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

[Congressional Record Volume 151, Number 69 (Monday, May 23, 2005)]
[Senate]
[Pages S5807-S5813]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

JUDICIAL NOMINEES

Mr. LEAHY. Mr. President, we have other Senators who wish to speak.

[[Page S5808]]

There has been a lot that has gone on here tonight. I will speak
further on this tomorrow. I thought on this occasion it would not be
inappropriate to quote again from ``Profiles in Courage.''
At the end of that book, President Kennedy included a eulogy.
Interestingly enough, it was a eulogy in 1866 upon the death of Senator
Solomon Foot, a predecessor of mine from Vermont. The eulogy for
Senator Foot of Vermont was delivered by Senator William Pitt Fessenden
of Maine. Senator Fessenden, like Senator Foot, was a Republican--in
fact, all Senators from Vermont, every single Senator from Vermont,
with the exception of one, has been a Republican. But Senator Fessenden
would soon thereafter vote against his party to acquit President Andrew
Johnson of charges of impeachment.
Senator Fessenden was the first of seven courageous Republican
Senators who voted his conscience before his country rather than party.
Despite the pressures and whatever the consequences, he exercised his
judgment as a Senator, consistent with his oath to do impartial
justice.
Let me just read what he said after the death of Senator Foot of
Vermont:

When, Mr. President, a man becomes a member of this body,
he cannot even dream of the ordeal to which he cannot fail to
be exposed;
of how much courage he must possess to resist the
temptations which daily beset him;
of that sensitive shrinking from undeserved censure which
he must learn to control;
of the ever-recurring contest between a natural desire for
public appropriation and a sense of public duty;
of the load of injustice he must be content to bear, even
from those who should be his friends;
the imputations of his motives;
the sneers and sarcasms of inmorance malice;

all the manifold injuries which partisan or private
malignity, disappointed of its objects, may shower upon his
unprotected head.
All this, Mr. President, if he retained his integrity, he
must learn to bear unmoved, and walk steadily onward in the
path of duty, sustained only by the reflection that time may
do him justice, or if not, that after all his individual
hopes and aspirations, and even his name among men, should be
of little account to him when weighed in the balance against
the welfare of a people of whose destiny he is a constituted
guardian and defender.
A number of our Senate colleagues today from both parties stood up to
keep the Senate from making a terrible, an irreparable mistake--
terrible and irreparable because, for the first time in over 200 years,
the Senate would no longer have a check and balance. For the first time
in over 200 years, the Senate would no longer be able to protect the
rights of the minorities.
I applaud them for this. As I said, I will speak more tomorrow. I
thank my distinguished colleague and dear friend from Iowa for letting
me go ahead.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I am very pleased to hear about the
bipartisan agreement that preserves minority rights in the Senate, that
preserves the right of the minority to extended debate, that preserves
the checks and balances that our Founding Fathers prized so highly.
My hope now is that after weeks of distraction, after weeks during
which the majority leader threatened the nuclear option, to sort of
blow up the Senate, now we hopefully can return to the people's
business.
I thank the 14 Senators, I guess 7 Democrats and 7 Republicans, who
worked so hard to bring us back from the brink and get us away from
this nuclear option that really would have destroyed the smooth
functioning of the Senate.
But we have been talking for weeks and weeks about this, about this
nuclear option. People I have talked to have been absolutely astonished
that the Senate has been distracted by these nuclear option threats.
They keep asking me why haven't we been addressing the real concerns
that keep Americans up at night: worrying about their jobs, their
health care and their families' future. Why is the Senate spending its
time on this narrow ideological agenda and ignoring the people's
business?
The majority leader, the Senator from Tennessee, had planned to keep
the Senate up through the night tonight as a prelude to detonating this
nuclear option.
In anticipation of that, early yesterday, on my Senate Web site and
through the news outlets, I informed the people of my State of Iowa I
would be coming to the floor late this evening to share their concerns
and their worries, the things that keep them up at night.
The response has been overwhelming. I said that my Des Moines office
and my Washington offices would be open all night, answering calls and
receiving e-mails. I encouraged Iowans to keep the calls and e-mails
coming all through the night and to let me know what keeps them up at
night. I had planned to spend as much time as possible answering the
phones myself.
Since noon today, we have received over 600 e-mails and 500 phone
calls. I thank all the Iowans who contacted me by e-mail or by phone. I
had planned to read as many as I could tonight, during the long night
that we were supposed to be here. Obviously, that is not going to
happen. But we have been inundated with messages from Iowans telling us
what they want the Senate to stay up all night working on. Believe me,
detonating the nuclear option is not on their list.
To the contrary, my fellow Iowans are deeply concerned about
``kitchen table'' issues such as health care, job security, pension
security, education, increasing the minimum wage, the war in Iraq, the
price of gasoline.
Sherry, in Sioux City e-mailed me to make two points.
One, I do not like the GOP violating the rules and violating the
Founding Fathers' checks and balances; and, two, I am retiring from
teaching tomorrow and I am afraid most of my students will not be in
good enough jobs to afford their own health care. Plus I myself must
wait 24 months for health coverage because I don't qualify for
Medicare.

Linda in Des Moines sent the following e-mail:

Mr. Harkin, thank you for asking. I will tell you what
keeps me up at night. The fear I will get sick and not be
able to work. I have to work some overtime every week right
now to just get by. I have not been able to accumulate a
savings to fall back on. What with more health care costs my
employer is putting on me, higher gas prices, higher grocery
costs. I have to run as fast as I can to just barely keep up.

Patricia in West Branch, IA, sent this e-mail:

I work two jobs, my husband 3, to send our son to college.
We all need some relief from this worry. Education, health
care, the poor who do not have homes or food. So let's worry
about the real issues here.

Patty in Olin, IA, e-mailed me with what keeps her up at night:

Two Things: Gas and College 1.

Shirley in Eldridge, IA, e-mailed me with the following brief
message:

I am bothered about rising health costs for retirees. I am
concerned about the rising cost of gasoline and the rising
cost of a college education. I am concerned that my
grandchildren may not have the same opportunities that I and
my children had to obtain an advanced degree.

This is the message that Al in Hinton, IA, sent me:

Health Insurance--I am seeing many educators who want to
retire, some who need to retire, however they cannot, due to
the cost of health care. They have worked 30 years and must
keep working until age 65. After 30 years in the classroom,
an individual has earned the right to retire. Please address
health care, this is the National Crisis.

Sara in Anamosa, IA, shared a broad range of worries:

Dear Senator Harkin: I am a teacher who is concerned that
American High Schools are not given the funds needed to train
our students to compete in a global economy.

Sue, a librarian in Iowa City, told me:

I am concerned about the rising cost of a college
education. . . .I worry that the divide between those who can
afford college and those who cannot is growing ever wider. I
don't think our economy will be well-served by making an
education an opportunity that only the wealthy can afford.

Susan from Des Moines send me the following e-mail:

The fear that the Social Security system is going to be
changed keeps me up at night. . . . My worry is not just for
myself but everyone affected by the proposed revisions in the
social security system.

Barbara from Mount Vernon, IA, had this to say:

What keeps me up at night is how I'm going to pay my bills
and still provide care

[[Page S5809]]

for the kids. I serve at my job at Four Oaks, Inc. I'm a
youth counselor at 4 Oaks serving children in a residential
setting who have been abused or neglected. Some of the needs
these children are the need for deep relationships with
adults. With the high turnover in facilities such as mine,
children go through hardship once again. Staff needs to move
on to other fields where the pay will meet their day to day
obligations. As a supervisor I do stay up at night worrying
about the children and my own financial needs.

Shannon from Garwin, Iowa, sent me this message:

Dear Senator Harkin. I can easily tell you what keeps me up
at night. Thank you for asking. I am a 30 year old Registered
Nurse. . . . I have a very expensive health insurance plan
that goes up every year. It does not cover my family, me
only. My husband works as an electrician and has no
insurance. Our children have health insurance that we pay for
out of pocket. We have no dental. We worry constantly. Save
for college? That is a joke in its self.

Ron, in La Mars, IA, said:

We need an aggressive program for alternative fuels. If we
do not break away from foreign oil we will be bogged down in
the Middle East forever.

Ann, an elementary school principal in Waukon, IA, had this to say:

There are many things that keep me up at night. Among these
concerns are the rising meth problem in Iowa. The reduction
of services to families through medicaid cuts and cuts in
the department of human services. I have families who fear
their foodstamps will be cut.

Here is Fabian from Bellevue, IA:

Collapse of the general economy in industrial and
manufacturing sectors.

Patrick from Sioux City, IA:

We need to reform the health care and transportation
systems in America.

Kim of Cresco, IA:

We need to be more focused on education in America than the
filibuster.

Here is Sandra, who e-mailed me:

Dear Senator Harkin, these are the things that keep me up
at night:
1. Social security--I think we just need to improve on the
program that exists. I know that my husband and I and our
children will not have the needed money to start our own
savings account. Our children have good jobs, but there is no
way they will be able to set-aside enough needed money to
retire on.
2. As a health professional, I can tell you first-hand what
is happening to people who cannot afford to pay health
insurance and also, prescription drugs needed. I treat the
results of that each day. Each month, we personally pay, out
of our own pocket, nearly $2000.00 for insurance and drugs.
Our drugs are for diabetes and prostate problems, something
we cannot help. That is $24,0000 a year, and farming is not
that profitable. Something has got to change or we will not
survive!

This is a comment from George:

I am 62 years old. I had surgery for prostate cancer 4
years ago. Post op I can not afford $1000 month for health
insurance and have not seen a doctor in 3 years for follow up
procedures. I am sinking into depression (and debt) and see
no way out . . . .

Doris, from Wellman said:

We need to raise the minimum wage.

Here is Ann, another person who e-mailed me:

I have families without jobs or such low-paying jobs they
work several to make ends meet. Children are left
unsupervised. How about increasing the minimum wage?

Mr. President, this is what Iowans are telling me, in 600 plus e-
mails, and over 500 phone calls today. This is what they want the
Senate working on. And we spent all this time talking about a
filibuster, a nuclear option: This judge, that judge. People must
wonder if we have become totally dysfunctional around here, so I am
hopeful that, with this agreement, we are going to see a new day. I am
hopeful that the majority leader will now turn his leadership and his
energy to turn the Senate to the people's business.
Let's have a bill out here to raise the minimum wage and let's get an
up-or-down vote on it. Let's get the Energy bill here on the floor so
we can amend it and then have an up-or-down vote. Let's do something
about health care. Why don't we extend the Federal Employees Health
Benefit Program that all of us have--why don't we extend it to small
businesses all over America so they, too, can have the same kind of
health coverage that we in the Congress have?
How about pension security? Let's get legislation on the floor so we
do not have more United Airlines, next maybe all the other airlines,
perhaps even General Motors has now said they may not be able to meet
their pension guarantees.
Education funding? How many times do we hear from our schools that we
are not funding No Child Left Behind, that the guarantee we made almost
30 years ago now that we were going to fund the Individuals with
Disabilities Education Act at 40 percent of the cost, now we are still
at less than 20 percent?
This is what the vast majority of my Iowans say we should be working
on. So I hope a new day is here. I hope, with this agreement that was
forged, we can leave that past behind us and that we can now bring this
type of legislation to the floor. Forget about the nuclear option and
get on with the people's business here in the Senate.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, I understand that I have 15 minutes. I
might take 10 or I might want to take another 10 in addition. I ask
unanimous consent I may speak up to 25 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. What I want to say, before my friend from Iowa leaves,
thank you so much, Senator Harkin. I think what you addressed in your
remarks is something that has been missing from this debate, and that
is what the people are telling us back home. They, in my opinion, do
not want to see the filibuster go away because they understand it is a
very important part of the American fabric of politics for more than
200 years. They also understand, without a doubt, that the issues that
concern their everyday lives are just not being addressed. My friend
laid them out beautifully.

In Iowa, CA, our people are feeling the same things. They are
struggling with high gas prices, lack of health care, worried about the
cost of health care, and education. They are absolutely frightened
about the President's attack on Social Security. They want us to fight
back. They want us to solve the Social Security long-range problem
without reducing benefits, without taking away Social Security, and not
turning Social Security into a guaranteed gamble. These are issues that
are key. Transportation is another issue my friend mentioned. I thank
Senator Harkin for his contribution tonight.
I also thank my colleagues on both sides of the aisle who took this
Senate back from a cliff where there were very treacherous waters
below. They turned us away from a power grab by the majority, from a
move that was clearly an abuse of power. They called it themselves,
those who wanted this option, the nuclear option. They were right to
call it the nuclear option because it would have been so devastating,
not only to the Senate, not only to the people of this country, but to
the foundation of our Republic--the checks and balances which were put
into this system by our brilliant Founders who came together. As
Senator Byrd reminded us tonight that Benjamin Franklin said: ``I've
given you a Republic, if you can keep it.''
That is the key. Can we keep the Republic? We do not keep a
representative democracy such as this if we allow one side, whichever
side that is, to trample upon the rights of the other. What happens is
you wind up trampling on the rights of the American people themselves.
The other day I was making a mental note of who supported the nuclear
option, taking away the right of any Senator to filibuster a judicial
nominee, who in this body supported that, versus those who thought it
ought to be sustained and we ought to have that right. When we add up
the number of people we represent on each side, the senators on the
side that wanted to keep the filibuster represented far more people,
millions more people. So this was a moment in time when the rights of
so many of those people would have been taken away, just as the rights
of their Senators would be taken away.
Again, I thank my colleagues on both sides who worked so hard to
bring us back from this abuse of power. I hope that it means forever. I
personally hope we never hear the words ``nuclear option'' again. It
would be best for this country if we allowed the 200-year history plus
of this country to sustain us.
The filibuster started in 1806. This is the filibuster's 200th year.
It has been used sparingly. Let's look at how many times we have
blocked President Bush's judges. I hope I don't have to bring this
chart out again. I hope we

[[Page S5810]]

are done with this. But for tonight we need to summarize where we have
been.
Mr. President, 208 to 10 is what caused all the angst by the
Republicans. They wanted to take away our right to block 5 percent of
George Bush's judges. As I have said at home in many meetings, if any
one of you got 95 percent of what you wanted in your life, you would be
smiling. I would be--unless I wanted everything and I thought I knew
best and I was the smartest. We all go through those times when we
think that way but one would hope at this point when we get here, after
working a little bit here in the Senate--and I admit I didn't see it
right in the beginning--we come to respect rights of the minority. The
filibuster has been used rarely.
I also want to discuss what I call the filibuster fantasy world that
cropped up in these debates. I will show a chart I was going to use in
the debate which, thankfully, we do not have to have. But for the
purposes of history, we ought to look at what was shaping up.
First of all, every day we came to the Senate we heard Republicans
say: The Democrats started the filibusters on judges. That is funny, in
a way, because the opposite is true. In modern times, the use of the
filibuster began with Abe Fortas in the 1960s. I looked at a headline
in the Washington Post from the 1960s. It said: ``Filibuster Launched
Against Fortas.'' This was President Johnson's, a Democrat, nominee to
the Supreme Court. The first paragraph of that Post article said:

The Republicans launched an all-out filibuster against Abe
Fortas.

That is a fact. The filibuster fantasy says that Democrats started
the filibusters on judges.
The second fantasy we have heard repeatedly recently from Republicans
is Republicans have never filibustered judges.
That one I can state from personal experience does not hold up--I
don't have to rely on newspapers; I don't have to rely on hearsay; I
don't have to rely on folk tales. I was here and I saw the Republican
filibuster against two terrific people from California, Marsha Berzon
and Richard Paez. Guess what? That was not in the 1800s or the 1960s.
It was the year 2000. And do Members know who voted to continue to
filibuster Richard Paez? Bill Frist, the good doctor, who says he wants
to take away our rights. Tonight he says he is backing off. He has no
choice but to back off because, luckily, we had enough people from both
sides of the aisle to pull us back from this precipice. Bill Frist
himself filibustered Richard Paez. Pretty amazing for him to say that
we should never filibuster when he filibustered, when his Republican
colleagues are on the record saying they were proud to filibuster and
it is their constitutional right to filibuster.
So you can't rewrite the record book. We have a Congressional Record.
We had a vote to end the filibuster on Richard Paez, a wonderful
candidate put up by President Clinton. Bill Frist voted to filibuster
that man. Yet he says if we Democrats vote to filibuster somebody, and
I am quoting him, ``we are behaving badly.'' He said that four times
tonight. Bad behavior.

This is not a kindergarten class. This is not even high school. This
is the Senate. When I decide to filibuster a judge, which is my
prerogative, and will remain so, I am happy to say under this good
agreement, I am not behaving badly, I am behaving as a Senator who has
looked at this nominee, who has seen that this nominee is dangerous to
America, who has seen that this nominee is extremist and will hurt the
American families who I represent. Am I not behaving as a Senator? No,
I am not behaving badly.
Let's look at the other Republican filibuster fantasies. They say all
judges should get an up-or-down vote. Do you know how many votes
Priscilla Owen had so far? Four. She is about to have the fifth. Janice
Rogers Brown has had one. Clinton judges, 61 of them, most of them
never made it out of committee. Most of them were pocket filibustered.
They never had an up-or-down vote. Every one of George Bush's nominees
have had an up-or-down vote. They may not have made the 60 votes they
needed to make because for 200 years-plus the Senate has had the right
for extended debate. These people could not get the 60 votes.
Why couldn't they get 60 votes? Because these nominees are so
extreme. I will talk about one of them in a minute and tell Members why
because it is an extraordinary circumstance. The President sent down a
nominee who is out of the mainstream.
First, I want to tell you a story about Orrin Hatch who was the
Republican chairman of the Judiciary Committee for a time when Bill
Clinton was President. Orrin Hatch called me into his office and he
said: Senator Boxer, if you want to get a vote on a judge from
California, don't send me anyone from the liberal side. Send me
mainstream judges, Senator. Send me mainstream judges and we will be
OK. We had a great chat.
I said: Well, I am not so sure; maybe sometimes you want to have
someone a little more liberal.
He said: Don't discuss it with me. Mainstream judges. That's it.
So for Orrin Hatch, when Bill Clinton was President, he had a litmus
test. Mainstream judges. I didn't think it was that unreasonable. Where
is the litmus test now on mainstream judges? It has gone out the
windows.
Alberto Gonzales himself said that Priscilla Owen's opinions were
``unconscionable judicial activism''. So we say to the President of the
United States of America: Do what Bill Clinton did, send us mainstream
judges and we do not have any problem with that. We will walk down this
aisle proudly. Frankly, we did it 208 times. I am not sure this
President has any cause for alarm. He got 95 percent of his judges, but
he wants it all, after all, he is George Bush. We had a King George. We
had a king. Now we want a President of all the people. We do not want a
king. We want him to govern. We do not want him to rule. There is a
difference.
This wonderful agreement sustains our right in the future to step out
if each of us determines there is a reason to filibuster.
Now, again, the filibuster fantasy is that Priscilla Owen and Janice
Rogers Brown have never had a vote in the Senate. I have already
stated, they just cannot make the 60-vote cut because they are so out
of the mainstream.
Then there is this issue the Republicans have now said they want to
change from the nuclear option to the constitutional option. Nothing in
the Constitution prohibits filibusters. We know that. The Constitution
says the Senate shall writes its own rules, which brings me to another
point.
Here is something I want the American people to know. I want my
colleagues to understand. The Constitution says the Senate shall write
its own rules, and Rule XXII of the Senate says if you want to change a
rule of the Senate, folks, you have to get 67 votes to move to change
the rules. It is important to do this when you change the rules of the
Senate. The Constitution says we shall write our own rules. But the
Senate rules do not envision a small group of Senators changing the
rules. It ensures that a large group of Senators must approve of
changing the Senate rules. If you have to change the rules, this is
what you have to have 67 votes to close off debate for a rule change.
Guess what? My Republican friends who brought us the nuclear option
knew they could not get 67 votes to destroy the system of checks and
balances, to change our government as we have known it for so many
years. They could not get 67 votes, not even close. They even had to
have Dick Cheney in the chair for this vote, folks, because it could be
that close; 51, maybe. What do they do? How are they going to get
around the rules of the Senate? Well, not to worry about the rules of
the Senate. We will make a precedent.
The Parliamentarian will say that Senators have a right to
filibuster, absolutely. The Parliamentarian will say we need 67 votes
to change the rules of the Senate, but Dick Cheney, sitting in the
chair as a rubberstamp for this administration, as part of it, will
say: I disagree with the Parliamentarian. We can change this right now
by declaring by fiat no more filibusters of judges ever again. That is
the new precedent.

I would ask my friends, what kind of an example is this to set for
our children? Let's say our children go to school, and they know to get
an 80 percent on a test is a B, and they get a 75 percent. Let's say
they then go to their teacher and say: Oh, I got a 75 percent,

[[Page S5811]]

and I don't want to come home with a C. Can you just change the rules
today for me and make it an A? Change the rules. Or if you are serving
on a jury, and everyone has to agree on the guilt of someone, but, oh,
they decide on this day, only 9 of the 12 have to agree.
I could go on and on with examples like this. The fact is, it is a
terrible precedent for our children to see grown people in the Senate
change more than 200 years of Senate history by going around the rules
of the Senate.
I was here when I was just a freshman. I was annoyed with the
filibuster. I was really annoyed. The Republicans were filibustering
all the time. I thought it was terrible. One of my colleagues said:
Let's change the rules.
I said: Great. I think President Clinton ought to get his whole
agenda through. I am tired of hearing about what I don't agree with.
I was wrong. I did not know I was wrong. I was wrong. But one thing I
did, I did not try to do it with some slipshod, fake precedent change.
I tried to do it by getting 67 votes. We did not even come near 20
because it is a losing proposition.
The nuclear option would have been a disaster. And I have to tell
you, out in the countryside, the polling is showing that the people are
sick of this place. They do not understand what we are doing. We are
irrelevant to them. And indeed it is no wonder we are viewed this way
given all the effort we have expended on this nuclear option business.
It simply fits into what the people have been saying for a while, that
we just do not get it.
They are paying these gas prices at the pump, and what are we doing?
Nothing. The President could release some strategic petroleum reserves.
Oh, no, the first President in modern times never to do that. And, yes,
gas is going down a few pennies, I am happy about that. But, believe
you me, it is not going down far enough. What are we doing about that?
Nothing that I could see. No, no, we are wasting our time on the
nuclear option because the President wanted 100 percent of what he
asked for. He did not want 95 percent. He wanted 100 percent of his
judges.
Another President once tried to pack the courts, and his name was
Franklin Roosevelt, a great Democratic President. Do you know what?
When Franklin Roosevelt was in office, there were 74 Democrats in the
Senate. Franklin Roosevelt was annoyed. He wanted 100 percent. He got
60 percent in the election, a lot more than this President did. He had
74 Democratic Senators. And he wanted to pack the courts. He wanted to
double the number of Supreme Court Justices, put his people in play,
have the Democrats in the Senate rubberstamp and make sure that his New
Deal would live forever more.
Do you know what stopped him? Democratic Senators. They said: Mr.
President, we admire you. We respect you. But we know it is wrong to
pack the courts. It is not right. We want an independent judiciary. Let
us not change the rules in the middle of the game.
I was so hopeful that we would have some Republican Senators this
time who had a sense of history, who understood better than I did when
I was new here that the filibuster protects not only the minority but
protects the American people.
I want to explain to you, in my final moments, why it is so important
that we keep the filibuster. In this deal, three judges are going to go
through, are going to have a simple majority vote. One of them is
Janice Rogers Brown. Now, I am not thrilled about this because I think
her record is so far out of the mainstream that she will hurt the
American people. But I do not want to just put out rhetoric. I want to
show you Janice Rogers Brown and some of the times in which Janice
Rogers Brown, as a judge on the California Supreme Court, stood alone
in her dissents. So when you ask me: Senator Boxer, why is it that you
filibustered Janice Rogers Brown--and, by the way, I support this deal.
Even though she will only need 51 votes, I still support the deal. But
I have to tell you, I am going to fight to deprive her of those 51
votes, if I can. She stood alone on a court of six Republicans and one
Democrat. She is a Republican. She stood alone 31 times because the
court was not rightwing enough for her.
Let's look at some of the times Janice Rogers Brown stood alone, how
way out of the mainstream to the extreme she is.
She said a manager could use racial slurs against his Latino
employees. Can you imagine a decision like that? It is OK to use racial
slurs against Latino employees. Janice Rogers Brown said that in
Aguilar v. Avis Rental Car.
She is bad on first amendment rights. She argued that a message sent
by an employee to coworkers criticizing a company's employment
practices was not protected by the free speech first amendment, but she
has been very protective of corporate speech. So she walks away from
the individual but supports the right of corporate speech.
If you want individual rights protected, this is not your person.
Here is one: She protects companies, not shareholders.
She is bad for rape victims. She was the only member of the court to
vote to overturn the conviction of the rapist of a 17-year-old girl
because she believed the victim gave mixed messages to the rapist.
Now, I just want to say something here. Every one of us here would
come to the defense of a 17-year-old rape victim. And on a court of six
Republicans and one Democrat, only one person stood alone, stood by the
rapist, Janice Rogers Brown. So when I say I do not want her to be
promoted, you can see why.
Janice Rogers Brown is bad for children and families. She was the
only member of the court to oppose an effort to stop the sale of
cigarettes to children. Now, I do not know how you all feel about this,
but this is 2005, and we know what an addiction to cigarettes can be.
We do not want our kids being able to purchase cigarettes in stores.
Janice Rogers Brown stood alone in Stop Youth Addiction v. Lucky
Stores. She stood alone on a court of six Republicans, one Democrat.
She stood alone and would not protect our children from the sale of
tobacco.

Senior citizens: the only member of the court to find that a 60-year-
old woman who was fired from her hospital job could not sue. This is
what she said in this dissent, where she stood alone on a court of six
Republicans and one Democrat. She said:

Discrimination based on age does not mark its victims with
a stigma of inferiority and second class citizenship.

Really? Really? A 60-year-old woman was fired from her hospital job
on age discrimination. State and Federal law prohibit age
discrimination. Janice Rogers Brown stood alone and said there is no
stigma. Someone fires you because you are old, and there is no stigma.
But that is the least of it. Janice Rogers Brown----
The PRESIDING OFFICER. The Senator's time has expired.
Mrs. BOXER. Mr. President, I ask unanimous consent for 1 minute to
close.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. Thank you, I say to my friend from Alabama.
Janice Rogers Brown has an attitude toward seniors which is
extraordinary. She calls senior citizens cannibals. She says they are
militant and they cannibalize their grandchildren by getting free stuff
from the Government. I have to tell you, this woman is so far out of
the mainstream, this is just a touch of the debate that is to hit the
Senate floor.
So when we stand up as Democrats and say no to Janice Rogers Brown,
we have a reason. It is not about the Senate. It is not about
partisanship. It is about the American people and the American family.
Thank you, Mr. President. And I thank those Senators on both sides of
the aisle for bringing us back from this precipice.
I yield the floor.
The PRESIDING OFFICER (Mr. Martinez). The Senator from Alabama.
Mr. SESSIONS. Mr. President, I ask unanimous consent that I may be
allowed to speak for up to 20 minutes in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, I would ask the Senator, before she
leaves--I notice the debates over filibusters have seen people maybe
flip and change their views--but I would ask her if it is not true that
she just said a few moments ago that we must

[[Page S5812]]

keep the filibuster, but in 1995 the Senator was one of 19 Senators who
voted to eliminate it entirely, not even just against judges but
against the whole legislative calendar also?
Mrs. BOXER. If the Senator heard me speak, I spoke quite a while
about that. I said how wrong I was, how green I was, how I was
frustrated with the Republicans blocking things. And I was dead wrong.
I also said that what we tried to do is change the rules, which takes
67 votes. We did not go in the dead of night to try and get it done.
So, yes, the Senator is right. I was dead wrong. Tough to admit that,
but I have been very open about that since the beginning of the debate.
Mr. SESSIONS. That is good. And I apologize for not being here and
hearing your remarks to begin with. I would not have asked that.
Mrs. BOXER. I don't blame the Senator.
Mr. SESSIONS. Mr. President, I want to share a few thoughts at this
time. There is no doubt that there has not been maintained in this body
a successful filibuster against a President's nominee for a judicial
office until this last Congress when the Democrats changed the ground
rules, as they stated they were going to do, and commenced systematic
leadership-led filibusters against some of the finest nominees we have
ever had.
People say: Well, you people in the Senate are upset, and you are
fractious, and there is too much of this, and you guys need to get
together. But it was not the Republicans who started filibustering
judges. And it was a historic change in our procedures when the
Democrats started doing it. It caused great pain and anguish.
When you have somebody as fine as Judge Bill Pryor, who I know, from
Alabama, the editor and chief of the Tulane Law Review, a man of
incredible principle and intelligence and ability, and who always wants
to do the right thing, to hear him trashed and demeaned really hurt me.
I am so pleased to hear today that those who have reached the
compromise have said that we will give Bill Pryor an up-or-down vote.
He had a majority of the Senate for him before, a bipartisan majority.
At least two Democrats voted for giving him an up-or-down vote and
would have voted for him, I am sure, if he had gotten that up-or-down
vote. We would have had that done a long time ago except for having,
for the first time in history, a systematic tactic of blocking those
nominees from an up-or-down vote through the use of the filibuster on
judges.
Priscilla Owen made the highest possible score on the Texas bar exam,
got an 84-percent vote in Texas, was endorsed by every newspaper in
Texas--a brilliant, successful private practitioner--and they have held
her up for over 4 years. The only thing I can see that would justify
holding her up was that she is so capable, so talented, that she would
have been on a short list for the Supreme Court. She should not have
been blocked and denied the right to have an up-or-down vote.
Justice Janice Rogers Brown from California was on the ballot a few
years ago with four other judges in California. She got the highest
vote in the California ballot, 74 percent of the vote on the California
ballot. California is not a rightwing State. She got three-fourths of
the vote. And they say she is an extremist? Not fair. It is just not
fair to say that about these nominees.
It was said by the Senator from California that they did not get 60
votes, they did not make the cut. When has 60 votes been the cut? The
vote, historically, since the founding of this Republic, is a majority
vote. Lets look at that. The Constitution says that the Congress shall
advise and consent on treaties, provided two-thirds agree, and shall
advise and consent on judges and other nominees.
Since the founding of the Republic, we have understood that there was
a two-thirds supermajority for ratification and advice and consent on
treaties and a majority vote for judges. That is what we have done.
That is what we have always done. But there was a conscious decision on
behalf of the leadership, unfortunately, of the Democratic Party in the
last Congress to systematically filibuster some of the best nominees
ever submitted to the Senate. It has been very painful.
And to justify that, they have come up with bases to attack them that
really go beyond the pale. I talked to a reporter recently of a major
publication, a nationwide publication. People would recognize his name
if I mentioned it. I talked about why I thought the nominees had been
unfairly attacked, their records distorted and taken out of context,
and they really were unfairly misrepresenting their statements,
opinions and actions. She said: Well, that's politics, isn't it?
Are we in a Senate now where because somebody is on a different side
of the aisle, have we gotten so low that we can just distort somebody's
record--a person, a human being who is trying to serve their country--
we can do that to them? I don't think that is right. I don't think we
should do it. But I do believe we are sliding into that and have been
doing so.
For example, it was said recently by Senator Boxer that Judge
Gonzales--now Attorney General of the United States--said that
Priscilla Owen was an unconscionable activist. He did not say that
about her. He did not. He has written a letter to say he did not. He
testified under oath at a Judiciary hearing and said he did not. What
he said was he reached a certain conclusion about what the legislature
meant when they passed a parental notification statute, and based on
that, he himself, he said, would have been an unconscionable activist
if he voted other than to say that the child did not have to notify her
parents. Other members of the court reached a different conclusion
about what the legislature meant with the statute, and he did not
accuse anyone else of being an unconscionable activist. They have been
running ads on television saying that as if it were a fact. It is not.
Surely, we should have the decency not to do those kinds of things.
An allegation just made about Janice Rogers Brown was that she
criticized the free speech of an employee for criticizing their boss.
That is not exactly what the case was. What the facts were--that
employee sent out 200,000 e-mails on the boss's computer system
attacking the boss and the company. It was a disgruntled employee. How
much do you have to take, clogging up the system with spam? One of the
most liberal justices on the California Supreme Court joined with her
in that view. That is not an extreme position. She wasn't saying a
person could not criticize her boss.
Another comment that was really troubling to me--and I have to say it
because Janice Rogers Brown, although very firmly established and
highly successful in California, grew up in Alabama, a small town not
too far from where I grew up. She left Alabama as a young teenager and
went to California and ended up going to UCLA Law School and being
awarded the distinguished graduate award there. She is a wonderful
person. I have taken an interest in her history. She grew up in
discrimination in the South. That is one reason they left. A
sharecropper's daughter, she was not raised in an environment where
African Americans were treated equally. That is a fact. They say now
that she said it is OK to use racial slurs against Latinos. You have
heard that comment. She said that Janice Rogers Brown said that.
That is not what she said. That is absolutely not the facts of that
case. It is really sad to hear that said, and the facts would
demonstrate that that claim against her is a totally unfounded charge.
Also, with regard to her position on the Supreme Court of California,
she wrote more majority opinions in the year 2002 than any other judge
on the court. When a majority reaches a view about the case, and a
majority on the court decides how it should come out, they appoint
someone to write the opinion for the majority. She wrote more majority
opinions than any other justice on the court. How could she be out of
the mainstream of the California court? I felt really compelled to make
some comments about her and her record.
Mr. President, I will conclude tonight by once again recalling that
when the Republicans had the majority in 1998, right after I came to
the Senate in 1997, President Clinton was nominating judges. Two of
them were very activist judge nominees for the Ninth Circuit Court of
Appeals, the most activist court in the United States--the California,
West Coast Court of Appeals. It

[[Page S5813]]

had been reversed 27 out of 28 times by the U.S. Supreme Court, I
believe, the year before that and consistently was the most reversed
court in America. Those two nominees, Berzon and Paez, which I strongly
opposed--and I think a review of their record would show they have been
activist and should not have been confirmed. But Orrin Hatch said in
our Republican conference: No, let's don't filibuster judges; that is
wrong.
I was a new Member of the Senate, as the Senator from California said
she was. He stepped up and said: Don't filibuster. We need to give them
and up-or-down vote. The then-majority leader, Trent Lott, moved for
cloture to give them an up-or-down vote. I voted to give Berzon and
Paez an up-or-down vote, and we did that. We invoked cloture, brought
them up. The Republican majority brought up the Clinton nominees, and
we voted them up. They were both confirmed, and they are both on the
bench today.
Our record was one that rejected filibusters. Now, what happened
after all of this occurred? It was a huge alteration of the Senate's
tradition and, I think, the constitutional intent. I think the
Constitution is clear that a majority is what we were looking for. So
we were faced with a difficult decision of what to do and how to handle
it.

I compliment Senator Bill Frist, the majority leader of the Senate.
He systematically raised this issue with the leadership on the other
side. He provided every opportunity to debate these nominees so that
nobody could say they didn't have a full opportunity to debate. He
researched the history of the Senate, and he presented positions on it
and why the filibuster on judicial nominees was against our history. He
urged us to reach an accord and compromise. All we heard was no, no,
no, you are giving a warm kiss to the far right, you are taking steps
that are extreme, you are approving extreme nominees, people who should
not be on the bench, and we are not going to compromise and we are not
going to talk to you.
After considerable effort and determination and commitment to
principle, Senator Frist moved us into a position to execute the
constitutional option, also referred to as the nuclear option. It has
been utilized, as he demonstrated, many times by majority leaders in
the past. It is not something that should be done lightly, but it is
certainly an approved historical technique that has been used in this
Senate. As a result of that, and the fact that they were facing a
challenge, I think it was at that point we began to have movement on
the other side, and they realized this deal was not going to continue
as it was and that, under the leadership of Senator Frist, we were not
going to continue this unprecedented, unhistorical action of
filibustering judicial nominees.
So it was out of that that we had the agreement that was reached
today. With that constitutional option hanging over the heads of a
number of people, a serious reconsideration took place. I think a
number of Senators on the other side have been uneasy about this
filibuster. They have not felt comfortable with it, but it was
leadership-led and difficult, apparently, for them to not go along.
Although, I have to note that Senator Zell Miller and Ben Nelson
consistently opposed it and supported the Republican nominees each and
every time as they came forward.
So out of all of this, we have reached an accord tonight. It has led
to what appears to be a guarantee that three nominees, at least--
Priscilla Owen, Janice Rogers Brown, and William Pryor, who is sitting
now as a recess appointee on the Eleventh Circuit--will get an up-or-
down vote. I believe all three of them will, and should be, rightfully,
confirmed as members of the court of appeals of the United States of
America. They will serve with great distinction. I am sorry we don't
have that same confidence that Judge Saad or Judge Myers will also get
a vote. They may or may not, apparently. But we don't have the same
confidence from this agreement that they will. I think they deserve an
up-or-down vote also. But today's agreement was a big step forward.
Maybe we can go forward now and set aside some of the things of the
past, and we will see Members of the other side adhere to the view of
those who signed the agreement that a filibuster should not be executed
except under extraordinary circumstances. Certainly, that is contrary
to the position that they were taking a few months ago and certainly
the position being taken last year.
So progress has been made. I salute particularly the majority leader
who I believe, through his leadership and consistency, led to this
result today. I am thrilled for Judge Pryor and his family because I
know him, I respect him, and I know he will be a great judge. I am
excited for his future.
Mr. President, seeing no other Senator here, I yield the floor.

____________________