[Congressional Record (Bound Edition), Volume 151 (2005), Part 7]
[Senate]
[Pages 9843-9848]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL FILIBUSTERS

  Mr. DURBIN. Mr. President, 51 years ago today the Supreme Court, just 
across the street from the Senate Chamber, issued one of its most 
famous rulings in the history of the United States of America. The 
ruling was Brown v. Board of Education. It may have been one of the 
most courageous decisions ever issued by the Court. It rejected the 
cruel legal fiction of separate but equal and said that in the United 
States of America there would be no second-class citizens.
  What an amazing victory for justice. But for some time, in some 
States, the Brown decision remained a victory on paper only. In much of 
the United States, in the Deep South, the Brown decision was met with 
massive resistance. Governors refused to obey the court ruling. Three 
years after that court decision, 48 years ago today, on May 17, 1957, 
36,000 people gathered in Washington, DC, for the first march on 
Washington.
  This is a photo of that march. We all know about the famous 1963 
march, but the 1957 gathering was really the forerunner to that 1963 
march. In those days, in 1957, it was known as a Prayer Pilgrimage for 
Freedom in Washington, DC.
  Take a look at some of the people who gathered on that day 48 years 
ago. Dr. Martin Luther King, 29 years of age, was among those who 
gathered to speak. His leadership had been tested by the crucible of 
the Montgomery bus boycott. His remarks at the 1957 gathering were not 
nearly as well known as his immortal ``I Have a Dream'' speech in 1963, 
but they are powerful and worth repeating on this the 40th anniversary 
of the day he first delivered them. Here is how Dr. Martin Luther King 
opened his remarks on that day. He said:

       Three years ago the Supreme Court of this nation rendered 
     in simple, eloquent, and unequivocal language a decision 
     which will long be stenciled on the mental sheets of 
     succeeding generations. For all men of goodwill, this May 
     17th decision came as a joyous daybreak to end the long night 
     of human captivity. It came as a great beacon light of hope 
     to millions of disinherited people throughout the world who 
     had dared only to dream of freedom.

  Dr. King went on to say:

       Unfortunately, this noble and sublime decision has not gone 
     without opposition. This opposition has often risen to 
     ominous proportions. Many states have risen up in open 
     defiance. The legislative halls of the South ring loud with 
     such words as `interposition' and `nullification.'
       But even more, all types of conniving methods are still 
     being used to prevent Negroes from becoming registered 
     voters. The denial of this sacred right--

  Dr. King said--

       is a tragic betrayal of the highest mandates of our 
     Democratic tradition.

  But Dr. King did not stop with this sad commentary on what he saw in 
America. He delivered his prescription for progress when he said:

       And so our most urgent request to the president of the 
     United States and every member of Congress is . . . Give us 
     the ballot, and we will no longer have to worry the federal 
     government about our basic rights.
       Give us the ballot and we will no longer plead to the 
     federal government for passage of an anti-lynching law; we 
     will by the power of our vote write the law on the statute 
     books of the Southland bring an end to the dastardly acts of 
     the hooded perpetrators of violence.
       Give us the ballot, and we will transform the salient 
     misdeeds of bloodthirsty mobs into the calculated good deeds 
     of orderly citizens.

  What a speech. Not nearly as heralded as his speech a few years 
later, but certainly what Dr. King said that day still touches the 
hearts of every American who dreams of the ideals of this great Nation.
  Now, 51 years later, it is hard to imagine the way Brown v. Board of 
Education was received. Most Americans look back with pride to the end 
of segregation in our public schools. We regard it as a great 
achievement that 182 years after our Nation was founded, a new 
generation of Americans had the courage and conscience to confront the 
bitter legacy of slavery, the challenge that our Founding Fathers could 
not resolve with all their wisdom. These people had the courage to 
confront segregation and voting discrimination.

[[Page 9844]]

  Many Americans didn't support Brown v. Board of Education, not in 
1954, not in 1967. That is why 36,000 people gathered on the Mall 38 
years ago today. Many southern States flatly refused to obey the Brown 
decision. The same ruling that Martin Luther King praised as a joyous 
daybreak, others denounced as judicial activism. Judicial activism--
that is what they said about a decision to integrate America's schools. 
The courts had gone too far. Many argued: Leave it to the States to 
decide; this is not a decision to be made at the Federal level; 
certainly it is not a decision to be made in that Court across the 
street; those judges went too far, they argued in Brown v. Board of 
Education.
  Does this sound familiar? That is exactly what we are hearing today. 
The words in opposition to Brown v. Board of Education echo through 
this Senate Chamber and the Halls of Congress even today.
  Sadly, we may be on the verge of a constitutional confrontation over 
the Senate's constitutional advise and consent responsibilities 
regarding Federal judges. To listen to many on the far right, you would 
think it was events only in the last few years that have pushed us to 
the brink, but that is not the case.
  Earl Warren of California was Chief Justice of the Supreme Court 
during the momentous Brown decision. The John Birch Society began 
putting up ``Impeach Earl Warren'' billboards in 1961. Later they tried 
to impeach William O. Douglas, one of the most outspoken and eloquent 
Justices on the Court. The far right tried to impeach Frank Johnson. 
Who is Frank Johnson? An interesting story.
  Just a few years ago I joined John Lewis--he is a Congressman from 
Atlanta, GA, and what he does each year is invite Members of Congress, 
Democrats and Republicans, to come back down south and visit Montgomery 
and Birmingham and Selma. John Lewis is the perfect guide for these 
visits because John Lewis was there on that bridge in Selma, marching 
toward the capitol so that African-American people would have the right 
to vote. Because this young man had this idealism to participate in 
that march and the freedom rides, he had his skull cracked at the Selma 
bridge. It almost killed him.
  I asked John Lewis, tell me about the Federal judge, Frank Johnson, 
that judge in Alabama.
  He said: We wouldn't have had a civil rights movement, we certainly 
would not have had that parade, demonstration in Selma, without the 
courage of that man, Frank Johnson. Frank Johnson, a Republican 
appointee to the Federal bench, stood up and said: Yes, these Americans 
have the right to march and speak.
  It was really unpopular. A lot of people hated Judge Johnson because 
of it. He was persona non grata in his whole community. His family was 
harassed. He did courageous things that permitted the Montgomery bus 
boycott and the freedom marches across Edmund Pettis Bridge. For that, 
the far right, who accused him of judicial activism, wanted him 
impeached. They didn't agree with his decision. They said he went too 
far.
  Since 1961, 8 of the 12 Federal impeachments or near impeachments in 
Washington have involved our judges. The far right has been demanding 
that the Senate rein in what they call ``activist judges'' for decades. 
What is different now is what used to be extreme, discordant voices 
just heard in muted tones, now own great microphones in this democracy. 
They have called on their followers in Congress to follow their agenda.
  Sadly, they have many allies in high places--allies in the Senate who 
are willing to break the rules of the Senate to change the rules of the 
Senate so that the far right can pack the Federal courts with judges 
more of their liking, judges who are not activist by their definition.
  Today their allies in the Senate are willing to use the nuclear 
option to destroy the filibuster and to really destroy our system of 
checks and balances.
  The obvious question is, in a body of 100 men and women where 
counting votes is the most important thing: Do they have enough allies? 
For the sake of our democracy, I pray they do not. We hope there will 
still be a majority of Senators who love this country, love this 
Constitution, and love this Senate enough to preserve the Federal 
courts as a fair and independent branch of Government. This should not 
be an exercise of power by the extreme part of any political party.
  One of the men I respected most in the world, probably the man who is 
responsible for my standing here today more than any others, was a man 
named Paul Douglas, who was a Senator from Illinois from 1948 to 1966. 
I will never forget that day in February of 1966 when he agreed to hire 
me as a college student to work in his office across the street in what 
is now the Russell Senate Building. It was one of the most exciting 
things I had ever done, a student from Georgetown University from East 
St. Louis, IL, was going to work in the office of a Senator.
  I would have done anything they asked me to do, and they asked me to 
do a lot of things. But the most exciting thing I did was each night 
Senator Douglas, who had been gravely wounded in World War II as a 
marine in the South Pacific, insisted on signing all letters. With one 
arm, he needed help, and that's where I came in. I would sit next to 
him on a chair next to the conference table with a big stack of letters 
Senator Douglas was sending back to Illinois, and as he signed them, I 
would pull each letter away. That was my job as an intern.
  It was an exciting job. It sounds boring, I'm sure. But this man who 
had done so much with his life would sit there as he signed the letters 
and answer my questions, and I had plenty of them, and talk about his 
life and the things that he had done.
  He talked about the 1948 Democratic Convention, when civil rights 
really became the focal point of a national debate, when he grabbed the 
standard of the Illinois delegation at that convention and paraded 
around the hall leading a demonstration in favor of a mayor from 
Minneapolis named Hubert Humphrey, who said that we had to come out of 
the shadow of States rights into the bright sunshine of human rights.
  Paul Douglas was as committed to civil rights as any man I ever knew. 
He helped lead the fight in the Senate in the 1950s and much of the 
1960s to pass much of that historic legislation. He ran smack dab into 
the filibuster, the filibuster that was used by some Senators, 
primarily from the South, to stop the civil rights legislation. It was 
almost unbreakable. It took 67 votes in that day to stop it. You 
remember the filibuster? That is the procedure in the Senate where any 
Senator can stand at the desk here and speak as long as their voice and 
bladder will allow, stand up there and argue for all the principles and 
values they believe in. You saw it, Jimmy Stewart, ``Mr. Smith Goes to 
Washington.'' It is still in the Senate books. It is still the rule. It 
has been here for over 200 years.
  Some people say that is crazy. In this age of technology, why would 
we want this body to be dragged down by one Senator who wants to talk?
  But that is what the Senate is all about. That is why we are 
different than the House of Representatives. I served over there with 
pride for 14 years. I love the House of Representatives. But they are a 
different institution, under our Constitution. If you have a large 
State with many people, you will have more Congressmen. We have quite a 
few people in Illinois, 12.5 million; 19 Congressmen. Think of all the 
Congressmen from California. But then come across the Rotunda, how many 
Senators from California? Two. How many from South Dakota? Two. How 
many from Illinois? Two. How many from Rhode Island? Two. Because the 
Founders of our Nation said we will have one branch of the legislature 
which represents the population of America, but the Senate is 
different.
  The Senate will give every State a chance. The Senate will allow the 
smallest States the same number of votes as the largest States, and 
within the Senate we will recognize and respect the right of any 
Senator from

[[Page 9845]]

any State, large or small, to engage in debate. We will protect that 
Senator's right, even if many people think that is not a wise position 
the Senator is taking, because we want to protect the rights of the 
minority. That is why the Senate is different.
  So Paul Douglas, when he argued the civil rights bill, ran smack dab 
into the filibuster. One would think, as much as he hated segregation 
and as much as he hated Jim Crow laws, that Senator Douglas and many 
other progressives, Democrats and Republicans, would have tried to 
eliminate the filibuster which held up the civil rights bill. But they 
did not. Why? Because that procedure is critical to what this 
institution is all about. Doing away with the filibuster does away with 
the protection of minority rights. It changes the dynamic.
  What happens when we have a filibuster? In order to stop the 
filibuster, an extraordinary majority of the Senate must come forward. 
Now it is 60 votes. So if a Senator stands and says, this is unfair and 
unjust and I am going to speak at length to tell you why, what does it 
mean? Not only that he is a person of conviction, but it means to 
resolve that difference, to try to move on from the filibuster, people 
of good will have to meet and talk and come to an agreement. The 
filibuster forces compromise, the filibuster forces bipartisanship, 
which the Senate is all about.
  That is what has happened over the years. Those who were engaged in 
the civil rights debates played by the rules and sometimes lost by 
those same rules, but they won in time. Four months after the prayer 
pilgrimage that I mentioned in 1957, 4 months after 36,000 people 
gathered at the Lincoln Memorial to protest what they considered the 
slow progress in America to deal with segregation, 4 years after that 
day, Congress passed the 1957 Civil Rights Act, the first Federal Civil 
Rights Act since the days after the Civil War. After that came a 1960 
voting rights bill, the landmark Civil Rights Act of 1964, the Voting 
Rights Act of 1965.
  Those advances were not won by impatient Senators breaking the rules. 
They were won by courageous Americans who persevered, who marched on 
Washington, who marched on Selma, AL, who dared to register and vote 
when that basic act of citizenry could cost you your life.
  Near the end of his speech 48 years ago today, Martin Luther King 
told the thousands of people gathered at the prayer pilgrimage at the 
Lincoln Memorial:

       We must work passionately and un-
     relentingly for the goal of freedom but we must be sure that 
     our hands are clean in the struggle.

  What Dr. Martin Luther King was saying in the dark hours of Brown v. 
Board of Education, when it appeared there was little chance that the 
Congress would respond, ``your hands must be clean in the struggle.''
  That, my friends, is the debate we will face when it comes to 
changing the Senate rules. It isn't just a matter of achieving our 
goals; it is how we achieve our goals. The ends do not justify the 
means. Think of it: Dr. King, at the age of 29, having lived through 
the rank discrimination that was prevalent in many parts of America, 
still reminded those who were listening, play by the rules, keep your 
hands clean in the struggle. What he was telling us was that no matter 
how passionately we believe something, we are not entitled to rig the 
rules to achieve the outcome we want. That is not how it works in 
society. It is not how it works in families. It certainly is not how it 
works when you follow the rule of law.
  There always will be some who reject court decisions they do not 
agree with as ``judicial activism.'' There will always be some who want 
to restrict the independence of judges and put their own stamp on the 
judiciary. There will always be impatient people who want to rig and 
change the rules or short circuit the rules of democracy. As Senators, 
we have taken an oath to defend our Constitution. It is our sacred 
responsibility to tell them no.
  This is not the first time in our Nation's history that a President 
of the United States wants more power. It is a natural thing in 
government, and the Founding Fathers who wrote this Constitution 
understood it. They knew that if there was no check on the judiciary, 
judges would be too powerful. They knew if there was no check on the 
Congress, the Congress would take too much power. And they certainly 
knew that an Executive like a President would always want to increase 
his power over the people. That is what led them so many times to 
create the checks and balances which have resulted in what we enjoy--
the longest lived democracy in the history of the world.
  President Thomas Jefferson, 16 years after the Constitution was 
written creating an independent judiciary, Thomas Jefferson, the man 
who wrote the Bill of Rights, was reelected as President of the United 
States in 1805, said to the Senate, which met on the first floor of 
this building not far from where we gather, said to the Senate: You are 
a majority of my party. You know that Supreme Court--which is in the 
same building--is a court which has ruled against us and sees the world 
quite differently. Thomas Jefferson said to the Senate: Join me in 
impeaching Samuel Chase. Take this Justice off the Supreme Court and 
let all of these judges know if they do not see the world in the terms 
that we believe it should be in, they will be removed from office.
  Understandably, Jefferson was frustrated by the judges who were not 
listening to him and following his beliefs. So he came to his party in 
the Senate and said: Join me. And they said: No, Mr. Jefferson. We are 
loyal to you and your party, but we are more loyal to the Constitution, 
and the Constitution insists the judiciary must be fair and independent 
and balanced. And they said no.
  In more recent times, many can recall that Franklin Delano Roosevelt, 
one of our greatest Presidents, reelected to a second term, frustrated 
by the Supreme Court across the street which had killed his New Deal 
legislation, said: It is time to do something about the old men on the 
Court. He came to this Chamber, this Senate, and said to the Democrats 
of his own party: Help me change the judiciary. We need to put more 
Justices on the Supreme Court to overcome those old men. The Democrats 
and Republicans in the Senate said: No, Mr. President. We respect you. 
We support your goals and your programs. But the Constitution is more 
important than increasing your power as a President over the judiciary.
  And here we are today in the year 2005, coincidentally at the 
beginning of President George W. Bush's second term. And what do we 
hear from this President? He comes to this Chamber, to the Senate, and 
says to Democrats and Republicans alike: I want more power over the 
judiciary. I want to do something about those activist judges. And I 
resent the fact the Senate has not approved every judicial nominee 
which I have sent for approval.
  Which takes me to my last chart. For those following debate, for 
those who want to know what the score is, it is 208 to 5 or maybe 208 
to 10, depending on your count. But more than 95 percent of the 
nominees sent by President Bush to the Senate Chamber for approval have 
been approved. Mr. President, 208 to 5, and we are facing a 
constitutional crisis and confrontation because this President cannot 
get 5 judicial candidates he insists on?
  One wonders if this President, coming to this Senate, would hear the 
echos of what Thomas Jefferson heard or Franklin Roosevelt heard where 
his own political party would stand up and say: Mr. President, we 
respect you, but we respect the Constitution more. We respect the 
Senate more. Sadly, few of those voices have been raised.
  Within a matter of hours or days, we will face this historic 
constitutional crisis. I believe it comes down to some very fundamental 
principles. Neither this President nor any President should be allowed 
to change the rules in the middle of the game, to take away the right 
of extended debate on judicial nominees. Neither this President nor any 
President should be allowed to change the checks and balances which 
have given us our lifeblood

[[Page 9846]]

as a nation for over 200 years. Neither this President nor any 
President should make a lifetime appointment of someone to a Federal 
court who is not prepared to take on that awesome task and to dispatch 
it with the kind of integrity and skill and commitment to the values of 
America we must insist on.
  So in a short period of time, there will be a test in this Senate the 
likes of which it has never seen. We almost have to go back to the 
Civil War to recall a debate of this proportion. I sincerely hope my 
colleagues will rise to this challenge. I sincerely hope they will 
understand there is more at stake than whether a President has a good 
press release one day, whether some supporters cheer them on for 
standing up for 5 or 10 nominees, who understand that what we are 
debating is, sadly, going to be viewed for generations as a test of 
whether we are truly committed to preserving and defending the 
Constitution of the United States.
  I still have great hope. I still have great hope that enough 
Republican Senators will stand up to this President as Thomas 
Jefferson's party stood up to him, as Franklin Roosevelt's party stood 
up to him and said: Mr. President, we respect you, we believe in your 
program, we will support you, but first we have to be guided by our 
Constitution, and we cannot increase your power in this Government at 
the expense of the balance that was created by the wisdom of our 
Founding Fathers.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent to speak such 
time as I may require.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, I further ask that following my remarks, 
the Senator from Louisiana be recognized for her remarks.
  The PRESIDING OFFICER (Mr. Alexander). Without objection, it is so 
ordered.
  Mr. FEINGOLD. Mr. President, it is not uncommon for Senators to stand 
in the Senate and tell their colleagues and the American people that an 
upcoming vote is one of the most important the Senate will ever take. 
We are the masters of hyperbole in this body, forever standing on the 
precipices and poised on the brink of momentous decisions.
  But today, I think most will agree with me: We truly are at such a 
moment. The Senate is on the verge of making a decision with 
potentially enormous consequences for this institution and for the 
country and the people we serve. At stake is not just the fate of a 
handful of judicial nominations or of a future Supreme Court 
nomination, as important as they may be. No, the decisions made this 
week will resonate far beyond this Chamber and far beyond the current 
controversy.
  I will speak today about how we arrived at this moment of great peril 
and how we might step back from the brink. I will speak about the 
consequences of the question that will apparently be put before the 
Senate prior to our next recess. I will speak today about principle and 
about power.
  While they do not always attract a lot of public attention, 
traditional nominations are very important. We all know that. The 
judicial branch is a coequal branch of Government. The interpretation 
and enforcement of the laws we pass in Congress depend greatly on the 
men and women who serve as judges, and, of course, Federal judges serve 
lifetime appointments. Decisions made by the President and the Senate 
on judicial nominations have a long-term and long-lasting impact on the 
Nation.
  Disputes over how the Senate should exercise its constitutional power 
of advice and consent on such nominations are as old as the Republic 
itself. Nominations have led to some of the most historic and divisive 
debates in this body, dating back to efforts to pack the courts with 
Federalist judges in the waning days of John Adams' Presidency. More 
recently, we had debates about Franklin Delano Roosevelt's court-
packing plan in the late 1930s, the Abe Fortas nomination in the late 
1960s, and Robert Bork in the late 1980s, to give a few examples.
  Debate, even bitter partisan debate, over judicial nominations is 
nothing new. What is new is that the Senate is now poised to break with 
its rules and traditions. For the first time, the desire of one side to 
win nomination battles has become so intense and so unyielding that it 
threatens the very rules by which this Senate has operated for 
centuries.
  In all of the previous controversies I have mentioned, which I think 
most serious students of Congress and the courts would agree were more 
significant than the current debate over a handful of circuit court 
judges, the rules of the Senate have allowed the battles to be fought 
fairly.
  Only today, apparently, must those rules give way so one side can 
have its way. The majority leader and those who support his 
extraordinary plan to change the Senate rules by fiat seek to cloak 
their grab for power in the source of our Nation's loftiest principles, 
and that source is the Constitution.
  This is not just a silly public relations effort to change the name 
of their plan from the nuclear option--the term coined by the majority 
leader's predecessor--because that term obviously fares rather poorly 
in the public opinion polls. It is actually a cynical effort to 
distract the public from the extraconstitutional nature of the plan by 
invoking the Constitution itself.
  In the last Congress, as in this one, I served as the ranking member 
of the Senate Subcommittee on the Constitution. The subcommittee held a 
hearing in May 2003 with the grandiose title: ``Judicial Nominations, 
Filibusters, and the Constitution, When a Majority is Denied Its Right 
to Consent.'' The hearing was certainly interesting and provocative. I 
was there the whole time. No one made a convincing case that there is 
any such right in the Constitution anywhere.
  Article II, section 2 spells out the Senate's role in nominations. It 
states, in relevant part, that the President ``shall nominate, and by 
and with the Advice and Consent of the Senate, shall appoint . . . 
Judges of the supreme Court, and all other Officers of the United 
States.'' That is it. That is all it says. Some have managed to find in 
those few words a requirement that the Senate give all judicial 
nominees up-or-down votes. Even if someone isn't a strict 
constructionist, I can't for the life of me understand where they get 
that from. Where is it? Where is it in the language? Where is it in the 
Constitution?
  It may be the policy they prefer, but it is not a constitutional 
argument. It is not a constitutional requirement. In fact, the only 
language in the Constitution that directly addresses the issue we are 
faced with today is the following from Article I, clause 5:

       Each House may determine the Rules of its Proceedings . . .

  The Senate has determined its rules, and its rules also provide the 
means for changing the rules, of course. The Senate is now being asked 
to change the rules by breaking the rules. There is no principle 
involved here. There is just power.
  It is a shame that those who support the President's nominees have 
inflated what is essentially a political dispute to a constitutional 
debate. For those of us who take the Constitution seriously, it is 
jarring to hear colleagues suggesting that one is violating one's oath 
of office by voting not to end debate on a nomination.
  As my colleagues know, I spent 7 years in this body fighting to pass 
a campaign finance reform bill. We had a majority here on that bill 
after a couple of years. That wasn't the issue. For years that effort 
had the support of a bipartisan majority of Senators, but it was 
stymied by filibusters. Senators who supported reform had many 
spirited, sometimes even bitter, debates with Senators who opposed our 
bill. But never did we contend our opponents on campaign finance reform 
were violating their oath of office by using every tool available to 
oppose a bill with which they strongly disagreed.
  The Constitution does not prohibit opponents of a judicial nominee--
or

[[Page 9847]]

any nominee, for that matter--from using a filibuster to block a final 
vote on the nominee. The majority does not have a constitutional right 
to confirm a nominee, and the nominee has no constitutional right to a 
vote. As the senior Senator from West Virginia said the other day: The 
Senate has often denied consent to a nominee in the past by simply 
refusing to schedule a final vote.
  I have not always supported those actions, but I have not pretended 
they are unconstitutional.
  If the arguments being advanced today by the Republican majority are 
correct, then the Republicans acted unconstitutionally in 1995 when 
they defeated the nomination of Henry Foster to be Surgeon General by 
using a filibuster. They violated the Constitution when they required 
cloture votes before ultimately confirming Stephen Breyer, Rosemary 
Burkett, H. Lee Sarokin, Richard Paez, and Marsha Berzon to circuit 
court judgeships, David Sacher to the Surgeon General's office, and 
Ricki Tigert to the FDIC, Walter Dellinger to the DOJ's Office of Legal 
Counsel, and the current Governor of Arizona, Janet Napolitano, to be 
U.S. Attorney. If the arguments being advanced today are correct, they 
violated their oaths of office when they forced the ambassadorial 
nomination of Sam Brown to be withdrawn because they refused to end 
debate on his nomination.
  These are just the cases where a cloture vote was required to get a 
nomination through. I won't even start on the list of nominees who 
never even got a hearing or a vote in the Judiciary Committee or any 
kind of debate on the floor if they cleared committee. But there are 
dozens of them. Wasn't the majority denied its right to consent just as 
much in those cases? Is there any meaningful constitutional difference 
between a filibuster on the one hand and on the other hand a hold on 
the Senate floor or a wink and a nod between a committee chairman and a 
Member who just doesn't like a nominee? One could certainly argue the 
denial of consent by failing to schedule a hearing or a vote in 
committee is on even less firm constitutional ground than a filibuster 
because it allows just one Senator, the chairman of Judiciary 
Committee, to make the decision that the Senate's consent on a nominee 
will be withheld, whereas if all the Senators vote, a filibuster can be 
sustained only with 41 or more votes.
  But there is no real argument that filibusters of judicial 
nominations are unconstitutional, just as blocking nominations in 
committee is not unconstitutional. There is no principle here that 
justifies eliminating the filibuster for judicial nominees who have 
lifetime appointments but leaves it intact for nominees to the 
executive branch who can only serve until the term of the appointing 
President ends at the latest.
  There is no principle that can distinguish judicial nominations from 
legislation, which may also be passed by a majority, but can be amended 
or revoked by a majority in the same or later Congress as well. Again, 
the effort we are facing here is not based on principle, it is based on 
power. The lack of a constitutional basis for it is made even more 
clear by the specific plan that the majority leader spelled out in his 
press release last week.
  He intends, according to that release, to ``seek a ruling from the 
Presiding Officer regarding the appropriate length of time for debate 
on such nominees.'' Seeking a ruling on how long we should debate? 
Surely the Presiding Officer cannot make that ruling on constitutional 
grounds, the idea of a constitutional time limit. What is the 
constitutional basis for ruling that the Senate can debate a nomination 
only for a particular length of time? Is the Presiding Officer going to 
opine that it is constitutional to debate a nomination for 100 hours, 
but unconstitutional for us to have 101 hours of debate? That would be 
absurd.
  No, it appears that instead of following the existing precedents of 
the Senate, which state there is no dilatory rule except after cloture 
has been invoked, the Presiding Officer will just announce a new rule 
and the Senate will then debate and vote on an appeal of that ruling. 
If this happens, the rules of the Senate will be changed by fiat, by 
breaking the rules--not principle, power, the power of majority rule.
  The Constitution did not set up the Senate to be a majoritarian body. 
That is why renaming the nuclear option as the constitutional option is 
so wrong. The Constitution allows citizens from smaller States who 
could be easily outvoted in a majoritarian legislature such as the 
House to have the same power in the Senate as citizens of larger 
States. This is not a minor provision, as the Presiding Officer knows. 
The Founders clearly didn't think so because--this is amazing--they 
made it the only provision in the Constitution that cannot be amended. 
No State can give up its equal representation in the Senate without its 
consent. You can't do a constitutional amendment to change that. They 
designed the Senate to be an important bulwark against majoritarian 
pressure.
  The Senate rules from the very beginning, of course, have granted 
protections for the minority. There was no cloture rule at all until 
this century. The rule didn't cover nominations until 1949. While the 
cloture rule has changed over time--sometimes offering more protection 
to the minority and sometimes less--those rule changes have always been 
accomplished in accordance with the Senate rules until now, until the 
demand for power trumped principle.
  The Framers intended the Senate to act as a check on the whims of the 
majority, not to facilitate them. I will not pretend the Senate has 
always been on the right side of history. At times, most notably during 
the great civil rights debates of the 1950s and 1960s, Senators used 
the powers given them to block vital, majority-supported legislation. 
But notwithstanding those dark moments, the Senate has also served 
throughout the history of this Republic as a place where individuals 
with different beliefs and goals were forced to come together to work 
for the common good.
  By empowering the minority, the Framers created a body that has 
served this country well. To continue down the road we are on now will 
be to irretrievably change the very character of the Senate and 
irretrievably weaken the institution. Without the unique feature of 
extended debate, the Senate will be much less able to stand up to the 
President or to cool the passions of the explicitly majoritarian House.
  I know my colleagues see themselves as guardians of this remarkable 
institution, as I do. When we leave the Senate--and some day, somehow 
or another, all of us will--it is our responsibility to ensure we do 
not leave this institution weakened. As Senators, we tend to see 
ourselves as pretty important, but none of us--and certainly no 
judicial nomination--is more important than the institution of the U.S. 
Senate itself.
  Why is this extreme course necessary? Why are so many of our 
colleagues prepared to sacrifice the Senate's character and its special 
power? Why are they bent on giving up their own power as Senators?
  Let me take a minute to respond to some of the charges made about the 
behavior of the minority that supposedly has given the majority no 
choice but to use this nuclear option. First, we are told using the 
filibuster to block a judicial nomination is unprecedented. As anyone 
who has studied the record knows, that is nonsense.
  Most famously, the Fortas nomination was filibustered. The Senator 
who led that filibuster, Robert Griffin of Michigan, has tried to claim 
in recent days that it really wasn't a filibuster at all. But he said 
at the time:

       It is important to realize that it has not been unusual for 
     the Senate to indicate its lack of approval for a nomination 
     by just making sure that it never came to a vote on the 
     merits. As I said, 21 nominations to the court have failed to 
     win Senate approval. But only nine of that number were 
     rejected on a direct, up-and-down vote.

  We are told, however, that the Fortas nomination was different 
because there were Southern Democrats opposed to the nomination as well 
as Republicans. But what difference does that make? This debate is not 
about the rights of

[[Page 9848]]

the minority party; it is about the rights of a minority of Senators. 
Does anyone really think that if one or a few of our Republican 
colleagues joined a filibuster against one of the handful of circuit 
court nominees that have been blocked, it would make a difference to 
the Senators who support the nominations and want to change the rules?
  Fortas, of course, was a Supreme Court nominee, while the handful of 
nominees that have been blocked so far have been nominated to circuit 
courts. But there have been filibusters of circuit court nominees in 
the past as well, indeed in the very recent past. In 2000, cloture 
votes were held on two Clinton nominees to the Ninth Circuit, Marsha 
Berzo, and Richard Paez. The current majority leader himself voted 
against cloture on Judge Paez's nomination on March 8, 2000.
  Apparently, these filibusters were different because they were 
unsuccessful. The handful of Democratic filibusters of President Bush's 
nominees are unprecedented, we are told, because the Republican 
filibusters of Richard Paez and Marsha Berzon didn't prevent them from 
being confirmed. Does anyone really think that if the current majority 
leader and the others who voted--against ending debate on the Paez 
nomination had convinced their colleagues to join them they would have 
then changed their votes the next time around to make sure that the 
principle of an up or down vote was maintained?
  This is what now passes for debate and argument on the issue of so-
called ``obstruction'' of President Bush's nominees. ``The filibusters 
are unprecedented,'' they say. Never mind that Republicans, including 
the majority leader, used the same tactic against nominees they 
opposed. ``Democratic obstruction of the President's nominations is 
unprecedented,'' we hear. Never mind that the Senate approved 204 out 
of 214 nominations that came to the floor in President Bush's first 
term, but in the last 4 years of President Clinton's presidency, only 
175 nominees were confirmed and 55 were blocked, including 20 circuit 
court nominees. Many of those nominees never even got a hearing in the 
Senate Judiciary Committee on which I sit.
  Well, that was different, we are told, because President Bush's 
nominees have a majority of support in the Senate. But that distinction 
is nonsense as well. President Clinton's nominees had majority support, 
obviously. That is why they were held up in committee and never reached 
the floor, even for a cloture vote. Judge Paez, for example, was first 
nominated in January 1996. We finally confirmed him in March 2000. The 
vote on cloture was 85 to 14. The vote to confirm him was 59 to 39.
  But one of the most foolish arguments we hear in support of the 
nuclear option is that there is a crisis in the courts because of the 
number of vacancies caused by Democratic filibusters. As of the end of 
President Bush's first term, during which the Senate confirmed 204 
judges, there were only 27 vacancies on the Federal bench. The courts 
had their lowest vacancy rate since 1990. Five months into his second 
term, there are now 45 vacancies, but the President has made 
nominations for only 15 of them, one-third. For 30 vacancies there are 
no nominees. The vacancy rate is still very low historically. If there 
is a crisis now, which there isn't, it surely is not the Senate's 
fault.
  There is no vacancy crisis. But we are about to be thrown into a 
constitutional crisis by a majority that is drunk with power. While 
there is plenty of blame to go around, the President precipitated this 
crisis. When he took office in 2001, he had an opportunity to end the 
bitterness that plagued judicial nominations over the previous decade 
by recognizing that an injustice had been done to a large number of 
Clinton nominees. Not an unconstitutional injustice, but an injustice 
nonetheless There were enough vacancies on the Federal appellate courts 
for him to name most of the judges but give a few seats to Clinton 
nominees who had been blocked, or to other nominees suggested by 
Democrats in those States. In his first group of nominations, which 
were almost all to the appellate courts, he made a nod in that 
direction by nominating Roger Gregory to the Fourth Circuit. President 
Clinton's nomination of Gregory, the first African-American to sit on 
that circuit, had been blocked in the Judiciary Committee. He was 
eventually confirmed by a 99-1 vote.
  The hopes that the President would make good on his campaign promise 
to change the tone in Washington were short lived. He ignored pleas for 
consultation and conciliation on judicial nominations. Time after time, 
he has filled appellate court seats that had been kept vacant during 
the Clinton years with extremely conservative and often controversial 
nominees. Yet Democrats certainly didn't block all or even nearly a 
majority of those choices. Much to the displeasure of many of the 
groups on the left that work on nominations, Jeffrey Sutton and Deborah 
Cook now sit on the Sixth Circuit, Jay Bybee, who we later learned was 
the author of the infamous DOJ torture memo, is on the Ninth Circuit. 
Michael McConnell and Timothy Tymkovich are on the Tenth Circuit. In 
all, 35 of President Bush's nominations to the circuit courts have been 
confirmed, even though 9 of those seats became vacant during the 
Clinton years and were kept vacant by denying Clinton nominees an up or 
down vote.
  Only seven judges were blocked because of their views or records. 
Three others were held up because of the particularly egregious tactics 
used to block Michigan nominees to the Sixth Circuit during the Clinton 
administration. The President has succeeded in reshaping the Federal 
courts to his liking. He may soon have one or even two Supreme Court 
nominations to make. He ought to be proud of and pleased with his 
accomplishments, but winning almost all the time apparently isn't 
enough. And in order to win every time, he is willing to push the 
Senate to upend over 200 years of tradition and precedent and perhaps 
permanently damage the comity on which this institution functions.
  In the end, the seemingly insurmountable differences we have on 
judicial nominees can only be resolved the way that seemingly 
insurmountable differences are resolved on almost all other hotly 
contested issues in the Senate--through negotiation and compromise. Of 
course, for there to be compromise, both sides have to be willing to 
engage in that effort. The offers made by the majority leader thus far 
do not retain the unique and crucial feature of the current Senate 
rules--the right to unlimited debate. They amount to a slow motion 
nuclear option.
  It may be that a confrontation cannot be avoided. The groups that 
support the President's nominees are clamoring for the nuclear trigger 
to be pulled. The only hope for the Senate is the Senate itself. In the 
end, this decision will be made by the 100 men and women given the 
honor and responsibility of serving in this body at this point in our 
Nation's history. The stakes could hardly be higher, or the 
consequences to this body more significant. I can only hope that my 
colleagues vote to let the Senate continue to be the Senate.
  The checks and balances that the Framers created are at great risk 
today. The American people will suffer a great loss if we step over 
this precipice. My fervent plea and hope is that the Senate will choose 
principle over power.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Louisiana is recognized.
  Ms. LANDRIEU. Thank you, Mr. President. I understand we are in 
morning business. I ask unanimous consent that I may extend my remarks 
to consume about 20 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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