7878 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 April 27, 2005 JUDICIAL NOMINATIONS try accomplish the goal of sustaining a that they must break with the more Mrs. MURRAY. Mr. President, I come strong democracy and ensuring the than 200 years of tradition and 200 to the floor to talk about the Senate’s participation of all people is very im- years of precedent. We have heard day deliberations on some of the adminis- portant. after day on the floor—even a few mo- tration’s judicial nominees. It is clear Elections are the foundation of our ments ago—that this is the most im- this is a debate about basic American democracy. They determine the direc- portant issue facing this body today. values. In drafting the Constitution, tion of our country. But an election Well, we have record-high gas prices the Framers wanted the Senate to pro- loss does not mean you lose your voice and deficits, we have 45 million unin- vide advice and consent on nominees or you lose your place at the table. sured Americans, and we have far too who came before it to ensure that these That is what we must do to keep our many veterans without the health care very rights and values were protected. democracy strong. That is why we are they need and deserve. All the other I believe, as a Senator, I have a respon- fighting so hard to keep our voice. side is talking about is doing away sibility to stand up for those values on Recently, we have heard a lot from with the checks and balances so they behalf of my constituents in Wash- the other side about attacks on faith can get radicals on the bench. If the other side wants to continue on ington State. and on values. In fact, some are trying Many activists today are com- to say our motive in this debate is this destructive course and ignore those real needs of the American peo- plaining that certain Senators are at- somehow antifaith. I argue the oppo- ple, they can. But this Senator and my tacking religious or conservative val- site is true. We have faith in our val- colleagues will continue to fight this ues. I must argue that it is others—not ues, in American values. We have faith abuse of power and do the work the Democratic Senators exercising their that these values can and must be upheld. It is not an ideological battle people sent us here to do. rights—who are pursuing a nomination It is a sad day when one side refuses strategy that attacks basic values out- between Republicans and Democrats. It is about keeping faith with the values to come to the table to negotiate a way lined in the Constitution. out of this impasse. It is even sadder Our democracy values debate and dis- and the ideals our country stands for. that they refuse to accept our excellent sension. Our democracy values the im- Having values and having faith in confirmation record in blind pursuit of portance of checks and balances. Our those values requires that we make sure those without a voice are rep- confirming the most radical of their democracy values an independent judi- choices. resented. Speaking up for those in pov- ciary. But with the nuclear option and Although we have been able to con- erty to make sure they are fed is a the rhetorical assault being launched firm 205 nominees that President Bush at Democratic Senators by activists faith-based value. Making sure there is sent forward, there are a few that are around the country, among others, we equal opportunity and justice for the far outside some basic values. see those values under attack. least among us is a faith-based value. Let’s start close to home with Presi- The nuclear option is an assault on Fighting for human rights and taking dent Bush’s nominee to the Ninth Cir- the American people and many of the care of the environment are faith-based cuit Court. To that court, which over- things we hold dear. It is an attempt to values. To now say those of us who seas appeals from my home State of impose on the country, through life- stick up for minority rights are Washington and five other States, time appointments, the extreme values antifaith is frightening and it is wrong. President Bush has nominated William held by a few at the cost of the many. I hope those who have decided to Myers. Mr. Myers is a lifelong lobbyist It is the tyranny of the majority per- make this into a faith-antifaith debate and anti-environmental activist. He is sonified. Confirming these nominees by will reconsider. This should be about opposed by over 175 environmental, becoming a rubber stamp for the ad- democracy. It should be about the pro- labor, civil, and women’s disability ministration would be an affront to the tection of an independent judiciary, rights organizations. He even drew op- 200-year-old system of checks and bal- and it should be about the rights of mi- position from Native American organi- ances, and at the same time it would be norities. zations and from the National Wildlife an affront to the values I promised to Mr. President, our system of govern- Federation. This is a man who has defend when I came to the Senate. ment, of checks and balances, and our never tried a jury case, who has an Building and maintaining a democ- values are under attack by this trans- anti-environmental record stretching racy is not easy, but our system and parent grab for power. They are, with back to his days as a Bush Interior De- the rights and values it holds dear are their words and potential actions, at- partment official and industry lob- the envy of the world. In fact, the en- tempting to dismantle this system de- byist. He even received the lowest pos- tire world looks at us as the model for spite the clear intent of the Framers sible rating from the ABA. government. It is our values they want and the weight of history and prece- Mr. President, in the Pacific North- to look to. We must protect them not dent. They think they know better. I west and in regions around this great only for us but for those fledgling de- think not. country, we hold our environmental mocracies. Mr. President, there is even news this values dear. I am not willing to hand a I just returned from a bipartisan trip morning that our friends on the other lifetime appointment to such a vehe- to Israel, Iraq, Georgia, and the side are unwilling to come to the table ment advocate against the people’s in- Ukraine, where we saw leaders who to compromise to avoid this crisis. I terests. This is the perfect example of were trying to write constitutions, try- want to take a second to praise our the check our Framers had in mind ing to write laws, trying to write poli- leader, Senator REID, for his effort to when they drafted our Constitution. cies. They were all working very hard find a reasonable conclusion before the We can, and we must, use it. to assure even those who did not vote nuclear bomb is dropped. That is just one example of a nomi- in the majority that they would have a Unfortunately for him, for all of us nee looking to attack basic values. Bill voice. The challenges were varied in on this side of the aisle, and for this in- Pryor, a nominee to the Eleventh Cir- each country. They faced everything stitution, that plea has been rejected. cuit, opposes basic individual liberties from protecting against terrorists to First, yesterday we saw that Karl and freedoms. He called Roe v. Wade charging people for the first time for Rove, one of the President’s top advis- the ‘‘worst abomination of constitu- electricity, to reforming wholly cor- ers, said there would be no deal. Now, tional law in history.’’ rupt institutions. Making sure that de- in this morning’s papers, we read the Janice Rogers Brown, nominated to mocracy survives means having de- leadership on the other side of the aisle the DC Circuit Court, called 1937—that bates, bringing people to the table, and is falling into line and saying, ‘‘No was the year this Government enacted making tough decisions. deal.’’ many of the New Deal’s programs to In each case, the importance of not By rejecting the deal, Republicans help lift our country out of the deep de- disenfranchising any group of people are now saying that three nominees— pression—‘‘the triumph of our own so- also rings true. So how we in this coun- three total nominees—are so important cialist revolution.’’ Mr. President, her

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00006 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD April 27, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 7879 disdain for worker and consumer pro- terpretations of those thoughts was of- Mr. BIDEN. Mr. President, I rise tection values and principles is clear in fered to this body by Robert Caro, the today to speak at some length, if time decision after decision. great Senate historian, in a letter in will permit me, about the same subject Nominee Priscilla Owen’s narrow 2003. He talked about the need for the my friend from Washington State so constitutional view was so far outside Senate to maintain its history and tra- eloquently addressed. My colleagues the mainstream that then-Texas Su- ditions, despite popular pressures of know that although when I speak, I preme Court Judge and now Attorney the day, and of the important role de- sometimes get very passionate, I have General Alberto Gonzales said that to bate and dissension plays in any dis- not very often, in past years, risen to accept it would be ‘‘an unconscionable cussion of judicial nominees. In par- the floor for any extended period of act of judicial activism.’’ ticular, he wrote of his concern for the time. I do that today because so much Mr. President, time and time again, preservation of Senate tradition in the is at stake. these nominees have sided against the face of attempted changes by a major- For over 200 years, the Senate has American people and the values we ity run wild. embodied the brilliance of our Found- hold dear. They have taken extreme In part, he said: ing Fathers in creating an intricate positions that run counter to main- In short, two centuries of history rebut system of checks and balances among stream values. Not one of these nomi- any suggestion that either the language or the three branches of Government. nees has the experience or the tempera- intent of the Constitution prohibits or coun- This system has served two critical ment to administer justice in an im- sels against the use of extended debate to re- purposes, both allowing the Senate to partial way to the citizens that they sist Presidential authority. To the contrary, the Nation’s Founders depended on the Sen- act as an independent, restraining would serve. ate’s members to stand up to a popular and force on the excesses of the executive Today it is fashionable for some of powerful President. In the case of judicial branch, and protecting minority rights my colleagues on the other side of the appointments, the Founders specifically within the Senate itself. The Framers aisle to disparage what they call activ- mandated the Senate to play an active role used this dual system of checks and ist judges. But this power grab reveals providing both advice and consent to the balances to underscore the independent their true motivation. They want ac- President. That shared authority was basic nature of the Senate and its members. to the balance of powers among the tivists on the bench to interpret the The Framers sought not to ensure law in a way that undermines impor- branches. I am . . . attempting to say as strongly as simple majority rule, but to allow mi- tant American values. We will not let I can that in considering any modification, nority views—whether they are con- them. Senators should realize that they are not servative, liberal, or moderate—to We have a responsibility to stand up dealing with the particular dispute of the have an enduring role in the Senate in and say no to these extreme nominees. moment, but with the fundamental char- order to check the excesses of the ma- But to know that, you don’t need to acter of the Senate of the United States, and jority. This system is now being tested listen to me; just look back at the with the deeper issue of the balance of power in the extreme. between majority and minority rights. great Founders of our democracy. I believe the proposed course of ac- The Framers, in those amazing years Mr. President, protection of minority tion we are hearing about these days is when our country was founded, took rights has been a fundamental prin- one that has the potential to do more great care in creating our new democ- ciple since the infancy of this democ- damage to this system than anything racy. They wrote into the Constitution racy. It should not—in fact, it cannot— that has occurred since I have become the Senate’s role in the nomination be laid to rest here in this Chamber. a Senator. I know many people are out there process. They wrote and they spoke History will judge us harshly, in my about protecting the minority against wondering why we are spending so much time talking about Senate rules view, if we eliminate over 200 years of the tyranny of the majority. Their precedent and procedure in this body words ring true today. and judicial nominations. They are wondering why I am talking about and, I might add, doing it by breaking James Madison, in his famous Fed- a second rule of the Senate, and that is eralist No. 10, warned against the supe- nominees and being on the floor quoting Madison and Adams. They are changing the rules of the Senate by a rior force of an overbearing majority mere majority vote. or, as he called it, a ‘‘dangerous vice.’’ wondering what this means to them. When examining the Senate’s proper He said: Let me make it clear. This debate is about whether we want a clean, role in our system of Government gen- The friend of popular governments never erally and in the process of judicial finds himself so much alarmed for their healthy environment and the ability to character and fate as when he contemplates enforce laws to protect it fairly. This nominations specifically, we should their propensity to this dangerous vice. debate is about whether we want to begin, in my view, but not end with our Founding Fathers. As any grade school Years prior, John Adams wrote, in protect essential rights and liberties. student knows, our Government is one 1776, on the specific need for an inde- This debate is about whether we want that was infused by the Framers with pendent judiciary and checks and bal- free and open Government. This debate checks and balances. ances. He said: is about preserving equal protection I should have said at the outset that The dignity and stability of government in under the law. This debate is about all its branches, the morals of the people and whether we want to preserve the inde- I owe special thanks—and I will list every blessing of society, depends so much pendent judiciary, whether we want to them—to a group of constitutional upon an upright and skillful administration defend our Constitution, and whether scholars and law professors in some of of justice, that the judicial power ought to we want to stand up for the values of our great universities and law schools be distinct from both the legislative and ex- the American public. for editing this speech for me and for ecutive, and independent upon both, that so Mr. President, these values are too helping me write this speech because I it may be a check upon both, as both should precious to be abdicated. Trusting in think it may be one of the most impor- be checked upon that. The judges, therefore, tant speeches for historical purposes should always be men of learning and experi- them, we will not let the Republicans ence in the laws, of exemplary morals, great trample our rights and those of mil- that I will have given in the 32 years patience, calmness, coolness and attention. lions of Americans we are here to rep- since I have been in the Senate. Their minds should not be distracted with resent. We will stand and say, yes, to When examining the Senate’s proper jarring interests; they should not be depend- democracy; yes, to an independent ju- role in our system of Government and ent upon any man or body of men. diciary; yes, to minority rights; and, in the process of judicial nominations, Mr. President, I shudder at the no, to this unbelievable abuse of power. as I said, we have to look at what our thought of what these great thinkers Mr. President, I yield the floor. Founders thought about when they and Founders of our democracy would The PRESIDING OFFICER (Mr. talked about checks and balances. say to this attempted abuse of power in GRAHAM). The Senator from Delaware The theoretical underpinning of this the Senate. I think one of the best in- is recognized. system can be found in Federalist 51

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00007 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD 7880 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 April 27, 2005 where the architect of our Constitu- solely—solely—vested in the hands of The possibility of rejection [by the Senate] tion, James Madison, advanced his fa- the legislature. For the numerous would be a strong motive to [take] care in mous theory that the Constitution set votes taken about how to resolve this proposing [nominations. The President] . . . up a system in which ‘‘ambition must issue, never did the Founders conclude would be both ashamed and afraid to bring forward . . . candidates who had no other be made to counteract ambition.’’ that it should start with the Executive merit, than that . . . of being in some way or ‘‘Ambition must be made to counter- and be within the power of the Execu- other personally allied to him, or of pos- act ambition.’’ As Madison notes, this tive. James Madison, for instance, was sessing the necessary insignificance and is because ‘‘[The] great security ‘‘not satisfied with referring the ap- pliancy to render them the obsequious in- against a gradual concentration of the pointment to the Executive;’’ instead, strument of his pleasure. several powers in the same department he was ‘‘rather inclined to give it to Hamilton also rebutted the argument consists in giving those who administer the Senatorial branch’’ which he envi- that the Senate’s rejection of nominees each department the necessary con- sioned as a group ‘‘sufficiently stable would give it an improper influence stitutional means and personal motives and independent’’ to provide ‘‘delibera- over the President, as some here have to resist encroachments by the other.’’ tive judgments.’’ suggested, by stating: Our Founders made the conscious de- It was widely agreed that the Senate If by influencing the President be meant cision to set up a system of govern- ‘‘would be composed of men nearly restraining him, this is precisely what must ment that was different from the equal to the Executive and would, of have been intended. And it has been shown English parliamentary system—the course, have on the whole more wis- that the restraint would be salutary. system, by the way, with which they dom’’ than the Executive. It is very im- The end result of our Founders was a were the most familiar. The Founders portant to point out that they felt ‘‘it system in which both the President reacted viscerally to the aggrandize- would be less easy for candidates’’—re- and the Senate had significant roles, a ment of power in any one branch or ferring to candidates to the bench—‘‘to system in which the Senate was con- any person, even in a person or body intrigue with [the Senators], more stitutionally required to exercise inde- elected by the majority of the citizens than with the Executive.’’ pendent judgment, not simply to of this country. In fact, during the drafting of the rubberstamp the President’s desires. Under the system the Founders cre- Constitution, four separate attempts As Senator William Maclay said: ated, they made sure that no longer were made to include Presidential in- [W]hoever attends strictly to the Constitu- would any one person or one body be volvement in judicial appointments, tion of the United States will readily observe able to run roughshod over everyone but because of the widespread fear of that the part assigned to the Senate was an else. They wanted to allow the sov- Presidential power, they all failed. important one—no less that of being the ereign people—not the sovereign Gov- There continued to be proponents of great check, the regulator and corrector, or, if I may so speak, the balance of this govern- ernment, the sovereign people—to pur- Presidential involvement, however, ment. . . .The approbation of the Senate was sue a strategy of divide and conquer and finally, at the eleventh hour, the certainly meant to guard against the mis- and, in the process, to protect the few appointment power was divided and takes of the President in his appointments against the excesses of the many which shared, as a consequence of the Con- to office . . . The depriving power should be they would witness in the French Rev- necticut Compromise I will speak to in the same as the appointing power. olution. a minute, between the two institu- The Founders gave us a system in The independence of the judiciary tions, the President and the Senate. which the Senate was to play a signifi- was vital to the success of that ven- In the end, the Founders set up a sys- cant and substantive role in judicial ture. As Federalist 78 notes: tem in which the President nominates nominations. They also provided us The complete independence of the courts of and the Senate has the power to give or guidance on what type of legislative justice is peculiarly essential in a limited withhold—or withhold—its ‘‘advice and body they envisioned. In this new type Constitution. consent.’’ The role of ‘‘advice and con- of governance system they set up in Our Founders felt strongly that sent’’ was not understood to be purely 1789 where power would be separated judges should exercise independent formal. The Framers clearly con- and would check other power, the judgment and not be beholden to any templated a substantive role on the Founders envisioned a special unique one person or one body. John Adams, part of the Senate in checking the role for the Senate that does not exist in 1776, stated: President. anywhere else in governance or in any The dignity and stability of government in This bifurcation of roles makes a lot parliamentary system. all its branches, the morals of the people, of sense, for how best can we ensure There is the oft-repeated discussion and every blessing of society, depend so that an independent judiciary is be- between two of our most distinguished much upon an upright and skillful adminis- holden to no one man or no one group Founding Fathers, Thomas Jefferson tration of justice, that the judicial power than by requiring two separate and and George Washington. Reportedly, at ought to be distinct from both the legislative and executive, and independent upon both, wholly independent entities to sign off a breakfast that Jefferson was having that so it may be a check upon both, as both before a judge takes the bench? with Washington upon returning from should be checks upon that. There is a Latin proverb which trans- Paris, because he was not here when Adams continues: lates to ‘‘Who will guard the guard- the Constitution was written, Jefferson ians?’’ Our judges guard our rights, and The judges, therefore, should always be was somewhat upset that there was a men of learning and experience in the laws, our Founders were smart enough to put bicameral legislative body, that a Sen- of exemplary morals, great patience, calm- both the President and the Senate, act- ate was set up. He asked Washington: ness and attention; their minds should not ing independently, in charge of guard- Why did you do this, set up a Senate? be distracted with jarring interests; they ing our judicial guardians. Who will And Washington looked at Jefferson as should not be dependent upon any one man guard the guardians? they were having tea and said: Why did or any body of men. As a Senator, I regard this not as just you pour that tea into your saucer? In order to ensure that judicial inde- a right but as a solemn duty and re- And Jefferson responded: To cool it. pendence, the very independence of sponsibility, one that transcends the I might note parenthetically that which Adams spoke, the Founders did partisan disputes of any day or any was the purpose of a saucer originally. not give the appointment power to any decade. The importance of multiple It was not to keep the tablecloth clean. one person or body, although it is in- checks in determining who our judges Jefferson responded: To cool it, and structive for us, as we debate this issue would be was not lost on our Founders, Washington then sagely stated: Even in determining the respective author- even on those who were very much in so, we pour legislation into the senato- ity of the Senate and the Executive, it favor of a strong Executive. rial saucer to cool it. is important to note that for much of For example, Alexander Hamilton, The Senate was designed to play this the Constitutional Convention, the probably the strongest advocate for a independent and, I might emphasize, power of judicial appointment was stronger Executive, wrote: moderating—a word not heard here

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00008 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD April 27, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 7881 very often—moderating and reflective later be Secretary of State, represented for mutual consultation and discussion; not role in our Government. But what as- Virginia at the Constitutional Conven- an arena for the exhibition of champions. pects of the Senate led it to become tion, and in that context he argued for Extended debate, the filibuster, was a this saucer, cooling the passions of the fully proportionate representation in means to reach a more modest and day for the betterment of America’s the debates over the proper form of the moderate result to achieve compromise long-term future? First, the Founders legislative branch, but ultimately he and common ground to allow Senators, certainly did not envision the Senate agreed to the Connecticut Compromise. as Webster had put it, to be men—and as a body of unadulterated majoritari- After reflection, that so seldom hap- now men and women—of absolute inde- anism. In fact, James Madison and pens among our colleagues, myself in- pendence. other Founders were amply concerned cluded, he realized his first position Until 1917, there was no method to about the majority’s ability, as they was incorrect and he stated: cut off debate in the Senate, to bring put it, ‘‘to oppress the minority.’’ It The general object was to provide a cure any measure to a vote, legislative or was in this vein the Senate was set up for the evils under which the United States nomination—none, except unanimous ‘‘first to protect the people against labored; that in tracing these evils to their consent. Unanimous consent was re- their rulers; secondly, to protect the origin every man— quired up until 1917 to get a vote on a people against the transient impres- Referring to every man who agreed judge, on a bill, on anything on the Ex- sions into which they themselves to the compromise— ecutive Calendar. The Senate was a place where minority rights flourished might be led. . . .The use of the Senate had found it in the turbulence and follies of is to consist in its proceeding with democracy; that some check therefore was to completely, totally unchecked, a place more coolness, with more system, and be sought against this tendency of our Gov- for unlimited rights of debate for each with more wisdom, than the popular ernments; and that a good Senate seemed and every Senator. In part this can be understood as a branch.’’ most likely to answer this purpose. Structurally, the Founders set up a So the Founders quite intentionally recognition of our federal system of ‘‘different type of legislature’’ by en- designed the Senate with these distinc- government in which we were not just suring that each citizen—now here is tive features. a community of individuals but we an important point, and if anybody in Specifically, article 1, section 5 of were also a community of sovereign this Chamber understands this, the the Constitution states that each States. Through the Senate, each State, through their two Senators, had Presiding Officer does—the Founders House may determine its own rules for a right to extensive debate and full set up this different type of legislative its own proceedings. Precisely: ‘‘Each House may determine the Rules of its consideration of its views. body by ensuring that each citizen did For much of the Senate’s history, Proceedings.’’ The text contains no not have an equal say in the func- until less than 100 years ago, to close limitations or conditions. This clause tioning of the Senate—that sounds out- off debate required not just two-thirds rageous, to ensure they did not have an plainly vests the Senate with plenary of the votes, but it required all of the equal say—but that each State did power to devise its internal rules as it votes. The Senate’s history is replete have an equal say. In fact, for over a sees fit, and the filibuster was just one with examples of situations in which a century, Senators were not originally of those procedural rules of the many committed minority flexed its ‘‘right chosen by the people, as the Presiding rules that vest a minority within the to debate’’ muscles. In fact, there was Officer knows, and it was not until 1913 Senate with the potential to have a a filibuster over the location of the that they were elected by the people as final say over the Senate’s business. Capitol of the United States in the opposed to selected by their State leg- It was clear from the start that the First Congress. But what about how islative bodies. Senate would be a different type of leg- this tradition of allowing unlimited de- Today, Mr. President, you and I do islative body; it would be a consensus bate and respect for minority rights stand directly before the people of our body that respects the rights of minori- played out in the nomination context, State for election, but the Senate re- ties, even the extreme minority power as opposed to the legislative process? mains to this day a legislative body of a single Senator because that single First, the text of the Constitution that does not reflect the simple pop- Senator can represent a single and makes no distinction whatsoever be- ular majority because representation is whole State. The way it is played out tween nominations and legislation. by States. in practice was through the right of Nonetheless, those who are pushing the That means someone from Maine has unlimited debate. nuclear option seem to suggest that over 25 times as much effective voting I find it fascinating, we are talking while respect for minority rights has a power in this body as the Senator from about the limitation of a right that has long and respected tradition on the leg- California. An interesting little fact, already limited the original right of islative side of our business, things and I do not say this to say anything the Founding Fathers. The fact was were somehow completely different other than how the system works, there was no way to cut off debate for when it came to considering nomina- there are more desks on that side of the first decades of this Republic. tions. In fact, it is the exact opposite. the aisle. That side has 55. Does that Joseph Story, famous justice and The history of the Senate shows, and side of the aisle realize this side of the probably one of the best known arbi- I will point to it now, that previous aisle, with 45 desks, represents more ters of the Constitution in American Senates certainly did not view that to Americans than they do? If we add up history, his remark about the impor- be the case. While it is my personal be- all the people represented by the Re- tance of the right of debate was ‘‘the lief that the Senate should be more ju- publican Party in the Senate, they add next great and vital privilege is the dicious in the use of the filibuster, that up to fewer people than the Democratic freedom of speech and debate, without is not how it has always been. For ex- Party represents in the Senate. We rep- which all other privileges would be ample, a number of President Monroe’s resent the majority of the American comparatively unimportant, or ineffec- nominations never reached the floor by people, but in this Chamber it is irrele- tual.’’ And that goes to the very heart the end of his administration and were vant and it should be because this was of what made the Senate different. defeated by delay, in spite of his popu- never intended in any sense to be a In the Senate, each individual Sen- larity and his party’s control of the majoritarian institution. ator was more than a number to be Senate. This distinctive quality of the Senate counted on the way to a majority vote, Furthermore, President Adams had a was part of that Great Compromise something I think some of us have for- number of judicial nominations without which we would not have a gotten. Daniel Webster put it this way: blocked from getting to the floor. More Constitution referred to as the Con- This is a Senate of equals, of men of indi- than 1,300 appointments by President necticut Compromise. Edmund Ran- vidual honor and personal character, and of Taft were filibustered. President Wil- dolph, who served as the first Attorney absolute independence. We know no masters, son also suffered from the filibusters of General of the United States and would we acknowledge no dictators. This is a hall his nominees.

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00009 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD 7882 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 April 27, 2005 Not only does past practice show no structive to look at a few historical ex- If we come to the nuclear option the Sen- distinction between legislation and ju- amples. In 1881, Republican President ate will be in turmoil and the Judiciary dicial nominations in regards to the Rutherford B. Hayes nominated Stan- Committee will be in hell. recognition of minority rights, the for- ley Matthews to the Supreme Court. A However serious the immediate con- mal rules of the Senate have never rec- filibuster was mounted, but the Repub- sequences may be, and however much ognized such a distinction, except for a lican majority in the Senate was un- such dysfunction would make both par- 30-year stretch in the Senate history, able to break the filibuster, and Stan- ties look juvenile and incompetent, the 1917 to 1949, when legislation was made ley Matthews’ Supreme Court nomina- more important consequence is the subject to cloture but nominations tion failed without getting a vote. long-term deterioration of the Senate. were not. Do my colleagues hear this? In 1968, the filibuster to block both Put simply, the nuclear option threat- All of those who think a judge is more Justice Abe Fortas from becoming ens the fundamental bulwark of the entitled to a vote than legislation, in Chief Justice and Fifth Circuit Court constitutional design. Specifically, the nuclear option is a double-barreled as- 1917 it was decided that absolute un- Judge Homer Thornberry to occupy the sault on this institution. First, requir- limited debate should be curtailed, and seat that Justice Fortas was vacating ing only a bare majority of Senators to there needs to be a two-thirds vote to was one where the Democrats con- confirm a judicial nominee is com- cut off debate in order to bring legisla- trolled the Senate, and the Republicans pletely contrary to the history and in- tion to the floor. filibustered. The leader of that success- tent of the Senate. The nuclear option But there was no change with regard ful filibuster effort against Justice also upsets a tradition and history that to judicial nominees. There was a re- Fortas was Republican Senator Robert says we are not going to change the quirement of unanimous consent to get Griffin from Michigan. In commenting rules of the Senate by a majority vote. a nominee voted on. So much for the on the Senate’s rejection of President It breaks the rule to change the rule. If argument that the Constitution leans George Washington’s nomination of we go down this path of the nuclear op- toward demanding a vote on nomina- John Rutledge to be Chief Justice of tion, we will be left with a much dif- tions more than on legislation. It flies the Supreme Court, the Republican ferent system from what our Founders in the face of the facts, the history of Senator who mounted a successful fili- intended and from how the Senate has America and the intent of our Framers. buster against Fortas on the floor— functioned throughout its history. This fact in itself certainly undercuts translated, Fortas never got a vote, The Senate has always been a place the claim that there has been, by tradi- even though he was a sitting Supreme where the structure and rules permit tion, the insulating of judicial nomi- Court Justice about to be elevated to fast-moving partisan agendas to be nees from filibusters. Chief Justice—what did the Senator slowed down; where hotheads could In both its rules and its practices, from Michigan who led that fight say cool and where consensus was given a the Senate has long recognized the ex- about the first fight in the Senate? second chance, if not a third and a ercise of minority rights with respect That action in 1795 said to the President fourth. to nominations. And it should come as then in office and to future Presidents: While 90 percent of the business is no surprise that in periods where the ‘‘Don’t expect the Senate to be a conducted by unanimous consent in electorate is split very evenly, as it is rubberstamp. We have an independent co- this body, those items that do involve now, the filibustering of nominations equal responsibility in the appointing proc- a difference of opinion, including judi- was used extensively. For example, my ess; and we intend to exercise that responsi- cial nominations, must at least gain bility, as those who drafted the Constitution good friend Senator HATCH who is on the consent of 60 percent of its Mem- so clearly intended.’’ the Senate floor—as my mother would bers in order to have that item become say, God love him, because she likes There is also a very important dif- law. This is not a procedural quirk. It him so much, and I like him, too—he ference between judicial and executive is not an accident of history. It is what may remember when I was chairman of nominees that argued for greater Sen- differentiates the Senate from the the Judiciary Committee back in the ate scrutiny of judicial nominees. It House of Representatives and the bad old days when the Democrats con- should be noted that legislation is not English Parliament. trolled the Senate during President forever. Judicial appointments are for President Lyndon Johnson, the Clinton’s first 2 years in office, a time the life of the candidate. ‘‘Master of the Senate,’’ put it this when the Democrats controlled both Of course, no President has unlimited way: the Presidency and the Senate but authority, even related to his own Cab- In this country, a majority may govern but nonetheless the country remained very inet. But when you look at judges, they it does not rule. The genius of our constitu- divided, numerous filibusters resulted, serve for life. tional and representative government is the An interesting fact that differen- multitude of safeguards provided to protect even in cases not involving the judici- minority interests. tiates us from the 1800s, when these ary. And it is not just leaders from the I remind my friends, for example, filibusters took place, and 1968, when Democratic Party who understand the that the nomination of Dr. Henry Fos- they took place: The average time a importance of protecting minority ter for Surgeon General, Sam Brown to Federal judge spends on the bench, if rights. Former Senate Majority Leader be ambassador to the Conference on appointed in the last 10 years from today, has increased from 15 years to 24 Howard Baker wrote in 1993 that com- Cooperation and Security in Europe, promising the filibuster: Janet Napolitano to be U.S. attorney years. That means that on average, every judge we vote for will be on that would topple one of the pillars of American in the District of Arizona, and Ricki Democracy: the protection of minority Tigert for the Federal Deposit Insur- bench for a quarter century. Since the rights from majority rule. The Senate is the ance Corporation head, were all filibus- impeachment clause is fortunately not only body in the federal government where tered. We controlled the Senate, the often used, the only opportunity the these minority rights are fully and specifi- House, the Presidency, but the Nation Senate has to have its say is in this cally protected. was nonetheless divided. process. Put simply, the ‘‘nuclear option’’ Some may counter that there should The nuclear option was so named be- would eviscerate the Senate and turn it be a difference between how judicial cause it would cause widespread bed- into the House of Representatives. It is nominees should be treated versus the lam and dysfunction throughout the not only a bad idea, it upsets the Con- treatment accorded executive branch Senate, as the minority party, my stitutional design and it disserves the nominees, the Cabinet, and the rest. party, has pledged to render its vig- country. No longer would the Senate be Constitutional text, historical practice orous protest. But I do not want to that ‘‘different kind of legislative and principle all run contrary to that dwell on those immediate consequences body’’ that the Founders intended. No proposition. which, I agree with my Senate Judici- longer would the Senate be the ‘‘sau- On the textual point, we only have ary Committee chairman, would be cer’’ to cool the passions of the imme- one appointments clause. It is also in- dramatic. He said: diate majority.

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00010 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD April 27, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 7883 Without the filibuster, more than 40 one that is purely majoritarian. Thus, I suffer from teaching constitutional Senators would lack the means by rather than simply being the next log- law for the last 13 years, an advanced which to encourage compromise in the ical step in accommodating the Senate class on constitutional law at Widener process of appointing judges. Without Rules to the demands of legislative and University, a seminar on Saturday the filibuster, the majority would policy modernity, the ‘‘nuclear option’’ morning, and I teach this clause. I transform this body into nothing more is a leap off the institutional precipice. point out the essence of our limited than a rubber stamp for every judicial And so here we collectively stand—on constitutional government, which is so nomination. the edge of the most important proce- different than every other, is that it is The Senate needs the threat of fili- dural change during my 32-year Senate based on the consent of the governed. buster to force a President to appoint career, and one of the most important The governed would never have given judges who will occupy the sensible ever considered in the Senate; a change consent in 1789 if they knew the outfit center rather than those who cater to that would effectively destroy the Sen- they were giving the consent to would the whim of a temporary majority. And ate’s independence in providing advice be able, by a simple majority, to alter here is why—it is a yes or no vote; you and consent. their say in their governance. can’t amend a nomination. I ask unanimous consent to be able The Senate is a continuing body, With legislation, you can tinker to continue for another 15 minutes. meaning the rules of the Senate con- around the edges and modify a bill to The PRESIDNG OFFICER. Without tinue from one session to the next. make it more palatable. You can’t do objection, it is so ordered. Specifically, rule V provides: that with a judge. You either vote for Mr. BIDEN. The ‘‘nuclear option’’ would gut the very essence and core of The rules of the Senate shall continue all of him or her, or none. So only by from one Congress to the next Congress un- the threat of filibuster can we obtain what the Senate is about as an institu- less they are changed as provided in these compromise when it comes to judges. tion—flying directly in the face of our rules. Founders who deliberately rejected a We, as Senators, collectively need to I say to my colleague from North parliamentary system. A current de- remember that it is our institutional Carolina, on the floor, I say to my col- bate, over a particular set of issues, duty to check any Presidential at- league from South Carolina, I say to should not be permitted to destroy tempt to take over the Judiciary. As my colleague from Utah: If you vote the Congressional Research Service, what history has bestowed on us. And the stakes are much, much high- for this ‘‘nuclear option’’ you are about the independent and non-partisan re- er than the contemporary controversy to break faith with the American peo- search arm of Congress, stated, the over the judiciary. Robert Caro, the ple and the sacred commitment that ‘‘nuclear option’’ would: noted author on Senate history, wrote was made on how to change the rules. . . . strengthen the executive branch’s the following in a letter to the Chair- Senate rule XXII allows only a rule hand in the selection of federal judges. man and Ranking Member of the Sen- change with two-thirds votes. The This shouldn’t be a partisan issue, ate Committee on Rules and Adminis- ‘‘continuing body’’ system is unlike but an institutional one. Will the Sen- tration: many other legislative bodies and is ate aid and abet in the erosion of its [I]n considering any modification [to the part of what makes the Senate dif- Article I power by conceding to an- right of extended debate in the Senate Sen- ferent and allows it to avoid being cap- other branch greater influence over our ators should realize they are dealing not tured by the temporary passions of the courts? As Senator Stennis once said with the particular dispute of the moment, moment. It makes it different from the to me in the face of an audacious claim but with the fundamental character of the House of Representatives, which comes by President Nixon: Senate of the United States, and with the up with new rules each and every Con- Are we the President’s men or the Sen- deeper issue of the balance between majority gress from scratch. ate’s? and minority rights . . ., you need only look The ‘‘nuclear option’’ doesn’t propose at what happened when the Senate gradually He resolved that in a caucus by surrendered more and more of its power over to change the judicial filibuster rule by speaking to us as only John Stennis international affairs to learn the lesson that securing a two-thirds vote, as required could, saying: once you surrender power, you never get it under the existing rules. It would I am a Senate man, not the President’s back. change the rule with only a bare ma- man. The fight over the nuclear option is jority. In fact, as pointed out recently Too many people here forget that. not just about the procedure for con- by a group of legal scholars: Earlier, I explained that for much of firming judges. It is also, fundamen- On at least 3 separate occasions, the Sen- the Senate’s history, a single Senator tally, about the integrity of the Sen- ate has expressly rejected the argument that could stop legislation or a nomination ate. Put simply, the ‘‘nuclear option’’ a simple majority has the authority claimed dead in its tracks. More recent changes changes the rules midstream. Once the by the proponents of the [nuclear option]. to the Senate Rules now require only 3⁄5 Senate starts changing the rules out- One historical incident is particu- of the Senate, rather than all of its side of its own rules, which is what the larly enlightening. In 1925, the Senate Members, to end debate. Proponents of nuclear option does, there is nothing to overwhelmingly refused to agree to the ‘‘nuclear option’’ argue that their stop a temporary majority from doing then-Vice President Dawes’ suggestion proposal is simply the latest iteration so whenever a particular rule would that the Senate adopt a proposal for of a growing trend towards majoritari- pose an obstacle. amending its rules identical to the nu- anism in the Senate. God save us from It is a little akin to us agreeing to clear option. that fate, if it is true. work together on a field. I don’t have On this occasion, an informal poll I strongly disagree. Even a cursory to sit down and agree with you that we was taken of the Senate. It indicated review of these previous changes to the are going to divide up this field, but I over 80 percent of the Senators were Senate Rules on unlimited debate show say, OK, I will share my rights in this opposed to such a radical step. that these previous mechanisms to in- field with you. But here is the deal we Let me be very clear. Never before voke cloture always respected minority agree to at the start. Any change in have Senate rules been changed except rights. the agreements we make about how to by following the procedures laid out in The ‘‘nuclear option’’ completely run this field have to be by a super- the Senate rules. Never once in the his- eviscerates minority rights. It is not majority. OK? Because that way I am tory of the Senate. simply a change in degree but a change giving up rights—which all the Found- The Congressional Research Service in kind. It is a discontinuous action ers did in this body, this Constitution— directly points out that there is no pre- that is a sea change, fundamentally re- rights of my people, for a whole gov- vious precedent for changing the Sen- structuring what the Senate is all ernment. But if you are going to ate rules in this way. about. change those rules with a pure major- The ‘‘nuclear option’’ uses an ultra- It would change the Senate from a ity vote, then I would have never got- vires mechanism that has never before body that protects minority rights to ten into the deal in the first place. been used in the Senate—‘‘Employment

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00011 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD 7884 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 April 27, 2005 of the [nuclear option] would require Would the fans—for either side— made bipartisan appointments, select- the chair to overturn previous prece- stand for that? If there is one thing ing nominees who were consensus can- dent. this country stands for it’s fair play— didates and often members of the other The Senate Parliamentarian, the not tilting the playing field in favor of party. nonpartisan expert on the Senate’s pro- one side or the other, not changing the President Clinton had two Supreme cedural rules—who is hired by the ma- rules unilaterally. We play by the Court nominees, and the left was push- jority—has reportedly said that Repub- rules, and we win or lose by the rules. ing us as hard as the right is pushing licans will have to overrule him to em- That quintessentially American trait you. What did he do? I spent several ploy the ‘‘nuclear option’’. is abandoned in the ‘‘nuclear option.’’ hours with him consulting on it. He Adopting the ‘‘nuclear option’’ would Republican Senators as well as Demo- picked two people on his watch who got send a terrible message about the mal- cratic ones have benefited from minor- 90 or so votes. Moderate, mainstream leability of Senate rules. No longer ity protections. Much more impor- appointments. He did not appoint would they be the framework that each tantly, American citizens have bene- Scalias. He did not appoint Thomases. party works within. fited from the Senate’s check on the He appointed people acceptable to the I’ve been in the Senate for a long excesses of the majority. time, and there are plenty of times I Republicans because he was wise But this is not just about games, and enough to know, even though he was would have loved to change this rule or playing them the right way. This is that rule to pass a bill or to confirm a President, we were still a divided Na- about a more ethereal concept—justice. tion. nominee I felt strongly about. In his groundbreaking philosophical History provides ample examples. But I didn’t, and it was understood treatise, A Theory of Justice, the phi- During the midst of the Civil War, that the option of doing so just wasn’t losopher John Rawls points to the im- on the table. President Lincoln selected members of portance of what he calls procedural You fought political battles; you the opposition Democratic party for justice. fought hard; but you fought them with- key positions, naming Stephen Field to Relying on this predecessors such as in the strictures and requirements of the Supreme Court in 1863 and Andrew Immanuel Kant, Thomas Hobbes, Jean the Senate rules. Despite the short- Johnson as his Vice Presidential can- Jacques Rousseau, and John Locke, term pain, that understanding has didate in 1864. Rawls argues that, in activities as di- served both parties well, and provided On the brink of American entrance long-term gain. verse as cutting a birthday cake and conducting a criminal trial, it is the into WWII, President Roosevelt like- Adopting the ‘‘nuclear option’’ would wise selected members of the opposi- change this fundamental under- procedure that makes the outcome just. An outcome is just if it has been tion Republican party, elevating Har- standing and unbroken practice of lan Fiske Stone to be Chief Justice and what the Senate is all about. Senators arrived at through a fair procedure. naming Henry Stimson as Secretary of would start thinking about changing This principle undergirds our legal War. other rules when they became system, including criminal and civil ‘‘inconvienent.’’ Instead of two-thirds trials. Moreover it is at the very core Other 20th Century Presidents fol- of the vote to change a rule, you’d now of our Constitution. The term ‘‘due lowed suit. In 1945, President Truman have precedent that it only takes a process of law’’ appears not once but named Republican Senator Harold Bur- bare majority. Altering Senate rules to twice in our Constitution, because our ton to the Supreme Court. In 1956, help in one political fight or another predecessors recognized the vital im- President Eisenhower named Democrat could become standard operating pro- portance of setting proper procedures— William Brennan to the Supreme cedure, which, in my view, would be proper rules—and abiding by them. Court. What has happened to us? What disastrous. It is also the bedrock principle we have we become? The Congressional Research Service Senators rely on in accepting outcomes Does anyone not understand this Na- has stated that adopting the ‘‘nuclear with which we may disagree. We know tion is divided red and blue and what it option’’ would set a precedent that the debate was conducted fairly—the needs is a purple heart and not a red could apply to virtually all Senate game was played by the rules. A deci- heart or a blue heart. sion to change the Senate’s rules in business. It would ultimately threaten Lest any of my colleagues think violation of those very same rules both parties, not just one. The Service these examples are merely culled from abandons the procedural justice that report states: the dusty pages of history, let me re- legitimates everything we do. The presence of such a precedent might, in mind them that the Senate has wit- It is interesting to ask ourselves principle, enable a voting majority of the nessed recent examples of consensus Senate to alter any procedure at-will by rais- what’s different about now, why are we appointments during times of close po- ing a point of order . . . by such means, a at this precipice where the ‘‘nuclear litical division. As I already men- voting majority might subsequently impose option’’ is actually being seriously de- tioned, President Clinton followed this limitations on the consideration of any item bated and very well might be utilized? of business, prohibiting debate or amend- historic practice during vacancies to Why have we reached this point when ment to any desired degree. Such a majority the Supreme Court a decade ago. might even alter applicable procedures from such a seemingly radical rule change is one item of business to the next, from one being seriously considered by a major- As explained by my friend, the Senior form of proceeding to a contrary one, de- ity of Senators? It’s a good question, Senator from Utah, who was then the pending on immediate objects. and I don’t have an easy answer. ranking member of the Senate Judici- Just as the struggle over the ‘‘nu- We have avoided such fights in the ary Committee, President Clinton con- clear option’’ is about constitutional past largely because cooler heads have sulted with him and the Republican law and Senate history, it is also about prevailed and accommodation was the Caucus during the High Court vacan- something much more simple and fun- watchword. cies in 1993 and 1994. The result was damental—playing by the rules. As Senator Sam Ervin used to say— President Clinton’s selection of two I reiterate that I think Senator the separation of powers should not, as outstanding and consensus nominees— FRIST and his allies think they are act- President Woodrow Wilson warned, be- Ruth Bader Ginsburg and Stephen ing on the basis of principle and com- come an invitation for warfare between Breyer—both of whom were confirmed mitment, but I regret to say they are the two branches. overwhelmingly by the Senate, by also threatening to unilaterally change Throughout this country’s history— votes of 97–3 and 87–9, respectively. the rules in the middle of the game. whether during times of war or polit- Indeed, the last two vacancies to the Imagine a baseball team with a five- ical division, for example—Presidents Supreme Court are text book examples run lead after eight innings unilater- have sometimes extended an olive of the executive branch working in co- ally declaring that the ninth inning branch across the aisle. Past Presi- operative and collegial fashion with its will consist of one out per team. dents have in these circumstances Senate counterpart to secure consensus

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00012 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD April 27, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 7885 appointments, thus averting an ideo- lowing himself to nominate these addi- First, let’s examine 1917. On the eve logical showdown. The two constitu- tional judges. In an act of great cour- of the United States’ entry into WWI, tional partners given roles in the nomi- age, Roosevelt’s own party stood up with American personnel and vessels in nation process engaged in a consult- against this institutional power grab. great danger on the high seas, Presi- ative process that respected the rights They did not agree with the judicial ac- dent Wilson asked that Congress au- and obligations of both branches as an tivism of the Supreme Court, but they thorize the arming of American mer- institutional matter, while also pro- believed that Roosevelt was wrong to chant vessels. Over three-fourths of the ducing outstanding nominees who were seek to defy established traditions as a Senate agreed with this proposal on highly respected by both parties. way of stopping that activism. the merits, but a tiny minority op- To be sure, a careful review of our In May 1937, the Senate Judiciary posed it. With American lives and prop- Nation’s history does not always pro- Committee—a committee controlled by erty at grave risk, the Senate still vide the examples of consultation, the Democrats and supportive of his took over 2 months to come to the comity, or consensus in the nomina- political ends—issued a stinging re- point of determining to change its tion process. Presidents of both parties buke. They put out a report con- rules to permit cloture. have at times attempted to appoint demning Roosevelt’s plan, arguing it When they did so, they did it by vir- nominees—or remove them once con- was an effort ‘‘to punish the justices’’ tual consensus, and in a supremely bi- firmed—over the objections of the Sen- and that executive branch attempts to partisan manner. A conference com- ate, including in some instances where dominate the judiciary lead inevitably mittee composed equally of Democrats the Senate was composed of a majority to autocratic dominance, ‘‘the very and Republicans, each named to the of the President’s own party. And thing against which the American committee by their party leadership, sometimes the Senate has had to stand Colonies revolted, and to prevent which drafted and proposed the new rule. It strong and toe the line against impe- the Constitution was in every par- was then adopted by an overwhelming rialist Presidential leanings. ticular framed.’’ vote of 76–3. Our first President, George Wash- Our predecessors in the Senate In 1975, I was part of a bipartisan ef- ington, saw one of his nominees to the showed courage that day and stood up fort to lower the threshold for cloture Supreme Court rejected by this Senate to their President as a coequal institu- from two-thirds to three-fifths. Many in 1795. The Senate voted 14 to 10 to re- tion. And they did so not to thwart the of us were reacting against the filibus- ject the nomination of John Rutledge agenda of the President, which in fact tering for so many years of vital civil of South Carolina to be Chief Justice. many agreed with; they did it to pre- rights legislation. Civil rights is an What is historically instructive, I be- serve our system’s checks and bal- issue I feel passionately about and was lieve, is that while the Senate was ances; they did it to ensure the integ- a strong impetus for me seeking public dominated by the Federalists, Presi- rity of the system. When the Founders office in the first place. Don’t get me dent Washington’s party, 13 of the 14 created a ‘‘different kind of legislative wrong—I was not calling the shots Senators who rejected the Rutledge body’’ in the Senate, they envisioned a back in 1975; I was a junior Senator nomination were Federalists. bulwark against unilateral power—it having been in the chamber for only 2 The Senate also stood firm in the worked back then and I hope that it years. 1805 impeachment of Supreme Court works now. But I will make no bones about it— Justice Samuel Chase. President Jef- The noted historian Arthur Schles- for about two weeks in 1975—I was part ferson’s party had majorities in both inger, Jr., has argued that in a par- of a slim bipartisan majority that sup- the House and the Senate, and Jeffer- liamentary system President Roo- ported jettisoning established Senate son set his sights on the Supreme sevelt’s effort to pack the court would rules and ending debate on a rules Court. Specifically, he wanted to re- have succeeded. Schlesinger writes: change by a simple majority. move Justice Chase, a committed Fed- ‘‘The court bill couldn’t have failed if The rule change on the table in 1975 eralist and frequent Jefferson critic, we had had a parliamentary system in was not to eliminate the filibuster in from the Court. 1937.’’ A parliamentary legislature its entirety, which is what the current Jefferson was able to convince the would have gone ahead with their ‘‘nuclear option’’ would do for judicial House to impeach Justice Chase on a President, that’s what they do, but the nominations; rather it was to change party-line vote, and the President had Founders envisioned a different kind of from the then-existing two-thirds clo- enough members of his party in the legislature, an independent institution ture requirement to three-fifths. It was Senate to convict him. But members of that would think for itself. In the end, a change in degree, not a fundamental the President’s own party stood up to Roosevelt’s plan failed because Demo- restructuring of the Senate to com- their President; the Senate as an insti- crats in Congress thought court-pack- pletely do away with minority rights. tution stood up against executive over- ing was dangerous, even if they would The rule change was also attempted reaching. Justice Chase was not con- have supported the newly-constituted at the beginning of the Senate session victed, and the independence of the ju- court’s rulings. The institution acted and applied across the board, as op- diciary was preserved. as an institution. posed to the change currently on the The Senate again stood firm in the In summary, then, what do the Sen- table, brought up mid-session con- 1937 court-packing plan by President ate’s action of 1795, 1805, and 1937 share cerning only a very small subset of the Franklin Roosevelt. in common? I believe they are exam- Senate’s business. Nonetheless, my de- This particular example of Senate re- ples of this body acting at its finest, cision to support cutting off debate on solve is instructive for today’s debates, demonstrating its constitutional role a rules change by a simple majority so let me describe it in some detail. It as an independent check on the Presi- vote was misguided. was the summer of 1937 and President dent, even popularly elected Presidents I carefully listened to the debate in Roosevelt had just come off a landslide of the same political party. 1975 and learned much from my senior victory over Alf Landon, and he had a One final note from our Senate his- colleagues. In particular, I remember Congress made up of solid New Dealers. tory. Even when the Senate’s rules Senator Mansfield being a principled But the ‘‘nine old men’’ of the Supreme have been changed in the past to limit voice against the effort to break the Court were thwarting his economic extended debate, it has been done with rules to amend the rules. agenda, overturning law after law over- great care, remarkable hesitancy, and Senator Mansfield stood on this floor whelmingly passed by the Congress and by virtual consensus. Take what oc- and said the following: curred during the Senate’s two most from statehouses across the country. [T]he fact that I can and do support In this environment, President Roo- important previous changes to the fili- [changing the cloture threshold from 2⁄3 to 3⁄5] sevelt unveiled his court-packing buster rule: the 1917 creation of cloture does not mean that I condone or support the plan—he wanted to increase the num- and the 1975 lowering of the cloture route taken or the methods being used to ber of Justices on the court to 15, al- threshold. reach the objective of Senate rule 22. The

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00013 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD 7886 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 April 27, 2005 present motion to invoke cloture by a simple founding and also a question posed to You know, I liked Jefferson, but I always majority, if it succeeds would alter the con- us today. At the time of the founding, thought he borrowed some of my best stuff cept of the Senate so drastically that I can- it was a question about whether Amer- for that declaration he wrote. This poisoned not under any circumstances find any jus- ica would be able to choose well in de- pill, euphemistically designated ‘‘the nuclear tification for it. The proponents of this mo- option’’, has been around a long time—since tion would disregard the rules which have termining our form of government. 1917, in fact, the year the cloture rule was governed the Senate over the years, over the We know from the experience of the adopted by the U.S. Senate. It required no decades, simply by stating that the rules do last 225 years that the founding genera- genius of Brobdingnagian proportions to con- not exist. They insist that their position is tion chose well. As a question posed to jure up this witch’s brew. All that it takes is right and any means used are, therefore, citizens and to Senators of today, it is (1) to have the chair wired; (2) to have a ma- proper. I cannot agree. a question about whether we will be jority of 51 votes to back the chair’s ruling; Senator Mansfield’s eloquent defense able to preserve the form of govern- and (3) a determined ruthlessness to execute of the Senate’s institutional character ment they chose. the power grab. and respect for its rules rings as true The Framers created the Senate as a Over the 88 years since 1917, however, no White House and no party in control of the today as it did 30 years ago. Senator unique legislative body designed to Senate has ever resorted to the use of this Mansfield’s courage and conviction in protect against the excesses of any draconian weapon in order to achieve its that emotionally charged time is fur- temporary majority, including with re- goal. Until now. Why now? It is because a de- ther evidence, I believe, of why he is spect to judicial nominations; and they termined minority in the Senate has refused one of the giants of the Senate. left all of us the responsibility of guar- to confirm only 10 of over 200 nominees to In the end, cooler heads prevailed and anteeing an independent Federal judi- federal judgeships submitted by President the Senate came together in a way ciary, one price of which is that it George Bush during this first term as Presi- only the Senate can. I changed my sometimes reaches results Senators do dent. Since his reelection, President Bush mind; I along with my Senate col- has resubmitted 7 of the 10 nominees who not like. failed to be confirmed in his first term. leagues. We reversed ourselves and It is up to us to preserve these pre- Hence, a heavy-handed move is about to be changed the cloture rule but only by cious guarantees. Our history, our made to change the rules by disregarding the following the rules. Ultimately, over 3⁄4 American sense of fair play, and our standing rules of the Senate that have gov- of the voting Senators—a bipartisan Constitution demand it. erned freedom of speech and debate in the group—voted to end debate. In fact, the I would ask my colleagues who are Senate for over 200 years. The filibuster deal that was struck called for reduc- considering supporting the ‘‘nuclear must go, they say. ing the required cloture threshold from option’’—those who propose to ‘‘jump Obstructive tactics in a legislative forum, although not always known as filibusters, 2⁄3 to 3⁄5; but it retained the higher 2⁄3 off the precipice’’—whether they be- are of ancient origin. Plutarch reported that, threshold for any future rules changes. lieve that history will judge them fa- while Caesar was on sojourn in Spain, the Now I understand that passions today vorably. election of Consuls was approaching. ‘‘He ap- are running high on both sides of the In so many instances throughout this plied to the Senate for permission to stand ‘‘nuclear option’’ issue, and I can relate esteemed body’s past, our forefathers candidate,’’ but Cato strongly opposed his re- to my current Republican colleagues. I came together and stepped back from quest and ‘‘attempted to prevent his success agree with my distinguished Judiciary the cliff. In each case, the actions of by gaining time; with which view he spun at Committee Chairman that neither side those statesmen preserved and the debate till it was too late to conclude has clean hands in the escalating judi- strengthened the Senate, to the better- upon anything that day.’’ Hey, the filibuster cial wars. ment of the health of our constitu- has only been around 2,064 years, since circa I also understand the frustration of 59 B.C.! tional republic and to all of our advan- Filibusters were also a problem in the Brit- my Republican colleagues—especially tage. ish Parliament. In 19th century England, those who are relatively new to this Our careers in the Senate will one even the members of the Cabinet accepted Chamber—that a minority of Senators day end—as we are only the Senate’s the tactics of obstruction as an appropriate can have such power in this body. temporary officeholders—but the Sen- weapon to defeat House of Commons’ initia- For me, the lesson from my 1975 ex- ate itself will go on. tives that were not acceptable to the govern- perience, which I believe strongly ap- Will historians studying the actions ment. In this country, experience with pro- plies to the dispute today, is that the taken in the spring of 2005 look upon tracted debate began early. In the first ses- Senate ought not act rashly by chang- the current Members of this Senate as sion of the First Congress, for example, there ing its rules to satisfy a strong-willed was a lengthy discussion regarding the per- statesmen who placed the institution manent site for the location of the Capitol. majority acting in the heat of the mo- of the United States Senate above Fisher Ames, a member of the House from ment. party and politics? Massachusetts, complained that ‘‘the minor- Today, as in 1975, the solution to Or will historians see us as politi- ity . . . makes every exertion to . . . delay what some have called a potential con- cians bending to the will of the Execu- the business.’’ stitutional crisis lies in the deliberate tive and to political exigency? Senator William Maclay of Pennsylvania and thoughtful effort by a bipartisan I, for one, am comfortable with the complained that ‘‘every endeavor was used majority of Senators to heed the wis- role I will play in this upcoming his- to waste time,...’’ Long speeches and dom of those who established the care- toric moment. other obstructionist tactics were more char- acteristic of the House than of the Senate in fully crafted system of checks and bal- I hope all my colleagues feel the the early years. ances protecting the rights of the mi- same. There have been successful filibusters that nority. It’s one thing to change Senate Mr. President, on behalf of Senator have benefited the country. For example, in rules at the margins and in degrees, BYRD, I ask unanimous consent to have March 1911, Senator Owen of Oklahoma fili- it’s quite another to overturn them. printed in the RECORD a speech against bustered a measure granting statehood to Federalist No. 1 emphasizes that the nuclear option delivered earlier New Mexico, arguing that Arizona should Americans have a unique opportunity— this week by Senator BYRD to the Cen- also be a state. President Taft opposed the to choose a form of government by ‘‘re- ter for American Progress. inclusion of Arizona’s statehood because a flection and choice’’: There being no objection, the mate- provision of Arizona’s state constitution per- mitted the recall of judges. Arizona later at- It has been frequently remarked that it rial was ordered to be printed in the tained statehood, at least in part because seems to have been reserved to the people of RECORD, as follows: Senators took time to make the case the this country . . . to decide the important UPHOLDING THE TRADITION OF FREEDOM OF year before. Another example occurred in question, whether societies of men are really SPEECH—APRIL 25, 2005 July 1937, when a Senate filibuster blocked capable or not of establishing good govern- ‘‘That 150 lawyers should do business to- FDR’s Supreme Court-packing plan until ment from reflection and choice, or whether gether (in the U.S. Congress) ought not to be public opinion turned against the plan. they are forever destined to depend for their expected.’’ Those are the words of Thomas Freedom of speech and debate is enshrined political constitutions on accident and force. Jefferson. in Article I, Section 6, of the U.S. Constitu- We need to understand that this is a Now comes the so-called Nuclear Option, tion. The roots run deep. Before the British question posed at the time of the or Constitutional Option to prove him right. Parliament would proclaim William III and

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00014 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD April 27, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 7887 Mary as king and queen of England, they mous action, the Great Compromise of July credibly, today we stand right on the brink, were required to swear allegiance to the 16, 1787, the Senate and the House balance maybe only days away, from destroying the British Declaration of Rights, which they did each other, reflecting majority rule and mi- checks and balances of our Constitution. on February 13, 1689. They were then de- nority rights like halves of the same apple in What has happened to the quality of leader- clared joint sovereigns by the House of Com- our Republic, and achieving a delicate bal- ship in this country that would allow us to mons. The declaration was converted into ance—a finely tuned, exquisitely honed ac- even consider provoking a Constitutional the English Bill of Rights by statute on De- commodation of tensions which has endured crisis of such major proportions? Where is cember 16, 1689, the 9th Article of which for over 200 years. To paraphrase the words the gentle art of compromise? Edmund guarantees freedom of speech and debate in of James Madison, the Republic has been Burke said, ‘‘All government—indeed, every Parliament in words similar to those in our structured to, ‘‘guard against the cabals of a human benefit and enjoyment, every virtue own Constitution, Article I, Section 6. few . . .,’’ as well as against the ‘‘confusion and every prudent act—is founded on com- So now, for the first time in the 217 years of a multitude . . .’’ promise and barter.’’ As I have said earlier, since 1789, the tradition of freedom of speech The Constitution, under Article II, Section the nuclear option has been around for years. and debate in the Senate is under a serious 2, requires a President to submit his selec- It could have been employed at anytime. threat of extinction by the majority party tion of Federal judges, members of his own Yet, no leader of either party chose to go through resort to the nuclear option. cabinet, and certain other high-ranking offi- down that path because the consequences are Marty Gold, deservedly respected for his cials to the Senate for its ‘‘advice and con- so dire. Why have we arrived at such a dan- knowledge of the Senate rules and prece- sent.’’ The Framers allowed the Executive gerous impasse? dents, and opponents of free speech and de- only to propose. It was left to the Senate to Reaction to recent decisions handed down bate claim that, during my tenure as Major- dispose. There is no stipulation in the Con- by Federal Courts has fueled the drive to- ity Leader in the United States Senate, I es- stitution as to how the Senate is to express ward this act of self destruction. Many citi- tablished precedents that now justify a pro- its advice or give its consent. President Bush zens, religious people, angered by a feeling of posal for a misguided attempt to end debate incorrectly maintains that each nominee for years of exclusion from our political process, on a judicial nomination by a simple major- a federal judgeship is entitled to an up or are deeply frustrated. I am in sympathy with ity vote, rather than by a 3/5s vote of all Sen- down vote. The Constitution doesn’t say such feelings. I do not agree with many of ators duly chosen and sworn as required by that. It doesn’t even say that there has to be the decisions which have come from the Paragraph 2 of Senate Rule XXII. Their a vote with respect to the giving of ‘‘its con- courts concerning prayer in school, and pro- claims are false. Utterly false! sent.’’ The Senate can refuse to confirm a hibitions on the public display of religious nominee simply by saying nothing and doing Proponents of the so-called ‘‘nuclear op- items. For example, relating to freedom of nothing. In Section 2, Article II, it says, tion’’ cite several instances in which they in- religion, Article I states: ‘‘Congress shall ‘‘... and by and with the advice and con- accurately allege that I ‘‘blazed a procedural make no law respecting an establishment of sent of the Senate, [He] shall appoint ambas- path’’ toward an inappropriate change in religion, or prohibiting the free exercise sadors . . . Judges of the Supreme Court, and Senate rules. They are dead wrong. Dead thereof; . . .’’ In my opinion, the courts have all other Officers of the United States. . . .’’ wrong! They draw analogies where none exist Just as in Article I concerning the setting not given equal weight to both of these and create cockeyed comparisons that fail to of Senate rules, Article II allows the Senate clauses but have stressed the first clause withstand even the slightest intellectual the freedom to determine how it will use its while not giving enough weight to the second scrutiny. My detailed response to these false advice and consent powers. The choice of the clause ‘‘or prohibiting the free exercise claims and allegations appears in the March Senate as the single entity to work with the thereof;. . . .’’ I have always believed that 20, 2005, edition of the Congressional Record. President on the selection of life-tenured this country was founded by men and women But, simply put, no action of mine ever de- federal judges seems strongly to indicate the of strong faith, and that their intent was not nied a minority of the Senate a right to full Framer’s desire for scrutiny by the House of to suppress religion in the life of our nation, debate on the final disposition of a measure Congress uniquely designed for the protec- but to ensure that the government favored or matter pending before the Senate. Not in tion of minority views. The Framers could no one religion over another. I understand 1977, not in 1979, not in 1980, not in 1987—the have selected the majoritarian House of Rep- the extreme anger of many good people who dates cited by critics as grounds for the nu- resentatives for such a duty. They did not. In decry the nature of our popular culture, with clear option. In none of the instances cited fact, they totally excluded the House. They its overt emphasis on sex, violence, pro- by those who threaten to invoke the nuclear made a conscious decision to delegate the fanity, and materialism. They have every option did my participation in any action ‘‘advice and consent’’ function to the United right to seek some sort of remedy. But these deny the minority in the Senate, regardless States Senate. frustrations, as great as they are, must not of party, its right to debate the real matter But, suppose the President’s party controls be allowed to destroy crucial institutional at hand. the Senate, and therefore controls the votes mechanisms which protect minority rights, Now why can’t reasonable Senators on of a majority in the Senate? Where then, is and curb the power of an overreaching Presi- both sides of the aisle act in the best inter- the check on Presidential power? The fili- dent. Yet, that is exactly what is about to ests of the Senate, the Constitution, and the buster is the minority’s strongest tool in happen, with this very misdirected attack on country by working together to find a way to providing the Constitutional curb on raw the filibuster. avoid this procedural Armageddon? Presi- Presidential power when it comes to nomina- The outlook for compromise is dim. The dent Gerald Ford always said that he be- tions and the federal courts. Of course, the debate has reached a fever pitch and polit- lieved in friendly compromise and called President’s party could occupy 60 seats in ical polarization is at levels I have never compromise ‘‘the oil that makes govern- the Senate, and that would be enough to seen. Democrats have overreached. Repub- ments go.’’ break any filibuster except when amending licans have overreacted. And the White When I was a mere lad in southern West the rules. But, 60 votes is a high threshold, House has poured salt in the wound by send- Virginia, I once accidentally threw a wooden and does provide an effective check on the ing the same contentious nominations right airplane I had crafted through the glass of a abuse of power. Why would we ever want to back to the Senate as if there were not a window in a neighbor’s house. The neighbor’s eliminate this important check on Presi- country full of qualified and talented judges name was Mr. Arch Smith. He was angry, dential power? Haven’t we always had a from which to choose. Our two great polit- and I was scared. Into the house I went to healthy suspicion of too much power in the ical parties are not having a national debate. plead with Mr. Smith not to tell my Dad. I hands of a King or any President regardless We are simply shouting at each other. I have knew that a belt thrashing awaited me if he of party affiliation? The filibuster is the heard statements of late which cause me to did. I promised to pay Mr. Smith 35 cents for final bulwark preventing a President from shudder—such things as, ‘‘Democrats hate the windowpane if he would stay mum about stacking the courts (as FDR tried to do in America,’’ or ‘‘Democrats hate people of the accident. I would raise the 35 cents by 1937) if his political party holds a majority in faith,’’ or ‘‘Republicans want to eliminate running errands for a friendly lady next the Senate. Without the ability by a minor- separation of Church and State.’’ Thinking door. We struck a deal. We compromised. ity to defeat cloture by a supermajority Americans would ordinarily shun such ex- And my dad never learned of the incident vote, that slim wall holding back the waters treme and ridiculous rhetoric. Yet, vitupera- until after I had paid my debt. That com- of destruction of a fair and independent judi- tion and extremism continue to rage on all promise saved me a licking, and paid for Mr. ciary, ruptures. Other liberties enumerated sides. There have even been overt attempts Smith’s broken window. The sweet art of in the bill of rights can then also be washed to physically threaten and intimidate Fed- compromise solved our dispute. away by a President who stacks the courts eral judges. When the nation becomes this Of course, the Senate itself is the result of to reflect a political agenda. Freedom of divided, when the spin becomes this mean, a compromise which solved a dispute. The speech, freedom of religion, all could be the destruction of basic principles which Senate answered the plea of the smaller gone, wiped out by a partisan court, be- have been our guide for more than two cen- states for equality and a forum where they holden to one man: the President. turies looms straight ahead. Moreover, the could have equal representation and minor- The threat of the so-called ‘‘nuclear op- trashing and trampling of comity leaves ugly ity views could be heard. Because of that fa- tion’’ puts us on a dangerous course. Yet, in- scars sure to fester and linger. How can we

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recover from the venom spewed by this dan- tices. Except for a very limited ‘‘floating’’ of JUDICIAL NOMINATIONS gerous political ploy and get on with the names shortly before the President sends up Mr. HATCH. The Senator from Dela- people’s business, especially if the nuclear a nomination for the Supreme Court, no one ware a few minutes ago claimed we trigger is actually pulled? gets to weigh in on the choices until after have never changed our procedures by At such times as these, the character of they are made. As in so many instances in the leaders of this country is sorely tested. Washington, broad consultation is non- majority vote. Four times the distin- Our best leaders search for ways to avert existent. In the case of potential occupants guished Senator from West Virginia led such crises, not ways to accelerate the for the Federal Bench, that is a recipe for in- this body to do exactly that when he plunge toward the brink. Overheated par- stant polarization before hearings on nomi- was acting as majority leader—in 1977, tisan rhetoric is always available, although nees are even held. Everyone quickly takes 1979, 1980, and 1987. Using a ruling from these days it seems to come especially sides, and the steam mounts like in an over- the Chair and a majority of all the Sen- cheap, but the great majority of our people heated pressure cooker until the lid is about ate, a simple majority, we changed pro- to blow off. want a healthy two-party system and leaders cedure relating to both legislation and who know how to work together, despite se- Therein lies the source of some of the rious differences. fighting over the make-up of the Courts—no nominations. The record has to be The current uproar serves only to under- prior consultation, so, in effect, no ‘‘advice’’ made clear. score the mounting number of problems not independent of the White House. Our bill All we are asking is the 214-year tra- being addressed by this government. Over aims to release some of that steam in this dition of the Senate that judicial nomi- forty five million persons in our country, way. The Senate Judiciary Committee would nees not be filibustered be followed. some 15% of our population cannot afford establish a pool of possible Supreme Court That has been the tradition of the Sen- health care insurance. Our infant mortality nominees for the President to consider, ate up until President Bush became rate is the second highest of the major indus- based on suggestions from Federal and State judges, distinguished lawyers, law professors, President. All we are asking is that trialized countries of the world. Our deficits every one of these qualified nominees are skyrocketing. Poverty in these United and others with a similar level of insight States is rising, with 34 million people or into the suitability of individuals for ap- who have reached the floor receive an 12.4% of the population living below the pov- pointment to the Supreme Court. up-or-down vote. That is all we are erty line. Our veterans lack adequate med- Such a pool would fulfill the Senate’s ‘‘ad- asking. ical care after they have risked life and limb vice’’ function under Article II, Section 2. In These are highly qualified nominees. for all of us. Our education system produces other words, everyone could get their ‘‘oar’’ The ABA has ruled they are qualified into the prospective judicial waters. The 8th graders ranked 19th out of38 countries in in every case. They all have a majority the world in math, and 12th graders ranked President would of course be free to ignore the pool if he chose to do so. But, the ‘‘ad- bipartisan vote in their favor. If our 19th out of 21 countries in both math and colleagues on the other side do not science. Yet, we debate and seek solutions to vice’’ required by the Constitution would be none of these critical problems, and instead formally available, and the President would want to vote for them, they can vote focus all energy on the frenzy over the selec- know that the individuals in the pool had re- against them. That will be their right. tion of judges, and seek as an antidote to our ceived a bipartisan nod from the Senate I would fight always to maintain that frustration, the preposterous solution of per- Committee required to do the vetting. Such right. But give them a vote, vote up or manently crippling freedom of speech and a pool might even be expanded to include all down. That is what we have always nominees for our federal judiciary. debate and the right of a minority to dissent done for 214 years before this President in the United States Senate. Perhaps letting the Senate in on the judi- cial ‘‘take off’’ as well as the landing can became President. It is very important to remember that the The actions of our colleagues on the Senate has formalized ways of considering help in the future to heal some of the anger changes to our rules. Changes require 67 which dominates the discussion of the Fed- other side amount to changing that votes to curtail a filibuster of rules changes. eral Courts these days. 214-year traditional history of this Sen- But for now, like many of you, I simply If this nuclear option is employed in the way ate. hope and pray that cooler heads will prevail, most frequently discussed, i.e. a ruling from By the way, we never called this the and compromise (that fading art) will pre- the chair that a supermajority requirement vent us from heading over the cliff. There nuclear option. It was called the nu- for cloture on a filibuster in respect to are, at least some efforts in that direction, clear option by the Democrats. We amending the rules is unconstitutional, if but time is very short. In just a few days we called it the constitutional option be- sustained by 51 votes, cloture will require may see the unbelievable come to pass—one cause the Constitution says the Presi- only a simple majority vote with respect to man, the President, able to select the third, dent has the right to appoint and nomi- federal judgeships. There is nothing, then, unelected branch of government, including except good sense, which seems to be in very nate these people for judicial positions. the court of last resort, the Supreme Court; short supply, to prevent majority cloture of We have the right to advise and—it is the Senate of the United States relegated to any filibuster on any measure or matter, sometimes left off in this body—con- a second House of Representatives with six whether on the legislative or the executive year terms; free speech and unfettered de- sent, which means a vote up and down. calendar. Think of that! Rules going back for bate rejected; and the Constitutional checks That is what I think our colleagues over 200 years and beyond, with roots in the and balances in sad and sorry tatters. ignore. This is a dangerous thing. I call early British Parliament, can be swept away Shame! What a shame! it the constitutional option, or I call it by a simple majority vote. Because of dema- In closing, let us remember the words spo- the Byrd option because our distin- goguery, lack of leadership, raw ambition, ken by Vice President Aaron Burr in 1805 hysteria, and a state of brutal political war- guished friend, the Senator from West when he addressed the Senate for the last Virginia, is the one who used this four fare that wants no truce and brooks no time: peacemakers, we may destroy the U.S. Sen- This House is a sanctuary; a citadel of law, times. ate, leaving in our wake a President able to of order, and of liberty; and it is here—it is If politics is a medicine, an effective select and intimidate the courts like a King, here, in this exalted refuge; here, if any- prescription gives an accurate diag- and a system of government finally and where, will resistance be made to the storms nosis. I take a step back and offer a di- irretrievably lost in a last pathetic footnote of political phrensy and the silent arts of agnosis of our current struggle over to Ben Franklin’s rejoinder for the ages, ‘‘a corruption; and if the Constitution be des- how to conduct the judicial confirma- Republic, if you can keep it.’’ This is scary! tined ever to perish by the sacrilegious I suspect that at least part of what all of tion process. I hope this will bring a hands of the demagogue or the usurper, few pieces together, connect some dots, this dangerous sound and fury is about can which God avert, its expiring agonies will be be explained by the advanced ages of several witnessed on this floor. and provide a little perspective. Supreme Court Justices, and rumors of the Ladies and gentlemen, the clock is running The first principle is every judicial Chief Justice’s coming retirement due to ill and the hour of fulfillment of Vice President nomination reaching the Senate de- health. The White House does not want a fili- Burr’s prophesy is virtually at hand. serves an up-or-down vote. buster in the Senate to derail a future choice The PRESIDING OFFICER. The Sen- This principle has constitutional for the Supreme Court. ator from Utah. roots, historical precedent, and citizen Let me step into the brink and propose support. I begin with the Constitution something that might calm some waters. In Mr. HATCH. I ask unanimous consent the 105th Congress, Senator ARLEN SPECTER we be extended an extra 15 minutes, as because that is where we should always and I introduced S. Res. 146, a bill which well. begin. The Constitution is the supreme would establish an advisory role for the Sen- The PRESIDING OFFICER. Without law of the land. Along with the Dec- ate in the selection of Supreme Court Jus- objection, it is so ordered. laration of Independence, it is one of

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00016 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD April 27, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 7889 the foundational organic laws of the room. I am actually surprised that of powers, and force us into a brave, United States. It is the charter that such a biased question did not get even new world which turns the judicial ap- each of us, as Senators, swears an oath more than 66-percent support. pointment process inside out. They before God to preserve, protect, and de- A more balanced, neutral, fair poll want to turn our check on the Presi- fend. was released yesterday, asking whether dent’s appointment power into a force That Constitution separates the Senate procedures should make sure that hijacks that power altogether. three branches of Government, assign- that the full Senate votes up or down That would be serious and constitu- ing legislation to us in the legislative on every judicial nomination of any tionally suspect if a Senate majority branch, and assigning appointments to President. The results, not surpris- did it. It is even more serious when, as the President in the executive branch. ingly, were exactly the opposite of the we see today, a minority of Senators— We have heard that the Constitutional biased poll, with 64 percent of Ameri- all partisan Senators—tries to capture Convention considered other arrange- cans, including 59 percent of moderates the process. ments for appointing judges. That may and almost half of all liberals, embrac- For 2 years now, we have heard be, but the Constitutional Convention ing this commonsense, fair, and tradi- claims that these filibusters are noth- rejected those arrangements. Rejected tional standard. ing new, that they have been part and ideas do not govern us. The Constitu- The second aspect of this diagnosis is parcel of how the Senate has long done tion does. And the Constitution makes that the judicial nominees being denied its confirmation business. While some the President, in Alexander Hamilton’s this traditional up-or-down vote are questions in this debate may be subjec- words, the ‘‘principal agent’’ in ap- highly qualified men and women, with tive and complex, this is not one of pointments, while the Senate is a majority, bipartisan support. them. The current filibusters target bi- check on that power. Last week, I addressed how oppo- partisan, majority-supported judicial Giving judicial nominations reaching nents of President Bush’s nominees nominations, and they defeat them by the floor an up-or-down vote, that is, play games with words such as ‘‘ex- preventing confirmation votes. Either exercising our role of advice and con- tremist.’’ Just as they want to talk that happened before the 108th Con- sent through voting on nominations, about a judicial appointment process gress or it did not. helps us resist the temptation of turn- the Constitution did not establish, Let us look at what our Democratic ing our check on the President’s power these critics want to talk about every- colleagues have claimed. On March 11, into a force that can destroy the Presi- thing but what these nominees would 2003, the distinguished Senator from dent’s power and upset the Constitu- do on the bench. We know, from abun- Vermont displayed here on the Senate tion’s balance. dant testimony by those who know floor a chart titled: ‘‘Republican Fili- Historically, we have followed this these nominees best, that no matter busters of Nominees.’’ He said his list standard of everybody who reaches the how provocative their speeches off the proved that Republicans have ‘‘suc- floor getting an up-or-down vote. When bench or strongly held beliefs in their ceeded in blocking many nominees by Republicans ran the Senate under hearts and minds, these nominees are cloture votes.’’ Anyone can look it up President Clinton, we gave each of his or would be fair, impartial, and even- for him or herself. The whole chart is judicial nominations reaching the floor handed on the bench. right there on page 5685 of the CON- a final confirmation decision, an up-or- Yet they are called extremists. All 10 GRESSIONAL RECORD. down vote. We took cloture votes, that of them—there are only 7 remaining— It turns out only 6 of the 19 names on is, votes to end debate, on four of the but all 10 of them had qualified ratings, the chart were judicial nominations, hundreds of nominees reaching us here. and most well qualified, the highest that the Senate actually confirmed 5 of All four were confirmed. As a matter of rating of the American Bar Associa- those 6, and the other one did not have fact, we confirmed 377 judges nomi- tion. By the way, that was considered majority support. And there was a real nated by President Clinton, almost the the ‘‘gold standard’’ during the Clinton question whether that was a filibuster same number as the all-time confirma- years by our friends on the other side. raised, not in the least sense by the tion champion, and that was Ronald Now this is the real standard. person who conducted the debate on Reagan, who got 382. But Ronald It is hard to believe we are actually the Republican side, Senator Robert Reagan had 6 years of a Republican arguing about whether we should vote Griffin, who had an impeccably hon- Senate to help him. President Clinton on judicial nominations and whether est—and still does—an impeccably hon- only had 2 years of a Democrat Senate highly qualified nominees, with major- est reputation. He said there was never to help him. Yet, with the aid of the ity support—bipartisan, majority sup- a desire to filibuster Justice Fortas. He Republicans on the Judiciary Com- port—should be confirmed. Yet the said they wanted 2 more days of debate mittee and in this body, he got 377 ap- third part of this diagnosis is that Sen- to make their case. But, he said, they proved. ate Democrats are trying to change our had enough votes to defeat him up and In fact, even on the most controver- tradition of giving judicial nomina- down. Now, he was here on the Senate sial appeals court nominations by tions reaching the Senate floor an up- floor. He knew it. He led the fight. And President Clinton, the Republican lead- or-down vote. Senators, of course, are the votes were bipartisan, almost ership used cloture votes to prevent free to vote against them for any rea- equal. It turns out, again, that only 6 filibusters and ensure up-or-down son. We must, of course, have a full and of the 19 names on the chart were judi- votes, exactly the opposite of how clo- vigorous debate about these nominees cial nominations, that the Senate actu- ture votes are being used during Presi- and their qualifications. ally confirmed 5 of them, and the only dent Bush’s Presidency. The critics, however, do not want to one they did not was Justice Fortas, This principle that every judicial have that debate. Democrats in this because Lyndon Johnson pulled him, nomination reaching the Senate floor body and the leftwing interest groups not wanting to be embarrassed. deserves an up-or-down vote not only that, to a certain extent, seem to con- Far from justifying today’s filibus- has constitutional roots and historical trol them, want only to seize what they ters, the chart of the distinguished precedent, it also has citizen support. I cannot win through the fair, tradi- Senator from Vermont proved no saw in the Washington Post yesterday tional system. Beginning in the 108th precedent exists at all. a poll framed in partisan terms, asking Congress, for the first time in Amer- On November 12, 2003, the Senator whether Senate rules should be ican history, they are now using the from Vermont tried again, this time changed ‘‘to make it easier for the Re- filibuster not to debate but to defeat with a list of what he claimed were publicans to confirm Bush’s judicial majority-supported judicial nomina- Clinton appeals court nominees sup- nominees.’’ tions. posedly blocked by Republicans. Once With all due respect, this question They are trying to rig the confirma- again, the list included nominations could easily have been written in the tion process, to pry us away from our the Senate confirmed—every one of Democrats’ new public relations war tradition that respected the separation them. How can a confirmed nomination

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00017 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD 7890 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 April 27, 2005 be called a blocked nomination? It can- tions is the only way to prevent our en- Senate did, by debating and voting on not. Not a single nomination on Sen- tire constitutional order from implod- the President’s judicial nominations. ator LEAHY’s list is similar to the ing. The sky is falling, and we are all Franklin Roosevelt’s Senate did not nominations being filibustered today. about to slide into the abyss. use the filibuster, even when the mi- That same day, November 12, 2003, The purveyors of this fantasy would nority was much smaller and the fili- the distinguished Senator from Illinois, have us look to President Franklin buster much easier to use, and this Mr. DURBIN, named 5 judicial nomina- Delano Roosevelt who, they tell us, Senate should not do so, either. tions which he said had been filibus- wanted to pack the Supreme Court. Finally, the fourth piece to this diag- tered. Once again, not one of them is a The Senate rejected his legislative pro- nosis of our current situation is that precedent for filibusters happening posal to expand the Court so he could Senate Democrats have threatened to today. You would think no one with a appoint more Justices. By taking this shut down the Senate if the majority straight face would claim that ending stand, the storytellers say, the Senate moves us back to the tradition—the debate and confirming nominations is kept one-party rule from packing the 214-year tradition—of debating and vot- somehow precedent for not ending de- Court. ing on judicial nominations. bate and refusing to confirm nomina- Well, as Paul Harvey might say: Here To avoid what most Americans be- tions. is the rest of the story. lieve Senators come to Washington to On April 15, 2005, the distinguished The Senate, even though dominated do—debate and vote—we are now assistant minority leader, Senator by President Roosevelt’s own party, threatened with a party policy of open DURBIN, expanded his previous list, now did not support this legislative plan. obstruction, a nuclear option of shut- offering us 12 examples of what he said And it turns out President Roosevelt ting down the Senate, at least to any- were judicial nominations requiring at did not need any legislative innova- thing but what they agree to. I said a least 60 votes for cloture to end a fili- tions to pack the Supreme Court. He few minutes ago that the Constitu- buster. I addressed this in more detail packed it all right, doing it the old- tion’s separation of powers assigns leg- last week. Not one—not one—of those fashioned way, by appointing eight out islative business to Congress and exec- 12 of Senator DURBIN’s supposed prece- of nine Justices in 6 years. Mind you, utive business, including appoint- dents is any precedent at all. during the 75th to the 77th Congress, ments, to the President. Some Sen- The first nomination on his list oc- Democrats outnumbered Republicans ators on the other side of the aisle are curred in 1881, 36 years before we even by an average of 70 to 20. Now, that is saying if they cannot hijack what is had a cloture rule in the Senate. In one-party rule. not theirs, they will destroy what is fact, if we truly did what he apparently In those years, from 1937 to 1943, our theirs. If they cannot abandon Senate wants us to do, and treated his listed cloture rule applied only to bills. This tradition and use the filibuster to de- examples as a confirmation guide, we meant that ending debate on other feat majority-supported judicial nomi- would vigorously debate judicial nomi- things, such as nominations, required nations, they will undercut and disable nations, invoke cloture if we needed to, unanimous consent. A single Senator the legislative process. And they call and then vote on the confirmations. in that tiny, beleaguered minority us radical. That is what happened. could conduct a filibuster of President The Constitution gives the power of This game continued as recently as 2 Roosevelt’s nominations and thwart nomination and appointment to the months ago. On Monday, April 25, on the real court packing that was in full President. The Senate provides a check CNN’s ‘‘Crossfire’’ program, the leader swing. on that power. I believe we must pre- of a prominent leftwing group claimed Now, if the filibuster were the only serve the system of separated powers that more than 30 nominations—here is thing preventing one-party rule from and checks and balances and resist the list—had been filibustered. I have packing the courts, and the filibuster those who would radically alter that this list right here in my right hand. It were so easily used, surely there must system, turning the Senate’s check on is titled: ‘‘Filibusters of Nominations.’’ be in history filibusters of President the President’s power into a force that It lists 13 judicial nominations out of Roosevelt’s Supreme Court nomina- can overwhelm the President’s power. the 30, and not one of them is at all tions. If the warnings, frantic pleas, Every judicial nomination reaching like the filibusters being conducted and hysterical fundraising appeals we the Senate floor deserves an up-or- today—not one. We did not even take a hear today make any sense at all, the down vote. I argued that during the cloture vote on two of them. We in- filibuster would certainly have been Clinton years, and I prevailed as chair- voked cloture on eight of them. We used in FDR’s time. man of the Judiciary Committee. That confirmed 12 of the 13. And the one we I hate to burst anyone’s bubble, but principle has constitutional roots, his- did not, did not have majority support, there were no filibusters, not even by a torical precedent, and citizen support. the Fortas nomination, but had bipar- single Senator, not against a single President Bush has sent two highly tisan opposition. nominee. In fact, FDR’s 8 Supreme qualified nominees that we know have Accepting such fraudulent arguments Court nominees were confirmed in an bipartisan majority support. They de- requires believing that ending debate average of 13 days, and 6 of the 8 were serve to be treated decently and, after on judicial nominations is the same as confirmed without even a rollcall vote. a full and vigorous debate, given an up- not ending debate, that confirming ju- So if this is to protect the minority, or-down vote. dicial nominations is the same as not why has it not ever happened before Our colleagues on the other side are confirming them, and that judicial President Bush became President? trying to change our tradition. For the nominations without majority support Even when we look at the very exam- first time in more than two centuries, are the same as those with majority ples and stories the other side uses, we they want to use filibusters to block support. As you can see, the liberal see no support for using the filibuster confirmation votes on judicial nomina- propaganda machine has been working against majority-supported judicial tions here on the Senate floor. This overtime. nominations. radical innovation is not needed to pre- In addition to these bizarre claims I Last week, here on the Senate floor, vent one-party rule from packing the described, they worked to turn what the distinguished Senator from Illinois courts. Republicans resisted using the was once common sense and accepted repeated a selective version of this filibuster under Roosevelt and Demo- fairness into something that sounds FDR story and asked what would hap- crats should resist using it today. sinister and unseemly. They manufac- pen today in a Senate dominated by Finally, all Americans should be ture nasty phrases such as ‘‘court the President’s party. He asked: most concerned with the threat of packing’’ and ominous warnings about Will they rise in the tradition of Franklin some of our colleagues on the other ‘‘one-party rule.’’ Now, we are told, Roosevelt’s Senate? side. Because they are unable to seize preventing up-or-down votes on even Well, I hope we do. I hope the Senate control of a judicial appointment proc- majority-supported judicial nomina- does exactly what Franklin Roosevelt’s ess that does not belong to the Senate,

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00018 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD April 27, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 7891 Democrats say they will shut down the dinary. President Bush has the lowest appel- port. We should not change 214 years of legislative process that does belong to late-court confirmation rate of any modern Senate tradition because some in this the Senate. This cannot stand. With all president. Each of the 10 filibuster victims body don’t like President Bush’s nomi- due respect, they need to get both their has been rated ‘‘qualified’’ or ‘‘well quali- nees. fied’’ by the American Bar Association. Each principles and their priorities in order. has the support of a majority in the Senate. People such as Priscilla Owen—she Our former majority leader Bob Dole And each would now be serving on the fed- broke through the glass ceiling for has a thoughtful column in today’s eral bench if his or her nomination were sub- women in this country and became a New York Times also addressing Sen- ject to the traditional majority-vote stand- major partner in a major law firm. Her ate tradition and the prospect of re- ard. last election to the Texas Supreme turning to that tradition. No one loves This 60-vote standard for judicial nominees Court was over 75 percent. She had this institution more than Senator has the effect of arrogating power from the every editorial board in the State of Dole, and I think I am in that cat- president to the Senate. Future presidents must now ask themselves whether their judi- Texas supporting her; 15 former State egory, too. bar presidents supported her, most of I ask unanimous consent that his col- cial nominees can secure the supermajority needed to break a potential filibuster. Polit- whom were Democrats. Yet they have umn be printed in the RECORD. ical considerations will now become even called her an extremist. There being no objection, the mate- more central to the judicial selection proc- Janice Rogers Brown, a share- rial was ordered to be printed in the ess. Is this what the framers intended? cropper’s daughter, came up the hard RECORD, as follows: If the majority leader, Bill Frist, is unable way, put herself through college and [From the New York Times, Apr. 27, 2005] to persuade the Democratic leadership to end its obstruction, he may move to change the law school as a single mother, worked UP, DOWN OR OUT Senate rules through majority vote. By in California State government in a va- (By Senator Bob Dole) doing so, he will be acting in accordance riety of positions, wound up on the In the coming weeks, we may witness a with Article I of the Constitution (which California Supreme Court where she vote in the United States Senate that will gives Congress the power to set its own wrote, at least in the last number of define the 109th Congress for the ages. This rules) and consistently with the tradition of years, the majority of the majority vote will not be about war and peace, the altering these rules by establishing new economy or the threat from terrorism. It opinions. She got reelected by 84 per- precedents. Senator Frist was right this past cent of the California voters, more will focus instead on procedure: whether the weekend when he observed there is nothing Senate should amend its own rules to ensure ‘‘radical’’ about a procedural technique that votes than any other person running that nominees to the federal bench can be gives senators the opportunity to vote on a for the Supreme Court that year, in- confirmed by a simple majority vote. nominee. cluding her colleagues. Yet she is I have publicly urged caution in this mat- Although the Democrats don’t like to called an extremist because she is a ter. Amending the Senate rules over the ob- admit it, in the past they have voted to end conservative African American. jection of a substantial minority should be delaying tactics previously allowed under the option of last resort. I still hold out hope It is very dangerous stuff to say this Senate rules or precedents. In fact, one of to- will create nuclear war because we that the two Senate leaders will find a way day’s leading opponents of changing the Sen- to ensure that senators have the opportunity ate’s rules, Senator Robert Byrd, was once a want to continue 214 years of Senate to fulfill their constitutional duty to offer proponent of doing so, and on several occa- tradition. That is dangerous stuff. It is ‘‘advice and consent’’ on the president’s judi- sions altered Senate rules through the wrong stuff. We ought to give these cial nominees while protecting minority majoritarian means. I have great respect for people a simple, straightforward up-or- rights. Time has not yet run out. Senator Byrd, but Senate Republicans are down vote. But let’s be honest: By creating a new simply exploring the procedural road map threshold for the confirmation of judicial I notice the distinguished Senator that he himself helped create. from North Carolina is waiting. I yield nominees, the Democratic minority has In the coming days, I hope changing the abandoned the tradition of mutual self-re- Senate’s rules won’t be necessary, but Sen- the floor. straint that has long allowed the Senate to ator Frist will be fully justified in doing so The PRESIDING OFFICER (Ms. MUR- function as an institution. if he believes he has exhausted every effort KOWSKI). The Senator from North Caro- This tradition has a bipartisan pedigree. at compromise. Of course, there is an easier When I was the Senate Republican leader, lina. solution to the impasse: Democrats can stop President Bill Clinton nominated two judges Mr. DURBIN. Madam President, if playing their obstruction game and let Presi- to the federal bench—H. Lee Sarokin and the Senator will yield briefly for a dent Bush’s judicial nominees receive what Rosemary Barkett—whose records, espe- they are entitled to: an up-or-down vote on unanimous consent request, I ask cially in criminal law, were particularly the floor of the world’s greatest deliberative unanimous consent that when the Sen- troubling to me and my Republican col- body. ator from North Carolina has com- leagues. Despite my misgivings, both re- pleted her remarks, I be recognized. ceived an up-or-down vote on the Senate Mr. HATCH. As our current majority floor and were confirmed. In fact, joined by leader Bill Frist put it a few days ago: The PRESIDING OFFICER. Without 32 other Republicans, I voted to end debate I never thought it was a radical thing objection, it is so ordered. on the nomination of Judge Sarokin. Then, to ask Senators to vote. That is what The Senator from North Carolina. in the very next roll call, I exercised my con- we have traditionally done on judicial Mrs. DOLE. Madam President, today stitutional duty to offer ‘‘advice and con- nominations that reach the floor, and I want to express my strong concern sent’’ by voting against his nomination. over the judicial nominations process. When I was a leader in the Senate, a judi- that traditional standard should apply cial filibuster was not part of my procedural across the board no matter which party It is clear this process has completely playbook. Asking a senator to filibuster a ju- controls the White House and no mat- broken down. Unfortunately, the rhet- dicial nomination was considered an abroga- ter which party controls the Senate. oric surrounding this important issue tion of some 200 years of Senate tradition. We should bind both parties, Repub- has become increasingly bitter over the To be fair, the Democrats have previously licans and Democrats, to do what is past several weeks. Sharp words have refrained from resorting to the filibuster right. been exchanged. The intentions of my even when confronted with controversial ju- fellow Republicans have been unfairly dicial nominees like Robert Bork and Clar- That is the diagnosis, and I hope we ence Thomas. Although these men were see an effective cure soon so we can get characterized and my colleagues on the treated poorly, they were at least given the back to doing the people’s business. other side of the aisle have even gone courtesy of an up-or-down vote on the Sen- I started off by saying one of the so far as to threaten to shut down the ate floor. At the time, filibustering their problems here is that every one of Government if the Senate were to exer- nominations was not considered a legitimate these Presidential nominees who cise its constitutional right to set its option by my Democratic colleagues—if it reaches the floor should have an up-or- own procedural rules. That is nuclear. had been, Justice Thomas might not be on down vote, especially since they are It is time to put aside the rhetoric the Supreme Court today, since his nomina- listed as qualified by the American Bar for a moment and look at the facts. It tion was approved with only 52 votes, eight short of the 60 votes needed to close debate. Association, most of them well quali- is a fact that my Democratic col- That’s why the current obstruction effort fied, the highest rating you can have. leagues have taken the unprecedented of the Democratic leadership is so extraor- They all have majority bipartisan sup- step of blocking not 1, not 2, but 10

VerDate Nov 24 2008 09:05 Mar 11, 2009 Jkt 039102 PO 00000 Frm 00019 Fmt 0686 Sfmt 0634 E:\BR05\S27AP5.000 S27AP5 erowe on PROD1PC63 with BOUND RECORD 7892 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 6 April 27, 2005 nominees of President Bush to the Fed- The judicial filibuster is their way of Pending: eral circuit courts of appeal. As a re- establishing a liberal litmus test. If Inhofe amendment No. 567, to provide a sult, President Bush has the lowest ap- you are not a liberal activist, you can- complete substitute. peals court confirmation rate for any not serve on a Federal circuit court of The PRESIDING OFFICER. The Sen- first-term President since Franklin appeals, or at least that is what the ator from Oklahoma. Roosevelt. It is a fact that each of new standard appears to be. Mr. INHOFE. Madam President, this these filibustered nominees has the Until now every judicial nominee is the third day we have been on a bill support of a majority of Senators and with support from a majority of Sen- we have been working on for 21⁄2 years. each has received a rating of qualified ators was confirmed. The majority vote It is the same bill essentially that was or well qualified by the American Bar standard was used consistently passed last year by a margin of 76 to 21. Association. It is a fact that today for throughout the 18th, 19th, and the 20th We are anxious to get people to come the first time in our Nation’s history, a century for every President’s nomi- down to the floor for amendments. I President’s nominees to the Federal nees, Democrat or Republican, even don’t know of anyone coming down at bench are being required to receive a Whig, until George W. Bush’s judicial this time. But I encourage all Members 60-vote supermajority rather than the nominations were subjected to a 60- on both sides of the aisle to come down traditional majority, the up-or-down vote standard. and utilize this time so we can get the vote, that has been the standard for 214 Let me emphasize one additional amendments behind us. years. That is nuclear. point. My friends across the aisle are I understand the Senator from Illi- It is a fact that the ongoing filibuster well aware that no Republican—not nois has some comments he wishes to of the President’s nominees has pre- one—is seeking to eliminate the ability make. I yield to him some of our time vented the Senate from fulfilling its of Senators to filibuster on legislative at this time. constitutional duty to provide advice matters. We all recognize that the leg- The PRESIDING OFFICER. The Sen- and consent to the appointment of men islative filibuster has served an impor- ator from Illinois. and women chosen to sit on our Na- tant function in our system of checks Mr. DURBIN. Madam President, I tion’s highest courts. and balances. It is ironic, though, that thank the chairman of the committee. The former minority leader from nine of my Senate colleagues who are Let me say I share his sense of urgency South Dakota once lamented he found now working so hard to block Presi- about the underlying bill. This is a bi- it simply baffling that a Senator would dent Bush’s judicial nominees once ad- partisan bill, a bill Democrats and Re- vote against even voting on a judicial vocated the elimination of the legisla- publicans want to see passed, a bill to nomination. I completely agree and tive filibuster. So who is playing poli- finance the building of roads and note that every single one of President tics? bridges and airports, to finance mass Clinton’s judicial nominees who I commend Majority Leader FRIST for transit in what is critical infrastruc- reached the Senate floor received an his patience in trying to bring both ture for America’s economy. I do not up-or-down vote. And contrary to what sides together to develop a reasonable have an amendment to the bill, but if I my friends across the aisle are so fond compromise on this difficult issue. Cer- did, I would offer it because I think of saying, this includes the Paez and tainly no other majority leader has those who have them should bring Berzon nominations to the Ninth Cir- been faced with such unprecedented them to the floor so we can move and cuit. tactics in blocking the Senate’s ability get it done before we take a recess next By imposing a supermajority require- to fulfill its constitutional duty to pro- week. I urge my colleagues on the ment for judicial nominees, the Demo- vide advice and consent. I know Sen- Democratic side to follow the admoni- crats are disrupting the careful balance ator FRIST will continue to do what he tion of the chairman. struck in the Constitution itself be- feels is right for this body and for our What brings me to the floor was a tween Congress and the executive country. statement made earlier by the Senator branch and allowing political consider- If he decides he is confronted with no from Utah which made reference to me. ations to play an even larger role in other choice but to proceed with the Senator ORRIN HATCH and I are friends. the confirmation process. They should constitutional option, I will fully sup- We disagree on a lot of things. heed the words of prominent Demo- port him. This approach is consistent We vote differently on a lot of issues cratic legal advisor Professor Michael with Senate precedent and has been and we debate furiously, but we get Gerhardt who, in another context, has employed in the past by some of the along fine. I think that is what life written that a supermajority require- best parliamentary minds in this should be like and what the legislative ment for confirming judges would be Chamber. process should be like. He made a ref- ‘‘problematic because it creates a pre- Our goal is to restore the practice, erence earlier to this whole question of sumption against confirmation, shifts the tradition of 214 years, a simple ma- the nuclear option, to which I would the balance of power to the Senate, and jority vote for a President’s nominees like to return for a few moments. enhances the power of special inter- to the Federal bench. First, what is the nuclear option? ests.’’ I yield the floor. People who don’t follow the Senate on For the last several weeks, instead of a regular basis have to wonder are they f engaging in the hard work of com- using nuclear weapons on the floor of promise, some of my colleagues on the CONCLUSION OF MORNING the Senate? What could it be? ‘‘Nuclear other side of the aisle have chosen to BUSINESS Option’’ was a phrase created by Re- travel down the political road. We have The PRESIDING OFFICER. Morning publican Senator TRENT LOTT to de- seen pro-filibuster press conferences, business is now closed. scribe a procedure that might be used other political events, and even an ob- f to change the rules of the Senate. The struction rally with the extreme lib- reason Senator LOTT called it the nu- eral group MoveOn.Org. Liberal special TRANSPORTATION EQUITY ACT: A clear option was because it is dev- interest groups are now spending mil- LEGACY FOR USERS astating in its impact to the tradition lions of dollars across the country on The PRESIDING OFFICER. Under and rules of the Senate. television ads in support of judicial the previous order, the Senate will re- I will put it into context. The Senate filibusters. One cannot help but reach sume consideration of H.R. 3, which the was created to give the minority in the the conclusion that these organiza- clerk will report. Senate, as well as in the United States, tions, having failed to defeat President The assistant legislative clerk read a voice. There are two Senators from Bush at the ballot box in November, as follows: every State, large and small. Two Sen- are now trying to advance their own A bill (H.R. 3) to authorize funds for Fed- ators from the smallest State have the liberal agenda through the only avenue eral aid highways, highway safety programs, same vote on the floor of the Senate as left open to them—the Federal courts. and transit programs, and for other purposes. Senators from larger States, such as

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