[Congressional Record (Bound Edition), Volume 150 (2004), Part 19]
[Senate]
[Pages 25440-25442]
[From the U.S. Government Publishing Office, www.gpo.gov]




             SENATOR FRIST'S REMARKS TO FEDERALIST SOCIETY

  Mr. McCONNELL. Mr. President, I ask unanimous consent to place in the 
Record a speech delivered on November 11 by the majority leader, 
Senator Frist, to the Federalist Society regarding the treatment of 
judicial nominations in the 108th Congress.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page 25441]]



Remarks as Prepared for Majority Leader Bill Frist, MD, the Federalist 
                    Society 2004 National Convention

       Wardman Park Marriott Hotel, Nov. 11.--Thank you all for 
     that warm welcome. You've succeeded at an almost impossible 
     task: you've put a doctor at ease in a room filled with a 
     thousand lawyers.
       I take great pride in being a citizen legislator--someone 
     who sets aside a career for a period of time to serve in 
     public office.
       Perhaps the most famous citizen legislator of modern times 
     was Jefferson Smith. Or, as he's better known: ``Mr. Smith'' 
     in the classic American film, ``Mr. Smith Goes to 
     Washington.''
       One of my favorite scenes in that movie is when Mr. Smith 
     takes the oath of office. He raises his right hand. And the 
     Senate President reads the oath.
       Mr. Smith pledges: ``I do.'' Then the Senate President says 
     with a less than subtle touch of sarcasm: ``Senator, you can 
     talk all you want to, now.''
       United States Senators do talk all they want. And, with 
     only one Senator and the presiding officer in the chamber 
     during many debates, you often see them talking just to 
     themselves.
       It makes me think that I'd be a lot better prepared as 
     Majority Leader with 20 years of experience, not as a heart 
     surgeon, but as a psychiatrist.
       The right to talk--the right to unlimited debate--is a 
     tradition as old as the Senate itself.
       It's unique to the institution. It shapes the character of 
     the institution.
       It's why the United States Senate is the world's greatest 
     deliberative body. And, as James Madison wrote in Federalist 
     No. 63, ``History informs us of no long lived republic which 
     had not a senate.''
       From time to time Senators use the right to unlimited 
     debate to stop a bill. A Senator takes the floor, is 
     recognized, starts talking, and doesn't stop talking.
       This brings Senate business to a halt. And it's called a 
     filibuster.
       Senators have used the filibuster throughout much of Senate 
     history. The first was launched in 1841 to block a banking 
     bill. Civil rights legislation was filibustered throughout 
     the 1950s and 60s.
       The flamboyant Huey Long once took the floor and 
     filibustered for over 15 hours straight.
       When Senator Long suggested that his colleagues--many of 
     whom were dozing off--be forced to listen to his speech, the 
     presiding officer replied, ``That would be unusual cruelty 
     under the Bill of Rights.''
       The current Minority has not hesitated to use the 
     filibuster to bring Senate business to a halt in the current 
     Congress.
       I have grave concerns, however, about one particular and 
     unprecedented use of the filibuster.
       I know it concerns you, as well. And it should concern 
     every American who values our institutions and our 
     constitutional system of government.
       Tonight I want to share with you my thoughts about the 
     filibuster of judicial nominees: it is radical; it is 
     dangerous; and it must be overcome.
       The Senate must be allowed to confirm judges who fairly, 
     justly and independently interpret the law.
       The current Minority has filibustered 10--and threatened to 
     filibuster another 6--nominees to federal appeals courts.
       This is unprecedented in over 200 years of Senate history.
       Never before has a Minority blocked a judicial nominee that 
     has majority support for an up-or-down vote on the Senate 
     floor.
       Never.
       Now the Minority says the filibuster is their only choice, 
     because the Majority controls both the White House and the 
     Senate. But that fails the test of history.
       The same party controlled the White House and the Senate 
     for 70 percent of the 20th Century. No Minority filibustered 
     judicial nominees then.
       Howard Baker's Republican Minority didn't filibuster 
     Democrat Jimmy Carter's nominees.
       Robert Byrd's Democrat Minority didn't filibuster 
     Republican Ronald Reagan's nominees.
       Bob Dole's Republican Minority didn't filibuster Democrat 
     Bill Clinton's nominees.
       Now there's nothing specific in the formal Rules of the 
     Senate that restrained those Minorities from filibustering. 
     They simply used self-restraint.
       Those Senators didn't filibuster, because it wasn't 
     something Senators did.
       They understood the Senate's role in the appointments 
     process. And they heeded the intent and deferred to the 
     greater wisdom of the Framers of the Constitution.
       Then came the 108th Congress.
       Majority control of the Senate switched hands. And one 
     month later--in February 2003--the Minority radically broke 
     with tradition and precedent and launched the first-ever 
     filibuster of a judicial nominee who had majority support.
       That nominee was Miguel Estrada--a member of this society.
       You know first-hand that Miguel Estrada is an extraordinary 
     human being.
       He's an inspiration to all Americans and all people who 
     aspire to one day live the American dream.
       Miguel Estrada immigrated to the United States from 
     Honduras as a teenager. He spoke little English.
       But with a strong heart and a brilliant mind, he worked his 
     way up to the highest levels of the legal profession.
       He graduated magna cum laude and Phi Beta Kappa from 
     Columbia College in New York. He earned his J.D. from Harvard 
     Law School--where he served as editor of the Harvard Law 
     Review.
       He clerked in the Second Circuit Court of Appeals and for 
     Supreme Court Justice Anthony Kennedy. He worked as a Deputy 
     Chief U.S. Attorney and as an Assistant to the Solicitor 
     General of the United States.
       Miguel Estrada would have been a superb addition to the 
     D.C. Circuit court. He's considered to be among the best of 
     the best legal minds in America.
       The American Bar Association gave him their highest rating.
       But after two years, more than 100 hours of debate, and a 
     record 7 attempts to move to an up-or-down vote, Miguel 
     Estrada withdrew his name from consideration.
       A sad chapter in the Senate's history came to a close. But, 
     unfortunately, it was just the beginning.
       The Minority extended its obstruction to Priscilla Owen, 
     Carolyn Kuhl, William Pryor, Charles Pickering, Janice Rogers 
     Brown, Bill Myers, Henry Saad, Richard Griffin and David 
     McKeague.
       With the filibuster of Miguel Estrada, the subsequent 
     filibuster of 9 other judicial nominees, and the threat of 6 
     more filibusters, the Minority has abandoned over 200 years 
     of Senate tradition and precedent.
       This radical action presents a serious challenge to the 
     Senate as an institution and the principle so essential to 
     our general liberty--the separation of powers.
       It would be easy to attribute the Minority's actions to 
     mere partisanship. But there is much more at work.
       The Minority seeks nothing less than to realign the 
     relationship between our three branches of government.
       The Minority has not been satisfied with simply voting 
     against the nominees--which is their right. They want to 
     require a supermajority of 60 votes for confirmation.
       This would establish a new threshold that would defy the 
     clear intent of the Framers.
       After much debate and compromise, the Framers concluded 
     that the President should have the power to appoint. And the 
     Senate should confirm or reject appointments by a simple 
     majority vote.
       This is ``advice and consent.'' And it's an essential check 
     in the appointment process.
       But the Minority's filibuster prevents the Senate from 
     giving ``advice and consent.'' They deny the Senate the right 
     to carry out its Constitutional duty.
       This diminishes the role of the Senate as envisioned by the 
     Framers. It silences the American people and the voices of 
     their elected representatives.
       And that is wrong.
       This filibuster is nothing less than a formula for tyranny 
     by the minority.
       The President would have to make appointments that not just 
     win a majority vote, but also pass the litmus tests of an 
     obstructionist minority.
       If this is allowed to stand, the Minority will have 
     effectively seized from the President the power to appoint 
     judges.
       Never mind the Constitution.
       Never mind the separation of powers.
       Never mind the most recent election--in which the American 
     people agreed that obstruction must end.
       The Senate cannot allow the filibuster of circuit court 
     nominees to continue. Nor can we allow the filibuster to 
     extend to potential Supreme Court nominees.
       Senators must be able to debate the merits of nominees on 
     the floor and have the opportunity to publicly and 
     permanently record a yes or no vote.
       We must leave this obstruction behind. And we can--as an 
     aberration in Senate history and a relic of a closely divided 
     body during a challenging time for America.
       The American people have re-elected a President and 
     significantly expanded the Senate majority.
       It would be wrong to allow a Minority to defy the will of a 
     clear and decisive Majority that supports a judicial nominee.
       And it would be wrong to allow a Senate Minority to erode 
     the traditions of our body and undermine the separation of 
     powers.
       To tolerate continued filibusters would be to accept 
     obstruction and harden the destructive precedents established 
     in the current Congress.
       With its judicial filibusters, the Minority has taken 
     radical action. Now the damage must be undone.
       American government must be allowed to function. And 
     America must be allowed to move forward.
       Senate rules and procedures have been shaped and molded 
     throughout the body's history.
       They're not set in stone. They can be changed to fit the 
     governing climate, to respond to emerging challenges, and to 
     restore vital constitutional traditions.
       So when it became clear that the Minority was intent on 
     abusing the filibuster in this

[[Page 25442]]

       Congress, we proposed to reform the rules.
       In May 2003, Senator Zell Miller and I--joined by every 
     member of the Majority leadership--proposed a new way to end 
     debate and move to an up-or-down vote on nominations over a 
     reasonable period of time.
       A first attempt would require 60 votes, the next 57, the 
     next 54, then 51, and finally we could end debate by a simple 
     majority.
       The Frist-Miller resolution went to the Rules Committee. 
     Senator Lott chaired a hearing and the committee approved it 
     in June.
       For the remainder of 2003 and all of this year, Frist-
     Miller has sat on the Senate calendar--facing a certain 
     filibuster by those who want to continue to filibuster 
     judges.
       The Frist-Miller reforms would be a civil, constructive and 
     cooperative way to end the filibuster of judicial nominees.
       The Senate now faces a choice: either we accept a new and 
     destructive practice, or we act to restore constitutional 
     balance.
       We are the stewards of rich Senate traditions and 
     constitutional principles that must be respected. We are the 
     leaders elected by the American people to move this country 
     forward.
       As my colleague, Senator Feinstein said, ``A nominee is 
     entitled to a vote. Vote them up; vote them down. . . . If we 
     don't like them, we can vote against them. That is the honest 
     thing to do.''
       I fervently believe in the principles of the American 
     Founding.
       And I know you do too. Because I serve and work closely 
     with 4 members of this society: Mitch McConnell, John Kyl, 
     Jeff Sessions and Orrin Hatch.
       Let me say this about these Senators: there are no more 
     passionate defenders of America's founding principles 
     anywhere in our government. They are true patriots.
       They know that the principles enshrined in our Constitution 
     have guided a miraculous experiment that has matured into the 
     most stable form of government in human history.
       And if we truly desire lasting solutions to the challenges 
     of the 21st century, those same principles must guide us 
     today and in the future.
       The filibuster of judicial nominees is about Senate 
     tradition. It's about the separation of powers. It's about 
     our constitutional system of government.
       But, at the most fundamental level, this filibuster is 
     about our legacy as the leaders of the greatest people and 
     nation on the face of the Earth.
       What will we accomplish over the next four years? What will 
     we do with the time and the trust that the American people 
     have so generously given us?
       One way or another, the filibuster of judicial nominees 
     must end. The Senate must do what is good, what is right, 
     what is reasonable, and what is honorable.
       The Senate must do its duty.
       And, when we do, we will preserve and vindicate America's 
     founding principles for our time and for generations to come.

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