[Congressional Record (Bound Edition), Volume 151 (2005), Part 5]
[Senate]
[Pages 6723-6725]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, I am going to speak on another matter. We 
have learned that those who are intent on forcing confrontation, 
breaking the Senate rules, and undercutting our democratic checks and 
balances plan to take their previous outrageous allegations of 
religious McCarthyism one step further and accuse Democrats of being 
``against people of faith'' because we object to seven--seven--of the 
President's more than 200 judicial nominations.
  If you followed the sick logic of this venom being spewed by some of 
the leaders in this Chamber, we would have to say that 205 judicial 
nominees forwarded by the President, whom the Democratic Senators have 
helped to confirm, would seem not to be people of faith, even though 
that is as false and ridiculous on its face as is the charge leveled at 
Democratic Senators.
  This disgusting spectacle, this smear of good men and women as 
``against faith'' is expected to happen, in of all places, a house of 
worship, according to a front-page article last week in the New York 
Times. It will involve twisting history, as well as religion, because 
according to the report, those involved will claim that Democratic 
Senators are using the filibuster rule to keep people of faith off of 
the Federal bench.
  This slander is so laden with falsehoods, so permeated by the smoke 
and mirrors of partisan politics, and so intertwined with one man's 
personal political aspirations that it should collapse of its own 
weight. But too many who should speak out against it remain silent.
  Republicans on the Senate Judiciary Committee began blatantly to 
invoke obscene accusations like this one earlier in the Bush 
administration. They hurled false charges against Senators saying they 
were anti-Hispanic or anti-African American, anti-woman, anti-religion, 
anti-Catholic, and anti-Christian for opposing certain judicial 
nominees.
  They never bothered to mention the same Senators who were making 
these slanderous statements had blocked, themselves, many, many, many--
over 60--Hispanics, women, certainly people of faith. And they never 
bothered to say the Senators they were slandering had supported 
hundreds of nominees, including Hispanics, African Americans, women, 
and people of faith--Catholic, Christian, and Jewish. They never 
hesitated to stoke the flames of bigotry, and to encourage their 
supporters to continue the smear in cyberspace or on the pages of 
newspapers or through direct mail.
  Actually, to the contrary, they seemed to like the way it sounded. 
Maybe it tested well in their political polls. Now they have decided to 
up the ante on such ``religious McCarthyism,'' as a way to help them 
tear down the Senate and do away with the last bastion against this 
President's most extreme judicial nominees. It is crass demagoguery, 
and it is fueled by the arrogance of power.
  They now seek to make a connection between the dark days of the 
struggle for civil rights, when some used the filibuster to try to 
defeat equal rights laws, and the situation we find ourselves in today 
when the voice of the minority struggles to be heard above the 
cacophony of daily lies and misrepresentations. This tactical shift 
follows on the rhetorical attacks aimed at the judiciary over the past 
few weeks in which Federal judges were likened to the KKK and ``the 
focus of evil.''
  In the last few weeks, we have heard that, at an event attended by 
Republican Members of the Congress, people called for Stalinist 
solutions to problems, referring to Joseph Stalin's reference to 
killing people he disagreed with, and calling for mass impeachments. 
Wouldn't you think the Members of Congress, who have taken an oath to 
uphold the Constitution, would speak up or at least leave with their 
heads bowed in shame, instead of, apparently, enjoying it?
  Last week, the Senate Democratic leadership called upon the President 
and the Republican leadership of Congress to denounce these 
inflammatory statements against judges. This week, I renew my call to 
the Republican leader and, in particular, to Republican moderates, to 
denounce the religious McCarthyism that is again pervading their side 
of this debate.
  I ask my friends on the other side of the aisle to follow the brave 
example of one of Vermont's greatest Senators, Republican Ralph 
Flanders. Senator Flanders recognized a ruthless political opportunist 
when he saw one. He knew Senator Joseph McCarthy had exploited his 
position of power in the Senate to smear hundreds of innocent people 
and win headlines and followers, and campaign contributions, with his 
false charges and innuendo, without regard to facts or rules or human 
decency.
  Senator Flanders spoke out during this dark chapter in the history of 
this great institution. He offered a resolution of censure condemning 
the conduct of Senator McCarthy. Now, in our time, a line has again 
been crossed by some seeking to influence this body. I ask my friends 
on the other side of the aisle to follow Senator Flanders' lead in 
condemning the crossing of that line.
  I have served with many fair-minded Republican Senators. I am 
saddened to see Republican Senators stay silent when they are invited 
to disavow these abuses. Where are the voices of reason? Will the 
Republicans not heed the clarion call that Republican Senator John 
Danforth sounded a few weeks ago? And he is an ordained Episcopal 
priest. What has silenced these Senators who otherwise have taken 
moderate and independent stands in the past? Why are they allowing this 
religious McCarthyism to take place unchallenged? The demagoguery that 
is so cynically and corrosively being used by supporters of the 
President's most extreme judicial nominees needs to stop.
  Not only must this bogus religious test end, but Senators should 
denounce the launching of the nuclear option, the Republicans' 
precedent-shattering proposal to destroy the Senate in one stroke, 
while shifting the checks and balances of the Senate to the White 
House.
  I would like to keep the Senate safe and secure and in a ``nuclear 
free''

[[Page 6724]]

zone. Even our current Parliamentarian's office and our Congressional 
Research Service has said the so-called nuclear option would go against 
Senate precedent and require the Chair to overrule the Parliamentarian. 
Is this how we want to govern the Senate? Do Republicans want to 
blatantly break the rules for some kind of a short-term political gain?
  Just as the Constitution provides in Article V for a method of 
amendment, so, too, the Senate Rules provide for their own amendment. 
Sadly, the current crop of zealot partisans who are seeking to limit 
debate and minority rights in the Senate have no respect for the 
Senate, its role in our government as a check on the executive or its 
Rules. Republicans are in the majority in the Senate and chair all of 
its Committees, including the Rules Committee. If Republicans have a 
serious proposal to change the Senate Rules, they should introduce it. 
The Rules Committee should hold serious hearings on it and consider it 
and create a full and fair record so that the Senate itself would be in 
position to consider it. That is what we used to call ``regular 
order.'' That is how the Senate is intended to operate, through 
deliberative processes and with all points of view being protected and 
being able to be heard.
  That is not how the ``nuclear option'' will work. It is intended to 
work outside established precedents and procedures as explained by the 
Congressional Research Service report from last month. Use of the 
``nuclear option'' in the Senate is akin to amending the Constitution 
not by following the procedures required by Article V but by 
proclaiming that 51 Republican Senators have determined that every copy 
of the Constitution shall contain a new section or different words--or 
not contain some of those troublesome amendments that Americans like to 
call the Bill of Rights. That is wrong. It is a kind of lawlessness 
that each of us should oppose. It is rule by the parliamentary 
equivalent of brute force.
  The recently constituted Iraqi National Assembly was elected in 
January. In April it acted pursuant to its governing law to select a 
presidency council by the required vote of two-thirds of the Assembly, 
a supermajority. That same governing law says that it can only be 
amended by a three-quarters vote of the National Assembly. Use of the 
``nuclear option'' in the Senate is akin to Iraqis in the majority 
political party of the Assembly saying that they have decided to change 
the law to allow them to pick only members of their party for the 
government and to do so by a simple majority vote. They might feel 
justified in acting contrary to law because the Kurds and the Sunni 
were driving a hard bargain and because governing through consensus is 
not as easy as ruling unilaterally. It is not supposed to be, that is 
why our system of government is the world's example.
  If Iraqi Shiites, Sunni and Kurds can cooperate in their new 
government to make democratic decisions, so can Republicans and 
Democrats in the United States Senate. If the Iraqi law and Assembly 
can protect minority rights and participation, so can the rules and 
United States Senate. That has been the defining characteristic of the 
Senate and one of the principal ways in which it was designed to be 
distinct from the House or Representatives.
  This week, the Senate is debating an emergency supplemental 
appropriations bill to fund the war efforts in Iraq and Afghanistan. 
The justification for these billions of dollars being spent each week 
is that we are seeking to establish democracies. How ironic that at the 
same time we are undertaking these efforts at great cost to so many 
American families, some are seeking to undermine the protection of 
minority rights and checks and balances represented by the Senate 
through our own history. Yet that is what I see happening.
  President Bush emphasized in his discussions earlier this year with 
President Putin of Russia that the essentials of a democracy include 
protecting minority rights and an independent judiciary. The Republican 
``nuclear option'' will undermine our values here at the same time we 
are preaching our values to others abroad.
  I urge Senate Republicans to listen carefully to what their leaders 
are saying, here in the Senate, and out across the country to their 
most extreme supporters. Consider what it is they are about to do and 
the language they use to justify it. Both are wrong. It would steer the 
Senate and the country away from democracy, away from the protections 
of the minority and away from the checks and balances that ensure the 
freedoms of all Americans.
  I would also like to talk for a moment about the independence of the 
judiciary. I have expressed my concern that members of Congress have 
suggested judges be impeached if they disagree with the judges' 
decisions. Republicans rushed through legislation telling federal 
judges what to do in the Schiavo case, and then criticized the judges 
when they acted independently, judges appointed by President Reagan, by 
former President Bush, and by President Clinton. They were all 
criticized for that, although there are still those who are saying we 
should impeach the judges, or as I mentioned earlier in my speech, one 
speaker at a recent conference, to the cheers of some suggested Joseph 
Stalin's famous ``No man. No problem'' solution, because he killed 
those who disagreed.
  I remember a group of Russian parliamentarians came to see me to talk 
about federal judiciary, and they asked, ``Is it true that in the 
United States the government might be a party in a lawsuit and that the 
government could lose?'' I said, ``Absolutely right.'' They said, 
``People would dare to sue the government?'' I said, ``We have an 
independent judiciary, yes, they could.'' They said, ``Well, if the 
government lost, you fire the judges, of course?'' I said, ``No, they 
are an independent judiciary.'' And I remember the discussion around 
the conference room in my office. This was the most amazing thing to 
them, that the people who disagreed with the government could actually 
go to a federal court or a state court, bring a suit there and seek 
redress even if it meant the government lost. Sometimes it wins, 
sometimes it loses. I was a government prosecutor. I know how that 
works. I think they finally understood that the reason we are such a 
great democracy is that we have an independent judiciary.
  I would call out to my friends on the other side of the aisle to stop 
slamming the federal judiciary. We don't have to agree with every one 
of their opinions but let's respect their independence. Let's not say 
things that are going to bring about further threats against our 
judges. We've had a lot more judges killed than we've had U.S. Senators 
killed for carrying out their duties. We ought to be protecting them 
and their integrity. If we disagree with what they've done in a case 
where we can pass a law and we feel we should, then pass a law and 
change it. Don't take the pot shots that put all judges in danger and 
that attack the very independence of our federal judiciary.
  We remember our own oath of office. Part of upholding the 
Constitution is upholding the independence of the third branch of 
government. One party or the other will control the presidency. One 
party or the other will control each House of Congress. No political 
party should control the judiciary. It should be independent of all 
political parties. That was the genius of the founders of this country. 
It is the genius that has protected our liberties and our rights for 
well over 200 years. It is the genius of this country that will 
continue to protect them if we allow it to. It would be a terrible 
diminution of our rights and it would be one of the most threatening 
things to our whole democracy if we were to remove the independence of 
our federal judiciary. That would do things that no armies marched 
against us have ever been able to do. None of the turmoil, the wars, 
all that we've gone through in this country has ever been able to do. 
If you take away the independence of our federal judiciary, then our 
whole constitutional fabric unravels.
  I will close with one little story. One day, years ago, on the floor 
of this Senate, there was an attempt, in a court-stripping bill, to 
remove jurisdiction of

[[Page 6725]]

the Federal courts because one Senator did not like a decision they 
came down with. It was decided if there had not been a vote by 4 
o'clock on a Friday afternoon, we would not vote on it. So three 
Senators took the floor to talk against it--myself, former Republican 
Senator, Lowell Weicker of Connecticut, and one other. We spoke for 
several hours, and the bill was drawn down.
  Now, I do not remember what the decision was of the Federal court.
  I may have agreed with it. I may have disagreed. I did not want to 
see us making the Senate into some kind of a supreme court that would 
overturn any decision we didn't like. On the way out, the third Senator 
came up to Lowell Weicker and myself and linked his arm in ours, and he 
said: We are the only true conservatives on this floor because we want 
to protect the Constitution and not make these changes.
  I turned to him and I said: Senator Goldwater, you are absolutely 
right.
  I was glad Barry Goldwater, Lowell Weicker, and I stood up for the 
Constitution, stood up for the independence of the Federal judiciary. 
It probably was unpopular to do so, but I think Senator Goldwater, 
Senator Weicker, and I all agreed it was the right thing to do.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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