[Congressional Record (Bound Edition), Volume 151 (2005), Part 6]
[Senate]
[Pages 7413-7417]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. REID. I understand we are in a period for morning business. I 
will use leader time.
  Mr. President, I have the greatest respect for my friend from South 
Dakota, but his assertion of facts is simply without foundation. When 
the Democrats took the majority in the Senate, I, along with others, 
said that this was not payback time; we were not going to treat the 
Republicans the way they treated us during the Clinton years. During 
those years, they did not have the decency even to have hearings for 
judicial nominations; they simply left them, 60 in number, in the 
committee. We thought that was inappropriate, and that is the reason 
during the time that President Bush has been President--we were in the 
majority, and we are now in the minority--we have approved 205 judges 
for President Bush and turned down 10, which is a pretty good record.
  For people to say there have not been judicial filibusters in the 
past is simply without historical foundation. In the early days of this 
Republic, there was no way to stop a filibuster. The only way one could 
stop a filibuster on judges or anything else was by virtue of agreeing 
to stop talking. Many judges were simply left by the wayside. They were 
talked out and they simply never came forward for a vote before the 
Senate.
  The most noteworthy filibuster of a judge that would require a vote 
that failed was in 1881. There was a filibuster of a judge that went to 
a vote. Prior to that time, they never even went to a vote.
  It was determined in the Senate in 1970 that it would be appropriate 
to figure out some way to break a filibuster--on judges, on Cabinet 
nominations, and on legislation. At that time the Senate changed its 
rules by a two-thirds vote and had filibusters broken, then, by 67 
votes. In the 1960s it was determined that was a burden that was no 
longer necessary, and it was changed to 60 votes. From that time to 
today, there has been the ability to break a filibuster by 60 Senators 
voting.
  There have been filibusters since that rule was changed in 1960, 
filibusters of judges. The most noteworthy, of course, was Abe Fortas. 
There was a filibuster, and there are wonderful statements in the 
Congressional Record by Howard Baker at that time, who extolled the 
virtues of the filibuster.
  During the time I have been in the Senate there have been filibusters 
of judges. I can name two that come to my mind: Berzon and Paez. We had 
a vote to break those here, on the filibuster. The majority leader 
voted against breaking those filibusters. So we have had votes on many 
occasions dealing with filibusters of judges. This is no new thing.
  What we have to keep in mind is that we, the legislative branch of 
Government, are separate but equal. That is what checks and balances 
are all about. The President should not have, from the Senate, a 
rubberstamp for everything he wants. We have the advise and consent 
clause in the Constitution and we have the obligation to look at these 
judges. We have approved 205 and turned down 10. For people to suggest 
that you can break the rules to change the rules is un-American.
  The only way you can change the rule in this body is through a rule 
that now says, to change a rule in the Senate rules to break a 
filibuster still requires 67 votes. You can't do it with 60. You 
certainly cannot do it with 51. But now we are told the majority is 
going to do the so-called nuclear option. We will come in here, having 
the Vice President seated where my friend and colleague from Nevada is 
seated. The Parliamentarian would acknowledge it is illegal, it is 
wrong, you can't do it, and they would overrule it. It would simply be: 
We are going to do it because we have more votes than you.
  You would be breaking the rules to change the rules. That is very un-

[[Page 7414]]

American. I ask my friends to look at what is going on in the press. In 
the Post today, David Broder, a nationwide columnist, talks about how 
bad it would be. Dick Morris, who certainly is no lapdog for the 
Democrats, has stated very clearly it would be the wrong thing to do. 
The political damage would be done to Republicans for many years to 
come.
  This is something we should work out. This is something that should 
not cause the disruption and dysfunction of our family, the Senate 
family. If this is done, the Senator from South Dakota is absolutely 
right; we will be working off the Democrats' agenda. We will let things 
go forward. Of course, we will let things go forward to take care of 
the troops and let us make sure the Government is funded. We are not 
going to do the Gingrich plan.
  But things around here work by unanimous consent. Maybe the majority 
wants an excuse not to complete business because most of their business 
is a little faulty anyway. But we have worked very hard and showed our 
good faith in the first quarter of this Congress. We have passed, for 
example, the class action bill; we passed the bankruptcy bill--both of 
which were 15 years in the making. These are bills the majority of the 
Senators on this side of the aisle opposed. But I thought it was 
appropriate that we do business the way we should be doing business: 
have people speak, debate the issue, and take your wins and losses as 
they come. We had a couple of losses. But the fact is, we believe the 
business of the Senate should be conducted in this manner.
  I do not know what is going to happen in the Foreign Relations 
Committee as it relates to Bolton, but the fact is, that is how things 
should be decided. They should debate publicly and openly and then make 
a decision as to whether he is good or bad for the United Nations. They 
are going to have some more hearings in that regard. I think that is 
appropriate. But to think that just because you do not get your way 
that you are going to change the rules is wrong.
  I have said once or twice on the Senate floor, when I was a little 
boy I took a big trip. My brother was 10 or 12 years older than I. He 
was working for Standard Stations in a place in Arizona. It was a 
little town. It seemed like a big town coming from Searchlight. It took 
quite a few hours to drive over there. I spent a week with my brother. 
I thought it was going to be a week, but he had a girlfriend and I 
didn't spend much time with him at all. I spent time with his 
girlfriend's brother. I could beat her brother in anything--all card 
games, board games, running, jumping, throwing. But I could never win 
because he kept changing the rules in the middle of the game. That is 
what is happening in the Senate. The majority can't get what they want 
so they break the rules to change the rules.
  We believe the traditions of the Senate should be maintained. We 
believe if you are going to change the rules in the Senate, change them 
legally, not illegally.
  I hope my friends, people of goodwill on the other side of the aisle, 
will take a very close look at this and see if it is the right thing to 
do. I think we do have people of goodwill on the other side of the 
aisle who understand the importance of maintaining the integrity of 
this body.
  As Senator Dole said when asked on Public Radio last week what he 
thought about the so-called nuclear option, He said: Watch it because 
we are not going to be in the majority all the time. It will come 
back--these are my words, not his but the same meaning--it will come 
back to haunt us because the majority changes all the time.
  I think it would be wrong for the Democrats to be able to do what the 
Republicans are talking about doing. I think it would be wrong for the 
Republicans to do what they are talking about doing. That is why we, 
Senator Frist and I, working with our caucus, have to try to tamp down 
the emotions on this issue and do what we can to bring the Senate 
family together and do things the right way so we can continue to do 
legislation.
  I spoke to the distinguished majority leader a few minutes ago. We 
want to do the highway bill. We have the Energy bill. Senator Domenici 
and Senator Bingaman are working hand in hand, more than they have in 
many years. They are going to come up with the Energy bill. The 
Senators are going to bring it to the floor and we will debate it.
  As the President was told several days ago by Senator Baucus when 
they were called to the White House, Senator Baucus said: You do the 
nuclear option, there will be no Energy bill. That is the way things 
are and that is wrong.
  (Ms. Murkowski assumed the Chair.)
  Mr. REID. Madam President, I hope we will be able to work our way 
through this issue and come up with something appropriate and move on. 
We have a number of judges who are pending now. They should not have to 
wait around.
  In the situation we now have there is no question the committees are 
working so well together. Senator Specter and Senator Leahy are working 
well together. I do not like the asbestos bill. I am not sure there is 
anything that can be done to make me happy about the asbestos bill 
because I have such strong feelings about the people who died of 
mesothelioma and asbestosis. But one of the things I did when I became 
leader, I told my ranking members that they were their committees. They 
could do whatever was appropriate in the confines of that committee.
  Senator Leahy did what he thought was appropriate. I may disagree 
with that asbestos bill, but he had every right to work with Senator 
Specter and come up with a bill. That bill is here at the desk right 
now. That is the way things should work.
  Senators Specter and Leahy have gotten so much done during the first 
few months they have been working together. There is a lot more we can 
do. That Judiciary Committee has some of the most interesting but 
controversial issues that we have. When you have two people working 
together as closely as Leahy and Specter have been, we can expect some 
things on the floor of the Senate that will be interesting and 
controversial, but that is our job.
  I repeat for the third time, I hope we can move forward and get the 
work of the American people done. That is what this is all about. We do 
not come here to please any particular constituency. We come here to 
please the people of our States and the people of this country. That is 
our job.
  We need to recognize we have equal power to the judicial and 
executive branches of Government. A number of years ago, when President 
Kennedy was President, there was a chairman of the Rules Committee in 
the House by the name of Smith. He was a Democrat. President Kennedy 
was a Democrat. He called Mr. Smith because he wanted an appropriate 
ruling from the Rules Committee of which Mr. Smith was the chairman. 
And Smith wouldn't even return the President's call. He knew he did not 
have to. He stood for the legislative branch of Government. He didn't 
have to take orders or suggestions or even talk to the President.
  He may have carried things a little too far, but that shows the 
strength of the legislative branch. We are as powerful as the judicial 
branch of Government and the executive branch of Government. When we 
come to the realization that we are not, it is not good for this 
country.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Madam President, I respect the Senator and I appreciate 
what he has to say about wanting to move the agenda. That is something 
I am very concerned about because of the Highway Bill, as well as the 
Energy Bill. Those are things that are lined up and need to be done. 
They are unfinished business from the last Congress. My concern from 
all this, and the Senator from Nevada has been here long enough, 
obviously, to know this, the Senate does set its rules and procedures. 
That is part of the Constitution. Back in 1980, of course, the Senate 
did the same things we are talking about doing here when the Democrats 
had control under Senator Byrd.

[[Page 7415]]

  But more important, this needs to be based on facts. The facts are on 
our side in this debate. If you look back--the Senator from Nevada 
talked about historical precedents. The reality is what I said earlier 
is absolutely accurate, and that is there has not been a judicial 
nominee with majority support in the history of this Nation, up until 
the last Congress, who was denied an up-or-down vote in the Senate by a 
filibuster or by using the Standing Rules of the Senate to prevent that 
from happening. That simply is a fact.
  It is also a fact that in the instance he referred to back in 1968, 
the Fortas nomination to the High Court, it was President Johnson's 
selection for Chief Justice. That was, I should say, a bipartisan 
attempt. It was a judge who did not have majority support in the 
Senate, and furthermore it was a judge about whom they were raising 
ethical issues.
  The nominees we are referring to here are people of high quality. 
They are people who have been rated by the American Bar Association as 
being highly qualified to serve on the bench. They are not extreme, as 
the Democrats have suggested. They are judges who have been voted on in 
their States and won overwhelming majorities. These are people who 
deserve to be voted on in the Senate. This is about the tradition, it 
is about the precedent, it is about the history of the Senate, and it 
is about the Constitution. And it is about the responsibility, as 
Senators, that we have to see that these judicial nominees who are 
presented by the President for confirmation, for the Senate to perform 
its advise and consent role, are dealt with in an appropriate way.
  I hope the Senator from Nevada will work with our leadership to try 
to fashion a way in which these judges can be voted on in the Senate. 
If they are not, we are setting an entirely new precedent for the 
future of how these judicial nominees are going to be considered in the 
Senate because this is unprecedented in the history of this Nation, 
what has happened in the last session of Congress, and what is being 
suggested by the Democrats in the Senate at this time. And that is that 
they will shut this institution down and keep other legislation from 
moving forward simply because they want to dictate to the majority and 
to the President of the United States about the kind of judges he ought 
to be submitting to the Senate for confirmation.
  I have a couple of other colleagues here who want to speak to this 
issue, but it is important that this debate be about the facts. I hope 
we can have an opportunity to debate these judges. Then I hope we have 
the opportunity to vote on them.
  I yield to the Senator from Louisiana.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. Madam President, I, too, rise this morning to speak about 
an issue of great importance to me as a freshman of this body; more 
important, to the Senate as an institution; and most important, to 
America as a Nation: that is, what is clearly our horribly broken and 
partisan judicial confirmation process.
  Two years ago, the Members of the Senate freshman class of the 108th 
Congress called on all of their Senate colleagues, Democrats and 
Republicans, to take a careful look at the Senate's process of 
confirming judicial nominees. They were fresh from the campaign trail 
in their respective States, fresh from talking to citizens every day in 
their campaigns. They heard over and over how dissatisfied people were 
with the partisanship, the bitter partisanship and obstructionism that 
they found in Washington, particularly in the Senate. They heard over 
and over that the clearest example of that was the horribly broken, 
bitterly partisan judicial confirmation process.
  Unfortunately, their valiant efforts did not succeed in fundamentally 
changing and improving the process. Because of that, as I was on the 
campaign trail to run for the Senate last year, I heard those same 
themes, those same concerns from voters all across Louisiana. I know my 
other freshman colleagues heard the same things from voters in their 
States. They heard over and over how tired and upset people were at the 
bitter partisanship in Washington, particularly in the Senate; the 
endless obstructionism, the endless filibusters. Again, the clearest 
example of that in citizens' minds was the horribly broken, bitterly 
partisan judicial confirmation process.
  I heard over and over in every part of the State, folks from all 
walks of life, folks from both parties: Do the people's business. Get 
beyond all of that game playing. Get beyond that bitter partisanship. 
The obstructionism, the filibusters, that is not doing the people's 
business.
  Yesterday, I joined with many other Members of my freshman class, the 
current Senate freshman class, in again calling for the Senate 
leadership to work together to address the judicial crisis--I use that 
word for good reason--the judicial crisis we are facing.
  As we stated in our freshman letter to our colleagues from Tennessee 
and Nevada, progress often requires us to make difficult but fairminded 
decisions. The time has come to prepare our damaged, broken judicial 
confirmation process. We need a genuine commitment to upholding the 
equitable principles of our judicial system, a sense of respect for our 
deeply rooted traditions, and the willingness to compromise.
  Several judicial vacancies have been lingering not for months but for 
years, as my colleague from South Dakota has said, causing more than 
one jurisdiction to formally declare a ``judicial emergency.'' Because 
of long-term vacancies, it is imperative we, as Senators, respond 
promptly to these emergencies. It is unacceptable we should have 
judicial vacancies in our courts for up to 6 or more years in some 
cases. It is time to put aside the grievances, the obstructionism, the 
partisanship that has been built up.
  A recent case in point is the nomination of Janice Rogers Brown to 
the U.S. Court of Appeals for the DC Circuit. Judge Brown, whose 
nomination has been pending since July 2003, as my colleague from South 
Dakota noted, is a highly qualified judicial candidate, as evidenced by 
her background and her training. Justice Brown has 8 years of 
experience on the California appellate bench, and she has dedicated all 
but 2 years of her 26-year legal career to public service. Right now, 
she serves as associate judge of the California Supreme Court, a 
position she has held since May 1997.
  Justice Brown is the first African-American to serve on that State's 
highest court and was retained with 76 percent of the vote in her last 
election. California is not exactly a rightwing State. In 2002, Justice 
Brown's colleagues relied on her to write the majority opinion for the 
California Supreme Court more times than any other justice.
  The daughter of sharecroppers, Justice Brown was born in Greenville, 
AL, in 1949. She came of age in the South, tragically in the midst of 
Jim Crow policies, having attended segregated schools in her youth. She 
grew up listening to her grandmother's stories about the NAACP lawyer 
who defended Martin Luther King, Jr., and Rosa Parks. Her experiences 
as a child and those stories from her grandmother moved her to become a 
lawyer. In her teens, she moved to California with her family. She 
earned a B.A. in economics from California State in 1974. She earned 
her law degree from UCLA Law School in 1977.
  In 2003, a bipartisan group of 12 of Justice Brown's current and 
former judicial colleagues wrote then-Judiciary Committee Chairman 
Orrin Hatch in support of her nomination--again, a fully bipartisan 
group. Another fully bipartisan group of 15 California law professors 
did the same, as did a dean of the appellate bar in California, and the 
California director of Minorities in Law Enforcement. What those who 
know her best say is Justice Brown is a superb judge, conscientious, 
hardworking, intelligent, sensible, openminded.
  Yet Justice Brown, like multiple other judicial nominees, has been 
waiting and waiting and waiting for an up-or-down vote in the Senate. 
It is unfair to her. More importantly, it is unfair to the citizens of 
this country.

[[Page 7416]]

  Some, like the distinguished minority leader, argue that this is some 
longstanding venerable practice. That is simply not true. A few minutes 
ago, the minority leader said in the early days of the Republic, 
filibusters were common. I hope, in the midst of this very important 
debate, he will read the history carefully because in the early days of 
the Republic, the Senate rules had no such thing as a filibuster. The 
Senate rules were pure majority rule because there was a motion that no 
longer exists to call the question, to end debate by a majority vote. 
So in the early days of the Republic--and this is crystal clear in 
history--there was no opportunity for filibuster because the Senate, 
just like the House, then and now, operated by pure majority vote.
  Certainly it is clear this practice of judicial filibusters for 
appellate court nominees is brand new. It has never, ever happened for 
a nominee with majority support before the last Congress. They are very 
clear, very well-known examples that prove the point. What about Robert 
Bork and Clarence Thomas--very controversial nominations opposed by 
many on the Democratic side but neither was filibustered. Both got up-
or-down votes in the relatively recent past. One was confirmed. One was 
not. That is how the process is supposed to work. That is how it did 
work until the last Congress.
  Others say, yes, these floor filibusters are new but nominees have 
been held up in the committee before. That has been the functional 
equivalent of these filibusters we now see when the majority party in 
the past held up certain nominees in committee.
  My response is very simple and very direct. We should change the 
committee rules as part of this process to ensure every appellate court 
nominee, every Supreme Court nominee gets to the Senate floor for an 
up-or-down vote within a certain amount of time. That will fully 
respond to any legitimate concerns in that regard. That will fully 
respond to any of those grievances from the past. They can come to the 
Senate, within a certain amount of time, under a mandate which we can 
put in the committee or the full Senate rules, and the committee can 
send them to the Senate with a recommendation we confirm that judge, or 
that confirmation can come to the Senate with a negative report by a 
majority of the committee.
  We face an impasse. We must do whatever is necessary to end it. 
Inaction is no longer accessible. Now is the time to resolve it.
  Like the complicated policy issues we tackle every day, we cannot 
avoid the judicial crisis and its surrounding confirmation issues 
without expecting our inaction to have a major impact on our country. 
The integrity of our entire judicial system is at stake. Indeed, the 
integrity of the Federal Government and Congress is at stake as 
citizens again and again say: Put the people's business first. Take up 
the people's business. Get beyond this horrible partisanship, 
obstructionism, and these filibusters.
  In closing, I encourage all of my colleagues to take a careful look 
at the Senate confirmation process. I ask we work together to refine 
our judicial confirmation process and to break down those partisan 
walls that have stood in the way of advancing judicial nominations.
  There is one compelling reason we need to do this. That is doing the 
people's business. That is serving the people--not partisan political 
interests--and the people, across the Nation, all of our citizens, are 
demanding it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. Madam President, I was one of those new Members of the 
Senate elected in the class of 2002 my friend and colleague from 
Louisiana talked about. We did lament the partisan divide that 
certainly has been growing in this body for a while but has been 
clearly reflected in the battle over judicial appointments.
  The President has the constitutional authority to appoint judges. 
That is very clear. It is an authority that has never, in the history 
of this country, up until last year, when my colleague across the aisle 
decided to filibuster those appointees, it has never in the history of 
this country required anything more than a majority vote. We are 
talking about judicial appointments.
  The President must appoint folks who are qualified. There are 
standards by which one can review that. The American Bar Association is 
involved in that process and they, in fact, grade nominees. In the case 
of the President's appointees, each of those nominees received the 
endorsement--in effect, the label, the standard--of ``qualified'' or 
``highly qualified.'' They met the basic test that has to be met.
  What has happened in the last year is now a new political test put in 
place, a political test that has then required a new standard, an 
unprecedented standard in the history of this country. I repeat, in the 
history of this country, nominees who could get a majority vote have 
not been filibustered until last year.
  The other side has said: We have confirmed so many judges, hundreds 
of judges, but when it comes to appellate court judges, the level below 
the Supreme Court, last year I believe it was 30 percent of those were 
filibustered, were stopped, and a higher percentage then face that this 
year. Our obligation in the Constitution is to advise and consent. It 
is not to advise and construct. Nominees deserve simply an up-or-down 
vote. That has been the process that has served this country so well 
for nearly 250 years.
  I support the right of filibuster. I love that movie ``Mr. Smith Goes 
to Washington.'' I thought Jimmy Stewart was fabulous. I watched that 
as a kid, and I thought being on the floor of the Senate, standing and 
not stepping down, fighting for what you believe, is part of the 
history of the Senate.
  It is not, by the way, the history of the United States for its 
entire existence. It was not the history of the United States, contrary 
to the words of the distinguished and learned minority leader from 
Nevada, it is not the history when this country began. But it has been 
part of our history. I recognize that.
  By the way, it has not always been as glorious as when Jimmy Stewart 
was in that movie, standing on the floor of the Senate. The history of 
the filibuster, which now is being paraded as this icon of protection 
of rights, this history, unfortunately, has a history of being used to 
block anti-lynching legislation. It was used to block civil rights 
legislation. That has been the history of the filibuster. But I respect 
that history. I respect that tradition of filibustering legislation 
even if I disagree with it.
  But never before has there been a tradition of using that filibuster, 
that tool, to block judicial nominees. That is what is different today.
  I do believe the last effort to limit the filibuster occurred when 
Republicans took control of the Senate about 1994 and 1995; there were 
efforts to limit the filibuster. There were 19 votes for that effort. 
Every one of them were Democrats. Every one of them were my colleagues 
across the aisle, some of whom still serve in this institution today. 
That has been the history of limiting the filibuster. But the history 
is clear that, up until last year, the filibuster has not been used to 
block a nominee who has majority support.
  I am also deeply concerned about what we are doing to civics with 
this discussion. I think we are confusing young people. When I grew up 
and studied civics, I understood what checks and balances were. I am 
watching commercials today that talk about the effort of the Democrats 
to block judicial appointees is somehow applying the concept of checks 
and balances. I have to gather my 15-year-old daughter Sarah and tell 
her that is not what checks and balances are about. The concept of 
checks and balances has to do with the wisdom of our Founders to 
balance the power of the executive branch against the power of the 
legislative branch and the power of the judicial branch. That is checks 
and balances--a magnificent concept.
  But checks and balances does not mean, and has never meant, that 
somehow the minority can block the majority from governing in an 
Executive

[[Page 7417]]

Calendar, where the President has the authority to appoint individuals 
who he thinks are qualified, and then we measure that qualification--
not politics, not their views on certain political issues, but their 
competence, their integrity, their capacity to do the job--and we then 
advise and consent, we give the up-or-down vote.
  But checks and balances have nothing to do with the attempt of the 
minority, right here, to block the majority from simply confirming 
Presidential appointees. We are not talking about changing the 
legislative calendar. We are not talking about interfering with the 
right to filibuster on legislative issues. We are talking about 
upholding the Constitution.
  It is interesting, if you go back--and like the Presiding Officer, I 
have been here only a few years--we have learned from some of our 
colleagues about the history of what went on before. In the past, the 
Senate did not filibuster judicial nominees. There were times when you 
had very liberal judges coming up for confirmation by Democratic 
Presidents, and you had Republicans controlling the process, and you 
had majority leaders such as Trent Lott supporting cloture for liberal 
nominees who, on the basis of ideology, they would not support.
  Judge Paez, in the Ninth Circuit, I believe was one of the judges 
involved in the decision that you cannot say ``one Nation under God.'' 
I know many of my colleagues felt Judge Paez's views were extreme. But 
they respected the power of the President to make an appointee, and 
they respected the history and tradition of this institution that says: 
Give nominees an up-or-down vote. Paez got that up or down vote and was 
confirmed.
  So my deep concern is somehow we are involved in almost this 
Orwellian doublespeak today that we are talking about checks and 
balances in a process that has no relationship to what checks and 
balances have always meant. Again, our young people should understand 
that.
  We have bent over backward to protect minority views in this Senate. 
When it comes to appointments, the majority has a right and a 
responsibility to act. Then all of us have the right to vote yes or no. 
Let's do the right thing. Let's uphold the tradition of this 
institution. Give people the right to get an up-or-down vote when they 
are nominated for a judicial office.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. COLEMAN. Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.

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