[Congressional Record (Bound Edition), Volume 151 (2005), Part 20]
[Senate]
[Pages 27897-27905]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             FILIBUSTERING

  Mr. BYRD. Mr. President, will the distinguished majority leader 
yield?
  Mr. FRIST. I am happy to.
  Mr. BYRD. I want to congratulate the majority leader on helping to 
get these appropriations bills all passed. We discussed this, he and I, 
several months ago. It was my hope then that the leader would help to 
get all the bills passed so that we would not have an omnibus bill. He 
indicated he was going to try to do that, and he has tried and I want 
to congratulate him. I want to thank him for that.
  I think we ought to always pass these appropriations bills. The 
distinguished Presiding Officer, when he was chairman, got all the 
bills out of the committee; Senator Stevens got all the appropriations 
bills out of the committee. He was the chairman of the committee, I 
believe, at that point, the Appropriations Committee. I was the ranking 
member. I complimented him then. I compliment the distinguished 
majority leader and Senator Thad Cochran on getting this done. I 
compliment him.
  While I am complimenting the Senator, I want to ask the Senator a 
question, and I do it with great respect. I respect the Senator from 
Tennessee. He is a great physician. And every night I pray to the Great 
Physician and the Senator from Tennessee is following in the footsteps 
of that Great Physician.
  But I have a question. I saw something which concerned me in the 
paper this morning, the Washington Post. The Washington Post had the 
good judgment to place this in a very visible place in the Post. It is 
a great newspaper. Page A5. Here are the headlines that bothered me:

       Frist Cautions Senators Against Stalling Alito Vote.

  And then the subheadline:

       Democrats Don't Plan Filibuster.

  The first paragraph says:

       Senate majority leader Bill Frist, Republican, Tennessee, 
     threatened--

  That is a bad word, ``threatened''--

     yesterday, to strip Democrats of the power to filibuster. . . 
     .


[[Page 27898]]


  I am a Democrat, and it has never been my desire to strip Republicans 
of their power to filibuster. I was here--I believe the first election 
I cast a vote in was 1936. I think I was old enough to vote then. I 
would have been 20 years old in that session of Congress, which met in 
January 1937.
  I believe there were only 16 Republicans in the Senate at that time. 
The Senate only had 96 Members then. It didn't have 100 but 96 Members. 
There were only 16 Republicans and there were 4 independents--former 
and later, et cetera--and there were 76 Democrats. Can you imagine 
that? Yet there was never any threat on the part of the Democrats in 
1936. I think that was the first time I cast a vote, and I was proud of 
that Democratic Congress. I don't think there was any threat on the 
part of Republicans to kill the filibuster, to kill the provisions in 
Senate rule XXII that allowed freedom of speech in the Senate. When I 
saw this a few months back, we had this wave of insaneness, That swept 
over the Senate. We were talking about the nuclear option, so-called 
constitutional option. There is nothing in the Constitution about it. 
It is an unconstitutional option.
  I was sorry to see that my friend, Senator Frist, this fine Senator 
from Tennessee, the majority leader of the Senate and a great 
physician, was threatening--this is what the newspaper said--
``threatened yesterday to strip Democrats of the power to filibuster if 
they blocked the vote on Supreme Court nominee Samuel A. Alito, Jr.''
  That nominee came in to see me a while back. I had a nice talk with 
him. I was much impressed by Judge Alito. I haven't made up my mind 
yet. But I liked what he said when he was in my office, and I might 
vote for him. I don't know yet.
  But I have not heard a Democrat use the word ``filibuster'' in 
connection with this nomination. I haven't heard anybody use that word 
``filibuster.'' It was news to me that the distinguished majority 
leader was talking about a threat of stripping Democrats of the power 
to filibuster if they block the vote on Supreme Court nominee Samuel A. 
Alito, Jr.
  Just one more minute, and then I will yield to the distinguished 
leader.
  This is my 47th year in the Senate. I will finish the 47th year this 
month. And I never dreamed that during my tenure in the Senate--I 
didn't know how long the tenure would be at that time--there would be 
any effort to undermine, or to terminate, or to threaten the freedom of 
speech in the Senate. That is a freedom that goes back to the Magna 
Carta in 1215, and then in the reign of Henry IV. He reigned in England 
during the years 1399 to 1413. And during his tenure he proclaimed that 
the members of the House of Commons had a perfect right to speak their 
minds. So there was freedom of speech in the English House of Commons 
under Henry IV.
  Then when the Declaration of Rights came along in 1689, before the 
Commons would crown the two sovereigns, William and Mary, as King and 
Queen in England, they exacted from those two individuals a promise 
that they would honor the rights of Englishmen, the rights of people in 
the House of Commons, to speak their minds. That was on February 13, 
1689. Then on December 16, 1689, they wrote that into the law. That 
became a statute in the Bill of Rights.
  In the United States, our forefathers drew those provisions from the 
English Bill of Rights into our own Bill of Rights 100 years later, in 
1789.
  So I am greatly disturbed when any majority leader, a Senator as 
powerful as the distinguished Senator from Tennessee--as I have been 
majority leader, I know the power of a majority leader--but I would 
never, I say this with respect to the distinguished Senator--and when 
we were in power, the Democrats, as I say, when Republicans only had 16 
Members here, the Democrats could easily have killed freedom of speech 
in the Senate and not allowed the Republicans to filibuster. But there 
was never any thought of it.
  That is not a great idea. It didn't take a fellow to fall off a 
turnip truck to think of that. There is nothing brilliant about saying 
if there is a filibuster, all we need is the might and power of the 
majority to vote the rules are wrong and interpret them differently. 
And it could be done; no doubt about it. We could do that. But the 
Democrats never--and no party in history, Republicans or Democrats--
threatened to deny freedom of speech to members of the minority. I 
daresay a lot of Members on that side of the aisle, the Republican side 
of the aisle, don't like that idea. I don't think they would agree with 
that because they have a right to filibuster, too. The Republicans do. 
I respect that right.
  I am sorry I read that by the Senator. I will read it once more.

       Senate majority leader Bill Frist, Republican of Tennessee, 
     threatened yesterday to strip Democrats of the power to 
     filibuster if they block the vote on Supreme Court nominee 
     Samuel A. Alito, Jr.

  I haven't heard any Democrat talk about that. As a matter of fact, I 
think we are going to have a vote on him. We will debate it. We 
certainly have a right to debate. I joined the group of 14 so there 
wouldn't be filibusters against these judgeships, except in extreme 
cases when I might join a filibuster, too. But may I say most 
respectfully to the distinguished leader, I hope we will quit talk 
about this so-called ``nuclear option.'' That is a threat to the 
freedom of speech, freedom of speech, freedom of speech, here in the 
Senate.
  I yield to the distinguished Senator, the leader whom I do respect.
  The PRESIDENT pro tempore. The majority leader is recognized.
  Mr. FRIST. Thank you, Mr. President.
  Let me take a look at the article. I haven't read the Washington Post 
today. But I appreciate my good friend and colleague bringing this to 
my attention.
  The Senator is right. It says, ``Frist cautions Senators against 
stalling Alito vote.''
  It is pretty accurate. And I guess the Senator's followup statement 
is that no Democrat is talking about filibuster, and here you have the 
majority leader of this body saying if there is a filibuster he is 
going to ask for an up-or-down vote consistent with giving advice and 
consent. There are lots of ways of giving advice and consent. But I 
know the distinguished colleague from West Virginia has been focused on 
lots of things going on.
  But let me better inform him about what the other headlines have been 
saying about what Democrats are thinking and doing--the allegation that 
no Democrats are thinking about filibuster, citing headlines.
  It is a pretty accurate article, actually, as I glance through it.
  Associated Press, November 1, 2005.
  These are just some other headlines that are out there.

       Republicans Enthusiastic About Alito While Democrats Are 
     Wondering Whether To Filibuster.
  That is November 1.
  Headline in the Bergen County, New Jersey Record: ``Democrats Mull 
Possible Filibuster,'' November 21.
  Boston Globe, November 4, 2005: ``Democrats Won't Rule Out 
Filibuster.''
  The Hill, which we all see several times a week, November 1: ``Dems 
Hint At Filibuster.''
  The Washington Times, November 3: ``Senators to Weigh `Circumstances' 
for a Filibuster.''
  And the International Herald Tribune, other headlines: ``Democrats 
Don't Rule Out Filibuster To Block Nominee.''
  Those are some of the other headlines that at least cause the leader 
on this side of the aisle to say--not just this majority leader, not 
just Chris Wallace. He asked the question, if a filibuster is 
conducted, you can see all around the country--whether it is up in New 
Jersey, in Boston, MA, or right here on the Hill--there must be some 
Democrats thinking, at least thinking, contemplating, how we can use a 
tool we use.
  I would argue, and I know there is a difference of opinion, unfairly, 
against not just one nominee or two or three but four, five, six, 
seven, eight, nine, 10 times in the last 3 years Presidential nominees 
who had gone through committee, come to the Senate, filibustered again 
and again and again--used as a regular tool. That is wrong.

[[Page 27899]]

  Therefore, I believe in the principle of an up-or-down vote. If 
someone is nominated by the President and has the highest 
qualifications according to the American Bar Association, with advice 
and consent under the Constitution, they have gone through the 
committee, come from the committee and were recommended to this Senate, 
I believe in that principle of an up-or-down vote.
  Those are the various headlines. The response would be, but those are 
the headlines and headlines are like these headlines in here, some 
headline writer writes it. Clearly, Democrats are thinking about it.
  What about individuals?
  Senator Reid himself said Democrats would consider all filibusters 
and a filibuster to Alito is possible.
  From November 1, the Boston Globe:

       Senate Minority Leader Harry Reid pledged that Democrats 
     will consider all options at their disposal if they decide to 
     stop Alito's nomination. Though Reid said Democrats will wait 
     for confirmation hearings before choosing their strategy, he 
     noted that Bush is `near the bottom of his popularity' in 
     opinion polls and that a filibuster to defeat Alito is 
     possible.

  The Democrat leader, talking about a filibuster being possible, so an 
accusation that this leader is the one initiating discussion about 
filibuster is wrong.
  I continue with Reid spokesman Jim Manley on Alito:

       All procedural options are on the table.

  Our colleague, Charles Schumer, from New York:

       Nothing is on the table, and nothing is off the table.

  Senator Barbara Boxer from California:

       The filibuster's on the table.

  These are all quotations, from Republicans enthusiastic about Alito 
and Democrats wonder whether to filibuster.
  The Associated Press, November 1, Senator Boxer:

       The filibuster's on the table.

  Senator Tom Harkin not only believes there will be a filibuster but 
relishes the prospect--that is not a quotation; this is sort of a point 
taken from the quotation from an article in the Baltimore Sun November 
2.
  Senator Tom Harkin, Iowa, Democrat said:

       I believe Democrats will filibuster this nominee on the 
     basis that he's way too ideologically to the right. We need a 
     moderate on the court, not an avowed rightwinger like him 
     that would upset the balance.

  These are from your side of the aisle. I know my distinguished 
colleague is not aware of these, but that comes to me.
  Senator Dick Durbin to CBC's Jan Crawford Greenberg:

       Are you refusing to rule that filibuster out now? Do you 
     think that's still likely or is it just highly unlikely?

  Senator Durbin responds:

       Let's complete the hearing in January, then make a decision 
     whether we should go forward with the nomination of Judge 
     Alito.

  That was November 6.
  Senator Biden on November 17, from the Congress Daily AM:

       As Democrats stepped up questioning of Samuel Alito's 
     Supreme Court nomination, Sen. Joseph Biden, D-Del., warned 
     the nominee Wednesday he might need Biden's vote on a 
     potential filibuster if the judge is not forthright during 
     hearings . . . I told him you probably don't need my vote to 
     get on the bench, Biden continues, but if you are 
     disingenuous in the hearings, you may need my vote relating 
     to a filibuster.

  Senator Russ Feingold--again, to show it is not just one or two or 
three or four, said it was perfectly fine to use a filibuster. Those 
are Senator Feingold's words on ABC's This Week.

       I think it's perfectly fine to use a filibuster if somebody 
     is clearly unacceptable. That is an option we have. It has 
     almost never been used with regard to a Supreme Court 
     justice, so it takes an extreme case, but I was the one 
     Democrat who was unhappy publicly with the sort of deal that 
     was made earlier in the year that kind of let certain judges 
     go through that shouldn't have gone through. The right to 
     filibuster is part of our role in the Senate, and we should 
     reserve the right but use it only very sparingly.

  After meeting with Judge Alito, Senator Tim Johnson basically refused 
to rule out supporting a filibuster.

       I will leave all those options on the table.

  That is a sampling of what I hear directly from the Senate. As my 
distinguished colleague from West Virginia knows, all these outside 
groups complicate matters on both sides. We have the sort of party 
activist and liberal interest groups. We have the DNC Chairman Howard 
Dean saying the following, from Reuters, November 13:

       Despite early signals to the contrary, U.S. Senate 
     Democrats must keep open the option of blocking a 
     confirmation vote on U.S. Supreme Court nominee Samuel Alito, 
     Democratic Party leader Howard Dean said on Sunday . . . 
     Dean, asked if Democrats should keep the possibility of a 
     filibuster on the table, said, `Absolutely. Of course we 
     should.'

  My response in large part is there is a lot of talk about filibuster 
out there. If the filibuster is going to be threatened by Democrats on 
a man such as Judge Alito who does have that modest temperament, who 
has been confirmed by this body two times, who has been involved with 
2,500 cases before, has written 200 opinions, who my distinguished 
colleagues have had the chance to meet with, I have had the chance to 
meet with, has the sort of temperament where he will not be legislating 
from the bench, he deserves a vote in the Senate. Vote him up, vote him 
down, if that is the way Members feel, but he deserves a vote in the 
Senate.
  I don't think it will come to a filibuster. I don't want it to come 
to a filibuster. I haven't even brought the filibuster up except in 
response to a question on television on one of the Sunday shows, but I 
did make it clear at the Republican conference that I strongly believe 
a man of the quality of Sam Alito simply deserves the respect, the 
dignity of having a vote in this Senate. Everyone can vote the way they 
want to. Again, it will be overwhelming by the time we finish this 
process. That will be, I believe, before January 20, at some point.
  I don't want to posture on this. This is not a Democratic or 
Republican issue. This is an American issue. It is an issue that 
reflects on this Senate because it is our unique responsibility.
  I am absolutely confident in large part because of the challenges we 
have gone through for the last 2\1/2\ years in talking about filibuster 
and having it not used very rarely. We are not talking about 
filibustering legislation where you can come in and modify and go to 
conference and have all these procedural tools. We are talking about 
the dignity of giving up-or-down votes in the Senate. It has been 
tough.
  As the distinguished former majority leader knows, it has been very 
tough the last 3 years working through this process, where for 214 
years, for judicial nominees coming from the executive branch, coming 
from the President of the United States, coming here is the tool of a 
filibuster being used routinely, 10 times--10 times--in the last 3 
years, where for the 214 years before that, rare, rare, rare, rare.
  So I feel we are back on course today. I do not think we will see a 
filibuster. I do not think people really want a filibuster. I think 
there is a lot of posturing there. But I will do everything I possibly 
can. If your side chooses, if the Democrat side chooses to filibuster, 
chooses to obstruct, chooses to stop this Nation's business, I will use 
all the tools. If they pull that sheath out, if the other side pulls 
that sheath out, I will use all the tools I have to simply get an up-
or-down vote on the floor of the Senate for the President's judicial 
nominees.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. FRIST. Yes.
  The PRESIDING OFFICER (Mr. Thomas). The Senator from West Virginia.
  Mr. BYRD. I am sorry to hear the distinguished majority leader say 
what he just said. In the first place, I hear no talk of a filibuster. 
But who knows? If something should come up that we have not seen 
heretofore or have not heard heretofore about the nominee, which is 
entirely possible--not probable, I don't think--if that should happen, 
I can understand how Senators would say they are not going to give up 
the right to filibuster in such an event. I do not foresee that. The 
threat itself is a threat against freedom of speech.
  Now, the distinguished Senator from Tennessee is a great physician. 
But

[[Page 27900]]

this is the Senate. And the Senator talks about our forefathers. Our 
forefathers did not deign to stoop to a King or a President. And this 
Senate is a forum, probably the only forum that is left in this 
country, where freedom of speech reigns. That is the purpose of this 
Senate. That is why we have a Senate. I would hope that the 
distinguished Senator, who is a distinguished physician, would not have 
it on his escutcheon that he threatened freedom of speech in the Senate 
and threatened the filibuster.
  The filibuster has been around a long time. It has a bad name in some 
instances, but filibusters have sometimes been the tool by which free 
men and women in this Senate have exercised their right to oppose 
something. And I detest this mention of a nuclear option, the 
constitutional option. There is nothing constitutional about it, 
nothing. Nothing constitutional about that.
  Freedom of speech is underwritten in the Constitution and the Bill of 
Rights--freedom of speech--and that also includes the Senate. Freedom 
of speech, we have always had freedom of speech in the Senate. And as I 
say, any person who fell off a turnip truck could think of the idea: 
Well, if we have enough numbers, if we just go against the rules and 
throw reason to the winds, we can stop a filibuster. We can take that 
away from the Democrats. How terrible that would be.
  I hope I will never hear the Senator from Tennessee say this again. 
He is a Senator, and the right of freedom of speech is his as the 
majority leader, and he should embrace that right with the intention to 
die if necessary if anyone sought to take that freedom of speech away 
from the Senate.
  We are here as emissaries of the people who send us here. And the 
people out there in West Virginia, they cannot speak on this Senate 
floor. Young people out there in West Virginia or in Tennessee cannot 
speak on this Senate floor. But their representatives in the Senate--I 
am one of those--have a right to speak as long as I can stand on my 
feet. And I will do it.
  Now, I am not threatening a filibuster. But I have filibustered in 
the past. And I would do so again. I will say to the distinguished 
Senator, I have been in the Senate 47 years. Now, I will guarantee the 
Senate, if we ever have that--I would suggest the Senator not even use 
the threat again. I do not mean to be lecturing the Senator of what he 
can and cannot do. He can do that. He has freedom of speech, as I have. 
He can threaten anything he wants. He is the majority leader. And he 
may have the power to carry it off. But he might not have.
  Now, I will guarantee you one thing, I say, Mr. Leader, when somebody 
tries to kill freedom of speech in the Senate, they are going to have 
the American people to deal with--the American people. That is what our 
Constitution is all about: freedom of speech, freedom of the press, 
freedom of religion. And freedom of speech obtains here in the Senate, 
always has for 218 years.
  And I tell you, my friend, here is one Senator who is not going to be 
threatened and is not going to be persuaded by any threat against 
freedom of speech. I will die for that right. Our forefathers died for 
it. Our British forefathers died for it. And they fought for hundreds 
of years against tyrannical monarchs so that the right of freedom of 
speech, control of the purse, and such things, would be there in the 
House of Commons.
  I am so sorry. I have been here, I have served under several majority 
leaders, Republican and Democrat. Not once did any of them ever 
threaten to kill freedom of speech in the Senate. And I hope the 
Senator will think twice, three times, before he ever threatens that 
again. There is not going to be any filibuster against Alito.
  Mr. FRIST. Good. Good.
  Mr. BYRD. And I am against any filibuster. That is why I joined the 
14. We stopped it. I thought we were past that. I hope the Senator will 
forgive me. I do not mean disrespect to him, but he is talking about 
freedom of speech. I respect the Senator. But I respect the Senate 
more, and I respect the Constitution and I respect freedom of speech 
more. And that is why I was so interested in knowing why the Senator 
was talking about killing the filibuster and killing freedom of speech 
and killing a Senate rule. We have ways of changing the rules. If we do 
not like the rules, there is a way, under the rules, that one can 
change them. But never has anybody threatened to stop this 
constitutional right to freedom of speech. I detest it. And I want the 
Senator to know, if he ever really tries to pull that tool--and he can 
do so; he is the leader, he has a right, if he wants to do that, but I 
will tell you one thing. This will not make a Senator's name in 
history. It will not be etched in stone. Future generations will not 
rise up to bless a Senator who tries to destroy freedom of speech in 
the Senate.
  I say this with great respect to the Senator. I will tell you, he is 
a physician. I am not. He can do things I cannot do with a knife. He 
has saved many lives, I am sure. And I praise him for that. I know he 
goes out and serves the people. Even as a Senator, he goes out there 
and uses that fine brain of his in helping people. But for God's sake, 
this is the Senate. I have been here 47 years. I did not come here to 
see freedom of speech curtailed in this Senate. And when there is an 
effort to curtail it, they have Robert C. Byrd and a whole group of 
persons on both sides of the aisle--I would say there are Republicans 
in here who would not stand for that.
  I have said enough. I do not intend to carry this on. But I am glad 
we had an opportunity to discuss this because I hope the Senator from 
Tennessee fully understands that is not to be talked about in this 
Senate. Republicans do not like it either. And there have been fine 
Republican leaders. Howard Baker, a former Republican leader, was a 
real statesman. The Panama Canal treaties would not have been approved 
by this Senate had it not been for Howard Baker. And those Senators--
Bob Dole, others, Everett Dirksen--my goodness, they never threatened 
freedom of speech in the Senate.
  Republicans as well as Democrats have seen the wisdom of being able 
to filibuster if they are trying to protect the people of their State 
or the people of the country from some violation of their 
constitutional rights.
  I thank the Senator. He has been very respectful toward me. I hope I 
am just as respectful toward him. If he wants to say anything now, he 
has the floor.
  Mr. FRIST. Mr. President, I thank my distinguished colleague from 
West Virginia. Citing headlines, I guess to score political points, is 
useful. But I think the headlines you cite, without citing the 
headlines I cited--I had eight or nine that basically say Democrats are 
threatening filibuster, at least to our colleagues or to the American 
people. I think we have clarified that, where Democrats--and I named 
six Senators on your side of the aisle who are talking about 
filibuster. So we cleared that up. I appreciate my distinguished 
colleague saying that while I was on the floor so we can clear that up, 
the other side of the aisle having used filibusters in the past, having 
in an unprecedented way or at least talking about the filibuster out 
there.
  I also appreciate, secondly, the respect my distinguished colleague 
from West Virginia has on freedom of speech, which I share. You can 
start with the Alito nomination, which is the real thrust, the real 
crux of what we are talking about, this outstanding individual, and you 
could move to talking about the filibuster, which I certainly didn't 
start talking about but Democrats started talking about. Then you could 
move to what my response would likely be, and that is saying 
filibusters--I thought we had been through that. We said unless it is 
an extraordinary circumstance, filibusters are off the table. Yet you 
still hear about it. Then you move to, Well, if they do filibuster, 
Senator Frist, what are you likely to do? Then you can move off to 
freedom of speech. I think that was a useful discussion and 
conversation, but let's come back to what we are talking about.
  We ended pretty much saying that my distinguished colleague from West

[[Page 27901]]

Virginia doesn't expect a filibuster, that he is not going to 
participate in a filibuster. I don't expect a filibuster.
  With the hearings starting on the 9th, with time on the floor, full 
hearings--and we have waited until after the Christmas holidays so 
people can actually be studying papers and all the 3,000 cases and 300 
opinions--we are giving plenty of time for the process to work. So we 
don't expect a filibuster. I think we can hypothetically go across all 
of these potential happenings and occurrences. But all that does come 
back to the fact, and it centers on the Alito nomination, there is no 
reason for a filibuster, I don't believe. I believe my Democratic 
colleague doesn't believe that.
  Clearly, there is no reason at this juncture. A lot of the attacks, 
which are coming from the political left and the extreme left, are part 
of sort of a spaghetti strategy of throwing spaghetti against the wall 
and hoping something will stick and maybe that will precipitate votes 
against Alito for that reason. I don't think they are going to stick. A 
lot of the criticism we are hearing about Judge Alito today, or the 
critiques, you really just didn't hear over his 15 years on the bench 
or in these 3,500 cases. I think all of the attacks we hear on Alito 
himself are simply not working. The nomination is right on track. The 
leadership worked together with the Judiciary Committee in terms of 
setting a time line that we are right on track to fulfill.
  A lot of people are trying to say Alito is extreme, and those attacks 
simply are not sticking because he is not extreme. He is not an 
ideologue. He did not prejudge cases that came before him. As I was 
reading this weekend, I came across one of Alito's former law clerks 
who said this week--and he happens to be a registered Democrat; he 
still has the ``Kerry For President'' bumper sticker on the back of his 
car--he said: Until I read his 1985 Reagan job application, I could not 
tell you what his politics were. When we worked on cases, we reached 
the same result about 95 percent of the time. It was my experience that 
Judge Alito was and is capable of setting aside any personal biases he 
may have when he judges.
  Mr. BYRD. I believe that.
  Mr. FRIST. The final words: He is the consummate professional.
  I think all these attacks that are going on, since that really is the 
issue at hand, we need to put aside all of these partisan attacks, all 
of these unfair attacks by either extremist groups or Senators, and 
let's look at his qualifications. Let's go through the hearing process. 
Let's come to the floor, let's have an orderly debate, and then let's, 
at the end of all of that, not deny people, not deny our colleagues, 
the opportunity, the right to be able to vote yes or no after we go 
through that process.
  Mr. BYRD. Will the Senator yield?
  Mr. FRIST. I am happy to yield.
  Mr. BYRD. I see nothing in the Constitution that requires an up-or-
down vote on any nominee. The Constitution just says that the Senate 
shall have the power, and the Senate uses that power. It is in the 
Constitution.
  Mr. FRIST. And my response would simply be that the Constitution says 
advice and consent.
  Mr. BYRD. Yes.
  Mr. FRIST. And I think advice and consent for somebody who has gone 
through the nomination process, the recommendations, through the 
Judiciary Committee, hearings, recommended to this floor, I would 
argue, not written in the Constitution, but under advice and consent, 
you can't vote with your hands in your pocket. You can't say yes or no.
  Mr. BYRD. The Constitution doesn't say that.
  Mr. FRIST. I would argue that the dignity of this institution has 
worked for 214 years. So why deny it? Especially why deny it with a 
qualified nominee like Alito.
  Mr. BYRD. Will the Senator yield?
  Mr. FRIST. I would be happy to.
  Mr. BYRD. All this business about us working for 214 years, there 
have been a lot of misquotations of history when people talk like that. 
I say that a Senator has a right under the Constitution to object for 
whatever reasons--they may not be plausible reasons--to object to any 
nominee he wishes. The Constitution says the Senate has the power of 
advice and consent. So it doesn't say how that consent will be 
measured. It doesn't say it has to be an up-or-down vote. Nothing in 
the history, nothing in the Constitution says that. If you can point 
that out in the Constitution to me, where it says that a nominee shall 
have the right to an up-or-down vote--can the Senator point that out in 
the Constitution to me? Can the Senator point that out in the 
Constitution to me?
  Mr. FRIST. Mr. President, if the distinguished Senator from West 
Virginia would let me answer, I would be happy to.
  Mr. BYRD. Yes.
  Mr. FRIST. It is not in the Constitution that a Senator specifically 
has the right for an up-or-down vote. I am saying the dignity of the 
institution to give advice and consent deserves an up-or-down vote on 
the floor of the Senate. What the Constitution does say--which is why 
it is called the constitutional option, not because it is written in 
the Constitution--is that this body makes its own rules. The 
constitutional option is basically just that. You take it to this body 
and you say: Do these Senators deserve an up-or-down vote on the floor 
of the U.S. Senate? Let's vote on that.
  Mr. BYRD. No.
  Mr. FRIST. That is what the constitutional option is.
  Mr. BYRD. He doesn't have a right to an up-or-down vote. A nominee 
doesn't have a right to an up-or-down vote.
  Mr. FRIST. That is where we disagree.
  Mr. BYRD. The Senator can't find that in writing anywhere in the 
Constitution. I can vote against a nominee just because, any Senator 
can vote against a nominee just because----
  Mr. FRIST. But you get a vote.
  Mr. BYRD. The nominee doesn't part his hair on the right or left 
side. The Senator doesn't have to explain why he votes against. That is 
his right.
  Mr. FRIST. But he voted, and that is the point.
  Mr. BYRD. May or may not vote. The Constitution doesn't require that, 
and the Senator can't find it in the Constitution. He can say all he 
wants.
  Mr. FRIST. Mr. President, it doesn't say in the Constitution that you 
can vote; it says you can give advice and consent and that the Senate 
makes the rules as to whether you vote or not. We just disagree. 
Obviously, this goes back to the whole filibuster argument for judicial 
nominees. I simply believe in the principle that once someone comes to 
the floor, they deserve, in order to give advice and consent, an up-or-
down vote.
  Mr. McCONNELL. Will the majority leader yield?
  Mr. FRIST. I am happy to yield.
  Mr. BYRD. Will the leader yield to me?
  Mr. FRIST. Let me yield to my distinguished colleague, and then I 
will be happy to yield to the Senator from West Virginia.
  Mr. BYRD. I will be glad to take on both Senators in defense of the 
Constitution.
  Mr. McCONNELL. Did the majority leader yield to me?
  Mr. FRIST. Yes.
  Mr. McCONNELL. Mr. President, I have listened with great interest to 
the exchange on the television monitor back in my office and thought I 
might come down and join you both.
  Let me suggest that it could be argued that you are both right. What 
I believe, I say to my good friend from West Virginia, the majority 
leader is talking about is what is precedent in the Senate. There is a 
lot of discussion about ``stare decisis.'' Lawyers use that term to 
refer to respect for the precedent.
  Mr. BYRD. Yes, let the decision stand.
  Mr. McCONNELL. The precedent in the Senate for 214 years prior to the 
last Congress was the judges who came to the floor got an up-or-down 
vote.
  Mr. BYRD. I am not sure about that.
  Mr. McCONNELL. Is that not the case, I ask the majority leader----
  Mr. BYRD. I am not sure about that history.
  Mr. McCONNELL. --that when nominees came to the floor who enjoyed 
majority support in the Senate, they got

[[Page 27902]]

an up-or-down vote? Has that not been what the leader argues for? And 
to the substantial credit of our friend from West Virginia, this whole 
controversy was largely defused last summer, was it not?
  Mr. BYRD. Yes.
  Mr. McCONNELL. We have not been filibustering judges during this 
first session of Congress, and we have been giving judges an up-or-down 
vote as a direct result of the Senate's collective decision to sort of 
step back from the brink and honor the traditions of the Senate. Has 
that not been the case, I ask my friend, the majority leader?
  Mr. FRIST. Mr. President, that is my understanding. This is exactly 
where we were about a year ago, after this long period of 214--or 218 
years, as my colleague from West Virginia was saying on the side. When 
we are talking about filibustering--this is important to say for the 
people watching, not so much for colleagues--it is a very important 
tool for this body to use, for the minority to use, and it has been 
used really all the time for legislative issues.
  As we design legislation, which can be shaped, manipulated, defeated, 
and approved, these nominees who come from the executive branch, the 
President, are different. Ultimately, you cannot cut a person in half. 
You can operate on them, but you cannot cut them in half. You cannot 
move them aside. Ultimately, the only way to give that advice and 
consent--and the way it has been done for those 218 years--is that once 
they come to the floor, having gone through committee, they get the 
courtesy, the dignity, consistent with the principles of this body, of 
an up-or-down vote.
  Mr. BYRD. That is not history. That is not even recent history.
  Mr. FRIST. And then it changed about 3 years ago, where for all of 
this period of time, it didn't occur; that is, a nominee who had 
majority support being denied a vote on the floor of the Senate. Then 
it happened 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 times, all in a period of 
about 18 months.
  Then progress was made. We kind of put that all back in its cage. It 
still can be brought out. That is where some of these threatening 
issues are coming from. We don't think it should be brought out. Let's 
give the nominee an up-or-down vote after we have had plenty of time to 
debate and talk about and discuss that process.
  That is my understanding of the history. I know we will get a 
different version here shortly, but that is the lay of the land in the 
past and where we are today. I want to keep coming back to the Alito 
nomination. That is ultimately where the decision will be made.
  I yield the floor.
  Mr. BYRD. I thank the majority leader. I hope my PA system is on 
here. This country is a great country, but it has never perfected a 
good PA system. I think this one is working.
  May I say to the distinguished Senator, on vote No. 37, 106th 
Congress, on the nomination of Richard A. Paez to be U.S. circuit 
judge, vote on cloture on March 8, 2000, the distinguished Senator from 
Tennessee, Mr. Frist, voted to filibuster. The question was on a 
cloture motion to end a filibuster. Cloture was agreed to by three-
fifths vote, but the distinguished Senator from Tennessee chose to 
exercise his right, and he voted against cloture. He voted to 
filibuster. So the worm turns. The day may come when the Senator may 
want to filibuster. He will never find me on the side of saying I will 
cut off your right to talk.
  Mr. FRIST. Mr. President, I will not reclaim the floor. But what 
happened to those judges? Not with my principle as an up-or-down vote, 
but I ask my distinguished colleague what happened. Ultimately, they 
got an up-or-down vote on the floor of the Senate. That is all this 
discussion is about.
  Mr. BYRD. Some of them did.
  Mr. FRIST. The Senator cited Paez. He got an up-or-down vote on the 
floor of the Senate. All I am arguing for is an up-or-down vote. It is 
simple. Vote for or against them, and they win or they lose, and you 
start over or not.
  Mr. BYRD. That has never been the rule here. Senators have a right to 
talk, to filibuster.
  Mr. McCONNELL. Will the majority leader yield?
  Mr. FRIST. Yes.
  Mr. BYRD. The distinguished Senator from Tennessee, may I say, is 
wrong when he cites history. History is not on his side. I tell you 
something else. Not all nominees have had up-or-down votes. A lot of 
them are bottled up in committees. That is one way of killing them. 
That is one way of denying them their right, as the Senator says, to an 
up-or-down vote. They are killed in committees. The Senator is a member 
of the Republican Party, the Grand Old Party, and I respect that party. 
I am for a two-party system. But I will tell you, the Senator doesn't 
come into court with clean hands when he talks about the right of an 
individual to have an up-or-down vote. The Republicans have killed lots 
of nominees in committees, not letting them have an up-or-down vote. At 
least 61 nominees did not get out of committee. Not all nominees have 
had up-or-down votes.
  Mr. FRIST. Mr. President, I yield to my colleague from Kentucky.
  Mr. McCONNELL. Mr. President, would the majority leader not agree 
with the Senator from Kentucky that the Paez and Berzon nominations to 
which our good friend from West Virginia refers--in both instances, you 
were not the leader at the time; you were a Member but not the leader. 
The majority leader and the leader of the other side jointly filed 
cloture, not for the purpose of defeating the nomination but for the 
purpose of guaranteeing that the nominees got an up-or-down vote.
  There were one or more Senators, I expect, on our side of the aisle 
who did not want those nominees to get an up-or-down vote. So in that 
particular instance, Senator Daschle and Senator Lott used the device 
of cloture, not to kill the nomination but to advance the nomination, 
move it to final passage.
  I say to my friend, the majority leader, it is largely irrelevant how 
he may have voted on cloture as a rank-and-file member of the 
Republican Conference on that particular day. The leader of our party 
at the time and the other party at the time were honoring the principle 
to which the leader has been speaking, guaranteeing that those nominees 
got an up-or-down vote by the only device they could, by filing cloture 
and moving forward.
  So that is entirely consistent with the point my good friend, the 
majority leader, has been making here on floor, and the end result was 
that those two nominees--very controversial on this side--ended up 
getting an up-or-down vote and being confirmed by the Senate, and they 
are now called Judge Paez and Judge Berzon.
  Mr. FRIST. Mr. President, I am going to close by saying I very much 
appreciate the colloquy, the back and forth we have had over the last 
hour. These are important issues when you are talking about nominations 
for the Supreme Court, which will far outlast, once confirmed, many of 
us in this body, and the importance of this process. I believe what is 
important for the American people to understand, even in this back and 
forth now, is we are committed to a fair process and a process that 
should be dignified; that we need to have civil debate, and we will 
have that on this particular nomination, which is where the focus is, 
where I want to rest so we are not talking about what we will do from 
that side or this side, but focus on the fact that among all the 
responsibilities that we have, that we are given in the Constitution, 
this nomination process is one that is important, that should be 
dignified, especially if we want people to continue putting themselves 
forward as potential nominees. We should not be in the business of 
character assassination, and we should not be in the business of not 
giving people the opportunity to fulfill a process and have it unfairly 
blocked as we go forward.
  I think it is important--again, not as Democrats or Republicans or 
party or partisan issues--to not allow the debate to get so hot, high, 
and heated that we interrupt the process. We are about midway through 
the time Judge Alito has been nominated. I am very pleased by our 
leadership at the Judiciary level, with Senator Leahy, Senator

[[Page 27903]]

Specter, and the committee, in terms of their approach. They have a 
tremendous working relationship, which is very important as we go 
through these hearings which will begin on the 9th.
  Those hearings will be several days. They will be thorough; they will 
be exhaustive. It is important to this body to have the information to 
know how to vote--not whether to vote but how to vote, and questions, I 
am sure, will arise from the hearings--and that we be able to have both 
the appropriate amount of time for discussion and then come to the 
floor and have a full debate, and then approve or disapprove of that 
nomination.
  Again, I appreciate the chance to have this discussion. I know the 
distinguished Senator from Massachusetts has been waiting an hour to 
speak. We will continue the dialog. I very much respect the comments of 
my distinguished colleague from West Virginia. He teaches me all the 
time. I listen, and he knows I listen as we go through. We disagree on 
certain principles. I know one is not freedom of speech, or respect for 
the Constitution, or respect for this institution.
  I yield the floor.
  Mr. BYRD. Mr. President, the Senator has yielded the floor. Let me 
say, as the Chair recognizes me, to the distinguished Senator, I say 
again, I respect him, but I hope he will never leave as part of his 
legacy the destruction of freedom of speech in the U.S. Senate. And may 
I say to him once finally, that if he ever tries to exercise that so-
called constitutional option, which is an unconstitutional option, he 
flies in the face of history, he flies in the face of our forefathers, 
he flies in the face of the Constitution, the right to freedom of 
speech. If he ever tries that, he is going to see a real filibuster if 
I am living and able to stand on my feet or sit in my seat.
  I respect him as a Senator, but I respect the Senate even more. I 
respect freedom of speech even more. And if the Senator wants a fight, 
let him try it. I am 88 years old, but I can still fight, and fight I 
will for freedom of speech, for the constitutional right of freedom of 
speech. I haven't been here 47 years to see that freedom of speech 
whittled away and undermined. I haven't been here that long, I haven't 
been here 47 years to see that.
  I hope the Senator will take what I say as being in the spirit of 
friendship. But with something so important--and it was here a long 
time before I came here. It is the Constitution of the United States 
and freedom of speech, and we are going to have freedom of speech here.
  If I elect to filibuster against a nominee, it will be for good 
reason. I don't intend to join a filibuster. That is why I joined the 
group of 13, and I made the 14th. I think we avoided a filibuster. I 
don't expect to filibuster on this.
  I tell you one thing, I am tired of hearing this threat thrown in our 
faces that this so-called nuclear option will be used if we decide we 
want to filibuster. If there is good reason to filibuster an 
individual, why, let a Senator filibuster him. There are some of the 
names around, and I hope the President will not send one of them up, 
but there are some around on which there will be a filibuster. I 
compliment the President on avoiding that. We don't need that kind of 
disruption here. We don't need that kind of divisiveness. We need 
togetherness. I hope we will have togetherness.
  I thank the Senator for his courtesies. I respect him. I respect him, 
but I tell you, I expect, if the Lord lets me live, to continue to 
fight for this Constitution and for this institution and for freedom of 
speech against all comers on either side of the aisle--either side. I 
would not stand still a minute if a Democratic leader over here 
threatened to kill freedom of speech in the Senate. I wouldn't stand 
still for that. No, no, I wouldn't do that, Democrat or Republican.
  I thank the Senator. I respect him. When I meet him in the corridors, 
I will meet him with a smile.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. Mr. President, once again I thank my distinguished 
colleague from West Virginia for his insightful comments. I do want to 
keep the focus at this point--I have a feeling he is going to want to 
say something after I close, but I think it is time to put partisanship 
aside.
  Mr. BYRD. Yes. Amen.
  Mr. FRIST. To put threats of filibuster aside before we have even had 
the hearings. I am not bringing up filibuster.
  Mr. BYRD. That is freedom of speech.
  Mr. FRIST. I didn't bring it up yesterday. I responded to a question, 
and then I did cite what six Democratic Senators have said and what 
eight newspapers have said about what is coming from the other side. 
But I think it is time to put it aside and to focus on the nomination. 
Freedom of speech, which is important, which I love, I cherish, that is 
why I am here, we can debate that. I am not sure what we are debating. 
We can debate that. I thought we finished that. We talked about 
filibusters 6 months ago. It is time to focus on this nomination, which 
is what the American people want us to do.
  We are talking about one of the most fundamental responsibilities in 
this body, and that is looking at an individual--and I would argue a 
very qualified individual--having a process that is fair, that is 
dignified, that is respectful and gives people the opportunity to give 
advice and consent. That is my goal, and that is what I am going to do 
my best to achieve.
  I think that is going to be the last thing I say. But I thank the 
Senator very much. I appreciate the comments from the distinguished 
Senator.
  Mr. BYRD. Mr. President, may I say to the majority leader, there are 
those who filibuster sometimes, but they, too, can be dignified. I have 
seen filibusterers who were dignified. The late Senator Richard Russell 
and some of my friends on that side of the aisle when I came here 
filibustered with dignity. Talking about dignity, you can be against 
something and filibuster and still do it with dignity. I thank the 
Senator. I thank the Senator.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I know not many of our colleagues are 
here at this time, but I certainly hope a number of Americans have been 
listening to a very important history lesson and a real lesson about 
the rules and some fundamental issues and rights that have been debated 
over the last hour in the Senate. I think it has been enormously 
helpful and very informative.
  I am a member of the Judiciary Committee. I have attended some 22 of 
these nominations. I have spent a good deal of time since the Senate 
went into recess in preparation for these hearings and will continue to 
do so. But I join with my friend and colleague from West Virginia in 
saying that I do not know a single member, certainly of the Judiciary 
Committee, who has said they are going to filibuster this nominee. Nor 
do I know a single member of this side of the aisle who has stated they 
were going to go ahead with a filibuster.
  A number of our colleagues, including myself, have been asked, Does 
this mean under any circumstances you will not? The appropriate answer 
is, as the Senator from West Virginia stated so clearly and 
compellingly, we are not going to give up any of our rights prior to 
consideration of a nominee until there has been a completion of the 
hearings and until we make a balanced and informed judgment.
  That is the responsibility we have because the Constitution has 
stated so. During the debates at the Constitutional Convention, our 
Founding Fathers considered on four different occasions who would have 
the right to nominate judges to the Supreme Court.
  On three of the four they gave the complete power and authority to 
the Senate. It was only in the last 10 days of the Constitutional 
Convention they decided that it would be a shared power: One, the 
President would nominate and, second, we had a constitutional 
responsibility to give our judgment whether we believed that nominee 
was committed to constitutional rights and liberties. That is the 
responsibility we have, which is an enormously important one.

[[Page 27904]]

  I do not think anyone could have listened to the debate in the last 
hour or so and not understood the strong feelings that not only the 
Senator from West Virginia but all of us have on this particular 
judgment. I do not think there is a decision outside of the issues of 
war and peace that is more important than the votes we cast for a 
nominee to the Supreme Court of the United States.
  The debate is closed, but as a member of the committee I do want to 
correct a few items. We can go back through, but the record is very 
clear that Republicans have filibustered Democratic nominees. I was 
here at the time of Judge Fortas. So they have filibustered Democratic 
nominees in the past and denied them the right of a vote.
  As Senator Byrd has pointed out, I have been a member of the 
Judiciary Committee where President Clinton's nominees were effectively 
killed by denying them the opportunity to have a hearing. I have been 
in the Senate when we have had what they call secret holds and that is 
when Republicans put a hold on a nominee so that we do not even get a 
chance to consider the nominee.
  All of that is history and we should not be bothering about debating 
it. We can go back and debate whether it is history or it is not, but 
as a member of the Judiciary Committee and one who has been 
participating in these various debates and discussions, the record is 
very clear. It has been exhibited on the floor of the Senate in recent 
times in the discussions of it.
  So I want to join my colleague and friend from West Virginia. The 
last thing we need now is threats about the process and the procedure. 
What we need to have is an informed hearing on this nominee. As nice, 
decent, and fine a nominee as we might have, that in and of itself is 
not enough to promote this individual to the Supreme Court of the 
United States. Any nominee has to demonstrate his or her core 
commitment to constitutional values. Those are the most precious rights 
and liberties we have. The essence of the terms of the Constitution is 
to protect the rights and liberties of individuals, as has been pointed 
out by the Senator from West Virginia, from tyrannical governments, 
kings and monarchies. This is enormously important. We take our 
responsibilities extremely seriously.
  Reference was made during the consideration of the 1985 memorandum 
that Judge Alito had written, and I am not going to spend a great deal 
of time this afternoon going through it, but there are troublesome 
aspects of statements he made when he was applying for a job in the 
Justice Department. He has pointed out that it was just applying for a 
job in the Justice Department. So when he said he was so critical of 
the Warren Court that made judgments and decisions that guaranteed the 
rights of counsel in the Gideon v. Wainwright case, also the one-man, 
one-vote case which has been so fundamental against the background and 
history of gerrymandering of voters in this country which has excluded 
the rights of people, on those two important decisions--or the rights 
of a defendant in Miranda--when these decisions now are bedrock in 
terms of jurisprudence, we have to ask what was so troublesome to him 
in 1985 about those particular judgments and decisions?
  He says he was just applying for a job. Well, he was 35 years old. 
Now he is applying for another job. So there are important issues and 
questions which we have every right to go into. As to the Vanguard 
case, Judge Alito mentioned he would recuse himself from any decisions 
on the Vanguard case. Then the case comes for a decision in his court 
and he does not recuse himself. Then he writes to the Judiciary 
Committee some time later--after he had been to the Judiciary Committee 
and gave the Judiciary Committee the assurance he would recuse himself, 
he decided himself he would no longer recuse himself. Is that not 
interesting? Who did he notify? Did he notify the Judiciary Committee 
he changed his mind? Did he notify the circuit court? The White House 
says the reason he did it was because of a computer glitch.
  Then he says to the members of the Judiciary Committee that he did it 
because it was a pro se case, so it did not make much difference. Yet a 
pro se case is probably the most important. Those are cases which 
involve such individuals where they do not involve a whole battery of 
lawyers or law firms.
  When he gives his word to the Senate Judiciary Committee and then 
changes his mind, is it not worth finding out something about this 
nominee?
  So we are looking forward to this hearing. These hearings are 
enormously important. As one who has gone through the cases in which he 
has dissented--a good part of the cases he has been a part of the 
majority, a good part of the cases have not been published, they are 
nonpublished cases--I am certainly concerned about certain patterns 
that indicate a greater proclivity toward the powerful and less 
interest in protecting the smaller person, the little guy, on many of 
these cases. I am not prepared to make a judgment or decision on this.
  This is an enormously important consideration, and I could not agree 
more with the Senator from West Virginia. Why do we need to divert 
focus and attention on the process and the procedure when there is not 
a single member in the Senate who has said they were going to 
filibuster? Why attempt to chill debate and discussion? The only effect 
of this kind of comment is basically to threaten or to chill debate and 
discussion about a nominee.
  The Senator from West Virginia is not going to be intimidated, nor 
myself, but I do not think that serves the process well. It was 
entirely appropriate for the Senator from West Virginia to point out 
these comments that were on the front section of a newspaper, the New 
York Times, but wherever it was, wherever it was said, it was being 
said by the majority leader and the message was very clear. I certainly 
received the message, although I did not accept it. I do not think I 
would have been as clear and as eloquent as the Senator from West 
Virginia, but the message was very clear, do not you dare take too much 
time in consideration of this nominee or I am going to change the rules 
of the Senate in ways that are going to deny free speech. That is not 
where we should be in terms of giving fairness to this nominee and to 
give him the kind of thoughtful hearing which the Judiciary Committee 
is capable of doing and which it did under Chairman Specter during the 
Roberts hearing.
  I think Americans who followed that would feel the nominee was 
treated with respect and dignity and that members of the Judiciary 
Committee had opportunities to inquire and also to hear from other 
outside witnesses. That is the way it should go. I am confident that is 
the way it will go.
  I agree with my friend and colleague from West Virginia, the less 
talk about the threats about changing the rules of the Senate and 
particularly by the leadership, the better off we are going to be.
  Mr. BYRD. Would the distinguished Senator yield?
  Mr. KENNEDY. I would be glad to yield.
  Mr. BYRD. Mr. President, first, I apologize to the distinguished 
Senator for imposing on his patience. He sat back in that chair and he 
was in the Senate Chamber before I was today. He sat patiently through 
that long, drawn-out discussion, and I apologize to him for my part in 
imposing on his time and patience.
  Secondly, let me thank him for his clear, lucid, reasonable, and 
thoughtful comments concerning the subject matter that has been 
discussed. He has always taken advantage of the opportunity to serve 
the people of the country, to serve the country, and to serve the 
Senate. If something seemed right or seemed wrong, he was willing to 
speak out. I will always admire him for those things. I thank him for 
what he has said today. I think, again, it reflects great dignity upon 
the Senator and his thoughtfulness. He is a Senator sui generis, in the 
fact that he speaks his mind--he is never backward about that. He can 
do that with me, too. And he has done that with me in the past. I 
respect him for it.

[[Page 27905]]

  I thank the Senator for his comments. He certainly has engaged in a 
discussion today that I think makes a great contribution, not only to 
this discussion and this subject matter, but he continues as he has for 
years, so many years during my tenure here, to contribute greatly as a 
statesman who has been worthy of a seat in the Constitutional 
Convention or a seat in the first Senate calling that Congress. He 
could have been in any of those debates at any time in the history of 
this country.
  I respect him for it. He is an outstanding Senator and one upon whose 
services history will certainly report with great support. I thank him 
so much. I thank Senator Kennedy very much.
  Mr. KENNEDY. I thank my friend from West Virginia. That is what that 
previous hour was about, and why it was so important, because it was 
about preserving this institution. I know I speak for all of us, I 
think pretty generally across both sides of the aisle, in saying that 
there is no individual who is more dedicated to the preservation of 
this institution and the magnificent framework in which our Founding 
Fathers had conceived of it. It was really that issue that was talked 
about in that previous hour.
  It is important, as all of us go through the process of pressing our 
own views and our own vision about the future of this country, that we 
hear the clear and persuasive and knowledgeable voice, the voice of 
history, that speaks about the institution and its importance to the 
American people. That is what we just heard with the exchange of the 
Senator from West Virginia. That is why I was so pleased to have an 
opportunity to listen. I just wish the other 98 Senators had that 
opportunity to be so informed as well. I thank the Senator for his kind 
words.
  Mr. BYRD. I thank the Senator again. I feel pretty well today. I have 
had the flu over the weekend, but I am glad I came to the Senate today.
  Mr. KENNEDY. I think you got your message across pretty well.
  Mr. BYRD. I thank the Senator and I thank all Senators.
  Mr. KENNEDY. I thank Senator Byrd.
  Mr. President, I know we are in the morning hour of business; am I 
correct? I would like to be able to speak continuously. Do we have a 
time limit? I would like to be able to speak until I conclude.
  The PRESIDING OFFICER. There is no limitation.

                          ____________________