[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

[[Page S5718]]

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,

[[Page S5719]]

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.

                          ____________________