, he is doing so precipitously. He has
been patient, methodical, and even cautious when it comes to this
important matter. Far from the image of trigger-happy warriors being
used in some interest ads out there, the majority leader will utilize
the Byrd option only after trying every conceivable alternative first,
and he has done so.
The minority has had every opportunity to do what it says it wants to
do; namely, debate these nominations. The nominees being filibustered,
for example, include Texas Supreme Court Justice Priscilla Owen,
nominated 1,474 days ago to a judicial position that has been vacant
for more than 8 years--more than 8 years and considered a judicial
emergency.
Justice Owen received a unanimous ``well-qualified'' rating from the
American Bar Association, the highest rating they give, which our
Democratic colleagues once called the gold standard for evaluating
nominees. Let me repeat that. She was rated unanimously as ``well-
qualified'' by the American Bar Association, which is not a
conservative organization, and some are calling her ``out of the
mainstream.'' Give me a break.
Justice Owen was at the top of her law school class. She had the
highest score on the Texas bar exam in 1977. She is supported by 15
past presidents of the Texas Bar Association, both Democrats and
Republicans, and was endorsed for reelection by virtually every major
newspaper in the State of Texas. Out of the mainstream? My gosh,
she defines the mainstream.

I mention Justice Owen as an example, though her opponents use the
same tactics against nominee after nominee. They claim that Justice
Owen is what they call an extremist, or outside of the mainstream, most
often by tallying up winners and losers in her judicial decisions. They
say she rules too often on this side in criminal cases, too often on
that side in civil cases, not enough for this or that political
interest.
Whether Justice Owen is controversial, whether anybody considers her
inside or outside of some kind of mainstream, these may be reasons to
vote against her confirmation, not to refuse to vote at all. By the
way, we have Senators on the Judiciary Committee--Democratic Senators--
who believe that any business ought to be automatically found against,
even if they are right under the law, that anybody who may be an
unfortunate person ought to be found for even though they are wrong in
the law.
That is not the way the law works. They criticize Justice Owen
because, even though she has upheld the weak and the oppressed in many
decisions in the Texas Supreme Court, she has upheld the law sometimes
to the lament of those who think the weak and oppressed should win no
matter what the law says. That is all you can ask of a judge.
The Judiciary Committee has more than once approved her nomination,
and she deserves a vote in the Senate. But rather than give her a fair
vote, those fearing they will lose are blocking it with a filibuster.
On April 8, 2003, Senator Bennett, my colleague from Utah, asked the
then-assistant minority leader, Senator Reid, how much time the
Democrats would require to debate the nomination fully. This is what he
said:

There is not a number of hours in the universe that would
be sufficient [to debate this nominee].

They did not want to debate Justice Owen, they wanted to defeat her.
Debate was not a means to the end of exercising advice and consent. It
was an end in itself to prevent exercising advice and consent. The
majority leader has made offer after offer after offer of more and more
time, hoping that the tradition of full debate with an up-or-down vote
would prevail. That hope is fading, as Democrats have rejected every
single offer.
Finally, last month, the minority leader admitted that ``this has
never been about the length of the debate.'' That is what the minority
leader said. It has never been about the length of the debate. That was
said April 28, 2005.
Unanimous consent is the most common way we structure how we consider
bills and nominations. Because the Democrats rejected that course,
Majority Leader Frist was forced to turn in March 2003 from seeking
unanimous consent to the more formal procedure of motions to invoke
cloture. During the 108th Congress, we took 20 cloture votes on 10
different appeals court

[[Page S5741]]

nominations. More than 50, but fewer than 60, Senators supported every
one of these motions.
In other words, there was bipartisan support for a vote up or down
for each of those nominees. That was enough to confirm but not enough
to end debate under the filibuster rules, misapplied here. The circle
was complete, and the minority's strategy of using the filibuster to
prevent confirmation of majority-supported judicial nominations was in
full swing. Still the majority leader held off, resisting the growing
calls to implement a deliberate solution to this unprecedented, unfair,
and, frankly, outrageous filibuster blockade.
The election returns provided more evidence that the American people
oppose using the filibuster to prevent fair up-or-down votes on
judicial nominations. But hope that the voice of those we serve would
change how we serve them was soon shattered. The minority made it clear
that they would continue their filibuster campaign.
The minority can say this is a narrow effort focused on a few appeals
court nominees. It is not. This is about the entire judicial
confirmation process. It is about rigging that process so the minority
can do what only the majority may legitimately do in our system of
Government: determine how the Senate exercises its role of advice and
consent.
It is the Constitution, not the party line or interest group
pressure, not focus groups or interest group ad campaigns, that should
guide us here. I have been told, for example, and I hope it is not
true, that my friend from Nevada, the minority leader, may appear in a
television ad created and paid for by the Alliance for Justice, one of
the rabid leftwing groups involved in this obstruction campaign. I hope
he will not do that. I think that would be regrettable. They are part
of the problem here. They have virtually been against anybody for the
circuit courts of appeal and many of the former nominees for the
Supreme Court of the United States of America.
The Constitution assigns the nomination and appointment of judges to
the President, not to the Senate. The Senate checks that power by
deciding whether to consent to appointment of the President's nominees.
We exercise this role by voting on confirmation. As such, filibusters
designed to prevent confirmation of majority-supported judicial
nominations undermine the separation of powers.
The Constitution helps us both evaluate the problem and highlight the
solution. The Constitution gives the Senate authority to determine how
we will do our business. That includes not only our written rules but
also parliamentary precedents that change procedures without changing
those rules.
Our Democratic colleagues have had literally dozens of opportunities
to return to our confirmation tradition of up-or-down votes for
judicial nominations reaching the Senate floor. They have chosen the
path of confrontation rather than that of cooperation. They exercised
the true nuclear option by blowing up two centuries of tradition. If
the majority leader utilizes the Byrd option, it will truly be as a
last resort, and it will be a constitutional means of solving an
unconstitutional problem.
I go back in time because I was here when Senator Byrd was the
minority leader. He had a tremendous majority of Democrats on the
floor. When Ronald Reagan was President, he never once used the
filibuster to stop Ronald Reagan's nominees, even though some of those
nominations gave him and other Democrats tremendous angst. He utilized
the power to vote against them. Whether he is right or wrong is almost
irrelevant here. The fact is that he did what 214 years of Senate
tradition required: he allowed those nominees to go ahead and have a
vote. And, after all, that is what we need to do here.
What is wrong with giving these circuit courts of appeal nominees who
have bipartisan support and the support of the American Bar Association
simple up-or-down votes? If you do not agree with them, you have the
right and power to vote against them, and that is the proper way to
handle it. Let's not throw 214 years of tradition down the drain and,
of course, let's not blow up the Senate if we do not get our way.
Mr. President, I notice the distinguished Senator from Montana is
here. I yield the floor.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BURNS. Mr. President, I thank my good friend from Utah. He laid
out in pretty logical form what is at stake.
I have come to the Senate floor today to talk on an issue about which
I seldom speak on this floor. I come to lend my voice maybe to break
this impasse in which we find ourselves.
The Senate has dwelt and droned for endless hours with at times very
inflammatory language of which some of us and folks in America, the
viewing public, have no doubt become very weary.
I just got off an airplane from Montana. When I walked off that
plane, I said it is time to act so we can move on to the business of
addressing the issues that are pressing the times. We have run out of
time and options, and now we must decide, and the hour is now.
I cannot remember a time when I read more history of the Senate than
on this occasion or in this situation. Some have made statements that
this has never happened before in our history. That is wrong because
there have been some contentious times facing each and every Congress
since our beginning, and Draconian actions were taken to deal with the
issues of the dangerous times, times of great peril. We survived them,
and we will survive this one also. That is the greatness of this
country and the Senate because I think at times we underestimate our
own abilities.
It just seems to me that in the Senate, we cannot allow a small
minority to radically alter longstanding traditions just because it
does not like a President or maybe his or her judicial nominees.
During the 108th Congress, the other side used the filibuster to
block up-or-down votes on 10 nominations to the Federal appeals courts.
All of these judicial nominees had bipartisan majority support. The
Senate would have confirmed them had they been permitted a vote. And
never in the history of this country has a judicial nominee with clear
majority support been denied confirmation due to a filibuster.
Further, nearly one-third of President Bush's nominations to the
courts of appeal were denied up-or-down votes. The Democrats used or
threatened to use the filibuster. In that respect, President Bush now
has the lowest appeals court confirmation rate for the first 4 years of
any modern Presidency.
Has each judicial nomination been blocked due to improper
qualifications? Everybody on this floor has talked about that, and the
answer is no. Rather, each nomination has been blocked by a partisan
few who are willing to change Senate tradition and custom of advice and
consent imposing a 60-vote requirement on each nomination.
Every one of the judicial nominees being blocked by filibuster is of
the highest academic and intellectual quality, and each represents a
broad cross-section of American society.
More importantly, all these nominees have demonstrated that they
respect the rule of law. They are committed to interpreting and
applying the law as it relates to the Constitution of the United States
of America. Those folks who want to say this is a constitutional
amendment, go to article II, section 2, and read what it says.
The American people should know that for more than 200 years, the
rule for confirming judges has been fair on an up-or-down vote. In the
heart of every American I know, there is a common sense of fairness.
These good people being nominated by President Bush are, at the very
least, entitled to receive a vote. Whether you disagree or agree with
the particular person being nominated for a judgeship, it is incumbent
on this legislative body to provide full and fair open debate on the
nomination and to then allow proper democratic procedures to take
place.
We have heard words such as ``rubberstamp.'' I do not think you could
say that. Were minority leaders such as Howard Baker and Everett
Dirksen and majority leaders such as Robert C. Byrd and Bob Dole
rubberstamp Senators? I do not think so. I have heard the talk of the
radical right. I wonder if there is a radical left also that grabs the
ears of some folks.
Let there be no doubt about this issue--it is as clear as a Montana

[[Page S5742]]

morning. It is obstructionism that has caused this crisis that looms
over us today.
During the 108th Congress, 10 judicial nominations were either
filibustered or threatened the use of filibuster, and 6 other
nominations along with it. All of these nominations were supported by
Senators of both parties and opposed only by a partisan minority. In
fact, Judge Owen has received four votes in the Senate, and she carried
the vote each time. Yet she is not on the Fifth Circuit Court of
Appeals.
Look at William Myers. The President nominated the former Solicitor
of the Interior Department for the Ninth Circuit. Mr. Myers, a
distinguished attorney, is a nationally recognized expert in the area
of natural resources and land use law. However, despite his
long service as National Park Service volunteer and a lifetime of
respect and enjoyment of the outdoors, the other side held his previous
clients' positions against him and accused him of being hostile to the
environment, therefore blocking his nomination and taking away the
Senate's responsibility to give him a vote.

We have all heard about Priscilla Owen of Texas. She has already been
voted on four times in this body and carried the vote every time.
Janice Rogers Brown, a California Supreme Court justice, was nominated
to the DC Circuit. The first African American to serve on the
California high court, Justice Brown received public support of 76
percent of California voters.
I think I heard my good friend from Delaware say they have 2 Senators
from California, and they each represent over 17 million people. She
represented the whole State and got 76 percent. Yet she was denied a
vote on this floor.
William Pryor, Judge Pryor, has been serving with distinction on the
Eleventh Circuit since the President gave him a recess appointment in
February of 2004. Previously, he served 6 years as an Alabama attorney
general. Although he repeatedly demonstrated his ability to follow the
law, he has been blocked by the Democrats' filibuster because he has
``deeply held'' beliefs, taking away the Senate's responsibility to
vote for him.
One of the country's rising stars in the judicial world, Miguel
Estrada, could be described as the finest, the best, and the brightest
among his peers. This Honduran immigrant who went to Harvard Law School
and clerked for the Supreme Court was debated on this Senate floor for
more hours than any other judicial nomination in Senate history. After
cloture votes repeatedly failed, he asked the President to withdraw his
name from consideration, thereby allowing the other side to prevent the
DC Circuit from having a very talented jurist to interpret and apply
the law, again taking away our responsibility to vote for him.
What are we doing here? Are we dumbing down the judiciary when the
best and the brightest have offered themselves to serve after they were
nominated by this President?
Now we are faced with finding a solution to this so-called crisis.
They have already admitted that the filibuster is not about the
qualification of the judges. They just do not want these judges. They
just do not want judges appointed to the court by President Bush. So if
we allow this to continue, it will be acquiescing to the partisan
minority's unilateral change in the Senate practices for the last 200
years, a 60-vote requirement to confirm judges when only a simple
majority up-or-down vote has been the standard of practice in this
Senate for a long time, and is also alluded to in the Constitution of
the United States.
I would say the Constitution trumps any rule that we may make, that
we put in place here for our rules of procedures and conduct. I think
the Constitution trumps them. Now we find ourselves in this crisis. No
more time. Now is the time to vote.
The Senate has demonstrated in the past that it need not stand by and
allow a minority to redefine the traditions, rules, practices and
procedures of the Senate.
The Constitution gives the Senate the power to set its own rules,
procedures, and practices, and the Supreme Court has affirmed the
continuous power of a majority of members to do so.
The exercise of a Senate majority's constitutional power to define
Senate practices and procedures has come to be known as the
``constitutional option.''
The constitutional option can be exercised in several different ways,
such as by creating precedents to effectuate the amendment of Senate
Standing Rules or by creating precedents that address abuses of Senate
customs by a minority of Senators. Regardless of the variant, the
purpose of the constitutional option is the same--to reform Senate
practices in the face of unforeseen abuses.
An exercise of the constitutional option under the current
circumstances would return the Senate to the historic and
constitutional confirmation standard of a simple majority for all
judicial nominations.
Employing the constitutional option here would have no effect on the
legislative filibuster because virtually every Senator would oppose
such an elimination. Instead, the constitutional option's sole purpose
would be the restoration of longstanding constitutional standards for
advice and consent.
For more than 200 years, the rule for confirming judges has been a
fair, up-or-down vote.
For over 200 years, the Senate has honored both the minority's right
to debate and the full Senate's right to vote on judicial nominees. No
other minority leader in American history has claimed that the right to
debate equals the right to prevent the full Senate from exercising its
constitutional duty to advise and consent.
For over 200 years, Senators did not filibuster judicial nominees.
Was the Senate just a rubber stamp for its first 200 years? Did every
Senate before the 108th Congress fail to carry out its constitutional
duty to advise and consent? The answer is a resounding ``no.''
Further, for 70 percent of the twentieth century, the same party
controlled both the White House and the Senate, yet Minority Leaders on
both sides of the aisle did not filibuster the President's judicial
nominees.
The choice is not between being a rubber stamp or filibustering a
judicial nominee. For over 200 years, Senators agreed that the proper
way to oppose a judicial nominee is to vote ``no.'' They went to the
floor and explained why they opposed the nominee. They tried to
persuade their colleagues. They tried to persuade the American people.
Then, they voted no. They did not filibuster or threaten to shut down
the U.S. Senate.

Until now, every judicial nominee with support from a majority of
Senators was confirmed. The majority-vote standard was used
consistently throughout the 18th, 19th and 20th centuries--for every
administration until President George W. Bush's judicial nominations
were subjected to a 60-vote standard.
These good people, being nominated by President Bush, are at the very
least entitled to receive a vote.
Whether you agree or disagree with the particular person being
nominated for a judgeship, it is incumbent on this great legislative
body to provide full, fair and open debate on the nomination and to
then allow the proper democratic procedures to take place.
The Senate has demonstrated in the past that it need not stand by and
allow a minority to redefine the traditions, rules, practices and
procedures of the Senate.
The Constitution gives the Senate the power to set its own rules,
procedures, and practices, and the Supreme Court has affirmed the
continuous power of a majority of members to do so.
Because of this partisan minority, because of this obstructionism and
because of the partisan minority's continued actions to take away the
Senate's duty and responsibility to vote on the nominations before this
great body, we face a crisis that has only 2 remedies:
Either the partisan minority allow the Senate to fulfill its duty and
responsibility to vote on President Bush's judicial nominations by not
continuously invoking the filibuster.
Or, the Senate must invoke the necessary and requisite constitutional
option to prevent the tyranny of the minority and the radically
altering of longstanding traditions of the United States Senate.
Accordingly, I rise today to strongly urge my colleagues to stop the
obstructionism and to allow President Bush's

[[Page S5743]]

judicial nominations receive a fair, up-or-down vote and, therefore, to
allow this great legislative body to carry out its constitutional duty
of advice and consent--a responsibility that we, as Senators, have been
duly elected to uphold by the American people.
There is a little housekeeping we might do before my good friend, the
Senator from Wisconsin, chooses to speak. I thank the Senator for that.
I ask unanimous consent I be permitted to speak as in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.

____________________