[Congressional Record (Bound Edition), Volume 151 (2005), Part 7]
[Senate]
[Pages 8813-8814]
[From the U.S. Government Publishing Office, www.gpo.gov]




               PROTECTING THE INDEPENDENCE OF THE COURTS

  Mr. BAUCUS. Mr. President, inscribed on the Justice Department 
building are the words: ``No free government can survive that is not 
based on the supremacy of law.''
  Aristotle said: ``Where the laws are not supreme, there demagogues 
spring up.''
  And Balzac wrote: ``The soul of liberty is love of law.''
  It is a free and independent judiciary that ensures the supremacy of 
law. It is a free and independent judiciary that guards against the 
demagogue. It is a free and independent judiciary that protects the 
soul of liberty.
  As Montesquieu wrote in The Spirit of the Laws: ``There is no liberty 
if the judiciary power be not separated from the legislative and the 
executive.''
  And as George Washington wrote to John Jay in 1789, when Washington 
invited Jay to be Chief Justice: ``The Supreme Court must be recognized 
as the keystone of our political fabric.''
  The effort by some to abridge the Senate's role in the confirmation 
of judges is nothing less than an effort to diminish the independence 
of the judiciary. That is the bottom line.
  The Senate's rules and its paramount value of unlimited debate are 
central to preserving that independence of the judiciary. The Senate's 
involvement in the confirmation of judges helps to ensure that nominees 
have the support of a broad political consensus. The Senate's 
involvement helps to ensure that the President cannot appoint extreme 
nominees. The Senate's involvement helps to ensure that judges are more 
independent.
  The Framers wanted the courts to be an independent branch of 
government, helping to exercise the Constitution's intricate system of 
checks and balances. The Senate's involvement in the confirmation of 
judges helps to ensure that the judiciary can be that more independent 
branch. And that independence of the judiciary, in turn, helps to 
ensure the protection of personal rights and liberties.
  Just witness the Bill of Rights and the Constitution and the degree 
to which the court protects the Bill of Rights against improper 
encroachment by the legislative branch and in some cases by the 
executive branch.
  The current fight over allowing the President to more easily gain 
confirmation of Supreme Court Justices and Appellate Court judges 
recalls another such effort by a President to affect the independence 
of the judiciary. It was in 1937, when President Franklin Roosevelt 
tried to pack the Supreme Court.
  Roosevelt's effort to pack the Court failed in 1937 because enough 
Senators from his own party stood up to their President. They stood up 
for the Constitution that they loved.
  One of those Senators was Montana's Burton K. Wheeler.
  Until then, Burt Wheeler, a Democrat, had been an ardent champion of 
New Deal causes. But that changed with Roosevelt's effort to pack the 
Court.
  In his book about Lyndon Johnson, Master of the Senate, the historian 
Robert Caro recounts what happened:

       Burton K. Wheeler of Montana, long a leader in Senate 
     fights for liberal causes, was coming to see that the Court 
     plan implied an alteration in the whole balance of 
     governmental power in favor of the White House. What, he 
     wondered, would come next? He refused to fight for this 
     cause. Wheeler was a senator other senators followed. 
     Roosevelt sent his aide Thomas G. Corcoran to him with an 
     offer. Its details would be a matter of dispute; at a very 
     minimum, Wheeler would be allowed to give `advice' on the 
     nominations of two of the six justices. Wheeler had accepted 
     other offers from Corcoran before, but he refused to do so on 
     the Court-packing plan. I'm going to fight it with everything 
     I've got,' he told Corcoran. The President hurriedly invited 
     his old friend Burt to dine at the White House that evening; 
     the Senator replied that the President had better `save the 
     plate for someone who persuaded more easily'.

  And on the Senate floor, Senator Wheeler said:

       I am saying to the Senator now that those connected with 
     the administration have said that they wanted six men upon 
     the Supreme Court whom they could trust, that they wanted men 
     on the Court who would decide cases as they wanted them to be 
     decided. That is the issue. It can be camouflaged as much as 
     one wants to attempt to camouflage it, but the truth is that 
     it is impossible to get away from the fact that this is a 
     proposal to make the Supreme Court of the United States 
     subservient to the executive branch of government.

  Similar words could be said about the current effort to abridge the 
Senate's involvement in securing the independence of the Court. There 
are those connected with the current effort who want people ``on the 
Court who would decide cases as they want them to be decided.'' And it 
is impossible to deny that the effect of the current proposal would be 
``to make the Supreme Court of the United States [more] subservient to 
the executive branch of government.''
  There is no doubt about it. That is the intent. That is the result.
  On the Senate floor, Senator Wheeler also said:

       I say the step proposed is one of the most dangerous ever 
     suggested, and it will set the most dangerous precedent of 
     which I can conceive. You can bring political pressure to 
     bear on me, you can say, `You you have to go along because of 
     the fact that the administration wants it.' You can say that 
     the privilege of appointing postmasters will not be accorded 
     me; you can say that I will get no more projects for my 
     State, worthy or unworthy; you can say what you please; but I 
     say to Mr. Farley [the Postmaster General and Chairman of the 
     Democratic National Committee] and to everyone else that, so 
     far as I am concerned, I will vote against this proposal 
     because it is morally wrong, morally unsound. It is a 
     dangerous precedent,      

[[Page 8814]]

      . . . it gets us nowhere, it is an expedient, it is a 
     stopgap and dictatorial, and so far as I am concerned, if I 
     am the only man in the Senate to do so, I shall vote against 
     it.

  Once again, similar words could be said about the current effort to 
abridge the Senate's involvement in securing the independence of the 
Court. ``[T]he step proposed is one of the most dangerous ever 
suggested.'' ``[I]t will set the most dangerous precedent . . . .'' 
``[I]t is morally wrong, morally unsound.'' ``[I]t gets us nowhere . . 
. .'' ``[A]nd so far as I am concerned, if I am the only man in the 
Senate to do so, I shall vote against it.''
  I only hope that enough Senators from the majority will have the 
courage that Burt Wheeler had, to stand up to their President, and stop 
this effort to undermine our Nation's cherished checks and balances.
  In the latter half of the 19th Century, James Bryce was the 
Ambassador of the United Kingdom to the United States. In 1888, he 
wrote of America's independent judiciary:

       The Supreme Court is the living voice of the Constitution . 
     . . . It is the guarantee of the minority who, when 
     threatened by the impatient vehemence of the majority, can 
     appeal to this permanent law, finding the interpreter and 
     enforcer thereof in a Court set high above the assaults of 
     faction.

  For two centuries, the Senate's rules have protected the rights of 
the minority party, Democrats and Republicans alike, and thereby 
protected the independence of the judiciary. After two centuries, it 
would be a mistake to change those rules.
  As the Senior Senator from Tennessee, the Majority Leader, wrote in a 
forward to a book published last year entitled Senate Procedure and 
Practice, and I quote:

       [A]bove all, together the Senate's rules and practices form 
     a whole. It is a whole that faithfully reflects the Framer's 
     design and ambition for the body. It is a whole that remains 
     true to the Senate's two paramount values: unlimited debate 
     and minority rights.

  ``[U]nlimited debate and minority rights.''
  That is what the leader wrote just a year ago: unlimited debate is 
one of the paramount values in the Senate's rules. Minority rights is 
the other one.
  ``[U]nlimited debate'' allows Senators to protect ``minority 
rights.'' The Senate's rules help to protect the independent judiciary. 
The Senate's rules help to ensure that no one party has absolute power. 
The Senate's rules help to give effect to the Framer's conception of 
checks and balances to protect the rule of law.
  John Locke wrote in The Second Treatise on Government:

       Wherever law ends, tyranny begins.

  John F. Kennedy said:

       Law is the strongest link between man and freedom.

  And the Greek philosopher Heraclitus of Ephesus wrote:

       The people should fight for their law as for their city 
     wall.

  I urge my Colleagues on the other side of the aisle to fight for this 
city wall. I urge them to defend the independence of the judiciary. One 
hallmark that sets the United States apart from most countries in the 
world is a strong, independent judiciary: not bullied by the 
legislative branch, not bullied by the executive branch; an independent 
judiciary.
  I urge my colleagues to defend that independence and I urge them to 
reject this effort to overturn the Senate's rules.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. INHOFE. 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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