[Congressional Record (Bound Edition), Volume 151 (2005), Part 5]
[Senate]
[Page 6989]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             NUCLEAR OPTION

  Mr. DORGAN. Mr. President, on another subject, this morning I read 
some very troubling comments by a member of the House leadership, on 
the subject of judges. I normally would not comment about remarks made 
by a member of the House, but we face in the Senate the prospect of 
what some are calling the nuclear option. This relates to an attempt by 
an arrogant majority to violate the rules of the Senate, in order to 
change the rules with respect to the confirmation of judicial 
nominations. Because of the real possibility that this so-called 
nuclear option will be exercised, I wish to react to some of these 
things that have been said about judges.
  Judges serve for a lifetime. There are two steps to put a judge on 
the bench for a lifetime. One, the President must nominate. Second, the 
Senate advises and consents. In other words, the Senate decides whether 
it agrees a judge is fit for service for a lifetime.
  It is not unusual for the Senate to decide that a judicial nominee by 
a President should not go forward. In fact, that happened to America's 
first President, George Washington. He lost one of his judicial 
nominations.
  The Senate has approved 205 out of 215 Federal judicial nominations 
sent to us by President Bush. Because we have only approved 205 out of 
215, which is 95 percent-plus, because there are a few who we have 
selected who we would not want to confirm, there are those who speak of 
changing the Senate rules, and to do so by violating the Senate rules. 
That is called the nuclear option.
  What is the origin of all of this? Some of it has been described in 
stark terms by colleagues in the Congress. It is that they would like 
to define what good behavior means for judges. They do not agree with 
some judicial rulings, so they want to impeach Supreme Court Justices.
  They must have missed that course in high school and college that 
talked about checks and balances, as well as the course that talked 
about separation of powers. Some in the Congress believe the judiciary 
ought to report to them and believe America's judiciary ought to 
conform to their interests, to their notions, of how to read our 
Constitution.
  It reminds me again that there is a very big difference between an 
open mind and an empty head when I hear people talking about how we 
must find ways to get the Federal judiciary to bend to the will of the 
Congress. That is exactly what our Framers did not intend to have 
happen.
  Let me say again, we have confirmed 205 of 215 requested lifetime 
appointments to the Federal bench offered to us by this President. That 
is an incredibly good record. But because 10 have not been confirmed--
because this Congress has decided not to be a rubberstamp for lifetime 
appointments on the Federal bench--we have some who have decided they 
want to break the Senate rules in order to change the Senate rules. I 
read in today's papers we have others who are deciding they would like 
to take a crack at impeaching Federal judges and bend the Federal 
judiciary to the will of the majority here in the Congress.
  I think it is arrogant and I think it is dangerous and I think most 
of the American people would believe the same.
  I hope, as we proceed in the coming days, there will be some sober 
reflection among those who understand the roles of those in this 
institution and the judiciary, who understand the separation of powers, 
and who understand checks and balances. If that is the case, those who 
now talk about the so-called nuclear option will rethink their 
position.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.

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