[Congressional Record (Bound Edition), Volume 151 (2005), Part 6]
[Senate]
[Pages 7646-7647]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. SCHUMER. Mr. President, I rise under morning business to discuss 
some events that occurred overnight. Most important, there is a story 
in today's USA Today, based on a direct interview, that Karl Rove 
rejected a compromise with Senate Democrats Monday on long-stalled 
nominations for the Federal judiciary and strongly defended President 
Bush's choice of John Bolton.
  I am going to talk about the first matter.
  It is disconcerting and surprising to see an aide to the President, 
an important aide, tell the Senate how to conduct itself. The Senate 
has conducted itself by its own rules for decades--for centuries. Those 
rules, by the design of the Founding Fathers, written into the 
Constitution, talk about the Senate as being a preserve of minority 
rights. The Founding Fathers called it the cooling saucer.
  It is clear, if you read the Federalist Papers and look at the 
history of this Republic, that when a Senate minority of 45 rejects 10 
out of 215 judges and supports 205 out of 215, that is the very way the 
Founding Fathers wanted the Senate to behave. After all, one of the 
very earliest nominations of President Washington, John Rutledge, was 
rejected by the Senate for the Supreme Court--rejected by the Senate. 
In that Senate were I believe eight Founding Fathers, the people who 
wrote the Constitution, rejecting the President's choice.
  We have, in a certain sense, people way out of the mainstream, way 
over--a small group--telling the Republican Party in the Senate and 
telling the President that they must have all the judges, including the 
most extreme. Because, after all, it was only the most extreme we 
rejected, judges who believe, for instance, that the New Deal was a 
socialist revolution and should be undone; judges who believe zoning 
laws are unconstitutional; judges who believe the purpose of a woman 
should be to be subjugate herself to a man; judges who believe slavery 
was God's gift to white people.
  These are some of the judges we have rejected. It was not based on 
any one particular issue. People say this is all code for abortion. It 
is not. I have voted for I believe it is about 190 of the judges. The 
overwhelming majority do not agree with me on abortion, but I believe 
they met the ultimate test, that they would interpret the law, not make 
law. Thus, even though they had strongly held beliefs on their own, 
they would be good judges. The 10 we rejected failed that test. They 
feel so passionately that they have to impose their views.
  One of them, Priscilla Owen of Texas, was criticized repeatedly by 
conservative members of her own court, the Texas Supreme Court, for 
placing her interpretation of law ahead of the standard interpretation, 
the interpretation everybody accepted.
  So we were proud to do our constitutional duty and reject these 
judges, judges we were not consulted about, judges who were way out of 
the mainstream.
  Now, because of the demands of a few--way over, way out there--it 
seems

[[Page 7647]]

the majority leader is pushing the so-called nuclear option. The 
problem is a large number, a good number of people on the other side, 
do not want to do the nuclear option. They know it would change the 
rules in the middle of the game. You don't change the rules in the 
middle of the game because you cannot get your way on every single 
judge. Our Constitution, our system of laws, is too hallowed, is too 
important to do that.
  These wavering Republican Senators know the Senate has been the 
repository of checks and balances. That is why we have not done the 
nuclear option yet. I have to say I wish the majority leader would not 
be moving it. He should as a Senator stand up for the rights of the 
Senate. He should as an American stand up for the rights of the 
American people. But that has not happened.
  Yesterday they had to call the heavy guns in. Karl Rove, a member of 
the executive branch, told the Senate Republicans there should be no 
compromise.
  It is quite natural, by the way, that the White House would not want 
a Senate with checks and balances. This is not simply true of 
Republican Presidents, it is true of all Presidents, whether they be 
Democrat or Republican. They want to have their way. They regard the 
legislature, and particularly the Senate, as sort of a pesky obstacle 
to getting their way.
  But the wisdom of our Republic has shown that when the Senate does 
slow things down, when the Senate does invoke checks and balances, the 
Republic is better off.
  Now we have Karl Rove telling the Senate how they ought to act--how 
we ought to act--to change a tradition of 200 years.
  Senator Reid has said publicly that the President told him the White 
House would stay out of this. That is clearly not the case. The White 
House is not staying out of this and they are trying to aggrandize 
executive power. The American people, though, are not buying it. There 
is a story today in the Washington Post that shows `` . . . by a 2 to 1 
ratio''--that is pretty strong, that is more than the filibuster 
amount--

     the public rejected easing the Senate rules in a way that 
     would make it harder for Democratic Senators to prevent final 
     action on Bush's nominees. Even many Republicans were 
     reluctant to abandon current Senate confirmation procedures. 
     Nearly half opposed any rule changes, joining eight in 10 
     Democrats and seven in 10 political independents. . . .

  The American public may not follow minute to minute, day by day, what 
we do on this floor, but they have a pretty good nose to smell what is 
going on. What they smell is a whiff of extremism, a whiff of ``I can't 
get my way so I change the rules in the middle of the game,'' a whiff 
of ``not simply a fight of the moment over a particular judge but 
rather a desire not to live with the traditions of this body and this 
Republic, which involves compromise and mediation.''
  Honestly, when I recommended to our caucus early on that we 
filibuster a few of the judges and then later that we prevent and stand 
up to the nuclear option no matter what it took, I thought we would 
lose politically. I thought the argument: ``Well, have 51 votes on 
everything'' would prevail. But the American people's wisdom is large, 
deep, and hard to fool. The American people have said they understand 
what is going on. When the Republicans were in charge, they didn't 
allow judges to come out. We are not in charge now and the filibuster 
is a way of mitigating the President's desire to put whomever he wants 
on the bench and that the filibuster is appropriate.
  I do not believe what some on the other side say, that the public is 
with the Democrats because they have gotten their message out ahead of 
us. Please. The public is with the Democrats in this case, not because 
they are Democratic and not because they may agree with the stand or 
disagree with the stand of each of the judges we have rejected--
although I suspect that would be the case if they knew--the public is 
with us because they understand fundamentally the checks and balances 
that are so important in this Republic and that because a President 
gets 51\1/2\ percent of the vote he doesn't always have to get his way, 
particularly when it comes to choosing the third, unelected--only 
unelected branch of Government.
  So Mr. Rove can order Senators not to compromise. I hope and pray the 
Senators will not take direction from the White House on something 
where the interests of the White House, whatever party the President 
might be, are different from those of the Senate and frankly different 
from the Republic's--and I believe they will not.
  The wisdom of the American people is strong. I let my colleagues 
know, if they should try to invoke the nuclear option and it succeeds, 
we will have no choice but to enforce the Senate rules and try to bring 
up issues the American people want us to bring up: the high cost of 
energy and gasoline, health care, education. We do not usually do that 
because of comity in the Senate. After all, the other party is the 
majority party.
  But if they are not respecting the rights of the minority, as a 
majority, they do not deserve that same deference. What we will do is 
not shut down the Senate, not not show up. We will, rather, use the 
remaining rules at our disposal to bring up issues the American people 
care about.
  Again, my plea to my colleagues on the other side--I know many of 
them have doubts about this nuclear option but are under tremendous 
pressure--resist the entreaties of the executive branch, in this case 
in the personification of Mr. Rove, stand tall, stand firm. Do not 
change the rules in the middle of the game; protect the sacred checks 
and balances at the core of the Republic by rejecting this trampling on 
the rules, the so-called nuclear option.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Vitter). The Senator from North Dakota is 
recognized.
  Mr. DORGAN. How much time remains on our side?
  The PRESIDING OFFICER. There are 18 minutes.

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