[Congressional Record (Bound Edition), Volume 151 (2005), Part 3]
[Senate]
[Pages 4288-4295]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           BANKRUPTCY REFORM

  Mr. KENNEDY. I yield myself such time as I might use.
  Mr. President, I speak now in morning business because at 11 o'clock 
we will have a continuation of votes in the Senate on the bankruptcy 
bill. Then we will have a series of votes later on in the afternoon, 
with a time to be designated by the leadership. Then we will move to 
final passage. There would not be otherwise an opportunity to express 
my views about the bankruptcy bill in general and on a number of the 
items we have debated and on which we have failed to persuade the 
majority of our colleagues. I want to reference those in my remarks 
this morning.
  America at its best is when we are united in common cause and a 
unified purpose. We came together to overcome the Great Depression. We 
came together to fight two world wars against tyranny. We came together 
in the Cold War years to contain and defeat Communism. We came together 
to fight polio, to explore the heavens, and to create a secure 
retirement for our seniors. We came together after much struggle to 
expand the circle of opportunity in America for civil rights, voting 
rights, disability rights, and women's rights. We came together on 9/11 
as a nation determined to fight terrorism and defend our land.
  As Americans, we know how to come together to achieve great goals, to 
make stronger our communities, our families, our economy, our schools, 
and our nation. That is the America I believe in. That is the America I 
fight for every day. An America where we are joined arm in arm to 
advance the cause of opportunity, freedom, and fairness for all of our 
people.
  But this legislation breaks the bond that unites America, the bond 
that makes our country strong. It says the concerns of low and middle-
income families don't matter. They no longer have a voice in the United 
States Senate. What matters are the special interests. This bill 
sacrifices the hopes and dreams of average Americans to the rampant 
greed of the credit card industry. It turns the United States Senate 
into a collection agency for the credit card companies, reaching the 
long arm of the law into the pocketbooks of average Americans who have 
reached the end of their economic rope.
  That is wrong. That is not what we should be doing here. We have a 
responsibility to the people to fight for them and their needs, not to 
do the bidding of the almighty credit card companies.
  A lot of people are going to be pained with this bill. Make no 
mistake. The idea that this bill is focused on spendthrifts is 
laughable when the other side admits that the most we have in terms of 
spendthrifts is maybe 10 percent of the total of those who go into 
bankruptcy, and most of the bankruptcy attorneys say it is anywhere 
from 5 to 7 percent. We are picking up all these individuals who are 
going to be forced to pay and be treated more harshly with this bill 
than they otherwise would be under the regular Bankruptcy Act.
  Our bankruptcy laws are intended to give families a second chance. As 
Americans, we believe that if you work hard, live responsibly, but fall 
on hard times, our bankruptcy laws should be there to help you get back 
on your feet. If you get sick and face a mountain of medical bills, if 
you face divorce and no longer have two incomes to support your family, 
if your job gets sent overseas, then Americans believe you should have 
an opportunity to rebuild your lives.
  These are the principal causes for bankruptcy. We know that more 
children drop out of college every single year, not academically, but 
because of the cost of student loans. They can't pay them. We have been 
through this during the course of the debate. If you have a heart 
attack, if you are diagnosed with cancer, even if you have health 
insurance, you basically have overwhelming bills and more often than 
not get thrown into bankruptcy. If you get divorced--as we will have a 
chance to vote on--200,000 women don't receive alimony and don't 
receive child support, these are hard-working Americans who are going 
to get thrown into bankruptcy. And rather than be let out so that they 
will have a new chance and a new opportunity in life because they have 
done nothing wrong, they are going to be tied up and paying the credit 
card companies for the next 5 years. That is the way this bill works.
  This bill changes everything. It takes dozens and dozens of 
bankruptcy rules and rewrites every single one of them in favor of the 
credit card industry. Yesterday, we witnessed the powerful grip of this 
industry over the Republican Party. The Republicans defeated amendment 
after amendment after amendment after amendment that tried to give 
average Americans a fair chance when they face the credit card company 
lawyers in bankruptcy court. But when it appeared that a special 
interest loophole for the financial services industry threatened to be 
closed by the Leahy-Sarbanes-Warner amendment, the Republicans shut 
down the Senate.
  It is not as if the credit card industry is suffering. As we can see 
from this chart, the profits are in the billions of dollars: $6.4 
billion 1990; $12.9 billion in 1995; $20.5 billion in 2000; and they 
expect as a result of this bill that it will be 5 billion more dollars 
in profits. That is what this bill will mean. Over who? Over the 
families going into bankruptcy because of a heart attack, a stroke, 
children who have spina bifida, over women who are not getting paid 
alimony or child support, over those workers whose jobs have been 
shipped overseas trying hard to pick up another job and can't keep up 
with the payments and go into bankruptcy. Those are the people who are 
suffering. But when it came to an issue involving the financial 
services industry, our Republican leadership closed the Senate down 
last night.
  In the 8 years that this bill has been before the Senate, credit card 
profits have jumped 163 percent from $11.5 billion a year to more than 
$30 billion a year.
  We hear the proponents of this legislation say: Look, we have had 
this legislation before us for 8 years. We have a problem. We have to 
deal with the problem. A problem, with these kinds of profits?
  We have a problem with health care coverage for Americans. We have a 
problem with the cost of health care. We have a challenge in supporting 
our schools and our local communities. That is what is on the minds of 
Americans. Here we are in the Senate, taking 2 weeks of our time in 
order to look out for the credit card companies and make sure there are 
going to be greater profits for a single industry. That is the priority 
of the Republican leadership, rather than dealing with the root causes 
of so many of those who will be

[[Page 4289]]

dragged into bankruptcy and made indentured servants to the credit card 
industry for the next 5 years. It does not make sense. These are the 
wrong priorities, the wrong values.
  Middle class families are facing tough times with incomes falling, 
health costs out of control, college tuition through the roof, and now 
gasoline prices rising once again.
  But this bill says that what's going on in your life every day 
doesn't matter.
  You may be a member of the Guard or the Reserve called to Iraq and 
your business failed because you were away serving your country. In 
fact, 40 percent of those called up say they lost income, and over 
19,000 soldiers declared bankruptcy just last year. They sacrificed 
their lives in Iraq and their financial security here at home, but the 
credit card companies will honor their service by squeezing every last 
dime out of our veterans in bankruptcy court.
  Here is a letter from the Military Officers Association of America:

       On behalf of the nearly 370,000 members of the Military 
     Officers Association . . . I am writing to request your 
     support for the protection of servicemembers, veterans, and 
     military survivors from the increased bankruptcy penalties.

  They have it right, ``increased bankruptcy penalties.'' And this was 
written after Senators accepted the Sessions amendment which is just 
eye dressing.

       Our association is sensitive that overseas contingencies 
     disrupt the lives and finances of servicemembers and their 
     families. This is particularly true of the mobilized Guard 
     and Reserve members. Those who are self-employed, or who took 
     significant pay cuts from their civilian occupations, have 
     been placed at increased risk of facing bankruptcy because of 
     their service and sacrifice for our Nation. Survivors of 
     members killed on active duty also may find themselves at 
     increased financial risk. Many have left service rather than 
     be subject to similar recalls in the future, and we are 
     already concerned about the implications of this for long-
     term retention and readiness.
       MOAA does not believe this is the time to impose new 
     financial strictures . . .

  There it is. Nonetheless, we have gone ahead and done that. Democrats 
tried to correct this problem, to put some balance and fairness in the 
bill. Senator Durbin offered an amendment to protect those who protect 
us, but our Republican friends said no. Every single Republican in the 
United States Senate voted for more credit card profits and against our 
service men and women.
  You may be a cancer survivor, but you can't survive the $35,000 in 
medical bills that your insurance company won't pay, and you lost 
another $20,000 for all the months you couldn't work and had to use 
your credit cards to pay the mortgage, cover the car payments, pay the 
utilities, and buy the groceries. You're doing everything you can to 
pay down your debt. You have taken out a second mortgage. You have 
cashed in your retirement savings. Your family is sharing one car.
  But that doesn't matter. Under this bill, the profits of the credit 
card companies are more important than your recovery from cancer. Tough 
words; tough bill.
  Democrats fought to correct this problem. I offered an amendment to 
give responsible Americans who fall on hard times due to illness or 
injury a fair chance in bankruptcy court. But the Republicans voted 
against these Americans in favor of the credit card companies.
  You may be a single mother trying to raise your family, juggle your 
job and school, and rely on alimony and child support to pay the bills. 
But more than 200,000 women owed alimony or child support are forced 
into bankruptcy every year.
  Democrats are addressing this problem, too. Republicans have a chance 
to vote for single mothers later this morning. We have a chance to say 
to women across America, who are taking responsibility every single day 
for their children, but have a deadbeat dad who won't do his part, that 
we're on your side. We believe it's more important for you to get back 
on your feet than for the credit card companies to have greater 
profits.
  Maybe your job was one of the 2.8 million manufacturing jobs that 
have been shipped overseas in the past 4 years. You found a new job, 
but it pays only half as much. But under this bill, it doesn't matter. 
In bankruptcy court you will still have to keep paying the exorbitant 
interest payments to the credit card companies as if you still had your 
old, better paying job.
  It doesn't matter that you have worked hard and lived responsibly all 
your life.
  It doesn't matter that you were willing to take a lower paying job 
because you wanted to be a contributing member of society.
  It doesn't matter that you clip grocery coupons every week to try to 
preserve the money you set aside to put your children through college.
  It doesn't matter that you gave up your vacation to pay for repairs 
to your leaky roof.
  It doesn't matter that your lost job means you had to move your 
elderly parents into a cheaper nursing home to try to avoid bankruptcy.
  It doesn't matter. You can sacrifice and cut corners and put aside 
hopes and plans and dreams. But all that matters in this bill is for 
the credit card companies to have more and more profits.
  We'll have a chance to vote on this question later this morning, too. 
But I have a feeling that Republicans are going to say no to the needs 
of Americans whose jobs have been outsourced overseas, just as they 
have said no to Iraq veterans, to single mothers, to children, and to 
seniors.
  We should be working to unite the country to achieve great goals 
again. Why are we not debating those issues here on the floor of the 
Senate, instead of trying to get more profits for the credit card 
industry--perhaps the most profitable industry in America--at the 
expense of the mothers, children, veterans of Iraq, those who have 
serious health care bills, and those whose jobs have been shipped 
overseas. We should be battling for them. We should be battling to 
improve our schools and make college more affordable. We should be 
strengthening our economy and training our workers to compete against 
globalization. We should be fighting to keep our country safe from 
terrorism.
  This bill makes these goals more difficult to achieve. It divides 
America by rewarding the most powerful special interests at the expense 
of low and middle-income families. A Republican supporter of the bill 
said yesterday that this bill was ``fair and balanced.'' Where is the 
fairness? Where is the balance?
  It does nothing to fix the millionaires' mansion loophole that allows 
millionaires to go into bankruptcy and still keep their massive 
estates. You may lose your home, but they get to keep their palaces 
under this bill. Where was the effort on the other side--talking about 
a fair and balanced bill--to try to do something about that? All they 
could do was whip up their own membership in order to defeat that 
amendment to have one standard for all Americans. That is what I 
thought we were about as a country one standard--not a dual standard 
for wealthy millionaires that can hide the tens of millions of dollars 
in their mansions and palaces in a handful of States.
  It does nothing to help the thousands upon thousands of employees and 
retirees of companies like Enron and WorldCom and Polaroid, who are 
left out, twisting in the wind, after a bankruptcy process that lets 
the responsible corporate executives go free. They go free. These 
employees lose their pensions, their health insurance, their 
retirement, and their investments, as they did at Polaroid. Is there 
anything in this bill to try to help those individuals, many of whom 
worked a lifetime for these companies? Absolutely not. They are fair 
game. After these individuals, the Ebbers, the Skillings, Enron, and 
the rest, robbed those companies, they are sitting in their mansions 
now in Houston; but these other individuals will be dragged into 
bankruptcy court if they get a serious illness or sickness, or if they 
run into family problems.
  Fair and balanced? No way, Mr. President. The Republicans and the 
credit card companies may get their

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way, and the American people may lose this round; but the fight is 
never over until we have assured fairness and freedom and opportunity 
for every one of our citizens. That is our pledge as Democrats today 
and tomorrow and in the future. That is why I hope our colleagues will 
vote no.
  I will mention a few further items. One is from the Children's 
Defense Fund, who care about children. We tried to point out some of 
the other groups that will be affected. Here is a letter from the 
Children's Defense Fund. I will read excerpts of it. I ask unanimous 
consent that this letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                          Children's Defense Fund,
                                    Washington, DC, March 1, 2005.
     Re: oppose S. 256, the Bankruptcy Act of 2005.

       Dear Senator: The Children's Defense Fund is writing to 
     urge you to oppose S. 256, a bankruptcy bill that would hurt 
     many Americans facing financial problems due to job loss, 
     divorce, child-rearing, lack of medical insurance, or 
     predatory lending practices. This bill would inflict hardship 
     on more than one million economically vulnerable women and 
     families who are affected by the bankruptcy system each year. 
     Medical emergency, job loss or family breakups are factors 
     which account for nine out of ten filings.
       The bill would also hurt women who are owed child or 
     spousal support by men who file for bankruptcy. The bill will 
     make it more difficult for mothers to collect support because 
     credit card companies and other commercial creditors will 
     have greater claims to the debtor's resources during and 
     after bankruptcy. Being first among unsecured creditors in 
     Chapter 7 bankruptcy is meaningless when over 95 percent of 
     debtors have no resources to pay unsecured creditors. In 
     Chapter 13, the bill would require larger payments to be made 
     to many commercial creditors, resulting in smaller payments 
     of past-due child support over a longer period of time, 
     increasing the risk that child support debts will not be paid 
     in full. And after the bankruptcy is over, more debts owed to 
     commercial creditors will survive--and mothers and children 
     owed support are not a match for the collection departments 
     of the commercial credit industry.
       S. 256 contains a number of provisions which would have a 
     severe impact on families trying to regain their economic 
     stability through the bankruptcy process. S. 256 would make 
     it harder for women to access the bankruptcy system. Low and 
     moderate income families are not protected from many of the 
     bill's harsh provisions. Parents who desperately need to 
     preserve their homes from foreclosure or prevent their 
     families from being evicted, or keep a car to get to work, 
     would find it more difficult to do so. And, when the 
     bankruptcy process was over, parents already facing economic 
     disadvantage would find it harder to focus their income on 
     reasonable and necessary support for dependent children 
     because many more debts would survive.
       Passage of the bankruptcy bill would make it harder for 
     families struck by financial misfortune to get back on track. 
     It would benefit the very profitable credit card industry at 
     the expense of the modest-income families who represent the 
     great majority of those who declare bankruptcy. Congress 
     should not enact reform that puts women and children at 
     greater risk. The bill is profoundly unfair and unbalanced. 
     Unless there are major changes to S. 256, we urge you to 
     oppose it.
           Very truly yours,

                                         Deborah Cutler-Ortiz,

                               Director of Family Income and Jobs,
                                          Children's Defense Fund.

  Mr. KENNEDY. In part, the letter says:

       This bill would inflict hardship on more than 1 million 
     economically vulnerable women and families who are affected 
     by the bankruptcy system each year.
       . . . and after the bankruptcy is over, more and more debts 
     owed to the commercial creditors will survive--and mothers 
     and children owed support are not a match for the collection 
     departments of the commercial credit industry.

  There it is. The credit card companies and the mothers will be 
scrambling over the nickels and dimes that might be left. Guess who is 
going to win out? That is the fairness and balance that has been put in 
here. That is why the Children's Defense Fund is strongly opposed to 
this.
  The National Women's Law Center wrote:

       This bill would inflict additional hardship on over one 
     million economically vulnerable women and families who are 
     affected by the bankruptcy system each year: those forced 
     into bankruptcy because of job loss, medical emergency, or 
     family breakup--factors which account for nine out of ten 
     filings--and women who are owed child or spousal support by 
     men who file for bankruptcy.

  It will make it ``harder for women to meet their children's needs 
after bankruptcy because many more debts would survive.''
  Finally, the Alliance for Retired Americans wrote:

       The fastest growing group of Americans filing for 
     bankruptcy are those over 65. This unfortunate situation has 
     been caused by skyrocketing health costs that can drain a 
     lifetime of savings in a very short period of time. In 
     addition, many older Americans have seen their pensions and 
     retirement savings disappear as well. The result has been 
     that many older Americans cannot enjoy the security in their 
     retirement through no fault of their own. And they end up in 
     bankruptcy.
       This legislation before the Senate actually increases the 
     burden on older Americans who undergo financially difficult 
     times through health care costs or loss of retirement income.

  This administration wants to privatize Social Security. This is what 
they say. That is why they are opposed to it. Those who represent the 
children are opposed to it. The ones in the military are opposed to it. 
Those who represent workers are opposed to it. Those who represent 
women are opposed to it. The one group that is for it is the credit 
card companies. Take your choice. I know how I will decide.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Utah.
  Mr. HATCH. Madam President, the crisis created by the unprecedented 
use of filibusters to defeat judicial nominations must be solved while 
preserving two important Senate traditions. On the one hand, extended 
debate is an important part of how the United States Senate conducts 
its legislative business. On the other hand, we have traditionally 
given judicial nominations reaching the Senate floor a final 
confirmation decision. Two years ago, this latter tradition was 
attacked when the filibuster was used for the first time to defeat 
majority supported judicial nominations. Mr. President, these are two 
different and important traditions and each must be preserved.
  Solving this crisis by restoring Senate tradition is not a partisan 
step, but is in the interest of the Senate as an institution. Both 
Republicans and Democrats should follow the same standard, no matter 
which party occupies the White House or runs the Senate. Neither 
Democrats nor Republicans should have to go through this vicious cycle 
of filibusters against qualified judicial nominees.
  Let me first clarify once again the situation in which we find 
ourselves. Before 2003, no majority supported judicial nomination had 
been defeated by a filibuster. Under our Rule XXII, we did vote on 
motions to end debate on judicial nominations, though we did so just 15 
times in 35 years. Simply taking a cloture vote, however, does not mean 
a filibuster is underway. In fact, some of those cloture votes were 
used deliberately to prevent filibusters, clearing the procedural path 
and guaranteeing an up or down confirmation vote. Some have been used 
for floor management purposes. We did so even on very controversial 
nominations, such as President Clinton's choices of Richard Paez and 
Marsha Berzon for the U.S. Court of Appeals for the Ninth Circuit.
  Before 2003, only one judicial nomination on which cloture was not 
invoked was not confirmed. Opposition to cloture on the controversial 
1968 nomination of Abe Fortas to be Chief Justice was evenly bipartisan 
and showed that the nominee lacked clear majority support. At the 
nominee's request, President Lyndon Johnson withdrew the nomination the 
next day. Senator Robert Griffin, from Michigan, who led opposition to 
the nomination, personally told me that there never was an intention to 
use the filibuster to defeat the Fortas nomination. There was no need, 
since the votes were there to defeat the nomination outright. Lyndon 
Johnson knew it and that is why they withdrew the nomination rather 
than be embarrassed by the bipartisan vote of both parties against the 
nominee.
  Before 2003, if the Senate rejected a judicial nomination that 
reached the Senate floor, we did so by voting it down; filibusters did 
not prevent a final vote in order to keep a nomination

[[Page 4291]]

from confirmation. The break with that tradition came in 2003. During 
the 108th Congress alone, we voted on motions to end debate on judicial 
nominations 20 times. Each vote failed, and opposition to cloture was 
completely partisan. None of those nominees was confirmed, though each 
had clear bipartisan majority support.
  Those who want to end this Senate tradition of giving judicial 
nominations reaching the Senate floor an up or down vote fear they will 
lose if we follow that tradition. To them, the end of defeating 
President Bush's judicial nominations justifies the means of destroying 
Senate tradition. Being honest about it would reveal how such partisan 
strategies are politicizing the judicial appointment process, so they 
try to make other arguments.
  They claim Republicans filibustered President Clinton's judicial 
nominations, but each of his judicial nominees on whom we took a 
cloture vote is today a sitting Federal judge.
  They claim they don't filibuster very often, which is beside the 
point if using the filibuster against judicial nominations violates 
constitutional principles and departs from Senate tradition. There have 
already been enough judicial nomination filibusters to give President 
Bush the lowest appeals court confirmation rate of any president since 
Franklin Roosevelt.
  Or they claim they filibuster only nominees who are out of some kind 
of mainstream. It is difficult to know what that charge really means, 
especially since the American Bar Association--which Democrats once 
considered the gold standard--has found them qualified. Senators may, 
of course, vote against a judicial nominee for any reason they wish, 
but we should stop pretending that out of the mainstream is anything 
more than a prediction that the nominee may not always rule the way 
liberal interest groups want. Considering the stream in which many of 
those groups swim, I'm not so sure this isn't a compliment. If the 
mainstream really mattered, though, these filibusters would never have 
started. Newspaper editorials opposing filibusters of judicial 
nominations outnumber those supporting them by at least six-to-one.
  Madam President, I ask unanimous consent that some representative 
editorials from mainstream newspapers be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Wall Street Journal, May 13, 2003]

                      The Politics of Filibusters

       Where's Jimmy Stewart when you need him? Two historic 
     filibusters are currently under way in the Senate--one's been 
     going on for months--but next to no one outside the Beltway 
     has noticed.
       Senate business proceeds as usual, the Members get to sleep 
     in their own beds at night, and Miguel Estrada and Priscilla 
     Owen's names come up only when repeated motions to close 
     debate and bring their judicial nominations to a vote are 
     defeated. Hollywood is not remaking ``Mr. Smith Goes to 
     Washington.'' All of which is exactly the way Democrats want 
     it: They can defeat two Bush judges, and more down the road, 
     without paying a political price.
       So one can hardly blame Majority Leader Bill Frist for 
     trying to shine a little light on the problem. The Democrats 
     are imposing an extraordinary new standard for confirming 
     judges--not a simple majority of 51 votes but a super-
     majority of 60, the number required to shut off debate. Both 
     filibustered nominees have the support of a bipartisan 
     majority, yet they are being denied the confirmation votes to 
     which they are entitled under the advice-and-consent clause 
     of the U.S. Constitution.
       Mr. Frist's proposed solution is to change the procedure 
     under which debate ends and a vote is taken, a process known 
     as ``cloture.'' He would amend Senate Rule XXII so that the 
     number of votes needed to end a filibuster would fall from 60 
     to 57 to 54 to 51 on successive votes. This would preserve 
     the essential purpose of the filibuster--which is to give the 
     minority a chance to make their case--but not let them abuse 
     the system by holding confirmable nominees hostage forever.
       Georgia Democrat Zell Miller made an even more ambitious 
     reform proposal on this page in March, when he called for new 
     cloture rules for nominations and legislation--not just 
     nominations, as Mr. Frist proposes. Mr. Miller's proposal was 
     in turn based on one in 1995 by Democrats Tom Harkin and 
     Joseph Lieberman.
       That last one had the support of none other than Tom 
     Daschle, who said at the time that ``Democracy means majority 
     rule, not minority gridlock.'' Mr. Daschle hewed to a 
     different principle on Sunday, when he told NBC's ``Meet the 
     Press'' that Mr. Estrada and Judge Owen are ``exceptions to 
     the rule'' that every nominee deserves an up or down vote in 
     the Senate. Apparently he doesn't believe the Constitution 
     should be applied equally to every American.
       Under current practice no Senate rule, including the 60-
     vote cloture rule, can be changed except by a two-thirds 
     majority. Which is where things get interesting, 
     constitutionally speaking. Many legal scholars--liberal and 
     conservative--argue that Rule XXII is unconstitutional 
     because it binds future Senates to rules made by a past 
     Senate. ``It is an ancient principle of Anglo-American law 
     that one legislature cannot bind a succeeding legislature,'' 
     Steven Calabresi of Northwestern Law School, told the Senate 
     last week.
       Catholic University's Douglas Kmiec made a similar point on 
     this page in March, and Lloyd Cutler, White House Counsel to 
     Presidents Carter and Clinton, wrote in 1993 that ``the 
     Senate rule requiring a super-majority vote to cut off debate 
     is unconstitutional.'' Vice Presidents Nixon, Humphrey and 
     Rockefeller, while presiding over the Senate, have all held 
     that Senate rules can be changed by a simple majority.
       If the current Senate did that with Rule XXII--obtain a 
     majority vote to change the cloture rules for nominations--
     Vice President Cheney would presumably agree. That would 
     leave the Democrats with the option of going to court, where 
     the Supreme Court could take the case or, more likely, decide 
     it was a political dispute best left to the Senate to 
     resolve. The President's nominees would be seated.
       We've said it before, but it's worth repeating that the 
     Democrats' judicial filibusters are unprecedented in Senate 
     history. Filibustering nominations wasn't even permitted 
     until 1949 and the sole judicial nominee stopped by a 
     filibuster was Abe Fortas, LBJ's nominee for Supreme Court 
     Chief Justice, who faced charges of corruption. Meanwhile, 
     the Democrats are just warming up. A third appeals-court 
     filibuster looks likely this spring, and a Supreme Court 
     filibuster could be next if there's a vacancy this summer.
       The system for confirming judges is clearly broken. 
     Democrats are playing politics with Senate rules, but they 
     now profess shock and outrage that Republicans want to play 
     politics too and reform the filibuster rules being abused. 
     Sounds to us as if Republicans are on to something.
                                  ____


     [From the Wheeling News Register Intelligencer, Sept. 8, 2003]

                  Time for Filibuster Rules To Change

       Miguel Estrada, whose nomination to the U.S. Court of 
     Appeals was bottled up by hyper-partisan Democratic 
     opposition for more than two years, decided to get on with 
     his life and withdrew himself from the nomination process.
       It should not have shocked Republicans to see their liberal 
     colleagues play hardball on judicial nominations. Democrats 
     have been doing it since the Reagan administration. Teddy 
     Kennedy and friends undoubtedly are astonished to encounter a 
     GOP Senate leadership so feckless that it has allowed them to 
     get away with imposing an extra-constitutional 60-vote 
     supermajority requirement on judicial nominations, by using 
     the filibuster technique to stall a vote on Estrada. It takes 
     60 votes to end a filibuster, and Senate leaders no less than 
     seven times mounted ``cloture'' votes to ``end debate,'' each 
     time coming up short.
       But they never forced Democrats to take to the Senate floor 
     to expound at length about their opposition to Estrada or any 
     of the several other nominees now subject to powder-puff 
     filibusters. All a senator need do these days is threaten a 
     ``filibuster,'' and--presto!--60 votes are required to 
     accomplish anything. The ``filibustering'' senators need not 
     worry about actually having to publicly defend their position 
     on the Senate floor.
       Yes, long gone are the scenes from Frank Capra films in 
     which senators lose their voices trying to keep the floor to 
     maintain filibusters.
       While Republicans have control of the Senate, they should 
     put an end to this practice that allows the will of the 
     minority to prevail without any effort being put into it.
       The practical effect of GOP leaders allowing the minority 
     to so easily impose a 60- vote supermajority means there's a 
     new set of litmus tests for the courts: No judge may be 
     confirmed unless he or she agrees with the Senate's left 
     wing.
       Now that there's nomination blood in the water, Republicans 
     can expect a lot more bare-knuckle torpedoing of President 
     Bush's judicial nominees unless Republicans are willing to 
     actually get a little political dirt under their fingernails. 
     And maybe even--gasp!--sacrifice an all-nighter on the Senate 
     floor by making the ``filibusterers'' actually filibuster. If 
     they want it badly enough, they should have to work for it.
                                  ____


              [From the Grand Forks Herald, Mar. 13, 2003]

                         Call End to Filibuster

                            (By Tom Dennis)

       Our View: Don't set a new constitutional standard of 
     demanding a supermajority vote.

[[Page 4292]]

       North Dakota's congressional delegation has to walk a 
     political tightrope. Sens. Kent Conrad and Byron Dorgan and 
     Rep. Earl Pomeroy are Democrats, while North Dakota itself 
     trends heavily Republican. The GOP's supermajorities in both 
     houses of the state Legislature, plus the fact that voters 
     chose Republicans for president in 1992, 1996 and 2000, 
     illustrate this.
       But the delegation not only has walked that tightrope, it 
     has done handstands and even an occasional flip. All three 
     members are masters of wrangling federal dollars for North 
     Dakota projects. Furthermore, they've chosen their party-line 
     issues with care, voting with the Democrats on the budget but 
     showing more independence on some social and environmental 
     issues.
       The Miguel Estrada filibuster in the Senate, however, may 
     change that perception.
       Because the filibuster is as nakedly partisan as an issue 
     gets.
       Estrada is President Bush's candidate for the District of 
     Columbia Circuit Court of Appeals. He's a Harvard Law School 
     graduate who clerked for a Supreme Court justice, worked in 
     the U.S. Solicitor General's office, argued cases in front of 
     the Supreme Court, earned the top ranking of ``well 
     qualified'' from the American Bar Association--and didn't 
     speak English when he immigrated to the United States from 
     Honduras, to boot.
       Fifty-five senators (including four Democrats) support his 
     nomination. But the other 45 Senators won't let it come to 
     the floor for a vote. They've invoked a filibuster. They say 
     they're doing it because Estrada hasn't answered enough 
     questions, but that's patently false. Senators know as much 
     or more about Estrada as they have about most nominees. 
     Furthermore, when given the chance to ask Estrada more 
     questions in writing, not one Democratic senator took the 
     administration up on its offer.
       No, the transparent reason for the filibuster is that 
     Estrada's a conservative Hispanic lawyer who has a shot at 
     being named to the U.S. Supreme Court.
       And for the left wing of the Democratic party, that's do-
     or-die unacceptable.
       Conrad and Dorgan should distance themselves from this 
     scorched-earth tactic. The Constitution gives the president 
     the power to appoint ``with the Advice and Consent of the 
     Senate . . . Judges of the supreme Court and all other 
     Officers of the United States.'' It does so in the same 
     paragraph in which it lists a special power demanding a two-
     thirds majority Senate vote--namely, the power to ratify 
     treaties.
       The Founding Fathers could have held judicial confirmations 
     to that higher standard. But they didn't. Clearly, they 
     intended judges to be confirmed by a simple Senate majority. 
     Just as clearly, 200 years of Senate practice call for the 
     same thing.
       The GOP won its Senate majority fair and square. The 
     filibustering Democrats smack of being spoilers when they 
     obstruct majority rule, especially because their objection in 
     this case is not based on truth, justice or the American way, 
     but on politics.
       Fifty-five duly elected United States senators are willing 
     to give Estrada the nod. That's enough.
       Let his nomination come to the floor, and call the vote.
                                  ____


           [From the Buffalo News (New York), Mar. 19, 2003]

           Let's Change Rules That Hang Up Judicial Nominees

       Senate rules are an important part of American political 
     tradition, worthy of respect. Ditto for the constitutional 
     process by which the Senate confirms federal judges. The 
     abuse of one must not be allowed to undermine the other. But 
     that is precisely what is happening. No matter which party 
     controls the Senate gavel, when it comes to confirming 
     judges, those in power too often behave reprehensibly.
       Senators grandstand and play games. They distort nominees' 
     records and views, misrepresent their positions and malign 
     them with words like ``extremist.'' It is no wonder there is 
     such a high number of judicial vacancies at the federal 
     level. . . .
       The system is flat broken. And, finally, last week, thank 
     goodness, someone said so. President Bush is justifiably 
     upset at how Democrats have abused the filibuster to thwart 
     the nomination of Miguel Estrada. . . .
       Now the president proposes something drastic: amend the 
     Senate rule book to require that, no matter which party 
     controls the White House or Senate, all federal judicial 
     nominees get an up-or-down vote. The practical application 
     would be to eliminate the filibuster with regard to judicial 
     nominees. Wow. It's not every day the president wants to 
     tinker with Senate tradition. . . . Thank goodness.
       But the status quo is unacceptable. If Democrats have other 
     ideas, let's hear them. If not, Americans should push the 
     Senate to embrace Bush's suggestion. . . .
                                  ____


               [Las Vegas Review Journal, June 20, 2003]

                           Advice and Consent

       Has the fact that presidents of the United States appoint 
     the justices of the U.S. Supreme Court now become such an 
     obscure factoid that it's about to be relegated to an answer 
     in the new edition of ``Trivial Pursuit''?
       Apparently the Democrats think so.
       Since the nation's founding document says the president 
     ``shall nominate, and by and with the advice and consent of 
     the Senate, shall appoint judges of the Supreme Court,'' 
     Democratic Sen. Patrick K. Leahy of Vermont, on behalf of 
     fellow Senate Judiciary Committee member Charles E. Schumer 
     of New York and others, wrote to the president on June 11, 
     offering to help Mr. Bush choose his next high court 
     ``nominee or nominees.'' There is speculation that one or 
     more member of the current court may step down after the 
     current term.
       The offer sounds conciliatory on its face--after all, 
     wouldn't it be better for everyone to get together and choose 
     a consensus candidate beforehand, rather than subject a 
     string of nominees to hostile questioning and ultimate 
     rejection on political grounds?
       The ``advice and consent'' clause might indeed lend itself 
     to such a novel reading--if the Senate were overwhelmingly 
     held by a party diametrically opposed to the president's 
     philosophical leanings.
       But if this has never been the procedure in times when the 
     government was thus implacably divided, why on earth should 
     it be adopted now? It's not as though Sens. Leahy, Schumer 
     and Barbara Boxer of California represent the majority in the 
     U.S. Senate. In fact, their current efforts to bottle up Mr. 
     Bush's fully qualified appellate court nominees appear 
     desperate and divisive precisely because most of those 
     nominees would be quickly confirmed if an open vote were 
     allowed on the Senate floor--precisely as the founders 
     intended.
       Rather, a small minority of these aging warhorses of the 
     failed policies of Lyndon Johnson's Great Society now use the 
     arcane and Byzantine rules of the Senate to keep those 
     nominations from coming to the floor.
       ``I am astounded by those letters. Does Charles Schumer 
     think he is the president?'' law professor John Eastman told 
     The Los Angeles Times.
       Of course, there's a knife concealed in the folds of the 
     Democrats' proffered ``gift.'' The implication is that--if 
     they are not given this extraordinary power to hand the 
     president their own list of suitably liberal nominees, or to 
     strike names of known constitutionalists off any list the 
     president may have in hand--they might even filibuster a 
     nomination to the Supreme Court.
       Wisely, Mr. Bush has now called that bluff.
       White House counsel Alberto R. Gonzales replied in a letter 
     to Senate Democrats Wednesday that, ``If a Supreme Court 
     vacancy arises during his presidency, President Bush will 
     nominate an individual of high integrity, intellect and 
     experience,'' whereupon ``the Senate will have an opportunity 
     to assess the president's nominee and ... to vote up or 
     down.''
       Will the last ponderous graybacks of the New Dealers' aging 
     herd squander their remaining political capital attempting a 
     last hurrah--lining up for a first-in-history filibuster 
     designed to prevent the entire Senate from voting on the 
     confirmation of a chief justice? It would be interesting to 
     watch them try.
                                  ____


           [From the San Diego Union Tribune, Sept. 8, 2003]

     Battle Over Judges--With Estrada Out, Senate Must End Turmoil

       The battle between Democrats and Republicans in the Senate 
     over President Bush's judicial nominees may be the stuff of 
     interesting politics. But while this continuing controversy 
     makes for a potentially potent campaign issue, it makes for 
     bad government. After last week's withdrawal of Miguel 
     Estrada for consideration to the U.S. Circuit Court of 
     Appeals, antagonism in the Senate is only likely to grow.
       Estrada, nominated to the appeals court more than two years 
     ago, had become the focal point of the controversy because 
     Democratic senators had used the filibuster seven times to 
     block votes by the full Senate on his nomination. If the 
     Senate had been allowed to vote on Estrada's nomination, a 
     majority would have confirmed him. But under Senate rules, 60 
     votes are needed to break a filibuster in the 100-member 
     chamber. The motions to end the filibuster never received 
     more than 55 votes.
       In addition to Estrada, Democrats have blocked the 
     nominations of Alabama Attorney General William Pryor to the 
     11th U.S. Circuit Court of Appeals, which sits in Atlanta, 
     and of Texas Supreme Court Justice Priscilla Owens to the 5th 
     Circuit, which sits in New Orleans. Other filibusters are 
     likely, including one over Bush's appointment of Los Angeles 
     Judge Carolyn Kuhl to the 9th Circuit Court of Appeals, which 
     covers California and other Western states and territories.
       But while Republicans put forth strong and justifiable 
     arguments over Democratic abuse of the filibuster, which 
     allows a minority to thwart the will of the majority, 
     antagonism over judicial nominees did not start with 
     President Bush's nominees. While one could go back to 
     President Reagan's 1987 nomination of Robert Bork to the U.S. 
     Supreme Court and his ultimate rejection by a Democratic 
     Senate, the real battle started during the Clinton 
     administration. During those years, even single senators, 
     using a ``blue

[[Page 4293]]

     slip,'' could block nominees. At least two nominees to the 
     court on which Estrada was to sit were blocked in this 
     manner.
       Overall, nominees during the first three years of the Bush 
     administration and the first three years of the Clinton 
     administration have been confirmed at about the same rate. So 
     far, the Senate has confirmed 145 of Bush's appointments, 27 
     of them to the appeals courts, even though the discourse has 
     grown more strident.
       In the interest of good government, a few senators have 
     talked of possible compromise, but nothing workable has yet 
     been put forward. Any compromise obviously would have to 
     involve the White House, and so far both the administration 
     and senators from each party are standing their ground.
       But what's at stake here is the independence of the federal 
     judiciary and the public's respect for that branch's 
     interpretation of the laws Congress passes and the president 
     signs. If the Senate continues to fight over nominees, and 
     nominees are viewed as more political, there is a danger that 
     the public perception of judges who are eventually seated 
     could be tarnished. That would be disastrous for our system 
     of law and order. For this reason, and for others, both sides 
     must end this rancor.

  Mr. HATCH. These may be their reasons, but there are no excuses. At 
the mere suggestion of abandoning the Senate's tradition regarding 
judicial nominations when President Clinton was in office, former 
Democratic Leader Tom Daschle said, ``I find it simply baffling that a 
Senator would vote against even voting on a judicial nomination.'' That 
should be our response today as Senators on both sides of the floor.
  Last week here on the Senate floor, the distinguished Senator from 
West Virginia made his case against returning to Senate tradition 
regarding judicial nominations. I respect him. I have a lot of regard 
for him, but I have to confess I was surprised that someone with such 
knowledge of the traditions and rules of this body would appear so 
willing to abandon tradition.
  He equated the filibuster with the Senate itself. He equated 
filibustering judicial nominations with filibustering legislation and 
concluded that returning to our tradition regarding judicial 
nominations would be an attack on the Senate somehow. I would like to 
address each of these elements because I do not believe they can 
withstand fair scrutiny.
  First, my friend from West Virginia argued that the Senate was 
designed from its very inception as a place of absolutely unfettered 
and completely unlimited debate. As such, he argues, any limitation of 
debate strikes at the very heart of the institution itself. Yet in the 
second volume of his own history of the Senate, he writes on page 115:

       It is apparent that the Senate in the First Congress 
     disapproved of unlimited debate.

  The original rule IV prohibiting a Senator from speaking more than 
twice in any one debate on the same day without leave of the Senate 
remains in only slightly modified form as our rule XIX today. Even more 
significantly, rule VIII in the first Senate provided for a majority to 
proceed to a vote by calling the previous question.
  Coupled with the Founders' expressed commitment to majority rule, 
these facts demonstrate that even with regard to legislation, the 
possibility of preventing final action through extended debate was not 
created by original design. It arose by default through dropping that 
previous question rule in 1806.
  It would still be decades before Senators who sought to protect the 
institution of slavery would discover they could use this procedural 
loophole to their advantage and, of course, the filibuster was born. 
Its twin, however, was a parallel and ongoing effort at filibuster 
reform by which we have actively sought properly to balance the 
minority's right to debate and the majority's right to decide. The 
solution we seek today is part of that ongoing effort.
  The Senator from West Virginia next equated filibusters of judicial 
nominations with filibusters of legislation. His policy arguments in 
favor of the filibuster, however, apply only to the legislative 
process. He said, for example, that without the filibuster ``there 
exists no leverage with which to bargain for the offering of an 
amendment. All force to effect compromise between the parties will be 
lost.''
  I note that in previous debates about filibuster reform, such as in 
1975, Democrats, such as the senior Senator from Massachusetts, Mr. 
Kennedy, offered this very same argument against the filibuster. Still, 
this notion obviously applies where the Senate either fashions or 
effects legislation, but it is irrelevant to nominations.
  The Senator from West Virginia has long been this Chamber's leading 
expert on our history and procedure. For that I compliment him. For 
this reason, though, I was disappointed that he would fail to make such 
an important distinction between legislative and judicial nomination 
filibusters, a distinction based on both historical fact and 
constitutional principle. In other words, there is a difference between 
the legislative calendar and the executive calendar in the Senate.
  The Senator from West Virginia is not the first in the debate over 
these new judicial nomination filibusters failing to make this critical 
distinction. Other Democratic Senators, for example, want to use the 
cup-and-saucer analogy by which George Washington allegedly described 
pouring hot action from the House cup to cool in the deliberation of 
the Senate saucer.
  As Jeffrey Toobin's recent analysis in the New Yorker magazine points 
out, however, not only is this story probably apocryphal, but the 
supposed exchange between Washington and Jefferson specifically focused 
on, you got it, legislation. In fact, that is the only context in which 
it makes any sense. If they said it at all, they were talking about the 
relationship between the two Houses within the legislative branch, not 
the relationship between the legislative and executive branches.
  The distinction between legislative and judicial filibusters is a 
matter of historical fact. Every example offered last week by my friend 
from West Virginia involved legislation. He opened and closed his 
speech by evoking scenes from the classic film ``Mr. Smith Goes to 
Washington.'' I went back and checked the script. Senator Jefferson 
Smith in that movie, played by the great Jimmy Stewart, filibustered an 
appropriations bill. That is legislation.
  The example the Senator from West Virginia said was most relevant--
President Franklin Roosevelt's proposal to reorganize the judiciary--
was also, you got it, legislation. That example is actually not 
relevant at all, however, because that 1937 legislation was not 
defeated by a filibuster. The most definitive study of President 
Roosevelt's plan by Mary McKenna concludes that it did not have 
majority support in the Senate at all. There was no need for a 
filibuster. Rather than the majority being stymied in its attempt to 
pass the bill, the majority--and an overwhelming majority at that--sent 
it back to committee.
  To my knowledge, no Senators are today calling for an end to the 
legislative filibuster as a group of Democratic Senators did a decade 
ago. Nine of them, led by the Senator from Iowa, Tom Harkin, and the 
Senator from Connecticut, Joseph Lieberman, serve in this body today. 
They argued back then that all filibusters, including those of 
legislation, unconstitutionally infringe on majority rule. The two 
Senators from Massachusetts, Edward Kennedy and John Kerry, along with 
the Senator from California, Barbara Boxer, the Senator from New 
Jersey, Frank Lautenberg, the Senator from Maryland, Paul Sarbanes, the 
Senator from New Mexico, Jeff Bingaman, and the Senator from Wisconsin, 
Russ Feingold, voted against tabling that proposal.
  I find it simply baffling that Senators who once supported abolishing 
the Senate tradition of legislative filibusters would today support 
establishing a tradition of judicial nomination filibusters--in other 
words, filibusters of nominees by the President on the executive 
calendar, not the legislative calendar.
  Ignoring the distinction between legislative and judicial nomination 
filibusters is necessary for the argument of the Senator from West 
Virginia, as evidenced when he asked:

       If we restrain debate on judges today, what will be next?

  Yet for more than a century, filibusters of legislation coexisted 
nicely with

[[Page 4294]]

our tradition of giving up-or-down votes to judicial nominations that 
reach the Senate floor.
  Our experience under the current version of rule XXII shows that 
these two traditions can peacefully coexist. That rule, by the way, was 
born in 1917 after a filibuster of legislation. We have had the current 
version of rule XXII since 1975. From 1975 to 2002, the 94th Congress 
through the 107th Congress, only 3 percent of cloture votes were 
judicial nominations; 85 percent of those cloture votes passed, and all 
nominations subject to cloture votes were confirmed.
  During the 108th Congress, 49 percent of cloture votes were on 
traditional nominations. None of them passed, and none of the 
nominations were confirmed.
  I must say, with all due respect to my dear friend from West 
Virginia, that using the filibuster to defeat majority-supported 
judicial nominations has not been part of even modern Senate practice, 
let alone historic Senate tradition.
  Let me repeat that. Using the filibuster to defeat majority-supported 
judicial nominations has not been part of even modern Senate practice, 
let alone historic Senate tradition.
  In his op-ed piece in the Washington Post last week, the Senator from 
West Virginia ignored our tradition regarding judicial nominations in 
another way. He argued that by preventing a confirmation vote through a 
filibuster, the Senate had formally rejected these judicial 
nominations. How can it be a rejection of judicial nominations when a 
majority of Senators supports confirmation of each one of those people? 
Each nominee on whom cloture was not invoked remained on the Senate's 
executive calendar. Our own rule XXXI states that nominations that are 
``neither confirmed nor rejected'' shall be returned to the President. 
Each of those filibustered nominations was, indeed, returned to the 
President when the 108th Congress adjourned. By definition, common 
sense, and our own rules, that means they were not rejected. My friend 
from West Virginia cannot on the one hand claim these nominations were 
rejected but on the other hand claim that these filibusters are about 
deliberation and debate.
  Legislative and judicial nomination filibusters are different as a 
matter of historical fact because they are different as a matter of 
constitutional principle. Legislation belongs to the legislative branch 
under article I of our Constitution, while nomination and appointment 
belong to the President under article II. In Federalist No. 65, 
Alexander Hamilton wrote that the President would be the ``principal 
agent'' in appointments. The Senate has an important role of advice and 
consent that checks the President's appointment power, but we do not 
control the executive process any more than the President controls the 
legislative process. We recognize the difference between legislative 
and executive business when we leave legislative session and proceed to 
executive session to address nominations we have placed on the 
executive calendar. My friend from West Virginia, I think, ignored 
those differences.
  Interacting with the executive branch is simply not the same as 
interacting within the legislative branch. And thus it would seem 
almost self-evident that procedures we use regarding our authority over 
legislation might not be appropriate when we affect the President's 
authority over appointments. We must preserve our tradition that 
recognizes this constitutional distinction between the executive and 
legislative branches, between our role of advice and consent on 
judicial appointments, and our authority over legislation.
  The Senator from West Virginia, in my opinion, used an unfortunate 
analogy in attacking those who would return the Senate to its 
confirmation tradition regarding judicial nominations. Others, such as 
the Anti-Defamation League, have strongly objected to his reference to 
Hitler's Nazi regime for various reasons. My point here is not that. It 
is different. I object to his claim that returning to our tradition 
regarding judicial nominations would be an example of ``how men with 
motives and a majority can manipulate law to cruel and unjust ends.'' 
There is nothing cruel or unjust about the Senate returning to our 
traditional advice and consent role regarding judicial nominations.
  The Constitution gives the Senate the authority to determine our 
procedural rules. It was pursuant to that authority that the Senate 
dropped the previous question rule in 1806, adopted a cloture rule in 
1917, and amended that rule several times since.
  It was also pursuant to that authority that the Senator from West 
Virginia aggressively used various strategies to change Senate 
procedures when he served as majority leader of this body. This 
includes approaches currently under discussion, such as seeking a 
ruling from the Senate's Presiding Officer. Though the Senator from 
West Virginia last week said such an approach would abandon the ``cloak 
of legality,'' it would simply be following a procedural path that he 
himself blazed. I was here for part of that.
  The Senator from West Virginia said this approach ``seeks to alter 
the rules by sidestepping the rules, thus making the impermissible the 
rule.''
  Yet the Senate operates on the basis of parliamentary precedents and 
traditions, as well as by our standing rules, a history my friend from 
West Virginia helped shape and has been recognized as helping shape 
those rules.
  In 1977, for example, the Senator from West Virginia made a point of 
order that once cloture has been invoked, the Presiding Officer must 
rule dilatory amendments out of order. One Senator criticized this 
strategy as trying to change Senate rules by majority vote during the 
heat of the debate. That criticism sounds an awful lot like the 
criticism the Senator from West Virginia leveled last week against 
those who might take the same approach today. Nonetheless, the strategy 
succeeded when the full Senate tabled an appeal of the Presiding 
Officer's ruling in favor of the distinguished Senator from West 
Virginia.
  In 1979, the Senator from West Virginia introduced Senate Resolution 
9 to make various changes to rule XXII. He argued that notwithstanding 
rule XXII's cloture requirement for rules changes, a simple majority 
could change Senate rules at the beginning of a new Congress. He was 
right. The current Senate, he argued, is not bound by the dead hand of 
the past Senate. He threatened that if the Senate did not come to a 
time agreement for considering his resolution, he would attempt to 
proceed by seeking a parliamentary ruling.
  Also in 1979, the Senator from West Virginia made a point of order 
that the Presiding Officer, rather than the Senate, as required under 
our rule XVI, ruled nongermane certain amendments to appropriations 
bills.
  As in 1977, that strategy worked when the Senate tabled an appeal of 
the Presiding Officer's ruling in favor of the Senator from West 
Virginia. In 1980, the Senator from West Virginia also secured a 
helpful parliamentary precedent but from a different procedural 
direction. He wanted to achieve confirmation for an individual nominee 
on the Executive calendar.
  At that time, while a motion to go into executive session was not 
debatable, a subsequent motion to proceed to a specific item on the 
Executive calendar was debatable. On March 5, 1980, the Senator from 
West Virginia made a single motion for the Senate both to go into 
executive session and to proceed to a specific nomination. When the 
Presiding Officer sustained a point of order against this motion, one 
Senator criticized this attempt to change procedure by majority vote. 
Nonetheless, the Senator from West Virginia appealed the Presiding 
Officer's ruling, which was his right to do, and the Senate overturned, 
supporting the distinguished Senator's majority rule change.
  This strategy might be described by some, using the Senator from West 
Virginia's words last week, as altering the rules by sidestepping the 
rules. It certainly limited what he now insists would be unfettered and 
unlimited debate.

[[Page 4295]]

  In 1987, the Senator from West Virginia secured a parliamentary 
precedent that obviously dilatory requests by Senators to be excused 
during a rollcall vote were out of order. This applied the same 
strategy he had used in 1977, getting the Presiding Officer to rule 
dilatory tactics out of order, in a new context. Each of these examples 
has similarities and differences with the current situation.
  I offer this detail only to demonstrate that Senate procedures have 
been changed through parliamentary rulings as well as by formal 
amendments to the rules themselves. As my friend from West Virginia has 
demonstrated by pursuing each of these strategies himself, the Senate 
can exercise its constitutional authority to determine its procedural 
rules either way.
  He may certainly believe that the changes he sought were warranted 
while the change we may seek today is not. That is his right, and he 
can express that right in debate by voting against such a change. But 
that difference of opinion does not make his attempts to limit debate, 
even on legislation, right and just while any attempt to do so today on 
judicial nominations cruel and unjust.
  We departed from our tradition of giving judicial nominations 
reaching the Senate floor an up-or-down vote only 2 years ago. The 
result has been the Senate's inability to do its constitutional duty of 
providing advice and consent regarding judicial nominations. We were 
able to give advice, I presume, but with regard to these 10 nominees we 
were never able to give consent or not consent, whichever the case may 
be. And that is done by a vote up and down. It demonstrates that the 
confirmation process is, in the words of the Washington Post, 
``steadily degrading.''
  Returning to that tradition of giving up-or-down votes for judicial 
nominations will not in the long run mean either party will always get 
its way. Both the executive branch and the Senate do change partisan 
hands from time to time. This standard, this tradition, knows no party 
and guarantees no partisan advantage. It applies no matter which party 
occupies the White House or which party controls the Senate. It would 
bind Republicans as well as Democrats and preserve our institutional 
traditions. I hope and believe, however, that restoring this tradition 
will, despite some Senators' threats to blow up the Senate, help 
restore some comity and good will to this body.
  Returning to that tradition, which recognizes the difference between 
our authority over legislation and the President's authority over 
appointments, is not an attack on the Senate; rather, it affirms our 
traditions and the Senate's unique place in our system of separated 
powers. Returning to it both respects the President's authority over 
appointments and asserts the Senate's role of advice and consent, not 
just advice but consent as well.
  A majority of Senators have been deprived of the right to give or not 
give consent by these irresponsible filibusters of judicial nominations 
on the Executive calendar. The deviation we have seen from that 
tradition, wherein a filibuster prevents confirmation of nominees with 
majority support, undermines the President's authority and distorts the 
Senate's role. Preserving both of our traditions--extended debate 
regarding legislation and up-or-down votes on judicial nominations 
reaching the Senate floor--will restore the proper balance.
  There is nobody in this body who respects the distinguished Senator 
from West Virginia more than I do. I hope we can resolve these matters 
so both parties are bound by the correct tradition that we are not 
going to filibuster executive branch nominees and we will both preserve 
the right to filibuster over the matters we totally control on the 
legislative calendar. I would fight to my death to preserve rule XXII 
on legislation because I have also been in the minority from time to 
time, and it was the only way we could stop some things which would 
have been just terrible for this country. But there is a difference 
between the legislative calendar and the Executive calendar.
  I respect my colleague from West Virginia. I can truthfully say I 
love him because he has been a strong force around here for years, but 
I hope he will look at some of these examples I have given and some of 
these thoughts I have and help us stop this impasse that is occurring 
in the Senate, not by preferring one party over the other but by 
binding both parties to treat Presidential nominations with the respect 
they deserve.
  I have to say I never quite concentrated on this enough until these 
judicial nominations were filibustered in 2003 and 2004. I myself am to 
blame for not having thoroughly studied this until these problems 
arose, but I have now studied it. I believe it would be far better for 
our Senate to get rid of these animosities and threats to have nuclear 
warfare and bind both the Republicans and the Democrats in the Senate 
to do what is right, to give a vote up or down, so that we can not only 
give advise but consent as well.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, what is the time that I have under the 
order?
  The PRESIDING OFFICER. The minority controls 14 minutes.
  Mr. BYRD. Madam President, I ask unanimous consent that my time may 
be extended to a total of 35 minutes and that the final 5 minutes be 
under the control of the distinguished Senator from Delaware, Mr. 
Carper.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. BYRD. I thank the Chair.

                          ____________________