[Congressional Record (Bound Edition), Volume 151 (2005), Part 8]
[Senate]
[Pages 10523-10551]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE 
                     FOR THE FIFTH CIRCUIT--RESUMED

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session for the consideration of 
calendar No. 71, which the clerk will report.
  The bill clerk read the nomination of Priscilla Richman Owen, of 
Texas, to be United States Circuit Judge for the Fifth Circuit.
  Mr. ALLARD. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ISAKSON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cornyn). Without objection, it is so 
ordered.
  The Senator from Georgia.
  Mr. ISAKSON. Mr. President, I rise this morning to continue the 
debate with regard to the confirmation or advice and consent on the 
approval or denial of judges nominated by the President of the United 
States. I have listened to most of the debate and have participated in 
some of it. I have found something to be very interesting. We have not 
talked much about whether these seven, upon which a filibuster has been 
threatened, are qualified. We, instead, have argued as to whether 
something that was never used for 214 years is or is not a tradition.
  So I thought this morning I would talk about one of these seven. We 
obviously are debating Priscilla Owen, from the Presiding Officer's 
home State of Texas. But I want to direct my remarks to Janice Rogers 
Brown, of California, who also has been threatened to be filibustered 
and not allowed to get a vote, up or down.
  I thought, in preparing my remarks, I would research those who do not 
think she should get a vote and what they are saying about her record 
so I could at least come to the floor and debate what we really should 
be debating, and that is the qualifications of that judge. I went to a 
number of Web sites, and I found something very common that you usually 
find in this type of an issue. I found a couple of quotes, repeated 
over and over again, as exemplary of why Janice Rogers Brown is not in 
the mainstream.
  So what I thought I would do today in my time is take those quotes 
and the sense from those two speeches she gave and ask the question, Is 
she out of the mainstream? For, you see, the two quotes that are used 
so much on the Web sites to disparage Justice Brown are two quotes from 
two speeches, both of which I have read, which I find to be quite 
remarkable. Both were made in the year 2000, and both are fundamentally 
about the beliefs of Janice Rogers Brown.
  So I would like to analyze those two quotes for a second and ask us 
to ask the question, Is Janice Rogers Brown in the mainstream or is she 
not?
  The first quote is from August 12, 2000, in a speech she made, 
entitled ``Fifty Ways To Lose Your Freedom.'' I apologize to the Chair. 
I am going to read precisely so I do not miss a word. This is a quote 
used to say she is not in the mainstream--one of them. She said:

       Some things are apparent. Where government moves in, 
     community retreats, civil society disintegrates and our 
     ability to control our own destiny atrophies. The result is: 
     families under siege; war in the streets; unapologetic 
     expropriation of property; the precipitous decline of the 
     rule of law; the rapid rise of corruption; the loss of 
     civility and the triumph of deceit. The result is a debased, 
     debauched culture which finds moral

[[Page 10524]]

     depravity entertaining and virtue contemptible.

  That is a strong statement, but it sits there on its own without any 
thought or context to the speech that was made because the speech by 
Mrs. Brown was her belief in the innate goodness of people. What she 
refers to in her speech as to natural law is that we are born knowing 
right from wrong and good from evil. Her point is that when Government 
becomes so big, so intrusive, and so pervasive, it can do all of the 
things that she listed. And as to those things she listed, some people 
say that is not a mainstream statement. So I ask myself, let's look at 
those things she said could happen as we lose our freedom.
  She said families are ``under siege.'' I think that is a fair 
statement in contemporary 21st century. Divorce continues to be up. 
Child abuse grows. Obviously, that has been a problem.
  She talks about ``war in the streets.'' We do not have war in the 
streets, but we have gangs in the streets. We have crime in our 
streets.
  ``Expropriation of property.'' I look at the assault on private 
property rights, something we debate in this Senate; on ``the rule of 
law,'' where today it seems, in many cases, the whole goal is to avoid 
the rule rather than follow it.
  ``The triumph of deceit.'' Even in corporate America, look at 
WorldCom, a statement of deceit to represent a value that did not 
exist.
  A ``debased culture.'' Well, I am a product of the 1950s and 1940s 
and 1960s, when I grew up, similar to Mrs. Brown. I do not know if this 
is a good example or not, but in the 1950s, when I was growing up, 
``Father Knows Best'' was the No. 1 show. Today, it is ``Desperate 
Housewives.'' I think that tells us something about the direction we 
may have gone in terms of the value of entertainment.
  And then let's talk about ``virtue'' for a second and finding it 
``contemptible.'' We are in a time where Justices have ruled that 
``under God'' does not belong in the Pledge of Allegiance and 
``obscenity'' is in the eye of the beholder. Somewhere along the way, 
Janice Brown makes a very good point. When Government grows so large 
that it permeates every facet of society, and there are not restraints 
upon it, then the natural law of what we know as good and evil or right 
and wrong really loses its momentum.
  Janice Brown made another comment in that speech which I found 
remarkable because it fundamentally talks about what she believes in 
terms of democracy and freedom. I want to quote that. She wrote:

       Freedom and democracy are not synonymous. Indeed, one of 
     the grave errors of American foreign policy is the assumption 
     that merely installing the forms of a regime like ours--
     without its foundation--will automatically lead to freedom, 
     stability, and prosperity.

  Is that out of the mainstream? I don't think so. Janice Rogers Brown 
was saying: You just can't say you are something unless you have 
fundamental foundations and values to underpin that. That is what has 
made this democracy of ours so great. That is why our freedom has 
endured, because we are built on fundamental foundations of right and 
wrong.
  I, for one, as I consider whether I would give advice and consent on 
a justice to one of the highest courts in our Nation, like somebody who 
has that fundamental belief in natural law, that fundamental belief in 
right and wrong, and that fundamental belief that by human nature we 
are good people, and that freedom of good people, governed by natural 
law, is the greatest freedom of all.
  There is a second quote that has been used over and over on Web 
sites. I want to share that quote, if I may. It is from another speech 
she made, although it is in the speech I mentioned on ``Fifty Ways to 
Lose Your Freedom.'' It is also given and quoted from a speech made in 
the year 2000 in April to the Federalist Society called ``A Whiter 
Shade of Pale.''

       My grandparents' generation thought being on the government 
     dole was disgraceful, a blight on honor. Today's senior 
     citizens blithely cannibalize their grandchildren because 
     they have a right to so much ``free'' stuff as a political 
     system will permit them to extract . . . Big government is . 
     . . [t]he choice of multinational corporations and single 
     moms, for regulated industries and rugged [midwesterners], 
     and militant senior citizens.

  That quote is cited to say that she is not in the mainstream, without 
explanation and out of context. I wanted to analyze it for a second. I 
am a little older than Janice Rogers Brown, but we are of the same 
generation. We are contemporaries. I was born in the early 1940s, she 
in the late 1940s. My grandparents found the Government dole 
contemptible as well, just as hers. My grandparents were sharecroppers, 
just as hers. In fact, my grandfather, for whom I am named, was a 
pretty successful tobacco warehouse man in Coffee County, GA, who lost 
it all in the Depression and sharecropped. During the summers in the 
1950s, my mom would send me down there to work on the farm with him. I 
heard him say many times he never wanted to have to be on the 
Government dole.
  That was not out of the mainstream then, and it is not out of the 
mainstream now. All of us want to find the prosperity of individual 
initiative and live and work in a country whose system of justice 
honors the greatest success that any of us can achieve.
  But she made another good point when she talked about big government 
is, in many cases, the choice of multinational corporations and single 
moms. Taken out of context, somebody might say: Is that in the 
mainstream? Well, she is pointing out what you and I see every day, and 
that is both single moms and multinational corporations have their own 
lobbies here to lobby us. In terms of corporations, that may be for tax 
treatment or regulation. In terms of single moms, it may be for 
benefits. But the bigger government grows, the more pervasive it gets, 
the more those lobbies may grow.
  And she says for regulated industries and rugged midwesterners. 
Yesterday I had a meeting with an energy company that is regulated, and 
rugged midwesterners--including Senators in this body--are out for 
ethanol benefits all the time. And she was pointing out that how big 
government can get and how pervasive it may be can make all of us 
possibly too dependent on that big government.
  As far as the statement about senior citizens cannibalizing their 
children's future, I understand why somebody might say that is a strong 
statement. But the debate of the day, outside of this issue of the 
filibuster, is about Social Security, and the debate to follow that 
will be about Medicare, and the fact that the two combined, of which I, 
a senior citizen, will very shortly benefit from, will, if not 
reformed, cannibalize my grandchildren's future.
  Janice Rogers Brown is not only not out of the mainstream, somebody 
might have even called her a prophet in the year 2000 when she made 
both of these speeches. The analogy she drew and the conclusions she 
made are now the contemporary issues of the day.
  I did a radio interview this morning in my State of Georgia to one of 
the most listened to stations in the city of Atlanta. I was asked by 
the host: Mr. Isakson, you were in the minority in the Georgia 
Legislature for years and were the leader for 8. Do you understand Mr. 
Reid and the minority's point on the filibuster?
  My answer was: Yes, I understand it. When I was in the minority in 
that role in the legislature, I tried to take every advantage of every 
rule. But there is a point in time at which you do what is right. You 
do what the master rule tells you to do.
  For us, the master rule is the Constitution. And in article II of 
that Constitution, it delegates to the President the authority to 
appoint Justices to the Supreme Court and several courts created 
thereunder, and it gives the Senate the responsibility to advise and 
consent, advice and consent that is not delineated in any way in that 
sentence or in that document to require anything other than a simple 
majority.
  In fact, there are seven places in the Constitution where it says we 
have to have a supermajority: Impeachment is one, ratifying the 
Constitution. Sometimes it is two-thirds; sometimes it is three-fourths 
in terms of the States

[[Page 10525]]

ratifying the Constitution. The Constitution is specific. It is 
specific on judges that the Senate advises and consents, without 
designation of a supermajority.
  For the public who listens to the debate about filibusters and 
tradition, that really is the issue. The rule of the Senate invoking 
cloture that requires 60 votes to bring up a simple majority vote is 
the application of a rule to supersede the constitutional dictate that 
this Senate vote up or down on Janice Rogers Brown and Priscilla Owen. 
That is ultimately the issue. To me, it is that simple.
  Another reason I chose to talk about Janice Rogers Brown is because 
she is a daughter of the South. Because of the admiration I have for 
her--she and I grew up in the same South. We grew up in the most 
significant change that part of the country ever went through, when 
civil rights changed, beginning with Brown v. Board of Education in 
1954, and I, as a student in school, went through that transition where 
the schools were integrated. And in college, while I studied political 
science, the debate in this body and the most famous filibuster of all 
was about the civil rights laws that were passed in the 1960s.
  Janice Rogers Brown was born at a time and in a year where her 
ascension to the bench on the Supreme Court of California or the 
Federal courts would not have seemed possible because of the rules of 
the day in the South. But she and I grew through a time where this 
Congress--in fact, this Senate--saw fit to memorialize the civil rights 
laws and equalize the treatment of every American.
  That is why I believe Janice Rogers Brown deserves a vote up or down. 
I care and I respect how any Member of this body will vote. But voting 
not to vote, to deny someone the opportunity to which they have been 
nominated by the President, elected by a majority of the electors in 
the last election, is not right. It is not, as Janice Rogers Brown 
referred to it, the natural law. We all know basically the difference 
in right and wrong. Denying that vote is wrong.
  My remarks this morning are to say simply to those who would say that 
Janice Rogers Brown is not in the mainstream: I ask you to do what I 
have done. Read her speeches that are quoted. Read them all. When you 
read the speech ``Fifty Ways to Lose Your Freedom,'' don't read the 1 
paragraph out of context; read all 18 pages and read it a second time. 
Understand that this is a woman who wants everybody to understand that 
she believes in right and wrong. She believes in the appropriate role 
of Government. She believes in empowerment of the individual. Every 
thought of all these quotes ends up being based in that very fact, the 
natural law of the belief of human beings in right and wrong and the 
empowerment of the individual. I hope Janice Brown is in the mainstream 
because I believe that is what the mainstream believes. And those who 
think it is not have to believe the opposite, which is less power of 
the individual and shades of gray when it comes to right and wrong. We 
need on the bench those who see things clearly and speak their mind.
  In my meeting with Janice Rogers Brown, I told her I was going to 
speak about her because I had been so impressed with her record and 
because I had gone back and read those speeches. She told me this at 
the end of our meeting: I respect anyone voting either way on me. In 
fact, in a way, I am glad my speeches are now being read. They should 
know what I think, and they should know what I believe. I should know 
how they feel.
  I hope sometime after next Tuesday, after we finally come, hopefully, 
to a vote on Priscilla Owen, we will come to a vote on Janice Rogers 
Brown, and we will find confirmed to another court another justice who 
believes in the power of the individual and the difference in right and 
wrong.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DODD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. DODD. Mr. President, it is with no small measure of reluctance 
that I rise on the floor of the Senate to speak on the matter of 
extended debate, the filibuster rule. I certainly wish--and I believe 
many of my colleagues on both sides of the proverbial aisle wish--we 
were engaging in some other matter. Certainly, there are other matters 
that are far more pressing in the eyes of the American public than the 
discussion we have been having over these last several days and will 
have over this weekend and early into next week.
  As is the tradition of this institution, the majority has the right 
to set the agenda, and they are doing so, obviously, with their 
insistence upon this particular debate and preoccupation with changing 
the Senate rules with a simple majority. Eliminating the extended 
debate rule of this institution when it comes to judicial nominations 
is a matter of grave importance. I can think of no other issue that I 
have been engaged in over the years that has as many profound 
implications for how this institution will function in the years to 
come if the majority prevails in its desire to change these rules.
  Like many others, I wish we were debating the issues here and trying 
to do something more about gasoline prices, education, and health care. 
In a sense, we are engaging in a filibuster, I suppose, in terms of our 
ability and willingness to engage in debate on the matters that are 
most pressing to the American public.
  We are a unique institution. There have been 1,884 of us who have 
served here in 217 or 218 years. It is a rather small group when you 
think of it--a Nation of more than two centuries in age and yet not 
even 2,000 people have been so fortunate as to have been chosen by 
their respective States to sit and represent their interests in this 
unique institution we call the Senate.
  So I begin this discussion by admitting to my colleagues that this is 
no passing matter of interest to any of us here. It is one of the most 
important debates we are ever apt to have. In fact, it may be the most 
important. Even for those who just arrived here 1 or 2 years ago, or 4 
or 5 years ago, the outcome of this debate will have profound and long-
term implications for the ability of this institution to continue to 
play the important role it has in the history of our Nation.
  We have all been honored by our constituents with the privilege of 
serving here, and we have all come to learn that the Senate is not 
simply a place where we come to work every day; it is a supreme 
monument, in my view, to human civilization. It is one of mankind's 
most noble achievements, the establishment of the Senate. It is unique 
in all the world in many ways as a place founded on timeless and time-
tested principles: respect for human freedom, respect for minority 
rights, and checks on the tendency of any leader or party to accumulate 
and abuse power.
  The majority leader of the Senate, like the rest of us, is one of its 
temporary stewards. He is, like the rest of us, a transient member of 
this enduring institution. He proposes to change the Senate rules to 
eliminate the right of extended debate with respect to judicial 
nominations. He is considering doing so by a procedure that, in my 
view, is outside of the rules of the Senate. I take the floor to 
discuss and debate this proposal. In doing so, I engage with our 
colleagues in a practice that is as old as the Senate itself.
  I know other colleagues have come to the floor in recent days and 
hours to debate this proposal. Some have spoken in support and others 
in opposition. Our debate is in keeping with the deliberative rules and 
practices that have been a hallmark of this institution since it was 
conceived during that steamy Philadelphia summer 218 years ago.
  This is not just a matter of professional interest for me either; it 
is intensely personal as well. I vividly recall as a young boy sitting 
in the Senate gallery watching my father, a Member of this institution, 
and his colleagues debate the great issues of their

[[Page 10526]]

time. They were passionate debates, and the use of the filibuster was 
very much in play. Civil rights, war, poverty, and other issues were 
demanding the attention of this institution.
  I remember, as well, as a teenager sitting on the floor of the 
Senate, where these young men and women sit today, as a Senate page 
during some of the civil rights debates of the early 1960s. We watched 
Senators such as Lyndon Johnson, Everett Dirksen, Paul Douglas, and 
Jacob Javits. We watched them debate sometimes with great passion and 
vehemence. We watched them negotiate, as well. They were well schooled 
in the art of advocacy and equally well schooled in the art of 
compromise. They understood the obligation of party, but they were no 
less committed to fulfilling their obligations to this great Senate and 
the country in which they lived.
  I particularly recall watching the Senator for whom our first office 
building, the Russell Building, is named. The Presiding Officer, of 
course, knows of this individual as well as any member here. Senator 
Russell led a very determined minority, insisting on the right to be 
heard on the issue of civil rights. Theirs was not a popular position. 
My father and others vehemently opposed the position of Senator Richard 
Russell--despite their great friendship, I might add. My father and 
others were frustrated at the possible ability of Senator Russell and a 
minority of Senators to defeat civil rights legislation. Senators who 
supported civil rights--my father included--did indeed protest the use 
of extended debate by their adversaries. They even attempted to lower 
the threshold of Senators required to end such debate. One could hardly 
blame them, I suppose. Tens of millions of Americans were being 
systematically and often brutally denied their basic rights.
  Using Senate rules and practices to block civil rights legislation 
was understandably seen by many Senators--most, in fact--as an affront 
to American values. Nevertheless, efforts to eliminate the rights of 
the minority to engage in extended debate with respect to civil rights 
legislation ultimately failed. The noble cause of racial equality 
ultimately prevailed in the Senate, and so did the practice that for so 
long thwarted its triumph.
  Therein resides the central paradox and the towering majesty, I might 
add, of this great institution, the Senate. What makes this place so 
revered and unique is what can simultaneously gall us about it the 
most--the practice of extended debate. From 1789 until 1917, 128 years, 
this practice of extended debate, if you will, was absolute in its 
scope. All Senators had to consent--all of them--to close debate on any 
matter at all. For a subsequent period of 58 years, two-thirds of the 
Senate was required to end debate--though only on a ``pending 
measure,'' meaning a legislative matter.
  It would not be until 1949 that something less than unanimous consent 
would be required to close debate on nominations--1949, a little more 
than 50 years ago. Currently, three-fifths of the Senators, of course, 
chosen and sworn are required to close debate on any matter. A motion 
to proceed to the consideration of a change in Senate rules requires an 
even higher threshold--two-thirds of Senators--to close debate.
  As far as I know, the proposal of the present majority leader to 
require a simple majority to close debate is without precedent. There 
is not a single rule allowing a bare majority to force a vote on a 
judicial nomination. Certainly, his proposal would, if successful, 
fundamentally alter the nature of the Senate and the balance of power 
as created by the Framers of the Constitution.
  Part of the difficulty here is the fact that over 50 percent of this 
body has primarily served under one set of circumstances. Thirty-six 
members of the 55 in the majority have primarily served in the 
majority. Close to half of the Democrats in this body have primarily 
served in the minority. I have served in this institution for a quarter 
century, since 1981. I have served in this body under every imaginable 
configuration in its relationship to the House of Representatives and 
the Presidency. I have served in both Houses. I have served when this 
institution was held by the Democrats and the House by Republicans, and 
the reverse, when the House was held by Democrats and this institution 
by Republicans. I have served under both Democratic and Republican 
administrations.
  You need to serve here under different circumstances, I say with all 
due respect to my colleagues who have been here a limited amount of 
time, to appreciate how this institution functions. You need to sit 
there and be a minority member to understand the importance of minority 
rights. You need to be there as a majority member to understand the 
importance of setting the agenda. But it is almost impossible, I say 
with all due respect, to understand the delicacies and the rhythms of 
this institution if you have just been here a limited amount of time, 
serving under one set of circumstances. That, in a sense, is one of the 
problems.
  It is also a problem that too many of our Members have come from the 
other body, the House of Representatives. I am included. The other body 
has become highly divisive. It is highly partisan, with reasons and 
faults on both sides. But Members who have come from that institution 
to this institution too often bring some of that luggage, in effect, 
some of that passion that existed in the House, and have allowed it to 
contaminate this institution. We need to stop it.
  Too often, over the last number of days, I have heard Members cite 
speeches given by other Members here. In my earlier days here, that 
would have never happened. You might debate with one other Member and 
remind them of something they said earlier, but a sort of free-flowing 
attack on other Members of the Senate does this institution ill 
service, in my view. We ought to have more respect for this place, for 
the role it has played historically, and the role it will play, and get 
back to the business of doing what the Senate does best.
  One of the reasons the extended debate rule is so important is 
because it forces us to sit down and negotiate with one another, not 
because we want to but because we have to. I have helped pass many 
pieces of legislation in my 24 years here, both as a majority and 
minority Member of this institution. I have never helped pass a single 
bill worth talking about that didn't have a Republican as a lead 
cosponsor. I don't know of a single piece of legislation here that 
didn't have a Republican and a Democrat in the lead. We need to sit 
down and work with each other. The rules of this institution have 
required that. That is why we exist. Why have a bicameral legislative 
body, two Chambers? What were the Framers thinking about 218 years ago? 
They understood the possibility of a tyranny of the majority. And yet, 
they fully endorsed the idea that in a democratic process, there ought 
to be a legislative body where the majority would rule.
  So the House of Representatives was created to guarantee the rights 
of the majority would prevail. But they also understood there were 
dangers inherent in that, and that there ought to be as part of that 
legislative process another institution that would serve as a cooling 
environment for the passions of the day. So the Framers--at the 
suggestion of two Senators from Connecticut, I might add, the State I 
am privileged to represent, Roger Sherman and Will Oliver Ellsworth; 
hence the compromise is called the Connecticut Compromise--sat down and 
said: There is a danger if we don't adopt a separate institution as 
part of the legislative branch where the rights of the minority will 
also prevail, where you must listen to the other side in a democracy, 
pay attention to the other side.
  In fact, minority interests, we have learned, historically have been 
on the right side of the issue on many occasions in our history. Had 
there not been a place called the Senate, we might never have enjoyed 
the privilege of seeing our country recognize the value of those 
positions over time.
  This institution and its rules have given this country remarkable 
leadership over these 218 years, and central

[[Page 10527]]

to that rule has been the extended debate clause, which forces Senators 
to sit down and work with one another. That is why we have a 6-year 
term. That is why only one-third of us are up every 2 years. That is 
why we have a term longer than the President or the House Members. That 
is what the Framers had in mind. They were worried about too much 
control residing in one branch or the other. So they created this 
remarkable institution.
  I say this again with all due respect. I listened to our colleague 
from Hawaii, Senator Inouye, who gave his maiden speech on the floor of 
the Senate supporting the filibuster rule during the civil rights 
debates. The first thing he said in that debate was: I am most 
reluctant to get up because I understand the tradition of this 
institution of taking a little time before you get up as a new Member 
and talk about what needs to be done.
  I am not suggesting people ought to go back to the 19th century, or 
early 20th century, and sit back and wait and bide their time. But it 
is important to learn how this place functions. There are rules here, 
clearly. But there is something beyond rules; there are traditions that 
are not written down in any book anyplace but which make the place 
function. When you read Robert Caro's book ``Master of the Senate,'' 
about Lyndon Johnson and the golden age of the Senate, the days of 
Calhoun and Clay and Webster, the days in the early 1950s, when giants 
served here and engaged in the great debates of their times, it was not 
necessarily the rules of the Senate that created those great moments in 
history; it was the quality of the individuals here who respected the 
rules and worked within them, because they understood the value of this 
institution.
  That is what worries me so much about this debate. We are not paying 
attention to each other here. We have come to believe, I suppose, that 
the sum of the special interests in this country equals the national 
interests. They never have and they never will, in a sense. We need to 
focus on the history of this place, the role we can play, and the 
importance this institution can play in the years ahead. As I said at 
the outset, we are only stewards here.
  I have been here a quarter of a century. It is a fraction in time. 
And what do we do with our time? When our tenure is over and our legacy 
is written, the history of our service, the question will be asked--
what did we do with our time? We do not get a chance every day to make 
a huge difference. There are only going to come a handful of 
opportunities that will be of great value when you look back on your 
service and think of the best moments you had.
  Some of the best moments, I promise, for those recently arriving in 
the Senate, will be the moments when you stood up and defied, in a 
sense, the passions of the day, the trend of the day, and said: I am 
going to do something different. I am going to step out of the 
predictable role and try and do something people may not expect.
  Over my service here, those Members who have done that are the ones 
who have enjoyed their service and look back on their service with the 
greatest sense of pride.
  This institution deserves some leaders today who are willing to stand 
up and protect it and defend it. I know passions are running high. I 
know the temperature is getting hotter and hotter by the day. But this 
issue we are debating will probably fade in memory. It will be hard to 
recall a few years from now what it was we were debating when the 
filibuster rule was involved. I do not minimize this issue of judicial 
nominations. I respect my colleagues who feel passionately about this 
issue. But I promise them, within a matter of months or years, you will 
be hard pressed to recall the names of the people involved or exactly 
where they were going to serve, on what bench.
  Yet the rules we change will profoundly affect how we are going to 
engage effectively in the other matters that come before us. If the 
majority decide they simply do not like the rules in any one Congress 
and change it with a simple majority, then the rules will mean almost 
nothing if they can change them with 51 votes.
  The reason our Founders set such a high standard over the years is 
because they wanted some perpetuity to those rules. And if, after all 
of this, we are able to say with regard to extended debate that you are 
going to eliminate that as well, then obviously there is a fear this 
same procedure, this elimination of extended debate, will also be used 
to limit debate on other matters beyond judicial nominations. Once you 
set the precedent, it is not that long a leap to go from judicial 
nominations to substantive matters.
  Throughout our history, the right of extended debate has never been 
seriously questioned, in my view, as other than a vital foundation of 
our Republic. It has been the catalyst for achieving the most 
remarkable feature of our civilization: the degree to which we have 
been able to provide our citizens with great freedom and great 
stability.
  The Senate was created, in the words of James Madison, ``first to 
protect the people against their rulers; secondly to protect the people 
against the transient impressions into which they might be led. . . .''
  He went on to say:

       The use of the Senate is to consist in its proceeding with 
     more coolness, with more system, with more wisdom, than the 
     popular branch.

  The word ``Senate'' comes from the Latin word ``senatus,'' wise men, 
wise people. We always associate wisdom with tenure, with service, with 
experience, and the people who have had life experiences and bring them 
to this institution. That is the word ``Senate,'' that is what it 
means.
  In order to carry out this mission, of course, the Framers endowed 
this institution with a few extremely important qualities and powers. 
First, as I mentioned, the Framers gave Senators terms of office, as I 
mentioned, three times longer than House Members and one-third longer 
than the President's.
  Second, as I mentioned as well, the Framers ensured that only one-
third of the Senate stands for election every 2 years, thereby making 
it a continuing body.
  Next, the Framers created a body dramatically different from the 
House. Each State would be represented by two Senators no matter how 
small or large, ensuring that the interests of smaller States would not 
be trampled upon by the more popular jurisdictions.
  And, finally, the Founders insulated the Senate from sanction for 
debate by explicitly granting it the power to ``determine the rules of 
its own proceedings.''
  These constitutionally mandated attributes have proven 
extraordinarily successful in ensuring the Senate is a bulwark against 
popular passions that move in time from the left to the right, back and 
forth. None of us can predict within a matter of days, hours, weeks, 
months, how the country's popular opinion moves and changes. And yet 
having a place where those passions are not going to dictate the 
outcome every day is essential to the stability of this great Republic, 
in my view.
  With these great rights come responsibilities, of course. The Senate 
was given special powers to try impeachments, ratify treaties, and, 
most critically for our purposes today, to confirm nominees. Perhaps 
nowhere other than in the advice and consent responsibility of the 
Senate, laid out in article II, section 2 of the Constitution, do we 
see the Framers' keen preoccupation not only to respect the principle 
of majority rule but, as important, to limit the possibility of an 
overreaching Executive and the tyranny of the majority.
  The President nominates, but the President's power is balanced and 
checked by the power of the Senate to provide advice and consent. 
Remember, Mr. President, what were the personal experiences of the 
Framers? They came off an experience where one individual, a king, had 
made exclusive decisions that affected the lives of millions of people, 
and they were suspicious of an awful lot of power being accumulated in 
too small a place or too few hands.
  With respect to the judiciary, the third and separate equal branch of 
Government, the powers of the President and the Senate are deliberately 
and

[[Page 10528]]

carefully counterimposed. Robert Caro, the author whom I cited earlier, 
has observed that very point. Caro says in his book:

        . . . [I]n creating the new nation, its Founding Fathers, 
     the Framers of its Constitution, gave its legislature . . . 
     not only its own powers, specified and sweeping . . . but 
     also powers designed to make the Congress independent of the 
     President and to restrain and act as a check on his 
     authority, [including] power to approve appointments, even 
     the appointments made within his own Administration. . . . 
     And the most potent of these restraining powers the Framers 
     gave to the Senate. . . . The power to approve Presidential 
     appointments was given to the Senate alone; a President could 
     nominate and appoint ambassadors, Supreme Court Justices, and 
     other officers of the United States, but only ``with the 
     Advice and Consent of the Senate.''

  The proposal contemplated by the majority leader would, with all due 
respect to the leader, in my view, undermine the Senate's role in our 
constitutional democracy. I know that has been said by many others. It 
would surrender enormous power to the Executive and upset, in our view, 
the system of checks and balances created by the Framers.
  It would have us move to a majority cloture rule on that portion of 
our business that girds the independence of the judicial bench.
  There is an irony to this proposal that cannot go unstated, and 
should not go unexamined. It proposes to limit the Senate's exercise of 
its power in the matter of nominations rather than legislation. Yet one 
can argue convincingly that it is precisely in the area of 
nominations--particularly judicial nominations--that the Framers 
intended that power to be most utilized.
  We must remember that during the Constitutional Convention, only 
after lengthy debate was the power to appoint judges committed to the 
President as well as to the Senate.
  In the closing days of that Convention, the draft provision in the 
Constitution still read as follows:

       The Senate of the United States shall have the power to . . 
     . appoint . . . Judges of the Supreme Court.

  On four separate occasions, proposals were made to include the 
President in the process for selecting judges. And on four occasions in 
those closing days, those proposals were rejected. Why? John Rutledge 
of South Carolina said it best: ``The people will think we are leaning 
too much toward monarchy'' if the President is given free rein to 
appoint judges.
  The final compromise was characterized by Gouverneur Morris of 
Pennsylvania as giving the Senate the power ``to appoint Judges 
nominated to them by the President.'' In Federalist Paper No. 76, 
Hamilton explained the Senate's review would prevent the President from 
appointing judges to be ``the obsequious instruments of his pleasure.'' 
As Federalist No. 78 confirms, the Founders were determined to protect 
the independence and the integrity of the courts, and they believed the 
chief threat to the independence and integrity of our courts was a 
President who had nearly unchecked authority to appoint judges.
  Against this backdrop, it is, indeed, ironic and troubling to this 
Senator that the majority leader now suggests that we restrict 
deliberation, debate, and the rights of the minority with respect to 
the nominations process, and thereby enhance the ability of the 
majority to turn this Senate into a rubberstamp for Presidential 
nominees, Democratic or Republican.
  The majority leader and his supporters refer to this effort as the 
constitutional option. Yet in the name of the Constitution, they are 
advocating a change that defies the history of the very document they 
claim to honor. They eagerly lecture this body about preserving 
fidelity to the original intent of the Framers. Yet they now act with 
reckless disregard, in my view, for that intent.
  At its most fundamental, this Senate is a testament to the rights of 
the minority. Small States, such as mine--I suggest even the Presiding 
Officer's State falls into this category--we have an equal say to 
California, Texas, Illinois, and New York, and the Senate's tradition 
and its rules protect debate and guarantee that we cannot be trampled 
upon, overrun by larger jurisdictions. That is part of our unique 
character.
  This tradition of extended debate to preserve minority rights as 
smaller States offends no constitutional edict at all. In fact, it 
endorses it. In the words of former Chief Justice Burger, ``there is 
nothing in the language of the Constitution, or history, or cases that 
requires that a majority always prevail on every issue.''
  Nor is there any place in the Constitution entitling anyone--judicial 
nominees included--to a so-called up-or-down vote on the floor of this 
institution.
  It has been noted by the Democrats in this debate that there were 
some 69 nominations sent by President Clinton to the Judiciary 
Committee, appellate and district court judges, for which none of them 
were given a hearing. Some said that is a form of filibuster. I agree, 
it is.
  There is nothing, I argue to my Democratic friends, that said 
President Clinton had an absolute right for those nominees to have a 
hearing in the Judiciary Committee. He had an obligation to send us 
nominees. We had no obligation to guarantee them a hearing in the 
Senate of the United States, any more than President Bush's nominees 
necessarily have an absolutely right to a simple up-or-down vote in 
this Chamber. Neither side is right in that regard.
  The Senate, under Republican control during President Clinton's 
tenure, was exercising its rights. I did not like the outcome. I did 
not like the result. But the Senate Judiciary Committee had a right not 
to give them a hearing.
  Democrats today argue--I think with equal cause--that these nominees 
have no right to an up-or-down vote any more than President Clinton's 
nominees had a right to a hearing. That is exactly what the Framers 
were saying. That is exactly what the people wanted when they wrote the 
provisions of our Constitution creating the Senate.
  In addition, nowhere does the Constitution or record of the 
Constitutional Convention say or even suggest that the advice and 
consent function of the Senate should be less with respect to judicial 
nominees than other nominees.
  The reason there is no such distinction is simple: it is illogical on 
its face. How can anyone argue that we should have the right to 
extended debate with respect to some obscure agency nominee who can 
serve for a couple of years, but that we should not have that right 
with regard to lifetime appointments to the Federal bench? Such an 
outcome not only defies the history of the Convention, it defies logic. 
And this is called the ``constitutional option''? To call it by this 
name, in my view, dishonors the genius of those men who conceived the 
Constitution.
  The majority leader's proposal will, without question, diminish the 
Senate's power in relation to the Executive, and in so doing will 
diminish the power of each and every Senator, regardless of party, to 
stand up for his or her State.
  Let me say to those who have been here only serving in the majority, 
only serving under a Republican President--my wish as a Democrat is 
that this would happen more quickly--I do not know when it will happen, 
but it will happen, I promise you. If you are here long enough, you 
will serve in the minority. You will serve with a Democratic President. 
And for those of you who want to absolutely guarantee that Presidents 
can guarantee a right on their nominees coming up here, you will rue 
the day when it comes. You will rue the day, and you will look back on 
this debate and wonder why there were not more people standing up 
reminding each other of the importance of this institution and what the 
Framers had in mind in trying to protect us against absolute guarantees 
for nominees to lifetime appointments which no other appointees in our 
entire Federal system enjoy.
  If my colleagues do not know this from their own experiences, I 
suggest they consider the experience of one of our colleagues, a 
Republican, who a few weeks ago ran into the problem. He announced at 
the beginning of the week his intention to place a hold on nominees to 
a certain commission. By the

[[Page 10529]]

end of the week, the President had recess-appointed each and every one 
of those nominees. The considered views of our Republican colleague 
were of no consequence. They were disregarded out of hand.
  Do any of us think this or any other President will be more or even 
just as likely to consider our views on judicial nominations if we 
surrender power to this President or any future President? I for one do 
not. Colleagues, if that happens, if we cede power to the Executive, 
you may never get it back.
  Of all the issues that we will face in this and future Congresses, 
from war and economic growth, to health and education, none is more 
important than this debate because how we resolve this issue will in 
many respects determine how, indeed, we resolve all the others.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired
  Mr. DODD. I ask for 1 additional minute, if I may.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. DODD. I thank the Chair.
  As I said a few minutes ago, those of us fortunate to serve in this 
body are but its temporary custodians. We are stewards of an 
institution governed by rules that have withstood the test of more than 
two centuries in time. Now is not the moment to scrap such rules simply 
to achieve objectives that are, in essence, transient and partisan in 
nature, even though they are deeply felt by their proponents.
  I know of no other branch of government, in this or any other nation 
for that matter, that would willingly surrender power to another 
branch. This is a moment for Senators, as Senators, to stand up for the 
Senate.
  The disagreements we have today will likely be forgotten. They will 
fade like so many grainy snapshots into the dim recesses of our 
collective national memory. But to change the rules of the Senate, to 
do so by evading rather than abiding by the rules of this Chamber, 
would do lasting damage not only to this institution but to the 
Republic it has served so long and so well.
  Future generations will not remember why those rules have been 
changed, but they will live each and every day with the consequences of 
this decision. I urge my colleagues to reject this proposal and let us 
get back to the business of functioning as the Senate should.
  I thank the Chair.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  The Senator from Texas.
  Mr. CORNYN. I thank the Chair.
  Mr. President, people who are following the debate on the Senate 
floor about this nominee, Priscilla Owen, might be forgiven if they 
think the sky is falling or perhaps the end is coming for the Senate as 
a unique institution in American Government, or somehow that the 
nuclear option is going to simply blow the place up and all of us with 
it.
  I think you can read an awful lot into the rhetoric that is being 
used and the tone that is being used during this debate to see what it 
is all about. I worry, as well, that when we talk about statistics, 
when we talk about what percentage of President Bush's nominees were 
confirmed, which ones were not, how President Clinton's nominees were 
treated, what percentages were confirmed, what percentages were not, 
that we fall into the deplorable habit of treating people like mere 
statistics. But I would only add that one violation of the Constitution 
is one too many. And when it comes to giving an up-or-down vote to a 
President's judicial nominee, which has happened for 214 years up until 
4 years ago this last May 9, we are simply talking about treating 
people as they deserve to be treated--with respect. We are talking 
about treating Presidents who have won national elections with the 
respect they deserve, not as a rubberstamp but to provide the advice 
and consent that the Constitution contemplates when it comes to 
judicial nominees.
  You would think the end is near for this institution listening to 
some of the rhetoric, when all we are talking about is trying to 
restore this 214 years of unbroken tradition of providing an up-or-down 
vote for any nominee who enjoys bipartisan majority support in this 
Chamber as this nominee, Priscilla Owen, does.
  If you want to talk about statistics--and our friends on the other 
side of the aisle have--they have time and time again essentially 
argued this is payback for how they perceive Republicans treated 
nominees of President Clinton. And one of the names they mention is 
Richard Paez, who was nominated by President Clinton, who was 
ultimately confirmed by less than 60 votes of the Senate. All we are 
asking is that Priscilla Owen be treated with the same courtesy and 
according to the same standard that Richard Paez was treated when he 
was given an up-or-down vote and was confirmed by less than 60 votes.
  A number of my colleagues on this side of the aisle have done an 
excellent job of presenting, in a comprehensive fashion, the legal and 
constitutional framework that exists for the Senate's authority to 
determine its own rules, and that is really all we are talking about--
the Senate determining its own rules. I believe the case that has been 
made for the Senate continuing to do that is a strong one. In fact, 
that is why Senators on the other side of the aisle, including the 
former Democrat majority leader, the senior Senator from West Virginia, 
the senior Senator from Massachusetts, and the senior Senator from New 
York, have all stated in the past as recently as 2 years ago that, of 
course, a majority of Senators has the power to set rules, precedents, 
and procedures. Indeed, that is why the power of the Senate majority to 
set rules, precedents, and procedures has sometimes been referred to as 
the Byrd option, or otherwise, the constitutional option.
  But let me begin my remarks by making a simple point I made last 
night, and let me reiterate it. I much prefer the bipartisan option to 
the Byrd option. America works better, the Senate works better, and our 
constituents are better served when we act in a bipartisan and 
cooperative manner. I would much prefer to wake up each day not 
anticipating the battles in this Chamber but, rather, to anticipating 
the opportunity to do what I came here to do, and that is to serve the 
interests of my constituents and the Nation by trying to get things 
done, trying to solve problems. That is why I believe we were sent 
here. I have done my best to take advantage of every opportunity I have 
seen in order to work in a bipartisan manner. I would simply choose 
collaboration over contention any day of the week.
  But we know that bipartisanship is a two-way street, that you cannot 
claim to be bipartisan when a partisan minority seeks to obstruct, and 
has successfully obstructed for the last 4 years, a bipartisan majority 
from getting a simple up-or-down vote for nominees such as Priscilla 
Owen. In order to have true bipartisanship, both sides must agree to 
treat each other fairly and apply the same rules and standards 
regardless of who happens to be President, whether it is a Republican 
or Democrat, and regardless of who is in the majority, whether it is a 
Republican or Democrat majority. But bipartisanship, we know, is 
difficult when long held understandings and the willingness to abide by 
basic agreements and principles have unraveled so badly as it has these 
last 4 years.
  What are we to do when these basic principles and commitments and 
understandings have simply unraveled so badly? What are we to do when 
Senate and constitutional traditions are abandoned for the first time 
in more than 2 centuries; when both sides once agreed that nominees 
would never be blocked by the filibuster, and then one side says, well, 
that agreement never existed; when our colleagues on the other side of 
the aisle boast in fundraising letters to their donors of their 
``unprecedented'' obstruction and then come to the Senate floor and 
claim that precedent is on their side and that somehow this side, the 
bipartisan majority, is somehow blowing up the Senate by exercising a 
``nuclear option''? What are we to do when the former Democrat majority 
leader claims on one day that the filibuster is somehow

[[Page 10530]]

sacrosanct and sacred to the Founders and then demonstrates by his own 
words that he has successfully killed filibusters in the past on the 
Senate floor?
  In 1995 he stated:

       I have seen filibusters. I have helped to break them. The 
     filibuster was broken, back, neck, legs and arms.

  Finally, what are we to do, Mr. President, when they claim on one day 
that all they seek is more time to debate a nomination, and then claim 
on another day there are not enough hours in the universe to debate the 
nomination? Indeed, as we stand here 4 years after this fine nominee 
was proposed, we know there has been more than adequate time for 
debate. There has been a lot of debate. But this is not about debate. 
This is not about the Senate's traditions. This is about raw political 
power of a partisan minority to obstruct a bipartisan majority from 
exercising the power conferred upon that bipartisan majority by the 
Constitution.
  It is clear that a partisan minority is now seeking to impose a new 
requirement during these last 4 years, that nominees will not be 
confirmed without the support of at least 60 Senators. This, by their 
own admission--at least at one point by their own admission--is wholly 
unprecedented in Senate history. But thinking about it, Mr. President, 
the reason they have now sought to adopt this double standard and this 
increased threshold before a nominee can even get a vote, the reason 
for it is simple, and that is because the case for opposing this fine 
nominee, Priscilla Owen and her fellow nominees, is so weak that the 
only way they can hope to defeat their nominations is by applying a 
double standard and changing the rules. That is the only way they can 
hope to win--this partisan minority. We have heard a lot of talk about 
some of the decisions this judge has made when she served on the Texas 
Supreme Court, as she still does. I think the distinguished Senator 
from Georgia, who is currently occupying the Chair, spoke eloquently 
about another nominee, Janice Rogers Brown, who is also accused of 
``being out of the mainstream'' and shown how thin and baseless that 
allegation is--and by the way, Janice Rogers Brown is accused of being 
out of the mainstream for exercising her first amendment right as an 
American citizen in a speech, two speeches, not in the course of her 
judicial decisionmaking. Does that mean that citizens should somehow be 
constrained in what they can talk about lest they be deemed 
disqualified to serve as a Federal judge later on because some Senator 
or some group of Senators think that they are ``outside of the 
mainstream''? I hope not.
  A number of Senators have mentioned the case called Montgomery 
Independent School District v. Davis. This is one of the cases they 
cite as an example for Justice Owen ``being out of the mainstream.'' 
But, of course, I doubt they have read the opinion. This is about a 
schoolteacher a local school board dismissed because of her poor 
performance and because of her abusive language toward her students. 
This teacher admitted that she had referred to her students as little 
blank blank blanks--a four-letter expletive that I will not repeat on 
the floor of this body. When confronted with this statement, she 
justified the use of this expletive to schoolchildren, mind you, on the 
bizarre ground that she uses that same language when talking to her own 
children--clearly unacceptable conduct.
  The senior Senator from New York has said that this teacher was 
wrongly dismissed. Other Senators criticized Justice Owen about this 
case as well. I have children. Many Senators have children. Certainly 
the people across America who have children understand. Are Justice 
Owen's opponents really arguing that this teacher's opponents acted 
inappropriately, that she was wrongly dismissed for using that language 
and mistreating her students in such a way?
  If you read the opinion, as I doubt the critics have, preferring, 
rather, to speak off of talking points written by political consultants 
who engage in character assassination for their profession, Justice 
Owen simply said that the local school board was justified in 
dismissing the teacher--hardly a decision which is out of the 
mainstream.
  As it turned out, the majority of the court disagreed and held that 
the school board could not dismiss the teacher, on legal grounds. But 
Justice Owen's dissenting opinion simply concluded that the majority:

        . . . allows a State hearing examiner to make policy 
     decisions that the Legislature intended that local school 
     boards make.

  She also argued that the majority ``misinterpreted the Education 
Code.''
  This partisan minority in the Senate has accused Justice Priscilla 
Owen of judicial activism. But the people of America understand what 
judicial activism is and, conversely, what it is not. The American 
people understand a controversial judicial activist decision when they 
see one, whether it is the radical redefinition of some of our 
society's most basic institutions, such as marriage; whether it is 
expelling the Pledge of Allegiance from classrooms of schoolchildren 
because the phrase ``one nation under God'' is invoked; or whether it 
is the elimination of the ``three strikes and you are out'' law and 
other penalties against hardcore convicted criminals; or the forced 
removal of military recruiters from college campuses. Justice Owen's 
rulings fall nowhere close to these sort of activist decisions, this 
category of cases that to me defines the phrase ``judicial activism.''
  There is a world of difference between struggling to try to do the 
job judges are duty-bound to perform--that is, to interpret ambiguous 
expressions of a statute--there is a world of difference between that 
and refusing to obey a legislature's objectives altogether and instead 
substituting that judge's own opinion or own social or political agenda 
for what the legislature, the elected representatives of the people, 
had said the law should be.
  If the Senate were to follow more than 200 years of consistent 
tradition, dating back to our Founding Fathers, there would be no 
question but that this judge, and this fine and decent human being, 
would be given the up-or-down vote and confirmed for the Fifth Circuit 
Court of Appeals. President after President after President have gotten 
their judicial nominees confirmed by a majority vote, not a 
supermajority vote of 60 votes or more. By their own admission, a 
partisan minority in this body is using unprecedented tactics to block 
her nomination. Here again, the reason is simple. As any careful 
examination of the decisions made by this good judge reveal, the case 
for the opposition is so weak that the only way they can defeat her 
nomination is by applying a double standard and changing the rules.
  It is not just me who says that a supermajority requirement is 
unconstitutional and violates the Senate traditions for over 200 years. 
Legal scholars across the political spectrum have long concluded what 
we know in this body instinctively--that to change the rules of 
confirmation, as this partisan minority has done starting 4 years ago, 
badly politicizes the judiciary and hands over control of the judiciary 
to special interest groups--something we all ought to want to avoid.
  The record is clear: Senate tradition has always been majority vote, 
and the desire by some to alter those Senate rules has been roundly 
condemned by legal experts across the political spectrum.
  In fact, Lloyd Cutler, who recently passed away, who was really the 
dean of lawyers, who advised Presidents, both Republican and Democrat, 
during the course of his professional lifetime, wrote ``The Way to Kill 
Senate Rule XXII,'' which was published in the Washington Post in 2003. 
He said:

       A strong argument can be made that the requirements of . . 
     . a two-thirds vote to amend the rules are . . . 
     unconstitutional.

  Liberal USC law professor Erwin Chemerinsky wrote in 1997, ``Rule 
XXII''--that is the rule that requires 60 votes in order to get a vote 
that is being invoked now for the first time in more than 200 years 
against nominees. We are not talking about legislation, as I know the 
Chair understands and which has been clear but sometimes gets muddled. 
Professor Chemerinsky writes:


[[Page 10531]]

       Rule XXII is unconstitutional in its requirement that 
     change be approved by two-thirds vote to change the Rule. The 
     effect of declaring this unconstitutional is that the current 
     Senate could change rule XXII by majority vote. In other 
     words, a majority of this Senate could eliminate the 
     filibuster if a majority wished to do so.

  I believe a majority does wish to do so when it comes to breaking the 
logjam over nominees, not with regard to legislation. There is a 
general consensus, bipartisan consensus in the Senate, that, for our 
own reasons, it is important to preserve the filibuster for 
legislation. But, of course, that only affects how we conduct our 
business, not how we interact with a coordinate department of 
Government or branch of Government known as the executive branch in 
exercising advice and consent when it comes to the nominees by a 
President elected by the American people.
  To employ the Byrd option is not a radical move. It would merely be 
an act of restoration. I say it again. There is nothing radical about 
the Byrd option, yet our colleagues on the other side of the aisle have 
called it, not the Byrd option or the constitutional option, but the 
nuclear option, to suggest that somehow there is something radical 
about it.
  But all we need to do is to look at the senior Senator from West 
Virginia, who was then majority leader, who used the constitutional 
option--and this is the reason it is sometimes called the Byrd option--
on four occasions--in 1977, in 1979, in 1980, and again in 1987--to 
establish precedents that changed Senate procedure during a session of 
Congress. Other leading Senators from the other side of the aisle have, 
at some times in the past--perhaps not today but in the past--
recognized the legitimacy of that procedure, of the Byrd option, 
including the senior Senator from Massachusetts and the senior Senator 
from New York, as recently as 2 years ago.
  The establishment of Senate rules and procedures by majority vote is 
commonplace. As a matter of fact, on most days, as the occupant of the 
chair knows, we operate by unanimous consent; that is, everybody 
agreeing--or at least no one objecting. The constitutional power of a 
majority of the Senators to strengthen, improve, and reform Senate 
rules and procedures is expressly stated in the Constitution. It was 
unanimously endorsed by the U.S. Supreme Court, and it has been 
supported and exercised by the Senate on numerous occasions.
  For those who may be students of the Constitution, all you have to do 
is look at article I, section 5, which clearly states that, ``[e]ach 
House may determine the Rules of its Proceedings.''
  The Supreme Court has unanimously held in United States v. Ballin 
that, unless the Constitution expressly provides for a supermajority 
vote, the constitutional rule is majority vote. Again, as the Senator 
from Georgia pointed out earlier this morning, when it comes to 
amending the Constitution, when it comes to ratifying treaties, it is 
clear that an explicit supermajority requirement is there. But failing 
that, where the Constitution is silent about a supermajority 
requirement, the U.S. Supreme Court said majority rule is the standard.
  I point out again, perhaps the most eloquent and learned Member of 
this body, when it comes to Senate rules and procedures, is the 
distinguished senior Senator from West Virginia. I know as a new 
Senator I have watched and listened and tried to learn from him about 
those Senate rules. He is truly a master of that subject. Yet Senate 
Democrats have spent considerable time dismissing how the Founders 
would somehow be offended if a majority of Senators acted to prevent a 
partisan minority of the Senate from using filibusters against 
nominees. One of their own, one of the Senate's great historians, this 
same distinguished senior Senator from West Virginia, stipulated on the 
Senate floor that our Founders did not tolerate filibusters.
  He said:

       The rules adopted by the U.S. Senate in April, 1789, 
     included a motion for the previous question. The previous 
     question allowed the Senate to terminate debate. ``Mr. 
     President, I move the previous question'' or in the House 
     ``Mr. Speaker, I move the previous question,'' and if that 
     gains a majority, no further debate, the previous question 
     will be voted on.

  As the senior Senator from West Virginia has previously written in 
his four-volume history of the U.S. Senate:

       It is apparent that the Senate in the first Congress 
     disapproved of unlimited debate. In fact, for the first 
     several Congresses, from 1789 to 1806, a majority of Senators 
     always had the power to bring debate to a close through 
     majority vote through the motion for the previous question 
     under Senate Rule IX.

  I realize we are getting down into the weeds quite a bit when it 
comes to parsing Senate rules and the history of the Senate for the 
American people who might be listening to this debate, but in the end, 
I believe what we are talking about is the ability in this body to 
write its own rules and establish its own procedures, which is clearly 
provided for in the Constitution, and to use procedures that have been 
used on the other side of the aisle when they were deemed appropriate 
and when a majority of Senators supported that change.
  We are also talking about restoring fundamental fairness to the 
judicial selection and nomination process. Is there anybody in America 
today who believes that the way we are handling the confirmation of 
judges is a good and positive thing? Or do the vast majority of 
Americans believe, as I do, that it has become unnecessarily 
contentious and fractious and divisive, and that we need a fresh start 
when it comes to this process?
  I believe a good place to start would be to restore this 200-year 
tradition, which provides for a majority vote, something that was 
accepted without any real debate until 4 short years ago when the 
standard was somehow increased to 60 votes for confirmation rather than 
the 51 votes which had applied for the entire history of the Senate--4 
short years ago.
  Finally, it is worthy of note that in addition to the constitutional 
support I have mentioned, and that of legal scholars and established 
Senate precedent and tradition, many of the editorial writers in the 
mainstream media also acknowledge that the Byrd option is not a radical 
option, that the Senate making its own rules and procedures is not 
radical, it is what we do.
  The New York Times even, by its own admission, in 1995, endorsed a 
proposal by Senators Harkin and Lieberman that

       . . . would have gone even further than the nuclear option 
     in eliminating the [power of the] filibuster . . .

  entirely, including for legislative matters.
  We do not propose that. We just propose giving these nominees an up-
or-down vote when it comes to the Executive Calendar.
  The Austin American-Statesman, in Texas, has recently editorialized 
that:

       a simple majority could change the rule on cloture from a 
     supermajority to 51 votes . . . [and] it has always been a 
     viable political tool.

  All we are suggesting.
  The Philadelphia Inquirer said:

       There is nothing especially sacred about the filibuster.

  The Los Angeles Times states:

       We urge Republican leaders to press ahead.

  They wrote that in an editorial entitled ``Nuke the Filibuster.''
  Let me conclude by reiterating what I said at the beginning of my 
remarks. I would prefer the bipartisan option to the Byrd option any 
day. America works better, the Senate works better when we do things 
together in a bipartisan and collaborative way. It is time for us to 
fix the broken judicial confirmation process. It is time for us to end 
the blame game, fix the problem, and to move on. It is time to end the 
wasteful and unnecessary delay in the process of selecting judges that 
hurts our justice system and harms all Americans.
  It is simply intolerable that a partisan minority will not allow a 
bipartisan majority to conduct the Nation's business. It is intolerable 
that the standards now change depending on who is in the White House 
and which party is the majority party in the Senate. It is intolerable 
this nominee, this fine and decent human being and this

[[Page 10532]]

outstanding judge, has waited 4 years for a simple up-or-down vote.
  We need a fair process for selecting fair judges after full 
investigation, full questioning, full debate, and then a vote.
  Throughout our Nation's more than 200-year history, the 
constitutional role and the Senate tradition for confirming judges has 
been majority vote. That tradition must be restored.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan.
  Mr. LEVIN. Mr. President, the Senate holds a revered place in the 
history of the world and in the imagination of people throughout the 
world. We proudly serve in the world's greatest deliberative body. We 
say that so often that those words can lose their impact, but we must 
never lose sight of our profound responsibility to this institution as 
keepers of its legacy.
  The enduring strength and beauty of the U.S. Senate is that we not 
only operate by rules, but that those rules provide protections for the 
minority. More than 200 years of Senate rulings have affirmed that this 
body stands against the ``tyranny of the majority'' that our Founding 
Fathers cautioned us about.
  Today, for temporary political advantage, some would destroy part of 
what makes the Senate unique. The so-called ``nuclear option'', if 
implemented, will deface this Senate monument by allowing a majority, 
for the first time in our history, to operate by fiat instead of by 
rule.
  The issue we are grappling with is a transcendent one, above and 
beyond the qualifications of a particular judge. We will answer the 
question: will the rule governing our deliberations be changed by fiat, 
by an arbitrary ruling which runs head on against Senate Rule XXII. 
That rule guarantees Senators' right to speak until 60 Senators vote to 
end debate and is also at the core of our being a deliberative body.
  The leadership of the majority party in the Senate has threatened to 
use an extraordinary and radical parliamentary procedure, the so-called 
``nuclear option'', to end filibusters in the Senate. Interpreting a 
rule which is ambiguous or silent on a matter is one thing. The 
``nuclear option'' requires a presiding officer to rule in a way which 
goes directly against the unambiguous language of Rule XXII.
  Whether or not to change the rules is a matter for debate and 
deliberation, but there should be no question of how to change the 
rules. That should occur through the procedures laid out in the Senate 
rules themselves.
  Robert Caro, the distinguished historian and author of the landmark 
work, Master of the Senate, recently wrote a letter to the Chairman and 
ranking member of the Senate Rules Committee in which he pointed out 
that:

       The Founders, in their wisdom . . . gave the Senate the 
     power to establish for itself the rules governing exercise of 
     its powers. Unlike the unwieldy House, which had to adopt 
     rules that inhibited debate, the Senate became the true 
     deliberative body that the Framers had envisioned by 
     maintaining the ability of its members to debate as long as 
     necessary to reach a just result.

  Caro continued:

       For more than a century, the Senate required unanimous 
     consent to close off debate. The adoption of Rule XXII in 
     1917 allowed a two-thirds cloture vote on ``measures'', but 
     nominations were not brought under the rule until 1949. In 
     short, two centuries of history rebut any suggestion that 
     either the language or the intent of the Constitution 
     prohibits or counsels against the use of extended debate to 
     resist presidential authority. To the contrary, the nation's 
     Founders depended on the Senate's members to stand up to a 
     popular and powerful president.

  The right of extended debate in the Senate is an integral part of our 
system of checks and balances and an important historic protection of 
the rights of the minority in our country. But it is not only the 
filibuster rule and the valuable protections it provides which the 
``nuclear option'' is threatening. It is the Senate's rulemaking 
process and it's the very character of the Senate.
  Whether to change Rule XXII has been debated throughout our history 
and that debate will continue. But, how to change our rules is a 
totally different matter. The ground rules for doing so, the process 
for changing the rules, should be defended by us all because that 
process is laid out in the Senate rules.
  Under the so-called ``nuclear option,'' the Presiding Officer of the 
Senate would arbitrarily end debate. The ruling would be challenged and 
a simple majority would then be urged to uphold the ruling of the 
chair. In ruling by fiat, instead of by applying Senate Rule XXII for 
ending debate, the Presiding Officer would have to ignore the advice of 
the non-partisan Senate parliamentarian and the Senate's 200 years of 
precedent.
  If Senators want to propose a change in the rules of the Senate, the 
right way to do so is to follow the procedures in the Senate's rules 
for changing the Senate's rules, not ripping up the rule book for a 
momentary advantage.
  In previous attempts to change the filibuster rule by breaking the 
rules, the Senate has refused to do so. The Senate has consistently 
maintained that changes to Rule XXII governing the right to extended 
debate must be made in accordance with the Senate rules and cannot be 
done by decree, by a ruling of the Presiding Officer which needs only 
to be sustained by a simple majority.
  In 1949, Vice President Alben Barkley, contrary to Senate precedent 
and against the advice of the Senate Parliamentarian, ruled that 
despite the fact that Rule XXII as it then existed provided only that 
the ``pending matter'' was subject to cloture, that it also applied to 
a motion to proceed to the consideration of the bill.
  The Senate rejected Vice President Barkley's ruling by a 46-41 vote. 
Significantly, 23 Democratic Senators, nearly half of the Democrats 
voting, opposed the ruling by the Vice President of their own party. 
Later, the Senate, using the process provided by the Senate rules, by a 
vote of 63-23, adopted a change in Rule XXII to include a motion to 
proceed.
  Vote after vote, decade after decade, the Senate has maintained that 
changes to the cloture rule must be done in accordance with the 
existing Senate rules and cannot be done by fiat of the Presiding 
Officer which needs but a simple majority to be sustained. The history 
is dry and difficult, but is essential for our understanding of the 
tenacious way this body has rejected attempts to change the filibuster 
rule by circumventing the rules. I am setting that history forth in an 
addendum to these remarks.
  The majority leader says that he won't use the ``nuclear option'' 
except on filibusters of judicial nominations. But, why wouldn't a 
future majority leader, in pursuit presumably of some lofty purpose, 
not use a similar arbitrary procedure, the fiat of the Presiding 
Officer, sustained by a simple majority, to further limit and perhaps 
eliminate the filibuster or alter other Senate rules for that matter. 
As a Detroit Free Press editorial asked, `` . . . [W]here does such 
situational rule changing stop?''
  Any future majority could use the ``nuclear option'' to change any of 
the Senate's rules, if the ``nuclear option'' we are debating is 
pursued and succeeds. The Senate, almost inevitably, would slide toward 
becoming a second House of Representatives. That body is tightly 
controlled by its majority through its Rules Committee which severely 
limits debate and dictates what amendments can and cannot be offered. 
The character of the Senate would be destroyed as a uniquely 
deliberative body as would its role as the defender of rights of the 
minority and its essential role in the system of checks and balances. 
Expediency can destroy the uniqueness of this body.
  The majority leader has said, ``At the end of the day, one will be 
left standing: either the Constitution . . . or the filibuster.'' 
Hopefully, both will be left standing. The only way for that to happen 
is if the ``nuclear option'' is rejected and we say ``no'' to changing 
the rules of this body by fiat. Again, the majority leader maintains 
that he has no intention of eliminating filibusters except on judicial 
nominations. But, if one accepts the position that the filibuster is 
unconstitutional for a judicial nomination, why is it not equally 
unconstitutional for all nominations? And, if the advise and consent 
clause is

[[Page 10533]]

read to mandate an up-or-down vote, a future majority leader could by 
decree decide that the enumerated legislative powers in Article I also 
mandate majority up-or-down votes and, for instance, rule out of order 
supermajority, 60-vote budget points of order.
  But, with all due respect to the leader, no rule of the Senate should 
be dependent for its enforcement on the whims and promises of a 
majority leader, any majority leader. To leave the fundamental rules of 
the Senate vulnerable to a change of mind by this majority leader or 
the whim of a future majority leader undermines the principles of 
normal procedure and fairness on which we all rely. A rule must bind 
the Majority Leader and the majority itself. That principle is the 
bedrock on which the rule of law rests. Playing by the rules is 
something we all learned as kids in the schools and on the playgrounds 
of America. Rule XXII is a rule we must live by unless and until it is 
amended by the procedures in our rules. The ``nuclear option'' would 
change Rule XXII by decree of the Presiding Officer. An exception to 
Rule XXII's requirement for sixty votes to end debate on a matter would 
be created by arbitrary ruling--by decree.
  Arthur Vandenberg, one of my predecessors from Michigan is one of the 
giants of Senate history. His portrait was recently added to the Senate 
Reception Room outside of this chamber where he joined six other greats 
of the Senate. Senator Vandenberg, a Republican leader in the Senate, 
addressed the Senate in 1949 prior to the Senate's rejection of Vice 
President Barkley's effort to change the cloture rule. His comments 
speak directly to the situation we find ourselves in and I want to 
share some of his remarks today.
  Senator Vandenberg said,

        . . . I continue to believe that the rules of the Senate 
     are as important to equity and order in the Senate as is the 
     Constitution to the life of the Republic, and that those 
     rules should never be changed except by the Senate itself, in 
     the direct fashion prescribed by the rules themselves. One of 
     the immutable truths in Washington's Farewell Address, which 
     cannot be altered even by changing events in a changing 
     world, is the following sentence: `The Constitution which at 
     any time exists, until changed by an explicit and authentic 
     act of the whole people, is sacredly obligatory upon all'. I 
     respectfully submit,'' Senator Vandenberg said, ``as a basic 
     explanation of my attitude, that I accept this admonition 
     without reservation, and I think it is equally applicable to 
     the situation which Senators here confront, though obviously 
     the comparison cannot be literal. . . . [T]he Father of his 
     Country said to us, by analogy, `The rules of the Senate 
     which at any time exist, until changed by an explicit and 
     authentic act of the whole Senate, are sacredly obligatory 
     upon all.'

                     Senator Vandenberg continued:

       I have heard it erroneously argued in the cloakrooms that 
     since the Senate rules themselves authorize a change in the 
     rules through due legislative process by a majority vote, it 
     is within the spirit of the rules when we reach the same net 
     result by a majority vote of the Senate upholding a 
     parliamentary ruling of the Vice President which, in effect, 
     changes the rules. This would appear to be some sort of 
     doctrine of amendment by proxy. It is argued that the Senate 
     itself makes the change in both instances by majority vote; 
     and it is asked, What is the difference? Of course, this is 
     really an argument that the end justifies the means.

  Senator Vandenberg continued:

       I think there is a great and fundamental difference, Mr. 
     President. When a substantive change is made in the rules by 
     sustaining a ruling of the Presiding Officer of the Senate--
     and that is what I contend is being undertaken here--it does 
     not mean that the rules are permanently changed. It simply 
     means that regardless of precedent or traditional practice, 
     the rules, hereafter, mean whatever the Presiding Officer of 
     the Senate, plus a simple majority of Senators voting at the 
     time, want the rules to mean. We fit the rules to the 
     occasion, instead of fitting the occasion to the rules. 
     Therefore, in the final analysis, under such circumstances, 
     there are no rules except the transient, unregulated wishes 
     of a majority of whatever quorum is temporarily in control of 
     the Senate. That, Mr. President, is not my idea of the 
     greatest deliberative body in the world. . . . No matter how 
     important [the pending issue's] immediate incidence may seem 
     to many today, the integrity of the Senate's rules is our 
     paramount concern, today, tomorrow, and so long as this great 
     institution lives.

  Senator Vandenberg continued:

        . . . [I] want to be sure that none of my colleagues shall 
     feel under the slightest compunction to vote on a friendship 
     or loyalty basis so far as I am concerned. This is a solemn 
     decision--reaching far beyond the immediate consequence--and 
     it involves just one consideration.

  He concluded, with that ``one consideration'':

       What do the present Senate rules mean; and for the sake of 
     law and order, shall they be protected in that meaning until 
     changed by the Senate itself in the fashion required by the 
     rules?

  In summarizing, he got to what is the root of the nuclear option. He 
did it almost 60 years ago on a similar occasion, but how prescient are 
his comments relative to the situation in which we find ourselves 
today. Senator Vandenberg:

        . . . [T]he rules of the Senate as they exist at any given 
     time and as they are clinched by precedents should not be 
     changed substantively by the interpretive action of the 
     Senate's Presiding Officer, even with the transient sanction 
     of an equally transient Senate majority. The rules can be 
     safely changed only by the direct and conscious action of the 
     Senate itself, acting in the fashion prescribed by the rules. 
     Otherwise, no rule in the Senate is worth the paper it is 
     written on, and this so-called ``greatest deliberative body 
     in the world'' is at the mercy of every change in 
     parliamentary authority.

  How I wish every Senator would read Senator Vandenberg's speech 
before we vote on the nuclear option.
  In a recent address on this subject, former Senator and Vice 
President Al Gore recalled the words of Sir Thomas More, the famous 
British jurist and author:

       When More's zealous son-in-law proposed that he would cut 
     down any law in England that served as an obstacle to his hot 
     pursuit of the devil, More replied: ``And when the last law 
     was cut down and the devil turned round on you, where would 
     you hide . . . the laws all being flat? This country is 
     planted thick with laws, from coast to coast . . . and if you 
     cut them down, and you're just the man to do it, do you 
     really think you could stand upright in the winds that would 
     blow then?''

  Vice President Gore observed:

       The Senate leaders remind me of More's son-in-law. They are 
     now proposing to cut down a rule that has stood for more than 
     two centuries as a protection for unlimited debate. It has 
     been used for devilish purposes on occasion in American 
     history, but far more frequently, it has been used to protect 
     the right of a minority to make its case.

  Our former colleagues Senators Malcolm Wallop of Wyoming and Jim 
McClure of Idaho, both conservative Republicans, recently wrote in the 
Wall Street Journal:

     . . . [I]t is naive to think that what is done to the 
     judicial filibuster will not later be done to its legislative 
     counterpart . . . [E]ven if a Senator were that naive, he or 
     she should take a broader look at Senate procedure. The very 
     reasons being given for allowing a 51-vote majority to shut 
     off debate on judges apply equally well--in fact, they apply 
     more aptly--to the rest of the executive calendar, of which 
     judicial nominations are only one part. That includes all 
     executive branch nominations, even military promotions. 
     Treaties, too, go on the executive calendar, and the 
     arguments in favor of a 51-vote cloture on judicial 
     nominations apply to those diplomatic agreements as well. It 
     is little comfort that treaty ratification requires a two-
     thirds vote. Without the possibility of a filibuster, a 
     future majority leader could bring up objectionable 
     international commitments with only an hour or two for 
     debate, hardly enough time for opponents to inform the public 
     and rally the citizenry against ratification.

  Former Majority Leader George Mitchell, writing in the New York 
Times, has recalled the words of Senator Margaret Chase Smith, another 
of the great Senators sent to us from the State of Maine, in her famous 
``Declaration of Conscience'' on June 1, 1950, speaking out against the 
excesses of Senator Joe McCarthy, a Member of her own party:

       I don't believe the American people will uphold any 
     political party that puts political exploitation above 
     national interest. Surely we Republicans aren't that 
     desperate for victory . . . While it might be a fleeting 
     victory for the Republican Party, it would be a more lasting 
     defeat for the American people. Surely it would ultimately be 
     suicide for the Republican Party and the two-party system 
     that has protected our American liberties from the 
     dictatorship of a one-party system.

  As Senator Mitchell writes:

       The circumstances are obviously different; there is no 
     McCarthyism in the current dispute. But the principles of 
     exercising independent judgment and preserving our system of 
     checks and balances are at the heart of

[[Page 10534]]

     the Senate rules debate. Senator Smith embodied independence 
     and understood the Senate's singular place in our system of 
     checks and balances. Our founders created that system to 
     prevent abuse of power and to protect our rights and 
     freedoms. The president's veto power is a check on Congress. 
     The Senate's power to confirm or reject judicial nominees 
     balances the president's authority to nominate them. The 
     proposal by some Republican senators to change rules that 
     have governed the Senate for two centuries now puts that 
     system in danger.

  Mr. President, the nuclear option--this extra-legal changing of the 
Senate rules--will cause a permanent tear in the Senate fabric because 
it violates a deeply held American value: playing by the rules. Our 
rules themselves provide the process for changing the rules. Using it 
in an arbitrary way--the Presiding Officer ruling by fiat--will produce 
a deeply embittered and divided Senate because it tears at the heart of 
the way we operate as a Senate. The Presiding Officer is supposed to be 
an impartial umpire, not a dictator. He is supposed to apply the rules, 
not rewrite them.
  This Senate is an enduring monument of political history. Its 
uniqueness is perhaps most embodied in rule XXII, which is at the heart 
of our being a deliberative body and the source of protection of the 
minority. I plead with our colleagues: Do not deface this Senate 
monument by eliminating by fiat that right of the minority. Do not 
trample on rights so essential to the institution's deliberative 
nature. Do not deface this Senate monument by amending the rules by 
fiat. Instead, seek to change our rules, if you deem it wise, according 
to the procedures set out in our rules. But do not take this fateful, 
unprecedented, and misguided step that is being proposed.
  Few are privileged to serve in this special place. Let those who 
follow us here look back at what we will do in the fateful days which 
lie ahead and say that the institution they aspired to was preserved 
and protected by its present custodians.
  The Constitution, in article I, section 5, states that ``Each House 
may determine the rules of its proceedings . . .'' The rules of the 
U.S. Senate have protected minority rights and the system of checks and 
balances through the right of senators to extended debate. Senate rule 
XXII provides that 60 votes are required to end debate in the Senate 
and to bring a matter to a vote. It makes no distinction as to whether 
that matter is legislative, the ratification of a treaty or the 
confirmation of a nomination. Throughout the Senate's history, our 
rules, including rule XXII, have served not only to protect the 
minority, but also to encourage the majority and the minority to work 
out their differences. That is because to do anything of great 
significance in the Senate, it is necessary to put together 60 votes 
forces the majority to deal with at least a part of the minority. As 
much as any other factor, this has been a bulwark against the most 
corrosive forms of partisanship.
  With respect to nominations, the need to gain the support of at least 
60 Senators has historically encouraged presidents of both parties to 
seek the advice of Senators from both parties, and to select judicial 
nominees who are in the mainstream and who can attract the support of 
Members of both parties. That is particularly important because Federal 
judges have a profound impact on the functioning of our Nation, not 
only because they have lifetime appointments, but--because they are the 
final arbiters of the constitutionality of our laws.
  During the administration of President Bush, the Senate has, as in 
the past, been carrying out its constitutional responsibility. Since 
the start of the current administration, the Senate has confirmed more 
than 200 of President Bush's judicial nominees. Only 10 of the 
President's nominees have not been confirmed. That is an approval rate 
of more than 95 percent. This is a better confirmation rate than was 
achieved during the Clinton, the senior Bush, and the Reagan 
administrations. This also stands in stark contrast to what happened 
during the Clinton administration when more than 60 of President 
Clinton's judicial nominees were blocked by the Republican majority in 
the Judiciary Committee from even getting a hearing, much less a 
confirmation vote.
  Some of our Republican colleagues like to assert that filibusters 
aimed at nominations are unprecedented. They are clearly wrong. Their 
assertions usually contain carefully crafted hedge words. For example, 
they refer to ``nominations reaching the Senate floor'' being entitled 
to an up or down vote. Some of our Republican colleagues refer to ``the 
Senate tradition of giving nominees an up-or-down vote''. Well, what 
about those more than 60 Clinton judicial nominations, who were bottled 
up for years in the Republican controlled Judiciary Committee without 
being given even a hearing? Blocking nominees in the committee by 
refusing to give them a hearing is, in effect, filibustering the 
nomination. When former Foreign Relations Committee Chairman Jesse 
Helms was opposed to the former President George H.W. Bush's nominee to 
be U.S. Ambassador to Mexico, William Weld, a former Republican 
Governor, was an up-or-down vote permitted? No, Senator Helms refused 
to hold a vote in the Foreign Relations Committee and in that way 
eventually defeated the nomination. There are many such examples.
  And what about the so-called holds that Senators use to delay and as 
a result deny nominees an up-or-down vote? Just recently, one of our 
Members placed a hold--an implied threat to filibuster a nomination--
blocking an up-or-down vote on President Bush's nominee to head the 
Base Closing Commission. The President had to get around that hold by 
giving his nominee a recess appointment, which doesn't require Senate 
action.
  One of the statements that is used to support the nuclear option is 
that there has never been a successful filibuster of a judicial 
nominee. That statement flies in the face of the history of the 
filibuster of the nomination of Abe Fortas to be Chief Justice of the 
Supreme Court in June of 1968. Republican opponents of the filibuster 
at that time argued that the Senate has the obligation to be more than 
a mere rubberstamp for the President. Further, they argued that because 
Federal judges are lifetime positions, it is even more important to 
protect the guarantee of the minority's right to speak at length in the 
Senate on judicial nominations than on legislative matters.
  Another Michigan Republican, Senator Robert Griffin, who was the 
Republican whip, was a leader of the Fortas filibuster. He said at the 
time:

       Whatever one's view may be concerning the practical effect 
     of Senate rules with respect to the enactment of legislation, 
     there are strong reasons for commending them in the case of a 
     nomination to the Supreme Court.

  Senator Griffin argued that:

       If ever there is a time when all Senators should be 
     extremely reluctant to shut off debate, it is when the Senate 
     debates a Supreme Court nomination. If Congress makes a 
     mistake in the enactment of legislation, it can always return 
     to the subject matter and correct the error at a later date. 
     But when a lifetime appointment to the Supreme Court is 
     confirmed by the Senate, the nominee is not answerable 
     thereafter to the Senate or to the people, and an error 
     cannot be easily remedied . . .
  After 5 days of extended debate on the Fortas nomination, there was a 
vote on a cloture motion to end the debate. While a majority did 
support Fortas, by a vote of 45 to 43, there was not the supermajority 
needed to end debate. An up-or-down vote was prevented by the 
successful filibuster, and the nomination was subsequently withdrawn.
  So the statement that there has never been ``a successful'' 
filibuster of a judicial nominee is wrong. But, it is also too clever 
by half for another reason. There have been many times that Senators 
have tried to defeat presidential judicial nominees by filibuster, but 
failed. The fact that they weren't successful in stopping the 
confirmation isn't relevant. They succeeded in requiring 60 votes to 
end debate. Supreme Court Justice Stephen Breyer was filibustered when 
he was nominated for a vacancy on the circuit court by President Carter 
in 1980. Cloture was invoked by a 68 to 20 vote.

[[Page 10535]]

Twenty-four Republican Senators voted against cloture, in other words, 
to continue a filibuster, including some of our present colleagues.
  In 2000, the opponents of the nominations of both Marsha Berzon and 
Richard Paez, nominated to the circuit court by President Clinton, 
required cloture votes requiring 60 votes to end debate. Cloture was 
invoked on the Berzon nomination, 86 to 13, and on the Paez nomination, 
85 to 14. A number of current Members of the Senate majority voted 
against cloture and voted to deny them an up-or-down vote.
  Even the current majority leader, who proposes the nuclear option to 
eliminate filibusters on judicial nominations now that a GOP President 
is in the White House, voted against cloture; he voted to require 60 
votes for the Clinton nominee Richard Paez. Many Senators who tried to 
defeat nominees by forcing supermajority votes with Clinton judicial 
nominees, now want to take away by fiat the right of other Senators, 
under our rules, to exercise that same advise and consent power.
  Mr. President, we must be ever mindful of our responsibility to 
protect the unique role of this institution. I urge my colleagues to 
reject the reckless course of the nuclear option. I hope that every one 
of my colleagues will take the time to read the speech of Senator 
Vandenberg on the floor of this Senate, facing a very similar situation 
to the one we face, where there was intended to be, and in that case 
was, a ruling--a ruling--a fiat of the Presiding Officer which would 
have changed the rules of the Senate.
  It is even more clear here than it was then that it is a change in 
the rules which is involved. Back then, one could have argued that it 
was only an interpretation of the then-existing rule XXII which was at 
issue. The majority of the Senate rejected that because, to the 
majority, it was quite clearly a change in the rules.
  Senator Vandenberg and others carried the day with their eloquence 
about the meaning of this body and its need to live by the rules and to 
change the rules according to the procedures set forth in the rules. 
That wisdom is surely as relevant today as it was back then.
  I hope all of us will consider the consequences of changing the rules 
by fiat, by a ruling of the Chair, not guided by the Parliamentarian, 
who is an objective umpire, not following the precedent of this body, 
which has faced similar efforts before to change the rules by decree of 
a Presiding Officer, and which has rejected that course over and over 
again. If we will take our own history and the meaning of this body 
into consideration, and to take it to heart, I believe we will do as 
previous Senates have done, which is to reject an arbitrary approach to 
adoption or modification of the rules that guide us.
  Mr. President, I ask unanimous consent that an addendum to my 
statement be printed in the Record.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Addendum

       In 1953, Senator Clinton Anderson raised a point of order 
     that, under the Constitution, the Senate should be free to 
     adopt its rules at the beginning of a Congress and, until 
     that happened, the Senate would be governed by general 
     parliamentary rules which would allow a simple majority to 
     end debate and adopt new rules. The Senate rejected this 
     effort by a vote of 71-21 at the urging of Majority Leader 
     Robert Taft and Minority Leader Lyndon Johnson. Taft argued 
     that the Senate is a continuing body and that the rules 
     carried over from one Congress to the next. The Senate's 
     rules could be amended at anytime during the Congress but had 
     to be done in accordance with existing Senate Rules which 
     require a supermajority vote to end debate on the rule 
     change.
       In 1957, led by then-Majority Leader Lyndon Johnson and 
     Minority Leader Robert Taft, the Senate, by a 55-38 vote, 
     again rejected a similar attempt by Senator Clinton Anderson.
       In 1963, Senator Anderson made an attempt to circumvent 
     Rule XXII by a simple majority. He moved to proceed to a 
     resolution, at the beginning of the Congress, to lower the 
     number required for cloture and sought a ruling from Vice 
     President Lyndon Johnson that, under the Constitution, only a 
     simple majority would be needed to end debate at the 
     beginning of a Congress. The Vice President submitted the 
     constitutional question to the Senate, ``Does the majority of 
     the Senate have a right under the Constitution to terminate 
     debate at the beginning of a session and proceed to an 
     immediate vote on a rule change notwithstanding the 
     provisions of the existing Senate rules?'' The Senate tabled 
     the constitutional point of order by a vote of 53-42, again 
     affirming the Senate position that changes to the rules must 
     be considered under the procedures set out by the existing 
     Senate rules.
       In 1967, Senator George McGovern moved to proceed to a 
     resolution to amend the cloture rule. Senator McGovern used a 
     compound, self-executing motion which, if adopted, would have 
     automatically cut off debate and required the chair to put 
     the question on the motion to proceed to a majority vote. The 
     motion was out of order on its face and was akin to an 
     unanimous consent agreement in the Senate which would 
     prescribe consideration of a measure, but instead of 
     requiring the consent of all Senators, only a simple majority 
     vote was required. Senator Everett Dirksen made a point of 
     order against the motion and Vice President Hubert Humphrey 
     submitted the constitutional question to the Senate which 
     sustained the Dirksen point of order, thus rejecting the 
     McGovern motion by a vote of 59-37.
       In 1969, Senator Frank Church moved to proceed to a similar 
     proposal to reduce the number required to invoke cloture and 
     filed cloture on the motion to proceed. Senator Church then 
     inquired of the Chair, ``If a majority of the Senators 
     present and voting, but less than two-thirds, vote in favor 
     of this motion for cloture, will the motion have been agreed 
     to?'' Vice President Hubert Humphrey responded in the 
     affirmative. The vote for cloture was 51-47, far short of the 
     two-thirds then required under the rules. The Chair announced 
     that the Senate would now proceed under cloture based on a 
     simple majority vote. The decision was immediately appealed 
     and the Senate overturned the decision of the Chair by voting 
     against a motion to sustain the ruling of the chair, 45-53. 
     Among the 53 Senators rejecting the Vice President's ruling 
     were 23 Democrats, members of his own party.
       Floyd Riddick, the Parliamentarian Emeritus, who served as 
     the Senate's Parliamentarian from 1964 through 1974, 
     describes the events of that day: ``Vice President Humphrey . 
     . . announced the vote and arbitrarily announced that the 
     motion to invoke cloture was agreed to, just as he had 
     advised he would do in response to a parliamentary inquiry. 
     Senator [Spessard] Holland took an appeal from the ruling of 
     the Chair and the decision of the Chair was reversed. I might 
     say I had advised the vice president that he would never get 
     away with such an announcement . . . I think he felt 
     politically obligated to do that at this stage of the game. 
     The Chair was just not sustained.''
       Mr. Riddick, a most authoritative source on the Senate 
     Rules and author of ``Riddick's Procedure'', the volume all 
     Senators consult frequently on the Senate's precedents and 
     practices, added: ``I certainly would not ever question the 
     motives of a vice president. . . . When he raised the 
     question with me if there would be a chance of ruling that a 
     majority vote was sufficient, I said: ``Absolutely no, Mr. 
     President, Rule 22 says it takes two-thirds, and until the 
     rule is amended to allow it I don't see how you could rule 
     that way.''
       In 1975, Senators Walter Mondale and James Pearson 
     introduced a resolution to allow cloture with a three-fifths 
     vote of those present and voting. Senator Mondale made 
     several motions over the next several days to proceed to the 
     consideration of the resolution. Similar to 1967, a compound 
     and self-executing motion that would automatically cut off 
     debate on the motion to proceed and require the Chair to put 
     the question if adopted by a simple majority was used. 
     Majority Leader Mike Mansfield raised a point of order 
     against the motion and Vice President Nelson Rockefeller 
     submitted the point of order to the Senate for debate as a 
     constitutional question. While on three separate votes the 
     point of order against the motion to proceed to the 
     resolution was tabled, the Senate never ultimately adopted 
     the motion or ended debate by simple majority vote. The 
     Senate reversed this precedent almost immediately and voted 
     to reconsider the last vote on the motion to table the point 
     of order by a vote of 53-38. When the question recurred on 
     the motion to table the point of order, the Senate voted 40-
     51 and the motion to table failed--constituting an 
     affirmation by the Senate of the point of order that the 
     Mondale motion violated the Senate's rules.
       Later, to eliminate any doubt, the Senate sustained the 
     Mansfield point of order by a vote of 53-43 and went on to 
     consider and ultimately invoke cloture by a vote of 73-21. 
     The Senate then amended Rule XXII under the existing Senate 
     rules.
       Some claim that precedents for the ``nuclear option'' were 
     established during Senator Byrd's tenure as Majority Leader. 
     Our distinguished colleague from West Virginia is this body's 
     foremost expert on the Senate's rules. He has, himself, 
     addressed the inaccuracy of that assertions: ``Simply put, no 
     action of mine ever denied a minority of the Senate a right 
     to full debate on the final disposition of a measure or 
     matter pending before the Senate. Not in 1977, not in 1979, 
     not

[[Page 10536]]

     in 1980, or in 1987--the dates cited by critics as grounds 
     for the nuclear option.
       The Congressional Research Service confirms that only six 
     amendments have been adopted since the cloture rule was 
     enacted in 1917, and `each of these changes was made within 
     the framework of the existing or entrenched rules of the 
     Senate, including Rule XXII.'''
  Mr. LEVIN. I thank the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, today the Senate Chamber has the feel of 
a Hollywood stage set. The Senate clock, centered above the Vice 
President's chair, is in a countdown second by second to the appointed 
hour and minute when a nuclear explosion may render the Senate 
inoperative, or at least do substantial damage to this institution. We 
cannot expect Jimmy Stewart to stride across the center floor to save 
the day, as he did in ``Mr. Smith Goes to Washington.'' It is up to us, 
the Members of this body, to save the day. It is up to us to save the 
Senate. It is up to us to do the job America sent us here to do.
  If 100 Members of the Senate, with the same values and common 
backgrounds, experienced in elected politics, cannot cross the aisle to 
compromise, what hope is there for the deep-seated disagreements and 
hatreds in Iraq, Darfur, Laos, the Congo, Ivory Coast, and all around 
the world?
  Today I am renewing my suggestion that the leaders, Senator Frist and 
Senator Reid, liberate their caucuses to vote without party 
straitjackets. From extensive discussions I have had with Members on 
both sides of the aisle, I remain convinced that most Democrats would 
reject the obstructive tactics of the unprecedented pattern of 
filibusters, and most Republicans would reject the constitutional or 
nuclear option to change the Senate rules.
  This controversy did not arise because Democrats concluded that 
Miguel Estrada and nine other of President Bush's circuit court 
nominees were so unqualified that they should be filibustered. Rather, 
these systematic filibusters were initiated as payback for Republican 
treatment of President Clinton's nominees. These filibusters are a 
culmination of a power struggle between Republicans and Democrats as to 
which party could control the judicial selection process through 
partisan maneuvering.
  To reach a compromise, the first step is for both parties to concede 
publicly that both parties are at fault. As debate has raged on the 
Senate floor for days and really weeks, there has been very little 
willingness on the part of Senators to acknowledge that the actions of 
their own party are at fault. I believe that is indispensable if we are 
to reach a compromise, to start off with the proposition that the 
division of fault is 50/50.
  The pattern of delay arose during the last 2 years of President 
Reagan's tenure, after the Democrats had gained control of the Senate 
and the Judiciary Committee in the 1986 election. President Reagan's 
circuit court nominees were delayed and denied, with some seven denied 
hearings, and two additional nominees were denied floor votes. The 
pattern of delay and denial continued through 4 years of President 
George H.W. Bush's administration. President Bush's lower court 
nominees waited an average of 100 days to be confirmed, which was about 
twice as long as had historically been the case.
  The Democrats also denied hearings for more nominees. For President 
Reagan, the number was 30; for Bush senior, the number jumped to 258. 
When we Republicans won the 1994 election and gained the Senate 
majority, we exacerbated the pattern of delays and blocking nominees. 
Over the course of President Clinton's Presidency, the average number 
of days for the Senate to confirm judicial nominees increased even 
further to 192 days for district courts and 262 days for circuit 
courts. Through blue slips and holds, 60 of President Clinton's 
nominees were blocked, and blocked in key circuits. So it was no 
surprise when the Democrats were searching for a way to return the 
favor and to keep vacancies in the same circuit courts because of what 
they concluded was inappropriate treatment.
  When the Democrats initiated the unprecedented move of a pattern of 
filibusters--and it is true, there had been filibusters in the past, 
but never a pattern, never a systematic effort, as has been evidenced 
recently--President Bush responded similarly in an unprecedented move 
by interim appointments. It had never happened in the history of the 
Republic that the Senate, even by filibuster, would be greeted by an 
interim appointment by the President. That impasse was broken when 
President Bush agreed to refrain from further recess appointments.
  Against this background of bitter and angry recriminations, with each 
party serially trumping the other party to get even or, really, to 
dominate, it is obvious that the issue does not involve the 
qualifications of the nominees. In the exchange of offers and 
counteroffers between Senator Frist and Senator Reid, Democrats have 
made an offer to avoid a vote on the constitutional or nuclear option 
by confirming one or perhaps two of the filibustered judges, Priscilla 
Owen, Janice Rogers Brown, William Pryor, and William Myers, with the 
choice to be selected by Republicans. An offer to confirm any one of 
these four nominees is an explicit concession that each is qualified 
for the court and that they are being held hostage as pawns in a 
convoluted chess game which has spiraled out of control. If the 
Democrats believe that each is unqualified, a deal for confirmation of 
any one of them is repugnant to the basic democratic principle of 
individual, fair, and equitable treatment. And more importantly, it 
violates Senators' oaths on the constitutional confirmation process. If 
these nominees, any one of them or two of them, are unqualified, what 
is the justification for Senators to confirm them under a deal? Such 
dealmaking confirms public cynicism about what goes on behind 
Washington's closed doors.
  Instead, my suggestion is that the Senate consider each of the four 
without the constraints of voting. Let the leaders release their 
caucuses from the straitjacket of voting and even encourage Members to 
vote their consciences on issues of great national importance. It 
should not be a matter of heresy for someone in this Chamber to suggest 
that Senators exercise their own individual judgment and follow their 
consciences as opposed to voting. But the regrettable fact of life is 
the dominant force and the dominant power in this Chamber is voting. 
When you come to a matter of a change of the Senate rules materially 
affecting the rights of the minority, there should be no question that 
the party line ought not to be the determinant.
  In a press conference on March 10, 2005, Senator Reid referred to the 
nuclear option and said:

       If it does come to a vote, I ask Senator Frist to allow his 
     Republican colleagues to follow their conscience. Senator 
     Specter recently said that senators should be bound by Senate 
     loyalty rather than party loyalty on a question of this 
     magnitude.

  Senator Reid concluded that he agreed. Well, that is some progress. 
But Senator Reid did not make any reference to my urging him to have 
the Democrats reject the party-line straitjacket voting on 
filibustering.
  The fact is that the harm to the Republic by confirming all of the 
pending circuit court nominees is, at worst, infinitesimal compared to 
the harm to the Senate that would occur whichever way the vote would 
turn out on the constitutional or nuclear option. None of these circuit 
judges could make new law, because all are bound, and each one has 
agreed on the record, to follow U.S. Supreme Court decisions.
  While it is frequently argued that circuit court opinions are in many 
cases final because the Supreme Court grants certiorari in so few 
cases, circuit courts, as we all know, sit in panels of three. Since at 
least one other circuit judge on the panel must concur, no one of the 
nominees can unilaterally render an egregious decision. If a situation 
does arise where a panel of three circuit judges makes an egregious 
decision, it is subject to correction by the court en banc of the 
circuit. And then there is also the opportunity for review by the 
Supreme

[[Page 10537]]

Court if it is really outlandish or egregious.
  What is the overhang of this Chamber is the imminence of a Supreme 
Court nominee. I have heard one of the distinguished senior Senators 
from the other side of the aisle say: Confirm them all. Eliminate the 
filibuster on all of them, because the real issue is what is going to 
happen with the confirmation of a Supreme Court nominee. And if the 
filibuster were to continue on a Supreme Court nominee, given the many 
5-4 Court decisions, we know we would then have 4-4 decisions so that 
the circuit opinion would stand; there would be no determination on 
very many tremendously important questions; and the Supreme Court of 
the United States would be rendered dysfunctional.
  As we are debating this issue, there has been a move among a number 
of Senators to find six Democrats who would forsake the filibuster, 
except in what has been categorized as ``extraordinary circumstances,'' 
if six Republicans would vow to vote against the constitutional or 
nuclear option.
  I have attended some of those meetings. The attendance has shifted 
with many Senators, more than 12, participating. I do not know how 
many. It is not exactly the old style floating crap game, but it is a 
moving dialog. There are moving discussions. There are moving targets, 
and there are moving Senators.
  On Tuesday afternoon, when a group of us met downstairs in the first 
floor off the Senate Chamber, one of the Democrats said: Suppose we 
take the floor and add Judge Saad of Michigan, and suppose you take two 
and give us three, or suppose we take three and give you two. It seemed 
to me that the latter suggestion of taking three to confirm, rejecting 
two, would be a sound proposition. I cannot subscribe to the idea that 
a group of 12, however they may ultimately be constituted, ought to 
make the decision on who is to be confirmed and who ought not to be 
confirmed. It is my view that ultimately that is a decision for this 
body.
  To achieve that end in a principled way, I have urged the majority 
leader, Senator Frist, to do a whip count among Republicans. If anybody 
is watching on C-SPAN 2, by way of brief explanation, a whip count is 
when there is a tabulation by talking to each of the Republican 
Senators, and the same process may occur on the Democratic side to 
discern how those Senators are going to vote.
  It is a common practice. If the whip count were to be conducted, we 
might know in advance what the result would be, and if the result would 
be that two or more of the filibustered judges would be rejected, then 
the Democrats would have won their point.
  So much of what we are engaged in today is a matter of saving face. 
This whole controversy has been escalated so far that neither side is 
prepared to back down. Neither side is willing to back down. In the 
wings, we have all of these press conferences on the Senate steps. We 
have various groups meeting. We have the commercials on the air--
perhaps started with Gregory Peck in 1987 on the Judge Bork nomination, 
continuing until the past weekend, and continuing to this day. It is 
hard to turn on the television set without finding a commercial. Last 
week, my State of Pennsylvania was inundated with commercials demanding 
that Senator Arlen Specter vote to ``save the Republic.'' Nobody is 
quite sure what it means to ``save the Republic,'' the way the debate 
is going on.
  These commercials are, in my opinion, counterproductive, certainly 
not effective, and realistically viewed, insulting. If we take the play 
from the groups, the play from the press conferences, the play from all 
of the opinion makers out there--the newspaper writers and 
editorialists, and the so-called groups--one group is shouting to the 
Democrats: Filibuster forever, filibuster forever. The other side is 
shouting to the Republicans: Pull the trigger, pull the trigger. So 
what if it is a nuclear detonation, as long as our side wins.
  What I think needs to be done is the issue ought to be returned to 
the Senate. It ought to be returned to the 100 Members of this body. 
And if the leaders do not liberate their Members to pass their 
individual consciences on these issues in the context of a whip check 
to get an idea of what will happen, then a small group of Senators will 
take control of the Senate; a small group of Senators will have struck 
a deal; a small group of Senators will pledge, with sufficient numbers, 
not to carry on the filibuster; and a sufficient group of Senators on 
the other side will have a sufficient number of votes not to implement 
the constitutional or nuclear option.
  What we need to do is return this decision-making power to this body. 
One idea I advanced many years ago with S. Res. 146, joined by Senator 
Byrd, was a resolution to establish an advisory role for the Senate in 
the selection of Supreme Court justices. The thrust of this resolution 
was that it would be useful to create a pool of recognized candidates 
of superior quality for consideration by the President. The pool would 
be considered by consulting with the chief judges of the various State 
supreme courts, bar associations, professors, circuit courts of appeal, 
and chief judges from across the country. This sort of body would be 
available to the President.
  It is my judgment not to reintroduce that Senate resolution at this 
time because, in the current context--the current incendiary context--
of the prospect of the nomination or nominations which may be upon us 
any day now, it is my conclusion that this would not be an appropriate 
time to promote the idea, but that it ought to wait until the time when 
heads are cooler and the country is not so badly divided on this issue, 
and when the Senate is not so badly divided on this issue.
  It is my personal view that the option of a filibuster for 
extraordinary, egregious circumstances ought to be retained, but not in 
the context of the way it has been used in the immediate past, as a 
pattern of delay that is directed at getting even or getting back.
  When it comes to this issue of extraordinary circumstances, it seems 
to me each Senator individually would have to make a determination as 
to what he or she thought constitutes extraordinary circumstances. I 
have engaged in legal research on the subject. There is no way, in my 
opinion, to delineate it, to write it down so there will not be some 
area of disagreement. But just as Senators must make an individual 
determination of what constitutes extraordinary circumstances to resort 
to the filibuster--hopefully, in very rare cases--so must those who 
make a pledge not to invoke the constitutional or nuclear option have 
the understanding that an individual's determination as to whether the 
extraordinary circumstance exception applies is being exercised in good 
faith.
  Good faith is something we ought to talk about a little more in this 
Chamber. It is the brother to following our individual consciences. If 
we do that, we have the sensibility and the background and the 
intelligence and the experience to make the appropriate decisions. I 
have spoken twice before on this subject, as the Congressional Record 
shows--once on April 21, and again on May 9--in a real effort to try to 
promote some ideas that will lead to a resolution and a compromise. As 
we approach--it is 4 days away--a Tuesday cloture vote on Priscilla 
Owen, the countdown is narrow. The Presiding Officer sits in the Vice 
President's chair by designation, and the clock above him ticks. It has 
the feel of a Hollywood stage. We are set for a countdown, where second 
by second, the hours and minutes go by as we come to the critical 
votes, the first of which will be the cloture vote on Texas Supreme 
Court Justice Priscilla Owen. And what may follow, when the count 
reaches zero, when the roll is called--if it is to be called--is a vote 
on the constitutional or nuclear option. It is still my hope we will 
avoid that vote.
  Either way the vote comes out, it will be harmful to the Senate. If 
the option is rejected, it will embolden the Democrats, as well as 
whichever may be the minority party at any time in the future. It will 
embolden the minority party to recklessly use the filibuster, as I 
think it has been used in the 108th Congress. It may embolden

[[Page 10538]]

the minority party further to filibuster nominees like John Bolton, 
whose nomination for U.N. ambassador is very much in doubt. If the 
option is passed, it will embolden the appointers into having greater 
latitude on the nominees who may be submitted.
  When you deal with the doctrine of separation of powers, there is a 
well-established principle that to have a little play in the joints is 
a good thing, where it is uncertain as to how a vote will turn out. And 
I think at this reading, it remains uncertain how a vote on the 
constitutional or nuclear option will turn out. There is a greater 
chance for compromise.
  In an earlier floor statement, I analogized our controversy here to 
the controversy between the United States and the Union of Soviet 
Socialist Republics in the Cold War. I have seen some of my colleagues 
pick up on that analogy. If there is any certainty in our troubled 
world--if the United States and the Soviet Union could avoid a nuclear 
confrontation on mutually assured destruction--so should the Senate.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized.
  Mr. JEFFORDS. Mr. President, I would like to take a few minutes today 
to caution the majority from pursuing what is referred to as the 
``nuclear option'' in an effort to change Senate rules and forbid 
unlimited debate on judicial nominations.
  Some of my colleagues say they are seeking this change because they 
want judicial nominees to get a vote. This view is a shift for those 
who denied more than 60 of President Clinton's judicial nominees a vote 
either in committee or in the full Senate.
  Unlike those nominees, President Bush's nominees have received votes 
by the full Senate. Those votes determined that these nominations 
should not move forward.
  Some in the majority did not like the outcome of those votes, and 
that is why we are here today in what has been described as ``a 
historic moment'' in Senate history. But I fear that we are making 
history for all the wrong reasons.
  I do not find it the least bit alarming that we are challenging a 
handful of judicial nominees while at the same time we have approved 
more than 200 of the President's choices.
  These judges will be appointed for life, and it is our job--no, our 
responsibility--to ensure that these judges are worthy of the role. 
Despite what some would have the public believe, the system is working 
just as it is supposed to work.
  Perhaps if this administration had consulted the Senate on these 
nominees, rather than show such determination to test our will, we 
would not be in the unfortunate position we are in.
  But instead of heeding the warning signs, this administration plowed 
recklessly ahead.
  A success rate of over 95 percent apparently wasn't good enough, so 
the administration resubmitted the names of its most controversial 
picks.
  I believe that a 95 percent success rate is a record this Senate 
should be proud of. Unfortunately, some in the majority don't share my 
view.
  The right in the Senate to unlimited debate is an important part of 
our system of checks and balances. It ensures that a bipartisan 
consensus is reached by more than a bare minimum majority of Senators 
when we are faced with critical issues.
  There are those in the majority who believe, contrary to the U.S. 
Constitution, Senate rules, and Senate precedent, that all judicial 
nominees must have an up-or-down vote on the floor of the Senate.
  Nothing in the Constitution, nothing in the Senate rules, and nothing 
in the way the Senate has functioned in the past supports that belief.
  In fact, my colleagues in the majority have themselves required 60 
votes in order to pass judicial nominees.
  Back in 2000, during consideration of the nominations of Richard Paez 
and Marsha Berzon to the Ninth Circuit Court of Appeals, 60 votes were 
required in order to reach a final vote on these two Clinton nominees.
  During the debate on these nominations, then-Senator Bob Smith of New 
Hampshire made a very important point concerning the need for unlimited 
debate on judicial nominations.
  He said:

       I think it is fair that judges who are appointed forever, 
     who will be making decisions long after we are out of here, 
     probably when our children are coming into voting age, or our 
     grandchildren, whatever the case may be . . . we have a 
     responsibility to look very carefully at them.

  As I prepare to become a grandfather for the first time any day now, 
I am struck by these remarks.
  Some of the judicial nominees we approve today may be interpreting 
laws and deciding constitutional questions when my grandson graduates 
from high school, when he votes for the first time, and perhaps even 
when he starts his own family.
  It seems logical, given this scenario, that we require some lifetime 
appointments to receive more than the support of a bare majority of 
Senators.
  I am also concerned that if the nuclear option is invoked and 
unlimited debate on judicial nominations is forbidden, this precedent 
will eventually be extended to other nominations and legislation.
  I fear the ultimate goal of some of those pursuing this nuclear 
option will be to extend the filibuster prohibition beyond judicial 
nominees. We will then have two bodies that are purely run by a 
majority and not protective of the rights of the minority.
  It is nice to hear the majority leader say that he has no intention 
of extending this precedent.
  However, it rings a little hollow to me when we all know that come 
January 2007, there will be a new majority leader in the Senate. This 
individual, Republican or Democrat, will not be bound by the promises 
made by the current majority leader.
  This week, the editorial pages of a local Vermont newspaper noted the 
irony of the timing of this debate. That editorial, printed in the 
Times Argus of Barre, VT, said:

       The majority in the United States Senate wants to remove 
     one of the important and traditional political tools--the 
     filibuster--that protects the rights of the minority party, 
     even as Secretary of State Condoleezza Rice goes to Baghdad 
     to urge the majority there to put aside its long-standing 
     grudges and guarantee minority rights.

  So why is it that we are urging the fledging democracy in Iraq and in 
other nations around the world to respect minority rights, while some 
in the Senate want to trample those same rights and threaten the 
balance of power that we hold so dear right here in our own democracy?
  I am afraid I do not have the answer, but it concerns me beyond 
words.
  In my more than 30 years in Washington, I have always tried to decide 
each issue on its merits, rather than to provide a rubberstamp to 
comply with the wishes of leadership.
  I fear that we are here today because some in the majority would 
prefer that the Senate just act as a rubber stamp for the President's 
desires.
  I refuse to spend the last 19 months of my term in the Senate being a 
rubberstamp.
  I will oppose changing the Senate rules for this purpose, and I hope 
my colleagues will join me in protecting the rights of the minority by 
protecting the right of unlimited debate in the Senate.
  In concluding, I suggest that my colleagues listen to the words of 
Charles Mathias, a former Republican Senator from Maryland, who 
recently wrote:

       Make no mistake about it: If the Senate ever creates the 
     precedent that, at any time, its rules are what 51 senators 
     say they are--without debate--then the value of a senator's 
     voice, vote and views, and the clout of his state, will be 
     diminished.

  I do not know of a single Senator who would desire this outcome, but 
I fear it could happen if this body agrees to change the Senate rules 
that have served this chamber so well for so long.
  This is truly a historic moment in Senate history.
  I hope my colleagues will join me to maintain our system of checks 
and balances, keep the Senate the Senate, and protect each individual 
Senator's right to unlimited debate.

[[Page 10539]]

  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I commend the distinguished Senator from 
Vermont whose independence and wisdom has been demonstrated in this 
body in the time I have been here. Some of what I am about to say will 
echo what he more eloquently said.
  I spoke earlier this week about why the elimination of the filibuster 
on judicial nominations would be ill advised as a matter of policy and 
why violating the existing Senate rule which governs how we can 
properly change the Senate's rules of procedures should be unthinkable 
and would be unconscionable. It would set a terribly damaging precedent 
for this great institution, damage that would be permanent and 
irreparable, a precedent that the existing rules and procedures of the 
Senate can at any time and for any reason or for no reason be 
disregarded or changed or a new rule added by a majority vote of the 
Senators present at that time. Just make a motion to the Presiding 
Officer, who could ignore the advice of the Senate's professional 
Parliamentarian, make his or her own ruling, and a majority vote would 
either uphold or overturn that decision.
  That essentially means the majority of this body at any time can do 
whatever they want to do, however they want to do it, as long as they 
ratify it by their own majority vote. None of the rules of procedure 
would have any permanent standing or reliability, no matter how long 
they have been in existence.
  If the majority of Senators decides it does not like those rules of 
procedure, or if they cannot get the results they want by following 
them and they can just disregard them or change them any time and then 
vote themselves right by doing so, we have lost the integrity of this 
institution. What kind of society would we have if that precedent, 
reestablished here, became standard operating procedure by our fellow 
citizens all over this land?
  Another point I would like to raise, after listening for the last 
couple days to the stated reasons by the proponents of this so-called 
nuclear option, is that many of them say the U.S. Constitution's advice 
and consent clause requires an up-or-down vote by the full Senate. I 
raise this point respectfully and seriously because each of us, the day 
we take office as a Senator, takes a sworn oath right here in the 
Senate Chamber, right in front of our family, our friends, and the 
American people, administered by the Vice President of the United 
States, with our hand on the Bible. And that oath says in part:

       I will support and defend the Constitution of the United 
     States. . . .

  It goes on to say:

     . . . I will bear true faith and allegiance to the same.

  And it ends with our saying:

     . . . so help me God.

  I know for myself that was the most serious and important oath I have 
ever taken, and I believe that every other Member of this Senate is as 
fully committed to upholding that oath as I am and is acting now and 
wants to continue to act in all good faith to uphold it at all times.
  We sometimes have honest differences in our views of what particular 
words in the Constitution mean and what they instruct us to do. Those 
honest differences have arisen since this body commenced its work on 
March 4, 1789, sometimes between Members of the two parties, sometimes 
between Members of the same party, sometimes between Members of 
different parts of the country, or those representing large States and 
small States, and for many other legitimate reasons.
  In most of our actions and decisions in the Senate, our 
interpretations of the words of the Constitution and our application of 
those words individually and as a collective body will be reviewed and 
can be tempered or even rejected by other public officials and 
institutions.
  All the legislation we pass must be agreed to by the House, must be 
agreed to by the President or vetoed by him, and overridden with a two-
thirds vote here and in the House. Then, if properly challenged by 
someone with legal standing, it can be further reviewed as to 
constitutionality by Federal courts and, as the ultimate arbiter of 
constitutionality, the U.S. Supreme Court.
  So with all the legislation we act upon and most other matters that 
come before us, our constitutional understandings, interpretations, and 
applications are subjected to a rigorous process of checks and 
balances.
  Those checks and balances, however, do not exist for Senate approval 
or disapproval of Presidential nominees because the Constitution 
clearly and explicitly authorizes the Senate and the House, each of 
those bodies, to determine the rules of their proceedings. Previous 
Federal courts have ruled those words mean exactly what they clearly 
say.
  The Constitution then defines this proceeding we are engaged in now 
as ``the advice and consent of the Senate.'' That wording, its meaning, 
and its intent are unfortunately much less clear. The section of the 
Constitution says in its entirety the President ``shall nominate, and 
by and with the Advice and Consent of the Senate, shall appoint 
Ambassadors, other public Ministers and Consuls, Judges of the Supreme 
Court, and all other Officers of the United States, whose Appointments 
are not herein otherwise provided for, and which shall be established 
by law; but the Congress may by Law vest the Appointment of such 
inferior Officers, as they think proper, in the President alone, in the 
Courts of Law, or in the Heads of Departments.''
  That means almost everyone in the Federal Government is subject to 
the advice and consent of the Senate unless Congress, by law, chooses 
to waive that requirement for specified ``inferior''--that is the 
Constitution's word, not mine--officers. That is why as members of the 
Armed Services Committee we regularly report to the full Senate rosters 
of ``appointments,'' most of which are promotions, of 2,000, 3,000, 
over 4,000 officers in the U.S. Armed Forces. They must then be 
approved, and they usually are approved en bloc by the full Senate.
  Proponents of the nuclear option are saying this clause of the 
Constitution, particularly the words ``advice and consent,'' requires 
that every Presidential judicial nominee gets an up-or-down vote by the 
full Senate. If that is the view of the majority of the Senate, how can 
it not also apply equally to every other nomination described in that 
section of the Constitution?
  The Constitution, the section I just read, makes no distinction in 
defining our role and responsibility to advice and consent between 
Presidential nominees for executive branch or judicial offices. It 
makes no distinction between term limited or lifetime appointments, and 
it gives us no authority to make those distinctions either, except that 
by law we cannot require the Senate to approve certain lower level 
positions.
  As I understand the majority leader's intention for next week, just 
from published reports I have read, he will ask the Presiding Officer 
of the Senate to rule that the Constitution's words ``advice and 
consent'' require an up-or-down vote by the full Senate--on all 
Presidential nominations covered by those words in the Constitution? 
No, I think that is not the case. Only for judicial nominations. Would 
that ruling, that constitutional requirement of an up-or-down vote by 
the full Senate, apply then to all judicial nominations that come to 
the Senate? No, not as I understand it; not to those that are blocked 
by the Judiciary Committee, not to those that are blocked by the 
custom--it is not even a written rule or procedure in the Senate--that 
two Senators, sometimes only one Senator, in the majority, can prevent 
any vote by anyone, a committee or the full Senate, on a Presidential 
nominee.
  Where, I ask my colleagues in favor of the nuclear option, who 
contend the Constitution requires this up-or-down vote by the full 
Senate, where does the Constitution permit the Senate leadership or a 
Senate committee or one Senator to make those distinctions between one 
judicial nominee or another or between judicial nominees and other 
Presidential nominees in that same section of the Constitution?

[[Page 10540]]

  I believe the ambiguity in the meaning of the term ``advice and 
consent'' certainly provides us with reasonable latitude in defining 
what that term requires the Senate to do. It does not, however, permit 
us to apply one definition to one group of nominees and apply a 
different definition, and therefore different Senate rules and 
procedures, to the other nominees to which those same words equally 
apply.
  Every Senator here is entitled to his or her own views about 
filibusters. Whether they are good or bad instruments of public policy, 
they are properly debatable. They are entitled to their own views. We 
are each entitled, within far greater constraints, to our own best 
conscientious interpretation of the Constitution, especially words or 
clauses where well-informed and well-intentioned people can reasonably 
differ. We are not entitled, however--in fact we are forbidden--to 
rewrite, reinterpret, selectively apply, or ignore those words just 
because we do not like them or agree with them. We have sworn an oath 
to uphold, to support, and defend them, every one of them. If we 
disagree with them, if we believe they are not right for our 
constituents and our country, we have the right to change them. But, 
according to the rules and the procedures in the Constitution, we do 
not have the right to change them otherwise; just as we have the right 
to change Senate rules and procedures, but only by following the rules 
in the Senate to do so.
  Following the rules, obeying the laws, upholding the Constitution--
those are the foundation of our country. At a time when we are 
demonstrating to other parts of the world, other countries and 
citizens, how to set up democracies and make them successful and make 
them survive and thrive, we will make a tragic, terrible error if we 
violate those founding, fundamental principles ourselves. The country 
and the world will be watching next week to see what we do.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from Arkansas.
  Mrs. LINCOLN. Mr. President, I do not come to the floor often to 
speak, but today I do come out of a sense of duty and a real spirit of 
purpose, to express my strong opposition to changing the rules of 
debate here in the Senate. As a pragmatic Democrat who has raised more 
than a few eyebrows in my own party over the years for putting progress 
on critical issues ahead of loyalty to any political party or ideology, 
I am alarmed frankly that we have reached a point in the Senate when 
confrontation is the choice over consensus, considering the history of 
the debate on this issue, and the consequences of what is being 
contemplated.
  To understand the consequences of the debate in which we find 
ourselves engaged today, I think it is so helpful to briefly review the 
basic facts regarding the confirmation of judicial nominees in the 
Senate in recent years. Since President Bush took office in January of 
2001, the Senate has confirmed 208 of the lifetime judicial nominees he 
has appointed, and the Senate has withheld consent from 10 of those 
nominees. In other words, the Senate has confirmed more than 95 percent 
of the judicial nominees put forward by President Bush since he took 
office more than 4 years ago. As a result, there are only 45 judicial 
vacancies today, which represents the lowest judicial vacancy rate 
since President Reagan was in office.
  When you compare that to more than 60 judicial nominees who were 
blocked in the Judiciary Committee under the Republican control during 
President Clinton's term in office, I quite frankly think it is a 
pretty good record of which the President should be proud and with 
which the Republican leadership should be pleased.
  Put another way, when my 8-year-old twin boys come home from school 
with a 95 percent on their report card or on their test, I don't stomp 
my feet and send them to their room. I do not get angry with them and 
tell them to go back to school tomorrow and break those rules next time 
so you can get 100 percent on that test.
  No, that is not what we do. That is not the example we set. That is 
not what we ask of a body or individuals who are guided by rules. That 
would be outrageous.
  I would say to my children: Good job, keep up the good work. Work a 
little bit harder.
  Am I suggesting Democrats of the Senate deserve a medal for 
fulfilling their constitutional role in considering and confirming 
judicial nominees through advice and consent? Of course I am not. But I 
also do not think the record before us even comes close to justifying 
an attempt to undermine one of the fundamental principles of this 
institution--freedom of speech and of debate; making sure everyone's 
opinion does count--which protects the rights of every citizen in my 
State and in this entire Nation.
  In my view, the proposal put forward by the Senate majority leader to 
limit the ability of Senators to debate judicial nominees represents 
what will become a first step, if successful, in weakening the role of 
the Senate and the role the Senate plays in our system of Government in 
providing the kind of checks and balances against an overreach by the 
executive branch or the political parties or any other branch of 
Government which happens to be in the majority at any given time. And 
it can be either one of us.
  I believe the protections and safeguards that are part of the fabric 
of our system of Government have served our Nation well and they are 
critical, regardless of which political party controls the White House 
and the Congress.
  Most importantly, I sincerely believe what is being proposed by the 
majority could seriously threaten my ability as a Senator from the 
great State of Arkansas to effectively represent the needs of my 
constituents. As I have listened to many of my colleagues debate this 
issue over the past several weeks, I have reflected on the role of the 
Senate as an institution and how and why it came into being. Coming 
from a small State such as Arkansas, which has only 6 voting delegates 
in Congress out of the entire 535, I do not take lightly the fact that 
the compromise which gave birth to the Senate was based on the 
principle that all States, regardless of their size, and all Senators 
privileged to serve in this body, are on equal footing. The Senate was 
deliberately designed to protect the interests of small States such as 
mine and to provide a restraint on the ability of a temporary majority 
on any issue before this body to prevail unchecked.
  Recently, in order to get the attention of this administration, I had 
to use tools. I had to use some of those tools I have as a Senator, to 
simply get an answer, a letter answered on international child 
abduction, on the way Southern producers in agriculture were being 
treated in this budget. It was not an issue of me getting all of what I 
wanted. It was simply an issue of me getting an answer--me, a small 
State, someone representing a small State, being able to get an answer 
on principle and on idea and purpose, from the administration. That is 
what we are talking about, everyone being represented.
  The debate we are having and the issues at stake are much more 
important to me than my political party. With all due respect, they are 
also more important than any individual nominee or judgeship. If we 
start down this road, I fear where it will lead us. This week we are 
debating the role of the Senate as an institution in the consideration 
and confirmation of judicial nominees. Next week or next year, will we 
be debating a change of the rule or the Senate precedent during a 
consideration of the President's plan to privatize Social Security or 
his proposal to shortchange Southern farmers in a farm bill? Where will 
we have that ability to speak out and make sure we are clearly heard?
  I hope not, which is why I am standing up here today to defend the 
powers vested in me as a Senator from Arkansas, to represent my 
constituency.
  But if getting 100 percent--if that is why we are here, if that is 
what this debate is about and that is what the majority leader is 
looking for--if getting 100 percent of what you want all

[[Page 10541]]

the time is the purpose here, when will we ever be content? When will 
the majority ever be content? And how can we say these things will not 
happen?
  The majority leader stated that he believes filibusters against any 
judicial nominee are unwise and unreasonable. While I disagree with 
him, I still respect his opinion and his right to debate that issue in 
the Senate, or anywhere else, for that matter, at great length. What 
troubles me, though, is his willingness to discard an institutional 
power regarding consideration of judicial nominees, even when, 
according to reports, the Senate Parliamentarian believes the so-called 
nuclear option does not conform to the rules of the Senate. Let us all 
take time and think about what nuclear fallout is like. Look at the 
photographs of nuclear fallout. Look at what happens when nuclear 
reaction occurs. There is great devastation.
  What happens if the rules of debate in the Senate in the future will 
be viewed by the majority party that happens to be in charge at any 
given time as unwise or outdated and dispensable? I do not want to find 
out. This body is too precious. It does too much. It is too important 
to the balance that makes this Nation great.
  It is my sincere hope and prayer that the Senate as an institution 
can survive the current impasse intact, and I think we can. I am aware 
Members on both sides of the aisle are considering a short-term 
compromise which would, in a limited fashion, preserve the current 
rules of debate regarding judicial nominees for the remainder of this 
Congress.
  I am hopeful a constructive solution which preserves the integrity of 
our system of checks and balances can be achieved. But I regret that 
the current political environment has put the Senate in this position 
and has left us with so few options that we come today in sadness that 
we have even come this far.
  After having served now in the Senate for over 6 years and prior to 
that in the House of Representatives for 4, I have enormous respect for 
the role each Chamber plays in our system of Government. Based on that 
experience, I am convinced that for the sake of the Senate as an 
institution and the vital role it plays now and will play into the 
future, long after everyone in this body is gone, I believe the way out 
of this standoff is for Members of both parties to work together to 
defend the Senate, to defend our rules, to defend this great 
deliberative body as an institution while also working to prevent 
showdowns with the White House over judicial nominees from occurring in 
the first place.
  I met with Miss Owen. She is a nice woman. This is not to say that 
she is not a nice person. We are here to say, when the opportunity 
comes, we need a clear and substantial amount of this body to say this 
is the person for this job. Her peers from her own party have labeled 
her a judicial activist. We are not here to say she is not a nice lady. 
We are here to say she is not the right person for the job. That should 
be the opportunity we have in the Senate.
  To come to those conclusions will require communicating and 
cooperating in good faith. It will also require trust, and most of all 
respect--respect across the aisle and across Pennsylvania Avenue.
  I am not probably one of the most typical of politicians or Members. 
I don't come from a big legal background or even a big political 
background. I am a farmer's daughter from east Arkansas. Right now, one 
of my biggest responsibilities along with serving in this great Senate 
is to be a good parent and to show my children what it means to be 
truthful and respectful.
  Last night, I was fortunate enough to sit on the sidelines and watch 
a Little League game, a precious Little League game of players, who 
were not the best but weren't the worst, playing their heart out. But 
they still lost. And to see a coach who has made so much difference in 
their life and in their performance, to sit them down as he always does 
after the game, making sure he points out all the positive things that 
each one of them has done, points out some of the things they could do 
better, but at the end he says to them: Let me tell you, in this game 
we respect the rules, we respect the umpire, and we respect the other 
team. And because we do, we are all the better for it.
  Those of us in this body need to dig down deep in each of our souls 
and look for the respect, the respect for the other team, the respect 
for the rules, for the game, the institution, and for the umpire.
  We have an opportunity now to set an example for our children. There 
is a saying on my wall in the kitchen at my home. It says: When I'm 
dead and gone it's not going to matter what kind of car I drove. It's 
not going to matter how big my house was. All of those things are 
probably not going to matter, but the fact that I may have in some way 
made an impact on the life of a child, my life will have mattered.
  This body, this institution has an opportunity to set an example, not 
just to each of us together as Senators to show one another the trust 
and the respect this body engages us to do, but also the opportunity to 
show this Nation and the world, and more importantly our children, that 
rules do matter and that you cannot just change the rules in the middle 
of the game because it does not suit you, and if you don't get 100 
percent of what you want, that rules and the decision of the umpire 
matters. Most importantly, respecting the other side and the other team 
in this game is ultimately what makes it worth playing.
  I call on my colleagues today to step back and reflect on how the 
balance of power in our government will change and how the Senate will 
be weakened, perhaps for all time, if the proposal of the majority 
leader is adopted. I do think it is the wrong path and something 
Members in both parties will come to regret in the years to come. 
Again, my hope and my prayer is that we do not forget all of those that 
are watching, that we do not forget the rules of the game and how 
important they are, and most importantly I hope we do not forget what a 
critical role respect plays in all of the games of life that we play.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, the issue before us is pretty simple. 
It is this, shall we continue the two-century tradition of voting up or 
down each President's judicial nominations? That is it. That is all we 
are talking about.
  Making your way through all the histrionics--and there have been a 
lot of them on both sides--that is absolutely all we are talking about. 
Shall we continue the two-century tradition of voting up or down, 
eventually, on this President's or any President's judicial nominees?
  The Democrats have decided they will use the Senate rules to prevent 
an up-and-down vote on some of President Bush's judicial nominees by 
using this as a consistent tactic for the last 2 years to block a vote 
on nominees a majority of us want to confirm. They are using the Senate 
rules in a way they have never before been used. They know that. 
Everyone knows that. There is no disputing that. They had a meeting. 
They decided to do it. And they are doing it.
  Now, they may have past grievances such as the practice used by both 
parties to allow a single Senator to block a nominee in a committee. I 
know all about that grievance. In 1991, the first President Bush 
nominated me to be the U.S. Education Secretary. I was enthusiastic 
about it. I had been the Governor of my State. I was President of the 
University of Tennessee. I came up and sold my house, moved my family 
up, put my kids into school, and then one Senator from Ohio put a hold 
on my nomination. So I sat there in the committee for about 3 months, 
not even knowing who it was, or knowing what the problem was.
  After a while, that Senator, who happened to be a Democrat--they were 
in the majority then--said in a public hearing with me: Governor 
Alexander, we have heard some disturbing things about you, but I don't 
want to bring them up now, here, with the lights all around, and all 
the people and your family here.

[[Page 10542]]

  I said: Please, Senator, bring them all up. I would rather have them 
out here.
  That went on for 3 months. I didn't know what to do, so I went to see 
Senator Warren Rudman who most people would say is one of the most 
respected Members of this body over the last 30 years. I said: Senator 
Rudman, what can I do? A Democrat Senator has, by himself, blocked my 
possibility to be the Education Secretary. I moved my family up here, I 
sold my house, my kids are in school, what do I do? He said: Keep your 
mouth shut.
  I said: What do you mean, keep my mouth shut? This is unjust.
  He said: Let me tell you a story. In 1976, President Ford nominated 
me to be on the Federal Communications Commission, and the Democrat 
Senator from New Hampshire put a hold on my nomination.
  I said: What happened?
  He said: Well, I just swung there. Nobody knew what was going on. 
Pretty soon back in New Hampshire they were saying: What is wrong with 
Warren? Has he done something wrong? Did he beat his wife? Did he steal 
something? Why won't the Senate consider him and confirm him? After 4 
or 5 months I was so embarrassed I just asked the President to withdraw 
my nomination.
  I said: Is that the end of it?
  He said: No, then I ran against the so and so who put a block on me, 
and I was elected to the Senate in his place.
  So that is how Warren Rudman got over being blocked.
  Jeff Sessions, our distinguished colleague from Alabama, ran into a 
nearly similar situation. He was rejected by the committee. He was the 
U.S. attorney from Mobile, Alabama and the committee would not send his 
nomination to the floor. They held him up in the committee.
  Senator Sessions got over that. He even got himself elected to the 
Senate. So Senator Rudman got over it, I got over it, Senator Sessions 
got over it. I didn't like it, and I still don't like it. But I got 
over it.
  There are various ways to get over whatever grievous injustices were 
done to the Democrats before the distinguished Senator from Texas, who 
is presiding, and I were elected to the Senate in 2002.
  Senator Frist, the majority leader, has repeatedly offered to fix the 
problem I just described. He has said let all the nominees from a 
Democrat President or Republican President, let them eventually all 
come out of committee. He has said if there is not enough debate--and I 
respect the idea of extended debate in the Senate--let there be 100 
hours of debate on every single nominee. Then Senator Frist has said, 
let there eventually be a vote, an up-or-down vote, as there has always 
been.
  Now, it is not believable for my friends on the other side to 
suggest, as they are, that they are doing nothing new. They know they 
are. I will give one example.
  Everyone remembers the Senate debate about Clarence Thomas. Among 
other things, it made Dave Barry's career when he wrote columns about 
the Senate hearings. Everyone remembers those hearings. Everyone 
remembers how passionate they were and how much information came out. 
There was a new saga every day. No television drama approached it. 
There was never more passion in recent times in a Supreme Court 
nomination than when the first President Bush nominated Justice 
Clarence Thomas.
  He was nominated in July of 1991 by President Bush. This Senate 
completed those hearings that were on television, that we all remember, 
and there was a vote in October of 1991, up or down. In that case, it 
was up, he was confirmed 52 to 48.
  I have yet to find one single person who even remembers anyone 
suggesting 14 years ago that the Senate should not vote on Clarence 
Thomas. Everyone knew that after all the histrionics, all the debates, 
that the greatest deliberative body in the world would eventually vote.
  So we are standing on the Senate floor conjuring up our own versions 
of history, inventing nuclear analogies, shouting at each other while 
gas prices go up and illegal immigrants run across our border. The 
Democrats are using the rules to block the President's nomination in a 
way they have never used before in 200 years. So we Republicans are now 
threatening to change the rules to prevent the Democrats from 
manipulating the rules in a way that has never occurred before.
  That is what this is all about.
  I have a simple solution for the unnecessary pickle in which we find 
ourselves in this body. I offered it 2 years ago. I have offered it 
several times this year. This is it. I have pledged and I still pledge 
to give up my right to filibuster any President's nominee for the 
appellate courts, including the Supreme Court of the United States. If 
five more Republicans and six Democrats did that, there could be no 
filibuster and there would be no need for a rules change.
  For the past 2 weeks, perhaps two dozen different Senators have 
flirted with variations of this formula. But they have not been 
successful because they have insisted on including exceptions. I hope 
these Senators who are still having this discussion succeed. I expect 
80 percent of the Senate hopes they succeed. This oncoming train wreck 
is bad for the Senate, it is bad for the country, it is bad for the 
Democrats, and it is bad for the Republicans.
  We look pretty silly lecturing Iraq on how to set up a government 
when we cannot agree on having an up-or-down vote on President Bush's 
judicial nominees. My suggestion is forget the exceptions. Twelve of us 
should just give up our right to filibuster, period. Let's do it. Let's 
get on with it. That ends the train wreck.
  We have a war in Iraq. We have natural gas prices at $7--these are 
record levels. We have highways to build. We have deficits to get under 
control. We have a health care system that needs transformation. We 
have judicial vacancies to fill.
  I have said I will never filibuster a President's judicial nominees. 
I said it 2 years ago when John Kerry might have been President. For 
me, that meant then--and it means today, and tomorrow--that if a 
President Kerry or a President Clinton nominates some liberal I do not 
like, I may talk for a long time about it, I may vote against the 
person, but I will insist that we eventually vote up or down, as the 
Senate has for two centuries.
  If 11 colleagues would join me in this simple solution, then we could 
get down to business, then we might look once again like the world's 
greatest deliberative body.
  I say to the Presiding Officer, when you and I came to the Senate a 
little over 2 years ago, we talked about what our maiden addresses 
would be. We still call our first major speech our ``maiden address.'' 
I say to the Presiding Officer, remember, we were sitting next to each 
other in the front row, anxiously looking forward to hearing ourselves 
give our maiden addresses. I wanted to make mine about putting the 
teaching of American history and civics back in its rightful place in 
our schools so our children could grow up knowing what it means to be 
an American.
  But as I sat here listening to the debate on Miguel Estrada, I was so 
surprised and so disappointed in what I heard that I found myself 
getting up one night and making a speech on Miguel Estrada, which I had 
no intention of doing.
  During the debate, I was listening to this story of the American 
dream: This young man from Honduras coming here, speaking no English, 
going to Columbia, Harvard Law School, being in the Solicitor General's 
Office. He is the kind of person who when the Presiding Officer and I 
were in law school, and we would hear about people like that, we would 
say there are just a handful of people that talented, that able. We 
were envious, at least I was. He is exactly the kind of person who 
should have been nominated. Yet we could not even get a vote.
  I thought about my time as Governor, for 8 years, of Tennessee. I 
appointed about 50 judges, and I remember what I looked for when I made 
those appointments. I looked for good character. I looked for good 
intelligence. I looked for good temperament. I looked for a good 
understanding of the law and for the duties

[[Page 10543]]

of judges. And I especially looked to see if this nominee had an aspect 
of courtesy toward those who might come before him or her on the bench. 
I appointed some Democrats. I appointed the first women appeals judges 
and the first African-American judges in Tennessee. I thought it was 
unethical and unnecessary for me to ask questions of those judges about 
how they might decide cases that might come before them.
  I still feel the same way about the Federal judges we nominate. I am 
distressed that we have turned this process into an election instead of 
a confirmation. It has become an election about the political issues 
instead of a confirmation about the character and intelligence and 
temperament of fair-minded men and women who might be placed on the 
bench.
  I remember when I came to this body for the first time, not as a 
Senator, but as a staff member to Howard Baker, later the majority 
leader. It was 1967. The ones worrying about protecting the minority's 
rights at that time were the Republicans. There were only 36 
Republicans. I came back in 1977 to help Senator Baker set up his 
office when he was elected Republican leader, and there were only 38 
Republicans. So most of us in this body understand that we may be in 
the minority one day. But that does not mean there should be an abuse 
of minority rights.
  The best way I can think of to stay in the minority for any party, 
whether the Democratic Party or Republican Party, is to say what the 
Senator from New York said in December, in the Washington Post. He said 
that if the Republicans decide to change the rules to make sure the 
Senate continues the 200-year tradition of voting on the nominees the 
President sends to us, that it ``would make the Senate look like a 
banana republic . . . and cause us to shut it down in every way.''
  Mr. President, shut down the Senate in every way? During a war? 
During illegal immigration? During a time of deficit spending, with a 
highway bill pending, with gas prices at record levels, with natural 
gas at $7? Shut the Senate down in every way?
  I can promise you I know what the American people would think of 
that. Any group they can fix the responsibility on for shutting this 
body down and not doing its business will be in the minority or stay in 
the minority. Even now, they are beginning to shut us down. We are not 
allowed to hold hearings in the afternoon because of objections by the 
other side. The American people need to know that. It is the wrong 
thing to do.
  I had the privilege of hearing, yesterday, when I was presiding, a 
very helpful speech by our leading historian in the Senate, Senator 
Byrd. He talked about how extended debate has always been a part of the 
Senate's tradition. I know that is true. I value that. I respect that. 
And I do not want the Senate to become like the House. I know that 
George Washington said, or is alleged to have said, that the Senate 
serves like the saucer for a cup of tea or a cup of coffee. The House 
heats it up, and you pour it in a saucer to cool it in the Senate. But 
I do not ever remember George Washington saying it ought to stay in the 
saucer long enough to evaporate. I think he said just to cool it.
  The Constitution and our Founding Fathers have made it very clear 
that they always intended for Presidents' judicial nominees to be given 
an up-or- down vote. I have studied very carefully, and I will submit, 
in my full remarks to the Record, my understanding of those founding 
documents. The language of article II, section 2, in the clause 
immediately before the nominations clause, for example, specifically 
calls for two-thirds of the Senate to concur, but in the nominations 
clause there is no such provision. I do not believe that is an 
inadvertent omission.
  During the drafting of the Constitution, Roger Sherman of Connecticut 
argued at great length for the insertion of a comma instead of a 
semicolon at one point to make a section on congressional powers 
crystal clear.
  Shortly after the Constitutional Convention, Justice Joseph Story, 
appointed to the Supreme Court by President James Madison, wrote his 
Commentaries on the Constitution, and he stated explicitly:

       The president is to nominate, and thereby has the sole 
     power to select for office; but his nomination cannot confer 
     office, unless approved by a majority of the Senate.

  This was Justice Joseph Story.
  In some ways, what Members of the other side are doing would 
gradually erode the President's power to, in the words of our Founders, 
send to us ``the object of his preference'' for us then to consider. I 
trust the President, elected by a vote of the entire nation, to find 
the right men and women to send up here to be considered for judge or 
justice and sent back to him then to be appointed. Our advice and 
consent is in the middle of that process.
  I suppose the Founders could have allowed the Congress to appoint the 
justices or the judges, but they did not. Gradually, however, the 
Senate has inserted itself more and more prominently in that process. I 
am not sure that the instances I know about suggest that if we were 
doing it all over again, we would trust the Senate to do a better job 
than our Presidents, Democratic or Republican, in picking the men and 
women to serve on our courts.
  Here is an example from my own experience. Back in the 1960s, I was a 
law clerk to the Honorable John Minor Wisdom of the Fifth Circuit Court 
of Appeals in New Orleans. Actually, I wasn't a law clerk; I was a 
messenger. He had already hired a Harvard law clerk, and he told me he 
could only pay me as a messenger, but if I would come, he would treat 
me as a law clerk. So I did. The reason I did it was because even at 
that time, 1965, Judge Wisdom was considered by my law professors at 
New York University Law School to be the leading civil rights judge in 
America and one of the finest appellate judges in America.
  This is what I found when I got there. We were in the midst of school 
desegregation across the South. It was a time of great turmoil. Judge 
Wisdom, for example, ordered Mississippi to admit James Meredith to the 
University of Mississippi. And what was going on during that time was 
that the district judges across the South were basically upholding 
segregation and the Fifth Circuit appellate judges were overruling them 
and desegregating the South.
  At that time, the Senate was not as intrusive in the appointment of 
judges as it is today because the President, President Eisenhower, only 
had to confer by custom with Senators of his own party in the 
appointment of circuit judges. Well, he didn't have any Republicans to 
confer with in the 1960s. All of the Senators were Democrats. They 
approved district judges who, in case after case after case, upheld 
segregation. But President Eisenhower nominated for the appellate bench 
Republican judges, John Minor Wisdom, Elbert Tuttle for whom Senator 
Bond of Missouri was law clerk, and John R. Brown of Texas. Those three 
judges, who would have been blocked, if the present policies of the 
Senate were in place, by Senators from their home States, were able to 
preside over the peaceful desegregation of the South.
  I have seen no evidence in history that the Senate's increased 
involvement in the coappointment of appellate judges or justices 
improves the selection of those judges.
  These are qualified men and women the President has sent here who 
deserve an up-or-down vote. I have mentioned Miguel Estrada. I have 
spoken about Charles Pickering, former judge, now retired, a graceful 
man who hasn't had a word of recrimination to say about what was done 
to him. He was battered for his record on civil rights when, in fact, 
he should have been given a medal for his record on civil rights: For 
testifying against the founder of the White Knights of the Ku Klux 
Klan, who had been called America's most violent living racist in the 
middle of the 1960s; for putting his children in public schools at a 
time when many families in Mississippi were putting their children in 
segregated schools. He was a leader in civil rights, as well as a good 
judge.
  And Bill Pryor's credentials on civil rights have been questioned. He 
was a

[[Page 10544]]

law clerk, not a messenger, a law clerk to Judge John Minor Wisdom, who 
had enormous pride in Bill Pryor, who was elected attorney general of 
the State of Alabama and repeatedly has shown that he separated his 
conservative personal views from interpreting the law. He was going 
right down the line in following the Supreme Court in school prayer 
cases, abortion cases, and reapportionment cases.
  And Priscilla Owen, about whom we have been talking, graduated cum 
laude from Baylor Law School, justice of the Supreme Court of Texas, 
reelected to the Texas Supreme Court with 84 percent of the vote, has 
bipartisan support from other Texas Supreme Court justices. And Janice 
Rogers Brown, 9 years on the California Supreme Court, appointed in 
1996, the first African-American woman to sit on the court, approved by 
76 percent of the voters.
  Let me end my remarks where I began. Make your way through all the 
discussion, all of the analogies to nuclear war, and the issue before 
us is pretty simple--shall we continue the two-century tradition of 
voting up or down on the President's judicial nominees? I believe we 
should. I have suggested a way we can remove ourselves from this pickle 
in which we find ourselves.
  I have said, as I did 2 years ago, regardless of who is President, I 
will never vote to filibuster that President's judicial nominees. If 
five other Republicans and six other Democrats would say the same 
thing, we could then get on about our business of confirming or 
rejecting the President's nominees, of tackling the big deficits, 
passing the highway bill, trying to lower gas prices, spreading freedom 
around the world, supporting our troops in Iraq and Afghanistan and 
around the world, and in reestablishing ourselves, in the eyes of 
America and the rest of the world, as truly the world's greatest 
deliberative body.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, are we now switching to this side of the 
aisle for an hour?
  The PRESIDING OFFICER. There are still 4 minutes remaining on the 
majority side.
  Mr. LEAHY. I would not take that from my friend from Tennessee. He 
has that available to him.
  Mr. ALEXANDER. Mr. President, I am glad to yield that 4 minutes to my 
friend from Vermont.
  Mr. LEAHY. Mr. President, so we will be back to the hour to hour--why 
don't we go back into the hour-to-hour system.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, today, we are continuing to debate the 
Republican leader's bid for what I believe is one-party rule through 
his insistence to trigger the nuclear option. It is kind of a ``king of 
the hill'' situation. While playing king of the hill, you say ``might 
makes right,'' but it doesn't; it makes wrong in this case. Through the 
misguided efforts to undercut the checks and balances that the Senate 
provides in our system of government, it is the need to protect the 
rights of the American people, the independence and fairness of the 
Federal courts and, of course, minority rights in the Senate.
  Our time would be much better used if we were doing something about 
the dramatic rise in the price of gasoline over the past 5 years, or 
the enormous and unprecedented increase in the national debt during the 
past 5 years; or what has happened when we have seen the huge budget 
surplus that former President Clinton left his successor, which has now 
turned into the largest budget deficit in the lifetime of anybody in 
this Chamber. These are things that could help the American people.
  Yesterday I urged that we get on with the business of the American 
people. I spoke about a number of specific items of legislation, 
including the bipartisan NOPEC bill, S. 555, that sit idle. That bill 
would provide the Justice Department with clearer tools to challenge 
the cartel price-setting activity of OPEC and help to lower gas prices 
for working Americans. I mentioned defense and law enforcement 
measures, as well. The Democratic leader, Senator Corzine and others 
made similar points about important legislative priorities. Senator 
Carper and I talked about the effect this extended debate is having on 
the bipartisan asbestos compensation bill. On Wednesday the Chairman 
cancelled a markup of the bill and on Thursday our markup was limited 
to two hours and many Senators were unavailable due to this floor 
debate.
  But instead of bringing us together to make progress, our friends on 
the other side of the aisle insisted the Senate debate at length a 
nomination that has been debated over the last 3 years, after being 
voted down by the Judiciary Committee 3 years ago. In fact, a couple of 
years ago, the Republican majority staged a 40-hour talk-a-thon on 
judicial nominees. It was at the conclusion of that political exercise, 
that 40-hour talk-a-thon, that we discovered the Republican staff had 
been stealing files from the Judiciary computer service for at least 3 
years.
  That extended debate, staged by the majority, amounted to significant 
lost opportunities for progress on matters at that time including, 
ironically, asbestos reform, which is something before us today. At 
that time, we had approved a lot of judges. Through Senate Democratic 
cooperation we had approved 168 and turned down 4. In fact, during the 
17 months when I chaired the Judiciary Committee, we approved 100 of 
President Bush's nominees. That is actually a speed record. By the end 
of last year, at the end of President Bush's first term, we had already 
confirmed 204 judges. We reduced judicial vacancies to the lowest level 
since President Reagan. We are now at 208 confirmations. So we have 
confirmed 208 and, depending upon whose count you go by, we have 
blocked 5 to 10. We have confirmed well over 95 percent, as a practical 
matter.
  I thank the Senators who joined in the debate yesterday for their 
contributions: Senator Byrd, Senator Kennedy, Senator Kerry, Senator 
Baucus, Senator Bingaman, Senator Lautenberg, Senator Mikulski, Senator 
Harkin, Senator Carper, and Senator Nelson of Florida. They know, and 
everybody in this place knows that if you had a secret ballot on the 
nuclear option, it would fail miserably. The press knows it and 
Senators know it. We have all talked with Members on the Republican 
side who say: I don't want to vote for this thing. I know it is wrong. 
I started asking, What if there was a secret ballot? Well, of course, 
that would go down. That is because Senators know it is wrong--wrong in 
terms of protecting the rights of the American people, wrong in terms 
of undercutting our Federal system of checks and balances, and it is 
wrong in protecting the minority rights in the Senate, saying we will 
have a one-party rule system.
  Well, one-party rule may work in some countries. It has never, ever 
worked in the United States of America. We can be thankful for that. We 
are the strongest democracy in the world because we have never let this 
country come to one-party rule. Democratic Senators will not be able to 
rescue the Senate and our system of checks and balances from the 
breaking of the Senate rules that the Republican leader is planning to 
demand. Democratic Senators cannot protect the rights by ourselves; we 
cannot protect the checks and balances by ourselves. If the rights of 
the minority have to be preserved, if the checks and balances are to be 
preserved, if the Senate's unique role in our system of Government is 
to be preserved, it is going to take at least six republicans standing 
up for fairness and for checks and balances.
  I know a number of Republican Senators realize this nuclear option is 
the wrong way to go. I have to believe enough Republican Senators will 
put the Senate first, put the Constitution first and, most importantly, 
put the American people first and withstand momentary political 
pressures when they cast their votes.
  I have spoken to Senator Isakson about his comment earlier this year 
about the effort to bring democracy to

[[Page 10545]]

Iraq. I know he spoke about it yesterday. The Senator observed that a 
Kurdish leader in the middle of Iraq said he had a ``secret weapon'' to 
instill democracy. When they asked what the ``secret weapon'' was, he 
said it was one word--filibuster.
  The Senator went on to observe:

       If there were ever a reason for optimism about what this 
     supplemental provides the people of Iraq and their stability 
     and security, it is one of their minority leaders proudly 
     stating one of the pillars and principles of our Government 
     as the way they would ensure that the majority never overran 
     the minority.

  He was right. We have that same pillar here. We have had a lot of 
discussion on the floor of the Senate. A couple weeks ago, we voted for 
billions of dollars to improve law enforcement in Iraq; at the same 
time, we voted for a budget to cut law enforcement in the United 
States. We voted billions of dollars to improve infrastructure in Iraq; 
we voted for a budget that cuts it in America. We voted for item after 
item for Iraq, at the same time voting to cut similar items in America.
  This is not a debate on the Iraq war, but if we are going to praise 
the Iraqis--and I hope and pray that they will have a democracy someday 
in that country--and say the reason they can have democracy is that 
they will have the filibuster and they can protect minority rights, 
maybe it is time we say let's do as much for the United States as we do 
for Iraq.
  The Iraqi National Assembly was elected in January. In April, it 
acted, pursuant to its governing law, to select a presidency council by 
the required two-thirds vote in the assembly, a supermajority.
  More recently, Cabinet members for a number of political parties, and 
religious and ethnic groups were announced, many in the minority 
parties. Use of the nuclear option in the Senate is akin to Iraqis in 
the majority political party in the assembly saying they have decided 
to disregard the governing laws and pick only members of their own 
party for the government and do so by a simple majority. They might 
feel justified in acting contrary to law because the Kurds and Sunnis 
were driving a hard bargain.
  One thing we have learned through history is that if you govern 
through consensus, it is not as easy as ruling unilaterally. That is 
why dictators can rule unilaterally. But we have never been a 
dictatorship, thank God, in this country, and I believe we never will 
be. That is why our system of government is the world's example because 
we have always protected the views of all Americans, majority and 
minority, and we have done it in a way through a check and balance so 
both sides can be heard. That way it requires consensus. More 
difficult, yes, but then the democracy lasts, and that is the reward.
  If Iraqi Shiite, Sunni, and Kurds can cooperate in their new 
government to make democratic decisions, why can't Republicans and 
Democrats in the Senate? After all, there are only 100 of us, and we 
are not shooting at each other--not literally, anyway. If the Iraqi law 
and assembly can protect minority rights and participation, so can our 
rules and the Senate. That has been the defining characteristic of the 
Senate and one of the principal ways in which it was designed from the 
beginning of this country to be distinct from the other body.
  Recently, the Senate passed, as I said, an emergency supplemental 
appropriations bill to fund the war efforts in Iraq and Afghanistan. 
The justification for spending billions of dollars of American 
taxpayers' money in Iraq is we are trying to establish democracies. How 
ironic that at the same time we are undertaking these efforts--not just 
of money but of the lives of our wonderful men and women, a great cost 
to so many American families--the Republican majority in the Senate is 
seeking to undermine the protection of minority rights and checks and 
balances. Our men and women are dying, and while our Treasury is 
spending the money to bring checks and balances in Iraq, we are getting 
rid of it here.
  Let me mention some of the recent statements of the President as he 
discussed democracy in other countries. When he came back, I praised 
him. Earlier this month, he met with President Putin of Russia. At his 
press conference from Latvia, President Bush noted:

       The promise of democracy is fulfilled by minority rights, 
     and equal justice under the rule of law, and an inclusive 
     society in which every person belongs.

  President Bush was right when he said the promise of democracy 
requires the protection of minority rights. It requires that in Latvia; 
all the more important, it requires it in the world's oldest existing 
democracy.
  On that same recent, foreign trip the President correctly observed: 
``A true democracy is one that says minorities are important and that 
the will of the majority can't trample the minority.'' That which is 
necessary to constitute a true democracy in Eastern Europe is needed, 
as well, here in the cradle of democracy.
  Again, earlier this year in another press conference with his good 
friend, President Putin, the President correctly observed--and I 
praised him for this:

       Democracies always reflect a country's customs and culture, 
     and I know that. But democracies have certain things in 
     common: They have a rule of law and protection of minorities, 
     a free press and a viable political opposition.

  The President was right when he spoke in Eastern Europe, but that 
which is necessary to constitute a true democracy in Eastern Europe is 
needed as well here in the cradle of democracy.
  I agree with all of these observations. I commend the President, as I 
have already. I hope all Senators will read them and agree we have to 
uphold the rule of law and the rules of the Senate that are designed to 
protect the minorities as a viable political opposition. This country 
is never under one-party rule. This country always has checks and 
balances of both parties.
  Others besides the President have spoken. Let me tell you what 
Secretary Rice said recently while overseas. She said this in Georgia:

       It is not easy to build a democracy . . . It means having a 
     strong legislative branch. It means having a strong 
     independent judiciary . . . along with freedom of speech, 
     freedom of worship and protection of minority rights, that's 
     how you build a democracy.

  I told Secretary Rice that I agree with her, those are the components 
of a democracy. But we have the same components in the United States. 
We need to maintain the Senate as a strong legislative branch to serve 
as a check on the Executive, no matter what party, Democratic or 
Republican, controls the Executive. We need a strong independent 
judiciary--not a Republican judiciary, not a Democratic judiciary, an 
independent judiciary--to serve as a check on the political branches. 
We need to protect free speech and freedom of religion, and to maintain 
our democracy in the United States, we have to protect minority rights.
  On her way to Moscow recently, the Secretary of State stated:

       [T]he centralization of State power in the presidency at 
     the expense of countervailing institutions like the Duma or 
     an independent judiciary is clearly very wrong.

  She was speaking about how developments undercut democracy in Russia. 
But so, too, here in our great and wonderful country of America, 
democracy is undercut by the concentration of power in the Executive, 
removing checks and balances and undermining the independence of our 
judiciary. It is ironic that President Bush and Secretary of State Rice 
speak so eloquently--and I agree with what they have said--about the 
fundamental requirements of a democratic society when they meet with 
world leaders outside the United States, but, unfortunately, the Bush 
administration and the Senate Republicans are intent on employing this 
nuclear option to consolidate power in this Presidency in this country.
  Senators ought to have enough faith in their own ability, Senators 
ought to have enough understanding of their independence--and the fact 
that each one of the 100 of us is elected independently--to be willing 
to stand up. We do not work for the President. We do not work for the 
Vice President. We represent our country and our States, and we should 
be independent.
  They know, as all Americans know, democracy relies in the sharing of

[[Page 10546]]

power, on checks and balances, and on an independent court system, one 
that protects minority rights, and on safeguarding human rights and 
human dignity. This nuclear option is in direct contradiction to 
maintain those values, those components of our democracy.
  Just as Abu Ghraib and other abuses make it more difficult for our 
country to condemn torture and abuse when we speak to the rest of the 
world, this nuclear option uses a partisan effort to consolidate power 
in a single political power and institution and will make all the 
lectures we give to leaders of other countries ring hollow.
  I remember when the Soviet Union broke up and it became a democratic 
country. A group of Russian parliamentarians came to the United States 
and visited the House of Representatives and the Senate. Several came 
to see me, and they wanted to talk about our independent judiciary. 
Finally one of them said: I have this question. It has really been 
bothering me. I have heard that in the United States people sometimes 
go into Federal court and sue the Government.
  I said, Yes, it happens all the time.
  He said, But we have also heard that sometimes the Government loses.
  I said, That is right.
  They said, Well, don't you fire the judge if he lets the Government 
lose?
  I said, No, it is an independent Federal judiciary. They are 
independent of the executive branch. They are independent of the 
Senate. They are independent of the House of Representatives. They make 
those decisions.
  This was such an eye opener to them. The rest of that afternoon, that 
is what we talked about.
  They said, It really works, then?
  I said, Yes, and if you have it work that way in Russia, you will be 
a much safer country.
  They still haven't gotten that far. Let's hope someday they do.
  Chief Justice Rehnquist is right to refer to our independent 
judiciary as the crown jewel of our democracy. It is a dazzling, 
brilliant, shining crown jewel. Judicial fairness and independence are 
also essential if we want to maintain our freedom. We have to stop the 
dangerous and irresponsible rhetoric slamming the Federal judiciary. We 
do not have to agree with every one of their opinions. I cannot believe 
that any one of 100 Senators who has followed every single Federal 
opinion would agree with every single one of them. I might agree with 
one, the distinguished Presiding Officer may disagree with the same 
one, or vice versa. We do not have to agree with every opinion. But let 
us respect their independence. Let no one say things that might bring 
about further threats against our judges as they endeavor to do their 
jobs serving justice. Let us not stand up on the floor of our Congress 
and speak of impeaching judges if we disagree with them. Justice Sandra 
Day O'Connor was right to condemn such virulent talk.
  Judge Joan Lefkow of Illinois testified before the Senate Judiciary 
committee this week. This is a woman whose husband and mother were 
murdered by somebody who disagreed with her decisions. She sacrificed 
too much for us not to heed her words when she asked us to lower the 
rhetoric, lower the attacks on Federal judges. We 100, and the 435 in 
the other body, of all people ought to know better. We ought to be 
protecting them physically and institutionally. We should not take the 
easy rhetorical potshots that put judges in real danger when they 
attack the very independence of our Federal judiciary.
  When the U.S. Supreme Court decided the Federal election in 2000, as 
a lawyer, as a Senator, I thought the 5-to-4 majority engaged in an 
incredibly overreaching act of judicial activism to effectively decide 
a Presidential election. But I went on the floor of the Senate and I 
went before the press and I called for Americans to respect the opinion 
of the Court because it was the final word. I thought the word was 
wrong, but I believed as Americans we must respect it.
  I attended the argument, during the arguments of Bush v. Gore, with 
my Republican counterpart in the Senate Judiciary Committee in order to 
show the country that we had to get along and work together. You didn't 
hear Democrats saying let's impeach Justice Scalia when we 
wholeheartedly disagreed with his action.
  Part of upholding the Constitution is upholding the independence of 
the third branch of Government. One political party or the other is 
going to control the Presidency. One party or the other will control 
the House of Representatives. One party or the other will control the 
Senate. But no political party--neither Democratic nor Republican--
should control the judiciary. It has to be independent of all political 
parties. That was the genius of the Founders of this country. It is the 
genius that has protected our liberties and our rights for well over 
200 years. It is the genius of this country that will continue to 
protect us unless we allow something to destroy it just for short-term 
political gain.
  It would be a terrible diminution of our rights to remove the 
independence of the Federal judiciary. It is a diminution of our rights 
no matter what party we belong to, no matter what part of the country 
we are from. It would be a diminution of our rights that none of the 
armies that have marched against our country has ever been able to do. 
If you take away the independence of our Federal judiciary, then our 
whole constitutional fabric unravels.
  That is what we Democrats are trying to protect. That is what we are 
defending. The nuclear option is a threat to the protection of the 
minority, the independence of our judiciary, the protection of 
Americans rights and our democracy. It removes checks and balances.
  How can the most powerful Nation, the wealthiest Nation history has 
ever known, be able to maintain itself without the protection of checks 
and balances? How can we? And how can we represent to the rest of the 
world we are the example they should follow? How can we tell other 
countries, as they become democratic, this is what they should follow?
  I know I will be speaking further. I see the distinguished Senator 
from North Dakota. I know he is seeking to speak. I will yield the 
floor.
  Mr. DORGAN. Mr. President, I think we are waiting for Senator 
Lieberman who is to appear on the floor momentarily. I was going to 
seek to say a few words following Senator Lieberman, but I understand 
he is on his way to the floor right now and I would prefer not to 
proceed without him, so I think we will put ourselves in a quorum for a 
moment.
  I make a point of order a quorum is not present.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. Mr. President, I rise to speak on the so-called 
nuclear option which cloud hangs over the head of this Senate on this 
Friday afternoon.
  The media, and sometimes Senators, speak of this debate, this 
possibility that the 60-vote majority requirement for confirmation of 
judicial nominations will be scrapped, as an internal struggle within 
the Senate. It is that, of course. But it is not only that. In my 
opinion, certainly when one judges its effect, it is not primarily 
that. This is about the judiciary, the judicial branch of our 
Government.
  If you go back to the beginning of our Government, every student who 
takes a civics course knows there are three branches of the Government: 
executive, legislative, and judicial. The judicial branch, as I was 
taught--I presume people are still taught it this way--is the most 
independent because it is protected at the Federal level from politics, 
from the passions of the moment. It is there to arbitrate disputes, to 
uphold our most fundamental liberties, to take the principles in the 
Constitution in the laws we adopt and relate them to the lives of the 
American people in every generation.
  It is, I want to repeat, charged with a significant responsibility 
and that is

[[Page 10547]]

to be the one of the three branches of Government that is above 
political passions, that is there to protect--I would call them the 
eternal principles on which the Declaration, the Constitution, the Bill 
of Rights were fashioned. That is what is on the line. It is a direct 
question. It is a simple question, but it challenges a lot of our 
values.
  The question really is, Will we require nominees to lifetime 
appointments on the Federal bench, the district court, circuit courts 
and, of course, the Supreme Court, will we require nominees for 
lifetime appointments to the Federal bench to receive the votes of at 
least 60 Members of the Senate? Will we require judges who will have a 
lot to say about the nature of law, values, freedom, and rights in our 
country--not just for the term of this President but for as long as 
they live--to receive the votes of at least 60 Members of the Senate?
  In a time in the history of the Senate which is, unfortunately, 
increasingly partisan and polarized and too often unproductive, I speak 
really about the partisanship and polarization. Will we require, in 
having that standard of 60 votes thereby, that any nominee to the 
lifetime appointment to the Federal bench receive the support of the 
Members of more than one of our political parties?
  Remember, I talked about the judiciary having that unique role in our 
constitutional system and our governmental system to be independent of 
political passions and polling and what is popular at the moment, to 
protect our freedom to arbitrate disputes, to uphold our best values. 
Don't we want to require that 60 votes be obtained for this lifetime 
appointment, which in the current practical, real political context--
with 55 Members of one party, 45 in the other, it could soon switch. 
Some hope sooner than others hope, but it could switch. Do we want just 
those 55 Members of one political party today, and it could be another 
political party tomorrow, to determine confirmation of appointees for 
lifetime service on the Federal bench?
  We are in much better shape as a country if we can look forward with 
much more of a sense of confidence and with a sense of pride that we 
have fulfilled the values and the purpose that the Founders of this 
country put in the judiciary if we require 60 votes. That is what is on 
the line. The nuclear option would blow that up and say it would 
require 51.
  Others have spoken and can speak about the impact this might have on 
our working relationships in the Senate, on our ability to deal with 
other problems. But for me, the fundamental question is, Will we 
continue to require those 60 votes.
  I speak for myself, but I believe I speak for most other Members of 
the Senate, it is never the first choice to filibuster anything. Not 
for me. And certainly not on a judicial nomination. I have voted in my 
16\1/2\ years--I have not counted them up--I assume, on hundreds of 
judicial nominations. As we know from the most famous chart in America 
today, the President has had confirmed 208 of 218 of his nominees. I 
have been here since the first President Bush was in office, so I have 
voted on several hundred judicial nominees, and I believe I have 
filibustered maybe 10.
  I, as one Senator, want to preserve my right if I believe this 
President or the next President nominates someone I just do not believe 
by their record, by their experience, by their testimony before 
hearings, is qualified or fit to serve on the Federal bench for the 
rest of their lifetime. I want the right to demand that nominee prove 
that he or she can obtain the support of at least 60 Senators.
  That is what is on the line. It is on the line for the judiciary, but 
it suggests what is on the line for the Senate overall. Over the years, 
and I must say my attitude has changed on this as I have watched the 
Senate become more partisan and polarized, it seems to me, and now I am 
speaking more broadly than the judicial nominations which will be the 
focus of the nuclear option if the button is pushed, that in a Senate 
that is increasingly partisan and polarized--and therefore, 
unproductive--that the institutional requirement for 60 votes is one of 
the last best hopes of bipartisanship in moderation because to not only 
confirm a judicial nominee but to pass legislation, if you have the 
right to demand 60 votes, and the President proposes legislation, 
individual Members of the Senate do so, you have to go beyond the 
Members of your own party. I suppose if one party gets 60 votes, that 
argument is all over but not totally because even within that 60 they 
may have to work to get it.
  In the current context, that is what we are talking about. It could 
flip again to another party, my party being in the majority. It 
requires on every measure that to pass something you have to get more 
than the Members of your own party. You have to get more than people of 
one philosophical or ideological point of view. You have to get to 60. 
It is often not very hard to do that. That is why I say, the 60-vote 
supermajority requirement is today, in a partisan Senate, one of the 
last best hopes, pressures, for bipartisanship in the most literal 
sense. You cannot get to 60 votes with Members of one party, and for 
moderation, which is where America has always done best, and where I am 
convinced the majority of the American people still rest.
  There were polls that came out this week. The polls are snapshots, 
and we should never be governed by them, but the one from the Wall 
Street Journal and NBC should be taken as a warning. People talk about 
the popularity of the President, up or down, whether people support a 
Social Security program or don't. But the polling data on Congress, in 
terms of the popularity of Congress, with trust or whatever the word 
was, is at an all-time low since this particular poll began to be taken 
in 1994. I think the public is fed up with the partisanship. I think 
they want us to get something done.
  The tragedy of it is that all 100 of us ran for the Senate, not to 
come and have fights with one another, sound and fury that produce 
nothing. We came here to get something done. But we are in this cycle 
where the campaigns never seem to stop.
  The Presiding Officer knows from the founding of our country, thank 
God, there was very spirited politics and campaigns. In some of the 
early campaigns, centuries before television, people said pretty tough 
stuff about one another, but I think through most of our history, when 
the campaigns ended, those elected focused on governance, on leading 
the country, on doing something for the people who sent us.
  It seems to me too often that the campaigns never stop. As a result, 
we do not get as much accomplished as we should get accomplished, and 
the needs remain great to keep our country safe, improve the quality of 
our education, health care, to protect the environment, to continue to 
work together with business to stimulate the economy.
  These are the consequences of the perpetual campaigning and increased 
partisanship. It is not the place to talk of the causes of it, but I 
want to describe it as I have experienced it and to say that if we end 
the 60-vote requirement, I fear it will get worse, that it will get 
more partisan, less productive, and we will do less for the people's 
business.
  This is why I have been participating over the last week, and a 
little bit more in the extraordinary, in some sense unprecedented, 
discussions, negotiations between a group of Senators of both political 
parties who share many of the views that I have just expressed and want 
to avoid the nuclear option and to bring us back from the precipice.
  I hope these negotiations end successfully. It would not only be in 
the Senate's interest, it would not only be in the interest of our 
independent judiciary, it would be in the interest of the American 
people who want us to get some things done to improve their lives and 
make them safer.
  If those negotiations do not conclude successfully, I hope Members of 
the Senate individually will, in good conscience, reach a judgment that 
pushing the button on the nuclear option is a response, in its way, to 
a passion of the moment, a concern that filibusters

[[Page 10548]]

have been used against judicial nominees.
  Colleagues of mine on this side have said, over and over again, made 
the point--it is, in my opinion, the fact--208 out of 218 of President 
Bush's nominees have been confirmed, a much higher percentage than 
President Clinton had. But there are people, obviously, in this Chamber 
angry about the small number who have not been approved. It is a anger 
of the moment.
  I appeal to all my colleagues not to yield to the anger of the moment 
and do serious damage not just to this institution but to the values 
upon which our Constitution and our country rest. That is what is on 
the line. It is a big moment for the Senate. I hope and pray and, 
ultimately, believe we will rise to the challenge and do what is right.
  I thank the Chair and yield the floor.
  The PRESIDENT pro tempore. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, my understanding is that I believe, by 
previous order, there are 5 minutes remaining on this side.
  The PRESIDENT pro tempore. There is 3\1/2\ minutes remaining.
  Mr. DORGAN. I spoke to the previous Presiding Officer and indicated I 
had wished to speak for 15 minutes. I ask unanimous consent to do that, 
provided that the other side has equal opportunity to extend their time 
as well.
  The PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered. The time is extended.
  Mr. DORGAN. Mr. President, I have said on a previous occasion how 
proud I am to be here in the Senate. For these years I have served, it 
has been an enormous privilege. I come from a small town in ranching 
country and wheat country in southwestern North Dakota. I never thought 
I would meet a Senator or a President, but yet, because of the great 
quilt-work of this democracy, I have been elected to the Senate now on 
three occasions and am enormously proud to serve.
  I do not come here to be a partisan. I am proud of my political 
party, however. I think we have two grand political parties in this 
country. Both, from time to time, have made great accomplishments and 
have made great mistakes. I fear we are on the precipice of one of 
those great mistakes. That is why I came to speak again on this 
subject.
  There is plenty of blame, I suppose, to go around to both parties on 
a range of issues. I think sometimes about the poem written by Ogden 
Nash, about a man who drinks too much and a woman who scolds him about 
it. Ogden Nash wrote this:

     He drinks because she scolds, he thinks;
     She thinks she scolds because he drinks;
     And neither will admit what's true,
     That he's a drunk and she's a shrew.

  So Ogden Nash described circumstances of blame, circumstances of how 
two different people see the same situation differently.
  We come now to a big decision on the floor of the Senate. David 
Broder, who I think is one of the excellent writers here in Washington, 
DC, with the Washington Post, has written a piece about what we are 
doing. He says:

       But dwarfing all these individual dramas [in the debate] is 
     the question of what the vote means [the nuclear option vote 
     means] for the Senate as an institution. Two of the main 
     props of the Senate's identity are at stake. The tradition of 
     unlimited debate, going back to the Senate's earliest years. 
     . . . [and] the continuity of the Senate rules. . . .

  What does this mean about ``unlimited debate'' and ``the continuity 
of the Senate rules''? I have the rule book for the Senate. These are 
the Senate rules. The Senate rules provide that to change the rules of 
the Senate requires 67 Senators, 67 votes.
  The majority now wishes to change the rules, but they do not have 67 
votes. They are displeased about that. So they want to ignore the 
Parliamentarian--that would be their strategy--ignore the 
Parliamentarian, who would rule that what they are attempting to do is 
not within the rules, and then they would change the rules with 51 
votes.
  They call this the nuclear option, self-described as a nuclear option 
by a member of their caucus. I suppose they use that term because they 
know that for a majority party to violate the rules in order to change 
the rules would have an enormously destructive impact on this body.
  Some years ago, I went to the 200th birthday of the writing of the 
Constitution. It was held in the assembly room of Constitution Hall in 
Philadelphia. Again, I have told my colleagues in the Senate, I 
graduated from a small high school class of nine students. I found 
myself 1 of 55 people designated to go into that room where, 200 years 
earlier, 55 people had written the Constitution, this little book that, 
on page 17, says, ``We the People of the United States.'' They wrote 
that 229 years ago.
  On its 200th birthday, 55 of us went into that room. The chair where 
George Washington sat as he presided is still there. Ben Franklin sat 
over here, Mason over there, Madison over here. They wrote: ``We the 
People,'' and they described a system of self-government that 
represents the power of one. All of the power in this country is vested 
in the power of one person casting one vote at a time on a prescribed 
date in this country--every even-numbered year. The late Claude Pepper 
used to call it the ``miracle of democracy.'' Where every even-numbered 
year, the American people get to grab the steering wheel and decide 
which way to nudge this great country of ours, which direction it wants 
this country to move.
  This Constitution set up something very important because they 
understood that for self-government to work, there needed to be checks 
and balances. They had a belly-full of King George. They just had a 
belly-full. They did not want that kind of oppressive government. They 
wanted self-government with checks and balances. So they established a 
government with separation of powers, a government in which the 
concentration of power would be prohibited by a series of checks and 
balances.
  It has not been a perfect government, but it is the best I know of on 
the face of this small planet Earth. That separation of powers and 
those checks and balances are essential, they are critical, to the 
working of our Government.
  Now, the question of how judges are appointed, was part of the debate 
of the Constitution. In fact, some wanted the Congress to appoint 
judges. But the compromise was that we would have a two-part process. 
The President would propose, or nominate, people for a lifetime 
appointment on the Federal bench. Incidentally, these are the only 
people who are given lifetime appointments, the judges who sit on the 
Federal bench, so that they would be impervious to the passions of the 
moment, impervious to changes in passions, and have fealty toward this 
document, the Constitution.
  So they decided the President shall nominate and the Congress shall 
advise and consent. The President can say: Here is who I want. The 
Congress can say: Yes or no.
  We have had a lot of problems with judicial nominations over the 
years. In the 1990s, I recall at least 60 names were sent up here, and 
they did not get a vote. Many on the other side now stand up on the 
floor of the Senate and say: We want the right to vote. Let's vote on 
all these nominees; forgetting that 60 of them--60 of them sent here by 
President Clinton--did not get a vote. In fact, many of them did not 
have the courtesy of one day of hearing. But 60 of them did not get a 
vote. I did not hear one person stand up on the other side and say: We 
demand to bring these to a vote. No. They were busy blocking--
blocking--those judges.
  Now, there is a kind of a born-again quality about this issue, and 
they say: We want everyone to have a vote. Well, they have all had a 
vote. It is just that 10 of them only got a cloture vote and did not 
get the 60 votes required. And because they did not get 60 votes, out 
of 218 judicial nominees, 208 were approved and 10 were not. So we have 
people around here whose nose is completely bent out of shape because 
10 out of 218 did not get approved. And, incidentally, the 208 out of 
the 218 who have been approved for this President represents a much 
higher percentage than the previous President or the

[[Page 10549]]

President before that. And, we also have the lowest vacancy rate on the 
Federal bench since many years ago.
  But having said all that, we now have a proposal by the majority 
party to exercise the so-called nuclear option.
  Why do we have that proposal? I guess they have decided they are 
going to do it because they can. They can decide to ignore, as David 
Broder, the dean of the Washington press corps describes, the two main 
props of Senate identity--unlimited debate and the continuity of the 
Senate rules.
  There are reasons to have, perhaps, some sort of a self-described 
nuclear approach on the Senate floor. Perhaps we should have a nuclear 
approach to deal with the loss of jobs. Maybe that would be helpful. 
Maybe we ought to have this energy, this passion, this demand to 
explode something here to be in support of American jobs, to stop the 
hemorrhaging of jobs overseas. Read the paper this morning. Two more 
companies shut their plants, fired their workers. They are going to 
Mexico. It happens every single day. Mexico, China, Indonesia, Sri 
Lanka, you name it; we don't have the energy on the floor to deal with 
that. The majority party only wants to talk about the few judges that 
were not approved by the Senate. Why? Because I believe they have 
forgotten about the important elements of this Constitution dealing 
with checks and balances, and the separation of power.
  As I said, there are many things we ought to be discussing on the 
floor of the Senate with great passion. How about health care? The cost 
of health care, the cost of prescription drugs, the dramatic increase 
in these costs that are devastating families, devastating to 
businesses, and devastating to the Federal budget. Anything going on, 
on the floor of the Senate about that? Not at all.
  We have two things happening here. One, Air Force One is traveling 
around the country because they say there is a crisis in Social 
Security. There is not. Social Security will remain fully solvent until 
George W. Bush is 106 years old. That is hardly a crisis. No. 2, we 
have on the floor of the Senate this extreme tension because the 
majority party has decided it wants to violate the rules of the Senate 
to change the rules. Why? Because it can.
  There are so many other things we ought to be working on, so many 
other things we ought to be doing to put this country back on track, 
such as dealing with the trade deficit, and the hemorrhaging of 
American jobs. I mentioned General Electric announced a plant closing; 
470 people are going to lose their jobs. That was yesterday in the 
newspapers. They made refrigerators. They were proud to do it. Those 
refrigerators will now be made in Mexico, and those 470 people will be 
out of work. I would love to come to the floor to talk about that. I 
have offered amendments. I can't get to first base. That is not part of 
what happens around here.
  The majority party is upset because they didn't get every judge, so 
they want to do what is called a nuclear option. As I said, I am 
enormously proud to serve here. Most of the things that we face should 
require us to work together. We all have the same ends. We want the 
best for the United States of America. We want our country to do well, 
to expand, to provide opportunity. We want to help with the things that 
families talk about at night when they sit around the supper table: Do 
I have a good job; does my job pay well; do I have job security; are we 
sending our kids to schools we are proud of; do our grandparents have 
access to decent health care; do we live in a safe neighborhood? All of 
these issues are central to what all of us ought to be thinking about 
and working on as hard as we can.
  It is not about a Republican answer or a Democratic answer. It is 
about our responsibility, as 100 Senators, men and women of good will, 
with presumably the skills to get here and the need to come together to 
work on these issues.
  This nuclear option is so destructive. It was said once that 
preceding every great mistake, there is a split second when those who 
are about to make that mistake have the opportunity to turn back and 
find a more productive course. We are at that split second. This will, 
indeed, be a great mistake if those who attempt this do not turn back. 
Abraham Lincoln once said: Die when I may, let it be said of me by 
those who know me best that I always plucked a thistle where I thought 
a flower would grow and planted a flower.
  The party of Abraham Lincoln is, at this point, not planting flowers, 
rather, they are plucking thistles and planting thistles in the middle 
of this Chamber. I hope those who think this is a clever move, those 
who think this is a new strategy that they can win, will understand 
they ultimately will lose by failing to respect the traditions of the 
Senate, the rules of the Senate, and the concept of unlimited debate 
that makes this institution different than any other in the country.
  We all come from different corners of America, different size cities, 
different backgrounds, different education. But I believe we are all 
people of good will. We all came here with the same hope in our heart, 
hope for a better America. My hope would be that in the coming 2 or 3 
or 4 days, those who have led us to this moment and this position 
preceding a great mistake, will rethink that position and see if we 
can't get back to the main agenda facing this country and its citizens.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Texas is recognized for 
15 minutes.
  Mr. CORNYN. Mr. President, I appreciate the eloquent comments of our 
colleague from North Dakota. I, too, wish we could get on with the 
Nation's business dealing with the high price of gasoline, which is 
hurting our economy and hurting consumers and people who need to 
commute to and from work to do their job.
  I wish we could get on addressing the issues of the uninsured and 
lack of access to good quality health care by too many Americans. I 
wish we could talk about securing our borders and how we deal with our 
inability to control our borders and the threat that that presents to 
our national security. If we could simply get the up-or-down vote that 
was recognized as the Senate tradition for 214 years before the last 
Congress, we would be addressing those other issues.
  But here we are, having debated for 19 days on the floor of the 
Senate about this nominee, Justice Priscilla Owen. Interestingly, that 
is 2 more days than the nominations of all nine sitting members of the 
U.S. Supreme Court took.
  So while our colleagues on the other side of the aisle talk about 
preservation of the tradition of unlimited debate, this is not about 
debate. We have heard the distinguished Democratic leader say there is 
not enough time in the universe to debate these nominees. It is not 
about debate. Some have complained that on this side we are impeding 
the free speech rights of Senators.
  Anybody who has been listening to the debate knows that there has 
been no impeding of free speech on the floor of the Senate. Some have 
said this is about minority rights. This is not about minority rights. 
We respect minority rights in the Senate. We always have, and we always 
will. But the fact is the American people sent a majority to the Senate 
that stands ready to confirm these nominees. It is not just people on 
our side of the aisle. If we were permitted to cast a vote, a 
bipartisan majority would confirm these nominees today. This amounts to 
a veto, in effect. A partisan minority has attempted to cast a veto of 
bipartisan majority rights.
  I heard the distinguished Senator from Connecticut, whom I respect 
enormously, but I disagree with his comments today that somehow he now 
understands the wisdom of requiring 60 votes before we can confirm a 
nominee to a Federal court, when the fact is, from time immemorial, 
since the beginning of this institution, only 51 votes were required to 
confirm a nominee. And now all of a sudden, President Bush is elected 
and reelected, and we are going to raise the level to 60 votes. That is 
changing the rules in the middle of the game. That is not fair. What

[[Page 10550]]

we need is a resolution of this issue based on principle.
  That principle has to be one of fundamental fairness. That is, the 
same rules apply whether it is a Republican President or a Democratic 
President, whether there is a Republican majority or a Democratic 
majority. That, to me, is the principle on which this matter can be 
resolved--not based on some bogus suggestion or some deal cut by a 
handful of Senators that would throw some nominees overboard, confirm 
others, and not leave the issue of a potential U.S. Supreme Court 
vacancy resolved.
  We need this matter resolved after 4 years. After 4 years, patience 
ceases to be a virtue. We need to get on to the issues the Senator from 
North Dakota and others talked about. And we will. But now is the time 
to resolve this issue once and for all.
  I point out the speciousness of this 60-vote requirement and how it 
does represent a departure from past practice. We can see going back to 
1979, through 2000, where judges nominated by President Carter, judges 
nominated by President Reagan, judges nominated by the first President 
Bush, and judges nominated by President Clinton were confirmed and are 
sitting on the Federal bench today with less than 60 votes. So any 
suggestion that we on this side are somehow trying to change the rules 
just does not withstand scrutiny. It is not true. All we are asking for 
is a restoration of that majority tradition.
  Let me say that for the last 3 days--actually, for the last 4 years--
we have debated three key questions on the floor of the Senate. Really, 
I do think it boils down to these three key issues:
  First of all, do nominees such as Priscilla Owen, whose picture is to 
my right--somebody who I know personally and worked with for 3 years on 
the Texas Supreme Court, who I know to be a fine, decent human being 
and outstanding judge--deserve confirmation to the Federal bench or, at 
a minimum, do they deserve an up-or-down vote? No one is suggesting 
that any Senator violate their conscience. Indeed, if any Senator 
believes they cannot in good conscience vote for this or any other 
nominee, of course, we would expect them to cast a ``no'' vote on the 
confirmation. But we would expect at least for them to allow there to 
be a vote.
  The second question is: Is this new idea of a supermajority 
requirement for the confirmation of judges both unprecedented and 
wrong?
  Third, is the use of the Byrd option--the constitutional point of 
order we have heard much discussed, which has been exercised in the 
past--appropriate in order to restore Senate tradition to the 
confirmation of judges and to ensure that the rules remain the same, 
regardless of which party controls the White House and which party has 
a majority in the Senate?
  I firmly believe the case has been made, and that the answer to each 
of these questions is ``yes.''
  Let me reiterate. First, do nominees such as Justice Priscilla Owen 
deserve confirmation to the Federal bench or, at minimum, an up-or-down 
vote?
  Of course, they do. This is a distinguished jurist and public 
servant, who enjoys bipartisan support in the State of Texas of 
statewide elected officials who are Democrats, 15 members of the State 
bar association, the premier association for the legal community in our 
State, which supports this judge because she is a good judge. There are 
those who oppose Justice Owen's nomination and, of course, that is 
their right. Some Senators have even criticized her rulings. Others, 
including myself, have defended those rulings. The debate has been 
extensive and Justice Owen's record, I believe, has prevailed.
  Indeed, I submit it is precisely because Justice Owen's record is so 
strong that a partisan minority of Senators now insist that she may not 
be confirmed without the support of at least 60 Senators, a demand that 
is, by their own admission--at least at one time--unprecedented in 
Senate history. Why? Because the case for opposing her is so weak that 
the only way it can be defeated is by changing the rules to defeat her 
nomination. They know it. Before her nomination became caught up in the 
partisan special interest politics that seem to dominate the opposition 
to her nomination, the top Democrat on the Judiciary Committee 
predicted Owen would be swiftly confirmed.
  On the day of the announcement of the first group of nominees--that 
is, by my recollection, on May 9, 2001--more than 4 years ago, the 
ranking member of the Judiciary Committee said he was encouraged and 
that I know them well enough that I would assume they will all go right 
through.
  Just a few short weeks ago, the minority leader announced that Senate 
Democrats would give Justice Owen an up-or-down vote, albeit only if 
Republicans agreed to deny the same courtesy to other nominees. Now, 
that, as much as anything--and the distinguished senior Senator from 
Pennsylvania made this point--really, by the sort of bargain that has 
been offered, the political deal that has been offered to allow an up-
or-down vote on some nominees and throw others overboard, it is clear 
their complaint is not with Justice Owen. If, in fact, the minority 
leader announced he would give her an up-or-down vote if we simply toss 
some of the others overboard, to me that demonstrates the lack of merit 
of their complaints and accusations when it comes to this judge and her 
record.
  In the end, these concessions are understandable because the case 
against Justice Owen is simply not convincing. The American people know 
a controversial ruling from the bench when they see one, whether it is 
the radical redefinition of our society's most basic institution, 
marriage, or the expulsion of the Pledge of Allegiance and other 
expressions of faith from our public square, or the elimination of the 
``three strikes and you're out'' law and other penalties against 
multiple-time convicted criminals, or the forced removal of military 
recruiters from college campuses. Justice Owen's decisions as a judge 
fall nowhere near this class or category of cases. There is a world of 
difference between struggling--as any good judge will do--to try to 
determine what legislative intent is by parsing the words of a statute, 
trying to figure out what did the legislature mean--there is a huge 
difference between that and refusing to obey a legislature's directives 
altogether and substituting one's own views for that of the elected 
representatives of the people.
  The second question to reiterate is: Is this new idea of a 
supermajority requirement for confirmation of judges unprecedented and 
wrong? The answer is yes and yes. Indeed, our colleagues across the 
aisle have said so in the past time and time again. Unprecedented? 
Well, of course, it is. President after President after President have 
gotten their judicial nominees confirmed by a majority vote, as we just 
showed a moment ago, not by a supermajority vote of 60.
  Indeed, by their own admission, Justice Owen's opponents in this body 
are using unprecedented tactics to block her nomination. A leading 
Democratic Senator has boosted of their unprecedented tactics in his 
fundraising e-mail to Democratic donors.
  Is it wrong? Well, of course it is. Senators on both sides of the 
aisle have firmly stated in the past that judicial nominees should 
never be defeated by a filibuster, and legal scholars across the 
political spectrum have long concluded what we in this body know 
instinctively: that to change the rules of confirmation, as a partisan 
minority has done, badly politicizes the judiciary and hands over 
control of this confirmation process to a handful of special interest 
groups.
  Finally, the third and last question: Is the use of the Byrd option 
appropriate in order to restore Senate tradition to the confirmation of 
judges to ensure the rules remain the same regardless of which party 
controls the White House or which party controls a majority in the 
Senate?
  Again, of course it is. It is, as we have demonstrated in the past, 
perhaps most appropriately called the Byrd option. Others have called 
it the constitutional option, or merely just a point of order. But it 
is called the Byrd option precisely because the former Democratic 
majority leader has exercised this authority on behalf of numerous 
Senators on numerous occasions in our history.

[[Page 10551]]

  It is precisely why the former majority leader boasted just 10 years 
ago on the floor of the Senate of how ``I have seen filibusters, I have 
helped to break them, and the filibuster was broken--back, neck, legs, 
and arms. It went away in 12 hours. So I know something about 
filibusters. I helped set a great many of the precedents that are on 
the books today.''
  The senior Senator from Massachusetts and the senior Senator from New 
York have similarly recognized the authority of the majority of 
Senators to establish precedents by way of a point of order or the Byrd 
option or the constitutional option.
  Over the last 3 days a number of Senators on both sides of the aisle 
have taken to the floor of this body to offer their answers to these 
three central questions. There have been disagreements, but I hope they 
have been respectful disagreements.
  It has been suggested by some that we are facing a constitutional 
crisis. I beg to differ. America is strong. Our constitutional system 
works. And it is perfectly normal and traditional for Senators to 
debate, to disagree, and vote. Indeed, it has been on the floor of the 
Senate over our Nation's history that we have debated the great 
constitutional and public policy issues of our day, and this is one of 
them. But it is not a crisis.
  It is perfectly normal and traditional for a majority of Senators to 
vote on the rules and parliamentary precedents of this body. Senators 
have been doing that from the beginning of this great institution. 
There is nothing radical about Senators debating the need to confirm 
well-qualified judicial nominees. There is nothing radical about a 
majority of Senators voting to confirm judicial nominees, and there is 
nothing radical about a majority of Senators voting to establish Senate 
precedents and rules.
  In short, what we have on the floor of the Senate right now is a 
controversy, a disagreement, not a crisis. This controversy can be 
resolved, and undoubtedly will be resolved, as it has always been 
resolved, by an up-or-down vote of the Senate. This controversy can be 
resolved, as it has always been resolved, by simply determining which 
side of the question enjoys the support of a greater number of 
Senators. And once the controversy is resolved, we can and we should 
get back to work on the rest of the people's business.
  This is a controversy, a disagreement, not a crisis. And I hope that 
in the coming days, we will complete our debate and resolve this 
controversy in a respectful way, consistent with the greatest 
traditions of the Senate.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, we have completed our third day of 
consideration of the nomination of Priscilla Owen and, therefore, I ask 
unanimous consent that there be an additional 10 hours of debate 
equally divided on the nomination, and that following that time, the 
Senate proceed to a vote on the confirmation of the nomination, with no 
intervening action or debate.
  Mr. REID. I object.
  The PRESIDENT pro tempore. Objection is heard.
  Mr. CORNYN. Mr. President, I ask unanimous consent that there be an 
additional 15 hours of debate equally divided on the nomination, and 
that following that time, the Senate proceed to a vote on the 
confirmation of the nomination, with no intervening action or debate.
  The PRESIDENT pro tempore. Is there objection?
  Mr. REID. Reserving the right to object, Mr. President. The mere fact 
that I can object shows this is a debatable motion. I do object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. CORNYN. Mr. President, I will refrain from making other offers of 
unanimous consent for additional debate time at this time.


                             Cloture Motion

  With that objection, on behalf of the majority leader, I send a 
cloture motion to the desk.
  The PRESIDENT pro tempore. The cloture motion having been presented 
under rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 71, the nomination of Priscilla Richman Owen, of 
     Texas, to be United States Circuit Judge for the Fifth 
     Circuit.
         Bill Frist, Arlen Specter, Trent Lott, Lamar Alexander, 
           Jon Kyl, Jim Talent, Wayne Allard, Richard G. Lugar, 
           John Ensign, C.S. Bond, Norm Coleman, Saxby Chambliss, 
           James M. Inhofe, Mel Martinez, Jim DeMint, George 
           Allen, Kay Bailey Hutchison, John Cornyn.

  Mr. CORNYN. Mr. President, on behalf of the majority leader, this 
cloture vote will occur on Tuesday, and the leader will announce the 
precise timing of that vote next week.

                          ____________________