[Congressional Record (Bound Edition), Volume 151 (2005), Part 8]
[Senate]
[Pages 10894-10900]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           JUDICIAL NOMINEES

  Mr. LEAHY. Mr. President, we have other Senators who wish to speak. 
There has been a lot that has gone on here tonight. I will speak 
further on this tomorrow. I thought on this occasion it would not be 
inappropriate to quote again from ``Profiles in Courage.''
  At the end of that book, President Kennedy included a eulogy. 
Interestingly enough, it was a eulogy in 1866 upon the death of Senator 
Solomon Foot, a predecessor of mine from Vermont. The eulogy for 
Senator Foot of Vermont was delivered by Senator William Pitt Fessenden 
of Maine. Senator Fessenden, like Senator Foot, was a Republican--in 
fact, all Senators from Vermont, every single Senator from Vermont, 
with the exception of one, has been a Republican. But Senator Fessenden 
would soon thereafter vote against his party to acquit President Andrew 
Johnson of charges of impeachment.
  Senator Fessenden was the first of seven courageous Republican 
Senators who voted his conscience before his country rather than party. 
Despite the pressures and whatever the consequences, he exercised his 
judgment as a Senator, consistent with his oath to do impartial 
justice.
  Let me just read what he said after the death of Senator Foot of 
Vermont:

       When, Mr. President, a man becomes a member of this body, 
     he cannot even dream of the ordeal to which he cannot fail to 
     be exposed;
       of how much courage he must possess to resist the 
     temptations which daily beset him;
       of that sensitive shrinking from undeserved censure which 
     he must learn to control;
       of the ever-recurring contest between a natural desire for 
     public appropriation and a sense of public duty;
       of the load of injustice he must be content to bear, even 
     from those who should be his friends;
       the imputations of his motives;
       the sneers and sarcasms of inmorance malice;

     all the manifold injuries which partisan or private 
     malignity, disappointed of its objects, may shower upon his 
     unprotected head.
       All this, Mr. President, if he retained his integrity, he 
     must learn to bear unmoved, and walk steadily onward in the 
     path of duty, sustained only by the reflection that time may 
     do him justice, or if not, that after all his individual 
     hopes and aspirations, and even his name among men, should be 
     of little account to him when weighed in the balance against 
     the welfare of a people of whose destiny he is a constituted 
     guardian and defender.

  A number of our Senate colleagues today from both parties stood up to 
keep the Senate from making a terrible, an irreparable mistake--
terrible and irreparable because, for the first time in over 200 years, 
the Senate would no longer have a check and balance. For the first time 
in over 200 years, the Senate would no longer be able to protect the 
rights of the minorities.
  I applaud them for this. As I said, I will speak more tomorrow. I 
thank my distinguished colleague and dear friend from Iowa for letting 
me go ahead.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, I am very pleased to hear about the 
bipartisan agreement that preserves minority rights in the Senate, that 
preserves the right of the minority to extended debate, that preserves 
the checks and balances that our Founding Fathers prized so highly.
  My hope now is that after weeks of distraction, after weeks during 
which the majority leader threatened the nuclear option, to sort of 
blow up the Senate, now we hopefully can return to the people's 
business.
  I thank the 14 Senators, I guess 7 Democrats and 7 Republicans, who 
worked so hard to bring us back from the brink and get us away from 
this nuclear option that really would have destroyed the smooth 
functioning of the Senate.
  But we have been talking for weeks and weeks about this, about this 
nuclear option. People I have talked to have been absolutely astonished 
that the Senate has been distracted by these nuclear option threats. 
They keep asking me why haven't we been addressing the real concerns 
that keep Americans up at night: worrying about their jobs, their 
health care and their families' future. Why is the Senate spending its 
time on this narrow ideological agenda and ignoring the people's 
business?
  The majority leader, the Senator from Tennessee, had planned to keep 
the Senate up through the night tonight as a prelude to detonating this 
nuclear option.
  In anticipation of that, early yesterday, on my Senate Web site and 
through the news outlets, I informed the people of my State of Iowa I 
would be coming to the floor late this evening to share their concerns 
and their worries, the things that keep them up at night.

[[Page 10895]]

  The response has been overwhelming. I said that my Des Moines office 
and my Washington offices would be open all night, answering calls and 
receiving e-mails. I encouraged Iowans to keep the calls and e-mails 
coming all through the night and to let me know what keeps them up at 
night. I had planned to spend as much time as possible answering the 
phones myself.
  Since noon today, we have received over 600 e-mails and 500 phone 
calls. I thank all the Iowans who contacted me by e-mail or by phone. I 
had planned to read as many as I could tonight, during the long night 
that we were supposed to be here. Obviously, that is not going to 
happen. But we have been inundated with messages from Iowans telling us 
what they want the Senate to stay up all night working on. Believe me, 
detonating the nuclear option is not on their list.
  To the contrary, my fellow Iowans are deeply concerned about 
``kitchen table'' issues such as health care, job security, pension 
security, education, increasing the minimum wage, the war in Iraq, the 
price of gasoline.
  Sherry, in Sioux City e-mailed me to make two points.
  One, I do not like the GOP violating the rules and violating the 
Founding Fathers' checks and balances; and, two, I am retiring from 
teaching tomorrow and I am afraid most of my students will not be in 
good enough jobs to afford their own health care. Plus I myself must 
wait 24 months for health coverage because I don't qualify for 
Medicare.

  Linda in Des Moines sent the following e-mail:

       Mr. Harkin, thank you for asking. I will tell you what 
     keeps me up at night. The fear I will get sick and not be 
     able to work. I have to work some overtime every week right 
     now to just get by. I have not been able to accumulate a 
     savings to fall back on. What with more health care costs my 
     employer is putting on me, higher gas prices, higher grocery 
     costs. I have to run as fast as I can to just barely keep up.

  Patricia in West Branch, IA, sent this e-mail:

       I work two jobs, my husband 3, to send our son to college. 
     We all need some relief from this worry. Education, health 
     care, the poor who do not have homes or food. So let's worry 
     about the real issues here.

  Patty in Olin, IA, e-mailed me with what keeps her up at night:

       Two Things: Gas and College 1.

  Shirley in Eldridge, IA, e-mailed me with the following brief 
message:

       I am bothered about rising health costs for retirees. I am 
     concerned about the rising cost of gasoline and the rising 
     cost of a college education. I am concerned that my 
     grandchildren may not have the same opportunities that I and 
     my children had to obtain an advanced degree.

  This is the message that Al in Hinton, IA, sent me:

       Health Insurance--I am seeing many educators who want to 
     retire, some who need to retire, however they cannot, due to 
     the cost of health care. They have worked 30 years and must 
     keep working until age 65. After 30 years in the classroom, 
     an individual has earned the right to retire. Please address 
     health care, this is the National Crisis.

  Sara in Anamosa, IA, shared a broad range of worries:

       Dear Senator Harkin: I am a teacher who is concerned that 
     American High Schools are not given the funds needed to train 
     our students to compete in a global economy.

  Sue, a librarian in Iowa City, told me:

       I am concerned about the rising cost of a college 
     education. . . . I worry that the divide between those who 
     can afford college and those who cannot is growing ever 
     wider. I don't think our economy will be well-served by 
     making an education an opportunity that only the wealthy can 
     afford.

  Susan from Des Moines send me the following e-mail:

       The fear that the Social Security system is going to be 
     changed keeps me up at night. . . . My worry is not just for 
     myself but everyone affected by the proposed revisions in the 
     social security system.

  Barbara from Mount Vernon, IA, had this to say:

       What keeps me up at night is how I'm going to pay my bills 
     and still provide care for the kids. I serve at my job at 
     Four Oaks, Inc. I'm a youth counselor at 4 Oaks serving 
     children in a residential setting who have been abused or 
     neglected. Some of the needs these children are the need for 
     deep relationships with adults. With the high turnover in 
     facilities such as mine, children go through hardship once 
     again. Staff needs to move on to other fields where the pay 
     will meet their day to day obligations. As a supervisor I do 
     stay up at night worrying about the children and my own 
     financial needs.

  Shannon from Garwin, Iowa, sent me this message:

       Dear Senator Harkin. I can easily tell you what keeps me up 
     at night. Thank you for asking. I am a 30 year old Registered 
     Nurse. . . . I have a very expensive health insurance plan 
     that goes up every year. It does not cover my family, me 
     only. My husband works as an electrician and has no 
     insurance. Our children have health insurance that we pay for 
     out of pocket. We have no dental. We worry constantly. Save 
     for college? That is a joke in its self.

  Ron, in La Mars, IA, said:

       We need an aggressive program for alternative fuels. If we 
     do not break away from foreign oil we will be bogged down in 
     the Middle East forever.

  Ann, an elementary school principal in Waukon, IA, had this to say:

       There are many things that keep me up at night. Among these 
     concerns are the rising meth problem in Iowa. The reduction 
     of services to families through medicaid cuts and cuts in the 
     department of human services. I have families who fear their 
     foodstamps will be cut.

  Here is Fabian from Bellevue, IA:

       Collapse of the general economy in industrial and 
     manufacturing sectors.

  Patrick from Sioux City, IA:

       We need to reform the health care and transportation 
     systems in America.

  Kim of Cresco, IA:

       We need to be more focused on education in America than the 
     filibuster.

  Here is Sandra, who e-mailed me:

       Dear Senator Harkin, these are the things that keep me up 
     at night:
       1. Social security--I think we just need to improve on the 
     program that exists. I know that my husband and I and our 
     children will not have the needed money to start our own 
     savings account. Our children have good jobs, but there is no 
     way they will be able to set-aside enough needed money to 
     retire on.
       2. As a health professional, I can tell you first-hand what 
     is happening to people who cannot afford to pay health 
     insurance and also, prescription drugs needed. I treat the 
     results of that each day. Each month, we personally pay, out 
     of our own pocket, nearly $2000.00 for insurance and drugs. 
     Our drugs are for diabetes and prostate problems, something 
     we cannot help. That is $24,0000 a year, and farming is not 
     that profitable. Something has got to change or we will not 
     survive!

  This is a comment from George:

       I am 62 years old. I had surgery for prostate cancer 4 
     years ago. Post op I can not afford $1000 month for health 
     insurance and have not seen a doctor in 3 years for follow up 
     procedures. I am sinking into depression (and debt) and see 
     no way out . . . .

  Doris, from Wellman said:

       We need to raise the minimum wage.

  Here is Ann, another person who e-mailed me:

       I have families without jobs or such low-paying jobs they 
     work several to make ends meet. Children are left 
     unsupervised. How about increasing the minimum wage?

  Mr. President, this is what Iowans are telling me, in 600 plus e-
mails, and over 500 phone calls today. This is what they want the 
Senate working on. And we spent all this time talking about a 
filibuster, a nuclear option: This judge, that judge. People must 
wonder if we have become totally dysfunctional around here, so I am 
hopeful that, with this agreement, we are going to see a new day. I am 
hopeful that the majority leader will now turn his leadership and his 
energy to turn the Senate to the people's business.
  Let's have a bill out here to raise the minimum wage and let's get an 
up-or-down vote on it. Let's get the Energy bill here on the floor so 
we can amend it and then have an up-or-down vote. Let's do something 
about health care. Why don't we extend the Federal Employees Health 
Benefit Program that all of us have--why don't we extend it to small 
businesses all over America so they, too, can have the same kind of 
health coverage that we in the Congress have?
  How about pension security? Let's get legislation on the floor so we 
do not have more United Airlines, next maybe all the other airlines, 
perhaps even General Motors has now said they may not be able to meet 
their pension guarantees.
  Education funding? How many times do we hear from our schools that we 
are not funding No Child Left Behind, that the guarantee we made almost 
30

[[Page 10896]]

years ago now that we were going to fund the Individuals with 
Disabilities Education Act at 40 percent of the cost, now we are still 
at less than 20 percent?
  This is what the vast majority of my Iowans say we should be working 
on. So I hope a new day is here. I hope, with this agreement that was 
forged, we can leave that past behind us and that we can now bring this 
type of legislation to the floor. Forget about the nuclear option and 
get on with the people's business here in the Senate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I understand that I have 15 minutes. I 
might take 10 or I might want to take another 10 in addition. I ask 
unanimous consent I may speak up to 25 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. What I want to say, before my friend from Iowa leaves, 
thank you so much, Senator Harkin. I think what you addressed in your 
remarks is something that has been missing from this debate, and that 
is what the people are telling us back home. They, in my opinion, do 
not want to see the filibuster go away because they understand it is a 
very important part of the American fabric of politics for more than 
200 years. They also understand, without a doubt, that the issues that 
concern their everyday lives are just not being addressed. My friend 
laid them out beautifully.
  In Iowa, CA, our people are feeling the same things. They are 
struggling with high gas prices, lack of health care, worried about the 
cost of health care, and education. They are absolutely frightened 
about the President's attack on Social Security. They want us to fight 
back. They want us to solve the Social Security long-range problem 
without reducing benefits, without taking away Social Security, and not 
turning Social Security into a guaranteed gamble. These are issues that 
are key. Transportation is another issue my friend mentioned. I thank 
Senator Harkin for his contribution tonight.
  I also thank my colleagues on both sides of the aisle who took this 
Senate back from a cliff where there were very treacherous waters 
below. They turned us away from a power grab by the majority, from a 
move that was clearly an abuse of power. They called it themselves, 
those who wanted this option, the nuclear option. They were right to 
call it the nuclear option because it would have been so devastating, 
not only to the Senate, not only to the people of this country, but to 
the foundation of our Republic--the checks and balances which were put 
into this system by our brilliant Founders who came together. As 
Senator Byrd reminded us tonight that Benjamin Franklin said: ``I've 
given you a Republic, if you can keep it.''
  That is the key. Can we keep the Republic? We do not keep a 
representative democracy such as this if we allow one side, whichever 
side that is, to trample upon the rights of the other. What happens is 
you wind up trampling on the rights of the American people themselves.
  The other day I was making a mental note of who supported the nuclear 
option, taking away the right of any Senator to filibuster a judicial 
nominee, who in this body supported that, versus those who thought it 
ought to be sustained and we ought to have that right. When we add up 
the number of people we represent on each side, the senators on the 
side that wanted to keep the filibuster represented far more people, 
millions more people. So this was a moment in time when the rights of 
so many of those people would have been taken away, just as the rights 
of their Senators would be taken away.
  Again, I thank my colleagues on both sides who worked so hard to 
bring us back from this abuse of power. I hope that it means forever. I 
personally hope we never hear the words ``nuclear option'' again. It 
would be best for this country if we allowed the 200-year history plus 
of this country to sustain us.
  The filibuster started in 1806. This is the filibuster's 200th year. 
It has been used sparingly. Let's look at how many times we have 
blocked President Bush's judges. I hope I don't have to bring this 
chart out again. I hope we are done with this. But for tonight we need 
to summarize where we have been.
  Mr. President, 208 to 10 is what caused all the angst by the 
Republicans. They wanted to take away our right to block 5 percent of 
George Bush's judges. As I have said at home in many meetings, if any 
one of you got 95 percent of what you wanted in your life, you would be 
smiling. I would be--unless I wanted everything and I thought I knew 
best and I was the smartest. We all go through those times when we 
think that way but one would hope at this point when we get here, after 
working a little bit here in the Senate--and I admit I didn't see it 
right in the beginning--we come to respect rights of the minority. The 
filibuster has been used rarely.
  I also want to discuss what I call the filibuster fantasy world that 
cropped up in these debates. I will show a chart I was going to use in 
the debate which, thankfully, we do not have to have. But for the 
purposes of history, we ought to look at what was shaping up.
  First of all, every day we came to the Senate we heard Republicans 
say: The Democrats started the filibusters on judges. That is funny, in 
a way, because the opposite is true. In modern times, the use of the 
filibuster began with Abe Fortas in the 1960s. I looked at a headline 
in the Washington Post from the 1960s. It said: ``Filibuster Launched 
Against Fortas.'' This was President Johnson's, a Democrat, nominee to 
the Supreme Court. The first paragraph of that Post article said:

       The Republicans launched an all-out filibuster against Abe 
     Fortas.

  That is a fact. The filibuster fantasy says that Democrats started 
the filibusters on judges.
  The second fantasy we have heard repeatedly recently from Republicans 
is Republicans have never filibustered judges.
  That one I can state from personal experience does not hold up--I 
don't have to rely on newspapers; I don't have to rely on hearsay; I 
don't have to rely on folk tales. I was here and I saw the Republican 
filibuster against two terrific people from California, Marsha Berzon 
and Richard Paez. Guess what? That was not in the 1800s or the 1960s. 
It was the year 2000. And do Members know who voted to continue to 
filibuster Richard Paez? Bill Frist, the good doctor, who says he wants 
to take away our rights. Tonight he says he is backing off. He has no 
choice but to back off because, luckily, we had enough people from both 
sides of the aisle to pull us back from this precipice. Bill Frist 
himself filibustered Richard Paez. Pretty amazing for him to say that 
we should never filibuster when he filibustered, when his Republican 
colleagues are on the record saying they were proud to filibuster and 
it is their constitutional right to filibuster.
  So you can't rewrite the record book. We have a Congressional Record. 
We had a vote to end the filibuster on Richard Paez, a wonderful 
candidate put up by President Clinton. Bill Frist voted to filibuster 
that man. Yet he says if we Democrats vote to filibuster somebody, and 
I am quoting him, ``we are behaving badly.'' He said that four times 
tonight. Bad behavior.
  This is not a kindergarten class. This is not even high school. This 
is the Senate. When I decide to filibuster a judge, which is my 
prerogative, and will remain so, I am happy to say under this good 
agreement, I am not behaving badly, I am behaving as a Senator who has 
looked at this nominee, who has seen that this nominee is dangerous to 
America, who has seen that this nominee is extremist and will hurt the 
American families who I represent. Am I not behaving as a Senator? No, 
I am not behaving badly.
  Let's look at the other Republican filibuster fantasies. They say all 
judges should get an up-or-down vote. Do you know how many votes 
Priscilla Owen had so far? Four. She is about to have the fifth. Janice 
Rogers Brown has had one. Clinton judges, 61 of them, most of them 
never made it out of committee. Most of them were pocket filibustered. 
They never had an up-or-down vote. Every one of George Bush's nominees 
have had an up-or-down vote. They

[[Page 10897]]

may not have made the 60 votes they needed to make because for 200 
years-plus the Senate has had the right for extended debate. These 
people could not get the 60 votes.
  Why couldn't they get 60 votes? Because these nominees are so 
extreme. I will talk about one of them in a minute and tell Members why 
because it is an extraordinary circumstance. The President sent down a 
nominee who is out of the mainstream.
  First, I want to tell you a story about Orrin Hatch who was the 
Republican chairman of the Judiciary Committee for a time when Bill 
Clinton was President. Orrin Hatch called me into his office and he 
said: Senator Boxer, if you want to get a vote on a judge from 
California, don't send me anyone from the liberal side. Send me 
mainstream judges, Senator. Send me mainstream judges and we will be 
OK. We had a great chat.
  I said: Well, I am not so sure; maybe sometimes you want to have 
someone a little more liberal.
  He said: Don't discuss it with me. Mainstream judges. That's it.
  So for Orrin Hatch, when Bill Clinton was President, he had a litmus 
test. Mainstream judges. I didn't think it was that unreasonable. Where 
is the litmus test now on mainstream judges? It has gone out the 
windows.
  Alberto Gonzales himself said that Priscilla Owen's opinions were 
``unconscionable judicial activism''. So we say to the President of the 
United States of America: Do what Bill Clinton did, send us mainstream 
judges and we do not have any problem with that. We will walk down this 
aisle proudly. Frankly, we did it 208 times. I am not sure this 
President has any cause for alarm. He got 95 percent of his judges, but 
he wants it all, after all, he is George Bush. We had a King George. We 
had a king. Now we want a President of all the people. We do not want a 
king. We want him to govern. We do not want him to rule. There is a 
difference.
  This wonderful agreement sustains our right in the future to step out 
if each of us determines there is a reason to filibuster.
  Now, again, the filibuster fantasy is that Priscilla Owen and Janice 
Rogers Brown have never had a vote in the Senate. I have already 
stated, they just cannot make the 60-vote cut because they are so out 
of the mainstream.
  Then there is this issue the Republicans have now said they want to 
change from the nuclear option to the constitutional option. Nothing in 
the Constitution prohibits filibusters. We know that. The Constitution 
says the Senate shall writes its own rules, which brings me to another 
point.
  Here is something I want the American people to know. I want my 
colleagues to understand. The Constitution says the Senate shall write 
its own rules, and Rule XXII of the Senate says if you want to change a 
rule of the Senate, folks, you have to get 67 votes to move to change 
the rules. It is important to do this when you change the rules of the 
Senate. The Constitution says we shall write our own rules. But the 
Senate rules do not envision a small group of Senators changing the 
rules. It ensures that a large group of Senators must approve of 
changing the Senate rules. If you have to change the rules, this is 
what you have to have 67 votes to close off debate for a rule change.
  Guess what? My Republican friends who brought us the nuclear option 
knew they could not get 67 votes to destroy the system of checks and 
balances, to change our government as we have known it for so many 
years. They could not get 67 votes, not even close. They even had to 
have Dick Cheney in the chair for this vote, folks, because it could be 
that close; 51, maybe. What do they do? How are they going to get 
around the rules of the Senate? Well, not to worry about the rules of 
the Senate. We will make a precedent.
  The Parliamentarian will say that Senators have a right to 
filibuster, absolutely. The Parliamentarian will say we need 67 votes 
to change the rules of the Senate, but Dick Cheney, sitting in the 
chair as a rubberstamp for this administration, as part of it, will 
say: I disagree with the Parliamentarian. We can change this right now 
by declaring by fiat no more filibusters of judges ever again. That is 
the new precedent.
  I would ask my friends, what kind of an example is this to set for 
our children? Let's say our children go to school, and they know to get 
an 80 percent on a test is a B, and they get a 75 percent. Let's say 
they then go to their teacher and say: Oh, I got a 75 percent, and I 
don't want to come home with a C. Can you just change the rules today 
for me and make it an A? Change the rules. Or if you are serving on a 
jury, and everyone has to agree on the guilt of someone, but, oh, they 
decide on this day, only 9 of the 12 have to agree.
  I could go on and on with examples like this. The fact is, it is a 
terrible precedent for our children to see grown people in the Senate 
change more than 200 years of Senate history by going around the rules 
of the Senate.
  I was here when I was just a freshman. I was annoyed with the 
filibuster. I was really annoyed. The Republicans were filibustering 
all the time. I thought it was terrible. One of my colleagues said: 
Let's change the rules.
  I said: Great. I think President Clinton ought to get his whole 
agenda through. I am tired of hearing about what I don't agree with.
  I was wrong. I did not know I was wrong. I was wrong. But one thing I 
did, I did not try to do it with some slipshod, fake precedent change. 
I tried to do it by getting 67 votes. We did not even come near 20 
because it is a losing proposition.
  The nuclear option would have been a disaster. And I have to tell 
you, out in the countryside, the polling is showing that the people are 
sick of this place. They do not understand what we are doing. We are 
irrelevant to them. And indeed it is no wonder we are viewed this way 
given all the effort we have expended on this nuclear option business. 
It simply fits into what the people have been saying for a while, that 
we just do not get it.
  They are paying these gas prices at the pump, and what are we doing? 
Nothing. The President could release some strategic petroleum reserves. 
Oh, no, the first President in modern times never to do that. And, yes, 
gas is going down a few pennies, I am happy about that. But, believe 
you me, it is not going down far enough. What are we doing about that? 
Nothing that I could see. No, no, we are wasting our time on the 
nuclear option because the President wanted 100 percent of what he 
asked for. He did not want 95 percent. He wanted 100 percent of his 
judges.
  Another President once tried to pack the courts, and his name was 
Franklin Roosevelt, a great Democratic President. Do you know what? 
When Franklin Roosevelt was in office, there were 74 Democrats in the 
Senate. Franklin Roosevelt was annoyed. He wanted 100 percent. He got 
60 percent in the election, a lot more than this President did. He had 
74 Democratic Senators. And he wanted to pack the courts. He wanted to 
double the number of Supreme Court Justices, put his people in play, 
have the Democrats in the Senate rubberstamp and make sure that his New 
Deal would live forever more.
  Do you know what stopped him? Democratic Senators. They said: Mr. 
President, we admire you. We respect you. But we know it is wrong to 
pack the courts. It is not right. We want an independent judiciary. Let 
us not change the rules in the middle of the game.
  I was so hopeful that we would have some Republican Senators this 
time who had a sense of history, who understood better than I did when 
I was new here that the filibuster protects not only the minority but 
protects the American people.
  I want to explain to you, in my final moments, why it is so important 
that we keep the filibuster. In this deal, three judges are going to go 
through, are going to have a simple majority vote. One of them is 
Janice Rogers Brown. Now, I am not thrilled about this because I think 
her record is so far out of the mainstream that she will hurt the 
American people. But I do not want to just put out rhetoric. I want to 
show you Janice Rogers Brown and some of the times in which Janice 
Rogers Brown, as a judge on the California Supreme Court, stood alone 
in her dissents. So when you ask me: Senator

[[Page 10898]]

Boxer, why is it that you filibustered Janice Rogers Brown--and, by the 
way, I support this deal. Even though she will only need 51 votes, I 
still support the deal. But I have to tell you, I am going to fight to 
deprive her of those 51 votes, if I can. She stood alone on a court of 
six Republicans and one Democrat. She is a Republican. She stood alone 
31 times because the court was not rightwing enough for her.
  Let's look at some of the times Janice Rogers Brown stood alone, how 
way out of the mainstream to the extreme she is.
  She said a manager could use racial slurs against his Latino 
employees. Can you imagine a decision like that? It is OK to use racial 
slurs against Latino employees. Janice Rogers Brown said that in 
Aguilar v. Avis Rental Car.
  She is bad on first amendment rights. She argued that a message sent 
by an employee to coworkers criticizing a company's employment 
practices was not protected by the free speech first amendment, but she 
has been very protective of corporate speech. So she walks away from 
the individual but supports the right of corporate speech.
  If you want individual rights protected, this is not your person. 
Here is one: She protects companies, not shareholders.
  She is bad for rape victims. She was the only member of the court to 
vote to overturn the conviction of the rapist of a 17-year-old girl 
because she believed the victim gave mixed messages to the rapist.
  Now, I just want to say something here. Every one of us here would 
come to the defense of a 17-year-old rape victim. And on a court of six 
Republicans and one Democrat, only one person stood alone, stood by the 
rapist, Janice Rogers Brown. So when I say I do not want her to be 
promoted, you can see why.
  Janice Rogers Brown is bad for children and families. She was the 
only member of the court to oppose an effort to stop the sale of 
cigarettes to children. Now, I do not know how you all feel about this, 
but this is 2005, and we know what an addiction to cigarettes can be. 
We do not want our kids being able to purchase cigarettes in stores. 
Janice Rogers Brown stood alone in Stop Youth Addiction v. Lucky 
Stores. She stood alone on a court of six Republicans, one Democrat. 
She stood alone and would not protect our children from the sale of 
tobacco.
  Senior citizens: the only member of the court to find that a 60-year-
old woman who was fired from her hospital job could not sue. This is 
what she said in this dissent, where she stood alone on a court of six 
Republicans and one Democrat. She said:

       Discrimination based on age does not mark its victims with 
     a stigma of inferiority and second class citizenship.

  Really? Really? A 60-year-old woman was fired from her hospital job 
on age discrimination. State and Federal law prohibit age 
discrimination. Janice Rogers Brown stood alone and said there is no 
stigma. Someone fires you because you are old, and there is no stigma.
  But that is the least of it. Janice Rogers Brown----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. BOXER. Mr. President, I ask unanimous consent for 1 minute to 
close.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. Thank you, I say to my friend from Alabama.
  Janice Rogers Brown has an attitude toward seniors which is 
extraordinary. She calls senior citizens cannibals. She says they are 
militant and they cannibalize their grandchildren by getting free stuff 
from the Government. I have to tell you, this woman is so far out of 
the mainstream, this is just a touch of the debate that is to hit the 
Senate floor.
  So when we stand up as Democrats and say no to Janice Rogers Brown, 
we have a reason. It is not about the Senate. It is not about 
partisanship. It is about the American people and the American family.
  Thank you, Mr. President. And I thank those Senators on both sides of 
the aisle for bringing us back from this precipice.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Martinez). The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that I may be 
allowed to speak for up to 20 minutes in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I would ask the Senator, before she 
leaves--I notice the debates over filibusters have seen people maybe 
flip and change their views--but I would ask her if it is not true that 
she just said a few moments ago that we must keep the filibuster, but 
in 1995 the Senator was one of 19 Senators who voted to eliminate it 
entirely, not even just against judges but against the whole 
legislative calendar also?
  Mrs. BOXER. If the Senator heard me speak, I spoke quite a while 
about that. I said how wrong I was, how green I was, how I was 
frustrated with the Republicans blocking things. And I was dead wrong. 
I also said that what we tried to do is change the rules, which takes 
67 votes. We did not go in the dead of night to try and get it done. 
So, yes, the Senator is right. I was dead wrong. Tough to admit that, 
but I have been very open about that since the beginning of the debate.
  Mr. SESSIONS. That is good. And I apologize for not being here and 
hearing your remarks to begin with. I would not have asked that.
  Mrs. BOXER. I don't blame the Senator.
  Mr. SESSIONS. Mr. President, I want to share a few thoughts at this 
time. There is no doubt that there has not been maintained in this body 
a successful filibuster against a President's nominee for a judicial 
office until this last Congress when the Democrats changed the ground 
rules, as they stated they were going to do, and commenced systematic 
leadership-led filibusters against some of the finest nominees we have 
ever had.
  People say: Well, you people in the Senate are upset, and you are 
fractious, and there is too much of this, and you guys need to get 
together. But it was not the Republicans who started filibustering 
judges. And it was a historic change in our procedures when the 
Democrats started doing it. It caused great pain and anguish.
  When you have somebody as fine as Judge Bill Pryor, who I know, from 
Alabama, the editor and chief of the Tulane Law Review, a man of 
incredible principle and intelligence and ability, and who always wants 
to do the right thing, to hear him trashed and demeaned really hurt me.
  I am so pleased to hear today that those who have reached the 
compromise have said that we will give Bill Pryor an up-or-down vote. 
He had a majority of the Senate for him before, a bipartisan majority. 
At least two Democrats voted for giving him an up-or-down vote and 
would have voted for him, I am sure, if he had gotten that up-or-down 
vote. We would have had that done a long time ago except for having, 
for the first time in history, a systematic tactic of blocking those 
nominees from an up-or-down vote through the use of the filibuster on 
judges.
  Priscilla Owen made the highest possible score on the Texas bar exam, 
got an 84-percent vote in Texas, was endorsed by every newspaper in 
Texas--a brilliant, successful private practitioner--and they have held 
her up for over 4 years. The only thing I can see that would justify 
holding her up was that she is so capable, so talented, that she would 
have been on a short list for the Supreme Court. She should not have 
been blocked and denied the right to have an up-or-down vote.
  Justice Janice Rogers Brown from California was on the ballot a few 
years ago with four other judges in California. She got the highest 
vote in the California ballot, 74 percent of the vote on the California 
ballot. California is not a rightwing State. She got three-fourths of 
the vote. And they say she is an extremist? Not fair. It is just not 
fair to say that about these nominees.
  It was said by the Senator from California that they did not get 60 
votes, they did not make the cut. When has 60

[[Page 10899]]

votes been the cut? The vote, historically, since the founding of this 
Republic, is a majority vote. Lets look at that. The Constitution says 
that the Congress shall advise and consent on treaties, provided two-
thirds agree, and shall advise and consent on judges and other 
nominees.
  Since the founding of the Republic, we have understood that there was 
a two-thirds supermajority for ratification and advice and consent on 
treaties and a majority vote for judges. That is what we have done. 
That is what we have always done. But there was a conscious decision on 
behalf of the leadership, unfortunately, of the Democratic Party in the 
last Congress to systematically filibuster some of the best nominees 
ever submitted to the Senate. It has been very painful.
  And to justify that, they have come up with bases to attack them that 
really go beyond the pale. I talked to a reporter recently of a major 
publication, a nationwide publication. People would recognize his name 
if I mentioned it. I talked about why I thought the nominees had been 
unfairly attacked, their records distorted and taken out of context, 
and they really were unfairly misrepresenting their statements, 
opinions and actions. She said: Well, that's politics, isn't it?
  Are we in a Senate now where because somebody is on a different side 
of the aisle, have we gotten so low that we can just distort somebody's 
record--a person, a human being who is trying to serve their country--
we can do that to them? I don't think that is right. I don't think we 
should do it. But I do believe we are sliding into that and have been 
doing so.
  For example, it was said recently by Senator Boxer that Judge 
Gonzales--now Attorney General of the United States--said that 
Priscilla Owen was an unconscionable activist. He did not say that 
about her. He did not. He has written a letter to say he did not. He 
testified under oath at a Judiciary hearing and said he did not. What 
he said was he reached a certain conclusion about what the legislature 
meant when they passed a parental notification statute, and based on 
that, he himself, he said, would have been an unconscionable activist 
if he voted other than to say that the child did not have to notify her 
parents. Other members of the court reached a different conclusion 
about what the legislature meant with the statute, and he did not 
accuse anyone else of being an unconscionable activist. They have been 
running ads on television saying that as if it were a fact. It is not. 
Surely, we should have the decency not to do those kinds of things.
  An allegation just made about Janice Rogers Brown was that she 
criticized the free speech of an employee for criticizing their boss. 
That is not exactly what the case was. What the facts were--that 
employee sent out 200,000 e-mails on the boss's computer system 
attacking the boss and the company. It was a disgruntled employee. How 
much do you have to take, clogging up the system with spam? One of the 
most liberal justices on the California Supreme Court joined with her 
in that view. That is not an extreme position. She wasn't saying a 
person could not criticize her boss.
  Another comment that was really troubling to me--and I have to say it 
because Janice Rogers Brown, although very firmly established and 
highly successful in California, grew up in Alabama, a small town not 
too far from where I grew up. She left Alabama as a young teenager and 
went to California and ended up going to UCLA Law School and being 
awarded the distinguished graduate award there. She is a wonderful 
person. I have taken an interest in her history. She grew up in 
discrimination in the South. That is one reason they left. A 
sharecropper's daughter, she was not raised in an environment where 
African Americans were treated equally. That is a fact. They say now 
that she said it is OK to use racial slurs against Latinos. You have 
heard that comment. She said that Janice Rogers Brown said that.
  That is not what she said. That is absolutely not the facts of that 
case. It is really sad to hear that said, and the facts would 
demonstrate that that claim against her is a totally unfounded charge.
  Also, with regard to her position on the Supreme Court of California, 
she wrote more majority opinions in the year 2002 than any other judge 
on the court. When a majority reaches a view about the case, and a 
majority on the court decides how it should come out, they appoint 
someone to write the opinion for the majority. She wrote more majority 
opinions than any other justice on the court. How could she be out of 
the mainstream of the California court? I felt really compelled to make 
some comments about her and her record.
  Mr. President, I will conclude tonight by once again recalling that 
when the Republicans had the majority in 1998, right after I came to 
the Senate in 1997, President Clinton was nominating judges. Two of 
them were very activist judge nominees for the Ninth Circuit Court of 
Appeals, the most activist court in the United States--the California, 
West Coast Court of Appeals. It had been reversed 27 out of 28 times by 
the U.S. Supreme Court, I believe, the year before that and 
consistently was the most reversed court in America. Those two 
nominees, Berzon and Paez, which I strongly opposed--and I think a 
review of their record would show they have been activist and should 
not have been confirmed. But Orrin Hatch said in our Republican 
conference: No, let's don't filibuster judges; that is wrong.
  I was a new Member of the Senate, as the Senator from California said 
she was. He stepped up and said: Don't filibuster. We need to give them 
and up-or-down vote. The then-majority leader, Trent Lott, moved for 
cloture to give them an up-or-down vote. I voted to give Berzon and 
Paez an up-or-down vote, and we did that. We invoked cloture, brought 
them up. The Republican majority brought up the Clinton nominees, and 
we voted them up. They were both confirmed, and they are both on the 
bench today.
  Our record was one that rejected filibusters. Now, what happened 
after all of this occurred? It was a huge alteration of the Senate's 
tradition and, I think, the constitutional intent. I think the 
Constitution is clear that a majority is what we were looking for. So 
we were faced with a difficult decision of what to do and how to handle 
it.
  I compliment Senator Bill Frist, the majority leader of the Senate. 
He systematically raised this issue with the leadership on the other 
side. He provided every opportunity to debate these nominees so that 
nobody could say they didn't have a full opportunity to debate. He 
researched the history of the Senate, and he presented positions on it 
and why the filibuster on judicial nominees was against our history. He 
urged us to reach an accord and compromise. All we heard was no, no, 
no, you are giving a warm kiss to the far right, you are taking steps 
that are extreme, you are approving extreme nominees, people who should 
not be on the bench, and we are not going to compromise and we are not 
going to talk to you.
  After considerable effort and determination and commitment to 
principle, Senator Frist moved us into a position to execute the 
constitutional option, also referred to as the nuclear option. It has 
been utilized, as he demonstrated, many times by majority leaders in 
the past. It is not something that should be done lightly, but it is 
certainly an approved historical technique that has been used in this 
Senate. As a result of that, and the fact that they were facing a 
challenge, I think it was at that point we began to have movement on 
the other side, and they realized this deal was not going to continue 
as it was and that, under the leadership of Senator Frist, we were not 
going to continue this unprecedented, unhistorical action of 
filibustering judicial nominees.
  So it was out of that that we had the agreement that was reached 
today. With that constitutional option hanging over the heads of a 
number of people, a serious reconsideration took place. I think a 
number of Senators on the other side have been uneasy about this 
filibuster. They have not felt comfortable with it, but it was 
leadership-led and difficult, apparently, for them to not go along. 
Although, I have to

[[Page 10900]]

note that Senator Zell Miller and Ben Nelson consistently opposed it 
and supported the Republican nominees each and every time as they came 
forward.
  So out of all of this, we have reached an accord tonight. It has led 
to what appears to be a guarantee that three nominees, at least--
Priscilla Owen, Janice Rogers Brown, and William Pryor, who is sitting 
now as a recess appointee on the Eleventh Circuit--will get an up-or-
down vote. I believe all three of them will, and should be, rightfully, 
confirmed as members of the court of appeals of the United States of 
America. They will serve with great distinction. I am sorry we don't 
have that same confidence that Judge Saad or Judge Myers will also get 
a vote. They may or may not, apparently. But we don't have the same 
confidence from this agreement that they will. I think they deserve an 
up-or-down vote also. But today's agreement was a big step forward.
  Maybe we can go forward now and set aside some of the things of the 
past, and we will see Members of the other side adhere to the view of 
those who signed the agreement that a filibuster should not be executed 
except under extraordinary circumstances. Certainly, that is contrary 
to the position that they were taking a few months ago and certainly 
the position being taken last year.
  So progress has been made. I salute particularly the majority leader 
who I believe, through his leadership and consistency, led to this 
result today. I am thrilled for Judge Pryor and his family because I 
know him, I respect him, and I know he will be a great judge. I am 
excited for his future.
  Mr. President, seeing no other Senator here, I yield the floor.

                          ____________________