[Congressional Record (Bound Edition), Volume 151 (2005), Part 8]
[Senate]
[Pages 10832-10860]
[From the U.S. Government Publishing Office, www.gpo.gov]




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

  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the 
previous order, with respect to the division of time, be modified to 
extend until 10 a.m.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. I ask the Chair, what is the pending business?
  The PRESIDING OFFICER. The pending business is the nomination of 
Judge Priscilla Owen to be U.S. circuit court judge.
  Mr. McCONNELL. Mr. President, our colleagues complained that by 
affording any President's nominees a simple up-or-down vote, we are 
trying to stifle the right to debate, while I think it is worth noting 
that we have devoted 20 days--20 days--to the Owen nomination. So this 
is not about curtailing debating rights. This is about using the 
filibuster to kill nominations with which the minority disagrees so 41 
Senators can dictate to the President whom he can nominate to the 
courts of appeal and to the Supreme Court.
  If there is any doubt about this, I remind our colleagues that last 
year the distinguished minority leader said:

       There is not enough time in the universe--

  ``Not enough time in the universe'' for the Senate to allow an up-or-
down vote on the Owen nomination. So we should stop pretending this 
debate is simply about preserving debating prerogatives. It is clearly 
about killing nominations.
  Our debate is about restoring the practice honored for 214 years in 
the Senate of having up-or-down votes on judicial nominees. Never 
before has a minority of Senators obstructed a judicial nominee who 
enjoyed clear majority support.
  Our friends on the other side of the aisle recite a list of nominees 
on whom there were cloture votes, but the problem with their assertion 
that these nominees were filibustered is that the name of each of these 
nominees is now preceded by the title ``judge,'' meaning, of course, 
they were confirmed.
  So what my Democratic colleagues did last Congress is, indeed, 
unprecedented. Even with controversial nominees, the leaders of both 
parties historically have worked together to afford them the courtesy 
of an up-or-down vote.
  When he was minority leader, Senator Byrd worked with majority leader 
Howard Baker to afford nominees an up-or-down vote, even when they did 
not have a supermajority, nominees such as J. Harvey Wilkinson, Alex 
Kozinski, Sidney Fitzwater, and Daniel Manion.
  As Senator Byrd knows, it is not easy being the majority or minority 
leader. He, Senator Byrd, could have filibustered every one of those 
nominations but he did not. Instead, he chose to exercise principled 
and restrained leadership of the Democratic caucus when he was minority 
leader. I would like to compliment Senator Byrd for that decision.
  Affording controversial judicial nominees the dignity of an up-or-
down vote did not stop, however, with Senator Byrd. It was true as 
recently as 2000, when Senator Lott worked to stop Senators on our side 
of the aisle, the Republican side, who sought to filibuster the Paez 
and Berzon nominations. But, in 2001, as the New York Times has 
reported, our Democratic colleagues decided to change the Senate's 
ground rules, a media report they have yet to deny.
  Just 2 years later, after they had lost control of the Senate, our 
Democratic colleagues began to filibuster qualified judicial nominees 
who enjoyed clear majority support here in the Senate. They did so on a 
repeated partisan and systematic basis. After 214 years of precedent, 
in a span of a mere 16 months, they filibustered 10 circuit court 
nominees--totally without precedence. Many of these nominees would fill 
vacancies that the administrative offices of the courts have designated 
as judicial emergencies, including several to the long-suffering Sixth 
Circuit Court of Appeals, in which my State is located. As a result, 
President Bush has the lowest percentage of circuit court nominees 
confirmed in modern history, a paltry 69 percent.
  The Senate, as we all know, works not just through the application of 
its written rules but through the shared observance of well-settled 
traditions and practices. There are a lot of things one can do to gum 
up the works here in the Senate, a lot of things you could do. But what 
typically happens is we exercise self-restraint, and we do not engage 
in that kind of behavior because invoking certain obstructionist 
tactics would upset the Senate's unwritten rules. Filibustering 
judicial nominees with majority support falls in that category. Let me 
repeat, it could have always been done. For 214 years, we could have 
done it, but we did not. We could have, but we did not.
  By filibustering 10 qualified judicial nominees in only 16 months, 
our Democratic colleagues have broken this unwritten rule. This is not 
the first time a minority of Senators has upset a Senate tradition or 
practice, and the current Senate majority intends to do what the 
majority in the Senate has often done--use its constitutional authority 
under article I, section 5, to reform Senate procedure by a simple 
majority vote.
  Despite the incredulous protestations of our Democratic colleagues, 
the Senate has repeatedly adjusted its rules as circumstances dictate. 
The first Senate adopted its rules by majority vote, rules, I might 
add, which specifically provided a means to end debate instantly by 
simple majority vote. That was the first Senate way back at the 
beginning of our country. That was Senate rule VIII, the ability to 
move the previous question and end debate.
  Two decades later, early in the 1800s, the possibility of a 
filibuster arose through inadvertence--the Senate's failure to renew 
Senate rule VIII in 1806 on the grounds that the Senate had hardly ever 
needed to use it in the first place.
  In 1917, the Senate adopted its first restraint on filibuster, its 
first cloture rule--that is, a means for stopping debate--after Senator 
Thomas Walsh, a Democrat from Montana, forced the Senate to consider 
invoking its authority on article I, section 5, to simply change Senate 
procedure. Specifically, in response to concerns that Germany was to 
begin unrestricted submarine warfare against American shipping, 
President Wilson sought to arm merchant ships so they could defend 
themselves. The legislation became known as the armed ship bill.
  However, 11 Senators who wanted to avoid American involvement in the 
First World War filibustered the bill. Think about this. In 1917, there 
was no cloture rule at all. The Senate functioned entirely by unanimous 
consent. So how did the Senate overcome the determined opposition of 11 
isolationist Senators who refused to give consent to President Wilson 
to arm ships? How did they do it?
  Senator Walsh made clear the Senate would exercise its constitutional 
authority under article I, section 5, to reform its practices by simple 
majority vote. A past Senate could not, he concluded, take away the 
right of a future Senate to govern itself by passing rules that tied 
the hands of a new Senate. He said:

       A majority may adopt the rules in the first place. It is 
     preposterous to assert that they may deny future majorities 
     the right to change them.

  What he said makes elementary good sense. Because Walsh made clear he 
was prepared to end debate by majority vote, both political parties 
arranged to have an up-or-down vote on a formal cloture rule. Senator 
Clinton Anderson, a Democrat from New Mexico, noted years later that 
``Walsh won without firing a shot.'' And Senator Paul Douglas, a 
Democrat from Illinois, observed also years later that consent was 
given in 1917 because a minority of obstructing Senators had Senator 
Walsh's proposal ``hanging over their heads.''
  I know that the Senate's 1970 cloture rule did not pertain to a 
President's nominations, nor did any Senators, during the debate on the 
adoption of

[[Page 10833]]

the 1917 cloture rule, discuss its possible application to nominations. 
This was not because Senators wanted to preserve the right to 
filibuster nominees. Rather, Senators did not discuss applying the 
cloture rule to nominations because the notion of filibustering 
nominations was alien to them. It never occurred to anybody that that 
would be done.
  In the middle of the 20th century, Senators of both parties, on a 
nearly biennial basis, invoked article I, section 5 constitutional 
rulemaking authority. Their efforts were born out of frustration of the 
repeated filibustering of civil rights legislation to protect black 
Americans. A minority of Senators had filibustered legislation to 
protect black voters at the end of the 19th century. They had 
filibustered antilynching bills in 1922, 1935, and 1938; antipoll tax 
bills in 1942, 1944 and 1946; and antirace discrimination bills.
  In 1959, Majority Leader Lyndon Johnson agreed to reduce the number 
required for cloture to two-thirds of Senators who were present and 
voting because he was faced with a possibility that a majority would 
exercise its constitutional authority to reform Senate procedure. He 
knew the constitutional option was possible.
  Additionally, the Senate had voted four times for the proposition 
that the majority has the authority to change Senate procedures. For 
example, in 1969, Senators were again trying to reduce the standard for 
cloture--that is, the rule to cut off debate--from 67 down to 60. To 
shut off debate on this proposed rule change, Democratic Senator Frank 
Church from Idaho secured a ruling from the Presiding Officer, 
Democratic Vice President and former Senator Hubert Humphrey, that a 
majority could shut off debate, irrespective of the much higher cloture 
requirement under the standing rules. A majority of Senators then voted 
to invoke cloture by a vote of 51 to 47 in accord with the ruling of 
Vice President Humphrey. This was the first time the Senate voted in 
favor of a simple majority procedure to end debate.
  The Senate reversed Vice President Humphrey's ruling on appeal. But 
as Senator Kennedy later noted:

       This subsequent vote only cemented the principle that a 
     simple majority could determine the Senate's rules.

  Senator Kennedy said:

       Although [Vice President Humphrey's] ruling may have been 
     reversed, the reversal was accomplished by a majority of the 
     Senate. In other words, majority rule prevailed on the issue 
     of the Senate's power to change its rules.

  Senator Kennedy made this observation in 1975, when reformers were 
still trying to reduce the level for cloture from 67 down to 60. 
Reformers had been thwarted in their effort to lower this standard for 
several years.
  In 1975, once again, Senate Democrats asserted the constitutional 
authority of the majority to determine Senate procedure in order to 
ensure an up-or-down vote. The Senate eventually adopted a three-fifths 
cloture rule--that is, 60 votes to cut off debate--but only after the 
Senate had voted on three separate occasions in favor of the principle 
that a simple majority could end debate. They had voted on three 
separate occasions that a simple majority could end debate, after which 
it was a compromise establishing the level at 60.
  The chief proponent of this principle was former Democratic Senator 
Walter Mondale and four current Democratic Senators voted in favor of 
it: Senator Biden, Senator Leahy, Senator Kennedy, and Senator Inouye. 
Indeed, Senator Kennedy was an especially forceful adherent to the 
constitutional authority of the Senate majority to govern--a mere 
majority. He asked:

       By what logic can the Senate of 1917 or 1949 bind the 
     Senate of 1975?

  That was Senator Kennedy. He then echoed Senator Walsh's observation 
from almost 60 years earlier:

       A majority may adopt the Rules in the first place. It is 
     preposterous to assert that they may deny to later majorities 
     the right to change them.

  Finally, referring to unanimous consent constraints that faced the 
Senate in 1917, Senator Kennedy made an astute observation as to why a 
majority of the Senate had to have rulemaking authority. Senator 
Kennedy said:

       Surely no one would claim that a rule adopted by one 
     Senate, prohibiting changes in the rules except by unanimous 
     consent, could be binding on future Senates. If not, then why 
     should one Senate be able to bind future Senates to a rule 
     that such change can be made only by a two-thirds vote?

  Recently, the authority to which I have been referring has been 
called the ``constitutional option,'' or the pejorative term, ``nuclear 
option.'' But while the authority of the majority to determine Senate 
procedures has long been recognized, most often in Senate history by 
our colleagues on the other side of the aisle--incidentally, it was the 
senior Senator from West Virginia who employed this constitutional 
authority most recently, most effectively, and most frequently.
  Senator Byrd employed the constitutional option four times in the 
late 1970s and 1980s. The context varied but three common elements were 
present each time: First, there was a change in Senate procedure 
through a point of order rather than through a textual change to Senate 
rules; second, the change was achieved through a simple majority vote; 
third, the change in procedure curtailed the options of Senators, 
including their ability to mount different types of filibusters or 
otherwise pursue minority rights.
  The first time Senator Byrd employed the constitutional option was in 
1977 to eliminate postcloture filibuster by amendment. Senate rule XXII 
provides once cloture is invoked, each Member is limited to 1 hour of 
debate, and it prohibits dilatory and nongermane amendments. But 
because Democratic Senators Howard Metzenbaum of Ohio and James 
Abourezk of South Dakota opposed deregulating natural gas prices, they 
used existing Senate procedures to delay passage of a bill that would 
have done so after cloture had been invoked. They stalled debate by 
repeatedly offering amendments without debating them, thereabout 
delaying the postcloture clock.
  If points of order were made against the amendments, they simply 
appealed the ruling of the Chair which was debatable, and if there were 
a motion to table the appeal then there would have to be rollcall 
votes. Neither of these options would consume any postcloture time.
  After 13 days of filibustering by amendment, the Senate had suffered 
through 121 rollcall votes and endured 34 live quorums with no end in 
sight.
  Under then existing precedent, the Presiding Officer had to wait for 
a Senator to make a point of order before ruling an amendment out of 
order. By creating a precedent, Senator Byrd changed that procedure. He 
enlisted the aid of Vice President Walter Mondale as Presiding Officer 
and made a point of order that the Presiding Officer now had to take 
the initiative to rule amendments out of order that the Chair deemed 
dilatory. Vice President Mondale sustained Senator Byrd's new point of 
order. Senator Abourezk appealed, but his appeal was tabled by majority 
vote. The use of this constitutional option set a new precedent. It 
allowed the Presiding Officer to rule amendments out of order to crush 
postcloture filibusters.
  With this new precedent in hand, Senator Byrd began calling up 
amendments, and Vice President Mondale began ruling them out of order. 
With Vice President Mondale's help, Senator Byrd disposed of 33 
amendments, making short work of the Metzenbaum-Abourezk filibuster.
  Years later, Senator Byrd discussed how he created new precedent to 
break this filibuster. This is what Senator Byrd said years later about 
what he did.

       I have seen filibusters. I have helped to break them.

  There are a few Senators in this body who were here when I broke the 
filibuster on the natural gas bill. . . .I asked Mr. Mondale, the Vice 
President, to go please sit in the chair; I wanted to make some points 
of order and create some new precedents that would break these 
filibusters.

       And the filibuster was broken--back, neck, legs, and arms. 
     It went away in 12 hours.
       So I know something about filibusters. I helped to set a 
     great many of the precedents that are in the books here.


[[Page 10834]]


  That is Senator Byrd on his effort--one of his efforts--involving the 
use of the constitutional option.
  Although Senator Byrd acted within his rights, his actions were 
certainly controversial. His Democrat colleague, Senator Abourezk, 
complained that Senator Byrd had changed the entire rules of the Senate 
during the heat of the debate on a majority vote. And according to 
Senator Byrd's own history of the Senate, the book that he wrote that 
we all admire so greatly, he and Vice President Mondale were severely 
criticized for the extraordinary actions taken to break the postcloture 
filibusters.
  Some might argue that in 1977 Senator Byrd was not subscribing to the 
constitutional option. However, the procedure he employed, making a 
point of order, securing a ruling from the Chair, and tabling the 
appeal by a simple majority vote, is the same procedure the current 
Senate majority may use. Moreover, 15 months later, Senator Byrd 
expressly embraced the Senate majority's rulemaking authority.
  Back in January of 1979, Majority Leader Byrd proposed a Senate rule 
to greatly reform debate procedure. His proposed rules change might 
have been filibustered, so he reserved the right to use the 
constitutional option. Here is what he said.

       I base this resolution on Article I, Section 5 of the 
     Constitution. There is no higher law, insofar as our 
     government is concerned, than the Constitution.
       The Senate rules are subordinate to the Constitution of the 
     United States. The Constitution in Article I, section 5, says 
     that each House shall determine the rules of its proceedings. 
     . . . This Congress is not obliged to be bound by the dead 
     hand of the past. . . .

  Senator Byrd did not come to his conclusion lightly. In fact, in 1975 
he had argued against the constitutional option but faced with a 
filibuster in 1979 he said he had simply changed his mind. This is what 
he had to say:

       I have not always taken that position but I take it today 
     in light of recent bitter experience. . . . So, I say to 
     Senators again that the time has come to change the rules. I 
     want to change them in an orderly fashion. I want a time 
     agreement.
       But, barring that, if I have to be forced into a corner to 
     try for majority vote I will do it because I am going to do 
     my duty as I see my duty, whether I win or lose. . . . If we 
     can only change an abominable rule by majority vote, that is 
     in the interests of the Senate and in the interests of the 
     Nation that the majority must work its will. And it will work 
     its will.

  Senator Byrd did not have to use the constitutional option in early 
1979 because the Senate relented under the looming threat and agreed to 
consider his proposed rule change through regular order.
  As another example, in 1980, Senator Byrd created a new precedent 
that is the most applicable to the current dispute in the Senate. This 
use of the constitutional option eliminated the possibility that one 
could filibuster a motion to proceed to a nomination. We are on a 
nomination now on the Executive Calendar. The reason it was not 
possible to filibuster a motion to proceed to that nomination, we can 
thank Senator Byrd in 1980 when he exercised the constitutional option 
to simply get rid of the ability to filibuster a motion to proceed to 
an item on the Executive Calendar.
  Before March of 1980, reaching a nomination required two separate 
motions, a nondebatable motion to proceed to executive session, which 
could not be filibustered and which would put the Senate on its first 
treaty on the calendar; and a second debatable motion to proceed to a 
particular nominee which could be filibustered.
  Senator Byrd changed this precedent by conflating these two motions, 
one of which was debatable, into one nondebatable motion. Specifically, 
he made a motion to go directly into executive session to consider the 
first nominee on the calendar. Senator Jesse Helms made a point of 
order that this was improper under Senate precedent; a Senator could 
not use a nondebatable motion to specify the business he wanted to 
conduct on the Executive Calendar. The Presiding Officer sustained 
Senator Helms's point of order under Senate rules and precedence.
  In a party-line vote, Senator Byrd overturned the ruling on appeal. 
And because of this change in precedent, it effectively is no longer 
possible to filibuster the motion to proceed to a nominee.
  So where are we? There are other examples where our distinguished 
colleague used the Senate's authority to reform its procedures by a 
simple majority vote. We on this side of the aisle may have to employ 
the same procedure in order to restore the practice of affording 
judicial nominees an up-or-down vote. We did not cavalierly decide to 
use the constitutional option. Like Senator Byrd in 1979, we arrived at 
this point after ``recent bitter experience,'' to quote Senator Byrd, 
and only after numerous attempts to resolve this problem through other 
means had failed.
  Here is all we have done in recent times to restore up-or-down vote 
for judges: We have offered generous unanimous consent requests. We 
have had weeks of debate. In fact, we spent 20 days on the current 
nominee. The majority leader offered the Frist-Miller rule compromise. 
All of these were rejected. The Specter protocols, which would 
guarantee that nominations were not bottled up in committee, was 
offered by the majority leader. That was rejected; Negotiations with 
the new leader, Senator Reid, hoping to change the practice from the 
previous leadership in the previous Congress, that was rejected; the 
Frist Fairness Rule compromise, all of these were rejected.
  Now, unfortunately, none of these efforts have, at least as of this 
moment, borne any fruit.
  Our Democrat colleagues seem intent on changing the ground rules, as 
the New York Times laid it out in 2002. They want to change the ground 
rules as they did in the previous Congress in how we treat judicial 
nominations.
  We are intent on going back to the way the Senate operated quite 
comfortably for 214 years. There were occasional filibusters but 
cloture was filed and on every occasion where the nominee enjoyed 
majority support in the Senate cloture was invoked. We will have an 
opportunity to do that in the morning with cloture on Priscilla Owen. 
Colleagues on both sides of the aisle who want to diffuse this 
controversy have a way to do it in the morning, and that is to do what 
we did for 214 years. If there was a controversial nominee, cloture was 
filed, cloture was invoked, and that controversial nominee got an up-
or-down vote.
  Mr. GRASSLEY. Mr. President, will the Senator yield for a question?
  Mr. McCONNELL. I am happy to yield.
  Mr. GRASSLEY. One of the things that the public at large can get 
confused about is that we are going to eliminate the use of the 
filibuster entirely. I have seen some of the ``527'' commercials 
advising constituents to get hold of their Congressman because minority 
rights are going to be trampled.
  I, obviously, find that ludicrous. I know this debate is not about 
changing anything dealing with legislation. It is just maintaining the 
system we have had in the Senate on judges for 214 years. I wonder if 
the Senator would clear up that we are talking just about judicial 
nominees, and not even all judicial nominees, and nothing to change the 
filibuster on legislation.
  Mr. McCONNELL. I say to my friend from Iowa, if the majority leader 
does have to exercise the constitutional option and ask us to support 
it, it will be narrowly crafted to effect only circuit court 
appointments and the Supreme Court, which are, after all, the only 
areas where there has been a problem.
  I further say to my friend from Iowa, in the years I have been in the 
Senate, the only time anyone has tried to get rid of the entire 
filibuster was back in 1995 when such a measure was offered by the 
other side of the aisle.
  Interestingly enough, the principal beneficiaries of getting rid of 
the filibuster in January of 1995 would have been our party because we 
had just come back to power in the Senate, yet not a single Republican, 
not one, voted to get rid of the filibuster. Nineteen Democrats did, 
two of whom, Senator Kennedy and Senator Kerry, are still in the Senate 
and now arguing, I guess,

[[Page 10835]]

the exact opposite of their vote a mere 10 years ago.
  Mr. GRASSLEY. So when we just came back into the majority, after the 
1994 election, there was an effort by Democrats to eliminate the 
filibuster?
  Mr. McCONNELL. Entirely.
  Mr. GRASSLEY. For everything, including legislation.
  Mr. McCONNELL. Right.
  Mr. GRASSLEY. We were the new majority.
  Mr. McCONNELL. Right.
  Mr. GRASSLEY. And we would have benefited very much from that. It 
would have given us an opportunity to get anything done that we could 
get 51 votes for doing, with no impediment, and we voted against that?
  Mr. McCONNELL. Unanimously. And interestingly enough, it was the 
first vote cast by our now-Senate majority leader, Senator Frist, here 
in the Senate. The very first vote he cast, along with the rest of us 
on this side of the aisle, was to keep the filibuster.
  Mr. GRASSLEY. So I think that ought to make it clear we are just 
talking about the unprecedented use of the filibuster within the last 2 
years. We are not talking about changing anything in regard to 
filibusters on legislation because we understand that is where you can 
work compromises. You cannot really work compromises when it comes to 
an individual--is it either up or down. But you can change words, you 
can change paragraphs, you can rewrite an entire bill to get to 60, to 
get to finality, on any piece of legislation.
  Mr. McCONNELL. My friend from Iowa is entirely correct. The 
filibuster would be preserved for all legislative items, preserved for 
executive branch nominations, not for the judiciary. It would be 
preserved even for district court judges, where Senators have 
historically played a special role in either selecting or blocking 
district judges. All of that would be preserved. If we have to exercise 
the constitutional option tomorrow, it will be narrowly crafted to deal 
only with future Supreme Court appointments and circuit court 
appointments, which is where we believe the aberrational behavior has 
been occurring in the past and may occur in the future.
  Mr. GRASSLEY. And maintain the practice of the Senate as it has been 
for 214 years prior to 2 years ago.
  Mr. McCONNELL. That is precisely the point. My friend from Iowa is 
entirely correct.
  Mr. GRASSLEY. I thank the Senator.
  Mr. HATCH. Will the assistant majority leader yield for a question?
  Mr. McCONNELL. Yes.
  Mr. HATCH. Just to make it clear, there are two calendars in the 
Senate. One is the legislative calendar and the other is the Executive 
Calendar; is that correct?
  Mr. McCONNELL. That is correct.
  Mr. HATCH. The legislative calendar is the main calendar for the 
Senate, and it is solely the Senate's; is that correct?
  Mr. McCONNELL. That is correct.
  Mr. HATCH. But the Executive Calendar involves nominations through 
the nomination power granted by the Constitution to the President of 
the United States, and the Senate has the power to advise and consent 
on that nomination power, is that right, to exercise that power?
  Mr. McCONNELL. That is entirely correct.
  Mr. HATCH. What we are talking about here is strictly the Executive 
Calendar, ending the inappropriate filibusters on the Executive 
Calendar and certainly not ending them on the legislative calendar?
  Mr. McCONNELL. My friend from Utah is entirely correct.
  Mr. HATCH. Well, our Democratic friends argue--just to change the 
subject a little bit here--they argue we have to institute the judicial 
filibuster to maintain the principle of checks and balances as provided 
in the Constitution. But unless my recollection of events is different, 
this contention does not fit with the historical record.
  Isn't it the case that the same party has often been in the White 
House and in the majority in the Senate, such as today, but in the 
past, while the same party has controlled the White House and been a 
majority in the Senate, neither party, Democrats or Republicans, over 
the years, has filibustered judicial nominations until this President's 
term?
  Mr. McCONNELL. My friend is entirely correct. The temptation may have 
been there. I would say to my friend from Utah, the temptation may have 
been there.
  Mr. HATCH. Right.
  Mr. McCONNELL. During the 20th century, the same party controlled the 
executive branch and the Senate 70 percent of the time. Seventy percent 
of the time, in the 20th century, the same party had the White House 
and a majority in the Senate. So I am sure--by the way, that aggrieved 
minority in the Senate, for most of the time, was our party, the 
Republican Party.
  Mr. HATCH. You got that right.
  Mr. McCONNELL. We are hoping for a better century in the 21st 
century. But it was mostly our party. So there had to have been 
temptation, from time to time, and frustration, on the part of the 
minority. Seventy percent of the time, in the 20th century, they could 
have employed this tactic that was used in the last Congress but did 
not.
  Senator Byrd led the minority during a good portion of the Reagan 
administration. Actually, during all of the Reagan administration, 6 
years in the minority, 2 years in the majority, Senator Byrd could have 
done that at any point. He did not do it, to his credit. To his credit, 
he did not yield to the temptation.
  As I often say, there are plenty of things we could do around here, 
but we do not do it because it is not good to do it, even though it is 
arguably permissible. So when our friends on the other side of the 
aisle say the filibuster has been around since 1806, they are right. It 
is just that we did not exercise the option because we thought it was 
irresponsible.
  Mr. HATCH. Not quite right because the filibuster rule did not come 
into effect until 1917.
  Mr. McCONNELL. No. The ability to stop the filibuster did not come 
about until 1917. The ability to filibuster came about in 1806.
  Mr. HATCH. Well, Senators had the right to speak, and they could 
speak.
  Mr. McCONNELL. Absolutely.
  Mr. HATCH. So in a sense it was not even known as a filibuster at 
that time. Nevertheless, they had the right to speak.
  To follow up on what you just said, we heard repeatedly from liberal 
interest groups that we must maintain the filibuster to maintain 
``checks and balances.'' My understanding of the Constitution's checks 
and balances is that they were designed to enable one branch of 
Government to restrain another branch of Government. Are there really 
any constitutional checks that empower a minority within one of those 
branches to prevent the other branch from functioning properly?
  Mr. McCONNELL. Well, my friend from Utah is again entirely correct. 
The term ``checks and balances'' has actually nothing to do with what 
happened to circuit court appointments during the previous Congress. 
The term ``checks and balances'' means institutional checks against 
each other, the Congress versus the President, the judiciary versus 
both--the balance of power among the branches of Government. It has 
nothing whatsoever to do with the process to which the Senate has been 
subjected in the last few years. It is simply a term that is 
inapplicable to the dilemma in which we find ourselves now.
  Mr. HATCH. One last point. The 13 illustrations that the Democrats on 
the other side have given that they have said are filibusters, if I 
recall it correctly, 12 of those 13 are now sitting on the Federal 
bench, as you have said; is that correct?
  Mr. McCONNELL. I say to my friend from Utah, as far as I can 
determine, for every judge who enjoyed majority support, upon which 
there was subsequently a filibuster, cloture was invoked, and all of 
those individuals now enjoy the title ``judge.''
  Mr. HATCH. In other words, they are sitting on benches today?
  Mr. McCONNELL. Because they ultimately got an up-or-down vote. I 
would

[[Page 10836]]

say to my friend from Utah, we will have an opportunity tomorrow, in 
the late morning, to handle the Priscilla Owen nomination the way our 
party, at your suggestion and Senator Lott's suggestion, toward the end 
of the Clinton years, handled the Berzon and Paez nominations. They had 
controversy about them, just as this nomination has controversy about 
it.
  How did we deal with controversy? We invoked cloture. And I remember 
you and Senator Lott saying, to substantial grief from some, that these 
judge candidates had gotten out of committee, and they were entitled to 
an up-or-down vote on the floor. Senator Lott joined Senator Daschle 
and filed cloture on both of those nominations, not for the purpose of 
defeating them but for the purpose of advancing them. They both got an 
up-or-down vote. They both are now called judge.
  Mr. HATCH. So the cloture votes in those instances were floor 
management devices to get to a vote so we could vote those nominations 
to the bench?
  Mr. McCONNELL. For the purpose of advancing the nominations, not 
defeating them.
  Mr. HATCH. So they were hardly filibusters in that sense?
  Mr. McCONNELL. They were not. They were situations which do occur, 
from time to time, where a nominee has some objection. And around here, 
if anybody objects, it could conceivably end up in a cloture vote.
  Mr. HATCH. And spend a lot of time on the Senate floor.
  Mr. McCONNELL. Yes. It does not mean the nomination is on the way to 
nowhere. It could mean the nomination is on the way to somewhere 
because you invoke cloture and then you get an up-or-down vote. And I 
remember you, as chairman of the Judiciary Committee, advocating that 
step, even though we all ended up, many of us, voting against those 
nominations once we got to the up-or-down vote.
  Mr. HATCH. Advocating the step that we should invoke cloture and give 
these people a vote up or down?
  Mr. McCONNELL. Precisely.
  Mr. HATCH. One last thing. As to the 13, 12 of them are sitting on 
the bench. The 13th that they mentioned was the Fortas nomination. In 
that case, there was the question of whether there was or was not a 
filibuster. But let's give them the benefit of the doubt and say there 
was a filibuster, since there are those who do say there was, although 
the leader of the fight, Senator Griffin, at the time said they were 
not filibustering, that they wanted 2 more days of debate, and they 
were capable and they had the votes to win up or down--
  Mr. McCONNELL. He withdrew, didn't he?
  Mr. HATCH. He did. But what happened was there was one cloture vote, 
and it was not invoked. But even if you consider it a filibuster, the 
fact is, it was not a leader-led filibuster. It was a nomination that 
was filibustered--if it was a filibuster--almost equally by Democrats 
and Republicans.
  Mr. McCONNELL. And isn't it also true, I ask my friend from Utah, 
that it was apparent that Justice Fortas did not enjoy majority support 
in the Senate and would have been defeated?
  Mr. HATCH. That is right.
  Mr. McCONNELL. Had he not withdrawn his nomination.
  Mr. HATCH. The important thing here is it was a bipartisan filibuster 
against a nominee by both parties, and in these particular cases, these 
are leader-led partisan filibusters led by the other party.
  Mr. McCONNELL. I thank my colleague.
  Mr. SESSIONS. Mr. President, will the Senator yield?
  Mr. McCONNELL. I am happy to yield.
  Mr. SESSIONS. I hope Senator Hatch will remain because he has been, 
much of the first years of my career in the Senate, chairman of the 
Senate Judiciary Committee. I think it is important to drive home what 
you have been discussing. I think it is so important.
  First, I will say to the distinguished assistant majority leader how 
much I appreciate his comprehensive history of debate in the Senate. I 
think it is invaluable for everyone here. But I remember the Berzon and 
Paez nominations. Both of those were nominees to the Ninth Circuit. 
Judge Paez, a magistrate judge, declared that he was an activist 
himself, as I recall, and even said that if legislation does not act, 
judges have a right to act. And the Supreme Court had reversed the 
Ninth Circuit 28 out of 29 times one year and consistently reversed 
them more than any other circuit in America. And here we had an ACLU 
counsel, in Marsha Berzon, and Paez being nominated.
  There was a lot of controversy over that. We had a big fuss over 
that. We had an objection. I voted for 95 percent of President 
Clinton's nominees, but I did not vote for these two. I remember we had 
a conference.
  I will ask the assistant majority leader--we were having House 
Members saying: Why don't you guys filibuster? People out in the 
streets were saying: Don't let them put these activist judges on the 
bench. We had our colleagues saying it. I did not know what to do. I 
was new to the Senate. Do you remember that conference when we had the 
majority in the Senate, and President Clinton was of the other party 
and we were not in minority like the Democrats are today--we had the 
majority--and Senator Hatch explained to us the history of filibusters, 
why we never used them against judges, and urged us not to filibuster 
those Clinton nominees?
  Mr. McCONNELL. I remember it well. I would say, our colleague from 
Utah got a little grief for that from a number of members on our side 
of the aisle who were desperately looking for some way to sink those 
nominations. And he said: Don't do it. Don't do it. You will live to 
regret it. And thanks to his good advice, we never took the Senate to 
the level--never descended to the level that the Senate has been in the 
previous Congress.
  Mr. SESSIONS. Let me ask this, with the presence of the distinguished 
former chairman of the Judiciary Committee in the Chamber. At that very 
moment when it was to the Republican interests to initiate a 
filibuster, if we chose to do so, at that moment, when he was, on 
principle, opposing it, the very Members of the opposite party, leading 
Senators on that side--Senator Leahy and Senator Kennedy and Senator 
Feinstein and Senator Boxer--were making speeches saying how bad the 
filibuster was and how it should not be done.
  Mr. McCONNELL. I would say to my friend that is why we have been 
quoting them so much in all of our speeches on this side of the aisle. 
You could just change the names, and they could have been giving our 
speeches as recently as 1998, 1999, and even 2000.
  Mr. SESSIONS. I could not agree more. A half-dozen years ago, the 
people who are leading the filibuster were the very ones objecting to 
it. But Senator Hatch and the Republicans, isn't it fair to say, have 
been consistent?
  Mr. McCONNELL. Absolutely. Let's just be fair here. I would say to 
both of my colleagues, without getting into the details of any 
particular nomination, that I think the Democrats have arguably a 
legitimate complaint--it has a patina of legitimacy--when they argue 
that we simply did in committee what they are doing on the floor.
  The PRESIDING OFFICER. The time controlled by the majority has now 
expired.
  Mr. McCONNELL. Mr. President, I ask unanimous consent for an 
additional 5 minutes.
  Mr. LAUTENBERG. I didn't hear that.
  Mr. McCONNELL. I ask unanimous consent for 5 more minutes.
  Mr. LAUTENBERG. No objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. They argue that we simply did in committee what they 
are doing on the floor, and that there is not a dime's worth of 
difference between holding up a nominee in committee and holding up a 
nominee on the floor. I think there are some distinctions to be made.
  It is not entirely the same thing, but granting that that might have 
some legitimacy, the majority leader offered these Specter protocols 
with which the former chairman of the Judiciary Committee is intimately 
familiar, which would have guaranteed some kind of

[[Page 10837]]

procedure to extricate those nominations from committee and bring them 
out to the floor and give them an up-or-down vote. We are in the 
majority, and we volunteered to give up the ability to routinely kill 
nominations in committee. Yet they turned that down, too.
  Mr. HATCH. Will the Senator yield on that point?
  Mr. McCONNELL. I yield for a question.
  Mr. HATCH. The fact is, there have always been holdovers at the end 
of every administration. There were 54 holdovers at the end of the Bush 
1 administration, and he was only there 4 years. We didn't cry and moan 
and groan and threaten to blow up the Senate over that. We recognized 
it was part of the process.
  I have to say with regard to the holdovers that were there at the end 
of the Clinton administration, there were some which they could have 
gotten through, but there were like 18 that were withdrawn. Ten 
withdrew their names. Some were not put up again between the two 
administrations. There is no question that I tried to do the very best 
I could to give President Clinton every possible edge.
  But this has always been the case. It isn't just this time. It 
happened with Democrats in control of the Senate and Republicans in 
control of the White House. I think that point needs to be made. I have 
heard a lot of moaning and groaning. I know my colleagues know I did 
everything in my power to accommodate them and help them.
  Mr. McCONNELL. I believe that is entirely correct. The only point I 
was seeking to make was if that criticism had any validity whatsoever--
and the former chairman has pointed out that it has very little 
legitimacy--the distinguished majority leader offered to make that 
essentially impossible, and yet that was rejected as well.
  Mr. SESSIONS. Will the Senator yield for one more question?
  Mr. McCONNELL. Yes.
  Mr. SESSIONS. Isn't it true that Trent Lott, the Republican majority 
leader, sought cloture to give Berzon and Paez an up-or-down vote, and 
those of us who opposed Berzon and Paez, as the Senator from Kentucky 
did, voted for cloture to give them an up-or-down vote and then voted 
against them when they came up for the up-or-down vote?
  Mr. McCONNELL. The Senator is entirely correct. That is the way I 
voted. I believe that is the way he voted. That is the way the Senate 
ought to operate. That is a good model for how we ought to behave 
tomorrow. We will have a cloture vote on Justice Priscilla Owen. If the 
Senate wants to operate the way it used to, we will invoke cloture on 
Justice Owen and then give her the up-or-down vote which she richly 
deserves.
  I yield the floor.
  Mr. FRIST. Mr. President, more than 2 years ago, this Senate first 
took a cloture vote to end a filibuster on the nomination of Miguel 
Estrada for a seat on the DC Circuit Court of Appeals. Mr. Estrada 
epitomizes the American dream. An immigrant from Honduras, who arrived 
in America speaking no English, he graduated from Harvard Law School 
and became one of America's most distinguished lawyers. Mr. Estrada 
worked for Solicitors General under both President Bill Clinton and 
President George W. Bush. He argued 15 cases before the Supreme Court. 
The American Bar Association gave him its highest recommendation, and 
Miguel Estrada's confirmation by a bipartisan majority of the full 
Senate was assured.
  But the confirmation vote never came. Instead, Mr. Estrada's 
nomination was filibustered. Each time we sought a consent agreement to 
limit debate, the Democratic leadership objected. We asked over and 
over for a simple up or down vote. If you oppose the nominee, we 
stressed, then vote against him, but give him a vote. But the partisan 
minority refused. In open session, they remarked that no amount of 
debate time would be sufficient and that they would not permit the 
Senate to vote.
  After 13 days of debate, with no end in sight, I filed a cloture 
motion. Every Republican and a handful of Democrats voted for cloture, 
bringing us to 55 affirmative votes, 5 short of the 60 we needed. 
Shortly thereafter, we tried again. We got the same 55 votes. And then 
we tried five more times, never budging a single vote. It was crystal 
clear that the object of the filibuster was not to illuminate Mr. 
Estrada's record but to deny him an up or down vote. Debate was not the 
objective. Obstruction was the objective. Finally, to the shame of the 
Senate and the harm of the American people, Mr. Estrada asked President 
Bush to withdraw his nomination.
  Before the last Congress, the record number of cloture votes on a 
judicial nomination was two, and no nomination with clear majority 
support ever died by filibuster. The Estrada case rewrote that 
tradition, and for the worse. On Miguel Estrada, seven cloture votes 
were taken, to no avail. He was a nominee who plainly could have been 
confirmed, but he was denied an up or down vote. Miguel Estrada's 
nomination died by filibuster.
  And Mr. Estrada's case was just the beginning. After him, came the 
nomination of Priscilla Owen, a Justice on the Texas Supreme Court. 
Four cloture votes did not bring an end to the debate and we again were 
told on the record that no amount of debate would be enough and a 
confirmation vote simply would not be allowed. Thereafter, eight 
additional nominees were filibustered and Democrats threatened 
filibusters on six more. Something had radically changed in the way the 
Senate deals with nominations. Two hundred years of Senate custom lay 
shattered, with grave implications for our constitutional system of 
checks and balances.
  As the filibusters began to mushroom, Democratic Senator Zell Miller 
and I introduced a cloture reform resolution. Our proposal would have 
permitted an end to nominations filibusters after reasonable and 
substantial debate. The Rules Committee held a hearing on our 
resolution and reported it with an affirmative recommendation. But the 
proposal languished on the Senate Calendar, facing a certain filibuster 
from Senators opposed to cloture reform. Quite simply, those who 
undertook to filibuster these nominees wanted no impediments put in 
their way.
  When Congress convened this January, I was urged to move immediately 
for a change in Senate procedure so that these unprecedented 
filibusters could not be repeated. But I decided on a more measured and 
less confron-
tational course. Rather than move immediately to change procedure, I 
promoted dialogue at the leadership and committee level to seek a 
solution to this problem. Rather than act on the record of the last 
Congress, I hoped that the passage of a clearly won election and 
presence of new Democratic leadership would result in a sense of 
fairness being restored.
  Sadly, these hopes were not fulfilled. More filibusters have been 
promised, not only against seven nominees President Bush has 
resubmitted but also against other nominees not yet sent up. A renewal 
of filibusters against persons denied an up or down vote in the last 
Congress is a grave problem and would be reason enough for reform. 
Threatening filibusters against new nominees compounds the wrong and is 
further reason for reform.
  For many decades, two great Senate traditions existed side by side. 
These were a general respect for the filibuster and a consensus that 
nominations brought to the floor would receive an up-or-down vote. 
Filibusters have been periodically conducted on legislation, sometimes 
successfully and sometimes ended by cloture. However, filibusters have 
not impeded the Senate's advice and consent role on nominations. In the 
exceedingly rare cases they were attempted, cloture was always invoked 
with bipartisan support and the filibusters ceased.
  But in the last Congress, judicial filibusters became instruments of 
partisan politics. Organized and promoted by the Democratic leadership, 
these filibusters proved resilient to cloture. And that was the 
difference between these filibusters and the handful of judicial 
filibusters conducted in the past. For example, to close debate on 
President Clinton's nominees, Marsha Berzon and Richard Paez, the 
Republican leader,

[[Page 10838]]

Senator Lott, took the initiative to file for cloture. Because he acted 
to conclude the debate, both Berzon and Paez sit on the bench today.
  Due to the current filibusters, two great Senate traditions that used 
to coexist now collide. If matters are left in this posture, either the 
power of advice and consent will yield to the filibuster or the 
filibuster will yield to advice and consent.
  Until these judicial filibusters were launched, the Senate observed 
the principle that filibusters would not impede the exercise of 
constitutional confirmation powers and that a majority of Senators 
could vote to confirm or reject a nominee brought to the floor. The 
unparalleled filibusters undermine that tradition, denying nominees the 
courtesy of an up or down vote. They represent an effort by a Senate 
minority to obstruct the duty of the full Senate to advise and consent. 
The current minority claims it has no choice but to filibuster, because 
Republicans control the White House and Senate. But the minority's 
conclusion defies history.
  For 70 of the 100 years of the last century, the same party 
controlled the Presidency and the Senate, but the minority party 
leadership exercised restraint and refused to filibuster judicial 
nominees. The past half century amply illustrates this point. During 
the Kennedy and Johnson administrations, Democrats controlled the 
Senate, but the Republican Minority Leaders Everett Dirksen did not 
filibuster judicial nominees. While President Carter was in office, 
Democrats controlled the Senate, but Republican Leader Howard Baker did 
not filibuster judicial nominees. For President Reagan's first 6 years, 
Republicans controlled the Senate, but Democratic Leader Robert Byrd 
did not filibuster judicial nominees. In President Clinton's first 2 
years, Democrats had the Senate but Republican Leader Bob Dole did not 
filibuster judicial nominees. During all those years, all those 
Congresses, and all those Presidencies, nominees brought to the floor 
got an up-or-down vote.
  Each of those Senate minorities could have done what this minority 
has done, using the same rationale. But none of them did. To the great 
detriment of the Senate and to the constitutional principle of checks 
and balances, such self-restraint has vanished.
  Democrats argue that by curbing judicial filibusters, we would turn 
the Senate into a rubberstamp. But for more than two centuries, those 
filibusters did not exist. Shall we conclude that for 200 years the 
Senate was a rubberstamp and only now has awakened to its 
responsibilities? What of those minority leaders who did not 
filibuster? Were they also rubberstamps? Was Dirksen? Was Baker? Was 
Byrd? Was Dole? Can the minority be right that only through the 
filibuster may the Senate's advice and consent check be vindicated? 
This is a novel conclusion and it stains the reputation of the great 
Senators that have preceded us.
  To make their case against curbs on judicial filibusters, Democrats 
try to reach into history. In so doing, they cite the 1968 nomination 
of Abe Fortas to be Chief Justice of the U.S. Supreme Court, and 
Franklin Roosevelt's court-packing plan of 1937. But use of these 
examples is an overreach and draws false comparisons.
  In 1968, Abe Fortas was serving on the Supreme Court as an Associate 
Justice. Three years earlier, he had been confirmed by the Senate by 
voice vote, following a unanimous affirmative recommendation from the 
Judiciary Committee. Then Chief Justice Earl Warren announced his 
retirement, effective on the appointment of his successor. President 
Lyndon Johnson proposed to elevate Fortas to succeed Warren.
  The noncontroversial nominee of 1965 became the highly controversial 
nominee of 1968. Justice Fortas was caught in a political perfect 
storm. Some Senators raised questions of ethics. Others complained 
about cronyism. Yet others were concerned about Warren Court decisions. 
And still others thought that with the election looming weeks away, a 
new President should fill the Warren vacancy. But this political 
perfect storm was thoroughly bipartisan in nature, and reflected 
concerns from certain Republicans as well as numerous southern and 
northern Democrats.
  Senator Mike Mansfield brought the Fortas nomination to the Senate 
floor late on September 24, 1968. After only 2 full days of debate, 
Mansfield filed a cloture motion. Almost a third of the 26 Senators who 
signed the cloture motion were Republicans, including the Republican 
whip. The vote on cloture was 45 yeas and 43 nays, well short of the 
two-thirds then needed to close debate. Nearly a third of Republicans 
supported cloture, including the Republican whip. Nearly a third of 
Democrats opposed it, including the Democratic whip. Of the 43 negative 
votes on cloture, 24 were Republican and 19 were Democratic.
  Opponents of cloture claimed that debate had been too short in order 
to develop the full case against the Fortas nomination. In contrast to 
the Miguel Estrada and Priscilla Owen filibusters, no one claimed that 
debate would go on endlessly and that no amount of time would be 
sufficient. Indeed, those who opposed cloture denied there was a 
filibuster at all.
  So, Mr. President, the Fortas case is not analogous to the judicial 
filibusters we now confront. Support for and opposition to Fortas was 
broadly bipartisan, a fact that stands in stark contrast to the 
partisan filibusters that began in the last Congress as an instrument 
of party policy. At most, it was opposition to one man, and was not an 
effort to leverage judicial appointments through the threat of a 
filibuster-veto. The Fortas opposition came together in one 
aberrational moment. Nothing like it happened in the previous 180 years 
and nothing like it happened for the next 35 years. Absolutely, it did 
not represent a sustained effort by a minority party to shatter Senate 
confirmation traditions and exercise a filibuster-veto destructive of 
checks and balances. No comparison can be made between that single 
aberrational moment and the pattern of judicial filibusters we now 
confront.
  Democrats also contend that if we move against the judicial 
filibusters, we will follow in the footsteps of Franklin Roosevelt's 
attempt to pack the Supreme Court. But this is a scare tactic and it, 
too, is a comparison without basis.
  Frustrated by the Supreme Court's ruling unconstitutional several New 
Deal measures, President Roosevelt sought legislation to pack the court 
by appointing a new Justice for every sitting Justice over the age of 
70. In a fireside chat, he compared the three branches of government to 
a three horse team pulling a plow. Unless all three horses pulled in 
the same direction, the plow could not move. To synchronize all the 
horses, Roosevelt proposed to pack the court.
  Roosevelt's effort was a direct assault on the independence of the 
judiciary and plainly undermined the principles of separation of powers 
and checks and balances. He failed in a Senate with 76 Members of his 
own party. But no good analogy can be drawn between what he attempted 
and our effort to end judicial filibusters.
  Unlike Roosevelt, Republicans are not trying to undermine the 
separation of powers. And unlike Roosevelt, Republicans are not trying 
to destabilize checks and balances, but to restore them.
  Mr. President, that the judicial filibusters undermine a longstanding 
Senate tradition is evident. But traditions are not laudable merely 
because they are old. This tradition is important because it underpins 
a vital constitutional principle that the President shall nominate, 
subject to the advice and consent of the Senate. When filibusters are 
used to block a vote, the advice and consent of the Senate is not 
possible.
  A cloture vote to end a filibuster is not advice and consent within 
the Constitution's meaning. Notwithstanding the minority's claim, 
nominees denied a confirmation vote due to filibuster have not been 
``rejected.'' Instead, what has been rejected is the constitutional 
right of all Senators to vote up or down on the nominees.
  To require a cloture threshold of 60 votes for confirmation disturbs 
checks and balances between the Executive

[[Page 10839]]

and the Senate and creates a strong potential for tyranny by the 
minority. A minority may hold hostage the nomination process, 
threatening to undermine judicial independence by filibustering any 
appointment that does not meet particular ideological or litmus tests.
  This is not a theoretical problem. Look what has happened already. 
Asserting claims that nominees from the last Congress were 
``rejected,'' Democrats have urged President Bush to withdraw the 
nominations he has submitted anew. If he does not, they will ensure the 
nominees are denied a confirmation vote. It is but a tiny step from 
there to claim that any nominee must first secure minority clearance, 
or else be filibustered. And at that point, the nominating power 
effectively passes to the Senate minority. If Senate traditions are not 
restored, this audacious and unprecedented assertion of minority power 
is coming next, and Presidents will be subject to it from now on.
  The Constitution provides that a duly elected Executive shall 
nominate, subject to advice and consent by a majority of the Senate. 
Implicit in that structure is that the President and the Senate shall 
be politically accountable to the American people, and that 
accountability will be a sufficient check on the decisions made by each 
of them. That was the system by which we Americans addressed 
nominations for more than two centuries, until the last Congress. If we 
allow recent precedents to harden and give the minority a filibuster-
veto in the confirmation process, that system and the checks and 
balances it serves, will be permanently destroyed.
  Trying to legitimize their judicial filibusters, Democrats have taken 
to the floor to extol the virtue of filibusters generally. And as to 
legislative filibusters, I agree with them. But judicial filibusters 
are not cut from the same cloth as legislative filibusters and must not 
receive similar treatment. So, I concur with the sentiments Senator 
Mansfield expressed during the Fortas debate:

       In the past, the Senate has discussed, debated and 
     sometimes agonized, but it has always voted on the merits. No 
     Senator or group of Senators has ever usurped that 
     constitutional prerogative. That unbroken tradition, in my 
     opinion, merely reflects on the part of the Senate the 
     distinction heretofore recognized between its constitutional 
     responsibility to confirm or reject a nominee and its role in 
     the enactment of new and far-reaching legislative proposals.

  Mr. President, history demonstrates that filibusters have almost 
exclusively been applied against the Senate's own constitutional 
prerogative to initiate legislation, and not against nominations. The 
Frist-Miller cloture reform proposal from the last Congress dealt with 
nominations only, not legislation and not treaties. We addressed solely 
what was broken. Over many decades, numerous cloture reforms have been 
proposed. But ours was the only one to apply strictly to nominations. 
We left legislative filibusters alone.
  Contrary to what Democrats would have you believe, no Republican 
seeks to end legislative filibusters. The Democrats are creating a 
myth. These are the facts: my first Senate vote was to defeat a 1995 
rules change proposal to curtail filibusters of every kind. Introduced 
by Democrats, it received 19 votes, all from Democrats. In 1995, we had 
a new Republican majority. We would have been the prime beneficiaries 
of the rules change, but we supported minority rights to filibuster on 
legislation. Some of the Senators who most vigorously promote judicial 
filibusters and condemn us for trying to restore Senate traditions, 
were among those voting for the 1995 change. And here is the irony: had 
the 1995 change been adopted, the judicial filibusters would be 
impossible.
  Some who oppose filibuster reform do so because they fear that 
curbing judicial filibusters will necessarily lead to ending the right 
to filibuster legislation. But history strongly suggests this slippery 
slope argument is groundless. In 1980, under the leadership of Senator 
Byrd and on a partisan vote, Senate Democrats engineered creation of a 
precedent to bar debate on a motion to proceed to a nomination. Before 
then, the potential existed for extended debate on the motion to 
proceed to a nomination and again on the nomination itself. Indeed, 
debate on the Fortas nomination occurred on the motion to proceed. The 
1980 precedent rendered such debate impossible.
  Simple logic would dictate that a parallel precedent would be 
established next, to bar debate on motions to proceed to legislation. 
But that logic was not followed. The Byrd precedent of 1980 has stood 
for 25 years and no move has ever been made to extend it to 
legislation. Why not? I suggest there are two reasons. First, the 
Senate has recognized substantial distinctions between procedures 
applicable to Executive matters--nominations and treaties--and those 
applicable to legislation. Second, within the Senate there is no 
discernible political sentiment to curtail the right to debate a motion 
to proceed to legislation.
  Given those substantial procedural distinctions and the absence of 
such political sentiment, the spillover from the 1980 Byrd precedent 
has been nil.
  There is a further reason why I do not believe curbing judicial 
filibusters implicates legislation. For 22 years, between 1953 and 
1975, floor fights over the cloture rule were a biennial ritual. 
Finally, in 1975, the rule was amended to require 60 votes before 
cloture could be invoked. A bipartisan consensus gathered around the 
new cloture threshold and, at least as to legislation, this consensus 
has held fast. That is the principal cause why the 1995 effort by 
certain Democrats to liberalize the cloture rule got only 19 votes. 
Indeed, both the Republican and Democratic leadership opposed it.
  The 30-year bipartisan consensus on cloture has unraveled on judges, 
where filibusters are new, but it remains intact on legislation, where 
filibusters are traditional. While no one can be sure what procedural 
changes a future majority may propose, this consensus is so broad and 
longstanding that predictions of a move against the legislative 
filibuster lack basis.
  Finally, Mr. President, I will repeat what I have said in a series of 
public statements both on this floor and to the press: the Republican 
majority will oppose any effort to restrict filibusters on legislation.
  All this, Mr. President, brings us to the question of how to address 
the problem of judicial filibusters. What might reform look like and 
how might the Senate adopt it?
  A good place to start is with first principles. In the case of 
judicial nominations, I believe the foundational principle is that if a 
majority of Senators wishes to exercise its right to advise and consent 
to a nomination, it must be able to do so.
  To that end, I have offered a Fairness Rule, which takes account of 
complaints set forth by both parties. My proposal addresses the 
question of holding nominations in committee, so that nominations can 
move to the floor for a conformation vote. By this step, the Senate 
would respond specifically to concerns Democrats have voiced about the 
treatment of Clinton nominees. So, if a majority of Senators wishes to 
advise and consent, committee inaction would not block it. Thereafter, 
a majority can bring a nomination to the floor. After 100 hours of 
debate, equally divided, the Senate can vote up or down on the nominee. 
This step responds specifically to concerns Republicans have had about 
filibusters of Bush nominees.
  The Fairness Rule is the product of listening to the often rancorous 
arguments expressed by Democrats and Republicans. It would reform the 
confirmation process fairly and completely, and well serve this and 
future Senates and this and future Presidents.
  The cycle of blame and finger-pointing must halt. We must stop 
nursing grievances and start addressing problems. Thus far, the 
Fairness Rule has received an unwelcoming response. I urge the minority 
to reconsider. I urge them to join hands with us in dissipating bitter 
partisanship by considering this proposal.
  For some time, the issue of judicial filibusters has captured 
considerable attention in the Senate. Both parties have had substantial 
opportunities to

[[Page 10840]]

think about reform, so we can initiate consideration of it through the 
committee process and should be able to move ahead with alacrity.
  But to act on reform by this method, we must have a unanimous consent 
agreement that allows time for debate, a chance for amendment, and the 
certainty of a final vote. An agreement can provide for robust, 
principled, and lengthy discussion. Without an agreement, any reform we 
bring to the floor is subject to being filibustered itself.
  So, I ask the minority for an agreement to move matters forward. It 
represents an opportunity, much desired by Senators on both sides of 
the aisle, to avoid a confrontation on judges. But if the answer is 
obstruction, then we are faced with having to initiate exercise of the 
Senate's constitutional option--best understood as reliance on the 
power the Constitution gives the Senate to govern its own proceedings.
  The Senate is an evolving institution. Its rules and processes are 
not a straitjacket. Over time, adjustments have occurred in Senate 
procedure to reflect changes in Senate behavior. Tactics no longer 
limited by self-restraint became constrained by rules and precedents. 
This Senate, equal to the first Senate, has the constitutional right to 
determine how it wishes to conduct its business.
  Self-governance involves writing rules or establishing precedents, 
and the Constitution fully grants to the Senate the power to do either.
  Democrats contend that if the constitutional option is used to 
restore checks and balances, Republicans would be veering into 
unchartered waters. But history is rich with examples of how Senate 
rules and precedents have changed in response to changing conditions. 
And quite often, it was the credible threat or actual use of the 
constitutional option that caused these changes to be made.
  The cloture rule itself was created in 1917, under pressure from 
Montana Democrat Thomas Walsh. Fed up with obstruction and with the 
prospect that any effort to amend Senate rules would be filibustered, 
Walsh proposed exercising the constitutional option. Old Senate rules 
would not operate while the Senate considered new rules, including a 
cloture procedure. Meanwhile, general parliamentary law would govern--
affording the Senate a way to break the rules change filibuster. Faced 
with that pressure, and with an appropriate parliamentary tool at hand, 
the Senate adopted its first cloture rule.
  As the issue of civil rights gripped the Senate in the 1950s, a 
bipartisan group of Senate liberals, led by New Mexico Democrat Clinton 
Anderson, proposed using the constitutional option to liberalize a 
cloture process, because filibusters had either doomed or weakened 
civil rights legislation. Anderson's support grew throughout the 
decade. By 1959, it was apparent he might command a majority, which 
forced Senator Lyndon Johnson into a compromise by which the cloture 
threshold was relaxed. But for the credible threat the constitutional 
option would be exercised, the rules change would not have happened.
  In 1975, Minnesota Democrat Walter Mondale and Kansas Republican Jim 
Pearson pressed for cloture reform through the constitutional option. 
Majority Leader Mike Mansfield, who earlier in his career had supported 
this tactic, offered three separate points of order against it. Three 
times, those points of order were tabled. With a majority of Senators 
squarely on record supporting the constitutional option, the Majority 
Whip, Senator Byrd, offered a successful leadership compromise to lower 
the cloture threshold. But for the constitutional option, the change 
would not have happened.
  In 1979, Majority Leader Byrd sought to make a variety of rules 
reforms, principally with regard to cloture. Introducing a rules change 
resolution, he beseeched Republicans for a time agreement to consider 
it. But he also expressly warned that, if an agreement were not 
forthcoming, he would use the constitutional option to change the 
rules. Minority Republicans did not threaten to shut the Senate down. 
Instead, they gave him an agreement, from which followed a lengthy and 
spirited debate. In the end, the cloture rule was amended--a change 
that happened under pressure from the constitutional option.
  From this history, one must conclude that the threat or use of the 
constitutional option was a critical factor in the creation and 
development of the Senate cloture rule.
  The constitutional option is also exercised every time the Senate 
creates a precedent. Four examples will illustrate the point. I have 
spoken already of Senator Byrd's 1980 precedent to bar debate on 
motions to proceed to nominations. In 1977, 1979, and 1987 he led a 
Senate majority to establish precedents that restricted minority rights 
and tactics in use at the time. We do not have to pass judgment on the 
purposes or value of any of these moves to note the following: three of 
these cases were decided on a party-line or near party-line vote. 
Moreover, every time Senator Byrd commanded a majority to make these 
precedents, minority rights were limited.
  We have been publicly threatened that if we act to end judicial 
filibusters, Democrats will fundamentally shut the Senate down. To 
follow their logic, if we expect to get the public's business done, we 
must tolerate upending Senate traditions and constitutional checks and 
balances.
  I would strongly prefer that matters not come to that. It would be 
far better for the Senate to have a vigorous and elevated debate about 
reforming the entire confirmation process, followed by a vote. I am 
ready for that debate and willing to schedule the floor time necessary 
to make it happen.
  Mr. President, I introduced the Frist-Miller cloture reform proposal 
nearly 2 years ago, on May 9, 2003. The problem of judicial filibusters 
had just taken root. At the time, I said that I was acting with regret 
but determination. Regret, because no one who loves the Senate can but 
regret the need to alter its procedures, even if to restore old 
traditions. Determination, because I was determined that the changes 
judicial filibusters had wrought in the Senate could not become 
standard operating procedure in this Chamber.
  Since then, the Senate majority has exercised self-restraint, hoping 
for a bipartisan understanding that would make procedural changes 
unnecessary. But if an extended hand is rebuffed, we cannot take 
rejection for an answer.
  Much is at stake in resolving the issue of judicial filibusters. 
Senator Mansfield spoke to this issue during the Fortas debate in 1968. 
His words are instructive now:

       I reiterate we have a constitutional obligation to consent 
     or not to consent to this nomination. We may evade that 
     obligation but we cannot deny it. As for any post, the 
     question which must be faced is simply: Is the man qualified 
     for the appointed position? That is the only question. It 
     cannot be hedged, hemmed or hawed. There is one question: 
     shall we consent to this Presidential appointment? A Senator 
     or group of Senators may frustrate the Senate indefinitely in 
     the exercise of its constitutional obligation with respect to 
     this question. In so doing, they presume great personal 
     privilege at the expense of the responsibilities of the 
     Senate as a whole, and at the expense of the constitutional 
     structure of the Federal government.

  Mr. President, exercising the constitutional option to restore Senate 
traditions would be an act of last resort. It would be undertaken only 
if every reasonable step to otherwise resolve this impasse is 
exhausted. At stake are the twin principles of separation of powers as 
well as checks and balances bedrock foundations for the Constitution 
itself. And at stake is our duty as Senators of advice and consent, to 
confirm a President's nominee or reject her, but at long last to give 
her a vote.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, the debate bounces back and forth, and 
we hear the complaints about the change in the system, one that has 
been in existence for some 200 years. It was formally adopted in the 
early part of the 20th century.
  I see the fact that the traditions and rules of the Senate are, 
frankly, in deep jeopardy. The current majority leader is threatening 
to annihilate over 200 years of tradition in this Senate by

[[Page 10841]]

getting rid of our right to extended debate. The Senate that will be 
here as a result of this nuclear option will be a dreary, bitter, far 
more partisan landscape, even though it obviously prevents us from 
operating with any kind of consensus. It will only serve to make 
politics in Washington much more difficult.
  One has to wonder, what happened to the claims that were made so 
frequently, particularly in the election year 2000, when then-candidate 
Bush, now President, talked about being a uniter, not a divider? It has 
been constantly referenced. ``I want to unite the American people, not 
divide them.''
  With this abuse of power, the majority is about to further divide our 
Nation with the precision of a sledgehammer.
  I want the American people to understand what is going to happen on 
the floor of the Senate if things go as planned. Vice President Cheney, 
whom we rarely see in this Chamber, is going to come here for the 
specific purpose of breaking existing rules for the operation of the 
Senate. He is going to sit in the Presiding Officer's chair and do 
something that, frankly, I don't remember in my more than 20 years in 
the Senate. He could intentionally misstate, if what we hear is what we 
are going to get, the rules of the Senate.
  Think about the irony. Vice President Cheney gets to help nominate 
Federal judges. Then when the Senate objects to the administration's 
choices, he is going to come over here and break our rules to let his 
judges through. Talk about abuse of power. The Founding Fathers would 
shudder at the thought of this scenario. It runs counter to the entire 
philosophy of our Constitution. Our Constitution created a system that 
they thought would make it impossible for a President to abuse his 
powers.
  Tomorrow, we are going to see what amounts to a coup d'etat, a 
takeover right here in the Senate. The Senate, just like society at 
large, has rules. We make laws here and we brag about the fact that 
this is a country of laws. We make laws here and expect Americans to 
follow them. But now the majority leader wants the Senate to make it 
easier for the Republican Senators to change the rules when you don't 
like the way the game is going. What kind of an example does that set 
for the country? Some may ask if we don't follow our own rules, why 
should the average American follow the rules that we make here?
  If the majority leader wants to change the rules, there is a legal 
way to do it. A controversial Senate rule change is supposed to go 
through the Rules Committee. Once it reaches the full Senate for 
consideration, it needs 67 votes to go into effect. But rather than 
follow the rules, Vice President Cheney will break the rules from his 
position as the Presiding Officer and change the rules by fiat. In 
other words, we will see an attempt to overthrow the Senate as we know 
it.
  Hopefully, some courageous Senators will step forward, vote their 
conscience, and put a stop to this once and for all. There are several 
people who disagree with their leader on the Republican side, and they 
have expressed their unwillingness to go through with this muscular 
takeover of the Senate.
  It is unbefitting the body. President Bush and the majority leader 
want to get rid of the filibuster because it is the only thing standing 
between them and absolute control of our Government and our Nation. 
They think the Senate should be a rubberstamp for the President. That 
is not what our Founders intended. It is an abuse of power, and it is 
wrong, whether a Republican or a Democrat lives in the White House.
  I say to the American people: Please, get past the process debate 
here. Let's not forget how important our Federal judges are. They make 
decisions about what rights we have under our Constitution. They make 
decisions about whether our education and environmental laws will be 
enforced. They make decisions about whether we continue to have health 
care as we know it. And sometimes, let us not forget, they may even 
step in to decide a Presidential election.
  The Constitution says the Senate must advise and consent before a 
President's judicial nominations are allowed to take the bench. It 
doesn't say advise and relent. It doesn't say consent first and then 
advise. As Democratic leader Harry Reid recently said: George Bush was 
elected President, not king.
  The Founding Fathers, Washington, Jefferson, and Madison, did not 
want a king. And that is why the Constitution created the Senate as a 
check on the President's power. With terrible ideas like Social 
Security privatization coming from the President these days, the 
American people are thankful that we are here to stop it.
  President Bush once famously said:

       If this were a dictatorship, it'd be a heck of a lot 
     easier, just so long as I'm the dictator.

  I am hopeful that President Bush was kidding when he said that. But 
the President's allies don't seem to be. They want the Senate to simply 
approve every Bush nominee regardless of the record.
  We have confirmed 208 of President Bush's nominees. But there are 
several we objected to because we believed they were too extreme. They 
voiced their opinions. This was not based on hearsay. It was based on 
things they said. They are too extreme to sit on the Federal bench.
  The Republican side of the aisle calls this the tyranny of the 
minority. But in the Senate, who is the minority and who is the 
majority? When you do the math on the current Senate, you will find 
that the majority is actually in the minority. The minority is the 
majority. Here is what I mean: Majority or minority. Current Senate: 
Republican caucus, 55 Senators, they represent 144,765,000 Americans. 
The Democratic caucus has less Senators, 45 as opposed to 55, and they 
represent some 148,336,000 Americans. So where is the minority here?
  In this chart each Senator is allotted one-half of his or her State's 
population, just to explain how we get there. What you find is that the 
minority in this body, the Democratic caucus, represents 3.5 million 
more people than does the majority. That is exactly why the Founding 
Fathers wanted to protect minority rights in the Senate because a 
minority of Senators may actually represent a majority of the people.
  How do you discard that and say: Well, we are the majority? You don't 
own the place. It is supposed to be a consensus government, 
particularly in the Senate.
  I make one last appeal to the majority leader: Don't take this 
destructive action.
  I want the American people to understand one thing: The big fight 
here is because the people who will get these positions have lifetime 
tenure. That means they could be here 20, 30, or 40 years.
  I have faith in the courage of my colleagues across the aisle. I hope 
they are going to put loyalty to their country ahead of loyalty to a 
political party.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. BAYH. Mr. President, I compliment my colleague from New Jersey 
for his eloquence and for his insight on the important role the 
filibuster has always played in building consensus in our society.
  It is unfortunate that we are here. It is unfortunate for this 
institution. It is unfortunate for the Members of this body. It is 
unfortunate for our country and for the political process that governs 
us all.
  Mr. President, let there be no illusions. There will be no winners 
here. All will lose. The victors, in their momentary triumph, will find 
that victory is ephemeral. The losers will nurture their resentments 
until the tables one day turn, as they inevitably will, and the 
recrimination cycle will begin anew.
  This sorry episode proves how divorced from the reality of most 
America Washington and the elites that too often govern here have 
become. At a time when Americans need action on health care, the 
economy, deficit, national security, and at a time when challenges form 
around us that threaten to shape the future, we are

[[Page 10842]]

obsessing about the rules of the Senate and a small handful of judges. 
At times like this, I feel more like an ambassador to a foreign nation 
than a representative of my home.
  This episode feeds the cynicism and apathy that have plagued the 
American people for too long. It brings this institution and the 
process that has brought us here into disrepute and low esteem. No 
wonder so few of our citizens take the time to exercise even the most 
elementary act of citizenship--the act of going to the polls to vote.
  Very briefly, let me say what this is all about, but let me begin by 
saying what it is most definitely not about. This is not about the 
precedents and history of this body. It has been interesting to sit 
silently and observe colleagues on both sides of the aisle make appeals 
to precedent and history, and both do so with equal passion. History 
will not provide an answer to this situation that confronts us. It is 
not about whether nominees get an up-or-down vote. In fact, it is about 
the threshold for confirmation that nominees should be held to, a 
simple majority or something more. It is not about whether the chief 
executive will have his way the vast majority of the time. This 
President has seen 96 percent, or more, of his nominees confirmed by 
this Senate, which is a high percentage by any reckoning. This debate 
is not about whether or not there are ideological or partisan tests 
being applied to nominees. I would assume that the 200-some nominees 
sent to us by this President are, for the most part, members of his 
party, that most share his ideology, and yet more than 200 have been 
confirmed. There are no litmus tests here.
  Mr. President, this is really about the value we, as a people, place 
upon consensus in a diverse society. It is about the reason that the 
separation of powers and the balance of powers were created by the 
Founders of this Republic in the first place. And it is ultimately 
about whether we recall our own history and the understanding of human 
nature itself, the occasional passions and excesses and deals of the 
moment that lead us to places that threaten consensus and the very 
social fabric of this Republic. It is about the value we place upon 
restraint in such moments.
  Is it unreasonable to ask more than a simple majority be required for 
confirmation to lifetime appointments to the courts of appeal or the 
Supreme Court of the United States, who will render justice and 
interpret the most fundamental, basic framing documents of this Nation? 
Should something more than a bare majority be required for lifetime 
appointments to positions of this importance and magnitude? I believe 
it should.
  Should we be concerned about a lack of consensus on such appointees 
who will be called upon to rule upon some of the most profound 
decisions which inevitably touch upon the political process itself? I 
think my colleague, Senator Lautenberg, mentioned the decision in Gore 
v. Bush. And if a sizable minority of the American people come to 
conclude that individuals who are rendering these verdicts are unduly 
ideological or perhaps unduly partisan themselves, will this not 
undermine the respect for law and the political process itself and 
ultimately undermine our system of governance that brought us here? I 
fear it might. Essentially, aren't these concerns--respect for the rule 
of law, respect for the independence of the judiciary, the importance 
of building consensus, and the need in times of crisis to lay aside the 
passions of the moment and understand the importance of restraint on 
the part of the majority--aren't these concerns more fundamentally 
important to the welfare of this Republic than four or five individuals 
and the identities of those who will fill these vacancies? The answer 
to that must be, unequivocally, yes.
  There are deeper concerns than even these, Mr. President. The real 
concerns that I have with regard to this debate have to do with the 
coarsening of America's politics. In the 6\1/2\ years I have been 
honored to serve in this body, there have been just two moments of true 
unity, when partisanship and rancor and acrimony were placed aside. 
First was in the immediate aftermath of the first impeachment of a 
President since 1868 and the feeling that perhaps we had gone too far. 
The second was in the immediate aftermath of 9/11, when our country had 
literally been attacked and there was a palpable understanding that we 
were first not Republicans or Democrats, but first and foremost 
Americans. It is time for us to recapture that spirit once again.
  Today, all too often, we live in a time of constant campaigns and 
politicking, an atmosphere of win at any cost, an aura of ideological 
extremism, which makes principled compromise a vice, not a virtue. 
Today, all too often, it is the political equivalent of social 
Darwinism, the survival of the fittest, a world in which the strong do 
as they will and the weak suffer what they must. America deserves 
better than that.
  I would like to say to you, Mr. President, and to all my colleagues, 
that you, too, have suffered at our hands. Occasionally, we have gone 
too far. Occasionally, we have behaved in ways that are injudicious. I 
think particularly about the President's own brother, who was brought 
to the brink of personal bankruptcy because he was pursued in an 
investigation by the Congress, not because he had plundered his savings 
and loan, but because he happened to be the President's brother. Each 
of us is to blame, Mr. President. More importantly, each of us has a 
responsibility for taking us to the better place that the American 
people have a right to deserve.
  There is a need for unity in this land once again. We need to 
remember the words of a great civil rights leader who once said: We may 
have come to these shores on different ships, but we are all in the 
same boat now.
  We need to remember the truth that too many in public life don't want 
us to understand; that, in fact, we have more in common than we do that 
divides us. We are children of the same God, citizens of the same 
Nation, one country indivisible, with a common heritage forged in a 
common bond and a common destiny. It is about time we started behaving 
that way. We need to remember the words of Robert Kennedy, who was in 
my home State the day Martin Luther King was assassinated. Indianapolis 
was the only major city that escaped the violence of that day, most 
attributed by Kennedy's presence in our city. He went into Indianapolis 
in front of an audience that was mostly minority citizens. He went up 
on a truck bed and said: I am afraid I have some bad news. Martin 
Luther King was killed today. A gasp went up from the audience. He 
said: For those of you who are tempted to lash out in anger and 
violence, I can only say that I too had a relative who was killed. He 
too was killed by a white man. Kennedy went on to say that what America 
needs today in these desperate times is not more hatred, or more anger, 
or more divisiveness; what America needs today is more unity, more 
compassion, and more love for one another.
  That was true in 1968; it is true today. The time has come for the 
sons and daughters of Lincoln and the heirs of Jefferson and Jackson to 
no longer wage war upon each other, but instead to take up again our 
struggles against the ancient enemies of man--ignorance, poverty, and 
disease. That is what has brought us here. That is why we serve.
  Mr. President, we need to rediscover the deeper sense of patriotism 
that has always made this Nation such a great place, not as Democrats 
or Independents, not as residents of the South, or the East, or the 
West, not as liberals or conservatives, or those who have no 
ideological compass, but as one Nation, understanding the threats that 
face us, determined to lead our country forward to better times.
  So I will cast my vote against changing the rules of this Senate for 
all of the reasons I have mentioned in my brief remarks and those that 
have been mentioned by speakers before me. But more than that, I will 
cast my vote in the profound belief that this is a rare opportunity to 
put the acrimony aside, put us on a better path toward more 
reconciliation, more understanding and cooperation for the greater 
good. And if in so doing, I and those of similar

[[Page 10843]]

mind can drain even a single drop of blood or venom from the blood that 
has coarsed through the body of this politic for too long, we will have 
done our duty to this Senate and to the Republic that sent us here, and 
that is reward enough for me.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. REED. Mr. President, first, I commend my colleague for his wise 
words. I thank Senator Bayh. This morning I had the occasion to meet 
with members of the press and the public at the Old State House in 
Providence, RI, the seat of Rhode Island Government for many years in 
the early days of this country. In fact, in 1790, George Washington and 
Thomas Jefferson enjoyed a banquet in that building to celebrate the 
Constitution of the United States--that careful balancing of majority 
power and minority rights.
  Unfortunately, these days in Washington, we are on the verge of 
upsetting that balance, of using majority power to undermine minority 
rights. In doing so, we are stilling the voices of millions of 
Americans--the millions of Americans that we represent--and not just 
geographically represent--the poor, the disabled, those who fight 
vigorously for environmental quality--all of those individuals will see 
their voices diminished and perhaps extinguished if we choose this 
nuclear option.
  The Senate was created to protect the minority. It was also clearly 
envisioned to serve as a check on Presidential power, particularly on 
the power to appoint judges. Indeed, it was in the very last days of 
the Constitutional Convention in 1787 that the Founding Fathers decided 
to move the power to appoint Federal judges from the control 
exclusively of the Senate to that of a process of a Presidential 
nominee with the advice and consent of the Senate.
  Indeed, in those last days, there was a shift of power, but not a 
surrender of power. This Senate still has an extraordinary 
responsibility to review, to carefully scrutinize the records of those 
individuals who would serve for a lifetime on our Federal courts.
  It is very important that the American people, when they come before 
the bar of Federal justice, stand before a judge of the United States, 
feel and know that that individual has passed a very high test, that 
that individual is not a Republican judge or a Democratic judge, not an 
ideologue of the right or left, but they received broad-based support 
in the Senate, and they stand not for party, but for law and the United 
States of America.
  We are in danger of upsetting that balance, of putting on the court 
people who are committed to an ideological plan. We are seeing people 
who are being presented to us who will, I think, undermine that sense 
of confidence that the American people must have in the judges they 
face in the courts of this land.
  Indeed, it is also ironic that today as we discuss this issue of 
eviscerating minority rights in the United States Senate, we hear our 
leaders talk about the necessity--the absolute necessity--of protecting 
the minority in Iraq. If you listen to the President, Secretary of 
State Rice, and others, they talk about how essential it is to ensure 
that there are real procedural protections for the Sunni minority in 
Iraq. In fact, what they are trying to do in Iraq they are trying to 
undo in America by stripping away those procedural protections that 
give the minority a real voice in our Government.
  In a recent National Review article by John Cullinan, a former senior 
policy adviser to the U.S. Catholic Bishops, he said it very well. He 
posed a question in this way:

       Will Iraq's overwhelming Shiite majority accept structural 
     restraints in the form of guaranteed protections for others? 
     Or does the majority see its demographic predominance as a 
     mandate to exercise a monopoly of political power?

  This, in a very telling phrase, sums it up:

       Does a 60-percent majority translate into 100 percent of 
     the political pie?

  The question we will answer today, tomorrow, and this week: Does the 
55-vote majority in the Senate translate to 100 percent of the 
political pie when it comes to naming Federal judges? Just as it is 
wrong in Iraq, I believe it is wrong here because without minority 
protections, without the ability of the minority to exercise their 
rights, to raise their voice, this process is doomed to a very 
difficult and, I think, disastrous end.
  We have today measures before us that threaten the filibuster, and I 
believe this is not the end of the story if this nuclear option 
prevails because I think the pressure by the interest groups that are 
pushing this issue--the far right who are demanding that this nuclear 
option be exercised--will not be satisfied by simply naming judges 
because that is just part of what we do. They will see in the days 
ahead, if this nuclear option succeeds, opportunities to strike out our 
ability to stop legislative proposals, to stop other Executive 
nominees. They will be unsatisfied and unhappy that in the course of 
debate and deliberation here, we are not willing to accept their most 
extreme views about social policy, about economic policy, about the 
world at large. The pressure that is building today will be brought to 
bear on other matters.
  So this is a very decisive moment and a very decisive step. I hope we 
can avoid stepping over it into the abyss. I hope we can maintain the 
protections that have persisted in this Chamber in one form or another 
for 214 years. The rules give Senators many opportunities to express 
themselves. It is not just the cloture vote. There are procedures to 
call committee hearings, to call up nominees that have been appointed, 
that also give Senators an opportunity to express themselves.
  I need not remind many people here that at least 60 of President 
Clinton's judicial nominees never received an up-or-down vote, and it 
is ironic, to say the least, that many who participated in that process 
now claim a constitutional right for an up-or-down vote on a Federal 
nominee to the bench.
  In fact, according to the Congressional Research Service, since 1945, 
approximately 18 percent of judicial nominees have not received a final 
vote. By that measure, President Bush has done remarkably well by his 
nominees--218 nominees, 208 confirmations, a remarkable record, which 
shows not obstruction but cooperation; which shows that this Senate, 
acting together, with at least 60 votes, but still exercising its 
responsibility to carefully screen judges has made decisions that by a 
vast majority favor the President's nominees. That is not a record of 
obstruction, that is a record of responsibility.
  Again, at the heart of this is not simply the interplay of Senators 
and politics. At the end of the day, we have to be able to demonstrate 
to the American public that if they stand before a Federal judge, they 
will be judged on the law; they will be judged by men and women with 
judicial temperament, who understand not only the law and precedent, 
but understand they have been given a responsibility to do justice, to 
demonstrate fairness.
  If we adopt this new procedure and are able to ram through 
politically, ideologically motivated judges, that confidence in the 
fairness of federal judges might be fatally shaken and that would do 
damage to this country of immense magnitude.
  The procedure that is being proposed is not a straightforward attempt 
to change the rules of the Senate because that also requires a 
supermajority. No, this is a parliamentary ploy, an end run around the 
rules of the Senate, a circumvention, and a circumvention that will do 
violence to the process here and, again, I think create a terrible 
example for the American public.
  We have difficult choices before us. There are those who suggest that 
it is somehow unconstitutional not to provide an up-or-down vote. Where 
were they when the 60 judges nominated by President Clinton were denied 
an up-or-down vote? No, the rules of the Senate prevailed at that time, 
as they should prevail at this time because the Constitution clearly 
states that each House may determine the rules of its proceedings. And 
we have done that in a myriad of ways and will continue to

[[Page 10844]]

do that. The right to unlimited debate in this Senate is one of the 
rights that has been protected by rules that have been in force for 
many years.
  We are involved in a debate that has huge consequences for the 
country and for the Senate. I believe this institution must remain a 
place where even an individual Senator can stand up and speak in such a 
way and at such length that he not only arouses the conscience of the 
country, but, indeed, he or she may be able to deflect the country away 
from a dangerous path.
  In the 1930s, President Roosevelt also had problems with the court 
system, he thought. He decided he would pack the courts. He would 
propose the expansion of the U.S. Supreme Court. Even though it was 
supported by the majority leader at that time, it was brought to this 
floor, and a small band of Senators stood up and spoke and convinced 
the public of the wrongness of that path and saved this country and 
saved President Roosevelt from a grave mistake.
  Today, once again, we are debating the future of our judicial system, 
and I believe without the filibuster, we will make grave mistakes about 
who goes on our courts and what will be the makeup of those courts.
  It might be that I have a particular fondness for the ability to 
represent those who are not numerous. I come from the smallest State, 
geographically, in the country, Rhode Island. We have two Senators, and 
we have two Members of the U.S. House of Representatives. But myself 
and my colleague, Senator Chafee, can stand up and speak and have the 
force of any of the larger States in this country. That is an essential 
part of our Federal system, an essential part of the Constitution that 
provided this wise balance between majority power and minority rights.
  We are in danger of seeing that power--I believe arrogantly 
displayed--potentially undercutting the rights of one Senator or two 
Senators or eight Senators to stand up, to speak truth to power, to 
challenge the views, to awaken the conscience of the country, to 
prevent the accumulation of so much power that we slowly and perhaps 
imperceptibly slide to a position where there is no effective 
challenge, and that would do great harm to this constitutional balance.
  Mr. President, this is a serious debate--a very serious debate. It is 
one in which I hope cooler heads prevail. It is one in which I hope we 
all step back and recognize that what we do will affect this 
institution and this country for a long time. I hope that we will 
refrain from invoking this nuclear option, that we recognize the 
traditions of the Senate not out of nostalgia but because they have 
served us well, and will continue to serve us well. They will ensure 
that we can speak not just as an exercise in rhetoric, but to have real 
effect in this body, the greatest deliberative assembly the world has 
ever known.
  Mr. President, with that, I yield the floor to my colleague from 
Michigan.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, President Harry Truman once said that the 
only thing new in the world is the history that you do not know. And so 
it is today with those who think this effort to amend the rules by 
breaking them, the nuclear option, is something new under the Sun.
  This is not the first time that it has been tried. Sadly, there have 
been a few other efforts to amend the rules by fiat, but, and this is 
the crucial point, the Senate has never done it.
  Whenever an effort was made to change the rule by fiat, it has been 
rejected by this body. There are procedures for amending the Senate's 
rules, and the Senate has always insisted that they be followed. In 
previous cases, the majority of Senators has stood up for that 
principle, often over the wishes of their own party's leader. It is my 
hope there will be a majority of such Senators tomorrow.
  I entered some of that history in the Congressional Record last week, 
and I will not repeat it all now. One incident stands out and bears 
repeating, and after doing so, I will add a second chapter to that 
incident.
  In 1949, Vice President Alben Barkley ruled that cloture applied to a 
motion to proceed to consideration of a bill. In other words, that rule 
XXII, which allows for the cutoff of debate, applied to a motion to 
proceed to consideration of a bill. The ruling was contrary to Senate 
precedent and against the advice of the Senate Parliamentarian and was 
made despite the fact that rule XXII, as it then existed, clearly 
provided only that the pending matter was subject to cloture.
  The Senate rejected Vice President Barkley's ruling by a vote of 46 
to 41. 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 Senate rules, 
by a vote of 63 to 23, adopted a change in rule XXII to include a 
motion to proceed.
  After that rule change, changed according to the procedures for 
amending rules, a supermajority could end a debate on the motion to 
proceed to a bill, for instance, as well as ending debate on the bill 
itself.
  Last week, I quoted the words of one of the giants of Senate history, 
Senator Arthur Vandenberg of Michigan about that debate. This is what 
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.

  Senator Vandenberg continued:

       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.''

  [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:

       When a substantive change is made in the rules by 
     sustaining a ruling by 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.

  And Senator Vandenberg added:

       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 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:

       This is a solemn decision--reaching far beyond the 
     immediate consequence--and it involves just 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?

  Senator Vandenberg eloquently summarized what is at the root of the 
nuclear option:

        . . . [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 that it 
     is written on, and this so-called ``greatest deliberative 
     body in the world'' is at the mercy of every change in 
     parliamentary authority.

  Mr. President, tonight, I do more than underscore the foresightful 
words of Senator Vandenberg, which are all the more significant 
because, as he made clear, he agreed that the Senate's cloture rule 
needed to be changed in the fashion proposed but not by using the 
illegitimate process proposed of amending our rules by fiat of a 
Presiding Officer.

[[Page 10845]]

  There was even more to it--and it is again directly relevant to the 
proceeding that is pending. The year was 1948, 1 year before the 
Barkley ruling which I just described. Senator Vandenberg was President 
pro tempore of the Senate and was presented with a motion to end debate 
on a motion to proceed to consideration of an antipoll tax bill.
  Senator Vandenberg ruled, as Presiding Officer, that the then-
language of rule XXII, providing a procedure for terminating debate for 
``measures before the Senate'' did not apply to cutting off debate on 
the motion to proceed to a measure, even though he thought that it 
should on the merits. So he ruled against what he believed in on the 
merits because of his deep belief in the integrity of the rules of the 
Senate. And in making that ruling, again while serving as the Presiding 
Officer, this is what Senator Vandenberg said.

       The President pro tempore [that's him] finds it necessary . 
     . . before announcing his decision, to state again that he is 
     not passing on the merits of the poll-tax issue nor is he 
     passing on the desirability of a much stronger cloture rule 
     in determining this point of order. The President pro tempore 
     is not entitled to consult his own predilections or his own 
     convictions in the use of this authority. He must act in his 
     capacity as an officer of the Senate, under oath to enforce 
     its rules as he finds them to exist, whether he likes them or 
     not. Of all the precedents necessary to preserve, this is the 
     most important of them all. Otherwise, the preservation of 
     any minority rights for any minority at any time would become 
     impossible.

  Senator Vandenberg continued:

       The President pro tempore is a sworn agent of the law as he 
     finds the law to be. Only the Senate has the right to change 
     the law. The President pro tempore feels that he is entitled 
     particularly to underscore this axiom in the present instance 
     because the present circumstances themselves bring it to such 
     bold and sharp relief.

  He further stated, again referring to himself:

       In his capacity as a Senator, the President pro tempore 
     favors the passage of this anti-poll-tax measure. He has 
     similarly voted on numerous previous occasions. In his 
     capacity as President pro tempore believes that the rules of 
     the Senate should permit cloture upon the pending motion to 
     take up the anti-poll-tax measure, but in his capacity as 
     President pro tempore, the senior Senator from Michigan is 
     bound to recognize what he believes to be the clear mandate 
     of the Senate rules and the Senate precedents; namely that no 
     such authority presently exists.
  So, again, Senator Vandenberg says that he believes the rules of the 
Senate should be changed to permit cloture on the pending motion to 
take up the antipoll-tax measure, but he is bound to recognize those 
rules. He cannot rule against what the rules clearly provide.
  Senator Vandenberg then went on to say:

       If the Senate wishes to cure this impotence it has the 
     authority, the power, and the means to do so. The President 
     pro tempore of the Senate does not have the authority, the 
     power, or the means to do so except as he arbitrarily takes 
     the law into his own hands. This he declines to do in 
     violation of his oath. If he did so, he would feel that the 
     what might be deemed temporary advantage by some could become 
     a precedent which ultimately, in subsequent practice, would 
     rightly be condemned by all.

  I want to emphasize Senator Vanden-
berg's point for our colleagues. In the view of that great Senator, it 
would have been a violation of his oath of office to change the Senate 
rules by fiat; to rule, as Presiding Officer, contrary to the words of 
the Senate rules, even though he personally agreed with the proposition 
that the rule needed to be changed. Senator Vandenberg's ruling was a 
doubly difficult one because it left the Senate with no means of 
cutting off debate on the motion to proceed to a measure. The Senate 
then voted to change the rule a year or so later, with Senator 
Vandenberg's support, to allow for cutting off debate on the motion to 
proceed.
  Senator Vandenberg's words and his example are highly relevant to us 
today. The majority leader's tactic to have the Presiding Officer by 
decree, by fiat amend our rules by exercising the so-called nuclear 
option is wrong. It has always been wrong. And the Senate has rejected 
it in the past.
  I want to simply read that one last line of Senator Vandenberg one 
more time:

       In his capacity as a Senator, the President pro tempore 
     [Senator Vandenberg] favors the passage of the anti-poll-tax 
     measure [before him].

  He has voted for it on similar occasions, he said.

       In his capacity as President pro tempore [he] believes the 
     rules of the Senate should permit cloture on the pending 
     motion to take up the . . . measure. But . . .

and this is the ``but'' which everybody in this Chamber should think 
about--

     in his capacity as President pro tempore the senior Senator 
     from Michigan is bound to recognize what he believes to be 
     the clear mandate of the Senate rules and the Senate 
     precedents; namely that no such authority presently exists.

  For him to rule as President pro tempore against the clear meaning of 
rule XXII and our rules would be to take the law, the rules, into his 
own hands. Senator Vandenberg was not about to do that.
  Rule XXII is clear. It takes 60 votes to end debate on any measure, 
motion, or other matter pending before the Senate. It does not make an 
exception for nomination of judges. The nuclear option is not an 
interpretation of rule XXII. It runs head long into the words of rule 
XXII and our rules. We in this body are the custodians of a great 
legacy. The unique Senate legacy can be lost if we start down the road 
of amending our rules by fiat of a Presiding Officer. We are going to 
be judged by future generations for what we do here this week. Arthur 
Vandenberg has been judged by history as well. If you want to know what 
the verdict of history is relative to Arthur Vandenberg, look up when 
we leave this Chamber at Arthur Vandenberg's portrait in the Senate 
reception room alongside of just six other giants for more than 215 
years of Senate history.
  As the present-day custodians of the great Senate tradition, we 
should uphold that tradition by rejecting an attempt to change the 
rules by arbitrary decree of the Presiding Officer instead of by the 
process in our rules for changing our rules. We must reject that 
attempt to rule by fiat instead of by duly adopted rules of the Senate. 
In that way, we will pass on to those who follow us a Senate that is 
enhanced, not diminished, by what we do here this week.
  Mr. ALEXANDER. Mr. President, I would like to take a moment to remind 
my colleagues across the aisle just what the Constitution has to say 
about the confirmation of judges.
  In a recent speech on the filibuster of President Bush's judicial 
nominees, I cited the actions of Senator Byrd when he was majority 
leader in 1979 as justification for the proposed constitutional option. 
However, the historical precedent for the actions the Minority is 
forcing the majority to take goes much further back than even the 
tenure of the Senator from West Virginia.
  The Senate has the power to confirm or deny the President's judicial 
nominees because the Constitution explicitly grants us that power. 
Article II, section 2 reads:

       He [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, which 
     shall be established by law.

  The President gets to nominate a judge, but only with the consent of 
the Senate is that judge actually appointed to serve.
  The Constitution is not totally clear on the surface as to what 
should constitute ``advice and consent'' by the Senate. But, 
fortunately, our Founding Fathers provided us with not just a 
Constitution but with a whole raft of writings that help us understand 
just what they were thinking when they drafted it. Those records 
confirm, I believe, that they were not concerned with a clash between 
political parties when they wrote the Constitution, but with the 
balance of power between the executive, legislative, and judicial 
branches.
  The history of the ``advice and consent'' clause suggests that the 
Founders were uncomfortable with either branch completely controlling 
the nomination of judges. As a result, they

[[Page 10846]]

found a compromise that sought to prevent either the executive or the 
legislative branch from dominating the nomination process.
  In the Constitutional Convention of 1787, there was lengthy 
discussion about who should appoint judges to the bench--the executive 
or the legislative branch.
  After extensive debate, the delegates to the Constitutional 
Convention rejected the possibility that the power to elect judges 
would reside exclusively with one body or another. On June 5, 1787, the 
Records of the Federal Convention record James Madison's thoughts on 
the issue:

       Mr. Madison disliked the election of the Judges by the 
     Legislature or any numerous body. Besides the danger of 
     intrigue and partiality, many of the members were not judges 
     of the requisite qualifications. . . . On the other hand he 
     was not satisfied with referring the appointment to the 
     Executive.

  Madison and others were concerned that vesting the sole power of 
appointment in the executive would lead to bias and favoritism.
  In the end, the Framers of the Constitution arrived at the language I 
just read. Should there be any doubt as to what was intended, Alexander 
Hamilton and others provided us with the Federalist papers. In 
Federalist 76, Hamilton discusses the nominations clause:

       . . . his [referring to the president] nomination may be 
     overruled: this it certainly may, yet it can only be to make 
     a place for another nomination by himself. The person 
     ultimately selected must be the object of his preference. . . 
     .

  Let me emphasize that--Hamilton says the person elected is ultimately 
the object of the president's preference. That suggests to me that it 
is not up to the Senate to demand that nominees be withdrawn and that 
others be nominated in accordance with the leadership in the Senate or 
the home State senators of the nominee. It sounds to me like the 
Framers intended for the president to choose and then the Senate to 
either reject or accept the nominee.
  However, I would argue that we don't even need to look to Hamilton to 
decide that the eventual appointee should be the object of the 
president's preference. Look where the power to nominate and appoint is 
placed in the Constitution--in article II, which sets out the powers of 
the President--not Congress.
  In Federalist 76, Hamilton goes on to describe the role of the 
Senate:

       To what purpose then require the cooperation of the Senate? 
     I answer, that the necessity of their concurrence would have 
     a powerful, though, in general, a silent operation. It would 
     be an excellent check upon a spirit of favoritism in the 
     President, and would tend greatly to prevent the appointment 
     of unfit characters from State prejudice, from family 
     connection, from personal attachment, or from a view to 
     popularity.

  Nowhere in that description of the Senate's role does it suggest that 
the Senate is supposed to reject nominations based on judges' views of 
the issues. It suggests that we are here to prevent the president from 
appointing only nominees from Texas, from appointing only friends or 
campaign contributors, or from otherwise abusing this power. It does 
not suggest that we should go through a lengthy process of trying to 
anticipate how a particular judge would rule on all future cases that 
may come before him or her.
  In fact, given that it was the intent of the Founders to create an 
appointments process that would allow for the appointment of judges who 
could serve as a check on the other two branches, I think they would be 
appalled to think that the Senate might be prepared to block any judges 
that will not rule on abortion or gay marriage or the reinsertion of a 
feeding tube in the way the Senate happens to favor at any one time. 
That sounds to me like anything but an independent judiciary branch. 
What's next? Will senators ask judges how they will rule on pending 
bills and support only those judges who will uphold the laws passed by 
this body?
  The role of the Senate having been established, I also want to 
address the mechanism by which we confirm these judges.
  The issue before us centers around whether the Constitution requires 
a simple majority or a supermajority to confirm judicial nominations. 
Once again, an analysis of the history suggests that it was the 
intention of the Framers to provide for only a simple majority of the 
Senate to confirm nominees.
  Look at the language of all of article II, section 2. In the clause 
immediately before the nominations clause, the Constitution 
specifically calls for two-thirds of the Senate to concur. In the 
nominations clause, there is no such provision.
  I don't believe that this 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. I find 
it hard to believe that in the meantime the Framers deliberately left 
this section vague.
  In fact, the debate around this section of the bill suggests that 
there was a specific discussion about how many Senate votes would be 
required to confirm judges. On July 18, 1787, James Madison proposed a 
plan that would allow judges to be confirmed with only one-third of the 
Senate. The record of the debate states that Madison felt that such a 
requirement would ``unite the advantage of responsibility in the 
Executive with the security afforded in the second branch against any 
incautious or corrupt nomination by the Executive.''
  So that sounds to me like the Framers viewed the role of the Senate 
in such a way as to consider the possibility that even less than a 
majority could be required to confirm a judge--because the Senate was 
there as backstop to prevent the appointment of political cronies and 
unfit characters. That is a far cry from the role my colleagues across 
the aisle would like for us to play today--that of co-equal to the 
president in the process and capable of demanding nominees that would 
rule in favor of their positions.
  Madison's language was not adopted, but the language that was adopted 
certainly cannot be read to require a supermajority. You don't have to 
just accept my interpretation of this language. Shortly after the 
Constitutional Convention, Justice Joseph Story--appointed to the 
Supreme Court by President James Madison--wrote his Commentaries on the 
Constitution and 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.

  Judges are to be confirmed by a majority vote. That is the bottom 
line. That decision was made long before the first Senate was gaveled 
into session and before any thought was given to rules of procedure and 
filibusters.
  You will hear during this debate ominous warnings from my colleagues 
across the aisle about ``the tyranny of the majority.'' You will hear 
that the Founders intended for the Senate to protect the rights of the 
minority. You will hear that our Founders created the Senate as a check 
on the popular whim of the day, as a place to slow down legislation and 
ensure that only the very best laws are passed. This is true. George 
Washington is said to have said of the Senate that ``we pour 
legislation into the senatorial saucer to cool it.''
  But the Founders did not create the Senate to give a minority of 
Senators the power to stop the President from appointing judges. Quite 
the opposite. As I have outlined, James Madison and Alexander Hamilton, 
two of the greatest minds that helped design our Constitution, put it 
down in writing for us that judges are to be confirmed by a majority 
vote.
  So it is not a new idea for the majority in the Senate to believe 
they should have the power to confirm the president's nominees. It is a 
very old idea that dates back to the founding of our country.
  It is a new idea, however, that a minority should have the power to 
deny the President's choice. The minority used the filibuster rule in 
the Senate 10 times in the last Congress to create this new idea that 
40 percent should be able to thwart the will of both the President and 
the majority. It is time for us to restore the Senate to the operation 
envisioned by the Founding Fathers more than 200 years ago that the 
President's judicial nominees should be able to be confirmed by 
majority vote.

[[Page 10847]]

  Mr. President, 2 years ago, my first speech as a Member of the Senate 
was on the topic of judges. I have spoken many times since then on this 
same subject. I would like to not talk about it again--other than to 
discuss the merits of a particular judge before having an up-or-down 
vote on confirmation.
  That is the way we have functioned in the past, it is the way the 
Founders meant for us to operate, and it is the way the American people 
should demand their elected representatives work together.
  Mr. LEAHY. Mr. President, I have made no secret how I regard the 
Republican Leader's bid for one-party rule through his insistence to 
trigger the ``nuclear option.'' I view it as a misguided effort that 
would undercut the checks and balances that the Senate provides in our 
system of government, undermine the rights of the American people, 
weaken the independence and fairness of the Federal courts, and destroy 
minority rights here in the Senate. In that regard, I thank the 
Senators who joined in the debate on Friday for their contributions, 
including in particular Senator Dodd, Senator Levin, Senator Jeffords, 
Senator Dayton, Senator Lincoln, Senator Lieberman and Senator Dorgan. 
Theirs were outstanding statements.
  The Senate is not the House. It was not intended to function like the 
House. The ``Great Compromise'' of the Constitutional Convention more 
than 200 years ago was to create in the Senate a different legislative 
body from the House of Representatives. Those fundamental differences 
include equal representation for each State in accordance with article 
I, section 3. Thus, Vermont has equal numbers of Senators to New York 
and Idaho, as compared to California. The Founders intended this as a 
vital check. Representation in the Senate is not a function of 
population or based on the size of a State or its mineral wealth.
  Another key difference is the right to debate in the Senate. The 
filibuster is quintessentially a Senate practice. James Madison wrote 
in Federalist No. 63 that the Senate was intended to provide 
``interference of some temperate and respectable body of citizens'' 
against ``illicit advantage'' and the ``artful misrepresentations of 
interested men.'' It was designed and intended as a check and to 
provide balance. In no way do I intend to disrespect the House of 
Representatives by these remarks. I respect the House. I respect its 
traditions. But it is the Senate that protects the minority and thereby 
serves a special role in our national government.
  Others have alluded to some valuable history lessons during the 
course of this debate. One of those lessons comes from 1937, the last 
time a President sought to pack the courts. President Franklin 
Roosevelt was coming off a landslide victory over Alf Landon. He 
attempted to pack the Supreme Court. Democrats--Senators from President 
Roosevelt's own party--stood up to him. In May 1937 the Senate 
Judiciary Committee criticized the Roosevelt court-packing plan as an 
effort by the executive branch to dominate the Judicial Branch with the 
acquiescence of the legislative branch. The Senate stood up for checks 
and balances and protected the independence of the judiciary. It is 
time again for the Senate to stand up, and I hope that there are 
Senators of this President's party who have the courage to do so, 
today.
  The Constitution nowhere says that judicial confirmations require 51 
votes. Indeed, when Vermont became the 14th State in 1791, there were 
then only 28 Members of the U.S. Senate. More recently, Supreme Court 
Justices Sherman Minton, Louis Brandeis, and James McReynolds were 
confirmed with 48 votes, 47 votes and 44 votes, respectively.
  As the Republican leader admitted in debate with Senator Byrd last 
week, there is also no language in the Constitution that creates a 
right to a vote for a nomination or a bill. If there were such a right, 
it was violated more than 60 times when Republicans refused to consider 
President Clinton's judicial nominees. According to the Congressional 
Research Service more than 500 judicial nominations for circuit and 
district courts have not received a final Senate vote between 1945 and 
2004--over 500--that is 18 percent of those nominations. By contrast, 
this President has seen more than 95 percent of his judicial 
nominations confirmed, 208 to date.
  The Constitution provides for the Senate to establish its own rules 
in accordance with article I, section 5. The Senate rules have for some 
time expressly provided for nominations not acted upon by the Senate--
``neither confirmed nor rejected during the session at which they are 
made''--being ``returned by the Secretary to the President.'' That is 
what happened to those 500 nominations over the last 60 years.
  What the Republican leadership is seeking to do is to change the 
Senate rules not in accordance with them but by breaking them. It is 
ironic that Republican Senators, who prevented votes on more than 60 of 
President Clinton's judicial nominees and hundreds of his executive 
branch nominees because one anonymous Republican Senator objected, now 
contend that the votes on nominations are constitutionally required.
  No President in our history, from George Washington on, has ever 
gotten all his judicial nominees confirmed by the Senate. President 
Washington's nomination of John Rutledge to be Chief Justice of the 
U.S. Supreme Court was not confirmed by the Senate. Senate Republicans 
now deny the filibusters they attempted against President Clinton's 
judicial nominees and they ignore the filibusters they succeeded in 
using against his executive branch nominees. They seek not only to 
rewrite the Senate's rules by breaking them but to rewrite history. I 
ask that a copy of the recent article by Professor John J. Flynn be 
included in the Record.
  Helping to fuel this rush toward the nuclear option is new vitriol 
that is being heaped both upon those who oppose a handful of 
controversial nominees and oppose the nuclear option, as well as on the 
judiciary itself. We have seen threats from House Majority Leader Tom 
Delay and others about mass impeachments of judges with whom they 
disagree. We have seen Federal judges compared to the KKK, called ``the 
focus of evil,'' and we have heard those supporting this effort quote 
Joseph Stalin's violent answer to anyone who opposed his 
totalitarianism by urging the formula of ``No man, No problem.'' Stalin 
killed those with whom he disagreed. That is what the Stalinist 
solution is to independence. Regrettably, we have heard a Senator 
trying to relate the recent rash of courtroom violence and the killings 
of judges and judges' family members with philosophical differences 
about the way some courts have ruled.
  This debate in the Senate last week started with rhetoric from the 
other side accusing disagreeing Senators of seeking to ``kill'' and 
``assassinate.'' Later in the week another member of the Republican 
leadership likened Democratic opponents of the nuclear option to Adolph 
Hitler. Still another Republican Senator accused Senators who oppose 
judicial nominees of discriminating against people of faith. This is in 
direct violation of the Republican leader's own statement at the outset 
of this debate that the rhetoric in this debate should ``follow the 
rules, and best traditions of the Senate.'' This has sunk too low and 
it has got to stop.
  It is one thing for those outside the Senate to engage in incendiary 
rhetoric. In fact, I would have expected Senators and other leaders to 
call for a toning down of such rhetoric rather than participating and 
lending support to events that unfairly smear Senators as against 
people of faith. Within the last several days, the Rev. Pat Robertson 
called Federal judges, quote, ``a more serious threat to America then 
Al Qaeda and the Sept. 11 terrorists'' and ``more serious than a few 
bearded terrorists who fly into buildings.'' He went on to proclaim the 
Federal judiciary ``the worst threat American has faced in 400 years 
worse than Nazi Germany, Japan and the Civil War.'' This is the sort of 
incendiary rhetoric that Republican Senators should be disavowing. 
Instead, they are adopting it

[[Page 10848]]

and exploiting it in favor of their nuclear option.
  It is base and it is wrong, and just the sort of overheated rhetoric 
that we should all repudiate. Not repeating such slander is not good 
enough. We should reject it and do so on a bipartisan basis. 
Republicans as well as Democrats should affirmatively reject such harsh 
rhetoric. It does not inspire; it risks inciting.
  Last week as we began this debate, the Judiciary Committee heard the 
testimony of Judge Joan Lefkow of Chicago. She is the Federal judge 
whose mother and husband were murdered in their home. She counsels: 
``In this age of mass communication, harsh rhetoric is truly dangerous. 
[F]ostering disrespect for judges can only encourage those that are on 
the edge, or on the fringe, to exact revenge on a judge who ruled 
against them.'' She urged us as public leaders to condemn such 
rhetoric. I agree with her. She is right and she has paid dearly for 
the right to say so.
  Those driving the nuclear option engage in a dangerous and corrosive 
game of religious McCarthyism, in which anyone daring to oppose one of 
this President's judicial nominees is branded as being anti-Christian, 
or anti-Catholic, or ``against people of faith.'' It continued over the 
last several weekends, it continued last week on the Senate floor. It 
is wrong; it is reprehensible. These charges, this virulent religious 
McCarthyism, are fraudulent on their face and destructive.
  Injecting religion into politics to claim a monopoly on piety and 
political truth by demonizing those you disagree with is not the 
American way. Injecting politics into judicial nominations, as this 
administration has done, is wrong, as well.
  I would like to keep the Senate safe and secure and in a ``nuclear 
free'' zone. The partisan power play now underway by Republicans will 
undermine the checks and balances established by the Founders in the 
Constitution. It is a giant leap toward one-party rule with an 
unfettered Executive controlling all three branches of the Federal 
Government. It not only will demean the Senate and destroy the comity 
on which it depends; it also will undermine the strong, independent 
Federal judiciary that has protected the rights and liberties of all 
Americans against the overreaching of the political branches.
  Our Senate Parliamentarian and our Congressional Research Service 
have said that the so-called nuclear option would go against Senate 
precedent. Do Republicans really want to blatantly break the rules for 
short-term political gain? Do they really desire to turn the Senate 
into a place where the parliamentary equivalent of brute force is what 
prevails?
  Just as the Constitution provides in article V for a method of 
amendment, so, too, the Senate rules provide for their own amendment. 
Sadly, the current crop of partisans who are seeking to limit debate 
and minority rights in the Senate have little respect for the Senate, 
its role in our government as a check on the executive, or its rules. 
Republicans are in the majority in the Senate and chair all of its 
committees, including the Rules Committee. If Republicans have a 
serious proposal to change the Senate rules, they should introduce it. 
The Rules Committee should hold meaningful hearings on it and consider 
it and create a full and fair record so that the Senate itself would be 
in position to consider it. That is what we used to call ``regular 
order.'' That is how the Senate is intended to operate, through 
deliberative processes and with all points of view being protected and 
being heard.
  That is not how the ``nuclear option'' will work. It is intended to 
work outside established precedents and procedures. Use of the 
``nuclear option'' in the Senate is akin to amending the Constitution 
not by following the procedures required by article V but by 
proclaiming that 50 Republican Senators and the Vice President have 
determined that every copy of the Constitution shall contain a new 
section--or not contain some of those troublesome amendments that 
Americans like to call the Bill or Rights. That is wrong. It is a kind 
of lawlessness that each of us should oppose. It is rule by the 
parliamentary equivalent of brute force.
  Never in our history has the Senate changed its governing rules 
except in accordance with those rules. I was a young Senator in 1975 
when Senate rule XXII was last amended. It was amended after cloture on 
proceeding to the resolution to change the rule was invoked in 
accordance with rule XXII itself and after cloture on the resolution 
was invoked in accordance with the requirement then and still in our 
rules that ending debate on a rule change requires the concurrence of 
two-thirds of the Senate. That was achieved in 1975 due in large part 
to the extraordinary statesmanship and leadership of Senator Byrd. And 
then the Senate adopted the resolution, which I supported. The 
resolution we adopted reduced the number of votes needed to end debate 
in the Senate from two-thirds to three-fifths of those Senators duly 
chosen and sworn. The Senate has operated under these rules to 
terminate debate on legislative matters and nominations for the last 30 
years. Before that the Senate's requirement to bring debate to a close 
was even more exacting and required more Senators to vote to end a 
filibuster. I say, again, that the change in the Senate rules was 
accomplished in accordance with the Senate rules and the way in which 
they provide for their own amendment.
  There has been a good deal of chest pounding on the other side of the 
aisle recently about the supposed sanctity of 51 votes to prevail, to 
end debate, to amend the Senate rules. Senators know that, in truth, 
there are a number of instances in which 60 votes are needed to 
prevail. These are not theoretical matters, but matters constantly used 
by Republican leaders to thwart ``majority'' votes on matters they do 
not like.
  The most common 60-vote threshold is what is required to prevail on a 
motion to waive a series of points of orders arising from the Budget 
Act and budget resolutions. In fact, just this year in the deficit-
creating budget passed by the Senate with Republican votes, they 
created new points of order that will require 60 votes in order to be 
overcome.
  There are dozens of recent examples, but a few should make this 
concrete. In March 2001, a majority of Senators voted to establish a 
Social Security and Medicare ``lockbox.'' That was a good idea. Had we 
been able to prevail then, maybe some of the problems being faced by 
the Social Security trust fund and Medicare might have been averted or 
mitigated. But even though 53 Senators voted to waive the point of 
order and create the lockbox, it was not adopted by the Senate.
  There is another example from soon after the 9/11 attacks. A number 
of us were seeking to provide financial assistance, training and health 
care coverage for aviation industry employees who lost their jobs as a 
result of the terrorist attacks. We had a bipartisan coalition of more 
than 50 Senators; it was, as I recall, 56. But the votes of 56 Senators 
were not sufficient to end the debate and enact that assistance.
  I also remember an instance in October 2001, when I chaired the 
Foreign Operations Subcommittee of the Senate Appropriations Committee. 
I very much wanted to have the Senate do our job and complete our 
consideration of the funding measure necessary to meet the commitments 
made by President Bush to foreign governments and to provide life-
saving assistance around the world. We voted on whether the Senate 
would be allowed to proceed to consider the bill--not to pass it, mind 
you, just to proceed to debate it. Republicans objected to considering 
the bill both times. We were required to make a formal motion to 
proceed to the bill. Then minority Senators, Republican Senators, 
filibustered proceeding to consideration of the bill. We were required 
to petition for cloture to ask the Senate to agree to end the debate on 
whether to proceed to consider the bill and begin that consideration. 
Fifty Senators voted to end the debate. Only 47 Senators voted to 
continue the filibuster. Still, the majority, with 50 votes to 47 votes 
did not prevail. Although we had a majority, we failed and the Senate 
did not make progress.
  It happened again, in the summer of 2002, a bipartisan majority here 
in the

[[Page 10849]]

Senate wanted to make progress on hate crimes legislation. The Senate 
got bogged down when the bill was filibustered. The effort to end the 
debate and vote up or down on the bill got 54 votes, 54 to 43. Fifty 
Senators voted to end the debate. Only 43 Senators voted to continue 
the filibuster. Did the majority prevail? No. The bill was not passed.
  More recently, in 2004, 59 Senators supported a 6-month extension of 
a program providing unemployment benefits to individuals who had 
exhausted their State benefits. Those 59 Senators were not enough of a 
majority to overcome a point of order and provide the much-needed 
benefits for people suffering from extensive and longstanding 
unemployment. The vote was 59 to 40, but that was not a prevailing 
majority.
  Around the same time in 2004 we tried to provide the Federal 
assistance needed to fund compliance with the Individuals with 
Disabilities Education Act. Although 56 Senates voted in support and 
only 41 in opposition, that was not enough to overcome a point of 
order. The vote was 56 to 41, but that was not a sufficient majority.
  Just last month, too recently to have been forgotten, there was an 
effort to amend the emergency supplemental appropriations bill to 
include the bipartisan Agricultural Jobs bill that Senator Craig has 
championed. That amendment was filibustered and the Senate voted 
whether to end debate on the matter. The vote was 53 in favor of 
terminating further debate and proceeding to consider this much needed 
and long overdue measure. Were those 53 Senators, Republicans and 
Democrats, enough of a majority to have the Senate proceed to consider 
an up or down vote on the AgJobs bill to help our local industries? No, 
here, again, the Republican leadership prevailed and prevented 
consideration of the bipartisan measure with only 45 votes.
  Every Senator knows, and others who have studied the Senate and its 
practices to protect minority rights, know that the Senate rules 
retained a provision that requires a two-thirds vote to end debate on a 
proposed change to the Senate rules. Thus, rule XXII provides that 
ending debate on ``a measure or motion to amend the Senate rules'' 
takes ``two-thirds of the Senators present and voting.'' If all 100 
Senators vote, that means that 67 votes are required to end debate on a 
proposal to amend the Senate rules. In 1975, for example, the vote to 
end debate on the resolution I have spoken about to change the Senate 
rules was 73 to 21.
  Every Senator knows that for the last 30 years, since we lowered the 
cloture requirement in 1975, it takes ``three-fifths of the Senators 
duly chosen and sworn,'' or 60 votes to end debate on other measures 
and matters brought before the Senate. Just recently there was a 
filibuster on President Bush's nomination to head the Environmental 
Protection Agency, Douglas Johnson. Sixty-one Senators voted to end 
that filibuster, to bring that debate to a close, and Mr. Johnson was 
confirmed. I voted for cloture and for Mr. Johnson. Despite Republican 
filibusters of Dr. Henry Foster to be the Surgeon General, Sam Brown to 
be an ambassador and others during the Clinton years, I considered the 
matter on its merits, as I always try to do, and voted to provide the 
supermajority needed for Senate action.
  So when Republican talking points trumpet the sanctity of 51 votes, 
Senators know that the Republican majority insists upon 60-vote 
thresholds all the time, or rather all the time that it is in their 
short-term interests.
  Finally, Mr. President, for purposes of the record, I need to set the 
record straight, again. I have done so periodically, including most 
recently on May 9, 2005, and toward the end of the last session of 
Congress on November 23, 2004.
  Unlike the frog in the water who fails to notice the heat slowly 
rising until he finds himself boiling, Democrats have been warning for 
years that the Republican destruction of Senate rules and traditions 
was leading us to this situation. The administration and its 
facilitators in the Senate have left Democrats in a position where the 
only way we could effectively express our opposition to a judicial 
nominee was through the use of the filibuster.
  We did not come to this crossroads overnight. No Democratic Senator 
wanted to filibuster, not a one of us came to those votes easily. We 
hope we are never forced by an aggressive Executive and compliance 
majority into another filibuster for a judicial nominee, again. The 
filibusters, like the confrontation that the Senate is being forced 
into over the last several days, are the direct result of a deliberate 
attack by the current administration and its supporters here in the 
Senate against the rules and traditions of the Senate. Breaking the 
rules to use the Republican majority to gut Senate rule XXII and 
prohibit filibusters that Republicans do not like is the culmination of 
their efforts. That is intended to clear the way for this President to 
appoint a more extreme and more divisive choice should a vacancy arise 
on the Supreme Court.
  This is not how the Senate has worked or should work. It is the 
threat of a filibuster that should encourage the President to moderate 
his choices and work with Senators on both sides of the aisle. Instead, 
this President has politicized the process and Senate Republicans have 
systematically eliminated every other traditional protection for the 
minority. Now their target is the Senate filibuster, the only tool that 
was left for a significant Senate minority to be heard.
  Under pressure from the White House, over the last 2 years, the 
former Republican chairman of the Judiciary Committee led Senate 
Republicans in breaking with longstanding precedent and Senate 
tradition with respect to handling lifetime appointments to the Federal 
bench. With the Senate and the White House under control of the same 
political party we have witnessed one committee rule after another 
broken or misinterpreted away. The Framer's of the Constitution warned 
against the dangers of such factionalism, undermining the structural 
separation of powers. Republicans in the Senate have utterly failed to 
defend this institution's role as a check on the President in the area 
of nominations. It surely weakens our constitutional design of checks 
and balances.
  As I have detailed over the last several years, Senate Republicans 
have had one set of practices to delay and defeat a Democratic 
President's moderate and qualified judicial nominations and a different 
playbook to rubberstamp a Republican President's extreme choices to 
lifetime judicial positions. The list of broken rules and precedents is 
long--from the way that home State Senators were treated, to the way 
hearings were scheduled, to the way the committee questionnaire was 
unilaterally altered, to the way the Judiciary Committee's historic 
protection of the minority by committee rule IV was repeatedly 
violated. In the last Congress, the Republican majority of the 
Judiciary Committee destroyed virtually every custom and courtesy that 
had been used throughout Senate history to help create and enforce 
cooperation and civility in the confirmation process.
  We suffered through 3 years during which Republican staff stole 
Democratic files off the Judiciary computers reflecting a ``by any 
means necessary'' approach. It is as if those currently in power 
believe that that they are above our constitutional checks and balances 
and that they can reinterpret any treaty, law, rule, custom or practice 
they do not like or they find inconvenient.
  The Constitution mandates that the President seek the Senate's advice 
on lifetime appointments to the Federal bench. Up until 4 years ago, 
Presidents engaged in consultation with home State Senators about 
judicial nominations, both trial court and appellate nominations. This 
consultation made sense: Although the judgeships are Federal positions, 
home State officials were best able to ensure that the nominees would 
be respected. The structure laid out by the framers for involving the 
Senate contemplated local involvement in the appointments, and for 
almost 200 years, with relatively few exceptions, the system worked. 
This administration, by contrast, rejects our advice but demands our 
consent.
  The sort of consultation and accommodation that went on in the 
Clinton

[[Page 10850]]

years is an excellent example. The Clinton White House went to great 
lengths to work with Republican Senators and seek their advice on 
appointments to both circuit and district court vacancies. There were 
many times when the White House made nominations at the direct 
suggestion of Republican Senators, and there are judges sitting today 
on the Ninth Circuit and the Fourth Circuit, in the district courts in 
Arizona, Utah, Mississippi, and many other places because President 
Clinton listened to the advice of Senators in the opposite party. Some 
nominations, like that of William Traxler to the Fourth Circuit from 
South Carolina; Barbara Durham and Richard Tallman to the Ninth Circuit 
from Washington; Stanley Marcus to the Eleventh Circuit from Florida; 
Ted Stewart to the District Court in Utah; James Teilborg to the 
District Court in Arizona; Allen Pepper to the District Court in 
Mississippi; Barclay Surrick to the District Court in Pennsylvania, and 
many others were made on the recommendation of Republican Senators. 
Others, such as President Clinton's two nominations to the Supreme 
Court, were made with extensive input from Republican Senators. For 
evidence of this, just look at Orrin Hatch's book ``Square Peg,'' where 
he tells the story of suggesting to President Clinton that he nominate 
Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court and of 
warning him off of other nominees whose confirmations would be more 
controversial or politically divisive.
  In contrast, since the beginning of its time in the White House, this 
Bush administration has sought to overturn traditions of bipartisan 
nominating commissions and to run roughshod over the advice of 
Democratic Senators. They changed the systems in Wisconsin, Washington, 
and Florida that had worked so well for so many years. Senators Graham 
and Nelson were compelled to write in protest of the White House 
counsel's flaunting of the time-honored procedures for choosing 
qualified candidates for the bench. They ignored the protests of 
Senators like Barbara  Boxer and John Edwards who not only objected to 
the unsuitable nominee proposed by the White House, but who, in 
attempts to reach a true compromise, also suggested Republican 
alternatives. Those overtures were flatly rejected.
  Indeed, the problems we face today in Michigan are a result of a lack 
of consultation with that State's Senators. The failure of the 
nomination of Claude Allen of Virginia to a Maryland seat on the Fourth 
Circuit shows how aggressive this White House has been. Now, the White 
House counsel's office will say it informs Democratic Senators' offices 
of nominations about to be made. Do not be fooled. Consultation 
involves a give and take, a back and forth, an actual conversation with 
the other party and an acknowledgement of the other's position. That 
does not happen.
  The lack of consultation by this President and his nominations team 
resulted in a predictable outcome--a number of instances where home 
State Senators withheld their consent to nominations. The next action, 
however, was unpredictable and unprecedented. The former Republican 
chairman of the Judiciary Committee went ahead, ignored his own perfect 
record of honoring Republican home State Senators' objections to 
President Clinton's nominees and scheduled hearings nonetheless. In 
defense of those hearings we have heard how other chairmen, Senators 
Kennedy and Biden, modified the committee's policies to allow for more 
fairness in the consideration of a more diverse Federal bench. That is 
not what the former Republican chairman was doing, however. His was a 
case of double standards--one set of rules and practices for honoring 
Republican objections to President Clinton's nominees and another for 
overriding Democratic objections to President Bush's.
  While it is true that various chairmen of the Judiciary Committee 
have used the blue-slip in different ways, some to maintain unfairness, 
and others to attempt to remedy it, it is also true that each of those 
chairmen was consistent in his application of his own policy--that is, 
until 2 years ago. When a hearing was held for Carolyn Kuhl, a nominee 
to the Ninth Circuit from California who lacked consent from both of 
her home State Senators, that was the first time that the former 
chairman had ever convened a hearing for a judicial nominee who did not 
have two positive blue slips returned to the committee. The first time, 
ever. It was unprecedented and directly contrary to the former 
Republican chairman's practices during the Clinton years.
  Consider the two different blue slips utilized by the former 
Republican Chairman: one used while President Clinton was in office, 
and one used after George W. Bush became the President. These pieces of 
blue paper are what then-Chairman Hatch used to solicit the opinions of 
home-state Senators about the President's nominees. When President 
Clinton was in office, the blue slip sent to Senators, asked their 
consent. On the face of the form was written the following: ``Please 
return this form as soon as possible to the nominations office. No 
further proceedings on this nominee will be scheduled until both blue 
slips have been returned by the nominee's home state senators.''
  Now consider the blue slip when President Bush began his first term. 
That form sent out to Senators was unilaterally changed. The new 
Republican blue slip said simply: ``Please complete the attached blue 
slip form and return it as soon as possible to the committee office.'' 
That change in the blue slip form marked the about-face in the 
direction of the policy and practice used by the former Republican 
chairman once the person doing the nominating was a Republican.
  I understand why Republican Senators want to have amnesia when it 
comes to what happened to so many of President Clinton's nominees. The 
current Republican chairman calculates that 70 of President Clinton's 
judicial nominees were not acted upon. One of the many techniques used 
by the former Republican chairman was to enforce strictly his blue slip 
policy so that no nominee to any court received a hearing unless both 
home State Senators agreed to it. Any objection acted as an absolute 
bar to the consideration of any nominee to any court. No time limit was 
set for returning the blue slip. No reason had to be articulated. In 
fact, the former Republican chairman cloaked the matter in secrecy from 
the public. I was the first Judiciary chairman to make blue slips 
public. During the Clinton years home State Senators' blue slips were 
allowed to function as anonymous holds on otherwise qualified nominees. 
In the 106th Congress, in 1999-2000, more than half of President 
Clinton's circuit court nominees were denied confirmation through such 
secret partisan obstruction, with only 15 of 34 confirmed in the end. 
Outstanding and qualified nominees were never allowed a hearing, an up 
or down vote in committee vote or on the Senate floor. These nominees 
included the current dean of the Harvard Law School, a former attorney 
general from Iowa, a former law clerk to Chief Justice Rehnquist and 
many others--women, men, Hispanics, African Americans and other 
minorities, an extensive collection of qualified nominees.
  Another longstanding tradition that was broken in the last two years 
was a consistent and reasonable pace of hearings. Perhaps it is not 
entirely accurate to say the tradition had been respected during the 
Clinton administration, since during Republican control months could go 
by without a single hearing being scheduled. But as soon as the 
occupant of the White House changed and a Republican majority 
controlled the committee that all changed. In January, 2003, one 
hearing was held for three controversial circuit court nominees, 
scheduled to take place in the course of a very busy day in the Senate. 
There was no precedent for this in the years that Republicans served in 
the majority and a Democrat was in the White House. In 6 years during 
the Clinton administration, never once were three circuit court 
nominees, let alone three very controversial ones, before this body in 
a single hearing. But it was the very first hearing

[[Page 10851]]

that was scheduled by the former Republican chairman when he resumed 
his chairmanship. That first year of the 107th Congress, with a 
Republican in the White House, and a Republican chairman of the 
Judiciary Committee, the Republican majority went from idling--the 
restrained pace it had said was required for Clinton nominees--to 
overdrive for the most controversial of President Bush's nominees.
  When there was a Democratic President in the White House, circuit 
nominees were delayed and deferred, and vacancies on the courts of 
appeals more than doubled under Republican leadership, from 16 in 
January 1995, to 33 when the Democratic majority took over midway 
through 2001.
  Under Democratic leadership we held hearings on 20 circuit court 
nominees in 17 months. Indeed, while Republicans averaged seven 
confirmations to the circuit courts every 12 months for President 
Clinton, the Senate under Democratic leadership confirmed 17 circuit 
judges in its 17 months in the majority--and we did so with a White 
House that was historically uncooperative.
  Under Republican control, the Judiciary Committee played fast and 
loose with other practices. One of those was the committee practice of 
placing nominees on markup agendas only if they had answered all of 
their written questions within a reasonable amount of time before the 
meeting. Last Congress that changed, and nominees were listed when the 
former chairman wanted them listed, whether they were ready or not. Of 
course, any nominee can be held over one time by any member for any 
reason, according to longstanding committee rules. By listing the 
nominees before they were ready, the former chairman ``burned the 
hold'' in advance, circumvented the committee rule, and forced the 
committee to consider them before they were ready. Another element of 
unfairness was thereby introduced into the process.
  Yet another example of the kind of petty changes that occurred during 
the last Congress were the bipartisan changes to the committee 
questionnaire that were unilaterally rescinded by the former Republican 
chairman. In April of 2003 it became clear that the President's 
nominees had stopped filling out the revised Judiciary Committee 
questionnaire we had approved a year and a half earlier with the 
agreement of the administration and Senate Republicans. It was a shame, 
because my staff and Senator Hatch's staff worked hard to revise the 
old questionnaire, which had not been changed in many years, and was in 
need of updating for a number of reasons. There were obsolete 
references, vague and redundant requests for information, and 
instructions sorely in need of clarification. There were also important 
pieces of information not asked for in the old questionnaire, including 
congressional testimony a nominee might have given, writings a nominee 
might have published on the Internet, and a nominee's briefs or other 
filings in the Supreme Court of the United States. We worked hard to 
include the concerns of all members of the committee, and we included 
the suggestions from many people who had been involved in the judicial 
nominations process over a number of years.
  Indeed, after the work was finished, Senator Hatch himself spoke 
positively about the revisions we had made. At a Committee business 
meeting he praised my staff for, ``working with us in updating the 
questionnaires.'' He noted: ``Two weeks ago, we resolved all remaining 
differences in a bipartisan manner. We got an updated questionnaire 
that I think is satisfactory to everybody on the committee, and the 
White House as well.'' I accepted his words that day.
  As soon as he resumed his chairmanship, he rejected the improvements 
we made in a bipartisan way, however. The former Republican chairman 
notified the Department of Justice that he would no longer be using the 
updated questionnaire he praised not so long before but, instead, 
decided that the old questionnaire be filled out. He did not notify any 
member of the minority party on the committee. Unlike the bipartisan 
consultation my office engaged in during the fall of 2001, and the 
bipartisan agreement we reached, the former Republican chairman acted 
by unilateral fiat without consultation.
  The protection of the rights of the minority in the committee was 
eliminated with the negation of the committee's rule IV, a rule 
parallel to the Senate filibuster rule. In violation of the rules that 
have governed that committee's proceedings since 1979, the former 
Republican chairman chose in 2003 to ignore our longstanding committee 
rules and he short-circuited committee consideration of the circuit 
court nominations of John Roberts and Deborah Cook.
  Since 1979 the Judiciary Committee has had this committee rule to 
bring debate on a matter to a close while protecting the rights of the 
minority. It may have been my first meeting as a Senator on the 
Judiciary Committee in 1979 that Chairman Kennedy, Senator Thurmond, 
Senator Hatch, Senator Cochran and others discussed adding this rule to 
those of the Judiciary Committee. Senator Thurmond, Senator Hatch and 
the Republican minority at that time took a position against adding the 
rule and argued in favor of any individual Senator having a right to 
unlimited debate--so that even one Senator could filibuster a matter. 
Senator Hatch said that he would be ``personally upset'' if unlimited 
debate were not allowed. He explained:

       There are not a lot of rights that each individual Senator 
     has, but at least two of them are that he can present any 
     amendments which he wants and receive a vote on it and number 
     two, he can talk as long as he wants to as long as he can 
     stand, as long as he feels strongly about an issue.

  It was Senator Bob Dole who drew upon his Finance Committee 
experience to suggest in 1979 that the committee rule be that ``at 
least you could require the vote of one minority member to terminate 
debate.'' Senator Cochran likewise supported having a ``requirement 
that there be an extraordinary majority to shut off debate in our 
committee.''
  The Judiciary Committee proceeded to refine its consideration of what 
became rule IV, which was adopted the following week and had been 
maintained ever since. It struck the balance that Republicans had 
suggested of at least having one member of the minority before allowing 
the chairman to cut off debate. That protection for the minority had 
been maintained by the Judiciary Committee for 24 years under five 
different chairmen--Chairman Kennedy, Chairman Thurmond, Chairman 
Biden, under Chairman Hatch previously and during my tenure as 
chairman.
  Rule IV of the Judiciary Committee rules provided the minority with a 
right not to have debate terminated and not to be forced to a vote 
without at least one member of the minority agreeing to terminate the 
debate. That rule and practice had until two years ago always been 
observed by the committee, even as we dealt with the most contentious 
social issues and nominations that come before the Senate. Until that 
time, Democratic and Republican chairmen had always acted to protect 
the rights of the Senate minority.
  Although it was rarely utilized, rule IV set the ground rules and the 
backdrop against which rank partisanship was required to give way, in 
the best tradition of the Senate, to a measure of bipartisanship in 
order to make progress. That is the important function of the rule. 
Just as we have been arguing lately about the Senate's cloture rule, 
the committee rule protected minority rights, and enforced a certain 
level of cooperation between the majority and minority in order to get 
anything accomplished. That was lost last Congress as the level of 
partisanship on the Judiciary Committee and within the Senate sunk to a 
new low when Republicans chose to override our governing rules of 
conduct and proceed as if the Senate Judiciary Committee were a minor 
committee of the House of Representatives.
  That this was a premeditated act was apparent from the debate in the 
committee. The former Republican chairman indicated that he had checked 
with the Parliamentarians in advance, and he apparently concluded that 
since

[[Page 10852]]

he had the raw power to ignore our committee rule so long as all 
Republicans on the committee stuck with him, he would do so. It was a 
precursor of what is happening now in the Senate.
  I understand that the Parliamentarians advised the former chairman 
that there is no enforcement mechanism for a violation of committee 
rules and that the Parliamentarians view Senate committees as 
autonomous. I do not believe that they advised him that he should 
violate our committee rules or that they interpreted our committee 
rules. I cannot remember a time when Senator Kennedy or Senator 
Thurmond or Senator Biden were chairing the committee when any of them 
would have even considered violating their responsibility to the Senate 
and to the committee and to our rules or that we needed an enforcement 
mechanism or penalty for violation of a fundamental committee rule.
  In fact, the only occasion I recall that the former Republican 
chairman was previously faced with implementing committee rule IV, he 
himself did so. In 1997, Democrats on the committee were seeking a 
Senate floor vote on President Clinton's nomination of Bill Lann Lee to 
be the assistant attorney general for civil rights at the Department of 
Justice. Republicans were intent on killing the nomination in 
committee. The committee rule came into play when in response to an 
alternative proposal by the Republican Chairman, I outlined the 
tradition of our Committee and said:

       This committee has rules, which we have followed 
     assiduously in the past and I do not think we should change 
     them now. The rules also say that 10 Senators, provided one 
     of those 10 is from the minority, can vote to cut off debate. 
     We are also required to have a quorum for a vote.
       I intend to insist that the rules be followed. A vote that 
     is done contrary to the rules is not a valid one.

  Immediately after my comment, the same former Republican Chairman 
abandoned his earlier plan and said:

       I think that is a fair statement. Rule IV of the Judiciary 
     Committee rules effectively establishes a committee 
     filibuster right, as the distinguished Senator said.

  With respect to that nomination in 1997, he acknowledged:

       Absent the consent of a minority member of the Committee, a 
     matter may not be brought to a vote. However, Rule IV also 
     permits the Chairman of the Committee to entertain a non-
     debatable motion to bring any matter to a vote. The rule also 
     provides as follows: `The Chairman shall entertain a non-
     debatable motion to bring a matter before the Committee to a 
     vote. If there is objection to bring the matter to a vote 
     without further debate, a rollcall vote of the Committee 
     shall be taken, and debate shall be terminated if the motion 
     to bring the matter to a vote without further debate passes 
     with ten votes in the affirmative, one of which must be cast 
     by the Minority.'

  Thereafter, he made the nondebatable motion to proceed to a vote and 
under the rules of the committee there was objection and a rollcall 
vote was taken on whether to end the debate. In that case, the former 
Republican chairman followed the rules of the committee.
  At the beginning of the last Congress, we reaffirmed our tradition 
and clarified that at the time the Senate was divided 50-50 and the 
committee was divided 50-50, the rules would be interpreted so that the 
minority was the party other than that of the chairman.
  But when the nominations of John Roberts, Deborah Cook and Jeff 
Sutton were being considered simultaneously, Democrats sought to 
continue debate on some of them and focus first on Sutton. We were 
overridden and the bipartisan tradition and respect for the rights of 
the minority ended when the former Republican Chairman decided to 
override our rights and the rule rather than follow it. He did so 
expressly and intentionally, declaring: ``[Y]ou have no right to 
continue a filibuster in this committee.'' He decided, unilaterally, to 
declare the debate over even though all members of the minority were 
prepared to continue the debate and it was, in fact, terminated 
prematurely. I had yet to speak to any of the circuit nominees and 
other Democratic Senators had more to say. He completely reversed his 
own position from the Bill Lann Lee nomination and took a step 
unprecedented in the history of the committee.
  I know the frustrations that accompany chairing the Judiciary 
Committee. I know the record we achieved during my 17 months of 
chairing that committee, when we proceeded with hearings on more than 
100 of President Bush's judicial nominees and scores of his executive 
nominees, including extremely controversial nominations, when we 
proceeded fairly and in accordance with our rules and committee 
traditions and practices to achieve almost twice as many confirmation 
for President Bush as the Republicans had allowed for President 
Clinton, and know how that record was mischarac-
terized by partisans. I know that sometimes a chairman must make 
difficult decisions about what to include on an agenda and what not to 
include, what hearings to hold and when. In my time as chairman I tried 
to maintain the integrity of the committee process and to be 
bipartisan. I noticed hearings at the request of Republican Senators 
and allowed Republican Senators to chair hearings. I made sure the 
committee moved forward fairly on the President's nominees in spite of 
the administration's unwillingness to work with us to fill judicial 
vacancies with consensus nominees and thereby fill those vacancies more 
quickly. But I cannot remember a time when Chairman Kennedy, Chairman 
Thurmond, Chairman Biden, or I, ever overrode by fiat the right of the 
minority to debate a matter in accordance without longstanding 
committee rules and practices.
  By bending, breaking and changing so many committee rules, 
Republicans crossed a threshold of partisan overreaching that should 
never have been crossed. As they passed each awful milestone, I urged 
the Republican leadership to reconsider, to turn back and to reinstate 
comity.
  That is the backdrop for this debate now before the Senate. An overly 
aggressive executive, added by a majority of the same political party 
in the Senate, acted last Congress to eliminate any meaningful role of 
the minority at the committee level and to eliminate our traditions, 
rules and practices that had protected the minority. This abuse of 
power and drive toward one-party rule by the Republican leadership has 
been building for years and is culminating this week through their 
unprecedented attack on the Senate's rules, role and history. For years 
now, Democratic Senators have been warning that the deterioration of 
Senate rules and practices that have protected minority rights was 
leaving us, the Senate, and the American people in a dire situation.
  This systematic and corrosive erosion of checks and balances has 
brought the Senate to this precipice. The filibuster in the Senate is 
the last remaining check on the abuses of one-party rule and the 
undermining of the fairness and independence of the federal judiciary. 
If the Senate is to serve its constitutional role as a check on the 
executive, its protection must be preserved. That is the decision the 
Senate will be facing tomorrow.

                      [From the Salt Lake Tribune]

         Hatch is Wrong About History of Judicial Appointments

                           (By John J. Flynn)

       The Constitution provides the president ``shall nominate, 
     and by and with the Advice and Consent of the Senate,'' 
     appoint judges and all other officers of the United States.
       Throughout most of the Constitutional Convention, the power 
     to appoint ambassadors, judges and other officers of the 
     United States was vested solely in the Senate. It was decided 
     late in the convention that the Senate should share the 
     appointment power with the president. Clearly, the framers 
     expected the Senate would have an equal say in appointments.
       Several nominations for positions in the executive branch 
     have been rejected over the past two centuries. Even more 
     nominations for life-time appointments to the judiciary have 
     been rejected because such nominations are for life and they 
     are nominations to an independent branch of government.
       For many years rejections were often carried out by the 
     informal process of senators withholding ``blue slips'' for 
     nominees from their home states. When a senator did not 
     return a blue slip approving the nominee, the nomination was 
     killed without a vote by the full Senate. It was a method for 
     insuring the president sought the ``advice'' of the Senate 
     and senators before nominating a person for the judiciary. 
     The result was that only qualified moderates were usually 
     appointed to the bench.

[[Page 10853]]

       Utah's Sen. Orrin Hatch ended the ``blue slip'' practice. 
     Sen. Hatch also began the practice of ``filibustering by 
     committee chairperson'' nominees proposed by President 
     Clinton. He simply refused to hold hearings on nominations 
     even where senators from the nominee's home state approved of 
     the nomination.
       More than 60 Clinton judicial nominees were not even 
     accorded the courtesy of a hearing during the Hatch 
     chairmanship of the Senate Judiciary Committee. They were 
     never given the chance for an ``up or down vote'' by the full 
     Senate. For Sen. Hatch to now object to the use of a 
     filibuster to halt nominations is less than disingenuous.
       Contrary to Sen. Hatch's representations in his Tribune op-
     ed piece last Sunday, Republicans led a filibuster of the 
     nomination of Justice Abe Fortas to the position of chief 
     justice in 1968. I watched the filibuster. When a cloture 
     vote failed to muster the necessary super majority to end the 
     debate after four days of the filibuster, Justice Fortas 
     asked to have his nomination withdrawn.
       The modem divisiveness in the Senate over judicial 
     nominations is directly traceable to the Senate's partisan 
     treatment of judicial nominations beginning with Justice 
     Fortas. The level of divisiveness has been increased by 
     President Bush. He threw down a partisan gauntlet by 
     renominating several controversial candidates not confirmed 
     by the prior Senate.
       The main qualifications of these candidates appears to be 
     their appeal to the religious right and their rigid 
     ideological views calling into question their capacity to 
     judge objectively contentious issues coming before the 
     courts.
       The Bush administration apparently believes that the Senate 
     should simply rubber-stamp nominees it selects without Senate 
     advice, much less the consent of a sizeable majority of the 
     Senate. Slogans like seeking the appointment of judges who 
     will not ``make law'' are trumpeted while President Bush 
     nominates persons who will ``make law''--law of the sort 
     advocated by his administration and its closed-minded right-
     wing supporters.
       Because of the nature of the job of judges, the framers of 
     the Constitution vested the Senate with a co-equal power over 
     the nomination and confirmation of persons for lifetime 
     appointments to the judiciary. The Senate's role is not a 
     subservient one of rubber-stamping anyone the president 
     nominates unless it is found that they are an ax murderer or 
     child molester.
       This was made clear in the Federalist Papers, numbers 76-
     78. Over the past two centuries, the Senate developed a 
     number of checks on both the president and members of the 
     Senate to prevent the president and a majority of the Senate 
     from running roughshod over those with substantial objections 
     to nominations made by the president.
       The result, until the first Bush administration and Sen. 
     Hatch's chairmanship of the Judiciary Committee, has been 
     negotiation and compromise over judicial nominees and the 
     appointment of qualified moderates to the bench for the most 
     part.
       The present dispute over whether to eliminate the 
     filibuster as a device to block nominees that a sizeable 
     block of senators finds objectionable presents a further and 
     dangerous erosion of the Senate's advice-and-consent 
     function.
       The Republicans hold a 55-to-45 majority of the seats in 
     the Senate. The Republican majority represents approximately 
     47 percent of the United States population, while the 45-
     member Democrat minority represent 53 percent of the 
     population. Senators representing less than a majority of the 
     population are advocating the complete ceding of the advice-
     and-consent function to any president with a numerical 
     majority of the membership of the Senate from his or her own 
     political party.
       The end result of the political campaign to further weaken, 
     if not eliminate, the advice and-consent function of the 
     Senate, will be to establish powers similar to those of the 
     English monarch in 1789. The founders expressly sought to 
     avoid this result by requiring the independent advice and 
     consent of senators in the nomination and confirmation of 
     important executive branch positions and lifetime 
     appointments to the bench.
       For Republicans to repudiate that role of the Senate, 
     especially after their sorry record in dealing with the 
     judicial nominees of President Clinton, is not only the 
     height of hypocrisy, but is a dangerous precedent they will 
     live to regret.
       This is not the time for political opportunism, 
     presidential arrogance or misleading oped pieces by Sen. 
     Hatch. It is a time for members of the Senate to begin to act 
     responsibly when carrying out their advice-and-consent 
     function rather than further erode an important institutional 
     check upon executive branch power and a majority party in the 
     Senate that does not represent a majority of the American 
     people.

  Mr. WARNER. Mr. President, I rise today in support of the nomination 
of Justice Priscilla Owen to serve as a judge on the United States 
Court of Appeals for the Fifth Circuit.
  When I evaluate individuals for Federal judgeships, I turn first to 
the U.S. Constitution. Article II, section 2 of the Constitution gives 
the President the responsibility to nominate, with the ``Advice and 
Consent of the Senate,'' individuals to serve as judges on the Federal 
courts. Thus, the Constitution provides a role for both the President 
and the Senate in this process. The President is given the 
responsibility of nominating, and the Senate has the responsibility to 
render ``advice and consent'' on the nomination.
  As I have fulfilled my constitutional responsibilities as a Senator 
over the past 27 years that I have had the honor of representing the 
citizens of the Commonwealth of Virginia in the U.S. Senate, I have 
conscientiously made the effort to work on judicial nominations with 
the Presidents with whom I have served.
  Whether our President was President Carter, President Reagan, 
President Bush, President Clinton, or President George W. Bush, I have 
accorded equal weight to the nominations of all Presidents, 
irrespective of party.
  I have always considered a number of factors before casting my vote 
to confirm or reject a nominee. The nominee's character, professional 
career, experience, integrity, and temperament are all important. In 
addition, I consider whether the nominee is likely to interpret law 
according to precedent or impose his or her own views. The opinions of 
the officials from the State in which the nominee would serve and the 
views of my fellow Virginians are also important. In addition, I 
believe our judiciary should reflect the broad diversity of the 
citizens it serves.
  These principles have served me well as I have closely examined the 
records of thousands of judicial nominees.
  With respect to the nominee currently before the Senate, I reviewed 
Justice Owen's record, met with her personally last week, and 
considered her qualifications in light of all of these aforementioned 
factors. And let me say, Mr. President, that I came away rather 
impressed with this nominee.
  You see, out of the thousands of nominees I have reviewed in the U.S. 
Senate, I have to say that Justice Owen has, without a doubt, one of 
the more impressive records.
  In 1975, she earned her bachelors degree, cum laude, from Baylor 
University. She then remained at Baylor to earn her law degree. While 
in law school, she served as a member of the Baylor Law Review. And, 
when she graduated from law school in 1977, she once again earned the 
honors of graduating cum laude.
  Upon graduating from law school, Justice Owen took the Texas bar 
exam. Not only did she pass it, she earned the highest score in the 
State on the December 1977 exam.
  Since passing the bar, she spent approximately 16 years practicing 
law in a distinguished Houston law firm. She started as a young 
associate and through her efforts as a commercial litigator she later 
became a partner at the firm.
  In 1994, Priscilla Owen was first elected to the Texas Supreme Court. 
Six years later, she overwhelmingly won a second term with 84 percent 
of the vote--a strong testament of public support given to her by the 
citizens of the State of Texas.
  But not only do the people of Texas overwhelmingly believe that Judge 
Owens is a highly qualified Federal judge, it is important to recognize 
that every major newspaper in Texas endorsed her reelection.
  She also has notable bipartisan support for her nomination, including 
three former Democrat judges on the Texas Supreme Court and the 
bipartisan support of 15 past Presidents of the State bar of Texas. The 
American Bar Association, often called the ``gold standard'' around 
here for evaluating judges, has unanimously deemed Justice Owen ``Well 
Qualified''--its highest rating.
  Despite all of this strong, bipartisan support, however, over the 
course of the past 4 years, we have been unable to get to an up-or-down 
vote in the Senate on Justice Owen's nomination. All the while, this 
outstanding nominee has been waiting patiently for the Senate to act on 
her nomination. In my view, such an exemplary nominee

[[Page 10854]]

should have been confirmed far sooner, especially since the seat for 
which she has been nominated has been dubbed by the Judicial Conference 
of the United States as a ``judicial emergency.''
  The fact of the matter is that Justice Priscilla Owen is a highly 
distinguished jurist with impeccable credentials. There is no doubt in 
my mind that she should be confirmed for this lifetime appointment.
  I look forward to voting in support of her nomination and encourage 
my colleagues to do the same.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. DeMint). The clerk will call the roll.
  The legislative clerk proceeded to call the roll
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, I have had the opportunity to review the 
agreement signed by the Senator from Virginia, the Senator from 
Arizona, the Senator from Nebraska, and 11 other Senators, an agreement 
that I have reviewed but to which I am not a party.
  Let me start by reminding the Senate of my principle, a simple 
principle, that I have come to this Senate day after day stating, 
stressing. It is this: I fundamentally believe it is our constitutional 
responsibility to give judicial nominees the respect and the courtesy 
of an up-and-down vote on the floor of the Senate. Investigate them, 
question them, scrutinize them, debate them in the best spirit of this 
body, but then vote, up or down, yes or no, confirm or reject, but each 
deserves a vote.
  Unlike bills, nominees cannot be amended. They cannot be split apart; 
they cannot be horse traded; they cannot be logrolled. Our Constitution 
does not allow for any of that. It simply requires up-or-down votes on 
judicial nominees. In that regard, the agreement announced tonight 
falls short of that principle.
  It has some good news and it has some disappointing news and it will 
require careful monitoring.
  Let me start with the good news. I am very pleased, very pleased that 
each and every one of the judges identified in the announcement will 
receive the opportunity of that fair up-or-down vote. Priscilla Owen, 
after 4 years, 2 weeks, and 1 day, will have a fair and up-or-down 
vote. William Pryor, after 2 years and 1 month, will have a fair up-or-
down vote. Janice Rogers Brown, after 22 months, will have a fair up-
or-down vote. Three nominees will get up-or-down votes with certainty 
now because of this agreement, whereas a couple of hours ago, maybe 
none would get up-or-down votes. That would have been wrong.
  With the confirmation of Thomas Griffith to the DC Circuit Court of 
Appeals we have been assured--though it is not part of this particular 
agreement--there will be four who will receive up-or-down votes. And 
based on past comments in this Senate--although not in the agreement--I 
expect that David McKeague, after 3 years and 6 months, will get a fair 
up-or-down vote. I expect that Susan Neilson, after 3 years and 6 
months, will get a fair or up-or-down vote. I expect Richard Griffin, 
after 2 years and 11 months, will get a fair up-or-down vote.
  Now, the bad news, to me, or the disappointing news in this 
agreement. It is a shame that well-qualified nominees are threatened, 
still, with not having the opportunity to have the merits of their 
nominations debated on the floor.
  Henry Saad has waited for 3 years and 6 months for the same courtesy. 
Henry Saad deserves a vote. It is not in this agreement. William Myers 
has waited for 2 years and 1 week for a fair up-or-down vote. He 
deserves a vote but is not in this agreement. If Owen, Pryor, and Brown 
can receive the courtesy and respect of a fair up-or-down vote, so can 
Myers and Saad.
  I will continue to work with everything in my power to see that these 
judicial nominees also receive that fair up-or-down vote they deserve. 
But it is not in this agreement.
  But in this agreement is other good news. It is significant that the 
signers give up using the filibuster as it was deployed in the last 
Congress in the last 2 years. The filibuster was abused in the last 
Congress. Mr. President, 10 nominees were blocked on 18 different 
occasions, 18 different filibusters in the last 2 years alone, with a 
leadership-led minority party obstruction, threatening filibusters on 
six others. That was wrong.
  It was not in keeping with our precedents over the past 214 years. It 
made light of our responsibilities as United States Senators under the 
Constitution. It was a miserable chapter in the history of the Senate 
and brought the Senate to a new low.
  Fortunately, tonight, it is possible this unfortunate chapter in our 
history can close. This arrangement makes it much less likely--indeed, 
nearly impossible--for such mindless filibusters to erupt on this floor 
over the next 18 months. For that I am thankful. Circuit court and 
Supreme Court nominees face a return to normalcy in the Senate where 
nominees are considered on their merits. The records are carefully 
examined. They offer testimony. They are questioned by the Senate 
Judiciary Committee. The committee acts, and then the Senate discharges 
its constitutional duty to vote up or down on a nominee.
  Given this disarmament on the filibuster and the assurance of fair 
up-or-down votes on nominees, there is no need at present for the 
constitutional option. With this agreement, all options remain on the 
table, including the constitutional option.
  If it had been necessary to deploy the constitutional option, it 
would have been successful and the Senate would have, by rule, returned 
to the precedent in the past 214 years. Instead, tonight, Members have 
agreed that this precedent of up-or-down votes should be a norm of 
behavior as a result of the mutual trust and good will in that 
agreement.
  I, of course, will monitor this agreement carefully as we move ahead 
to fill the pending 46 Federal vacancies today and any other vacancies 
that may yet arise during this Congress. I have made it clear from the 
outset that I haven't wanted to use the constitutional option. I do not 
want to use the constitutional option, but bad faith and return to bad 
behavior during my tenure as majority leader will bring the Senate back 
to the point where all 100 Members will be asked to decide whether 
judicial nominees deserve a fair up-or-down vote.
  I will not hesitate to call all Members to their duty if necessary. 
For now, gratified that our principle of constitutional duty to vote up 
or down has been taken seriously and as reflected in this agreement, I 
look forward to swift action on the identified nominations.
  Now, the full impact of this agreement will await its implementation, 
its full implementation. But I do believe that the good faith and the 
good will ought to guarantee a return to good behavior, appropriate 
behavior, on the Senate floor and that when the gavel falls on this 
Congress, the 109th Congress, the precedent of the last 214 years will 
once again govern up-or-down votes on the floor of the Senate.
  Now, this will be spun as a victory, I would assume, for everybody. 
Some will say it is victory for leadership, some for the group of 14. I 
see it as a victory for the Senate. I honestly believe it is a victory 
for the Senate where Members have put aside a party demand to block 
action on judicial nominees. They have rose to principle and then acted 
accordingly.
  I am also gratified with how clearly the Democratic leader has 
repeated over and over again during this debate how much he looks 
forward to working with us, and I with him, as we move forward on the 
agenda of the 109th Congress. Our relationship has been forged in part 
by circumstance, but it has been leavened by friendship. I look forward 
to working with him as we work together to move the Nation's agenda 
forward together.
  We have a lot to do, from addressing those vital issues of national 
defense and homeland security, to reinforcing a bill that hopefully 
will come very soon, addressing our energy independence,

[[Page 10855]]

our role as a reliable and strong trading partner, to an orderly 
consideration of all the bills before us about funding, and to put the 
deficit on the decline. I look forward to working with the Democratic 
leader on these and many other issues of national importance.
  Mr. President, a lot has been said about the uniqueness of this body. 
Indeed, our Senate is unique, and we all, as individuals and 
collectively as a body, have a role to play in ensuring its cherished 
nature remains intact. Indeed, as demonstrated by tonight's agreement, 
and by the ultimate implementation of that agreement, we have done just 
that.
  It has withstood mighty tests that have torn other governments apart. 
Its genius is in its quiet voice, not in any mighty thunder. The 
harmony of equality brings all to its workings with an equal stake at 
determining its future. In all that the Senate has done in the last 2 
years, I, as leader, have attempted to discharge my task to help 
steward this institution consistent with my responsibilities, not just 
as majority leader and not just as Republican leader, but also as a 
Senator from Tennessee.
  In closing tonight, with this agreement, the Senate begins the hard 
work of steering back to its better days, leaving behind some of its 
worst. While I would have preferred and liked my principle of up-or-
down votes to have been fully validated, for this Congress now we have 
begun our labors for fairness and up-or-down votes on judicial nominees 
with a positive course. And as all involved keep their word, it should 
be much smoother sailing.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Democratic leader is recognized.
  Mr. REID. Mr. President, this is a day I have waited for for a long 
time. We can put the 8 years of the Clinton administration behind us, 
the problems he had with the judges, over 60. We can put the first 4 
years of the Bush administration behind us. I have looked forward to 
this day for a long time. We are now in a new Congress and a new day, 
and it was made possible by virtue of some very, very unique 
individuals called Senators. One of them is here on the floor. The 
other, Senator Byrd, has left.
  Senator Byrd has served 53 years in the Congress, 47 in the Senate, 6 
in the House. The chairman of the most important committee, many say 
around here, the Armed Services Committee, Senator Warner of Virginia--
if there were ever a southern gentleman, it is the white-haired Senator 
from Virginia, John Warner. They worked for months with some of the 
youngsters here, Lindsey Graham, Mark Pryor, Ken Salazar, in coming up 
with this unique instrument that is only possible in the Senate.
  Now, Mr. President, I say that this is not a victory for the Senate, 
though it is. I say this is a victory for the American people. It is a 
victory for the American people because the Senate has preserved the 
Constitution of the United States. No longer will we have to be giving 
the speeches here about breaking the rules to change the rules. We are 
moving forward in a new day, a new day where the two leaders can work 
on legislation that is important to this country.
  Just as a side note, I can throw away this rumpled piece of paper I 
have carried around for more than a month that has the names McCain, 
Chafee, Snowe, Warner, Collins, Hagel, Specter, Murkowski, and Sununu. 
It is gone. I do not need that any more because of the bravery of these 
Senators. I am grateful to my colleagues, as I have said, who brokered 
this deal. And it was a brokerage, for sure.
  Now we can move beyond this time-consuming process that has 
deteriorated the comity of this great institution called the Senate. I 
am hopeful we can quickly turn to work on the people's business. We 
need to ensure that our troops have the resources they need to fight in 
Iraq and around the world and that Americans are free from terrorism. 
We need to protect retirees' pensions and long-term security. We need 
to expand health care opportunities for all families. We need to 
address rising gasoline prices and energy independence, and we need to 
restore fiscal responsibility and rebuild our economy so it lifts all 
American workers. That is our reform agenda. Together we can get the 
job done.
  It is off the table. People of good will recognize what is best for 
the institution. There are no individual winners in this. Individual 
winners? No. A little teamwork it took. And the American people should 
see this picture: Democrats and Republicans, some who have been here as 
long as Senator Byrd and Senator Warner, and some newcomers. Senator 
Salazar has been here for 5 months. He was part of this arrangement. 
People from red States, from blue States, they represent America. That 
is what happened tonight.
  Now, I would rather that something else had happened. I would rather 
that we had marched down here tomorrow and voted and we gave our high 
fives and we had won. We are not doing that. We have won anyway because 
this is a victory for the American people.
  I love this country, Mr. President. I have devoted my life to public 
service. I do not regret a day of it. I will have been in public 
service 41 years, and I said to my caucus that there has never been a 
more important issue I have dealt with in my political life than this 
issue that is now terminated. It is over with. And I feel so good. This 
will be the first night in at least 6 weeks that I will sleep 
peacefully. I have not had a peaceful night's rest in at least 6 weeks.
  I owe a debt of gratitude to these Senators who did what the two 
leaders could not do. I tried. It could not be done. But I hope, as we 
proceed in the days to come, that this is past history. Of course, 
there will be filibusters in the future. It is the nature of this 
institution. And that is the way it should be. We are not on a slippery 
slope to saying all the Presidential nominations are subject to a 
simple majority--to change the rules. We are not going to say that 
legislation is subject to a simple majority to change the rules. The 
filibuster is here. Mr. Smith can still come to Washington.
  I, through the Chair, extend my appreciation to the distinguished 
Republican leader for his patience, my many trips to his office, the 
few trips he made to my office, the many telephone calls, the 
BlackBerrys we exchanged. I have admiration for the good doctor from 
Tennessee. And I hope that we, working together, can do good things for 
this country. The country needs a Senate that works together.
  Again, Mr. President, the only person I see here who I can personally 
thank is the distinguished Senator from Virginia. I say, through the 
Chair, to you and the other 13 Senators, thank you very much.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, before he leaves the floor, I want to 
extend my congratulations to the majority leader for moving us to this 
point. Obviously, human nature, being what it is, had we not had a 
deadline, had the Priscilla Owen nomination not been brought up, had 
the debate not begun, we would not be where we are today. Senator 
Frist, in a tireless and persistent manner, has been working on this 
issue since shortly after the election last year, talking to Senator 
Reid.
  I also want to compliment the Democratic leader. I suspect there is 
no issue upon which Senator Frist and Senator Reid have had discussions 
more frequently than this one, going back for the last 6 months.
  I think there was bipartisan unhappiness in the Senate with the 
degree to which the Senate had deteriorated in the last Congress--this 
sort of random, mindless killing of nominees, 10 of them.
  I think what has happened tonight is a result not only of the 
steadfastness of our majority leader, Bill Frist, but also this coming 
together of the group of 14, led in large measure on our side by 
Senator McCain and Senator Warner from Virginia, one of the real true 
supporters of this institution. They have allowed us to sort of step 
back from the brink. As I read this memorandum of understanding, signed 
by the seven Democrats and seven Republicans, all options are still on 
the table

[[Page 10856]]

with regard to both filibusters and constitutional options. But what I 
also hear from these 14 distinguished colleagues is that they do not 
expect this to happen.
  We have marched back from the brink, hopefully taken the first step, 
beginning tomorrow with cloture on Justice Priscilla Owen, to begin to 
deal with judicial nominations the way we always have prior to the last 
Congress. Sure, there were occasional cloture votes, but they were 
always invoked. They were always for the purpose of getting the nominee 
an up-or-down vote.
  I want to thank Senator Warner and his colleagues for making it 
possible for us to get back to the way we operated quite comfortably 
for 214 years. So even though this is not an agreement that I would 
have made or that the majority leader would have made--because he and I 
both believe that all nominees who come to the floor are entitled to an 
up-or-down vote--it is certainly a good beginning. And three very, very 
distinguished nominees, whose nominations have been languishing for a 
number of years, are going to get an up-or-down vote. I think that is 
something we can all celebrate on a bipartisan basis.
  So I do indeed think this has been a good night for the Senate. And I 
am optimistic that for the balance of this Congress, we will operate 
the way we did for 214 years prior to the last Congress.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. I thank the Chair.
  Winston Churchill once said there is nothing more exhilarating than 
being shot at and missed. This evening I think Members of the Senate 
feel as I do----
  The PRESIDING OFFICER. The Senator will excuse me. Let me say that I 
need to recognize the Senator from Colorado.
  Mr. ALLARD. Mr. President, I inquire what the regular order might be. 
I was scheduled to speak at 8:15. I am not entirely sure on the regular 
order.
  The PRESIDING OFFICER. The majority controls the time until 9 
o'clock.
  Mr. ALLARD. Mr. President, my time right now as set aside for the 
majority is now being taken up by this discussion. I would like to have 
some time reserved for myself in the 30 minutes. Right now we have 6 or 
7 or 8 speakers lined up, and so I want to have an opportunity to make 
my views known at some point in time. I think we need to establish 
regular order, and if both parties have agreed that it goes back over 
to the other side at 9 o'clock, I would like to have that extended out 
so that when we reach 9 o'clock then I can speak from 9 to 9:30.
  Mr. DURBIN. Mr. President, I make the unanimous consent request that 
as soon as I finish speaking, and the other Senators who have sought 
recognition, the Senator from Colorado be recognized for 30 minutes.
  Mr. HARKIN. Mr. President, reserving the right to object, do I 
understand the order is that at 9 o'clock it comes back to this side; 
that is the order before the Senate right now?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. HARKIN. I did not hear the unanimous consent request of my friend 
from Illinois.
  Mr. DURBIN. I say through the Chair to my friend from Iowa, since 
there has been the interruption of the good news of this agreement, it 
was taken from the time of the Senator from Colorado, the majority, and 
I am trying to make sure his time is protected and that we can move all 
times to the point where the Senator from Colorado has his 30 minutes 
as soon as a few of us have spoken for just a few minutes and then we 
will continue.
  Mr. HARKIN. I ask unanimous consent at the conclusion of the 30 
minutes for the Senator from Colorado, the Senator from Iowa be 
recognized for 15 minutes.
  Mr. WARNER. Mr. President, reserving the right to object--I shall not 
object--I hope I could state a few words following the distinguished 
Senator from Illinois. I was scheduled to speak at 8 o'clock. My time I 
think has been put to good use, and I would be very pleased if I could 
make my remarks. So if I could follow the Senator from Illinois for not 
to exceed 4 minutes.
  Mr. SCHUMER. Mr. President, I just want to get the regular order. I 
was scheduled to speak at 9 o'clock on our side. Is that time preserved 
under the order?
  The PRESIDING OFFICER. The unanimous consent request that the Senator 
from Colorado have 30 minutes is also at 9 o'clock; is that correct?
  Mr. SCHUMER. All right, then, Mr. President, I ask unanimous consent 
that immediately after the Senator from Colorado, I be given the 15 
minutes I was going to be given at 9 o'clock.
  The PRESIDING OFFICER. Will the Senator from Illinois modify his 
request?
  Mr. DURBIN. Let me try to modify this appropriately. I ask unanimous 
consent that I speak for 5 minutes, that I be followed by Senator 
Warner who wishes to speak for 5 minutes, Senator Schumer for 5 
minutes, then Senator Allard for 30 minutes, and Senator Harkin 
following him for 15 minutes.
  The PRESIDING OFFICER. Is there objection?
  Mr. DURBIN. And after Senator Harkin, Senator Boxer for 15 minutes.
  Mr. KYL. Mr. President, reserving the right to object, since I was to 
speak at 9:30, I want to intervene. I will withhold depending upon what 
my colleagues say in the spirit of the latest agreement to see whether 
it is necessary to comment, and if not then I won't, but otherwise I 
will not object to the request that has been made.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I thank my colleagues.
  It is great to have these bipartisan agreements on the floor of the 
Senate. Maybe a new spirit is dawning. I am going to take a very few 
moments. As I said at the outset, Winston Churchill said there is 
nothing more exhilarating than being shot at and missed. Many of us in 
the Senate feel that this agreement tonight means some of the most 
cherished traditions of the Senate will be preserved, will not be 
attacked, and will not be destroyed. I think it is a time for 
celebration on both sides of the aisle.
  I salute one of my colleagues who is on the Senate floor this 
evening, Senator Warner of Virginia. I was asked by my friends back in 
Illinois not long ago, Senator Warner, tell us the Republican Senators 
you really respect, and I said John Warner is certainly one of those 
Senators. And I mean it sincerely. He has played a central role with 
Senator McCain, Senator Byrd, Senator Nelson, Senator Pryor, and so 
many others to bring us to this point.
  What I think is important is this: What we have seen as the emergence 
of resolving this issue is the emergence of people from the center who 
are dedicated to this institution and to our role in our government. I 
hope that continues over to other issues, and I hope the White House, 
as well as the leaders of both political parties, will try to work in 
that same spirit, the spirit of moving toward the center in moderation. 
I might say that the fact that the President has had 95 percent of his 
nominees to the bench approved by the Senate is an indication that if 
he will pick men and women more toward the center, even a little right 
of center, which we expect, that the President is not going to run into 
the resistance he did with a handful of nominees that we on the 
Democratic side thought went too far.
  I would like to say a word about Senator Harry Reid, who was in the 
Chamber just a moment ago. He spoke about sleepless nights. He and I 
talked about that for weeks. No one has spent more time worrying over 
this situation. He understood, as we all did, that this was not just 
another political issue, not just another political vote, but had Vice 
President Cheney come to that chair tomorrow and ruled as we heard he 
would under the nuclear option, the Senate would have been changed 
forever. This institution has been preserved. The nuclear option is off 
the table. We have been admonished, and I think appropriately so, not

[[Page 10857]]

 to misuse the filibuster, certainly when it comes to judicial 
nominees. That is good advice on both sides of the aisle under 
Democratic and Republic Presidents. I thank my colleagues, too, for 
bringing up some of the more contentious judges as part of this debate.
  Senator Reid went to Senator Frist weeks ago and said if this is 
about one or two judges, let us get that resolved. The Senate, its 
traditions and the constitutional issues at stake, are more important 
than any single judge in our land. Unfortunately, that negotiation 
between Senator Reid and Senator Frist did not lead to the culmination 
that we had hoped it would. But thanks to the leadership of colleagues 
on both sides of the aisle in good faith and good spirit on a 
bipartisan basis we have now moved ourselves beyond this crisis. Now 
the challenge is whether we can continue in this spirit: Will we 
tomorrow come together and start working on important issues such as 
retirement security, health care in America, the protection of our 
Nation, the support of our men and women in uniform, doing something to 
help with education? It is an important agenda that calls for the best 
on both sides of the aisle to work together.
  Again, let me thank Senator Warner for his leadership. I know he has 
been patient. A couple weeks ago, the Senator came over to me in the 
corner of the Chamber and said: We ought to work together to get this 
resolved.
  The Senator never quit. I admire him for that. I admire Senators on 
both sides of the aisle who brought us to this happy occasion.
  And at that point, Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. I thank my distinguished colleague from Illinois.
  Mr. President, when we opened our brief press conference upstairs, 
Senator McCain and Senator Ben Nelson spoke for the entire group. It 
was made clear our everlasting gratitude to the tireless efforts by 
Senator Frist and Senator Reid. The framework that we have created can 
be no stronger than the foundation on which it rests. And that 
foundation was laid by our two respective leaders, and, indeed, the 
whips, Senator McConnell and the Senator from Illinois. So we are not 
around this evening to try to take credit for anything. As a matter of 
fact, this was the most unusual gathering of Senators, and the manner 
in which it was conducted over a number of days--total humility among 
our group.
  We are proud of the leadership that Senator McCain gave, Senator Ben 
Nelson, Senator Robert Byrd, and others. But each Senator of the 14 was 
1, but 1 among equals, working toward a common goal. And no one 
articulated that goal time and time again in every meeting more than 
Senator Robert Byrd of West Virginia, who said it is the Nation, it is 
the institution of the Senate, and the third priority is our own 
career. So I thank him for that.
  I am proud to have been a part of this. I do hope that our wonderful 
Senate can now resume its long and distinguished service to our Nation 
over these 214 or 216 years, and I am very privileged to have been a 
small part of it at this time.
  I thank the Chair. I yield the floor.
  PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I thank the Chair. I thank all my 
colleagues. This will go down, hopefully, as a fine night in the 
Senate, in the U.S. Government. Armageddon has been avoided, and thank 
God for that. We in the Senate stepped right up to the precipice, but 
we did not fall in. This Republic works in amazing ways. And just as we 
were about to fall into an abyss of partisanship, of a destruction of 
the checks and balances that are the hallmark of this institution and 
this government, 12 Senators, many Democrats from red States, some 
Republicans from blue States, came together and created an agreement 
that I think serves this body well.
  Does it have everything that we would have wanted on this side? No. 
But it takes the nuclear option off the table. It says that filibusters 
may continue to be used, albeit in a restrained way--although many 
would argue 10 out of 218 was restrained in itself. It also asks the 
President to consult and that, to me, would be a key lesson of this 
agreement. The reason that we came so close to this Armageddon is 
because, in my judgment, we didn't have the typical consultation that 
previous Presidents--Clinton, Bush, Reagan--had with the Senate before 
nominating judges.
  The agreement widely states that it is the hope of the Senate--at 
least of the 12 signatories, but I am sure the other 88 Senators would 
join--that the President will begin to consult. That will not mean that 
judges will be so far from his political philosophy. He is the 
President and he gets to choose them. But it will mean that the kinds 
of partisan division that we have seen here is gone.
  Mr. President, what I most feared about the nuclear option was the 
destruction of the checks and balances that are the hallmark of this 
institution. Those checks and balances have been preserved tonight. But 
make no mistake about it, if we don't all make efforts, we could get 
right back to this point soon enough. It could be on the issue of 
judges or on the issue of something else. The poison of too much 
partisanship is still here, and it is hoped that this agreement will 
set a model where everyone can pull back, it is hoped that there will 
be consultation on judges, and it is hoped that this agreement will set 
the stage for a better Senate, a better Congress, and a better Republic 
in the future.
  Mr. President, this could become a historic night if the agreement 
that has been created keeps. We must preserve the checks and balances 
in the Senate. We must preserve the rights of the minority in the 
Senate. We must understand that a vote of 51 percent on the most major 
of decisions is not the right vote that is always called for. That has 
been the tradition in the Senate.
  The reason we say that our rules take two-thirds to change is exactly 
to make it hard to change the rules and force the proposed changer to 
seek a bipartisan coalition. That bipartisanship is what differentiates 
us from the other body. Those checks and balances differentiate us from 
most other governments. We must fight to keep them and tonight we have 
made a giant step in that direction.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. ALLARD. Mr. President, I thank the Senator from New York for his 
kind comments on the judicial nomination process. My thanks extend to 
all my colleagues tonight for their comments on the judicial nomination 
process and compromise negotiations.
  I rise to congratulate the 14 Senators who have indicated through a 
Memorandum of Understanding that they will no longer support a 
filibuster on 3 of President Bush's judicial nominees. This is a good 
first step toward a bipartisan resolution.
  My statement this evening is based on remarks that I prepared prior 
to the announcement of the judicial nomination compromise; however, the 
basic intent of my remarks has not changed even though the filibuster 
has been broken on three of the President's nominees. Tonight, I will 
address the qualifications of Priscilla Owen, and how important it is 
that we allow a yes or no vote on judicial nominees. All I ask for is 
an opportunity to have a yes or no vote on those judges that are 
pending before the Senate.
  I am concerned about the next step in the judicial nomination 
debate--where are we going to go from here when it comes to the 
filibuster? I join my colleagues on both sides of the aisle who wish to 
move forward and forget about finger pointing and blame--who voted for 
who, who voted for a filibuster and how many times did they vote 
against cloture. I just hope we do indeed move forward. I hope we will 
look at each judge that is before the Senate for confirmation and vote 
them up or down based on their qualifications. That is what our 
forefathers had in mind when the advise and consent.
  I join my colleagues in support of the nomination of Priscilla Owen, 
the Texas Supreme Court justice who was

[[Page 10858]]

first nominated to the Fifth Circuit Court of Appeals in May 2001 by 
President Bush. I urge my colleagues to support her confirmation and 
allow an up-or-down vote on her nomination. I hope that fairness 
prevails and that we do indeed proceed with a vote on her nomination, 
and it looks like that is indeed the way the events have unfolded this 
evening.
  I have had the opportunity to meet with Priscilla Owen personally. I 
don't know how many of my colleagues who oppose or who continue to 
oppose her have accepted her offer to visit with them, but I hope they 
will have the courtesy to meet her in person before deciding to refuse 
to offer her a fair up-or-down vote. If they do, they will quickly 
learn she is a person of integrity, humility, and possesses a keen 
understanding of the law.
  On a personal note, she is a wonderful human being. I was 
particularly impressed when she told me that growing up she hoped to be 
a veterinarian. As a veterinarian myself, you can understand why I was 
impressed. She spoke of growing up and participating in a family cattle 
ranching enterprise, helping her parents and grandparents during 
calving season, nursing and branding.
  There is something special about a person who has been kicked by a 
cow and swatted across the face with a dirty cow tail. It makes a 
person more real, more understanding of life and hard work. This is 
exactly the type of judge we need on the bench, one who understands 
real life, honest-living and hard-working people.
  Instead of defaming her, I wish my colleagues would get to know her 
so that they might recognize the legal skill and value she would bring 
to the United States as a member of the Fifth Circuit Court of Appeals. 
Priscilla Owen will uphold the law, not make the law. Some find this to 
be a problem. I find it to be a blessing.
  Priscilla Owen has served the law with distinction. A justice of the 
Texas Supreme Court since 1995, she received overwhelming approval from 
the people of Texas, 84 percent of whom voted to retain her service on 
the bench.
  Unlike many Members of the Senate, including myself, when it came 
time for the voters to decide whether or not she should remain on the 
bench, Ms. Owen received the endorsement of every major newspaper in 
the State of Texas. I ask, does that sound like someone who is too 
extreme?
  Priscilla Owen's life has not been limited to the law. She is a 
decent human being and dedicated community servant. She has worked to 
educate parents about the effect divorce has on children and worked to 
lessen the adversarial nature of legal proceedings when a marriage is 
dissolved. She works with the hearing impaired and organizations 
dedicated to service animals for those with disabilities. She teaches 
Sunday school and is committed to the poor and underprivileged.
  It is clear that she is qualified to serve on the Fifth Circuit 
Court. The American Bar Association unanimously rated Justice Owen 
``well qualified,'' its highest possible rating. She has the support of 
former Democrat justices on the Texas Supreme Court and 15 past 
presidents of the Texas State Bar.
  To say that she is not qualified is utterly ridiculous. Because her 
credentials are so outstanding, throughout this debate, the other side 
has relied on hyperbole and rhetoric, accusing her of being ``extreme'' 
in order to smear her nomination. So the question her nomination 
presents us, then, is whether she is extreme or qualified? The great 
thing about the Constitution is that it provides us with a mechanism to 
make this type of ``advice and consent'' determination on whether she 
is extreme or qualified--through a simple up-or-down vote.
  An up-or-down vote is a simple matter of fairness. Every judicial 
nominee that makes it out of the Judiciary Committee should receive an 
up or down vote. The filibuster is not in the Constitution. It is 
merely a parliamentary delay tactic that was relatively unused until 
modern times. In 214 years, never has a nominee with the majority of 
support of the United States Senate been denied a vote.
  Throughout the history of the United States, a nominee who clearly 
held the majority support of the Senate had never been defeated by the 
use of the filibuster--until now. During the last Congress those 
opposed to President Bush's nominees tried to establish a precedent by 
using the filibuster to block a nomination. Having witnessed what was 
taking place, I appealed to my colleagues to restore the fairness that 
this body and the American people deserve. That is why I am so excited 
about moving forward with 3 of the nominations, which includes 
Priscilla Owen, so we can have an up-or-down vote.
  Throughout this debate, I have consistently stated we must reach a 
compromise that allows an up-or-down vote on all nominees, while 
affording everybody an opportunity to be heard. This is not a partisan 
issue or flippant suggestion; it is simply a matter of fairness. If a 
nominee reaches the floor, then they should receive a vote--up or down. 
I don't believe there is anything wrong with providing a nominee an up-
or-down vote once they reach the floor.
  Some in this body act as if the filibuster has been used before to 
kill a judicial nominee. But such actions are simply misguided. Every 
nominee with a majority of support has received an up-or-down vote--
every nominee for over 200 years.
  I do not take the confirmation of judicial nominations lightly, nor 
do my colleagues. But we must not twist the confirmation process into a 
partisan platform.
  Our fundamental duty to confirm the President's nominees is not an 
easy task. It carries with it the weight and responsibility of 
generations--a lifetime appointment to a position that requires a deep 
and mature understanding of the law.
  We were elected to the Senate by people who believed we would 
accomplish our fundamental duties--as representatives of the people to 
say yes or no to the President's nominees.
  I believe Members have a right to express their opinions. I also 
believe that Members have a right to a vote and that it is wrong to 
deny others of their opportunity to vote on judicial nominations.
  The debate is not about numbers. It is not about percentages--how 
many judges that Republicans confirmed or how many judges Democrats 
have confirmed. To frame this debate as a numbers fight is not being 
fair to the American people. We were not sent to Congress to focus on a 
numerical count, but instead to carry out our constitutional 
obligations, in this instance the advice and consent clause.
  Some Senators have come to the floor to argue that the advice and 
consent clause doesn't mean that we actually vote on nominees. They 
argue that a vote is only needed to confirm the nominee, but that other 
tactics can be used to disapprove the nominee. Unfortunately, these 
other tactics that have been used to kill a nomination have resulted in 
the obstruction of our constitutional duties.
  To help address this point, I will turn to a recent article published 
in the National Review, which discusses the meaning of the advise and 
consent clause through the eyes of our country's Founders. The article 
notes the appointment clause is listed as an explicit power vested in 
the executive.
  The advise and consent obligation follows this clause but it is in 
the article addressing executive powers. It is not listed in the 
article addressing legislative powers. The author believes that this is 
instructive because it helps us understand that the Founders intended 
the President to play the main role in the nomination process, not the 
legislature. Had the Founders intended the legislature to be the 
fulcrum, they would have listed the advise and consent clause as a 
fundamental duty in the article addressing legislative powers.
  I ask unanimous consent to have that article printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page 10859]]



              [From National Review Online, May 17, 2005]

Breaking the Rules: The Framers Intended No More Than a Senate Majority 
                           To Approve Judges

                        (By Clarke D. Forsythe)

       The sharpening debate in the U.S. Senate over whether 
     Democrats can block President Bush's judicial nominations by 
     filibuster raises the basic question of the scope of the 
     Senate's constitutional role to give ``Advice and Consent.'' 
     What does it mean for the Senate to give ``Advice and 
     Consent'' for federal judges?
       Many people question whether changing the rules to allow 
     only a majority vote for confirmations is proper, or even 
     constitutional. However, the text of the Constitution, the 
     record of the Constitutional Convention of 1787, and Supreme 
     Court decisions all concur to show that the Constitution 
     intended no more than a majority ``vote'' for the Senate's 
     ``Advice and Consent'' for judicial appointments.
       The key provision is Article II, Section 2, called the 
     Appointments Clause: ``[The president] shall have Power, by 
     and with the Advice and Consent of the Senate, to make 
     Treaties, provided two thirds of the Senators present concur; 
     and he 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 . . .''
       There are three striking aspects of the Appointments 
     Clause, all of which are intentional and not accidental.
       First, it is instructive if not definitive that the 
     Appointments Clause is contained as an explicit power in 
     Article II, involving executive powers, not in Article I, 
     involving legislative powers.
       Second, only a simple majority is required. The clause on 
     the treaty power, after mentioning ``Advice and Consent,'' 
     requires concurrence by ``two thirds of the Senators 
     present.'' The clause on the appointment of ambassadors and 
     others, including Supreme Court justices--by contrast--does 
     not.
       This is reinforced by the contrast found in several other 
     provisions in the Constitution where a ``supermajority'' vote 
     is required. In Article I, section 3, two-thirds (of members 
     present) are required for Senate conviction for impeachment. 
     In Article I, section 5, two-thirds are required to expel a 
     member of either House. Article I, section 7 requires two-
     thirds for overriding a presidential veto. The fact that the 
     Constitution explicitly requires two-thirds in some contexts 
     indicates that the Senate's consent in Article II, section 2 
     is by majority vote when no supermajority vote is required.
       The general rule is that majorities govern in a legislative 
     body, unless another rule is expressly provided. Article I, 
     section 5, for example, provides that ``a Majority of each 
     [House] shall constitute a Quorum to do Business.''
       More than a century ago, the Supreme Court stated in United 
     States v. Ballin, a unanimous decision, that ``the general 
     rule of all parliamentary bodies is that, when a quorum is 
     present, the act of a majority of the quorum is the act of 
     the body. This has been the rule for all time, except so far 
     as in any given case the terms of the organic act under which 
     the body is assembled have prescribed specific limitations . 
     . . No such limitation is found in the federal constitution, 
     and therefore the general law of such bodies obtains.''
       Third, the particular process in the Appointments Clause--
     of presidential nomination and Senate ``consent'' by a 
     majority--was carefully considered by the Constitutional 
     Convention. A number of alternative processes for 
     appointments were thoroughly considered--and rejected--by the 
     Constitutional Convention. And this consideration took place 
     over several months.
       The Constitutional Convention considered at least three 
     alternative options to the final Appointments Clause: (1) 
     placing the power in the president alone, (2) in the 
     legislature alone, (3) in the legislature with the 
     president's advice and consent.
       On June 13, 1787, it was originally proposed that judges be 
     ``appointed by the national Legislature,'' and that was 
     rejected; Madison objected and made the alternative motion 
     that appointments be made by the Senate, and that was at 
     first approved. Madison specifically proposed that a 
     ``supermajority'' be required for judicial appointments but 
     this was rejected. On July 18, Nathaniel Ghorum made the 
     alternative motion ``that the Judges be appointed by the 
     Executive with the advice & consent of the 2d branch,'' 
     (following on the practice in Massachusetts at that time). 
     Finally, on Friday, September 7, 1787, the Convention 
     approved the final Appointments Clause, making the president 
     primary and the Senate (alone) secondary, with a role of 
     ``advice and consent.''
       Obviously, this question is something that the Framers 
     carefully considered. The Constitution and Supreme Court 
     decisions are quite clear that only a majority is necessary 
     for confirmation. Neither the filibuster, nor a supermajority 
     vote, is part of the Advice and Consent role in the U.S. 
     Constitution. Until the past four years, the Senate never did 
     otherwise. Changing the Senate rules to eliminate the 
     filibuster and only require a majority vote is not only 
     constitutional but fits with more than 200 years of American 
     tradition.

  Mr. ALLARD. Mr. President, had the Founders intended a 60-vote 
supermajority, they would have included the requirement in the 
Constitution the way they did on the treaty power clause. The clause on 
the treaty power, after mentioning ``advice and consent,'' requires 
concurrence by two-thirds of the Senators present. The clause on the 
appointment of ambassadors and others, including Supreme Court 
Justices, by contrast, does not.
  The author then pointed out several other provisions in the 
Constitution where a supermajority vote is required. In article I, 
section 3, two-thirds of Members present are required for Senate 
conviction for impeachment. In article I, section 5, two-thirds are 
required to expel a member of either House. Article I, section 7 
requires two-thirds for overriding a Presidential veto.
  The fact that the Constitution explicitly requires two-thirds in some 
contexts indicates that the Senate's consent in article II, section 2 
is by majority vote when no supermajority vote is required. The general 
rule is that majorities govern in a legislative body unless another 
rule is expressly provided.
  The article also cited a Supreme Court case noting that more than a 
century ago, in United States v. Ballin, that ``the general rule of 
parliamentary bodies is that, when a quorum is present, the act of a 
majority of the quorum is the act of the body. This has been the rule 
for all time, except so far as in any given case the terms of the 
organic act under which the body is assembled have prescribed specific 
limitations. . . . No such limitation is found in the Federal 
Constitution and, therefore, the general law of such bodies obtains.''
  In the author's own words: ``. . . the particular process in the 
Appointments Clause--of presidential nomination and Senate `consent' by 
a majority''--was carefully considered by the Constitutional 
Convention. A number of alternative processes for appointments were 
thoroughly considered--and rejected--by the Constitutional Convention. 
And this consideration took place over several months.
  The Constitutional Convention considered at least three alternative 
options to the final appointments clause: (1) placing the power in the 
President alone,(2) in the legislature alone, (3) in the legislature 
with the President's advice and consent.
  On June 13, 1787, it was originally proposed that judges be 
``appointed by the national Legislature,'' and that was rejected. 
Madison objected and made the alternative motion that appointments be 
made by the Senate, and that was at first approved. Madison 
specifically proposed that a ``supermajority'' be required for judicial 
appointments, but this was rejected.
  On July 18, Nathaniel Ghorum made the alternative motion ``that the 
Judges be appointed by the Executive with the advice & consent of the 
2d branch,'' following on the practice in Massachusetts at that time.
  Finally, on Friday, September 7, 1787, the Convention approved the 
final appointments clause, making the President primary and the Senate 
alone secondary with the role of advise and consent.
  I am no lawyer, but to me if a document consistently states when a 
supermajority vote is required and silent when it is not required, that 
they meant to write it that way and it was not a mere oversight no 
supermajority was required for the approval of judicial nominees.
  Clearly, a supermajority was never intended, but what was intended 
was an up-or-down vote, a fair nonpartisan up-or-down vote.
  If a Member of the Senate disapproves of a judge, then let them vote 
against the nominee. I encourage them to express their dissatisfaction 
and vote no on the nominee. But do not deprive those of us in the 
Senate who support a nominee of our right to a vote. Do not deny an up-
or-down vote entirely. Let's decide whether the Members of this body 
approve or disapprove of the nominees, and let's vote. Let's vote to 
show whether this body

[[Page 10860]]

believes the nominees are unfit for service or out of the mainstream. I 
believe they have majority support--majority support from the elected 
representatives of the people. But let's vote and find out.
  It is our vote--the right of each Member to collectively participate 
in a show of advise and consent to the President--that exercises the 
remote choice of the people who sent us to Congress.
  Our three-branch system of government cannot function without an 
equally strong judiciary. It is through the courts that justice is 
served, rights protected, and that lawbreakers are sentenced for their 
crimes.
  Unfortunately, one out of four of President Bush's circuit nominees 
have been subjected to the filibuster, the worst confirmation of 
appellate court judges since the Roosevelt administration. The minority 
cannot willingly refuse to provide an up-or-down vote on judicial 
nominees without acknowledging that irreparable harm may be done to an 
equal branch of government.
  The decision to vote up or down on a nominee or deny that vote 
entirely pits the Constitution against parliamentary procedure. That is 
the Constitution versus the filibuster. I urge my colleagues to put 
their faith in the founding document and not in a filibuster. To do 
anything else dishonors the Constitution and relegates it to a mere 
rule of procedure.
  I am pleased that we have reached a common ground on three of the 
judicial nominees. I am pleased that we have recognized our duties as 
Members of this body to uphold the Constitution. But I would ask my 
colleagues for fairness as we move forward for the rest of the session, 
for the rest of this Congress, to put partisan politics aside and to 
fulfill our advise and consent obligations on all nominations. As we 
move through the rest of the Congress, let's vote up or down and end 
this debate about filibusters with honor.
  Mr. President, I am excited that we can now move forward.
  I yield to the Senator from Iowa.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. ALLARD. Mr. President, it seems as though we need to do closing 
script, and if the Senator from Iowa will yield to me, I will be glad 
to do that formality.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.

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