E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 109 CONGRESS, FIRST SESSION

Vol. 151 WASHINGTON, THURSDAY, MAY 19, 2005 No. 67 Senate The Senate met at 9:30 a.m. and was ceed to executive session for the con- Yesterday, 21 Senators—evenly di- called to order by the President pro sideration of calendar No. 71, which the vided, I believe 11 Republicans and 10 tempore (Mr. STEVENS). clerk will report. Democrats—debated for over 10 hours The legislative clerk read the nomi- on the nomination of Priscilla Owen. PRAYER nation of Priscilla Richman Owen, of We will continue that debate—10 hours The Chaplain, Dr. Barry C. Black, of- Texas, to be United States Circuit yesterday—maybe 20 hours, maybe 30 fered the following prayer: Judge for the Fifth Circuit. hours, and we will take as long as it Let us pray. RECOGNITION OF THE MAJORITY LEADER takes for Senators to express their God of grace and glory, open our eyes The PRESIDENT pro tempore. The views on this qualified nominee. to the power You provide for all of our majority leader is recognized. But at some point that debate should challenges. Give us a glimpse of Your SCHEDULE end and there should be a vote. It ability to do what seems impossible, to Mr. FRIST. Mr. President, today we makes sense: up or down, ‘‘yes’’ or exceed what we can request or imagine. will resume executive session to con- ‘‘no,’’ confirm or reject; and then we Encourage us again with Your promise sider Priscilla Owen to be a U.S. circuit move on in regular order. to never forsake us and to render inef- court judge for the Fifth Circuit. We Senators can vote to confirm or re- fectual the weapons we face. will continue the debate, as we did yes- ject a nominee. But we should fulfill Strengthen the Members of this body terday, by rotating back and forth be- our constitutional responsibility to in their efforts to do good, knowing tween the aisle every 60 minutes. I give advice and consent by voting up or that in due season You will bring a think this orderly flow of debate will down. bountiful harvest. Sustain them during be helpful in terms of scheduling Mem- The nominee before us is Priscilla today’s challenging labors. Give them bers’ speaking times. It worked well Owen, a Texas Supreme Court justice more than human wisdom to solve the yesterday, and I would expect it to be nominated to serve on the Fifth Circuit problems of these momentous times. orderly today as well. I know there is a Court of Appeals. I have studied her Provide them with the insight to know large number of Senators who have in- record. I have had the opportunity to what is right and the courage to do it. dicated their desire to speak, and we meet with her personally. I believe she We pray in Your holy Name. Amen. will remain on the nomination to give would serve our Nation well as a cir- cuit court judge. f everyone a chance to fully voice their concerns and their discussion on this Her academic and professional quali- PLEDGE OF ALLEGIANCE very qualified nominee. fications are outstanding. She grad- The PRESIDENT pro tempore led the I am hopeful that at some point we uated near the top of her class in law Pledge of Allegiance, as follows: will be able to schedule a vote on the school, and she once achieved the high- I pledge allegiance to the Flag of the nomination, and I will update Members est score in the State of Texas on the United States of America, and to the Repub- later today on the upcoming schedule bar exam. The American Bar Associa- lic for which it stands, one nation under God, as it relates to the nomination of Pris- tion unanimously rated her ‘‘well indivisible, with liberty and justice for all. cilla Owen. qualified,’’ its highest possible rating. f Mr. President, I will have a brief Her opponents suggest she is a judi- statement—the Democratic leader and cial activist who is out of the main- RESERVATION OF LEADER TIME I were just discussing our plans—and stream. Her record simply shows that The PRESIDENT pro tempore. Under then he will have a statement, and is not true. She was reelected by 84 per- the previous order, the leadership time then at that juncture I believe we will cent of Texans. Are 84 percent of Tex- is reserved. proceed as we set out the time schedule ans really out of the mainstream? She f yesterday, alternating back and forth. is supported by Republicans and Demo- Mr. President, we did, yesterday, crats on the Texas Supreme Court. She EXECUTIVE SESSION have a vibrant and spirited debate on has been endorsed by every major the Senate floor. We have been debat- newspaper in her home State. ing a very simple principle—one based That is a mainstream record. NOMINATION OF PRISCILLA on fairness and one grounded in the In her judicial decisions, some on the RICHMAN OWEN TO BE UNITED Constitution. The principle is that ju- floor over the last day, and actually STATES CIRCUIT JUDGE FOR dicial nominees, with the support of a last week as well, have criticized her as THE FIFTH CIRCUIT—Resumed majority of Senators, deserve a fair up- a judicial activist in cases, and the The PRESIDENT pro tempore. Under or-down vote on the floor of the Sen- focus has always been on these cases the previous order, the Senate will pro- ate. involving a parental notification law.

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5454 CONGRESSIONAL RECORD — SENATE May 19, 2005 The law is not about whether a minor Owen. This professor, Linda Eads, is a I yield the floor. is able to have an abortion or whether member of the Texas Supreme Court EXHIBIT 1 a minor must receive parental consent Advisory Committee that drafted rules TEXAS STATE SENATE, DISTRICT 8, before having an abortion. The law to help judges deciding cases under this Plano, Texas, May 16, 2005. simply requires a parent to be notified law, the parental notification law. She Hon. Chairman ARLEN SPECTER, if their child is having an abortion, ex- says Justice Owen’s decisions ‘‘do not Committee on the Judiciary, U.S. Senate, Rus- cept in certain circumstances. demonstrate judicial activism. She did sell Senate Office Bldg., Washington, DC. The author of the law, and 26 other what good appellate judges do every DEAR CHAIRMAN SPECTER: I, along with my colleagues in the Texas Senate and Texas members of the Texas legislature, have day . . . if this is activism, then any House of Representatives, am writing to ex- defended Justice Owen’s opinions, and judicial interpretation of a statute’s press my full and unconditional support for it is spelled out clearly in a letter of terms is judicial activism.’’ Justice Priscilla Owen’s nomination to the May 16, 2005, that is signed by the au- If you look fairly at Justice Owen’s U.S. Court of Appeals for the Fifth Circuit. thor of the legislation itself and 26 record, you will see a well-qualified, As the author of the Texas Parental Notifi- other members of the Texas legisla- mainstream judge. cation Act (SB 30/HB 623), I followed closely the Texas State Supreme Court rulings re- ture. But I will say, as we step back and look at the larger debate, some Sen- garding that statute. As such, we are dis- The letter is interesting. It is a letter turbed by the recent attacks on Justice dated May 16, and it is a letter that ators may draw different conclusions Owen’s review of the Texas Parental Notifi- was sent to Senator SPECTER, of the about Justice Owen, and they may de- cation Act. Justice Owen’s opponents have Judiciary Committee, and Senator cide she does not deserve confirmation. characterized her as an activist member of LEAHY. The letter is indeed quite pow- Indeed, they may decide that none of the bench, and nothing could be further from erful. I would like to read just a couple the President’s nominees deserve con- the truth. firmation. And they, as Senators, are To the contrary, her opinions interpreting sections from the letter. the Texas Parental Notification Act serve as Mr. President, I ask unanimous con- entitled to that choice. But they prime examples of her judicial restraint. Al- sent that following my remarks the en- should express that choice, give that though some might try to hold up the Texas tire letter be printed in the RECORD. advice and consent by a vote, an up-or- Parental Notification Act as a litmus test on The PRESIDENT pro tempore. With- down vote, ‘‘yes’’ or ‘‘no,’’ confirm or abortion, they simply cannot make the case. out objection, it is so ordered. reject. They should not hide behind a The Act is not about whether a minor is able (See Exhibit 1.) procedure that prevents 100 Senators to have an abortion or must receive parental Mr. FRIST. The letter reads pretty consent, but whether a parent should be no- from their responsibility, their duty to tified. The Act recognizes that a girl may clearly: ‘‘Dear Chairman SPECTER’’— vote ‘‘yes’’ or ‘‘no’’ on the nominee, up have an abortion and does not question and there was a copy sent to Senator or down. whether the Constitution guarantees that LEAHY. This is from the author of the As everyone knows, I have advocated right. legislation of which these accusations fair up-or-down votes for judicial nomi- Throughout the series of cases, Justice of judicial activism have been floating nees again and again and again and Owen’s interpretations of legislative intent around on the floor. These are the au- will continue to do so. In the past, were based on careful reading of the new thors, the people who wrote—who statute and the governing U.S. Supreme some of our colleagues on the other Court precedent. For example, Justice wrote—the legislation. I quote from side of the aisle have shared this view. Owen’s opinion that a minor should ‘‘indi- the letter: Many of them have argued forcefully cate to the court that she is aware of and has I, along with my colleagues in the Texas and eloquently for up-or-down votes on considered that there are philosophic, social, Senate and Texas House of Representatives, judicial nominees. Let me share some moral, and religious arguments that can be am writing to express my full and uncondi- of their arguments with you. brought to bear when considering abortion.’’ tional support for Justice Priscilla Owen’s One Senator on the other side of the This opinion is consistent with prior U.S. nomination to the U.S. Court of Appeals for aisle, in opposition to giving up-or- Supreme Court precedent stating: ‘‘The wait- the Fifth Circuit. As the author of the Texas ing period, for example, may provide the par- Parental Notification Act, I followed closely down votes today, said: ent or parents of a pregnant young woman the Texas State Supreme Court rulings re- [E]veryone who is nominated ought to the opportunity to consult with her in pri- garding that statute. As such, we are dis- have a hearing and to have a shot to be heard vate, and to discuss the consequences of her turbed by the recent attacks on Justice on the floor and have a vote on the floor. decision in the context of the values and Owen’s review of the Texas Parental Notifi- Another Democratic Senator said: moral or religious principles of their family’’ cation Act. Justice Owen’s opponents have A nominee is entitled to a vote. Vote them (Planned Parenthood v. Casey). characterized her as an activist member of up; vote them down. . . . If there are things In short, Justice Owen’s academic and pro- the bench, and nothing could be further from in their background, in their abilities that fessional qualifications are beyond question. We strongly urge Senators to vote positively the truth. don’t pass muster, vote no. Our institutional on her nomination. integrity requires an up-or-down vote. The letter continues: Very truly yours, To the contrary, her opinions interpreting Another Democratic Senator noted Sen. FLORENCE SHAPIRO, the Texas Parental Notification Act serve as that: President Pro Tempore. prime examples of her judicial restraint. According to the U.S. Constitution, the Sen. Chris Harris; Sen. Jane Nelson; Rep. Mr. President, I will have my col- President nominates, and the Senate shall Brian McCall; Rep. Harvey Hilderbran; leagues read the remainder of the let- provide advice and consent. It is not the role Rep. Suzanna Gratia Hupp; Rep. Betty ter. It goes on and gives examples in of the Senate to obstruct the process and Brown; Rep. Robert E. Talton; Rep. explaining that statement. And then, prevent numbers of highly qualified nomi- Kent Grusendorf; Rep. Gary Elkins; down in the following paragraph, I nees from even being given the opportunity Rep. Edmund Kuempel; Rep. Joe Crabb; for a vote on the Senate floor. quote: Rep. Leo Berman; Rep. Mike Krusee; These are all arguments from my Rep. Dianne White Delisi; Rep. Joe L. Throughout the series of cases, Justice Driver; Rep. Frank J. Corte, Jr.; Rep. Owen’s interpretation of legislative intent Democratic colleagues in years past. Fred Brown; Rep. Peggy Hamric; Rep. were based on careful reading of the new These quotes capture what this debate Joe Nixon; Rep. Mary Denny; Rep. statute and the governing U.S. Supreme today is all about. It is about fairness. Elvira Reyna; Rep. Geanie Morrison; Court precedent. It is about principle. It is about the Rep. Eugene Seaman; Rep. Anna This is the final sentence of the let- constitutional duty of every Senator. Mowery; Rep. Richard L. Hardcastle; ter: The Senate must do what is right. We and Rep. Ray Allen. In short, Justice Owen’s academic and pro- must do what is fair. We must do the RECOGNITION OF THE MINORITY LEADER fessional qualifications are beyond question. job the American people elected us to The PRESIDENT pro tempore. The We strongly urge Senators to vote positively do. Democratic leader is recognized. on her nomination. So let us continue to debate. Let Mr. REID. It is my understanding Again, it is signed by the author, Senators exercise their right to speak. that we go to the debate on Judge Florence Shapiro, and, again, 26 others We may not agree. We will not agree on Owen at what time? from the house of representatives and every judicial nominee, but we can The PRESIDENT pro tempore. We senate in Texas. agree on the principle that every quali- are on debate now. In addition, a pro-choice Democratic fied judicial nominee deserves an up- Mr. REID. I ask unanimous consent law professor also has defended Justice or-down vote. that the time of the two leaders not

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5455 take away from the debate that will ‘‘A full-dress Republican-led fili- unanimous consent. Things won’t work begin at 9:45. What I am saying is, buster.’’ We have had filibusters. That as well as they could have. We need to whatever time we use, the debate is what has been disappointing to me avoid this. We are all legislators. should start immediately after our with some of my colleagues in saying But, sadly, now the President of the time, the incremental time. there has not been a filibuster. There United States has joined the fray and The PRESIDENT pro tempore. The has been. During the Clinton adminis- become the latest to rewrite the Con- leader time is reserved. The Senator is tration, more than 60 judicial nominees stitution and reinvent reality. Speak- entitled to take it. The controlled time were bottled up in the Judiciary Com- ing to fellow Republicans on Tuesday does not begin until 10 a.m. mittee and never received floor votes. night, 2 days ago, he said the Senate Mr. REID. I realize that. I would like Of course, as indicated by my distin- ‘‘has a duty to promptly consider each to reserve my time and use this time to guished friend, the Republican leader, . . . nominee on the Senate floor, dis- speak on the matter now before the during that period of time Democrats cuss and debate their qualifications Senate. were complaining about what was and then give them the up-or-down The PRESIDENT pro tempore. The going on, saying there should have vote they deserve.’’ Every one of the 10 time between now and 10 a.m. is not been hearings in the Senate, and even he speaks of had votes, every one of controlled. came to the floor—and these were ac- them. Right here on the Senate floor, Mr. REID. Just so I understand, it curate quotes of the majority leader— people walked down to these tables and was my understanding the debate on saying: Let’s have some votes, let’s their name was called and they voted. Priscilla Owen was supposed to start at have some votes on these people. Referring to the President’s words, quarter to 10. Well, Mr. President, we never said we duty to whom? The radical right who The PRESIDENT pro tempore. It is would break the rules to change the see within their reach the destruction to start at 10 o’clock. of America’s mainstream values. Cer- Mr. REID. I misunderstood. I apolo- rules. To change the rules in the Sen- tainly not duty to the tenets of our gize, Mr. President. ate can’t be done by a simple majority. Constitution or to the American people (Mr. VITTER assumed the Chair.) It can only be done if there is extended Mr. REID. Mr. President, I have ad- debate by 67 votes. So I do not at all who are waiting for progress and prom- dressed the Senate on several occasions say that the statements made by the ise, not partisanship and petty debates. to do what I believe is setting the Republican leader were wrong about The duties of the Senate are set forth record straight about Senate history our wanting votes and we were dis- in the U.S. Constitution. Nowhere in and the rules of this body. But, frank- turbed that there are no votes, but we that document does it say the Senate ly, I would much rather address wage never, ever suggested that rules should has a duty to give Presidential ap- and health care costs, bringing down be broken. pointees a vote. It says appointments gas prices, talk about education, spi- But in addition to the pocket filibus- shall be made with the advice and con- raling deficits we have. But the major- ters—call them whatever you want— sent of the Senate. That is very dif- ity leader has decided we will spend the 60, I think 69 nominations never ferent than saying every nominee re- this week and next week, or at least made it out of the Russell Building, ceives a vote. I repeat, all of these part of next week, talking about judges out of the Judiciary Committee, but in about which we are concerned, includ- who I believe, Mr. President, are not in addition to those performances, Repub- ing Priscilla Owen, have had a vote, the mainstream of American jurispru- licans engaged in explicit filibusters on right here. The fact was even acknowl- dence. the floor against a number of Clinton edged by the majority leader that a I am happy to engage in this debate. judges when they did get out of com- vote is not required. Senator BYRD I would rather not. But I do want the mittee, and they defeated a number of asked the majority leader—Senator debate to be accurate. For example, my President Clinton’s executive branch BYRD was here, the majority leader was good friend, the distinguished Repub- nominees by filibuster. here—last week, he asked the majority lican leader, issued a statement last It is the same advice and consent leader if the Constitution accorded Friday in which he called the filibuster clause. Why, if a filibuster of Surgeon each nominee an up-or-down vote on a ‘‘procedural gimmick.’’ I took time General Henry Foster was constitu- the Senate floor. The answer was no. yesterday to correct that assertion, tional, is a Democratic filibuster of Senator FRIST was candid. The answer setting forth in the RECORD what the Fifth Circuit Court nominee Priscilla was no. The language was not there, word ‘‘gimmick’’ means. The dic- Owen unconstitutional? If Foster is Senator FRIST said. He is correct. Sen- tionary defines it as a scheme, a new constitutional, why wouldn’t the same ators should read the same copy of the scheme. I indicated that certainly the apply to Priscilla Owen? The Repub- Constitution Senator FRIST had memo- filibuster was everything but that. It is lican argument doesn’t add up. rized. not a gimmick. It has been part of the But I would say this to my friend, the It is clear that the President mis- Nation’s history for two centuries. It is Presiding Officer. I have said let’s not understands the meaning of the advice one of the vital checks and balances es- dwell on what went on in the Clinton and consent clause. The word ‘‘advice’’ tablished by our visionary Founding administration. Let’s not dwell on means advice. President Clinton con- Fathers. It is not a gimmick. what went on in the 4 years of Presi- sulted extensively with then Judiciary Also, some Republicans have stated dent Bush’s administration. I am sure Chairman HATCH, and as a result of improperly the use of the filibuster. there is plenty of blame to go around. that we debated Ginsburg and Stephen They have said time and time again As we look back, I am not sure—and it Breyer to the Supreme Court, both fine that the defeat of a handful of Presi- is difficult to say this, but I say it—I minds, fine justices. In contrast, this dent Bush’s judicial nominees is un- am not sure either was handled prop- President never sought or heeded ad- precedented. In fact, hundreds of judi- erly. I have known it wasn’t right to vice of the Senate. Now he demands cial nominees in American history simply bury 69 nominations, and in our consent. have been rejected by the Senate, hindsight maybe we could have done That is not how America works. The many by filibuster. these 10 a little differently. But the Senate is not a rubber stamp for the There was, of course, the most nota- American people are tired of what we executive branch. Rather, we are the ble, the nomination of Abe Fortas, to are doing, tired of the constant fight- one institution where the minority has be Chief Justice of the United States. ing going on. What is going to take the voice and ability to check the He was successfully filibustered in 1968. place if this continues? power of the majority. Today, in the Here, Mr. President, is a Washington We will have a vote sometime next face of President Bush’s power grab, it Post which I read in the morning when week. It will be a close vote, of course, is more important than ever. Repub- I come in. It is from many years ago. We only need six Republicans. The Pre- licans want one-party rule. The Senate The first sentence: siding Officer was formerly chairman is the last place where the President A full-dress Republican-led filibuster broke of the powerful Appropriations Com- and Republicans can’t have it all. Now out in the Senate yesterday against a mo- mittee. It is very difficult at best to the President wants to destroy our tion to call up the nomination of Justice Abe get appropriations bills passed. Most checks and balances to assure that he Fortas for Chief Justice of the United States. everything around here is done by does get it all.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5456 CONGRESSIONAL RECORD — SENATE May 19, 2005 That check on his power is the right wants to make their life harder and de- the separation of church and state or to extended debate. Every Senator can stroy their hopes and dreams should be freedom for all Americans to practice stand on behalf of the people who have elevated for a lifetime to one of most religion? sent them here and say their piece. In powerful courts in the country. She has She has expanded the rights of cor- the Senate’s 200-plus years of history, been nominated to a court that over- porations at the expense of individ- this has been done hundreds and hun- seas the actions of Federal agencies re- uals—arguing to give corporations dreds of times—stand up to popular sponsible for worker protections, envi- more leeway against attempts to pre- Presidents, to unpopular Presidents, ronmental laws and civil rights and vent consumer fraud—some of these arrogant with power, to block legisla- consumer protection. She has made no things make you smile—to stop the tion harmful to American workers in secret of her disdain for Government. sale of cigarettes to minors, to prevent the eyes of the Senator, and, yes, even According to Justice Brown, Govern- discrimination against women and in- to reject Presidential nominations, ment destroys families, takes property, dividuals. She may be the daughter of even judicial nominations. is the cause of a ‘‘debased, debauched a sharecropper, but she has never Who are the nominees now before culture,’’ and threatens civilization. looked back to ensure legal rights of this Senate? That is her statement. millions of Americans still fighting to Priscilla Owen is a Texas Supreme Mr. SCHUMER. Would my colleague build better lives for their children and Court justice nominated to the Fifth yield for a question? their children’s children. They may not Circuit. She sides with big business and Mr. REID. I would be happy to yield be sharecroppers, but they live like corporate interests against workers for a question. sharecroppers, and she has done noth- and consumers in case after case re- Mr. SCHUMER. I thank my col- ing to protect them. gardless of what the law is. Her col- league. I think my colleague was in the These are the nominees over which leagues on the conservative Texas Chamber yesterday when Senator the Republican leadership is waging court have written that she legislates FRIST first rose to speak and talked this fight, and they are prepared to de- from the bench. Her own colleagues about the 214 years of tradition of not stroy the Senate that has existed for have called her opinions ‘‘nothing more doing filibusters of judges. I asked him 200 years to do so. than inflammatory rhetoric,’’ her in- about his vote on March 8, 2000, 5:51 The Senate is a body of moderation. terpretation of the law to be ‘‘mis- p.m. He voted to filibuster Judge Paez. While the House is the voice of a single conceptions,’’ and those are quotes, In fact, it was clearly a filibuster. The man, single woman, and the House of and even rebuked her for second-guess- statement of the leader of that fili- Representatives is a voice of the major- ing the legislature on vital pieces of buster, who was Senator Smith, our ity, the Senate is the forum of the legislation. If she wanted to legislate, former colleague from New Hampshire, States. It is the saucer that cools the she should run for Congress. If she is obvious. The Senator ‘‘led a fili- coffee. It is the world’s greatest delib- wants to interpret and uphold the law, buster yesterday on the nomination of erative body. How will we call this the she should be a judge. She cannot do Richard Paez.’’ You may remember world’s greatest deliberative body after both. And I might note that the Attor- that Senator FRIST said he would re- the majority breaks the rules to si- ney General of the United States has turn to the floor yesterday and answer lence the minority? Breaking the rules called her activism unconscionable. how he could distinguish between say- to change the rules. This vision of our I read to the Senate yesterday what ing there is a grand tradition in the Government—the vision of our Found- that word means. Unconscionable. It, Senate of no filibuster, but he partici- ing Fathers—no longer suits President Mr. President, means that her acts are pated in one. Just 5 years ago. My col- Bush and the Republicans in the Sen- out of the mainstream for sure. Let me league was on the floor—I was not— ate. They don’t want consensus or com- flip open my dictionary here. ‘‘Uncon- earlier this morning. I had hoped to get promise. They don’t want advice and scionable.’’ ‘‘Shockingly unjust’’ and here when Senator FRIST spoke. I consent. They want absolute power. ‘‘unscrupulous.’’ That is what the At- would just ask my colleague, did he To get it, the President and majority torney General of the United States hear any answer to that question which leader will do all they can to silence said about Priscilla Owen. I repeat: Senator FRIST has promised? the minority in the Senate and remove ‘‘shockingly unjust, unscrupulous.’’ He Mr. REID. I say through the Chair to the last check we have in Washington served with her on the supreme court. my friend, I was present and partici- against this abuse of power. The White He should know. pated in attempting to break the fili- House is trying to grab power over two In case after case, her record marks buster of Paez. I know how the distin- separate branches of government—Con- her as a judge willing to make law guished Republican leader voted. I was gress and the judiciary. They are en- from the bench rather than follow the here this morning, and I heard no an- listing the help of the Republican Sen- language of the legislature judicial swer to the question asked by the Sen- ate leadership to do it. Republicans are precedent. She has demonstrated this ator from New York. demanding a power no President has tendency most clearly in a series of Mr. SCHUMER. So it would be fair to ever had, and they are willing to break dissents involving a Texas law pro- say that he has still not answered the the rules to do it. viding for a judicial bypass of parental question, even though he said yester- Make no mistake. This is about more notification requirements for minors day that he would come back and an- than breaking the rules of the Senate seeking abortion. She sought to erect swer it. or the future of seven radical judges. barriers that did not exist in law such Mr. REID. He has not done that pub- At the end of day, this is about the as requiring religious counseling for licly. That is correct. rights and freedoms of millions of minors. Good idea, perhaps, but not Mr. SCHUMER. I thank my colleague Americans. The attempt to do away something that you do from the bench. for yielding for a question. with the filibuster is nothing short of It should be done by the legislature. Mr. REID. Justice Brown received a clearing the trees for the confirmation Janice Rogers Brown, a supreme ‘‘not qualified’’ rating from the Cali- of an unacceptable nominee to the Su- court justice from California, nomi- fornia judicial commission when she preme Court. If the majority gets its nated to the DC Circuit, is using her was nominated for the Supreme Court way, President Bush and the far, far seat on the bench to wage an ideolog- of California because of her tendency right will have the sole power to put ical war against America’s social safe- to inject her political and philo- whoever they want on the Supreme ty net. She wants to take America sophical views into her opinions and Court—Pat Robertson, Phyllis back to the 19th century and undo the complaints that she was insensitive to Schlafly. They don’t want someone New Deal which includes Social Secu- established legal precedent. who represents the values of all Ameri- rity and vital protections for working Speaking recently at church on ‘‘Jus- cans, someone who can win bipartisan Americans like the minimum wage. tice Sunday,’’ Justice Brown pro- consensus. They want someone who Every Senator in this body should tell claimed a ‘‘war’’ between religious peo- can skate through with only a bare the more than 10 million working ple and the rest of America. Imagine partisan majority, someone whose be- Americans already living in poverty on that. Is this someone we want pro- liefs are on the fringes of our society. the minimum wage why someone who tecting the constitutional doctrine of Nobody will be able to stop them from

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5457 placing these people on the highest of a judge who interprets the law and was referring to himself. That by itself court of the land—extremist judges does not legislate on the bench. should dispose of the matter. Else- who won’t protect our rights and who Let’s get to the heart of the matter. where in the same opinion, Justice hold values far outside the mainstream One of the major criticisms of Justice Gonzales wrote another sentence. Curi- of America. Owen is her effort to interpret a 1999 ously, that sentence is never cited by Here is what is really at stake: The law passed by the Texas State legisla- opponents of Justice Owen. civil rights of millions of Americans; ture requiring parental notification be- Let me quote what Justice Gonzales voting rights of millions of Americans; fore a minor can obtain an abortion. wrote: the right to clean water to drink and Most of the groups opposing Justice safe air to breathe for millions of Owen strenuously opposed passage of Every member of this court agrees that the duty of a judge is to follow the law as writ- Americans; the right to free speech and that law in the first place. But the ten by the legislature. religious briefs for millions of Ameri- Texas legislature did approve a paren- cans; the right to equality, oppor- tal notification requirement with a In other words, he specifically stated tunity, and justice for millions of strong bipartisan majority, favoring it that none of the nine justices on the Americans; nothing less than the indi- in both the Texas House and Senate. Texas Supreme Court is a judicial ac- vidual rights and liberties of all Ameri- The House was controlled by Demo- tivist. cans. crats at the time, and it required any Finally, let me point out that Justice It is up to us to say no to the abuse minor seeking an abortion to notify at Gonzales was White House counsel of power, to stand up for the Constitu- least one parent, or receive permission when President Bush nominated Jus- tion. We need people who have the abil- from a judge to bypass that step. It was tice Owen for the Fifth Circuit in 2001. ity to be profiles in courage. Let the later up to the supreme court to inter- In other words, General Gonzales was President and the Republican Party pret that bill. in charge of the process that produced know that the Supreme Court is not The law did not provide clear direc- Justice Owen’s nomination. Does any- theirs to claim. tion to the justices on several key body seriously believe he would select The debate all comes down to this: points. We are talking about 13 cases a nominee for this position if he Will we let George Bush turn the Sen- that came to the supreme court for re- thought she were a judicial activist? ate into a rubber stamp to fill the Su- view. As sometimes occurs, the court I want to look at the 13 cases from a preme Court with people from the ex- was divided in how to interpret the statistical standpoint. Justice Owen is treme right’s wish list, or will we up- law, particularly the portion allowing solidly in the mainstream of her court. hold the Constitution’s use of advice a minor to bypass parental notification In these 13 rulings, Justice Owen was in and consent powers to free the Presi- by going to court. Some justices—a the majority 10 times and found herself dent to be like other Presidents have majority—looked to other States on in dissent only on 3 occasions. She dis- been, to force the President to look at how their courts interpreted their pa- agreed with the majority decision the mainstream? I hope it is the latter. rental notification statutes, even three times. In those 13 cases, the I know that is what my fellow Demo- though those States that had different Texas Supreme Court required notifi- crats and I will fight for, and I hope laws and different legislative histories. cation 6 times and facilitated a judicial there are at least six responsible Re- Other justices, including Justice Owen, bypass 7 times. So Justice Owen voted publicans who will stand up and have looked first at the intent of the Texas to require parental notification in nine the courage to join in this momentous legislature. She then looked to rulings cases and to facilitate the judicial by- battle. of the U.S. Supreme Court. She rea- pass in four. Remember, no case on ju- Will the Chair advise me as to what soned, correctly, that the legislature dicial bypass reached the Texas Su- the order is now for debate to go for- had attempted to fashion the law to preme Court at all unless it had first ward on the nomination? conform with Supreme Court rulings. been denied by two courts and by up to The PRESIDING OFFICER. The time Still other justices, I should add, four judges. This is important, because on the minority side has now expired, took a different approach to analyze under our system, the trial court is and the time from now until approxi- the bypass provision and, in some charged with ascertaining the facts in mately 10:45 is under the control of the cases, they would have required greater a case. In other words, Justice Owen is majority leader or his designee. restrictions on use of the judicial by- being faulted for being more willing to Mr. REID. And then after that, we pass than Justice Owen would have im- defer to trial court findings of fact be- will go an hourly basis. posed. One of Justice Owen’s colleagues cause she knows trial judges have the The PRESIDING OFFICER. That is on the supreme court at that time was unique ability to assess a witness’s de- correct. Alberto Gonzales, now the U.S. Attor- meanor and credibility. Mr. REID. I hope I didn’t inconven- ney General. The opposition to Justice ience the majority with taking too Owen rests much of its case on a single Now, was Justice Owen’s approach in much time. If I did, we will try to read- phrase in one of then Justice the mainstream? Earlier this week, the just it later. Gonzales’s opinions in which he re- Senate was visited by a group of six The PRESIDING OFFICER. The Sen- ferred to judicial activism. Texans. They represent diverse views, ator from Texas is recognized. He later, and under oath, clarified but they came to Washington to sup- Mrs. HUTCHISON. Mr. President, I what he was talking about. He said: port Justice Owen and asked for fair am pleased the debate on Priscilla ‘‘My comment about an act of judicial ac- treatment of her. They included Tom Owen is beginning to give her side of tivism was not focused at Judge Owen or Phillips, who was Chief Justice of the the story. We are finally getting past Judge Hecht; it was actually focused at me.’’ Texas Supreme Court for most of the the sweeping mischaracterizations This is a tragically misleading state- time Justice Owen had served. It in- about her that have been put forward ment to be used against Justice Owen. cluded Elizabeth Whitaker, past presi- in the news media for years by interest First, judges disagree. That is why we dent of the State Bar of Texas—one of groups—those who say she is outside have a nine-member court. They argue 15 past State bar presidents, Repub- the mainstream, or she is an extremist. with each other. They accuse each licans and Democrats, who are sup- But now on the floor of the Senate we other of misreading the statutes. That porting Justice Owen’s nomination. are getting down to specifics. is exactly the way it goes in many In the group was Linda Eads, a Every single time we have been able opinions. In fact, every member of the former assistant State attorney gen- to examine a specific criticism of a Texas Supreme Court was accused by eral, who is now a professor at the particular opinion by Justice Owen, one justice or another of judicial activ- Southern Methodist University School that criticism has been clearly and de- ism during the course of their service of Law. She specializes in constitu- cisively refuted. Justice Owen is a on the court. tional law. Linda Eads describes herself careful and thoughtful jurist. She is an Attorney General Gonzales has testi- as strongly pro-choice. She also said extremely talented intellect. She uses fied under oath that he was not refer- she disagreed with Justice Owen on pa- her ability to read every statute and ring to Justice Owen’s opinion when he rental bypass. But she emphasized that enforce it fairly. She is the very model wrote the offending phrase. He said he Justice Owen’s judicial approach to

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5458 CONGRESSIONAL RECORD — SENATE May 19, 2005 these cases was thoughtful and ration- tremist critics and vote positively on her 200 years in the Senate until the last al. She said it was easily within the re- nomination. She merits immediate con- session of Congress. spectable judicial mainstream on inter- firmation. I hope Priscilla Owen will get an up- preting legislation. She ended by say- That is a letter from State Senator or-down vote, because if she does, the ing she strongly supports the confirma- Florence Shapiro. tradition of the Senate and our respect tion of Priscilla Owen. Let’s be clear about what is going on for the Constitution will be clear. Finally, I want to talk about the in- here. A number of interest groups Again, if they want to change it, per- tent of the Texas Legislature. I served fought against legislative enactment of haps they should go about it in the in that legislature for two terms, years the parental notification law. They right way, and introduce a constitu- ago. I know most of the members of the lost. Now they are trying to undercut a tional amendment to require a super- Texas House and Senate. judge who, as honestly and fairly as majority for confirmation of judges. It is interesting to me that oppo- she could, attempted to interpret that I think the Founding Fathers were nents of Justice Owen accuse her of law. They are entitled to their opinion. geniuses and knew a balance of power misreading legislative intent by requir- They should vote their convictions. had to be delicate among the three ing more parental involvement than Priscilla Owen deserves an up-or-down branches of Government. They envi- the legislators intended. I believe the vote on her nomination to the Fifth sioned a President appointing circuit opposite might well be true. In fact, Circuit. court judges with the Senate having the legislature is currently in the proc- I want to respond to the distin- the authority to confirm or reject ess of discussing a new law that would guished Democratic leader, who this them with a simple majority vote. The strengthen parental involvement and morning said that Owen and 10 other balance of power in our Constitution require parental consent, not parental nominees have all received votes in the has kept our country strong and has notification. That bill has passed the Senate. Senator REID left out one im- been the anchor for our democracy. portant detail, and that is—if she had Texas House and the Texas Senate. It Priscilla Owen is a wonderful human gotten a confirmation vote on the floor is now in a conference committee. being who has been demonized for 4 of the U.S. Senate, Justice Owen would Justice Owen is highly respected in years. She has already displayed her be sitting on the Fifth Circuit today. Texas. Allow me to quote from a letter judicial temperament by not respond- Indeed, this Senate has taken four clo- sent by Senator Florence Shapiro, the ing to the unfair criticisms, by showing ture votes on Priscilla Owen, and each chief sponsor of the parental notifica- no bitterness, and by harboring no time she has received more than a ma- tion act approved by the legislature in anger. But she is a human being, a jority—the standard for confirmation 1999. She says: good person, and she deserves an up-or- in the Senate—until the Congress of 2 As a Senator in the Texas Legislature, the down vote. When she gets an up-or- manner in which the Texas courts review years ago. down vote, she will be confirmed and and interpret our laws is extremely impor- She would be confirmed by the Sen- become a brilliant member of the Fifth tant to me. Justice Owen’s opinions consist- ate. Senator REID is correct that nomi- Circuit Court of Appeals. ently demonstrate that she faithfully inter- nees have received cloture votes, in an prets the law as it is written, and as the Leg- attempt to override filibusters. But re- I hope the Senate is on the brink of islature intended, not based on her subjec- quiring a 60-vote threshold to proceed doing the right thing by these nomi- tive idea of what the law should be. I am sad- nees, by acting as the lofty body it is, dened to see that partisan and extremist op- to confirmation is not the Senate’s practice. Justice Owen continues to can be, and should be. I hope we will ponents of Justice Owen’s nomination have treat everyone who comes before us attempted to portray her as an activist wait patiently for the Senate to con- judge, as nothing could be further from the firm her; she has been waiting for four with respect. I do not think that has truth. years. been the case for this very fine su- Her opinions interpreting the Texas Paren- The Senate Republicans have asked preme court justice for the State of tal Notification act serve as prime examples the minority to allow the Senate to Texas. I hope that is going to change. I of her judicial restraint . . . I appreciated hope we will treat her as she should be that Justice Owen’s opinions throughout the vote, but they have refused and con- tinue to vote no on cloture, thereby treated. I hope she will get her up-or- series of cases looked carefully at the new down vote which will show that her 4 statute and at the governing U.S. Supreme changing the Constitution without Court precedent upon which the language of going through the process of a con- years of patience have allowed us to do the statute was based, to detennine what the stitutional amendment. the right thing and she will be able to Legislature intended the Act to do. When the Constitution requires a serve our country in a way that I know I, along with many of my colleagues— supermajority, it is explicit. Just be- she will make all of us proud. Democrats and Republicans alike—filed a bi- fore the advise and consent part of the I thank the Chair, and I yield the partisan amicus curiae brief with the Texas floor. Supreme Court explaining that the language Constitution, it does have a standard of of the Act was crafted in order to promote, a two-thirds vote, but that was not put The PRESIDING OFFICER (Mr. ISAK- except in very limited circumstances, paren- in the article on confirmation of SON). The Senator from Louisiana. tal involvement. judges. The clear constitutional inter- Mr. VITTER. I thank the Chair. Prior to the passage of the Act, a child pretation is that if a supermajority is Mr. President, in recent weeks, the could go to a doctor and have an extremely required, it is stated in the Constitu- American people, including the citizens invasive procedure without even notifying tion. And for over 200 years, this body of Louisiana, have heard a lot about one of her parents. At the same time, school Senate rules, about historical prece- nurses were not even permitted to give aspi- has recognized that and has made a rin to a child without parental consent. Like majority vote the standard until the dent, about something very confusing legislators in dozens of states across Amer- last session of the Senate. called the filibuster, about the Senate’s ica, we realized that something needed to be It is disingenuous for the other side constitutional duty, and advice and done to respect the role of parents—that at to suggest that these 10 nominees have consent. I think for the average Amer- least one parent should be involved in a had votes because if they had, they ican, for the average Louisianan, this major medical decision impacting their would be sitting on the benches for seems pretty esoteric. This seems pret- minor daughter. ty out of touch with their everyday Because this was not an ‘‘abortion’’ bill which they were nominated. But in- but a ‘‘parental involvement’’ bill supported stead, Priscilla Owen, after being con- lives, this issue of how the Senate gov- by lawmakers on both sides of the abortion firmed by the Senate four times, is erns itself. debate, we were able to pass a bipartisan law back again. But there are issues at the heart of that promotes the relationship between par- I think we can do better. I think we this which are important to those citi- ents and their minor daughters and is ex- can acknowledge the Constitution and zens, including my constituents in ceedingly popular with the people of Texas. acknowledge that if we are going to Louisiana. And those issues are: Is the Justice Owen is the kind of judge that the amend the Constitution, the Senate Senate going to do its job? Are we as people of the 5th Circuit need on the bench— an experienced jurist who follows the law should start the process of a constitu- Senators going to do our job and do the and uses common sense. I strongly urge the tional amendment. The Constitution is people’s business, address important committee to reject the politics of personal clear that a majority vote is required, issues of the day to build up our coun- destruction pushed by Justice Owen’s ex- and that has been the standard for over try and make it better?

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5459 Also, there is the fundamental issue We need to bring some fundamental who are concerned about justice in the of fairness. Are we going to be fair in fairness to this process. Sure, we need Fifth Circuit, taking care of that judi- this process to all concerned? to have an important debate. Sure, we cial emergency, and then we should Those are themes, those are issues to need to vet all the information. We can move on and give all of these nominees which Americans all across the coun- have differences of opinion. But then at a fair up-or-down vote. try, certainly my citizens in Louisiana the end of the day, we need to have res- Justice Owen has been maligned un- relate and care about. Are we going to olution, we need to have an up-or-down fairly. All sorts of charges have been do the people’s business? Are we going vote. It is time to do that with all of leveled against her, and I want to ad- to act in a way that is fair to all? these judicial nominees. dress some of those directly. She has Those are issues directly at the heart We have a historic opportunity in the been called fringe and out of the main- of this debate—doing the people’s busi- Senate right now to address both of stream, way out of the mainstream of ness. those concerns: to do the people’s busi- American opinion and everyday life. Last year, I ran for the Senate for ness, to do our job, to vote, and to Yet if you take any serious look at the the first time. In doing so, of course, I move on to other key issues, such as facts, that charge simply does not hold traveled all around Louisiana and the highway bill, building jobs, build- up. talked to citizens of all walks of life in ing energy independence—and we have Justice Owen has been on the Texas every corner of the State. One theme I the opportunity to act honorably and Supreme Court since 1994, but more heard over and over from all sorts of with fundamental fairness by treating significantly, when she was reelected folks of both parties was: Please go up all concerned in a fundamentally fair to that position, she was reelected with there and do what is right and do the way in giving these nominees an up-or- 84 percent of the vote in Texas, with people’s business. Get beyond all of down vote. the endorsement of every major news- this bitter partisanship, this obstruc- I stand on the Senate floor today to paper of the State and with bipartisan tionism, the filibuster. Do the people’s ask that we all come together to do support. business in terms of important issues that because that is the right thing to Now, is every newspaper in the State of the day. That is what folks in Lou- do, not for party leaders, not for the fringe, out of the mainstream? Are 84 isiana told me over and over again. President, or for interest groups on the percent of Texas voters fringe and out They care about putting good people left or the right. It is the right thing to of the mainstream? Obviously not. In addition, in her nomination to the on the bench and having our courts run do for the American people. It is the U.S. Fifth Circuit Court of Appeals, properly and filling these vacancies. right thing to do for the citizens of Justice Owen gained the highest rating They also care about other important each of our respective States. possible from the American Bar Asso- business—passing a highway bill, build- I make a plea in particular to my col- ing infrastructure so we can create ciation. league from Louisiana, Senator LAN- She was nominated on May 9, 2001, good jobs in this country and Lou- DRIEU, to do that. She is in a unique po- nearly 4 years ago, and renominated isiana, passing a national energy policy sition to reach out and achieve funda- January 7, 2003, and February 14, 2005. to get us on track in terms of energy mental fairness and do the people’s Her qualifications have been vetted and independence. That is important for business in a constructive way. debated exhaustively. our national security, and that is im- Many folks, including me, quite Owen has significant bipartisan sup- portant for our economic security. frankly, were disappointed that a few port, including three former Democrat Again, wherever I went, with whom- years ago Senator LANDRIEU filibus- judges on the Texas Supreme Court and ever I talked—Black, White, Democrat, tered and supported that filibuster of a bipartisan group of 15 past presidents Republican, and everyone in between— Miguel Estrada, another highly quali- of the State Bar of Texas. folks said over and over: Look, we are fied judicial nominee, after she had ex- Owen has been a justice on the Texas sending you there to do our business, pressed strong support of that very Supreme Court since 1994 and was en- to face issues, to vote, to move forward nomination in her reelection cam- dorsed for reelection by every major as a country, not to obstruct, not to paign. Texas newspaper. play political games, not to get mired This is an opportunity to set that Owen previously practiced commer- in bitter partisanship, but to take care record aside and do the right thing and cial litigation for 17 years. She also has of us and to address our concerns. And give all of these judicial nominees a a substantial record of pro bono and that is important. fair up-or-down vote. That is what the community activity. The other issue that is at the heart of folks of Louisiana want: to do the peo- Owen received her undergraduate de- this debate that ordinary citizens ple’s business, to do our job, to vote gree from Baylor University and grad- around the country and Louisiana care and to address other important issues uated third in her class from Baylor about is fairness. Are you going to act and to act honorably and bring funda- Law School in 1977. She was a member in a way that is fundamentally fair to mental fairness, proper American val- of the law review and has been honored everybody concerned? And, of course, ues, Louisiana values to this process. as Baylor Young Lawyer of the Year that is at issue here as well. We are beginning with a very impor- and as a Baylor University Out- We have judicial nominees who have tant nomination to the people of Lou- standing Young Alumna. been nominated not weeks ago or isiana, Priscilla Owen of Texas. It is After graduating from law school, months ago but, in many cases, years particularly important to my citizens Justice Owen received the highest ago; in some cases, over 4 years ago. of Louisiana because the U.S. Fifth score in the State on the Texas bar Their lives have been disrupted. They Circuit Court of Appeals, to which exam in December 1977. have been attacked by interest groups Judge Owen is nominated, serves Lou- The American Bar Association unani- around the country, as well as Mem- isiana, covers all of Louisiana. There mously rated Justice Owen ‘‘well quali- bers of Congress. Many charges have has been a vacancy in that position for fied,’’ its highest possible rating. been leveled against them that are pat- years and years. Some weeks ago, I also spoke on this ently untrue and patently unfair. And Judge Owen has been nominated for floor in support of Justice Brown, after all of that turmoil, after all of over 4 years. Her nomination has been whose nomination recently cleared the those trials and tribulations, they do thoroughly vetted, thoroughly debated Judiciary Committee for the second not even get an up-or-down vote on the and, yet we have never had that clo- time. The President nominated her to floor of the Senate. There is no resolu- sure. We have never had that fair up- the U.S. Court of Appeals for the DC tion to the trial, the jury never comes or-down vote. In fact, the vacancy Circuit Court nearly 2 years ago. One- back. We do not get to vote and say which she would fill has been declared fourth of the DC Circuit is currently this person should be on the court or a judicial emergency in the Fifth Cir- vacant; and Justice Brown’s nomina- this person should not be on the court. cuit Court of Appeals, impacting di- tion has strong support. That is not fair. That is not fair in the rectly Louisiana because it has been As I noted before, during Justice minds of any ordinary American. It is open for so long. Brown’s 9-year-tenure on the California not fair in the minds of the citizens of So this is the perfect place to start Supreme Court, she has acquired a rep- Louisiana. for me, for Senator LANDRIEU, for those utation as a fair and intelligent justice

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5460 CONGRESSIONAL RECORD — SENATE May 19, 2005 who is committed to the rule of law. moral, unconstitutional, inherently In closing, I urge my colleagues to Justice Brown has served on the Cali- wrong, and destructive of democratic allow both Justice Brown and Justice fornia Supreme Court since May 1996. society.’’ Owen to have a vote on the Senate Her appointment to that court was his- In writing for a unanimous court, floor. Let Justice Brown’s judicial toric: Justice Brown is the first Afri- Justice Brown struck down a certain qualifications, rather than her polit- can-American woman ever to have minority aid program because it vio- ical philosophy, be our focus in her served as an associate justice on the lated Proposition 209, a provision of the confirmation process. California Supreme Court. California constitution that bars dis- The PRESIDING OFFICER. At this Even more impressive, Justice Brown crimination against, or preferential time, the majority’s time has expired. was recently returned to that court treatment to, any individual group on The majority whip. with the approval of 76 percent of Cali- the basis of race, sex, color, ethnicity, Mr. MCCONNELL. Mr. President, I fornia voters. In her retention election, or national origin in the operation of ask unanimous consent for a couple of Justice Brown had the highest vote public employment, public education, minutes to make requests for commit- percentage of all justices on the ballot. or public contracting. Every judge in tees to meet in the Senate and to make Another sign of Brown’s credibility is California who reviewed this program just a brief statement, 2 minutes. that, in 2002, she wrote more majority found it unconstitutional. The PRESIDING OFFICER. Is there opinions than any of her colleagues on I find the argument that she is hos- objection? the California Supreme Court. As stat- tile to civil rights to be simply incred- Mr. HARKIN. Mr. President, before I ed by a bipartisan group of Justice ible, when you consider Justice object, I could not hear the Senator. Brown’s former judicial colleagues: Brown’s personal history as an African- Mr. MCCONNELL. I ask unanimous ‘‘she has quickly become one of the American who came of age in the consent for 2 minutes to make a re- most prolific authors of majority opin- South in the midst of Jim Crow laws. quest for committees to meet, which ions on the California Supreme Court.’’ As someone who attended segregated my assumption is the Senator from At least 12 judges have signed letters in schools, Justice Brown, better than Iowa will object to, and then just to support of her confirmation. Such anyone, can appreciate the importance make a very brief statement, a total of numbers are indicators of the high es- of fighting discrimination. She grew up 2 minutes. teem in which she is held by both the in Alabama, the daughter of share- The PRESIDING OFFICER. Without voting public in California and by her croppers, listening to her grand- objection, it is so ordered. judicial colleagues. mother’s stories about NAACP lawyer Mr. MCCONNELL. Mr. President, I I have heard arguments from some of Fred Gray, who defended Dr. Martin have 10 unanimous consent requests for my colleagues on the other side of the Luther King and Rosa Parks. Her rise committees to meet during today’s ses- aisle that Justice Brown should not be to the California Supreme Court from sion of the Senate. They have the ap- confirmed by this Chamber. One argu- humble beginnings in the segregated proval of the majority leader. I ask ment is that she supposedly abhors South is absolutely inspiring. That unanimous consent that these requests Government. Another argument is that may be why she has been sensitive to be agreed to and be printed in the she is supposedly hostile to civil rights. claims of racial profiling in cases RECORD. Such arguments are entirely without where the facts strongly supported The PRESIDING OFFICER. Is there merit, and I would like to respond to such an inference. objection? The Senator from Iowa. We all know that Justice Brown has this attack on Justice Brown. Mr. HARKIN. Mr. President, on be- While her critics charge that Justice risen to a prominent position on the half of the Democratic leader, myself Brown abhors Government, this nomi- California Supreme Court. But not ev- and, I might add, others on this side, nee is hardly an extremist when it eryone is aware of Justice Brown’s because of the importance of the de- comes to Government. Indeed, as a record of activities on behalf of minori- bate that is taking place on the Senate longtime public servant, Justice Brown ties, children, and the underprivileged. floor today, the Senate’s attention Let me take this opportunity to high- has been part of our Government for 25 ought to be turned to this and not to light a few such activities: years. She thinks there are many committee meetings, and therefore I Justice Brown served as a member of object. things Government does well, many the California Commission on the Sta- The PRESIDING OFFICER. The Sen- things only Government can do; and tus of African-American Males. The ator objects. she has criticized the unintended con- Commission made recommendations on Mr. MCCONNELL. If I could reclaim sequences of some of the things that how to address inequities in the treat- the balance of my brief time, what we Government does. In her judicial deci- ment of African-American males in have is a further effort to make it im- sions, Justice Brown strives to apply employment, business development, possible to do the people’s business in the law as it exists and she defers to and the criminal justice and health the Senate. The normal way we do the legislature’s judgment on how to care systems. solve many social or economic issues. She served on the Governor’s Child business is for action to be going on on This nominee’s judicial opinions sug- Support Task Force, which reviewed the floor, and additional action in com- gest that she fully appreciates the im- and made recommendations on how to mittees at the same time. As a result portance of having Government play an improve California’s child enforcement of these objections, we have thwarted active role in certain areas, including system. progress. We have thwarted progress on efforts to protect the public’s health While serving as a member of the an energy bill, on a JOBS bill, on a dis- and safety. That is why she voted to Community Learning Advisory Board aster relief bill. Yesterday, an Intel- uphold State health standards for la- of the Rio Americano High School, Jus- ligence Committee meeting had to be beling milk products. That is why she tice Brown developed a program to pro- cancelled. Here we are in the middle of agreed that faucets, which might con- vide Government service internships to the war on terror and the Intelligence tain lead, should be considered a source high school students in Sacramento, Committee was not allowed to meet. of drinking water, under the Govern- CA. Today’s objections will shut down ment’s Safe Drinking Water Program. I close by citing a statement in sup- our meetings on the Energy bill, a And that is why she agreed that her port of Justice Brown by an executive closed CIA briefing on terrorism and State’s regulations regarding overtime director of Minorities in Law Enforce- proliferation of weapons in Iran, the pay should be liberally interpreted to ment: ‘‘We recommend the confirma- Foreign Relations Committee, on provide California workers with more tion of Justice Brown based on her strengthening America’s workforce protection than they would have had broad range of experience, personal in- over at the Labor Committee, another under Federal law. tegrity, good standing in the commu- Intelligence Committee shutdown by Her opponents also have insinuated nity and dedication to public serv- this action and, of course, the Judici- that Justice Brown is hostile to civil ice. . . Justice Brown is a fair and just ary Committee will not be able to con- rights. But Justice Brown has stated in person with impeccable honesty, which tinue its markup of the asbestos bill. her judicial opinions that ‘‘discrimina- is the standard by which justice is car- We are following the regular order. tion on the basis of race is illegal, im- ried out.’’ The majority leader simply called up a

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5461 judicial nominee to be considered by Playing by the rules is the American option is detonated and a new Senate the Senate. There is nothing irregular way. It is one of our core values. From precedent is established, this body will in any way about the procedure that is childhood, we are taught to respect the be subject to the whim of any group of being followed, and yet our friends on rules, to follow the rules, to play by 51 Senators who want to impose their the other side of the aisle are shutting the rules. We are taught it is dishonor- will without any provisions for ex- down the business of the Senate by able to break the rules or to change the tended debate. Make no mistake, this making it impossible for committees rules in the middle of the game, espe- will be the end of the Senate as we to do the work of the American people cially to gain an advantage or simply know it. on everything from intelligence mat- to win. Ask any child, and he or she How ironic that this is being done by ters to passing an energy bill when gas will say that breaking the rules or Senators who call themselves conserv- prices are at record highs. This is an changing the rules in the middle of the ative. The truth is that resort to the incredibly irresponsible approach to game is not only unfair, it is wrong. nuclear option, breaking the rules, the majority’s efforts simply to move America is a great country because making up new rules convenient to the the people’s business along by fol- playing by the rules and respecting leadership, is a radical, unprecedented lowing regular order and moving to- rules is a core value. It is a way of life. action with consequences that no one ward a vote on the President’s nomina- It is at the heart of our athletics, our can predict. Because once the rules are tion for the court of appeals. business dealings, our way of govern- broken and rules are made up as one I yield the floor. ment. It is no exaggeration to say that goes along, seeds of anarchy, of chaos, The PRESIDING OFFICER. The Sen- if one destroys the idea of playing by are sown. An atmosphere of anything ator yields back. the rules, then they invite distrust, goes is created, and the end justifies The time, until 11:45 a.m., is con- disorder, and the disintegration of the the means. trolled by the Democratic leader or his American social fabric. They invite We have already seen this in the ac- designee. chaos, and chaos invites tyranny. tions of House Majority Leader TOM The Senator from Iowa. This is exactly why the Republican DELAY. We have an honored tradition Mr. HARKIN. Mr. President, I yield leadership’s plan to resort to the nu- that congressional redistricting occurs myself such time as I may consume. I rise today to speak about the pros- clear option is so dangerous. Since 1790, every 10 years after the decennial cen- pect that at some point next week, ac- the filibuster has been used in the Sen- sus, but the majority leader in the cording to all of the press reports and ate countless times, and nearly 100 House wanted to increase his majority according to what I have heard on the years ago the Senate passed rule XXII, in the House. So what did he do? He floor, the majority leader of the Senate codifying the right of extended debate. tore up the rules and made up new will take a course of action that has We know what that rule says. It says rules, TOM DELAY’s rules. But the real been dubbed the ‘‘nuclear option.’’ that it takes 67 votes to change the Tom DeLay rule is this: Anything goes. The majority leader will take a Senate rules and 60 votes to cut off de- The end justifies the means. Situa- course of action that will tear down bate. Those are the rules. They are tional ethics. I fear we are about to the rules by which we operate in the deeply conservative rules, rules that adopt that Tom DeLay rule in the Sen- Senate, rules which have been laid have been respected and honored for ate. This is profoundly bad news for down in some cases for almost 200 nearly a century, until now. this institution. years, in some cases over 100 years. The Republican leadership is un- I am also concerned about the mes- I believe we should be taking our happy because a small number of sage it sends to businesspeople, to hus- time in the Senate because of the ef- judges, all of them I consider far out of bands and wives, to our people. The fects that this step by the majority the mainstream, have been filibustered message is if our national leaders can leader could have on how we represent by the minority. They are unhappy be- break the rules as a matter of conven- our constituents. It can have such a cause they have been able to confirm ience, if they can write their own rules, profound effect that it behooves us all only 95 percent of the President’s judi- impose them on others, then maybe it to think very deeply and carefully cial nominees and not 100 percent. This is okay for everyone else to behave just about it and to come to the floor to ex- compares to only an 80-percent con- like that. press our opinions. firmation rate during the Clinton ad- This is a deeply disturbing prospect. By triggering this nuclear option, the ministration. The Republicans blocked I implore the distinguished majority majority leader would unleash forces 68 Clinton judicial nominees, including, leader, Senator FRIST, to consider the he would regret and that everyone who I might add, Bonnie Campbell, from my law of unintended consequences. He is loves this great Nation and its system State of Iowa. threatening to break rule XXII in order of checks and balances would regret. Most of those nominees were blocked to pass 100 percent of the President’s There is no question that by break- in the Judiciary Committee by just one judicial nominees. Once the rule is de- ing the rules—that is what would hap- Senator. Now, does the Republican stroyed, and once the majority leader pen, breaking the rules—the majority leadership celebrate the fact that by imposes a new rule to his liking, then party would gain short-term advan- playing by the rules they won 95 per- who is to say where it will lead? It will tage. They would be able to confirm cent of the time? Do they now play by be like an out-of-control virus. If 51 every one of their judicial nominees, the rules and gather the votes nec- Senators can change any rule at any no matter how radical or out of the essary to change rule XXII governing time for any reason, then anything is mainstream. But the long-term de- filibusters? No. possible. The metaphor Senators are structive consequences triggering the They are going to employ a trick, a using is a ‘‘nuclear option,’’ and I nuclear option would be profound for procedure, whereby the rules are over- would say that is true, it is nuclear be- our system of Government. turned by one decision of the Presiding cause it does blow up this place. But For more than two centuries, Senate Officer backed by 51 votes. That will there may be another metaphor, too: rules and traditions have respected the destroy the rules of the Senate. Now that the majority leader is letting the rights of the minority. That would be they say: Well, it only applies to judges genie out of the bottle and there will destroyed. For more than two cen- now. It can apply to anything else be no putting that genie back once it is turies, thanks to those minority down the pike. out. It will wreak destruction in ways rights, the Senate has been a force for Now, a mere 10 Bush nominees have no one now can predict or foresee. compromise, moderation, and reason. been blocked, and what is the Repub- For example, once the Chair can That would be destroyed. lican leadership’s response? It is to de- make a determination about the rules For more than two centuries, the mi- stroy the rules. Sweep aside more than and have that ruling upheld by 51 votes nority’s power in the Senate has been 200 years of Senate tradition. In its of the Senate, what is to say of the essential to America’s system of place, they will make up their own time-honored tradition we have in the checks and balances. That would be de- rules, a new rule, that will allow them Senate of a Senator being able to have stroyed. And something else of great or any majority to change any rule at the right of the floor and being able to importance would be destroyed: Re- any time for any reason with only 51 speak for as long as he or she wants? spect for rules. votes. In other words, once the nuclear That has been our right since the

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5462 CONGRESSIONAL RECORD — SENATE May 19, 2005 founding of the Senate. Once a Senator that the vast majority of Americans Jefferson said, ‘‘To cool it.’’ is recognized, that Senator can speak share. We prize our system of checks To which Washington reportedly until they drop. I think the record is 24 and balances. We respect minority said: ‘‘Even so we pour legislation into or 25 hours, by former Senator Strom rights and dissent. We want to ensure the senatorial saucer to cool it.’’ Thurmond. that minorities are protected. We un- For two centuries that is exactly how Who is to say if, in the future, some- derstand the danger of majorities act- the Senate has worked. Because of the one gets up to speak but people want to ing without check or restraint, running tradition of free speech and minority move on and do something, that after roughshod over those who would dis- rights, specifically because of the that person speaks for 5 or 10 hours the agree. threat of filibuster, Senators have a majority leader would be recognized As a well-known minister once said: strong incentive to act with modera- and make a point of order that the per- Democracy exists not just when the major- tion and restraint, to make com- son is speaking unconstitutionally? ity rules, but when the minority is abso- lutely safe. promises, to accommodate the legiti- They have the 51 votes to uphold the mate concerns of the minority. That is motion and that is the end of it. So a The rules of the Senate and the rule of ex- tended debate give the minority that abso- exactly what the nuclear option would Senator’s right to have the floor is sub- lute safety. You take that away and you demolish. ject to whatever the Chair wants. We take away the minority rights in the Senate. may get it; we may not. We may not be The majority party in the Senate, Most Americans understand that checks and whether Democratic or Republican, has able to speak for an hour or 2 hours or balances are the key to preserving our lib- whatever we want. The Chair may say erty. always been frustrated by the minori- ty’s use of the filibuster. But I submit to the Senator from Iowa, You can James Madison wrote: speak for 3 minutes and then you have that frustration is the necessary by- The accumulation of all powers, legisla- product of an effective system of to sit down. tive, executive and judiciary, in the same They do that in the House of Rep- hands may justly be pronounced the very checks and balances. It is the price we resentatives. They have a 5-minute definition of tyranny. pay to safeguard minority rights. rule. I know, I served there. But that is But that is exactly the goal of the For decades, a determined conserv- not the Senate. Republican leadership today. They ative minority used the filibuster to I am just saying who knows what seek the accumulation of all power— block civil rights legislation and deny might happen. It is possible. If we go legislative, executive, and judiciary— an up-or-down vote to a liberal Su- down this road that is the precedent in the same hands, their hands. This is preme Court nominee, Abe Fortas. Pro- that is set. profoundly dangerous. By resorting to gressives were extremely frustrated by I do not know why the majority lead- the nuclear option, the majority would this exercise of minority rights and mi- er is doing this. Possibly what we are break the rules in order to change the nority power. seeing here is an attempt to seize abso- rules. Under the rules of the Senate, it Now it is the Republicans’ turn to be lute power and unchecked control of all takes 67 votes to change the rules, 60 frustrated by the filibuster. They are three branches of Government. The Re- votes to end debate on a judicial nomi- frustrated because they can’t get their publicans already control the executive nee. But by resorting to this par- way on judges 100 percent of the time. branch. A majority of Supreme Court liamentary gimmick, this nuclear op- They have gotten their way on 95 per- Justices are Republican nominees. So tion, the majority would change this cent of judicial nominees, but not 100 are the majority of judges on our rule with only 51 votes. The result percent, and they believe this justifies Courts of Appeal, the circuit courts. In- would be to destroy any check or re- breaking the rules, to get rid of the fil- deed, there is a Republican majority on straining influence on the power of the ibuster. 10 of the 12 circuits. Republicans have majority. This is not the American I submit the Republicans’ very frus- an iron grip on the House of Represent- way. It is certainly not the wishes of tration is evidence that the system of atives. They have a 55-seat majority the American people. checks and balances here in the Senate here in the Senate. Only one barrier In debate in the Constitutional Con- is healthy and working, working ex- now stands in the way of the Repub- vention in Philadelphia, James Madi- actly as it should. lican Party seizing absolute control of son said the Senate would have two In 1995, I proposed to modify rule every aspect of our Government, all roles: XXII in a way that would have given three branches, and that is the right of first, to protect the people against their the minority an incentive to limit the the minority in the Senate to fili- rulers, secondly, to protect the people use of the filibuster. It would not have buster. against the transient impressions into which taken it away. However, my proposal By unleashing the nuclear option, they themselves might be led. bore no resemblance to the nuclear op- the Republican leadership would crush By attacking the filibuster, the Re- tion. First, I did not propose to break this last remaining check on its power. publican leaders would destroy the the Senate rules. I played strictly by The filibuster is a more than 200-year- ability of the Senate to ‘‘protect the the rules. I pursued my rule change old tradition in the Senate; it has with- people against their rulers.’’ The Sen- through normal Senate procedures as a stood the test of time. ate would lose its capacity to stand up floor amendment. It would have taken I do not believe the nuclear option to an out-of-control majority. Instead, the requisite 67 votes to pass on the reflects the desires or values of the the Senate would be turned into a floor, which is entirely appropriate American people. Americans are ex- rubberstamp for the majority’s agenda, when changing a time-honored Senate tremely wary of one-party dominance just as the House is a rubberstamp for rule. By contrast, this nuclear option and control. This is a prime reason why the majority’s agenda right now. That discards the rules. It would impose the so many voters split their ballots In would be a betrayal of the Senate’s tra- Republicans’ radical change with only the election last November. Repub- ditional role as envisioned by the 51 votes. licans won the White House with less Founding Fathers. than 51 percent of the popular vote. The Constitution gave Senators 6- Ten years ago I proposed to modify The Republicans have a 52-percent ma- year terms so they would not bend to the filibuster rule as a matter of prin- jority in the House. They have a 55-per- the political passions of the moment. I ciple. Today the Republican leadership cent majority here in the Senate. But remind my colleagues of the famous wants to modify the filibuster as a they want to seize 100-percent control exchange between Thomas Jefferson matter of political expedience, to make of the Government, including the third and George Washington. On his return it possible to stack the courts with branch, the judicial branch. from France, Jefferson asked Wash- radical judges. They are pursuing un- It is not healthy for our country. It is ington at the breakfast table why he checked power, the absolute control of not healthy for our democracy. I do not favored the creation of a second Cham- all three branches of Government. In believe for 1 minute this power grab re- ber, the Senate. this context, the filibuster takes on flects the wishes of the American peo- Washington replied with the ques- even new importance. ple. When it comes to government, tion, ‘‘Why did you pour that coffee It is all that remains to check the there are certain values and principles into your saucer?’’ majority’s quest for absolute power.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5463 By the way, I might note parentheti- Mr. DURBIN. I thank the Senator Bush was elected, more than 95 percent cally that 24 current Republican Sen- from Iowa for making clear that when of his judicial nominees have been ap- ators actually voted against my pro- he offered his change in the rules rel- proved, the highest approval rating of posed change to the filibuster back in ative to the filibuster, he did it accord- any President in the last 25 years. 1995. The distinguished majority lead- ing to the rules. When Senator HARKIN Again, 208 have been approved, 10 have er, Mr. FRIST, was one of those Repub- suggested that we change the number not been approved, and the President licans opposing any change to the fili- of votes necessary for a filibuster, he says: That’s not good enough; I want buster. Indeed, as has been noted time used the rules of the Senate, he fol- them all. No dissent, no disagreement, and time again, the majority leader lowed the rules of the Senate. He un- give me every single judge. voted in the year 2000, 5 years ago, to derstood it would take 67 votes for him That is the reason we are here debat- sustain a filibuster of a Clinton nomi- to succeed and he pressed forward. ing. To make it clear to those fol- nee, as did many other Republicans. If the Republican majority today did lowing the debate, we are prepared, on Those same Republicans, who now exactly as Senator HARKIN did, there a bipartisan basis, to work with the say President Bush’s judicial nominees would be no discussion of a nuclear op- White House and the Republicans to have a constitutional right to an up-or- tion. We would move to that point in continue to approve judges, as we have down vote on the Senate floor, denied the calendar, we would take the vote already done 208 times with this ad- that alleged right to scores and scores according to the rules, and no one ministration. I am about to make a of President Clinton’s judicial nomi- would be paying much attention be- unanimous consent request that will be nees, including, as I said earlier, a dis- cause that is the routine of the Senate. followed by another, and let me de- tinguished Iowan, Bonnie Campbell. We would be following the rules of the scribe it first before I make it. We have Ms. Campbell, a former Iowa attorney Senate. had one man’s name on the calendar general, respected Justice Department The unique situation now presenting longer than the pending nominee, Pris- official, was nominated for the Eighth itself with the nuclear option is that cilla Owen: Thomas Griffith of Utah, U.S. Circuit Court, but her nomination the Republican majority is going to nominated to serve as circuit judge for break the rules of the Senate in order was blocked in committee. the District of Columbia. I voted for to change them. Instead of following Let’s be clear. If the issue is denying him as a Democrat, coming out of the Senator HARKIN’s model and example nominees an up-or-down vote by the Senate Judiciary Committee. He has of 67 votes, they will bring Vice Presi- full Senate, there is no practical dif- been on the calendar since April 14. ference whatsoever between blocking a dent CHENEY to the chair, they will ask As a show of good faith, as a show of nominee in committee or by filibuster him to rule as a Presiding Officer of bipartisanship, to demonstrate we can on the floor. During the Clinton years, the Senate that the rules are going to work together, we can achieve things Republicans blocked judicial nominees be changed, he will make that pro- when we speak to one another and nouncement, and that is the end of the again and again and again. They did it when we respect one another, I will story. They will be breaking the rules in committee, they did it by blue slip, make a unanimous consent request to or they blocked them on the floor. It of the Senate to change them. That is the unique difference between move from the current business imme- didn’t matter. But the nominees were diately to the Executive Calendar to denied an up-or-down vote on the floor what Senator HARKIN did many years ago and what the Republican majority bring his name to the Senate with de- of the Senate. bate of, say, 1 hour, and that he be The nuclear option is a flagrant does today. It is historic. That is why so many people are following this de- voted on today. abuse of power. The minority party, Then when I am finished, as the mi- the Democrats, will resist it vigorously bate. People who never heard of the nu- nority leader, Senator REID, did yester- clear option are following this debate. within the rules of the Senate. We have day, I will ask that we discharge the a responsibility, an oath of office to de- They understand something historic is about to take place: changing a tradi- Senate Judiciary Committee and im- fend our constitutional system of mediately consider the Michigan Cir- checks and balances. We have a respon- tion, changing something in the Sen- cuit Court nominees of Griffin, sibility to defend the Senate’s unique ate, a rule that has been in place for McKeague, and Neilson. I will, of function as the last bastion of minority over 200 years. With the wave of his course, allow that unanimous consent rights, as the last check on an abusive, hand, Vice President CHENEY will take request to be amended in terms of de- out-of-control majority. away a rule that has applied for 200 But this should not be just the re- years. bate time necessary for each nominee, sponsibility of the minority party. It Some argue this should be viewed as but we can in a matter of a few hours should be the responsibility of all Sen- another routine day in the Senate. I move four circuit judges through this ators who respect the rules and tradi- disagree. This is a historic debate and Chamber on a bipartisan basis and tions of this body. It should be the duty one on which I hope the American peo- demonstrate that there is no need to of all Senators who value our demo- ple are focusing. Changing the rules in describe our situation as a crisis. There cratic principles, our system of checks the middle of the game is not accepted is no need to change a 200-year tradi- and balances, protection of minority in most conduct in America. It tion of the Senate. There is no need to rights. shouldn’t be accepted in the Senate. call in Vice President CHENEY to wipe The very nature of the Senate as an Changing the constitutional balance of out a rule that we can work on to- institution is at stake. More than that, the Senate and the White House is his- gether. I think that is what we should the very nature of how we operate as a toric and should be followed closely by do. government is at stake. As I said, when every single American. I ask unanimous consent we move to you destroy the rules by not following My colleague, the Senator from Ken- the nomination of Thomas B. Griffith the rules, you invite chaos. Chaos in- tucky, came to the Senate earlier and of Utah to be U.S. circuit judge for the vites tyranny. This is the time to look suggested that we should go about the District of Columbia and that Mr. Grif- beyond party, to look beyond short- routine business of the Senate while fith’s nomination be considered with 1 term partisan advantage. this debate continues. We see it other- hour of debate equally divided, and I have every hope there will be wise. We believe we should focus in the then have a rollcall vote. I make that enough Senators, Democrats and Re- Senate, as the people of America unanimous consent request. publicans alike, to disarm this destruc- should focus on this critical debate, Mr. MCCONNELL. Reserving the tive nuclear option. I have every hope with very few exceptions. If there are right to object, and I will object, let me that a critical mass of Senators will be exceptions relating to committee ac- say to my good friend from Illinois, true to the rules and traditions of this tivity on national security or things of this is a scheduling issue. His party body and that we will act to preserve that nature, we will consider each and was in the majority for 18 months be- the integrity and independence of this every one of those, but the routine tween 2001 and 2002. Then, Majority great institution. business of the Senate must be held up Leader Daschle got to decide the order I yield the floor. while we engage in this. of matters to be considered in the Sen- The PRESIDING OFFICER. The as- The core reason for this debate is the ate. That is the prerogative of the ma- sistant Democrat leader. approval of judges. Since President jority leader.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5464 CONGRESSIONAL RECORD — SENATE May 19, 2005 I am certainly pleased to hear of the pressed that concern and asked there that despite concerns about the process enthusiastic support of my good friend be some balance in the nominations to now and the lack of bipartisanship in from Illinois for the nominee, Griffith. fill the vacancies. the Sixth Circuit for the last 41⁄2 years Nevertheless, the majority leader, Sen- At this point, I ask unanimous con- and the lack of ability to come to- ator FRIST, is charged with the respon- sent we set aside the pending business gether in a way to jointly support sibility of determining the order in the of the Senate, discharge the Senate Ju- nominees given the context of this Senate. We are on a nomination that diciary Committee from further con- larger debate right now and the critical enjoys bipartisan support, a majority sideration and immediately consider importance of maintaining the minor- of bipartisan support, and that is Texas the nomination of Michigan Circuit ity views in the Senate and our ability Supreme Court Judge Priscilla Owen. Court nominees Griffin, McKeague, and to fight for our States and what is im- I am of the belief that some of the ef- Neilson. portant for us both, Senator LEVIN and forts to shut down the activities of the Mr. MCCONNELL. Reserving the I have agreed to allow us to move for- Senate may be coming to a close, and right to object, and I will object, once ward in a show of bipartisan coopera- I will seek the floor for the purpose of again, it is good news to hear the Sen- tion, a show of good faith with our col- offering a unanimous consent to allow ator from Illinois is going to be sup- leagues on the other side of the aisle, the Foreign Relations Committee to at portive of three circuit judges from to move forward with three nominees least meet, which is good news. Unfor- Michigan who have been denied an op- for the Sixth Circuit. tunately, other committees are still portunity to have an up-or-down vote It is very disappointing to once again shut down by not following the normal for many years. The majority leader see that motion has an objection rath- procedure in the Senate where commit- certainly has on his list for very near er than moving ahead. In fact, last tees are busily at work while action is future consideration all of those week, when our leader, Senator REID, made that motion to move forward on occurring on the Senate floor. As a re- judges, and I am pleased to hear they three judges in order to be able to get sult of actions in the last 2 days, the will be in all likelihood approved when us moving in the right direction in Energy bill is thwarted, the JOBS bill they are brought up at a time of the terms of bipartisanship, the majority is thwarted, disaster relief is thwarted, majority leader’s designation. leader objected to moving forward on and a closed intelligence meeting was Let me repeat, all we are looking for the three Michigan nominees and im- not held again today. The Energy bill, is an up-or-down vote. We are not look- mediately went to a press conference the HELP Committee is out of action ing for a guaranteed outcome. But my with House Republicans from Michigan today. Asbestos is not going forward. friend from Illinois is probably sus- to criticize us for not being willing to All of these efforts to delay activity picious that there will be success if up- compromise and move forward on Sixth in the Senate, to shut down the Senate or-down votes are granted because all Circuit nominees. are not necessary. It is routine in the of the judges who have been pending This kind of politics is very dis- Senate for committees to be doing have bipartisan majority support. turbing and very unfortunate when we We will look forward to dealing with work while we have debate on the are trying very much to move forward floor. Nothing extraordinary is hap- all of the judges the Senator from Illi- and to break this gridlock and create pening on the floor. We are following nois would like to schedule, instead of an atmosphere where we can continue regular order. The majority leader, as the majority leader, in the very near to work together on the issue of judges. is his right, had called up a nomina- future, but in the meantime we are Again, let me say that it is very unfor- tion, and we are debating it. dealing with the nomination of Justice tunate that the majority leader said We will get around to Mr. Griffith, Priscilla Owen to the Fifth Circuit. that three out of four judges was not and I am certainly pleased to hear that Mr. President, I object. enough. There is an objection, a con- Mr. DURBIN. Let me close briefly the assistant minority leader is in cern on both sides of the aisle, of one of favor of him. That is good news. That and say if the argument is being made the nominees, but we have been willing is one, when we turn to him, I look for- by the Republican side that there is in good faith to move forward with ward to confirming with not a great committee activity that should go on three of the nominees and have for 41⁄2 deal of debate. that is more important than this con- years been meeting with the adminis- With regard to the current consent stitutional debate on the floor of the tration, with colleagues on both sides agreement, I object. Senate, I would also make the argu- of the aisle, offering bipartisan solu- The PRESIDING OFFICER. The ob- ment that there is important floor ac- tions such as what other States do in jection is heard. tivity that just could have taken place. terms of bipartisan commissions to be Mr. DURBIN. Mr. President, let me We could have approved four more able to move us forward. At every turn say it is clear now this is not about judges for President Bush at the circuit we have been told, ‘‘no.’’ moving judges forward because I have level, moved forward on a bipartisan Now when we come forward and say, offered an opportunity for the Repub- basis, and done it before lunch. let’s move to three of those judges in lican majority to move a circuit judge It was the decision on the Republican the interest of the larger picture in in Utah forward on a bipartisan basis, majority side that rather than bring terms of what is happening in the at- as most of President Bush’s nominees this to a vote, bring it to closure, make tempt to eliminate checks and bal- have been moved forward. It is about progress, show we are working together ances in our constitutional process, we, the fact that President Bush has not on a bipartisan basis, instead they are once again, are hearing, ‘‘no.’’ had every single nominee he sent to going to continue to press for the so- I find that very unfortunate. But I Congress approved. More than 95 per- called nuclear option so that Vice think it points to the fact that what we cent have been approved. President CHENEY can wipe away a 200- are seeing is a fundamental debate, not There is another controversy relating year tradition in the Senate with the about judges, but it is about free to the State of Michigan—and I see my wave of a hand. Unfortunately, that is speech. It is about our constitutional colleague, Senator STABENOW, is here— a sad commentary on where we stand system of checks and balances. We a controversy that goes back to the today. have to constantly refer to the fact, as Clinton administration when a system- I yield the floor. has been said before on the floor, that atic effort was made to deny any nomi- The PRESIDING OFFICER. The Sen- if it was about judges, the administra- nee, virtually any nominee sent by the ator from Michigan. tion should be celebrating the best Clinton White House to the Senate Ju- Ms. STABENOW. Mr. President, I record in 25 years of Presidents of ei- diciary Committee, the opportunity for rise today to speak about both the ther party: 208 to 10. There have been a hearing and fair consideration. pending nomination and also the over- 208 judges confirmed on a bipartisan Naturally, the Senators from Michi- all process involved in the debate on basis, to 10 whom we have objected to gan were upset that very qualified men free speech and checks and balances. because they are incredibly outside of and women were not given a chance to Let me first thank and support the the mainstream of American thought. present their credentials and to come efforts of our Democrat minority lead- The best record in 25 years: 208 to 10. to a hearing and have a committee er from Illinois and thank him for his What is this debate about? Well, un- vote. Over the years they have ex- eloquence on this issue and indicate fortunately, it is about the fact that

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5465 we have one party—we respect that. We cause we have something called a fili- Justice back in 1968. I will not tell you understand one party is in control of buster which says a Senator can stand where I was in 1968, but it is a little be- the White House, the House, and the up, and as long as their legs will allow fore my time here. But it is interesting Senate, but they do not have 100 per- or their voice will allow, they can to note that one of the Senators who cent. There are people who elected oth- stand up and speak their mind on be- filibustered the Justice at that time, in ers, elected Democratic Senators or half of the people they represent, and 1968, was a Michigan Republican Sen- Democratic House Members. They they have the opportunity to put for- ator, Senator Robert Griffin. want their views to be represented as ward their view. What is particularly noteworthy is well in this democracy, where we work It is the minority view—not the mi- that he is the father of one of the together to find compromise and bal- nority party view. It may be a single nominees to the Sixth Circuit who, in ance and what is best, ideally, for ev- person’s view, but the minority view fact, we just tried to move forward eryone but certainly for the majority can be heard. And because a Senator or right now and were stopped in so doing. of Americans on any one decision. two or three or four believe so passion- But it is important to note that Sen- But we are hearing, instead: No, we ately about something, the rules then ator Griffin, on the floor, in his debate, want total, absolute, complete power require you have to get a few more peo- in his speech about why it is appro- over what happens in the United ple to agree, you have to get 60 votes, priate for Senators to be able to stand States. That is not a democracy. In rather than 51, because of the strong up and object and to filibuster on judi- fact, we are very fortunate that our concerns raised by individual Members. ciary nominations, said: Founders understood the importance of Now, what does that mean for us in It is important to realize that it has not checks and balances in putting to- Michigan? This is not just about been unusual— gether not only a House of Representa- judges. In Michigan, we are very proud This is 1968. tives, that reflects the instant will of of our Great Lakes. We are proud of the it has not been unusual for the Senate to in- the people, but also a Senate, with a fact that we not only have our Great dicate its lack of approval for a nomination longer term—instead of a 2-year term, Lakes for drinking water, but for boat- by just making sure that it never came to a a 6-year term—that is charged with ing and tourism and economic activity. vote on the merits. And as I said before, 21 carefully evaluating the impact of leg- But one of the things we are concerned nominations to the court have failed to win islation in a longer term view. In other about in Michigan is the fact that Senate approval. words, the House is the ‘‘gas pedal,’’ someday the States in the West and This is Senator Griffin in 1968: and the Senate was designed as the the South that do not have a lot of But only nine of that number have been re- ‘‘brake.’’ So we can have the important water may decide they might want our jected on a direct up-or-down vote. debates occurring in the House, and in water. Well, we do not like that very In other words, Senator Griffin ac- the Senate have them as well, but much. knowledged, back in 1968, that it was allow minority views to be represented Right now, I feel very confident that not unusual for this Senate to fili- in a different kind of way. Senator LEVIN and I, and other Great buster judicial nominees. I think there On the issue of judges, our Founders Lakes Senators, would be able to stand is a lesson here. If the Republicans are were very clear. It is the third branch up and present the minority view, to be currently concerned about filibusters, of Government, with lifetime appoint- able to use the rules of the Senate to they should listen to what the father of ments. It is not the President’s Cabi- protect our water. What happens if one of the pending nominees, a Repub- net. I supported nominees to the Presi- that is gone? What happens if we no lican, said about filibusters and checks dent’s Cabinet who personally I would longer can express as to and fight for and balances. not have selected. But the President our State because the checks and the Once again, the reality is, I do not has a right, within every reason, to his balances have changed? believe this is about filibusters in the team for his 4 years. I have supported This is not just about judges. What context of judges because, look: 208 to those. about Social Security? If, in fact, the 10; 208 approved, on a bipartisan basis, But this is a third branch of Govern- rules can be changed on judges, what to 10. This is about whether we will ment, with lifetime appointments, so about privatizing Social Security? have free speech in the Senate and, I our Founders said: We are going to give Right now, we have a significant num- believe, in our country through its half of that responsibility to the Presi- ber of people to be able to stop the elected Senators. This is about whether dent and half of that responsibility to movement to dismantle Social Secu- there will be checks and balances in the Senate. So given our half of the re- rity, the great American success story. our Government that allow those rare sponsibility, again, we have agreed to But what if the rules change and the occasions—with the 10—for people to 208 judges on a bipartisan basis. And checks and balances change? say: No. You have gone too far, Mr. using our half of the responsibility, we The whole point of checks and bal- President. With all due respect, your have objected to 10. That is the record: ances, the whole point of allowing ex- nominations have gone too far. And on objected to 10. And why? Because those tended debate and forcing compromise behalf of the people we represent, we individuals, again, do not represent and people coming together, is to bring have the responsibility to stand up and mainstream thought and would be fill- people with calmer minds to be able to say, stop, send us another nominee. ing lifetime appointments—not for 3 or listen to each other and to be able to Send us someone in the mainstream. 4 years, but for three or four decades— forge a bipartisan compromise. For Send us someone who will, in fact, rep- long beyond any of us in our participa- Senators, whether it is their view as a resent the interests of a majority of tion here in the Senate or this Presi- Democrat or Republican or their view Americans. dent. from their State or their view because That is not what is happening today. So it is important to remember that of some other consideration which We are being told: It is all or nothing. in putting together our Constitution causes them to feel so passionately In the Sixth Circuit it is all or nothing. and our Bill of Rights, our Founders, that what is being put forward is Three out of four judges is not good were very wise. I think we are very for- wrong, it forces us to work together. enough. We are being told here: It is all tunate we had a group of people come That is a great thing. That is some- or nothing. It is about complete and together to create these checks and thing we have benefited from as a absolute power, no checks and bal- balances. country. We need to protect that as ances. In other countries they call that It is not about just partisanship, Americans. a dictatorship. We have a democracy. Democrats and Republicans, it is about Let me say also that it is very ironic, We respect and allow other views to be big States and small States. It is about as we are talking about the filibuster— heard. We do not have to agree with Great Lakes States and States that do I find particularly in Michigan—that them, but we allow them to be heard in not have water. The reality is, we have when we talk about the filibuster, and our country’s democracy. And we cre- a system of checks and balances that so on, as if it has never been done be- ate a way, through the Senate, to force has allowed us to come together and fore, colleagues of mine who have been people to come together and listen to create compromise, allowed us to cre- around for a while may remember Abe each other, and to be able to com- ate more mainstream decisions, be- Fortas who was nominated for Chief promise in the very best sense of the

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The We are talking about the ability to their academic achievement, their ju- question that faces us now is a clash of fight for your State, the ability to dicial temperament, for their personal two principles: Do we accede to this stand up for your values and principles, integrity, and I would then vote on new Senate rule that has the standard to fight for what you believe is right, that basis without regard to a cultural no longer of 51 votes but the standard the ability to ask others to join you in litmus test. of 60 votes or do we go back to that that, the ability to say to the Presi- I tried to demonstrate that when standard by changing a Senate rule dent of the United States: Ninety-five President Clinton was living at 1600 making explicit what had before been percent is a great record. Two hundred Pennsylvania Avenue, although I was an understanding among colleagues? eight is a great record. But, Mr. Presi- not on the Judiciary Committee, I fol- I believe we are in a place now that dent, these 10 go too far. These 10 will lowed closely the deliberations of that we have to go back to the standard turn us back in terms of protecting the committee under the leadership of Sen- that this Chamber has operated under rights of Americans, and we are asking ator HATCH. There were a number of for 214 years. I think to do otherwise you to work with us on these 10. Democratic nominees that I specifi- has a long-term impact that is nega- That is not an unreasonable request. cally advocated for and tried very hard tive for the third branch of our Govern- Fundamentally, what we are talking to help in their confirmation, and in ment, the judiciary. about is whether we are going to con- the most part succeeded, even though As Senator DURBIN, the assistant mi- tinue to value free speech in our coun- their views were different from mine on nority leader, would probably like to try. Doing away with the ability for us a range of issues. I remember, in par- know, this is one Republican who does to speak and to be able to require a ticular, the work of the committee on listen to him and I was listening to majority vote of 60 votes in order to be two controversial judges who were, by him last night when he spoke about able to move forward on controversial every measure, on the left wing of the Priscilla Owen. I heard his comments issues is the first step of taking away spectrum politically, Judge Berzon and earlier when she had come up for con- free speech. I am very hopeful when the Judge Paez. firmation in the 108th Congress, and vote comes that men and women of dig- I remember Senator HATCH got them among the many things held against nity and respect and good conscience out of the committee, and I remem- her was her membership in the Fed- on both sides of the aisle will say, no, bered my promise to the people of Or- eralist Society. The Federalist Society this is not about party. It should not be egon. One of our colleagues began to is something I have never belonged to. about party. It should be about what is filibuster against proceeding in viola- When I was in law school, I did not best for the country. It should be about tion of what had been a gentleman’s know about it. But it is an organiza- protecting the greatest Constitution in agreement of 200 years and more; that tion that believes apparently the judi- the world, the greatest Bill of Rights in is, you don’t filibuster judges when cial branch of Government should the world. they clear the committee process and strictly construe the laws and be reluc- We have men and women of good con- they come to a vote. So I voted in both tant to get into political questions, to science on both sides of the aisle who I instances to invoke cloture and then to leave the democratic processes work- know want to do what is right. I hope confirm their ascension to the appel- ing, and to strictly interpret their it is going to be a very proud day, if late court. I remember hearing a lot of judgments from the black letter of the this comes to a vote, and we have the disgruntlement by conservatives in Or- law. I do, however, remember when I bipartisan support of folks standing to- egon who felt very strongly that they was in law school that one organiza- gether and saying: We can do better should be defeated. tion was very active in recruiting, and than this. We can work together and But I do think elections have con- that was the American Civil Liberties maintain the ability for the minority sequences. Presidents have rights and Union. That is an organization that be- view to be heard in the Senate on be- we have a role to play in advising and lieves it stands for the protection of half of the people of this country. consenting. But I also feel that when Thank you, Mr. President. I yield the the Bill of Rights and believes that we use the Senate rules to essentially floor. those who should be on the court The PRESIDING OFFICER. The Sen- overturn the right of a President and should expansively interpret those ator from Oregon. the result of an election, we do more rights. As I understood the assistant Mr. SMITH. Mr. President, I thank than just violence to the executive Democratic leader, he was saying that the Chair and our side for the time to branch of Government. We do serious Judge Owen’s membership in the Fed- speak on this issue. injury to the judicial branch of Govern- eralist Society should disqualify her. This is an issue and a moment in ment. And we send a chilling effect Well, if that is now the standard—and, Senate history which, frankly, I wished into judges’ chambers that they are Mr. President, it will be the standard if there could have been found a way to going to then, in the future, be held to the new Senate rule is 60 votes—then I have avoided. I have been among those a standard that is so politicized that promise my friends on the Democratic who have said to my leader: You have the best and brightest of liberal and side that there will probably be more a qualified yes for my support to try conservative minds need no longer than 40 Senators on this side who in and negotiate. Those negotiations have apply for service in the Federal judici- the future will hold ACLU membership apparently broken down. So then it ary. against nominees. falls to each of us to study and to take Reflecting upon what I did under I think that is a mistake. I think as seriously as we can the weight and President Clinton, I have tried to be guilt by association, whatever you moment of this decision and how we consistent in my advice and consent think of these organizations, should should come down on the issue of fili- during the administration of George W. not be disqualifying of nominees from bustering judges who have majority Bush. I also have noted, in history and the Federal bench. If the standard that support. through my 10 years here, that at the he erects for Priscilla Owen had been in I ran for the Senate because I value end of every Presidential term it is the place when Ruth Bader Ginsburg was this body, appreciate its unique role in common practice in the Senate to slow nominated to the Court, she would not the history of our Nation, and very down the nomination process awaiting have been confirmed. much want to see it succeed in doing the results of an election. This hap- I have also noted with some interest, the people’s business. So I have taken pened to President Carter, it happened while it is never held up as a religious as seriously as I can the decision I have to President Reagan, it happened to test, great concern for nominees who made to be an unqualified supporter of George Hubert Walker Bush, and to are devout members of their religious what the majority leader is attempting Bill Clinton as well. But we are faced faith, fearing that their beliefs and to do here. now with a new standard. The agree- their faith would affect their judgment

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5467 on the bench. Mr. President, I believe down vote for so long? And the reason name was Wayne Morse, known as the the Constitution is explicit in making was simply because it did have an im- ‘‘tiger of the Senate.’’ He is the third clear that we do not have religious pact upon other branches of Govern- place recordholder for a filibuster, ex- tests for public office. I do not accuse ment. ceeded only by Strom Thurmond and any of my Democratic colleagues of re- No one here is proposing a limitation Al D’Amato. As I recollect, he spoke ligious bias, but I do hear a fearful un- of filibusters on the legislative cal- for 22 hours and 26 minutes on the tide- dertone, an undercurrent here that I endar. lands oil bill in 1953. I suspect, if you think will bar the door to judicial serv- Nevertheless, in former years, our check the record, few Senators used ice to people of faith if we set or keep colleagues made many modifications to the filibuster more than Wayne Morse. the standard at 60. the filibuster rule. It began in 1917. He used to come here late at night and Mr. President, I come to this place There was no limit to filibusters until speak well into the night almost on a believing that the brightest of conserv- then. The standard was then set at 67 daily basis when the Senate was in ses- ative and liberal thinkers best serve votes to invoke cloture, end debate, sion. American justice and the evolution of and go to a vote. But still, this was not But listen to what Wayne Morse said American law rather than having a a standard applied to the Executive about the filibuster: standard that says if you are unwritten Calendar. It is time we got back to the original pur- and unrevealed and unaffiliated, you Further on, many changes have been pose of the Founding Fathers and of the U.S. have a chance, but if you are a Member made to the filibuster rights of a Sen- Senate. That purpose is to give reflection, of a political organization, if you are ator. There are, in fact, 26 laws on our continuity, and dispassion to legislation. affiliated with the Heritage Institute books today abrogating the right of a These certainly do not extend to giving a or the Brookings Institute or you are a Senator to filibuster. For example, you veto power to a dissident minority. The Con- member of a religious faith, these cannot filibuster a Federal budget reso- stitution is clear about when a two-thirds vote is required to make a decision. Those standards will begin to erect barriers lution. It was known as the Congres- who want to add to those instances might to service in public office. I think that sional Budget and Impoundment Con- better be honest about their intentions and is a very dangerous thing. trol Act of 1974. The Budget Act of 1974 come forward with a constitutional amend- After my own law school experience, restricts debate on a budget resolution ment, rather than to seek to achieve their I had the privilege of serving as the law and all amendments thereto and debat- purpose by the means of Senate rules. clerk to the chief justice of the New able motions and appeals in connection What Senator Morse was referring to Mexico Supreme Court, Vern Payne. It therewith to not more than 50 hours. is that the U.S. Constitution makes ex- was my observation in those chambers That is a very significant restriction plicit those instances in which super- that the judges that made the most dif- on the right of a Senator to filibuster. majorities are required. Advising and ference for good in the administration Another restriction is that you can- consenting on judges is not among of equal protection and due process not filibuster a reconciliation bill. those. It is required for amending the were those on the right and the left Like the budget amendment, a rec- Constitution, it is required to override that had clear feelings and a compas- onciliation bill cannot be filibustered a President’s veto, it is required for the sion that guided their decisions. I do on the Senate floor, so it can pass by a ratification of treaties, and in a couple think we make a serious long-term majority vote. So you cannot filibuster more instances. But this issue is not mistake and do very real damage to anything connected with a resolution among those expressed in the Constitu- American law when we say only those or reconciliation, such as an amend- tion. in the middle can serve. But that is ment or a conference report. To clarify, Senator Morse states that what the standard of 60 will mean in I think the public would be surprised he supports the use of filibusters. He the future of American law if that is to know that at the end of a session, said: now the rule of the Senate. when the work of the Finance Com- I am one liberal who admits that he fili- If you study the filibuster, you will mittee and much of the work of the Ap- busters. find that this is a right that Senators propriations Committee comes to this Yet he draws a distinction between have that has evolved out of a mistake floor, usually in a big omnibus bill or filibusters which control debate and a in leaving out a Senate rule that origi- reconciliation package, it passes by a filibuster designed to prevent a vote nally governed this body. But unlim- majority vote because it cannot be fili- from ever occurring, which subjects the ited debate became the standard, and bustered. In fact, I suspect half of the Senate to rule by the minority. yet it also became the vehicle by which work we end up doing here, because of He went on to say: much of America’s business was left decisions made in former days, is not undone. Sometimes it was used to odi- the subject of filibuster, even though it It is one thing to filibuster to stop what is ous ends, such as the denial of an Afri- called a ‘‘steamroller’’ in the Senate, to stop is part of the legislative calendar. a majority from taking advantage of a par- can-American’s civil rights. Long be- Another instance: You cannot fili- liamentary minority. It is quite another fore I ever arrived here, colleagues of buster a resolution authorizing the use thing to filibuster in the Senate under a pro- former days began to change, refine, of force—the War Powers Resolution. gram which is aimed to defeat the right of and limit the use of the filibuster. I You cannot filibuster international the majority to express itself by way of the have heard my colleagues on the other trade agreements, and that is called passage of legislation, which in turn will be side describe this right in terms which the Bipartisan Trade Promotion Au- subject to the checks which our constitu- make it secular scripture or that this thority. You cannot filibuster legisla- tional system provides. is in the Constitution. It is not in the tion under the Nuclear Waste Policy There are lots of checks and bal- Constitution. But it is an important Act of 1982. ances, but right now the 109th Senate right, I grant. Time and again, our colleagues be- has a decision to make—whether or not What the public is not hearing is that fore have recognized that to move the we should reinstate a two-century tra- there are several calendars of business business of the United States, there dition of voting up or down on the Ex- that we take up. There is the Legisla- had to be some kind of limits. When I ecutive Calendar for judges. Why? Be- tive Calendar. We are the legislative speak of the filibuster, I speak of it re- cause it is important to the two other branch. Then there is the Executive spectfully; I also understand its impor- branches of Government. The 108th Calendar in which we take up advice tance to slow down debate and to give Congress broke this tradition and 60 is and consent on executive appointments Senators all the opportunity they need now the rule, unless we come to some both to the executive branch and to the for debate. But I also understand that other agreement. judicial branch. When you get to the the country’s business has to move for- Well, again, Mr. President, I do fear Executive Calendar, you really do get ward. So colleagues, in former decades, the impact of this new standard if we to the checks and balances. And the have narrowed the right of the fili- don’t do something. I believe this new question is why was it for more than buster. standard, if applied to past distin- 200 years the gentleman’s agreement One of the Senators in this Chamber guished jurists, would make their con- was that you do not filibuster these who preceded me here from Oregon is a firmation impossible. I believe Oliver nominees, you give them an up-or- man much esteemed in Oregon lore. His Wendell Holmes was revolutionary in

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5468 CONGRESSIONAL RECORD — SENATE May 19, 2005 his thinking about law. Felix Frank- I know that some of our colleagues able requests to consider circuit court furter, a Roosevelt appointee, was cer- wish that restoration of this principle nominations. tainly revolutionary in his thinking. were not required. But it is a measured So it is clear the Democrats do not Thurgood Marshall or William step that my friends on the other side want more time to debate. The minor- Rehnquist or Justice Scalia—these of the aisle have unfortunately made ity leader indicated there was not men, I believe, today, under this new necessary. For the first time in 214 enough time in the universe for that. 60-vote standard, would likely be years, they have changed the Senate’s Rather, a minority of Senators are re- unconfirmable. ‘‘advise and consent’’ responsibilities jecting the opportunity to debate be- I believe this dumbs down American to ‘‘advise and obstruct.’’ cause they want to kill qualified judi- law, and the Senate does a disservice to Our Democratic friends did not bring cial nominations with clear majority the meaning of elections and to the im- us here by accident. For 4 years, they support. portant authorities given to the execu- have steered the Senate toward this These nomination have gone for 2, 3, tive and the judicial branches when we unfortunate path. In April of 2001, Sen- even 4 years—the current justice pend- raise filibusters to this new level, ate Democrats held a private weekend ing on the calendar has been up for 4 which I believe says to every bright retreat in Farmington, PA, to hatch a years—without a vote, while vacancies young law student: If you have a point plan of attack against the President’s on the Federal bench pile up. of view that is clear, if you have a judicial nominees. According to the Let’s take, for example, Justice Pris- membership in the ACLU or in the Fed- New York Times, one participant at cilla Owen, who is the pending business eralist Society, if you are a member of the meeting said, quote, ‘‘it was impor- of the Senate. She was nominated, as I a religious faith or part of a labor tant for the Senate to change the just indicated, by the President 4 years union, this will be held against you; it ground rules, and there was no obliga- ago to sit on the Fifth Circuit. Justice will have a chilling effect on people’s tion to confirm someone just because Owen has served with honor for 10 ability to make a difference in law. It they are scholarly or erudite.’’ And, years on the Texas Supreme Court. She will certainly be a sword that we will thus, we embarked on this uncharted won reelection with a whopping 84 per- wield when we are in the minority. It course. cent of the vote, far more than most of is, therefore, with regret but convic- Until the last Congress—the 108th our colleagues who oppose her. She has tion that I assert my support for a rule Congress—it had been standard proce- the support of both Democrats and Re- that will restore the tradition of the dure not to filibuster judicial nomi- publicans from Texas who know her Senate on the Executive Calendar. nees. That changed on February 11, best. She has endured 4 years of slan- The Senate rules are not Scripture. 2003. On that day, Senator HATCH, derous attacks from partisan groups They have been changed repeatedly chairman of the Judiciary Committee, with grace and poise. throughout the history of this institu- sought consent to consider Miguel All of that meant nothing once she tion. We may now have to do that Estrada’s nomination to the DC Circuit landed in the crosshairs of the Senate’s again. I had hoped that a compromise Court. My friend, Senator DODD, re- obstructionist minority. We devoted 17 could be found. One may yet be found. fused. Senator HATCH offered to in- legislative days to discuss her quali- But I have also come to believe that crease the amount of time for debate fications—17 days—and we have held when you take a deal that says give up by 10 hours and was refused again. He four cloture votes on Justice Owen’s on the principle, the tradition, and offered 20 hours. He offered 40 hours. He nomination in order to allow the entire throw half of these nominees over- offered even 50 hours of debate, an un- Senate to pronounce its collective board, what is admitted in that offer is judgment on her qualifications. But a that all of these people from whom we precedented amount of time. Senator DODD said as follows: minority of Senators is determined to can select are qualified for the Federal deny the Senate the exercise of its con- This is not about the amount of time. bench, and what is also admitted by stitutional duty. All four cloture votes that offer is that this is just about pol- We have heard the repeated argu- have failed. itics. ment on the other side that this is On May 1, 2003, cloture failed on the This is a principle too important to about the right to speak. Senator DODD Owen nomination by a vote of 52 to 44. get in the way of the efficient manage- said that this is not about the amount One week later, it failed 52 to 45. On ment of our business, our responsi- of time. July 29 of that year, it failed 53 to 43, bility of advising and consenting, and Remember that, Mr. President. The and on November 14 of that year, it having back in place the 200-year tradi- next time you hear any one of our failed 53 to 42. For every one of those tion of giving up-or-down votes to Democratic colleagues complain that votes, Justice Owen had a clear major- those who have majority support. when we restore the norms and tradi- ity and, in fact, bipartisan support. But With that, I urge my colleagues to tions of the Senate, we will be limiting some continued to do the unthinkable. support the majority leader, and I urge their right to speak or cutting off de- They continued to set the precedent the restoration of a majority vote on bate, they themselves say it is not that only 41 Senators should have the judges. about that. Such claims actually don’t I yield the floor. right to dictate to the President who withstand scrutiny. I could not agree he or she can and cannot appoint to our The PRESIDING OFFICER (Mr. GRA- more with my friend from Connecticut HAM). The assistant majority leader is Federal courts. when he said this current impasse is Justice Owen is not the only person recognized. not about the amount of time available Mr. MCCONNELL. Mr. President, I they have obstructed. In the 108th Con- to debate. want to say this to my good friend gress, an obstructionist minority The Democratic leader, my friend, from Oregon before he leaves the floor. blocked the Senate from giving its ad- Senator REID from Nevada, also agrees I listened intently to his extremely vice and consent a record 20 times. with me. When Senator BENNETT re- well-crafted and reasoned arguments, Twenty votes on judicial nominees and I congratulate him for his impor- quested an agreement to consider the were held, and 20 times a minority of tant contribution to this momentous, nomination of Justice Priscilla Owen Senators refused to let the Senate dis- significant debate we are having in the to the Fifth Circuit, Senator BENNETT charge its constitutional duty to Senate, trying to get ourselves back to also bent over backward to give the mi- render advice and consent. Twenty the way we comfortably operated for nority whatever number of hours for times, Mr. President, in the 108th Con- 214 years. I thank my colleague for his debate it needed. gress they stopped a judicial nominee contribution. Senator REID responded: who clearly had majority bipartisan Because of the unprecedented ob- There is not a number in the universe that support from receiving the courtesy of struction of our Democratic colleagues, would be sufficient. an up-or-down vote. They filibustered the Republican conference intends to ‘‘There is not a number in the uni- 10 different circuit court nominees restore the principle that, regardless of verse that would be sufficient.’’ Clear- within 16 months. This is completely party, any President’s judicial nomi- ly, it must not have been about getting without precedent, and it is also not nees, after full debate, deserve a simple enough time. Our Democratic friends fair. Any President’s judicial nominees up-or-down vote. went on to block several more reason- should receive careful consideration,

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5469 but after that debate, they deserve a for debate while reestablishing the Given those results, many of us had simple up-or-down vote. Senate’s 214-year history of allowing hoped that the politics of obstruction Despite the Democrats’ power grab, nominees with majority support to re- would have been dumped in the dustbin we offered them several compromises ceive the courtesy of an up-or-down of history. Regretfully, that did not that allowed for extended debate but vote. It was a good proposal. Unfortu- happen. still give nominees the courtesy of an nately, our Democratic colleagues re- Recently, we Republicans tried again up-or-down vote. They rejected every jected it. to reach an accommodation with our one. For instance, in May 2003, the ma- In April 2004, a little over a year ago, Democratic colleagues. Last month, jority leader, along with Senator Zell the majority again reached out to our the majority leader offered a com- Miller of Georgia, a Democrat, pro- Democratic colleagues. We suggested prehensive, thoughtful, and fair-mind- posed S. Res. 138, the Frist-Miller clo- another approach to break this impasse ed solution. It is called the fairness ture reform proposal. on judicial nominations. This time the rule. My Democratic colleagues had re- The Frist-Miller proposal was nar- chairman of the Judiciary Committee, peatedly complained that some of rowly tailored after a much broader Senator SPECTER, took the lead by of- President Clinton’s nominees were Democratic proposal from 10 years ago fering S. Res. 327, the Specter protocol. never reported out of the Judiciary that would have completely eliminated Under the Specter protocol, judicial Committee, and that is a valid point. the filibuster in its entirety. The nominees would receive a committee They had a point. So to address the Democratic proposal would have elimi- hearing, a committee vote, and a floor concern, the Frist fairness rule guaran- nated the filibuster from legislation, to vote within a reasonable amount of tees that every nominee would be re- which it has been historically confined, time regardless of which party con- ported out of Judiciary—presumably as well as for judicial nominations, trolled the Senate and the White some of them maybe not with majority where it had not been used until the House. support—preventing any nominee from last Congress. The chairman of the Judiciary Com- getting blocked in committee, which is Interestingly, all Republicans, every mittee would agree to hold hearings for the principal complaint the Democrats single one, voted against the Demo- the nominees within 30 days of the sub- have about how they had been treated cratic proposal because it would have mission of their names by the Presi- when our party controlled the Senate eliminated the legislative filibuster. In dent. The chairman would set a date and their party the White House. fact, it was the first vote that Majority for the full committee to vote within 30 The Frist fairness rule guarantees Leader FRIST cast in the Senate. The days of those hearings. And the major- every nominee would be reported out of only Senators who voted for that pro- ity leader would set an up-or-down vote Judiciary, preventing any nominee posal were our friends on the other side on the Senate floor within 30 days after from getting blocked in committee. of the aisle, nine of whom are still the nominee was reported out of com- The principal complaint we have heard serving in this body today, singing a mittee. It was pretty simple. repeated so often out here is that the different tune, I might add. As I indicated, these timetables Republicans were simply doing in com- I have heard several of my friends on would apply whether Democrats or Re- mittee under Clinton what the Demo- the other side of the aisle warn omi- publicans were in charge of the Senate, crats are doing on the floor under nously that if the Senate votes to rees- whether the same party controlled the tablish the norms and traditions of this White House and the Senate, or wheth- Bush. We will deal with that. In addition, my Democratic col- body with respect to judicial nomina- er the two parties split the control. tions, this could somehow lead to the I bet to the vast majority of people leagues complain they need to have the infringement or even abolishment of a listening, that sounds like an ex- right to debate judicial nominees pro- filibuster as applied to legislation. tremely fair, bipartisan solution. I tected. What nonsense. That will not happen agree with them. Again, unfortunately, This complaint is incongruous with because certainly nobody on this side our Democratic friends have not em- Senator REID’s comment that there is in favor of this, and I gather now no- braced it. was not enough debate time ‘‘in the body on the other side is in favor of it, At this point, most people would universe’’ to allow a vote on Justice even though nine of them were for it 10 throw up their hands and give up. We Priscilla Owen. It must not have been years ago. do not have the luxury of doing that, about time because he said there was When the Democrats proposed to do however, because the American people not enough time in the universe. away with the legislative filibuster 10 elected all of us to act on these issues Nevertheless, the Frist fairness rule years ago, nobody on this side of the that confront the country. Restoring guarantees up to 100 hours of debate on aisle supported it, and I am confident Senate tradition and thereby restoring every nominee, allowing every member nobody on this side of the aisle would the proper balance of power between to have his or her say. This is more support it today. What is remarkable the executive and legislative branches time than has been devoted to most about that is back in 1995 when our is one of our responsibilities, and we Supreme Court nominees. friends on the other side were pro- need to do it. Finally, the Frist fairness rule guar- posing eliminating the filibuster, it We Republicans redoubled our efforts antees up-or-down votes for every cir- was right after our party came to the and patiently tried again. In the in- cuit court or Supreme Court nomina- majority. We would have been a big terim, though, we had an election. tion, regardless of which party controls winner of that had it passed, but yet President Bush and several candidates the Senate or the White House. So the not a single one of us voted for it. What for the Senate, many of whom serve fairness rule could not have a more ap- did we do? We exercised restraint. here today, met thousands of main- propriate name. It guarantees a full So back to the Frist-Miller proposal stream ordinary Americans who were and comprehensive debate. It guaran- which, as I said, was a narrowly fo- angry at the obstructive attempts to tees every Senator a constitutional cused version of the Democratic—I disfigure the filibuster. Thousands of right to cast a fair up-or-down vote for stress ‘‘Democratic’’—bill to eliminate Americans told President Bush and every judicial nominee. It guarantees the filibuster altogether. The Frist- their Republican candidates for the every President that their judicial Miller proposal was much more mod- Senate that they do not believe the nominees will get through committee erate, much more measured. It would President’s nominees are out of the and get a vote on the Senate floor and, have applied only to nominations, not mainstream, and they do not like a mi- of course, it would not apply to legisla- to legislation. It would have allowed nority of the Senate preventing the tion at all. Senators after 12 hours of debate to file Senate from discharging its constitu- Once again, our Democratic col- successive cloture motions with declin- tional duty. leagues quickly rejected this proposal. ing requirements to achieve cloture. Millions of them turned out to re- To recap, the majority in the Senate The final cloture threshold would be a elect President Bush, giving him more has had weeks of debate. We have tried majority of Senators present and vot- votes than any Presidential candidate multiple and generous time agree- ing. in American history. And millions ments. We have offered the Frist-Miller The Frist-Miller proposal would have voted to increase the majority’s num- proposal. We have suggested the Spec- allowed the minority sufficient time ber in this body from 51 to 55. ter protocols. We have offered the Frist

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5470 CONGRESSIONAL RECORD — SENATE May 19, 2005 fairness rule. Unfortunately, our likelihood, if this continues, that 41 But, no, the Democrats would not ac- Democratic colleagues have rejected Members of the Senate will dictate to cept that. all of these efforts at accommodation. the President of the United States who So then this year I came back and I We have reached the point in this de- may be a member of the Supreme started to see if maybe I could work bate where not a lot of new things are Court and other courts. across the aisle with Senators such as being said, but not everybody has yet We have made every effort to reach Senator NELSON, Senator PRYOR, and said it. But I want to make a point out and compromise, but our col- others to see if we could address some that I believe has not been made by leagues at least so far have refused. of the legitimate concerns. anyone today. For 70 percent of the The only choice that remains is to hold This problem did not start 2 years 20th century, the same party con- a vote to reaffirm the traditions and ago or 4 years ago. This has been com- trolled both the White House and the precedents that have served this body ing for a long time. I think it began Senate. For 70 percent of the 20th cen- so well for the last 214 years. Let us with the nomination of Judge Bork. I tury, the same people running the vote. think Republicans have retaliated for White House were running the Senate. I yield the floor. what they felt was a wrong and then Most of the time, the people in the mi- The PRESIDING OFFICER. The Sen- the Democrats retaliated, but always nority in the Senate were people of my ator from Mississippi. slipping further down this slope of un- party. Yet Republicans did not fili- Mr. LOTT. Mr. President, I thank fairness to these good men and women. buster, for example, the judicial nomi- Senator MCCONNELL for his comments So Senator NELSON and I worked to- nees of Franklin Delano Roosevelt, and for his leadership in this area. In gether, and we did come up with a pro- even though he appointed eight Jus- many respects, I would like to pick up posal that would guarantee all nomi- tices to the Supreme Court and ele- where he left off in the discussion of nees now and in the future would get vated another to Chief Justice. how did we reach this point. How did reported out of the Judiciary Com- More recently, the Republican minor- the Senate come to where we are going mittee after a specified period of time. ity did not filibuster the judicial nomi- to have to have hours, days, weeks of In other words, stop the practice, if in nees of Presidents Carter and Clinton debate on highly qualified men, fact there was one during the Clinton because we were in the minority for 2 women, and minorities for the Federal years, of killing nominations in the Ju- years under President Clinton and all 4 judiciary? diciary Committee unless there is years under President Carter, even Most of my colleagues in the Senate clearly justification for it, objection though several of these nominees were know over the years I have been a be- from the in-State Senators, or other extremely controversial and did not liever that we should get things done reasons, but do not get into the tech- enjoy supermajority support. for the American people; that we nicalities. Just say we were going to To be fair, when Senator BYRD was should have cooperation; that we guarantee they would get out of com- the minority leader, he did not lead his should vote on these judges up or down mittee, there would be time for full de- Democratic caucus in the Senate to fil- and move on; that we need to be work- bate up to a week before we could get ibuster President Reagan’s judicial ing as we did earlier this week to re- an up-or-down vote. nominees either, and Senator BYRD port a highway bill, to get energy legis- Senator FRIST actually expanded should be commended for that. That lation, to deal with the very critical that and said how about a full 100 hours was an extraordinary act of statesman- and difficult issue of immigration re- of debate; every Senator would have an ship. He could have done at the time he form, pass appropriations bills, take up opportunity to talk an hour about any was in the minority when President other critical issues for the future in nominee. By the way, I can tell my col- Reagan was in the White House what our country, the creation of jobs, to leagues, for the majority leader to has been done in the previous Congress. promote the continued development in make a sacrifice of 100 hours of this When Senator BYRD was minority critical high-tech areas such as tele- body’s time is a huge sacrifice. It could leader, he did not lead his Democratic communications. We have a lot of work not be done very much, maybe two or Caucus in the Senate to filibuster to do and yet here we are, stalled out, three times a year at the most. So the President Reagan’s judicial nominees. in my opinion, unnecessarily. seven nominees now being held hostage Not until 2 years ago has a Senate mi- I believe we should reach across the whom we are going to talk about in the nority ever decided to filibuster a aisle and try to find accommodation. next few days, some of them clearly President’s judicial nominations on a Whether one likes it, that is how the would not make it under that proce- repeated partisan and systematic basis Senate was set up, that is how we dure, but it would have gotten to a when they clearly enjoyed majority work, quite often by consensus. Over final vote. support. the years, when I served in leadership Again, that was rejected by the To correct this abuse, the majority positions, I was quite often criticized Democrats because they said, oh, no, in the Senate is prepared to restore the by my own colleagues of being too will- we cannot agree to anything that Senate’s traditions and precedents to ing to work with the other side to try would appear to or in fact give up our ensure that regardless of party, any to find a way to get a result. Then Sen- right to filibuster these judges. That President’s judicial nominees, after ator and Minority Leader Tom Daschle did not work. full and fair debate, receive a simple and I worked together a lot. At the Then, of course, there was the last ef- up-or-down vote on the Senate floor. It same time I was being criticized by fort, one that is now still underway, is time to move away from advise and some of my colleagues, he was being one I am not involved in any longer be- obstruct and get back to advise and criticized by his colleagues. It is called cause I kept feeling we were not going consent. leadership. It is called dealing with the to get an agreement that did not force The stakes are high. The Constitu- rules one has and finding a way to us to throw over and not even vote or tion of the United States is at stake. work together and move forward. agree to vote down one of these two Article 2, section 2 clearly provides the I have been working for 4 years to women, outstanding nominees, for the President and the President alone figure out what is going on and find a Federal appellate courts. I will talk nominates judges. solution that is acceptable to both more about them individually in a mo- The Senate is merely empowered to sides of the aisle. ment. give advice and consent, but our Demo- I worked with Senator FRIST and So again back to the question of how cratic colleagues want to change the Senator Zell Miller to get a bill out of we got here, the debate we find our- rules. They want to reinterpret the the Rules Committee some 2 years ago selves currently engaged in is a cul- Constitution to require a super- that would set up a process that would mination of 4 years of obstructionism majority for confirmation. get us to a final vote on these nomi- by a minority of Senators who refuse In effect, they would take away the nees. The first vote would be the re- to allow the majority of the Senate to power to nominate from the President quired 60 and then the second vote 57 fulfill their constitutional responsibil- and grant it to 41 Members of the Sen- and so on down until eventually after ities. ate. In other words, there would be the about a month we would get a direct I know we have a lot of people who distinct possibility and in fact great vote that I think would have been fair. come to the Senate floor and talk

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5471 about the Constitution, pontificate me, part of the politics we get around both of these nominees in an effort to about the forefathers, and that the lan- here, and that it would change with move the process forward toward a guage is this. I have read the Constitu- time; it was just a gratuitous backhand vote, against the wishes of a number of tion, I have read the Federalist Papers, at me. I can say for sure Senator Members of my own caucus. I stood I have looked at the history, and clear- Daschle, my friend, was not com- right there and said we are not going ly these judges should be getting an up- fortable with what happened there. The to filibuster Federal judicial nominees; or-down vote. majority came back to the Republican we are not going to do it. If they come The Constitution clearly says when side and Judge Pickering came to the out of the committee, they are going to they expect a supermajority, and if floor and he was filibustered. Then it get an up-or-down vote. Now, I may they do not, then the presumption is a was Miguel Estrada. Then it was Pris- vote against them but not on my watch majority would win. cilla Owen. Then a pattern developed. are Republicans going to filibuster I believe in protecting minority That is one reason some people say, these nominees. rights. I have been in the minority look, if there is this option that it only On March 8, 2000, the Senate voted 86 more in my legislative career of 33 takes 51 votes, why was it not done last to 13 to 1 to invoke cloture to cut off years than I have been in the majority. year or 2 years ago or 4 years ago? the filibuster on the nomination of But there is another little thing: It is Frankly, because I thought it was an Judge Berzon. Her nomination was con- called elections and a majority. At aberration. I thought it was tem- firmed the following day by a vote of 64 some point, we quit talking and we porary. to 34 to 2. give these people a fair up-or-down I could not believe this institution Also on March 8, 2000, the Senate vote. would besmirch, denigrate, and harass voted 85 to 14 to 1 to invoke cloture on Some people will come to the floor these nominees, turning the Senate not the nomination of Richard Paez. The and say, this is the tradition, we must into an august, hallowed body of great next day, March 9, 2000, a motion to not mess with it; this is something deliberation but into a torture cham- postpone indefinitely a vote on Paez that has been in existence from the ber, and yet here we are. I have tried to was defeated 67 to 31 to 2. By the way, very beginning of the history of our find a way to get out of this. I have in the interest of full disclosure, I country. That is not so. As a matter of tried to accept some of the blame I de- voted to delay it. I do not remember fact, filibusters did not get started serve, but that has already been done. why, and I am embarrassed. I should until World War I. We have to find a solution now and not have. An indefinite postponement Oh, people will be surprised at that. we have to do it soon. Can a com- is the same as a filibuster. That was You mean we have not had it since the promise be worked out? Why, of course. wrong. We should not have done it. He great days of Clay, Webster, and Cal- They always can, by sundown. That was later approved that very day 59 to houn? No. As a matter of fact, after a would probably satisfy nobody totally, 39 to 2. minority of Senators blocked efforts to but everybody a little bit. If it does not These two now serve in the Federal have an up-or-down vote on a proposal happen, we have to get this over with. judiciary. They had lots of problems, in to arm merchant ships during World We have to vote. my mind, which I will not enumerate. War I, the Senate adopted its first clo- So what I thought was going to be an There is no use rehashing that. But ture rule. The cloture rule was later isolated incident now has become ex- this is proof of the evidence when Re- changed on five separate occasions, treme. It has become systematic. It has publicans say we did not do it when we most recently in 1986. become highly partisan. We have to could have during the Clinton years, So these great and hallowed tradi- deal with it. We probably should have we did not allow filibusters. The num- tions in this institution, if one checks already dealt with it. ber of President Clinton’s judges who back on them, do not go back very far. As majority leader, I worked closely were blocked by filibusters, zero. Not This is a living body. Like the Con- with Senator Daschle to ensure each under my watch or others’. stitution, it is a living, breathing body. nominee who reached the Senate floor I think it is time we bring this to It changes. It evolves. We make received an up-or-down vote. Some peo- conclusion. I think if we could ever get changes in the rules. That is why when ple said, all the judges did not get out a time out, if we could ever find a way people say, woe is me, doom and gloom, of committee. The leaders do not dic- to stop the filibusters, deal with the the Senate cannot get through this, tate to the committees. We do not dic- magnificent seven that are still pend- whatever we do, it will be cata- tate to one Senator, let alone a com- ing, this would fade away. That is the clysmic—forget it. We have a job to do mittee of Senators. But when it came way it happens in the Senate. here. Let us face it like men and to the floor, through thick or thin and Oh, the clash is mighty and the roar women and let us deal with the issue. however difficult it was, we got it done, is deafening. ‘‘There is no way out of Let us move on. Let us deal with the we got them confirmed. this valley of death.’’ That is when it substance. Let us deal with the things I will give an example. I filed cloture always seems to happen, that we find a that matter to people, such as the price personally on President Clinton’s way to stop the craziness and move for- of gasoline and the immigration prob- nominee to the Federal district court ward in a responsible way. lem, and handle it in a fair way. But in Utah, Brian Theodore Stewart. A I have to talk a little bit about the this is not something that has been cloture vote was in fact held to cut off nominees. I have met with some of written into the Constitution. No, it is an unnecessary and unfair filibuster on them. I direct your attention to this new. September 21, 1999. I voted for cloture picture. Why does he have a picture? I It began, I am sorry to say, with a to cut off the filibuster for this nomi- want to make a point. These are not personal friend of mine, a great man, a nee because I believed, as I believe numbers. These are not seven things. great judge named Charles Pickering now, that it was important to hold an These seven nominees who have been who had been approved unanimously by up-or-down vote on a nomination after renominated by the President are men the Senate in the past to be a Federal it reached the Senate floor. and women and minorities who have district judge, but when he was nomi- Additionally, I would like to mention had their reputations and their lives nated for the Fifth Circuit Court of Ap- two other controversial nominees to dragged through the mud—this one, peals, we could not get it out of the the Ninth Circuit Court of Appeals Priscilla Owen, for up to 4 years. committee. At that time, the majority, nominated by President Clinton. Mar- Maybe you could analyze the seven the Democrats, killed his nomination sha Berzon and Richard Paez both had and say, that one has a little problem in committee. I was floored. I could not very serious problems that were raised or that one has a little problem. I don’t believe it; one of the finest men, one of during their nominations and that con- say they are perfect. None of us are. the finest Christians, one of the finest cerned Senators. Their nominations But I am telling you, you can’t get judges, one of the best unifiers we have were certainly highly contentious, and much closer to perfect than this nomi- ever had in the history of our country the process was very slow. However, nee, Priscilla Owen. That is why I probably since LQC Lamar in the 1880s. they did eventually come out of the Ju- could never agree to any deal that did He got defeated in committee. I diciary Committee and at the appro- anything but allow this lady to have an thought at the time it was a shot at priate time I rose to file for cloture on up-or-down vote on her nomination.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5472 CONGRESSIONAL RECORD — SENATE May 19, 2005 She is from Texas. Maybe that is part Somebody said she has a pro-business are some things more important than of the problem, I don’t know. She voting record. Is that something sin- the rules of an institution. I still think serves on the Texas Supreme Court. It ister? She has ruled, for instance, that right and wrong should apply, just as it seems like a good training ground be- patients who are injured should be able should in every other phase of our fore you move to the Federal judiciary. to pursue doctors. She has ruled on oc- lives. She graduated cum laude from Baylor casion for consumers. But, my good- What has happened to this lady, and University and cum laude from Baylor ness, is it an indictment if you are pro- this one, is wrong. I cannot be a part of University Law School. She was a business? I am the son of a shipyard a process that doesn’t give them the member of the Baylor Law Review. She pipefitter, union member, but I am pro- vote that they deserve, up or down— was honored as the Baylor Young Law- business because I figured out, like my now. If they are not confirmed, so be it. yer of the Year, Baylor University Out- daddy knew, if business didn’t make a I have voted on the winning side and on standing Young Alumna. After grad- profit, if they went out of business, he the losing side. I have voted for judges uating from law school, she scored the was out of a job. and against judges. Most often they highest score in the State when she So, there, she deserves a vote up or have been confirmed; occasionally not, took the Texas bar exam in 1977. down. She will make a great Federal and I have been berated by Democrats She practiced law with one of the judge. sometimes when I voted against some most prestigious law firms in the State This one is even more hard to explain of the nominees. But the process used of Texas, mostly commercial litiga- to me. Janice Rogers Brown. I am not to work. It is broken now. Let’s fix it. tion, for 17 years. She has been on the going to give her American dream Let’s fix it now. Let’s do our job. Let’s Supreme Court of Texas for 101⁄2 years, story, but she has lived it: Born in Ala- vote. and the last time she ran she was en- bama, family moved to Sacramento Mr. President, I yield the floor. dorsed by every major newspaper in the when she was still in elementary The PRESIDING OFFICER (Mr. State and she received 84 percent of the school. She grew up in California, got COBURN). The Senator from Missouri. vote. an education, and worked hard. She Mr. BOND. Mr. President, I think the She has ruled hundreds of times, not graduated from California State Uni- facts are clear. You have heard this always on the business side, sometimes versity at Sacramento, with a bachelor many times. Almost everything has on the consumer side. She has had to in economics and received a law degree been said, but not everybody has said interpret law that has been difficult, from UCLA Law School. She has served it. I want to go over some of the facts but she has done it. She has done it as Legal Affairs Secretary to Pete Wil- I think are very important. fairly. She has done it most often with son, the Governor of the State of Cali- For 214 years judicial nominations the majority of the court. fornia, Deputy Attorney General in the have come to the Senate floor and have By the way, even that hallowed office of the California Attorney Gen- been considered without filibuster. It is American Bar Association—that I used eral, and she served on an intermediate a courtesy extended by my fellow Sen- to be a member of, but I dropped my California appellate court. She has ators to the President. By resorting to membership for a number of reasons— been on the bench long enough where filibustering judicial nominees who gave her its highest rating. have the support of a majority of Sen- When you look at this lady’s record, she has been appointed and sought re- ators, which began in 2003 by col- her brilliance, her family—every way election and she got 76 percent of the leagues on the other side of the aisle, she has conducted herself, there is no vote in California on reelection. justification for her not being con- That is not exactly a center or a cen- they are throwing overboard 214 years firmed or at least getting a vote. ter right constituency. They must have of Senate courtesy and tradition. I am not going to go through the thought she was doing a good job; the The Constitution of the United charges that are levied against her, first African-American woman in his- States does not contain a word about partially because some of them are so tory on the Supreme Court of Cali- filibusters. The Federalist Papers do bizarre and so ridiculous, but also be- fornia. A great record. not contain the word ‘‘filibuster.’’ cause I have seen around here that if The American dream has been lived Rather, the Constitution lays out the you repeat a misstatement often for this lady. Two days ago, when she standards for confirming judges. It enough, it becomes fact. Here is an ex- came by my office, I apologized to her does not require a 60-vote majority for ample. Justice Owen has been accused on behalf of the American people for confirmation. It requires a majority by some of the people here because of the way the Senate has treated her. I vote to confirm members of the Fed- the fact that Justice Alberto am ashamed of what we did. What is eral judiciary. Gonzales—now the Attorney General, the criticism? The Democrats in this Chamber have then a supreme court justice in Texas— One of them, she is harsh on criminal taken it upon themselves to rewrite accused her of being engaged in an ‘‘un- defendants. Excuse me? The truth is, the rules for confirming justices. They conscionable act of judicial activism’’ she is a conservative African-American now demand 60 votes for confirmation in one particular parental notice case woman. This is bad. ‘‘How can we allow to a circuit court or potentially a Su- where abortion was involved and she that to happen? That can’t be.’’ She preme Court position. was interpreting a State law. That hap- has had some things to say in her re- For the first time, judicial nomina- pened even though Justice Gonzales marks off the bench, that some of the tions with clear majority support are said that was not the case, that his Federal programs have had a counter- denied an up-or-down 51-vote, Senate words were twisted and misconstrued. effect, not a positive effect. But she has majority vote on the Senate floor When he said that, for him, in his con- been described by others as being bril- through the unprecedented use of the curring opinion, it would be an ‘‘uncon- liant and fair. Even a columnist who filibuster. scionable act of judicial activism’’ for was being critical of her recently ad- There is no constitutional authority any judge to bend the statute to ad- mitted that her opinions are consist- for their demands, and it is an aban- vance his or her own personal views, ently the most concise, engaging, well donment of the tradition of this Cham- even though ‘‘the ramifications of such organized, and well reasoned. ber. We are perfectly within our rights law and the results of the court’s deci- She wrote the majority of the deci- and history is on our side as we prepare sion may be personally troubling,’’ he sions in 2002 for the California Supreme to take steps to ensure the confirma- was talking about himself. Court. She is writing with the major- tion of judges with majority support. This is not a gratuitous shot at his ity. Again, this face is a human being. In an attempt to cloud these rather colleague sitting on the bench, and he This is not a number. This lady has clear facts, the Democrats have put has tried to clarify it. It makes no dif- been tangled up in partisan politics for forward a parade of dubious arguments ference. It continues to be repeated as 2 years. This is wrong. to support their filibusters, obfuscation fact among those who oppose this nom- That is why when people say to me, to justify political obstructionism. ination. Oh, the institution will be damaged, One of the facts they overlook is Look at this face. This lady has been my colleagues, I think we maybe pro- their obligation to check the Presi- through 4 years of hell. Why? I just test too much, and we puff ourselves up dent—and our very system of checks don’t get it. a little bit too much. By the way, there and balances gives them authority and

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5473 demands action. But the Senate has vilification, without giving them the individuals who should occupy these the ability to check the President, not right to an up-or-down vote which this positions, and the need to give them an a minority of the Senate willing to per- body has already demonstrated they up-or-down vote. vert the rules of this body. The major- would give them. On two occasions, my colleagues on ity, therefore the Senate as a body, and Look at what they have said. Back in the other side of the aisle had the representing a separate branch of Gov- 1975 in the CONGRESSIONAL RECORD of chance to win the argument on judicial ernment, has spoken on these nomina- February 20: nominations and had a chance to win tions. These nominees enjoy the sup- The filibuster has been the shame of the this argument at the ballot box. They port of the majority body’s Members. Senate and the last resort of special interest did not. They had a chance to convince The President has made his nomina- groups. Too often, it has enabled a small mi- a majority of the Members of the Sen- tions and made his case for the nomi- nority of the Senate to prevent a strong ma- ate that the nominees are unsuitable nations. Supporters and opponents of jority from working its will and serving the to sit on the Federal bench. They were the nominees have made their case be- public interest. unable to do so. So they have resorted fore the Senate on these nominations. So spoke the senior Senator from to turning a Senate rule on its head From the votes we have taken we have Massachusetts. and insisting on an application never seen that a majority of the Senate Then, in 1998, June 18, a statement used before to win a debate they could agrees with the President and supports from the CONGRESSIONAL RECORD: not win by a simple 51-vote majority. his nominations. Under the system to I have stated over and over again on this Now our Democratic colleagues come to the floor and say the view of the ma- check the President, as laid out clearly floor that I would . . . object and fight jority of the Senate and the view of a in the Constitution, the President has against any filibuster on a judge, whether it is somebody I opposed or supported. President, who won the most votes carried the issue and won the support ever by any President, is out of the of the body that has the authority to That was the senior Senator from Vermont. mainstream. A minority is now de- register its disapproval. manding their view—which is the mi- It has not disapproved. The Constitu- He also said: nority opinion in this body, and appar- tion says nothing on the subject of a I do not want to get [to] having to invoke ently from the opinion polls and our filibuster, and it says nothing of the cloture on judicial nominations. I think it is contacts, the minority opinion in the power of a minority to defeat the a bad precedent. CONGRESSIONAL RECORD, September country—should carry the day as to President’s judicial nominations. It is what is and what is not in the main- the product of a rule of the Senate 16, 1999. Another quote: stream. Once again, this line of passed many years after the ratifica- thought would seem to turn logic on tion of the Constitution. This rule does If we want to vote against somebody, vote against them. I respect that. State your rea- its head. not derive from the authority of the To cloud further the unprecedented Constitution. Furthermore, the rule is sons. I respect that. But don’t hold up a qualified judicial nominee . . . I have stated nature of their attack on the Presi- being used in a manner never used be- over and over again on this floor that I dent’s nominations, my Democratic fore. It is a perversion of the intent of would . . . object and fight against any fili- colleagues are blowing their own horn the Constitution and, if its use in this buster on a judge, whether it is somebody I about confirming 208 of the President’s manner is not abandoned, then we opposed or supported; that I felt the Senate nominees versus only defeating 10; a must take steps to wipe it from the should do its duty.’’ stellar record of cooperation they books. Same Senator from Vermont, June claim, evidenced by confirming 95 per- Let me go back to statements made 18, 1998. cent of the President’s nominees. By about this process. Democrats are try- Here is another one from the CON- confirming the President’s district ing to change the constitutional stand- GRESSIONAL RECORD March 19, 1997: court nominees they are attempting to ard for confirmation from a simple ma- But I also respectfully suggest that every- hide a blatant attack on the Presi- jority to a 60-vote standard. That is one who is nominated ought to have a shot, dent’s nominees for higher court, ap- why we see the claim of the distin- to have a hearing and have a shot to be heard pellate courts, courts of appeal. guished senior Senator from West Vir- on the floor and have a vote on the floor . . . The circuit courts of appeals are the ginia that the nominations were re- It is totally appropriate for Republicans to second most important courts in the reject every single nominee if they want to. jected because they did not get 60 votes land behind only the Supreme Court of for cloture in the 108th Congress. Sen- That is within their right. But it is not, I will respectfully request, Madam President, the United States. When it comes to ators from Nevada, New York, Wis- appropriate not to have hearings on them, confirmation of the President’s nomi- consin, and Massachusetts have said not to bring them to the floor and not to nees, their record is not one of coopera- they were rejected. A 60-vote standard allow a vote . . . tion but one of unprecedented assault. is contrary to the Constitution. The That was the distinguished senior Nearly one in three of President Bush’s Constitution spells out clearly where a Senator from Delaware, March 19, 1997. nominees for the Federal court of ap- supermajority is required: For veto Here is another good quote: peals has been targeted for defeat. This overrides, constitutional amendments, The Chief Justice of the United States Su- is not by accident. We know two days treaty ratification, expelling a Mem- preme Court said: ‘‘The Senate is surely after the Senator from Vermont ber, convictions for impeachment. Ju- under no obligation to confirm any par- switched parties and changed the bal- dicial confirmation is not one of them. ticular nominee, but after the necessary ance of the Senate in June of 2001, a It is also a double standard based on time for inquiry it should vote him up or number of extreme left-leaning groups past treatment of a Democratic Presi- vote him down.’’ Which is exactly what I met to plot the defeat of circuit court dent’s nominees. For example, Clinton would like. nominees. Their analysis showed a Re- nominees Richard Paez and Susan The distinguished senior Senator publican President would surely nomi- Molloway and William Fletcher were from Massachusetts, CONGRESSIONAL nate judges with a philosophy con- all confirmed with fewer than 60 votes, RECORD, March 7, 2000. sistent with the President, strict con- as were Carter nominees Abner Mikva Mr. President, the minority had the struction of the Constitution, rather and L.T. Senter. opportunity to win their argument than the extreme leftwing judicial leg- It is said that justice delayed is jus- long before it reached the Senate. They islation views of their own. The left- tice denied. These filibusters of judicial had a chance to win at the ballot box. leaning groups saw their balance on nominations have slowed the consider- They argued that the American people the court decreasing, and their plan ation of cases in the Federal appeals could send Members of the Senate who was to defeat circuit court nominees. court, especially in the Sixth Circuit, agreed with their legislative agenda Their plan was not to argue for judges where Democrats have blocked four and their view of the role of the judici- in the mainstream or to defeat district qualified nominees. As my colleague ary. The American people did not agree court nominees. Their objective was to from Mississippi has pointed out, these with the minority and sent an in- defeat, by any means, circuit court good people who have devoted their life creased majority of Members to the nominees of President Bush. to law and the judiciary have been sub- Senate who agree with the President Yesterday we saw this outline in the ject to interminable delays, personal on the role of the judiciary, the type of Washington Times. These groups, in

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5474 CONGRESSIONAL RECORD — SENATE May 19, 2005 turn, met with Senate Democrats to ibuster. Judges were confirmed for 214 meeting was canceled because the target certain nominees. Surprisingly, years without there being a filibuster. Democrats objected. the nominees the groups decided to tar- So the minority has turned over the The Energy Committee is trying to get seemed to be neatly in line with determination as to who is and who is write a very important bill dealing those ultimately targeted by Senate out of the mainstream to a number of with energy. We have not had an en- Democrats. So, actually, the minority out-of-the-mainstream groups, and ergy policy in a decade and a half. Gas has been outsourcing their decision as they let these groups lead us down the prices have gone through the roof. We to who is and who is not in the main- path of destroying Senate tradition of are seeing shortages. We are paying at stream to outside liberal groups such 200 years. Not a record, in my view, the pump. We are paying in our home as People for the American Way, which that warrants a hardy pat on the back. heating bills, paying with jobs going a glance at any of their material re- In a thoughtful opinion piece in to- overseas because of the unnatural, arti- veals they are not exactly in the main- day’s Washington Times, majority ficial restrictions on the development stream. leader Bob Dole recalls there were a of sources of energy in the United Here are a couple of excerpts from few nominations made by President States—natural gas, oil, and even re- the Washington Times article yester- Clinton that were clearly objectionable newable fuel—while demand artifi- day: to most Republicans. He said: cially is being increased for natural gas In a November 7, 2001, internal memo to I recall two judicial nominations of Presi- by the requirement that rules require Sen. Richard J. Durbin, who is now the mi- dent Clinton’s particularly troubling to me it be used in electric utilities. And yet nority whip, an aide described a meeting and my fellow Republicans members when I by objecting to committee hearings, that the Illinois Democrats had missed be- was the Republican Leader in the Senate. the Democrats are limiting the Energy tween groups opposed to Mr. Bush’s nomina- Despite our objections, both received an up- Committee to 2 hours a day and a tions and Sen. Edward M. Kennedy, Massa- or-down vote on the Senate floor. In fact, I markup. chusetts Democrat and member of the Judi- voted to end debate on one of these nominees It is not the President who is dis- ciary Committee. while voting against his confirmation. Re- torting rules to forward his nomina- The memo goes on to State: publicans chose not to filibuster because it was considered inappropriate for nomina- tions. It is not the President who has Based on input from these groups, I would tions to the federal bench. abandoned tradition and courtesy in place the appellate nominees in the cat- Senator Dole goes on to say: forwarding his nomination. It is not egories below . . . listing 19 nominees as the President who is attempting to re- ‘‘good,’’ ‘‘bad’’ or ‘‘ugly.’’ By creating a new 60-vote threshold for Four of the 10 nominees who Democrats confirming judicial nominees, today’s Senate write the Constitutional standard for have since filibustered were deemed either Democrats have abandoned more than 200 confirming judges. The other side of ‘‘bad’’ or ‘‘ugly.’’ None of those deemed years of Senate tradition. the aisle thinks if they can muster 41 ‘‘good’’ by the outside groups was filibus- For the first time, judicial nominees with votes, they ought to stop anybody that tered. clear majority support are denied an up-or- their leftwing, liberal interest groups Among those listed as ‘‘ugly,’’ was Texas down vote on the Senate floor through an target for blocking from confirmation. Supreme Court Justice Priscilla Owen, unprecedented use of the filibuster. This is The President is exercising his con- whose nomination will be brought to the not a misrepresentation of history; it’s a stitutional role to appoint members of floor today by Majority Leader Bill Frist, fact. the Federal judiciary, and he is doing Tennessee Republican. I ask unanimous consent that be In a June 4, 2002, memo to Mr. Kennedy, so following his decisive victory last printed in the RECORD after my re- staffers advised him that Justice Owen fall after winning more votes than any would be ‘‘our next big fight.’’ marks. other president in history, promising ‘‘We agree that she is the right choice—she The PRESIDING OFFICER. Without to appoint good, well-qualified, highly has had a bad record on labor, personal in- objection, it is so ordered. qualified, highly respected judges and jury and choice issues, and a broad range of (See exhibit 2) attorneys to the courts of appeal. Who national and local Texas groups are ready to Mr. BOND. We have heard a lot of is and who is not in the mainstream of oppose her,’’ the aides wrote. statements and posturing from the American thought? I ask unanimous consent this be other side about the President trying I believe it is clear that the President printed in the RECORD after my state- to pack the courts and how this is a nu- and the majority in the Senate have a ment. clear option. right to give these well-qualified nomi- The PRESIDING OFFICER. Without Let me tell you what the nuclear op- nees an up-or-down 51-vote majority objection, it is so ordered. tion is. The Democrats say if we go vote on the floor of the Senate. (See exhibit 1) back to the tradition of confirming Mr. President, I thank the Chair and Mr. BOND. As I believe has been stat- judges by a 51-vote up-or-down major- yield the floor. ed many times before, Justice Owen ity in the Senate, they are going to EXHIBIT 1 has won overwhelming support, more blow up the Senate. They are going to [From the Washington Times, May 19, 2005] than three-quarters support of the ma- bring everything to a halt. They are MEMOS REVEAL STRATEGY BEHIND JUDGE jority of Texas and the endorsement of going to destroy this body because we FILIBUSTERS major leading newspapers, the Bar As- insist on what Democrats, prior to 2001, (By Charles Hurt) sociation, but the left-leaning groups agreed with us; that is, judicial nomi- did not like her. nations brought to the floor deserve to The ‘‘nuclear’’ showdown that is expected to begin unfolding in the Senate today has Our colleagues in the minority want be confirmed by a 51-vote up-or-down its origins in closed-door discussions more congratulations for the fact that near- majority. than three years ago between key Senate ly all of the President’s trial court Already, we have seen the Demo- Democrats and outside interest groups as judges have been confirmed. I respect crats’ stall tactics. ‘‘Stall ball’’ is they huddled to plot strategies for blocking greatly the men and women on the being played. For people not in this President Bush’s judicial nominees. Federal district court. In the eyes of body, you may not know that any Sen- In a Nov. 7, 2001, internal memo to Sen. the Senate Democrats, however, clear- ator has a right to object to committee Richard J. Durbin, who is now the minority whip, an aide described a meeting that the ly, all judgeships are not created equal. hearings being conducted 2 hours after Illinois Democrat had missed between groups We see the contrast between the way the Senate goes in session. Even opposed to Mr. Bush’s nominees and Sen. Ed- the Democrats are conducting business though this is regular order, this is ward M. Kennedy, Massachusetts Democrat and the way business has been con- standard procedure, we have had the and member of the Judiciary Committee. ducted by tradition. Nearly one of Democratic side object to holding hear- ‘‘Based on input from the groups, I would three of the President’s nominees to ings. place the appellate nominees in the cat- the appellate court, the circuit court Yesterday, we were scheduled to have egories below,’’ the staffer wrote, listing 19 are being filibustered. Prior to the a very important meeting in our Intel- nominees as ‘‘good,’’ ‘‘bad’’ or ‘‘ugly.’’ Four of the 10 nominees who Democrats Democrats embarking on this path, ligence Committee to go over current have since filibustered were deemed either 2,372 nominees were confirmed without threats, the intelligence of the dangers ‘‘bad’’ or ‘‘ugly.’’ None of those deemed a filibuster; 377 of President Clinton’s that our troops in the field face and the ‘‘good’’ by the outside groups was filibus- nominees were confirmed without a fil- dangers we in the homeland face. That tered.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5475 Among those listed as ‘‘ugly’’ was Texas These commentators cite the 1968 nomina- even complained further debate is a ‘‘waste Supreme Court Justice Priscilla Owen, tion of Abe Fortas to be chief justice of the of time.’’ whose nomination will be brought to the United States as an example of how Repub- (4) Fortas’ support and opposition were bi- floor today by Majority Leader Bill Frist, licans once attempted to block a judicial partisan, with Republicans and Democrats Tennessee Republican. nomination on the Senate floor. I welcome on both sides of the question. Today, the The internal Democratic memos, the opportunity to respond to this claim, be- controversy is purely partisan—with only downloaded from Democratic computer serv- cause the more Americans learn about the Democratic senators, led by their leader ers in the Judiciary Committee by Repub- history of judicial nominations, the more HARRY REID, opposing an up-or-down vote. lican staffers, offer a unique look into the they will realize how terribly off-track our I recall two judicial nominations of Presi- early stages of the filibuster campaign, when confirmation process has become. dent Clinton’s particularly troubling to me Democrats were clearly doubtful that they In 1968, President Lyndon Johnson sought and my fellow Republican members when I could succeed in blocking any of the nomi- to elevate his longtime personal lawyer, was the Republican Leader in the Senate. nees. then-Associate Supreme Court Justice Abe Despite our objections, both received an up- In the 14 memos obtained in November 2003 Fortas, to be chief justice. I would not be or-down vote on the Senate floor. In fact, I by the Wall Street Journal and The Wash- elected a senator for a few more months, but voted to end debate on one of these nominees ington Times, Democratic staffers outlined followed the news surrounding this nomina- while voting against his confirmation. Re- the concerns held by outside groups about tion closely. publicans chose not to filibuster because it Justice Owen’s ‘‘hostile’’ position toward There were problems with the Fortas nom- was considered inappropriate for nomina- abortion and her ‘‘pro-business’’ attitude. ination from the beginning. Not only did he tions to the federal bench. In a June 4, 2002, memo to Mr. Kennedy, represent the most aggressive judicial activ- By creating a new 60-vote threshold for staffers advised him that Justice Owen ism of the Warren court, but it soon became confirming judicial nominees, today’s Senate would be ‘‘our next big fight.’’ apparent Justice Fortas had demonstrated Democrats have abandoned more than 200 ‘‘We agree that she is the right choice—she lax ethical standards while serving as an as- years of Senate tradition. For the first time, judicial nominees with has a bad record on labor, personal injury sociate justice. clear majority support are denied an up-or- and choice issues, and a broad range of na- For example, it emerged Fortas had taken down vote on the Senate floor through an tional and local Texas groups are ready to more than $15,000 in outside income from unprecedented use of the filibuster. This is oppose her,’’ the aides wrote. sources with interests before the federal not a misrepresentation of history; it’s a Another nominee discussed often in the courts. This was more than 40 percent of his fact. memos is Miguel Estrada, a Washington law- salary at the time, or about $80,000 in today’s yer who became the first filibustered nomi- dollars. The PRESIDING OFFICER. The Sen- nee and who withdrew his nomination to the More fundamentally, Fortas never took off ator from Alabama. U.S. Court of Appeals for the D.C. Circuit his political hat when he became a judge. Mr. SESSIONS. Mr. President, will after waiting two years for a final vote. While serving as a Supreme Court justice, the Senator yield for a question? In the 2001 memo to Mr. Durbin, the staffer Fortas continued serving as an informal po- He quoted that wonderful and very explained the concerns that the outside litical adviser to the president and even in- important editorial by former majority groups had about Mr. Estrada. volved himself in Vietnam War policy. It ‘‘They also identified Miguel Estrada (D.C. leader, Bob Dole, saying without any later emerged Fortas had discussed pending doubt this is an unprecedented act to Circuit) as especially dangerous because he cases with the president, an obvious viola- had a minimal paper trail, he is Latino, and tion of professional ethics. filibuster. I notice that Senator HATCH, the White House seems to be grooming him In fact, less than a year after his nomina- one of our most distinguished Mem- for a Supreme Court appointment,’’ the aide tion as chief justice was withdrawn by Presi- bers, the former chairman of the Judi- wrote. dent Johnson, Justice Fortas was forced to ciary Committee, has just joined us on The memos also reveal the close relation- resign from the Supreme Court due to eth- the floor. ship between Democrats and the outside ical breaches. I will ask the Senator from Missouri groups. The claim Fortas was not confirmed due to if he remembers, several years ago, In a June 21, 2002, memo to Democrats Mr. a ‘‘filibuster’’ is off-base. A filibuster, com- Kennedy, Mr. Durbin, Sen. Charles E. Schu- after Senator Dole had left the Senate, monly understood, occurs when a minority that a discussion was had in the Repub- mer of New York and Sen. Maria Cantwell of of senators prevents a majority from voting Washington, a staffer urged delaying a hear- up-or-down on a matter by use or threat of lican Conference about the possibility ing for Mr. Estrada to ‘‘give the groups time permanent debate. of filibustering judges, and that Chair- to complete their research and the com- That simply did not happen with Fortas, man HATCH explained to us that it was mittee time to collect additional informa- where the Senate debated the nomination’s totally against the traditions of the tion.’’ merits quite vigorously. Senators exposed Senate, and we did not maintain a fili- One nominee who wasn’t filibustered was the ethical issues involved and the wide- buster against Clinton judges. I wonder Judge Timothy Tymkovich, who now sits on spread belief the vacancy had been manufac- if he remembers that. the U.S. Court of Appeals for the 10th Cir- tured for political purposes. They sought to cuit. But Democrats opposed moving him Mr. BOND. Mr. President, I seem to use debate to persuade other senators the recall that. I thought it was a very until all the groups had given their approval. nomination should be defeated. ‘‘[I]t appears that the groups are willing to After less than a week, the Senate leader- statesmanlike and accurate portrayal let Tymkovich go through (the core of the ship tried to shut down debate. At that time, of the traditions of this body and the coalition made that decision last night, but two-thirds of the senators voting were need- requirements of the Constitution, and I they are checking with the gay rights ed to do so, yet only 45 senators supported once again commend our colleague groups),’’ staffers wrote Mr. Kennedy in a the motion. Of the 43 senators who still from Utah, who at that time was in a June 12, 2002, memo. wished to debate the nomination, 23 were Re- position where he obviously could have But even as late as early 2003, Democrats publicans and 19 were Democrats. appeared concerned that they would not suc- mustered 41 votes to block the nomi- President Johnson saw the writing on the nee. It was the view of those of us who ceed in mounting a full-scale filibuster wall—that Fortas did not have 51 senators in against their first target. support of his nomination—so he withdrew agreed with the Senator from Utah In a January 2003 meeting between Demo- the nomination before debate could be com- that we should not do that because the crats on the Judiciary Committee and Demo- pleted. people of America elected a President cratic leaders in the Senate, Democrats The events of 37 years ago contrast mark- who has—we know and he knows—the agreed to attempt a filibuster against Mr. edly with those the Senate Faces today: power to nominate judges. And it is Estrada. (1) Fortas lacked majority support when ‘‘All in attendance agreed to attempt to necessary to maintain a well-staffed President Johnson withdrew his nomination. judiciary that we give prompt and up- filibuster the nomination of Miguel Estrada, Today, Senate Democrats block up-or-down if they have the votes to defeat cloture,’’ the votes on judicial nominees who are sup- or-down votes to these nominees. judiciary aides wrote. ‘‘They also agreed ported by a majority of senators. Mr. SESSIONS. I thank the Senator that, if they do not have the votes to defeat (2) Justice Fortas was politically associ- from Missouri. I will say, I did not hear cloture, a contested loss would be worse than ated with President Johnson and eventually all of his remarks, but I heard a good no contest.’’ resigned from the Supreme Court under an portion of them, and if anyone would ethical cloud. No such charges have been EXHIBIT 2 like an accurate summary of the status made against President Bush’s nominees. of our situation, I suggest they read his A UNIQUE CASE OF OBSTRUCTION (3) The Senate debated the Fortas nomina- remarks. So far as I can tell, every- In the current debate over judicial nomina- tion only for several days before Johnson tions, some commentators claim Repub- withdrew the nomination, versus the four thing he said is accurate. So far as I licans such as myself are misrepresenting years some of President Bush’s nominees can tell, much of what we have heard history by suggesting the current filibuster have been pending. It’s clear the Democrats from the other side is inaccurate, dis- tactics of the Democrats are unprecedented. today have no desire to persuade, and have torting of the traditions of the Senate,

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5476 CONGRESSIONAL RECORD — SENATE May 19, 2005 and not a fair summary of the situa- President Clinton was appointing two According to the United States Constitu- tion we are in. I feel very strongly ultra-liberal activists to the court. tion, the President nominates, and the Sen- about it. But what happened to those two ate shall provide advice and consent. It is There is a huge issue at stake. And judges? We have heard the democrats not the role of the Senate to obstruct the the issue is how the Federal courts will complain about on occasion: Judges process and prevent numbers of highly quali- fied nominees from even being given the op- be staffed and operate. What do we Paez and Berzon. The Republican ma- portunity for a vote on the Senate floor. want and what do we expect from Fed- jority leader of the Senate, TRENT Now, she has been inconsistent, I eral judges? How do we expect them to LOTT, called those nominees up and would say. But Chairman HATCH has behave? President Bush says he be- asked for an up-or-down vote by clo- been consistent. When he opposed Clin- lieves judges should be faithful to the ture motion. Those of us who opposed ton nominees, he gave them an up-or- law and the Constitution, that they are them—I certainly was one of them— down vote, and so did TRENT LOTT. As not empowered to use activist tactics voted for cloture, voted to give them soon as the situation flops, some of the to reinterpret and manipulate the an up-or-down vote, even though we in- Democratic Senators flopped. Senator meaning of the words in the Constitu- tensely opposed them. They were given SCHUMER was one of the most out- tion or a statute to further a personal an up-or-down vote, and they were con- spoken complainers during the Clinton agenda they might favor. But they are firmed. President Clinton’s nominees, administration. He said: judges. They are referees, umpires to when the majority was in the hands of I also plead with my colleagues to move settle disputes by interpreting the law the Republicans, were moved, after full judges with alacrity—vote them up or down. fairly and objectively. If we get away debate and an opportunity to make I agree with that, Senator SCHU- from that, our judiciary is in great their case. They brought them up, and MER.— danger. they were given that up-or-down vote. I believe Senator BOND is correct, That is the principle under which the But this delay makes a mockery of the also, in saying this memo that was just Constitution, makes a mockery of the fact Senate has operated. that we are here working, and makes a produced, and other actions I have seen Some say, well, we might want to fil- mockery of the lives of the very sincere peo- over the years I have been in the Sen- ibuster in the future. Well, we have not ple who have put themselves forward to be ate, indicate to me that too often our filibustered in the past, not for 200 judges and then they hang out here in limbo. colleagues have outsourced their valu- years. Senator LEAHY, now leading the fili- ation, outsourced their decision mak- Now, how did this situation that we buster, was on the floor talking about ing process on judges to very hard-left are facing happen? There is no mystery that. Back when the Clinton adminis- groups who are not honest, who delib- if you look at the history of it. Senator tration was submitting judges, he said: erately distort the record of fine nomi- BOND made a number of the points. But I have had judicial nominations by both nees, who attempt to manipulate the not long after President Bush was Democrat and Republican Presidents that I press nationwide, who raise money elected, in 2000, the Democrats went to intended to oppose. But I fought like mad to with an effort to destroy people’s rep- a retreat. According to a New York make sure they at least got a chance to be utations in a way that is not legiti- Times article that reported on it, three on the floor for a vote. I have stated over and mate and unfair. I believe that strong- very liberal, capable law professors— over again on this floor that I would refuse ly. I have seen it time and time again. Laurence Tribe, Marcia Greenberger, to put an anonymous hold on a judge; that I It is time to bring that to a conclu- Cass Sunstein—met with them in re- would object and fight against any filibuster sion. One of our great traditions in the on a judge, whether it is somebody I opposed treat. And they returned from that re- or supported; that I felt the Senate should do Senate is to give a nominee an up-or- treat with the conclusion that they its duty. If we don’t like somebody the Presi- down vote. Senator HATCH, who is on were going to change the ground rules dent nominates, vote him or her up or down. the Senate floor, was my chairman of of confirmations. But don’t hold them in this anonymous un- the Judiciary Committee for a number That is what we have seen time and conscionable limbo. . . . of years. Senator HATCH warned us again in a whole lot of ways. The Well, I see Chairman HATCH is here. I when I came to the Senate. There were ground rules were changed. For exam- know the time is a bit drawn. Chair- a lot of people who felt strongly about ple, not long after that, one Republican man HATCH and the Republican leader- some activist nominees of the Clinton Member switched parties and we ceased ship have been consistent on this issue, administration. We were very con- to be the majority party, and so the even when it was not to their political cerned with them. Judiciary Committee had a majority of benefit to do so. We have opposed the I see my colleague, the Senator from Democrats on it. The first nine nomi- idea of filibusters and have not sup- Oklahoma, who was in the House. The nees who had been submitted—several ported it. The Democrats oppose them House Members were unhappy with us. of these nominees were in that group, when it is convenient and support them They thought we ought to filibuster including Priscilla Owen and others— when it is convenient. I think their po- some of these nominees. And we con- were nominated in 2001. They would sition is untenable as a matter of prin- sidered it. People discussed it. Senator not bring them up in committee. Then ciple and as a matter of public policy, HATCH made a very strong, clear pres- after they moved two nominees—one and our country will not be better off entation in the Republican Conference. was a minority and the other was a for filibustering judges. He said no, that it was against our tra- Democrat. They moved those two, but I yield the floor. ditions. It would be bad public policy. these other fine nominees never moved The PRESIDING OFFICER (Mr. MAR- It would alter the balance of power in out of committee. They were changing TINEZ). The Senator from Utah is rec- the separation of powers by creating the ground rules then. ognized. now a super majority needed for the Then after the Republicans regained Mr. HATCH. Mr. President, I thank confirmation of judges. He said we the majority, they commenced an un- my colleague for his kind remarks, and should not do it. And the Republicans precedented attempt to filibuster in other colleagues as well. I ask unani- were in the majority. We had a major- committee—something we had never mous consent that I be given the origi- ity in the Senate, at one time 55 Mem- seen before. We had to have a fight nal half-hour time and that the Demo- bers. over that in committee, under Chair- crats be extended an equal amount of So the question was, What about man HATCH’s leadership, and we re- time. some of these nominees that were ob- versed that. They were going to fili- The PRESIDING OFFICER. Is there jected to? I objected to two from the buster nominees in committee. It is so objection? Ninth Circuit very strongly. The Ninth contrary to what they were saying a Without objection, it is so ordered. Circuit was the most activist circuit in few years ago on the floor of the Sen- Mr. HATCH. Mr. President, I appre- America. It had been reversed by the ate. ciate my colleague from Alabama. He U.S. Supreme Court in 27 out of 28 On Tuesday of this week, Senator knows about as much as anybody who cases. It was out of step. The New York BOXER railed against Janice Rogers has ever sat on this side of the aisle. He Times said in an article that a major- Brown, but this is what she said about has the sting of having been rejected ity of the Supreme Court considered judicial nominees when President Clin- by the Judiciary Committee Democrats the Ninth Circuit a rogue circuit. Yet ton was in office: when he was nominated for a Federal

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5477 judgeship years ago. I think that is country coming here to sit up in the who claimed that when the Senate pretty ironic. They knew he was good galleries and observe their Senate at voted to end debate on past judicial and that he could do the job. Now he is work. Some of them with us today nominations, we were actually filibus- a sitting Senator who can no longer be might actually be asking, Why is the tering those nominations; that when ignored, and he has stood up and tri- Senator from Utah making such a big we voted down debate and confirmed umphed for so many good people deal about something that is so obvi- them, we were actually filibustering— through the years. I think it was kind ous—votes up or down, that is. Many of poppycock. They want Americans to of a God-given thing that he was re- our fellow citizens may be surprised to believe that ending debate then justi- jected back then, so he could sit in the learn that some of the Senators they fies refusing to end debate now. Poppy- Senate and tell people the important elected and sent to Congress are refus- cock. Or they claim that when the Sen- aspects of the Federal judiciary we ing to vote on nominations. They ate voted to confirm judicial nomina- have been discussing. I personally love might share the sentiment of former tions in the past, we were actually fili- and appreciate him. He has been a Democratic leader Senator Tom bustering those nominations when we great member of the Judiciary Com- Daschle when he said in 1999—of voted to confirm them. That is how far mittee and I have a lot of respect for course, Clinton was President: they have gone to try and justify these him. I find it simply baffling that a Senator inappropriate actions. I have also been told that at the be- would vote against even voting on a judicial They want Americans to believe that ginning of the session today, one of the nomination. confirming nominations then, as we leaders offered to discharge a number That is what they are doing. I guess did, justifies refusing to confirm them of judges from the committee, or it makes a difference whether your now. Those bizarre claims focus on what happens here on the Senate floor judgeship nominees. I find that pretty President is President or whether the at the end of the judicial confirmation ironic because at the end of the 108th opposition President is President. I process. Sometimes judicial filibuster Congress, when I attempted to dis- happen to think there are certain vir- defenders on the other side have fo- charge three nominees to the floor— tues that ought to be maintained, no Tom Griffith, our former counsel, nom- cused instead on what happens in the matter what. Judiciary Committee, an earlier phase inated for the DC circuit; J. Michael Those Senators on the other side are in the process. Some appear willing to Seabright, who was from Hawaii and blocking votes because they know they try anything to create a precedent for was sponsored very strongly by the two will lose those votes. If we debate these their filibusters. Some even claim that Hawaiian Senators; and Paul Crotty, nominees, America would better under- from New York, who was sponsored any nomination which is not audibly stand why we need judges who will in- confirmed, no matter what the reason, strongly by the two New York Sen- terpret, not make, the law. Americans ators—the Democrats opposed that and no matter what the step in the process, will see how these highly qualified ju- has been filibustered. Giving a word said this was extremely unprecedented, dicial nominees meet that standard, and they prevented me from doing so any meaning you want may help make and America will see that these nomi- any argument you want to make, but it because they claimed ‘‘proper order’’ nees, every one of them, have a bipar- for all nominees. does not make that argument legiti- tisan majority support. mate. This gimmick may have some Forgive me, Mr. President, if I find What is wrong with giving them a public relations punch. It leads to cli- the recent Democratic request to dis- vote up or down? The political forces ches such as ‘‘pocket filibuster’’ or charge people they want to discharge— promoting an activist political judici- ‘‘one-man filibuster,’’ and creates vil- three Sixth Circuit nominees—more ary oppose many of these nominees, lains, such as me. What kind of cam- than a little disingenuous. It is only and their strategy is simple. The Sen- paign would this be without a bogey- done to try to make it look as though ate cannot confirm nominees if Sen- man? After all, I was chairman of the they are trying to cooperate when in ators cannot vote on them. We cannot Judiciary Committee for 6 years under fact they knew that could not be per- vote if we cannot end debate. These mitted. The leadership in the Senate President Clinton. filibusters use Senate rules to prevent Never mind that the Republican Sen- will decide what judges come to the ending debate, prevent taking a vote, floor and we want all of them, includ- ate confirmed 377 judges for President and prevent confirmation of these ing the three from Michigan. Clinton, just 5 short of the all-time judges. That is not only baffling, it is Last week when the Judiciary Com- confirmation record set by President mittee considered the asbestos bill, one unprecedented. This is not a tangent, Reagan. Bill Clinton was the second of our Democratic colleagues referred an academic issue, or a question that confirmation champion of judges in the to proposed amendments to that bill will 1 day be found in the game ‘‘Triv- history of this country, and he had 6 and said something very important: ial Pursuit Senate Edition.’’ This issue years when I was chairman. I wonder Let’s debate them up or down. He said is central to this debate, and our how that happened if I was so partisan. it the way the American people believe Democratic colleagues know it. Never mind that President Reagan Some are so desperate to claim even it, and that is debating and voting is had his own party controlling the Sen- what legislators do. Let’s debate them one single solitary precedent for what ate for 6 years while President Clinton and then vote them up or down. they are doing that they stretch, twist, had the other party, the Republicans, The Senator offering that idea was and morph the word ‘‘filibuster’’ be- controlling the Senate for 6 of his my colleague from Vermont, Senator yond all recognition. They want the years. So Reagan had his own party LEAHY. He was speaking then about word ‘‘filibuster’’ to mean so many help him for 6 years. President Clinton legislation, but he and other Demo- things that it ultimately means vir- only had his own party for 2 years, and crats once insisted the Senate should tually nothing at all. yet he still came in just five votes shy follow the same principle as we evalu- Unfortunately, these mischaracter- of President Reagan. And if my recol- ate the President’s judicial nomina- izations of Senate history, tradition, lection serves me correctly, he would tions. and rules cynically exploit the fact have been three ahead of him had it In October 1997, for example, he said that many of our fellow citizens have not been for Democratic holds on their on the Senate floor: not mastered the particulars of Senate side. One Senator was not getting his; I hope we might reach a point where we as history, the peculiarities of Senate pro- therefore, he would not let anybody a Senate will accept our responsibility and cedure, or the idiosyncrasies of the else get theirs. It happened. Never vote people up, vote them down. Bring the confirmation process. Misleading, con- mind facts such as that. names here. If we want to vote against them, fusing, patently false claims can easily The assistant minority leader yester- vote against them. take on a life of their own, echoed and day claimed every Clinton nomination Of course, at that time, a Democratic repeated throughout the media, cyber- that was not audibly confirmed was President was in power. That may have space, and even here on the Senate filibustered and that I personally bur- been the difference between then and floor. ied them. My hand alone held back a now. We all know it can take a long time confirmation wave of apparently It is always refreshing to see our fel- for what is true to catch up with what mythic proportions. Look for a mo- low citizens from all over this great is false. Judicial filibuster defenders ment what it takes to believe every

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5478 CONGRESSIONAL RECORD — SENATE May 19, 2005 unconfirmed nominee is a filibustered in the 6 years I was chairman of the mean changing the Senate rules by nominee. It requires believing dozens committee during the Clinton years, fiat. That is a variation on the Demo- of nominees President Clinton himself and they know it. They do not have cratic mantra that this would break withdrew were filibustered. Prepos- any other arguments. the rules to change the rules. That is a terous. President Clinton, for example, So what do they want to do? They catchy little phrase but neither of its withdrew one of his court nominees want to vilify the chairman of the Ju- catchy little parts is true. fewer than 6 months after her nomina- diciary Committee who has had to put The Senate operates not only by its tion because of health concerns. Her up with all kinds of machinations in written rules but also by parliamen- nomination did not get out of the Judi- the Judiciary Committee from both tary precedence established when the ciary Committee, did not receive a sides, whoever the chairman is. Demo- Presiding Officer rules on questions of floor vote, and was not confirmed. But crats know there are procedures in the procedure asked by the Senators. What was she filibustered? They seem to Judiciary Committee and on the floor we call the constitutional option would think so. for forcing a committee chairman to seek such a ruling from the Presiding Is her situation the same as Justice act if Senators believe the chairman is Officer. After sufficient debate, the Priscilla Owen who has been waiting dragging his feet and that those proce- Senate should vote on a judicial nomi- for more than 4 years and cannot get a dures were never used, never even at- nation. That is what the ruling would floor vote because of a Democratic fili- tempted, while I was chairman. Why? be. Senate precedents and procedures buster, a leader-led partisan filibuster, Because they knew darn well I was try- would change, but Senate rules would the first time in history? ing to do the best I could. remain unchanged. No breaking of the This line that all unconfirmed nomi- They do not have any other argu- rules, no changing of the rules. nees are filibustered nominees requires ments. They cannot justify their posi- Senators use the word ‘‘fiat’’ because you to believe ill-founded arguments tion. Democrats know these things. it sounds bad and fits with the abuse of such as that. It also requires believing They also know that many of our fel- power theme probably born in some lib- that the 28 nominations sent too late low citizens do not. So the spin ma- eral focus group somewhere. The word to be considered or which President chine cooks up this tail that all attempts to give people a bad impres- Clinton chose not to resubmit were fili- unconfirmed nominees are filibustered sion, but it should give them an even bustered. nominees, attempting to make people worse impression to know that it is That is how they add, they double believe there is some precedent, even a patently false. count. It is ridiculous. Preposterous is totally fictional precedent, for their The Constitution gives authority the word. current filibusters. Saying that ending over Senate rules and procedures to the Senate, not to the Parliamentarian or It requires believing that nomina- a debate is the same as not ending a de- to the Presiding Officer but to the Sen- tions not given hearings because of op- bate did not work. Saying that con- ate. If the Presiding Officer rules on position by their home State Senators firming nominations is the same as not the question of procedure, it will not were filibustered. We have had that go confirming nominations did not work. actually change Senate procedures on for years, whoever has been in Saying that President Clinton’s near until a majority of the Senators vote power. Home State Senators have a lot record confirmation total is evidence to do so. of swat. The Judiciary Committee sys- of unfair treatment by Republicans tem that gives extra weight to the Just as American self-government is will not work either. radically different from monarchy, views of Senators from a nominee’s On Tuesday the distinguished Sen- home State has been in place in var- Senate self-government is radically dif- ator from Wisconsin, Mr. FEINGOLD, ferent from fiat. ious forms for nearly a century. Demo- was making a few other arguments. He The Senator from Wisconsin said crats, as well as Republicans, use it. I pointed out that the text of the Con- that whenever the Senate merely takes do not hear the Democrats who now stitution does not require an up-or- a cloture vote or a vote to end debate, want to call these situations filibusters down confirmation vote for a judicial a filibuster is always underway. That, also calling to abolish that system of nomination. too, is patently false. home State senatorial courtesy. They Well, many of our colleagues on the Let me refer to this chart. This is cannot have it both ways. other side of the aisle attack judicial what the Congressional Research Serv- The majority leader, Senator FRIST, nominees when they take the Constitu- ice said on April 22, 2005: recently offered a proposal that would tion’s text this seriously. But I am glad It is erroneous to assume that cases in not only address our concerns about that the Senator from Wisconsin is which cloture is sought are always the same the floor by ensuring up-or-down votes, doing so. as those in which a filibuster occurs. but also address Democrats’ concerns The word ‘‘filibuster’’ is not found in Let me repeat that. about the committee by guaranteeing the Constitution, either. Nor are It is erroneous to assume that cases in reporting of nominees. The majority phrases such as ‘‘unlimited debate,’’ which cloture is sought are always the same leader tried to do that. Democrats re- ‘‘minority rights,’’ or even ‘‘checks and as those in which a filibuster occurs. jected that offer. They are not going to balances,’’ as misused as those terms Let me use two examples. Among give up their rights in committee any- have been by the other side. President Clinton’s most controversial more than Republicans should give up None of the phrases used by some to nominees were Marsha Berzon and their rights in committee. try to give these judicial filibusters a Richard Paez nominated to the U.S. But that is not filibustering, I can constitutional anchor are in the char- Court of Appeals for the Ninth Circuit. guarantee that. Either they think tered text, the constitutional text. Our colleague from New York, Senator treatment of judicial nominees in the What the Constitution does say, how- SCHUMER, who has spoken many times Judiciary Committee is a problem ever, is that the President has the on the floor on this issue, in November needing a remedy or they do not. They power to nominate and appoint 2003 called these nominees ‘‘very lib- cannot have it both ways. Democrats judges—not the Senate, the President eral,’’ and, ‘‘quite far to the left.’’ Now, know that many factors determining has that power. Our role of advice and that is quite something coming from a whether a nomination is approved by consent is a check on the President’s Senator who has never been called even the Judiciary Committee are not sim- power to appoint. a little bit to the right. ply up to the chairman’s unilateral dis- When the filibuster turns our check On November 10, 1999, the majority cretion. What galls me is some who on the President’s power into a weapon leader at the time, Senator LOTT, have made the argument. One in par- that hijacks the President’s power, promised that he would bring these ticular this morning begged me to get then, yes, it has indeed violated the de- controversial nominations up for a con- his judges through, and I have to say sign that is most certainly in the text firmation vote no later than March 15, there were real questions about his of the Constitution, and that is what 2000, and that was at my request. He judges, but I put them through because they are doing. correctly said that I agreed with using they were nominated by the President. The Senator from Wisconsin also said the cloture vote to ensure that a con- He came to me and asked that I get it the procedure the majority leader may firmation vote occurred. In other done. I did it for countless Democrats use to prohibit judicial filibusters will words, it was used to get to a vote.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5479 On March 8, 2000, that is exactly what would be an outrageous trashing of mi- Or the critics will characterize what we did. It was of a procedural floor nority rights. Yet he voted every time a judge said rather than tell us what management device. The first two to support Majority leader BYRD’S use she actually said. names on the petition for the cloture of that mechanism, including to elimi- Or if they do quote the judge, critics vote happened to be Senator LOTT and nate nomination related filibusters. will often pluck out only a phrase, or myself. We took that cloture vote to Yesterday, the Senator from Illinois, use lots of ellipses. prevent a filibuster and to ensure an Senator DURBIN, claimed that Senate These are signs that spin may be in up-or-down vote. We prevented a fili- rules, in his words, from the very be- the air. buster. That vote occurred, and the ginning, required an extraordinary ma- Or the critics will quote other critics. Senate confirmed both nominees. They jority to end debate. Imagine if the only thing someone are today sitting Federal judges. Oth- Now that is factual claim, and it is knew about you came from what your erwise we would have kept going on factually false. critics or enemies said about you. That and on on the Senate floor. We decided The Senate adopted its first rules in picture would be distorted, incomplete, that is the way to get to a vote, and we 1789. Rule eight allowed a simple ma- and just plain false. did. jority to proceed to a vote. The men So our fellow citizens should not be The Senator from Vermont, Mr. who founded this republic designed this worried that they do not know the lan- LEAHY, said on Tuesday that the con- Senate without the minority’s ability guage of lawyers, that they have not stitutional option which would use a to filibuster anything. read a judicial nominee’s writings or parliamentary ruling to prohibit judi- Over the last few days, many excuses rulings, or are not well-versed in the cial filibusters would ‘‘use majority have been offered why some refuse to fine points of legal argument. power to override the rights of the mi- debate and vote on judicial nomina- I hope they will listen critically to nority.’’ I have called this parliamen- tions that reach the Senate floor. the debate here in the Senate about tary approach the Byrd option because Let me correct that. While these may these nominees, their qualifications, when Senator BYRD was the majority be their reasons, there are no valid ex- and their records. leader in the late 1970s and early 1980s, cuses. I hope our fellow citizens will be very Senator BYRD used it to change Senate When procedural obstructive devices skeptical of critics who make a polit- procedures. He did so regarding legisla- such as the filibuster are kept where ical case against a judicial nominee, tion and also regarding nomination-re- they belong, in the legislative process, skeptical if the case against a nominee lated filibusters. the debate can properly focus on the is limited to soundbites about results In 1980, for example, then-Majority merits of these nominees. That is what or characterizations by third parties. Leader BYRD wanted to prohibit fili- debating and voting should ultimately Let me conclude my remarks by not- busters with a motion to proceed to be about, the President’s nominees. ing that in September 2000, the Senator nominations, and they could do that The debate we have seen here on the from Michigan, Senator LEVIN, said back then, just as a confirmation vote Senate floor regarding nominees such that the Constitution each of us has cannot happen if debate does not end. as Justices Priscilla Owen and Janice sworn to protect and defend requires Debate cannot start if the Senate can- Rogers Brown is typical of what we that we debate and vote on judicial not vote to proceed to that debate. Today we hear that any limitation will see in the future regarding other nominations reaching the floor. on debate, any restriction of the fili- nominees. I agreed with that principle then, and buster, strikes at the very heart of the Many of our fellow citizen may know I agree with it today. essence of this institution. Maybe it little of the Senate’s Byzantine proce- For more than two centuries, we was a different story back then when dures, they may know little about judi- kept the filibuster out of the judicial they were in control. When the Pre- cial rulings, they may not speak confirmation process. siding Officer ruled against what Ma- legalese, but I hope they will not be It is surely not a good sign about our jority Leader BYRD was trying to do, he afraid to participate in this process. political culture that we must today then appealed that ruling and the Sen- Let me offer a few pointers, a few formalize by parliamentary ruling a ate voted to overturn it, effectively tips, for the road ahead. standard we once observed by principle terminating those nomination-related Politics is often about results, about and self-restraint. filibusters. He knew how the vote was winners and losers, and involves politi- But that self-restraint has broken going to turn out in the end. cians asserting their will. Law is about down, and maintaining our tradition of I remind my colleagues what my the process of reaching results, about up or down votes for judicial nomina- good Democratic friend from West Vir- what the law requires, and involves tions is worth defending. Once we take ginia said when he used the procedure judges using judgment. unprecedented obstruction tactics like to change the filibuster rule, on Janu- Politics and law are two very dif- the filibuster off the table, we can ary 4, 1995, during the Clinton adminis- ferent things, and our liberty depends focus where we should, on the merits tration. He said: on preserving that difference. So if you and qualifications of nominees. I have seen filibusters. I have helped to hear critics of judicial nominees talk- We must have a standard that binds break them. There are few Senators in this ing only in the language of politics, both political parties. That standard body who were here [in 1977] when I broke you know something is wrong. must be fair, it must respect the sepa- the filibuster on the natural gas bill. . . . I In the last day or two, for example, ration of powers, and it must be con- asked Mr. Mondale, the vice president, to go critics of the nominees before us have sistent with our own Senate tradition. please sit in the chair; I wanted to make reduced them to sound bites, check- Between 1789 and 2003, we had a some points of order and create some new lists, and litmus tests. precedents that would break these filibus- strong consistent tradition of voting ters. Senators begin sentences with on judicial nominations once they phrases such as she ruled that . . . or Then he said this: reach the Senate floor. she ruled for. . . . We should return to that principle And the filibuster was broken—back, neck, legs, and arms. . . . So I know something Mentioning only those results, with- and practice. about filibusters. I helped to set a great out exploring how a judge reached Unfortunately, in 2003, the Demo- many of the precedents that are on the those results, amounts to applying po- cratic leadership broke with this long- books here. litical criteria to a judicial nominee, standing Senate tradition and took an Well, the Senator was candid. I per- and that is fundamentally wrong. ill-founded turn down a partisan polit- sonally admire him for it. On at least Sometimes the law requires results we ical path and unwisely changed the three other occasions, Majority Leader may not like, results that may even confirmation process in an unprece- BYRD used a ruling by the Presiding Of- sound dramatic. dented fashion. ficer to change Senate procedures with- Mentioning the political results We must turn back from that path. out changing the underlying Senate without the judicial process leading to Once a judicial nomination reaches us rules. those results misleads people about here, our course should be clear. Let us The Senator from Vermont says that what judges do and how to choose the debate and then let us vote. using this very same mechanism today rights ones. I yield the floor.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5480 CONGRESSIONAL RECORD — SENATE May 19, 2005 The PRESIDING OFFICER (Mr. going back to the original intent of our is a different political climate. There is ALEXANDER). The Senator from Massa- Founding Fathers. That does not hap- a radical right out there that is loose chusetts. pen to be factually true. in the country. They feel they won the Mr. KENNEDY. Mr. President, I un- I reviewed yesterday those who have Presidency, the House of Representa- derstand that under the previous agree- held the seat I hold in the Senate. tives, the Senate of the United States ment, I have 15 minutes. Is that cor- Going back to John Quincy Adams, and, by God, they are going to take rect? Mr. President, I will yield myself going back to Charles Sumner, going over the independent judiciary. 15 minutes. I ask consent to be able to back to Daniel Webster—to President That is what this is all about. Mean- proceed for 15 minutes. Kennedy—the series of Supreme Court time, while the so-called nuclear op- The PRESIDING OFFICER. Without nominees they considered, and those tion has been hanging out over the objection, it is so ordered. they voted for and those they voted Senate, what in the world have we been Mr. KENNEDY. I ask the Chair if he against: there never was a single time doing for the last 5 months? January, will be good enough to let me know when any Senator from Massachusetts February, March, April, and now the when there is 3 minutes left. was effectively muzzled, silenced, third week in May? The PRESIDING OFFICER. The gagged when they were expressing When I go back to Massachusetts, the Chair will so notify the Senator. their conscience, their view about the people there are talking still about job Mr. KENNEDY. I thank the Chair. security and its uncertainty. They are Mr. President, I will take a few mo- members going to the Supreme Court or the circuit courts, not in the history talking about whether they are going ments of the time of the Senate, and to continue to be able to have health for those who are watching this debate, of this body, never. But under the proposal of the major- insurance. They are talking about es- to try to put this whole issue of what ity leader, that will no longer be the calating prices of prescription drugs. I consider to be an arrogant grab for They are talking about the increased power in some perspective. I urge my case. That no longer will be the case. It is not only the silencing, the muzzling costs of tuition, whether their children colleagues, perhaps over the course of are going to be able to go to college. the weekend, take 2 or 3 hours and and gagging of any of the Members in here; it is breaking the rules in the They are talking about what is hap- reread the debates on the Constitu- pening in the schools and the school tional Convention, about how our middle of the game. We have parliamentary rules, like dropout problems and the fact so many Founding Fathers wanted the selection any other legislative body, and we have classes in our Nation don’t have well- of judges for the courts of this country ways of changing and altering those trained teachers. They are talking to be done. about the needs for special education There were three different occasions rules. They are all laid out. I will men- tion them briefly. There is a way to teachers. They are talking about sup- during the Constitutional Convention plementary services for children going when our Founding Fathers considered change the rules if we do not like them and we can follow them and conform to high schools that were guaranteed who should appoint the judges who in the No Child Left Behind Act and were going to serve on the courts of them to our views. By the Senate rules we can alter and change them. Is that too many of our school districts are this country. The first two times the not doing; that is what they are talk- Founding Fathers debated this and dis- what is going to be before the Senate in the nuclear option? Absolutely not. ing about. cussed this, they made a unanimous But what have we been doing? Wait- Absolutely not. recommendation that it would be sole- ing for the nuclear option. Which There is a way to change them, but ly the Senate of the United States that means what? Tear up the rules and we not the way the Republican leadership would be the sole judge for nominating pass class action bills benefitting cor- and this administration want to do it. and approving judges who were going porate America, we pass bankruptcy They are effectively tearing up the to serve on the courts. Then, as the bills that will help the credit card in- rules. They are basically running Constitutional Convention came to an dustry. We did take 2 weeks, and de- roughshod over the Senate rules, the end, 8 days before the end of the Con- servedly so, on the supplemental appro- institution that has served this Nation stitutional Convention, they came priations, and we included an amend- well for 224 years. That is what is being back and they were reviewing the to- ment to add some armor for our troops tality of their work and at that time proposed. When all is said and done, we over there, of which I highly approved. they made a judgment and decision mention all these other past histories That is it. That is the record. Nothing that was virtually unanimous that of activities, this is effectively what is we really care about. Why? Because we they would provide a shared responsi- being done. have been absorbed with the nuclear I think most Americans may take bility between the executive and the option, changing and altering the issue with what happens here in the Senate of the United States. rules. Mr. President, 95 percent of ap- No one can read the debates of the Senate. They may agree with the ac- proval of this President’s nominees has Constitutional Convention and not un- tivities of the Senate or may differ been achieved. derstand that the Senate of the United with them. But one thing in which the I frankly feel a great deal of this re- States is effectively, in the eyes of the American people have some degree of sponsibility is right down at the other Founding Fathers, a coequal partner in confidence is their basic institutions of end of Pennsylvania Avenue. I can re- the naming of judges. Government. With the proposal by the member in January of this year, in the I know it has been fashionable majority leader, we are rending asun- wake of the conclusion of the election around here for many years, particu- der the power and the authority that and all of us said, This President won. larly for those of the majority party— was described in the Constitutional We congratulate him. We have to bring and I have seen it done even on our side Convention and described in the Con- the country back together. I certainly when we were the majority party—for stitution for the Senate. That is why voiced that. a Democrat to say: Look, if the Presi- people are feeling so strongly about My colleague, Senator KERRY, cer- dent of the United States nominates, this, many of us feel so strongly about tainly voiced that. What happened? there has to be a heavy burden on any this—because basically we are under- The ballots are barely cast and the individual to vote against it. It ought mining what our Founding Fathers votes are hardly counted, and this to be automatic. It ought to be effec- wanted. President sends up the nominees that tively a rubberstamp. This is an issue that has been over- have been debated, discussed, had hear- That has never been my position. I hanging the Senate now for some ings, and voted on in the Senate and have always felt and understood that weeks, for some months, in spite of the said: You have to pass these, Senate, or we have an independent judgment and fact that we have approved 208 of the we will change the rules. decision as charged by our Founding President’s judges: 95 percent, a higher I have taken the time of the Senate Fathers to exercise our own good judg- percentage than the previous President in going over the qualifications of ment. That has been the history of the Bush. What is suddenly the difference? these. These are not just ordinary Senate. This President has a higher percentage nominees. I have gone over these in We have listened—I have—to a lot of of his nominees approved than the first some detail. These nominees are rad- debates, saying what we are doing is President Bush, Bush 1. The difference ical. I would say, radical, outside the

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5481 mainstream. If you have a nominee and parliamentary procedures of this Who would make better judicial choices, such as Mr. Pryor, who thinks we Senate. It is wrong. the Senate or the Executive? ought to repeal the Voting Rights Act, We are witnessing in this debate an Fortunately for us today, their de- I think he is out of the mainstream. arrogant power grab by the Republican bates were not just theoretical. They What he says in his legal papers is in right. This is what happens when the were very real and very practical. The complete conflict with and has been re- rightwing of the Republican Party Framers understood they were creating jected unanimously by the Supreme calls the tune for the Republican Party a new experiment in the history of gov- Court. He does not understand the as a whole. We are spending days and ernment as they worked to combine Americans With Disabilities Act. He weeks debating five rightwing judges their diverse views into a single con- does not understand that Republicans but not 5 minutes on what counts in cise blueprint. and Democrats alike voted for the most people’s lives: Secure jobs, Despite vigorous and fundamental Americans With Disabilities Act to healthy families, educational oppor- disagreements at the start, they re- bring those that are challenged, men- tunity. Those are not the values and tained their respect for one another, tally and physically, into the main- priorities we see today from the White their capacity for reason, their shared stream of American society. We spent House and this Republican Congress. concept of what this Nation could be, weeks and months and years to pass To them, history does not matter. and what its government should be. that legislation. This is not one Sen- Mainstream values do not matter. Our Consensus was not just a goal, but a ator who will vote for someone that ab- commitment is to working families, necessity. Compromise not just an op- solutely wants to undermine and evis- and that does not matter. tion, but a cornerstone of their cre- cerate it, destroy it, and end it. That is What the Republican Party cares ation. what Mr. Pryor’s positions lead to. about today is putting a rightwing It is not an exaggeration to say that So these are not people that are in agenda ahead of mainstream values, if that ‘‘compact of comity’’ is not pre- the mainstream. We have expressed corporate interests ahead of public in- served, the Senate and the Government that. We ought to be able to express it. terests, and the agenda of the privi- will suffer mightily. Our vital role in But that is not satisfactory to this ad- leged few ahead of the American dream the machinery of checks and balances ministration. No, no. They want to for all. will fade, and the nation will be left di- change the rules. That is what this will We, as Senators, have a choice as minished. be all about. They are effectively say- well. We can break the rules and run What would the Framers have done if ing: Look we have nominated, and you roughshod over our constitutional sys- faced with the challenge we face? are going to go ahead and approve. tem of checks and balances or we can They would clearly have counseled We have 224 years where they have seek accommodation and compromise respect and moderation. not been able to silence us, and now for the good of our democracy and the It is not respectful or moderate to they will be able to silence us. But not strength of our Nation. suggest, as one of our colleagues did, with this Senator’s support. The one thing standing between the that judges may have it coming to These are the rules, and I welcome White House and total control of the them if their decisions outrage some any on the other side to dispute them, Congress and the courts is the Senate’s people. It is not respectful or moderate and I invite them to put that in the right to full and fair debate. Let’s not to suggest, as the majority leader did RECORD. First of all, they will have to give it up. yesterday, that Senators are equiva- put the Vice President of the United As many of us have said, if Repub- lent to the assassins of judges because States in the Presiding Officer’s chair. licans persist in the course they have they strongly criticize the political or There will not be another Senator in set, they will destroy the ‘‘compact of ideological views of judicial nominees. that chair to make the ruling because comity’’ that enables the Senate to ful- As part of its advice and consent func- it is not going by the rules of the Par- fill its constitutional responsibilities. tion, the Senate has done that since liamentarian. Outside the Capitol, the gravity of 1795, when it rejected George Washing- Do listeners understand that? It is that danger may not be self-evident. akin to going to the football game and ‘‘Comity’’ may be an unused word ton’s nomination of John Rutledge to the referee and the umpire call the today, but for 200 years it has been the be Chief Justice. penalty or the touchdown and someone lifeblood of daily life in the Senate. The majority leader’s use of the word else from the crowd says, no, no, that In the Senate, comity is the glue ‘‘assassinate’’ was especially unfortu- does not count, and for us it recognizes that binds us to one another and to nate, coming in the very day that the ‘‘someone else’’ in the crowd. That that small but brilliant group of Fram- Judge Lefkow of Chicago was testi- is what they are doing. They will re- ers who met, over two centuries ago, fying to our Judiciary Committee place a Member of the Senate. We and conceived of this institution. about the brutal murders of her family have, as we do now, the distinguished They certainly knew what comity members. Senator from Tennessee sitting in the was: they came from totally different The Founders also would have coun- chair and presiding over the Senate. views of government. seled us about communication. We But that will not be true that par- They labored ceaselessly, in the heat work with members of the other party ticular day. of a Philadelphia summer, in the ulti- every day. We talk to them every day. Next they will have to break para- mate American Government Seminar, But I can’t think of one of them who graph 1 of rule V which requires 1 day’s until they created a government that has come to me over the past 2 years to specific written notice if a Senator in- was reliable, resilient—resistant to at- say, ‘‘This judicial nomination issue is tends to try to suspend or change a tack from within and without. headed the wrong way—we ought to rule. Comity among the Framers—their start talking about how to preserve our And then they break paragraph 2, overriding ‘‘agreement to agree’’ de- institution’s strengths and traditions, rule V, which provides that the Senate spite their deep differences—informed and solve the problems that these judi- rules remain in force from Congress to and nourished their efforts. They cial nominations are creating for us Congress unless they are changed in ac- worked especially hard to design the all.’’ We all know it is very late in this cordance with existing rules. Senate. contest of nuclear ‘‘chicken,’’ but it is Then they have to break paragraph 2, Their debates were all about great never too late to try. of rule XXII, which requires a motion challenges: The Framers would also have told us signed by 16 Senators, a 2-day wait, and What size would be right to enable the Sen- to minimize the distortions and respect a three-fifths vote to close debate on a ate to serve as a check on the other House the truth. Again, and again, we are told nomination. and the President too, and still place per- that there was no Republican-led fili- Then they have to break rule XXII sonal responsibility for their actions on indi- buster of the Fortas nomination to be vidual Senators? Chief Justice in 1968. There are still requirement of a petition, a 2-day wait, How long should each Senate term last, to and a two-thirds vote to stop debate on set the proper balance between the strong, three of us in the Senate today, who a rules change. independent Senate they wanted and the po- were in the Senate then, and who know They have to break scores of the tential tyranny of an aristocratic upper the truth firsthand. It demeans the rules. It will make a sham of the rules House, insulated from popular opinion? Senate and discredits the debater when

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5482 CONGRESSIONAL RECORD — SENATE May 19, 2005 someone parrots the bizarrely erro- government advances . . . freedom is President Clinton’s nominees—includ- neous White House talking points de- imperiled [and] civilization itself jeop- ing when Senator FRIST, himself joined nying such a filibuster, without having ardized.’’ in a filibuster of a circuit court nomi- the grace to check the facts. She has criticized the New Deal, nee in 2000. The Founders would also have told us which gave us Social Security, the This misreading of the Constitution to take extremely seriously what minimum wage, and fair labor laws. and Senate rules is the same kind of James Madison in Federalist No. 62, She has questioned whether age dis- distortion we have seen from the nomi- called ‘‘the senatorial trust,’ which crimination laws benefit the public in- nees they support. require[es] a greater extent of informa- terest. She has even said that ‘‘Today’s We have seen it in Priscilla Owen’s tion and stability of character.’’ senior citizens blithely cannibalize opinions twisting the law in an at- As Madison understood, Senators are their grandchildren because they have tempt to deny the insurance claim of a not the owners of this institution, but a right to get as much ‘free’ stuff as heart surgery patient, or to exempt we are more than just its occupants. the political system will permit them campaign contributors from environ- We are, its trustees, with an awesome to extract.’’ mental regulations. We have seen it in responsibility to protect that trust— Yet my colleagues say we’re wrong to Janice Rogers Brown’s twisting the this body—the Senate. That means we worry about putting Janice Rogers Constitution to claim job discrimina- must preserve what makes it work Brown on the DC Circuit, which is tion laws can’t protect Latino workers well—like extended debate and the widely regarded as the most important from ethnic slurs in the workplace. We super-majority cloture rule. court of appeals, and is just a heart- have seen it in William Pryor’s opposi- A central part of that senatorial beat away from the Supreme Court. tion to basic protections for the dis- trust is standing up to the President No one with these views should be abled, voting rights, and family and when he overreaches in the exercise of given a lifetime appointment to the medical leave—views rejected by the his power, as he has done with the few, Federal court of appeals, and certainly Supreme Court. And we’ve seen it in but important, still hotly contested not to the Federal court most respon- William Myers’ opinion that cleared circuit nominees. sible for cases affecting government ac- the way for an open-pit mine on land Finally, the Framers would say that tion. It is no wonder that an organiza- sacred to Native Americans—an opin- our endangered senatorial trust needs tion seeking to dismantle Social Secu- ion that a Federal court later said ig- comity more than ever in our day-to- rity is running ads supporting her nom- nored ‘‘well-established canons of stat- day activities and relationships. As ination to the second most powerful utory construction.’’ Madison stated, the comity the Fram- court in the country. These nominees do not deserve life- ers had in mind was—‘‘the result, not In the area of civil rights, Justice time appointments to the federal of theory, but ‘of a spirit of amity, and Brown has also written opinions that courts, where they have enormous that mutual deference and concession would roll back basic protections. In a power over the American people. More importantly, the Senate does which the peculiarity of our political case involving ethnic slurs against not deserve the bitter legacy we would situation rendered indispensable.’ ’’ Latino workers, Justice Brown wrote leave if we adopt the nuclear option. It That is what we must aspire to. That is that the first amendment prevents is not worth running roughshod over what we must accomplish if we are not courts from stopping ethnic slurs in the traditions of this institution for only to solve our present dilemma but the workplace, even when those slurs short-term political gain. It is not leave this place as least as fine an in- create a hostile work environment in worth turning our backs on our con- stitution as we found it. violation of job discrimination laws. stitutional role as a check and balance Who are the nominees that the Re- She dissented from a holding that vic- on Presidential appointments to the publicans so want confirmed that Sen- tims of discrimination may obtain courts. ator FRIST is willing to violate the damages from administrative agencies Alexander Hamilton said this about rules of the Senate? for their emotional distress. She also the need for the Senate to be an inde- They include Janice Rogers Brown, wrote an opinion suggesting that Su- pendent check on the President’s nomi- who has been nominated to the very preme Court decisions upholding af- nations. important DC Circuit, which is widely firmative action are inconsistent with ‘‘To what purpose [do we] require the regarded as the most important court laws against discrimination. co-operation of the Senate? . . . It of all the courts of appeals, and whose On workers’ rights, she rejected a would be an excellent check upon a decisions affect the rights of all Ameri- binding precedent limiting an employ- spirit of favoritism in the President, cans. She has a compelling personal er’s ability to require workers to sub- and would tend greatly to prevent the story, which all of us respect. But con- mit to drug tests. appointment of unfit characters.’’ firmation to the DC Circuit requires In another case, she wrote a dissent That’s what Alexander Hamilton said more than a compelling personal story. urging the California Supreme Court to the Senate should be—a check against It requires a record of clear commit- strike down a San Francisco law pro- overreaching by the President, not a ment to upholding the rights of all viding housing assistance to low-in- rubber stamp for the President. I urge Americans. It requires a record of clear come, elderly, and disabled people. In my colleagues to remember that as dedication to the rule of law—not re- case after case, she has sought to un- United States Senators, we are the making the law to fit a particular po- dermine the rights of the American keepers of a constitutional trust that litical view. people. is not ours to give away. That trust be- Janice Rogers Brown fails this basic It is a travesty that the majority longs to the American people. The sys- test. Her record on the California Su- leader is attempting to break the rules tem of checks and balances protects preme Court makes clear that she’s a of the Senate to confirm such nomi- them. If we give away that trust, we judicial activist who will roll back nees. It takes 67 votes to change Sen- will never get it back. basic rights. Her record shows a deep ate rules. Because the majority leader What we are witnessing in this de- hostility to civil rights, to workers’ can’t win fair and square, he is pro- bate is an arrogant power grab by the rights, to consumer protection, and to posing to break the rules in the middle Republican right. This is what happens a wide variety of governmental actions of the game. when the rightwing of the Republican in many other areas—the very issues We have heard them make every ar- Party calls the tune for the Republican that predominate in the DC Circuit. gument in an attempt to disguise their Party as a whole. We are spending days She has repeatedly voiced contempt raw abuse of power. They even claim and weeks debating five rightwing for the very idea of democratic self- the Constitution prohibits Senators judges, but not 5 minutes on what government. She has stated that from filibustering judicial nominees. counts most in people’s lives—not 5 ‘‘where government moves in, commu- But as Senator FRIST, the majority minutes on secure jobs, or healthy fam- nity retreats [and] civil society dis- leader, admitted on the floor recently, ilies, or educational opportunity. integrates.’’ She has said that govern- that’s nowhere in the Constitution. Those are not the values and priorities ment leads to ‘‘families under siege, Certainly the Republicans didn’t be- we see today from this White House war in the streets.’’ In her view, ‘‘when lieve that when they were filibustering and this Republican Congress.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5483 To them, history doesn’t matter. will have to break the invariable rule limit myself to talking about the back- Mainstream values don’t matter. Our of practice that constitutional issues ground, what this is all about, and the commitment to working families must not be decided by the Presiding history that brings us to where we are doesn’t matter. What the Republican Officer but must be referred by the Pre- today. Party cares about today is putting a siding officer to the entire Senate for In recognition that the duty imposed rightwing agenda ahead of mainstream full debate and decision; on the President faithfully to execute values, corporate interests ahead of the Throughout the process they will the law requires persons sympathetic public interest, and the agenda of the have to ignore, or intentionally give to his program, the Senate tradition- privileged few ahead of the American incorrect answers to, proper parliamen- ally has given the President great lee- dream for all. tary inquiries which, if answered in way in choosing his policymaking sub- We have approved 208 of George good faith and in accordance with the ordinates, especially those in his Cabi- Bush’s nominees to the federal courts. expert advice of the Parliamentarian, net and those in sub-Cabinet positions. Two hundred eight. But the five right would make clear that they are break- The Senate has more or less uniformly wing judicial nominees at stake in the ing the rules; followed this practice, as a matter of nuclear option have no business mak- Eventually, when their repeated rule- grace and in the spirit of cooperation, ing life-or-death, make-or-break deci- breaking is called into question, they to ensure that the executive branch sions that affect our lives. They are will blatantly, and in dire violation of functions as a team in implementing anti-worker, anti-civil rights, anti-dis- the norms and mutuality of the Sen- and enforcing the laws. ability, anti-senior, anti-consumer, and ate, try to ignore the minority leader What has been the fairly general anti-environment. and other Senators who are seeking practice with respect to the appoint- This is President Bush’s moment of recognition to make lawful motions or ment of executive branch policy- truth too. Instead of fanning the right pose legitimate inquiries or make prop- makers, however, has not always ap- wing flames, the President can end this er objections. plied to judicial nominations, and the abuse of power. He can pick judges By this time, all pretense of comity, arguments to the contrary are at odds closer to the center, not from the outer all sense of mutual respect and fair- with the separation of powers doctrine, edge. ness, all of the normal courtesies that common sense and history. We as Senators have a choice as well. allow the Senate to proceed expedi- The Constitution establishes a Su- We can break the rules and run rough- tiously on any business at all will have preme Court and gives Congress the shod over our constitutional system of been destroyed by the pre-emptive Re- power, in its discretion, to constitute checks and balances, or we can seek ac- publican nuclear strike on the Senate inferior tribunals; nowhere in the blue- commodation and compromise for the floor. print of our Government is it hinted— good of our democracy and the To accomplish their goal of using a is it even hinted; nowhere is it even strength of our Nation. The one thing bare majority vote to escape the rule hinted—that the high Court or any standing between The White House and requiring 60 votes to cut off debate, other Federal court is the President’s total control of Congress and the those participating in this charade court. courts is the Senate’s right to full and will, even before the vote, already have Some may say, well, the President fair debate. terminated the normal functioning of should have his own Cabinet. He should I urge the President, I urge the Re- have his Cabinet. He should be able to publican leadership in the Senate, to the Senate. They will have broken the choose his Cabinet. And there is con- heed the timeless words of the prophet Senate compact of comity, and will siderable weight to be given to that Micah who wrote, ‘‘What is good and have launched a preemptive nuclear point of view. But I do not think that what does the Lord require of you but war. The battle begins when the per- any of us should maintain that the to do justice, and to love kindness, and petrators openly, intentionally and re- President is entitled to have his own to walk humbly with your God?’’ peatedly, break clear rules and prece- Here are some of the rules and prece- dents of the Senate, refuse to follow court. That is the point. dents that the executive will have to the advice of the Parliamentarian, and So nothing in the Constitution sug- ask its allies in the Senate to break or commit the unpardonable sin of refus- gests that either the Justices or the ignore, in order to turn the Senate into ing to recognize the minority leader. judges should be the President’s men. a rubber stamp for nominations: Their hollow defenses to all these Let me say that again. Nothing in the First, they will have to see that the points demonstrate the weakness of Constitution suggests that either the Vice President himself is presiding their case. Justices or judges should be the Presi- over the Senate, so that no real Sen- The PRESIDING OFFICER. The Sen- dent’s men or women, as it were. In ator needs to endure the embarrass- ator from West Virginia. fact, the Constitution refutes this no- ment of publicly violating the Senate’s Mr. BYRD. Mr. President, how much tion by granting Federal judges life- rules and precedents and overriding the time do I have? time tenure and by making their com- Senate Parliamentarian, the way our The PRESIDING OFFICER. The mi- pensation inviolable. Presiding Officer will have to do; nority has 1 hour 50 minutes remain- The men who met in Philadelphia in Next, they will have to break para- ing. that hot summer of 1787 were practical graph 1 of rule V, which requires 1 Mr. BYRD. I wonder how much time statesmen. They were experienced in day’s specific written notice if a Sen- the minority will give to me? politics, statesmen who viewed the ator intends to try to suspend or I shall proceed. principle of separation of powers as a change any rule; Mr. President, today I wish to speak vital check against tyranny. And so I Then they will have to break para- about the history of freedom of speech ask, can a rubber stamp be ‘‘a vital graph 2 of rule V, which provides that in the Senate, about the cloture rule check against tyranny’’? If the Fram- the Senate rules remain in force from which, when invoked, limits debate, a ers had intended the Senate simply to Congress to Congress, unless they are bit about the background here that endorse the President’s selections, the changed in accordance with the exist- might help all Senators if they care to Senate could have been left out of the ing rules; read or listen, and the people out there process altogether. Clearly, the men Then they will have to break para- who are listening, help them to under- who met at Philadelphia, nearly 219 graph 2 of rule XXII, which requires a stand a little more about what this is years ago, had in mind a more sub- motion signed by 16 Senators, a 2-day all about. stantive role for the Senate. wait and a 3⁄5 vote to close debate on It is a matter of very great interest The Senate has more than once the nomination itself; to the country and to the Republicans flexed its political muscles to reject a They will also have to break rule and to Democrats and to independents, Presidential nominee, including the re- XXII’s requirement of a petition, a to people from all walks of life. It is in jection or withdrawal of 15 Cabinet wait, and a 2⁄3 vote to stop debate on a that spirit that I seek to talk just a lit- nominations and 26 Supreme Court rules change; tle while about this subject which is of nominations. Confirmation power is Then, since they pretend to be pro- great concern. I hope to have more to one of the major constitutional provi- ceeding on a constitutional basis, they say on another day, but today I will sions that separates the Senate from

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5484 CONGRESSIONAL RECORD — SENATE May 19, 2005 the other body, the House of Rep- ton’s words, ‘‘an efficacious source of gaining time; with which view he spun resentatives. It has been the subject of stability’’ in the Government of the out the debate till it was too late to numerous articles, books, novels, and Republic. conclude anything that day.’’ even motion pictures. Mr. President, in his Manual of Par- The sun went down. That ended the As early as Henry IV, who reigned liamentary Practice, Thomas Jefferson debate. from 1399 to 1413, English Parliaments quoted ‘‘Mr. Onslow, the ablest among Filibusters were also a problem in effectively controlled the King’s royal the Speakers of the House of Com- the British Parliament. In 19th century council and household. Several officials mons,’’ as follows. Here is what Mr. England, even the members of the Cab- of Henry IV’s household were dismissed Onslow had to say: inet accepted the tactics of obstruction at the insistence of the House of Com- It was a maxim he had often heard when he as an appropriate weapon to defeat mons. Both the household officials and was a young man, from old and experienced House of Commons initiatives that the members of ‘‘the great and con- Members— were not acceptable to the government. tinual council’’ were named in Par- like myself— Now, in this country, I say to the liament. that nothing tended more to throw power Presiding Officer and the distinguished So I say to the distinguished Senator into the hands of administration, and [into Senator from Tennessee and my other from Tennessee, who presently presides the hands of] those who acted with the ma- colleagues, experience with protracted jority of the House of Commons, than a ne- debate began early. In the first session over the Senate, with a degree of glect of, or departure from, the rules— aplomb and grace and dignity that is so of the First Congress—that is going ‘‘the rules’’— rare as a day in June, that the Senate back quite a ways. I have only lived routinely debated nominations in of proceeding; that these forms, as instituted one-fourth of all the time that has by our ancestors— closed session in the beginning. transpired since that First Congress John Tyler was the first Vice Presi- yours and mine— convened. But in the first session of dent to become President on the death operated as a check and control on the ac- the First Congress, for example, there of the incumbent. Early in the Tyler tions of the majority, and that they were, in was a lengthy discussion regarding the administration, President Tyler broke many instances, a shelter and protection to permanent site for the location for the the minority, against the attempts of power. with the Whig majority in the Senate, capital. How about that. Fisher Ames, Now, Thomas Jefferson himself wrote which thereafter frustrated his efforts a Member of the House from Massachu- that whether the rules of a legislative to appoint his own supporters to office. setts, complained that ‘‘the minority body: Nothing in the Senate’s history has . . . make every exertion to . . . delay ever, ever matched the spectacle that . . . be in all cases the most rational or not the business.’’ That is what we are is really not of so great importance. It is occurred on March 3, 1843, the last day talking about. That sounds like a fili- much more material that there should be a buster, doesn’t it? Senator William of the Senate’s session, when President rule to go by than what that rule is; that Tyler came to the Capitol, just down Maclay of Pennsylvania complained there may be a uniformity of proceeding in that ‘‘every endeavor was used to the hall, to sign legislation and to sub- business not subject to the caprice of the waste time.’’ mit last-minute nominations. Speaker or captiousness of the members. It That sounds like a filibuster, doesn’t Tyler nominated Caleb Cushing to be is very material that order, decency and reg- it? Well, long speeches and other ob- Secretary of the Treasury, not once, ularity be preserved in a dignified public structionist tactics were more char- not twice, but three times that night. body. acteristic of the House than of the Sen- Are you listening? Three times. And Therefore, Mr. President, all legisla- ate in the early years. So it started each time, the Senate rejected Cushing tive bodies need rules to follow if they over there. But the House, on February by an even larger margin than before, are to transact business in an orderly fashion, and if they are to operate fair- 27, 1811, ‘‘decided . . . that after pre- the votes being, as recorded in the Sen- vious question was decided in the af- ate Executive Journal, 19 for to 27 ly—I have heard that word used a good bit here—efficiently, and expeditiously. firmative, the main question should against, then 10 for to 27 against, and not be debated.’’ So there you have it. on the third time, 2 for Caleb Cushing On April 7, 1789, the day after a quorum of Senators had appeared—so They moved the previous question. and 29 against. That still is done in the other body. Three times President Tyler named you see the Senate just goes back to April 6, 1789—a special committee was The practice of limiting debate dates Henry A. Wise to be Minister to back to 1604—my, that is over 400 France—that same evening—and Wise, created to ‘‘prepare a system of rules for conducting business.’’ The com- years; that is 401 years—when Sir too, was thrice rejected. Henry Vane first introduced the idea in Senator Thomas Hart Benton re- mittee consisted of Senators Oliver the British Parliament. Known in par- Ellsworth of Connecticut, Richard ported that ‘‘nominations and rejec- liamentary procedure as the ‘‘previous Henry Lee of Virginia, Caleb Strong of tions flew backwards and forwards in a question,’’ it is described in section Massachusetts, William Maclay of game of shuttlecock.’’ In all—in all— XXXIV of Jefferson’s Manual of Par- Pennsylvania, and Richard Bassett of the Senate turned down four of Presi- liamentary Practice, as follows. Here is Delaware. All five of these committee dent Tyler’s Cabinet nominees: in addi- the way Thomas Jefferson explained members were lawyers. Each had tion to Cushing, David Henshaw as Sec- the previous question: retary of the Navy, James M. Porter as served in his State legislature, the pro- When any question is before the House, Secretary of War, and James S. Green cedures of which were indebted to colo- any Member may move a previous ques- as Secretary of the Treasury. And that nial and English experience. Two had tion . . . — ain’t all. The Senate turned down four served in the Continental Congress, That is the way it is done over in the of President Tyler’s nominees to the which was also indebted to colonial and House, Mr. President: Mr. Speaker, I Supreme Court: John C. Spencer, Reu- English precedents, and three had par- move the previous question— ben H. Walworth, Edward King, and ticipated in the Constitutional Conven- whether that question (called the main ques- John M. Read. It is a record of rejec- tion, whose members had created the tion) shall now be put. tion unmatched—unmatched—by any Senate. Mr. Speaker, they say in the House: I other President. What a spectacle. Obstructive tactics—we have heard a move the previous question. ‘‘History,’’ wrote the poet Byron, lot about that lately—in a legislative Jefferson went on to say: ‘‘with all her volumes vast, hath but forum, although not always known as If it pass in the affirmative, then the main one page.’’ Byron was saying there that filibusters, are of ancient origin. Plu- question to be put immediately, and no man history does repeat itself, so it only tarch reported that when Caesar re- may speak anything further to it, either to needs one page. turned to Rome after his sojourn in add or alter. We should do well, then, Mr. Presi- Spain, his arrival happened at the time That is Thomas Jefferson speaking dent, to look backward into the past of the election of consuls. ‘‘He applied through his writing. The journals of where we shall find that due diligence to the Senate for permission to stand the Continental Congress record that by the Senate in fulfilling its ‘‘advice candidate,’’ but Cato—Cato the Young- the previous question was used in 1778. and consent’’ responsibility in the ap- er—strongly opposed his request and Get that. This is the Continental Con- pointment process has been, in Hamil- ‘‘attempted to prevent his success by gress. When did it first meet? It first

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5485 met in 1774, the First Continental Con- On February 26, President Wilson—I Senate be closed by a vote of three- gress. So the journals of the Conti- was born during one of the administra- fifths of the Senators duly chosen and nental Congress record that the pre- tions of Woodrow Wilson—President sworn, except in the case of a measure vious question was used in 1778. Sec- Wilson appeared before a joint session or motion to change the rules of the tion 10 of the rules of the Continental of Congress to request legislation au- Senate, when a two-thirds vote of Sen- Congress read: thorizing the arming of merchant ators present and voting would be re- While a question is before the House, no ships. The President announced that quired to close debate. motion shall be received, unless for an the rules of the Senate would have to On March 7, 1975, the Senate adopted amendment, for the previous question, to be revised—now get this—the rules of my substitute providing that three- postpone the consideration of the main ques- the Senate would have to be revised be- fifths of all Senators chosen and sworn tion, or to commit to. fore he would call a special session of could invoke cloture. This provision The rules adopted by the Senate in the entire Congress to deal with the applied to all measures except those April 1789 included a motion for the war emergency. And so, Mr. President, amending the rules of the Senate which previous question. According to histo- the fate of the unlimited debate was still required a two-thirds vote of Sen- rian George H. Haynes, when Vice sealed. ators present and voting. President Aaron Burr delivered his The principal responsibility for the Four years later on February 22, 1979, farewell address to the Senate in cloture resolution rested with the new the Senate agreed to a resolution that March 1805—200 years ago—he, Aaron Democratic majority leader, Thomas I submitted establishing a cap of 100 Burr, the Vice President of the United Martin of Virginia. Under his guidance, hours of consideration once cloture had States, ‘‘recommended the discarding a bipartisan committee of the Senate’s been invoked on a measure. leaders drew up a proposal providing of the previous question,’’ because in Under my resolution, each Senator that a vote—get this—by two-thirds of the preceding 4 years during which he would be entitled to 1 hour of time. those present and voting could invoke had presided over the Senate, it had Senators could yield their time to the cloture on a pending measure. Two- ‘‘been taken but once, and then upon majority or minority floor managers of thirds of those present and voting. an amendment.’’ the bill or to the majority or minority So, Mr. President, I say to the Sen- By a vote of 76 to 3 on March 8, 1917, leaders. Except by unanimous consent, ator from Tennessee, who is presiding, after only 6 hours of debate, the Senate none of the designated four Senators and other Senators, when the rules of adopted its first cloture rule. Mr. could have more than 2 additional the Senate were codified in 1806—that President, 1917, that was the year in hours yielded to him or to her. These was the first revision of the rules, in which I was born. Senators in turn could yield their time 1806—reference to the previous ques- In 1949 now, President Harry S. Tru- to other Senators. If all available time tion was omitted. The previous ques- man sought to clear the way for a expired, a Senator who had not yielded tion allowed the Senate to terminate broad civil rights program, and his time and who had not yet spoken on debate: Mr. President, I move the pre- first step was to push for liberalization the matter on which cloture had been vious question. Or in the House: Mr. of the cloture rule. His efforts produced invoked could be recognized for 10 min- Speaker, I move the previous question. a bitter battle at the beginning of the utes for the sole purpose of debate. If that gained a majority, no further 81st Congress. The Senate adopted a compromise The 1979 resolution made in order debate. The previous question will be measure that proved to be less usable only those first-degree amendments voted on. than the one it replaced. It required submitted by 1 p.m. the day following In 1806, when the rules of the Senate that two-thirds of this entire Senate submission of a cloture motion, with were first codified, reference to the vote for cloture rather than two-thirds second-degree amendments in order previous question was omitted. Since of those present and voting. That was only if submitted in writing 1 hour then it had only been used 10 times 1949. The new rule differed from the old prior to the beginning of the cloture from the years 1789 to 1806, and it has in that it allowed cloture to operate on vote. never—it has never, it has never—been any pending business or motion, with restored. The substitute amendment contained the exception of debate on rules Henry Clay, in 1841, proposed the in- the current overall limitation of 30 change. This meant that future efforts troduction of the previous question. hours of consideration after cloture has to change the cloture rule would them- Here we have Henry Clay proposing been invoked. selves be subject to extended debate So that brings us up to the present that they bring back the previous ques- without benefit of the cloture provi- tion. But he abandoned the idea in the day rules with reference to debate and sion. limitation of debate in the Senate, the face of opposition. Those Senators did Now we are getting down into my not want the previous question. They current cloture rule. That puts us time. At the beginning of the 86th Con- where we are now, and I thought it did not want to terminate debate. They gress—I came to Congress during the wanted freedom of speech. would be well just to review briefly the 83rd Congress when Harry Truman was history of unlimited debate in the Sen- When the Oregon bill was being con- getting close to the end of his tenure— sidered in 1846, a unanimous consent ate and then the cloture rule limiting at the beginning of the 86th Congress, debate—the cloture rule as initially agreement was used as a way to limit Senate majority leader, Lyndon B. debate by setting a date for a vote. adopted requiring two-thirds of those Johnson, offered and the Senate adopt- present and voting; and then in 1949, When Senator Stephen Douglas pro- ed by a 72-to-22 rollcall vote, a resolu- two-thirds of those elected and sworn; posed permitting the use of the pre- tion to amend Senate rule XXII. Ap- and then again in 1975, two-thirds of vious question in 1850, the idea encoun- proved on January 12, 1959, after 4 days those Members present and voting, tered substantial opposition and was of debate, the resolution permitted that is where we are—so that we might dropped—dropped, dropped. They did two-thirds of the Senators present and have this basis for a better under- not want the previous question. They voting—going back to the very begin- standing of where we go from here. did not want to terminate debate. They ning of the cloture rule—two-thirds of wanted to be able to speak on and on the Senators present and voting to I thank you, Mr. President. I thank and on. A filibuster? Well, perhaps. close debate, even on proposals for all Senators, and I yield the floor. An effort to reinstitute the previous rules change. It also added to rule The PRESIDING OFFICER (Mr. question on March 19, 1873, failed by a XXII: COLEMAN). The Senator from Massa- vote of 25 for to 30 against. The rules of the Senate shall continue chusetts. The final impetus for a cloture rule from one Congress to the next Congress un- Mr. KERRY. Mr. President, I thank came as a result of a 1917 filibuster, one less they are changed and provided in these the Chair, and I thank the distin- of the most famous in the Senate an- rules. guished Senator from West Virginia for nals—against an administration meas- These rules, these rules in this book, his extraordinary analysis and under- ure permitting the arming of American the ‘‘Senate Manual.’’ standing of the Constitution which he merchant vessels for the duration of On February 28, 1975, I submitted a has constantly been the keeper of in the World War. I believe that was 1915. resolution providing that debate in the the Senate.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5486 CONGRESSIONAL RECORD — SENATE May 19, 2005 We are in a remarkable moment of victim, denounces it and excites the We are not here as an institution to confrontation. This is a great institu- public odium and the public hatred to protect a party. We are here to protect tion, or at least it always has been, and conceal its own abuses and encroach- collectively the Government of the it is looked up to by people all over the ments. United States of America that is made world. Caught up as we are now in this James Madison said: Where the whole up of those brilliant words that were moment of partisan ideological divi- power of one department is exercised fought over so diligently and remark- sion of a raw reach for power, the Con- by the same hands which possess the ably in Philadelphia and which have gress itself is daily dropping in its re- whole power of another department, served us so well all of these years. gard by the American people. Rather the fundamental principles of a free Now all of a sudden in 2005, feeling than reaching across the aisle to grap- constitution are subverted. . . . The ac- the flush of victory in an election that ple with the real crises that face our cumulation of all powers, legislative, was close, controlling two branches of Nation, the Republican leadership executive and judiciary, in the same Government, elected officials, people keeps moving unilaterally to change hands, whether of one, a few or many, who serve at the grace of that Con- the way this institution has worked, and whether hereditary, self-appointed stitution for a brief period of time, at and not for the better. or elective, may justly be pronounced the sufferance of the people who vote Those of us who have had the privi- the very definition of tyranny. for us, those people are choosing to lege of being here for some period of What we are going to see if this hap- serve the moment, not to serve history, time—I have been here for 22 years; pens is the judiciary of the United not to serve precedent, not to serve Senator BYRD has been here almost 50; States entirely put into the hands of common sense, not to serve even the Senator KENNEDY, Senator STEVENS, the Presidency, period. The advice and real interests of the American people, and others have also served for a sig- consent will be wiped out, barring dis- but to serve a narrowly defined, elect- nificant period of time—but brief as my plays of courage that we have not seen ed, official, leadership-determined, ide- stay has been, I find myself now I recently, because people will come, as ological purpose. think No. 18 in seniority, which means they did in our committee most re- I believe the real interests of Ameri- 82 Senators have come and gone during cently, to say, well, we just had an cans are best served by remembering the time I have been here. I have had a election and the President won and the that the greatest strength and the chance to know many of them going President has the right to his appoint- greatest virtue of our democracy is not back to the time of Barry Goldwater, ments, that is it, end of issue. Gone, that it gives power to the majority, John Stennis, Russell Long, and oth- the divisions; gone, the test; gone, the which is easy to exercise, easy to un- ers. Never in that whole period of time judgment we were supposed to apply as derstand, easy to abuse; the great vir- I have served have I ever seen this in- a separate and coequal branch of Gov- tue of the American system of Govern- stitution behaving the way it does ernment. ment and of our democracy is the pro- today. That is what the Founding Fathers tection it provides to the minority. Colleagues who came to do the same wrote. They did not give the President That is what is special about America. good as colleagues on the other side of the ability to have whoever that Presi- That is what makes us different from the aisle, locked out of conference dent wants. That is what is written everybody else. That is what lives are committees, hearings that do not take into the Constitution, that every single being lost for, to tell people in Iraq and place when they ought to; oversight one of us went to the well of this body Afghanistan, this is what you ought to that does not occur as it used to. This and raised our hands and swore to up- embrace—the full measure of democ- institution is being damaged daily by hold. racy, not some limited tricky little the partisanship, the bitter ideological We did not swear to uphold the ma- measure where, in the flush of victory, divide that is preventing good people jority leader. We did not swear to up- you change the rules. on both sides of the aisle from doing hold the President. We did not swear to What would we say about this if it good business for the American people; uphold our party. We swore to uphold was another country that we had from finding real solutions to the real the Constitution of the United States, helped to be the country they are, em- problems of real concern to average and that is our duty. bracing our democracy, but they start- families all across our country, who Lord Acton said it maybe best: All ed to play those kinds of games and cannot pay their health care bills, who power corrupts. Absolute power cor- there was suddenly an abuse of rules are losing jobs abroad, who worry rupts absolutely. that had been set up that everybody about the twin deficits of the budget of Thomas Jefferson said: I hope our understood were there to make the de- our country and of our trade; who see wisdom will grow with our power and mocracy work effectively? extraordinary threats to community as teach us that the less we use our power It is precisely the protection of the kids do not get the education they the greater it will be. minority that makes our democracy so ought to. All this time we have been If my colleagues want to use the respected and so awesome to people all spending weeks, if not months, caught power of ending a filibuster, just have over this planet. up discussing a nuclear option, dis- the filibuster for week after week and This is a dangerous time for our de- cussing a few judges out of the two let people stand up and make their ar- mocracy. What is at stake here is hundred, 208 or so, who have been nom- guments. If the arguments have no cur- something far greater than the con- inated and approved by this President. rency, believe me, between the press, firmation of a few judges. Let there be The Senate is now watching this public opinion, the bloggers, and C– no doubt that line was drawn clearly struggle take place, countless hours SPAN, this country will rise up and here this morning because the deputy consumed by an effort to change the they will get their 60 votes if they de- leader offered to have four judges con- rules by breaking the rules. If my col- serve them. That is an up-or-down vote firmed. We could have confirmed four leagues want to change the rules, use of its own kind. judges right here, today, this morning. the rules to change the rules. Do not If it were compelling enough, as it No, no, no. This is a division. This is subvert the system. Do not play a cute was with the Civil Rights Act, or com- a moment of confrontation being parliamentary game that has been un- pelling enough as it has been in other sought by the leadership on the other touched over 200 years. great confrontations in this body, we side of the aisle. What is at stake is This is a stunning moment. The prob- have always found our way to make it something far greater than any of the lem is that words spoken in this Cham- happen. We have always done it with- individual judges. It is defined by the ber do not even fully convey the impor- out the rules. We are a Nation that has refusal to accept the offer to do those tance of this moment. This is, in fact, listened to some remarkable men and judges today. We could have gotten the one of those times the Founding Fa- women in remarkable debates about President’s percentage up from 95 to thers and countless other statesmen of how we as a Nation are different in bal- whatever, 98 percent. But, no, we do history have warned us against. ancing power and protecting the people not want that. That will change the Henry Clay said: The arts of power and the institutions that we set up to focus. and its minions are the same in all protect the people. We are not here as No matter how much time is spent on countries and in all ages. It marks its an institution to protect an ideology. the life story of Priscilla Owen, we all

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5487 know the choice of this particular glossed over as the debate sort of devel- the media if the value of truth had not judgeship and of just staying on this ops or drops down into a competition of been so diminished over the last years. judgeship and not trying to have other hollow sound bites. But script and We have a budget that comes trillions judgeships represents, in fact, a choice. sound bite are not what should dictate of dollars short of counting every dol- It is a smokescreen for what this fight what happens here, not in the Senate. lar we plan to spend, but, oh no, there is really all about. It is not about these Conscience and principle ought to dic- is no accountability. We have a budget few judges. We could have confirmed tate what happens here. There have to that doesn’t even count the interest on those judges. But the Republican lead- be Senators prepared to stand up and the debt. Find me an accountant in a ership is fundamentally determined to do their duty as U.S. Senators, not business in America who doesn’t put deny the minority the right to hold the Senators of their party. the interest on the debt that they owe Executive accountable for such judg- My distinguished colleague, Senator in the accounting, and they would be ments as we might make about the VOINOVICH, recently showed courage in fired. We do not do it. No account- lifetime appointment of those judges. the Foreign Relations Committee when ability. I heard both sides out here. Some he suddenly stopped the proceedings of We have had a Medicare actuary who Members of our side did call for up-or- the committee and he said: I am not was forced at risk of losing his job to down votes when that was the argu- comfortable with what is happening lie about what the costs would be of a ment that best served them. But, guess here. My conscience tells me we ought prescription drug bill and lie to the what, when they didn’t get it, they to stop and take a better look. Congress. No accountability. We have didn’t call for a change in the rules, Guess what happened. He was vilified had falsified numbers in Iraq, on every- and they did not try to break the rules on talk radio and in certain partisan thing from the cost of the war to the to change the rules. They used their circles for having gone off script. number of troops that have been trained to the slam dunk on intel- best argument, but they respected the Senator CHAFEE of Rhode Island, 4 ligence—no accountability. We have an institution. years here, stands up and says: Wow, That is not what is happening today. that is the first time in 4 years I have administration that continues to want So we can forget about who said what ever seen anybody do that. to fund fake newscasts paid for by the when. The real fight is about the Sen- What? The first time in 4 years a American people, without disclaimer, and mislead people across America. ate. The real fight is about the Con- Senator saw another Senator stop and In fact, the administration’s willing- stitution. The real fight is about who think for himself and exercise con- science and go off script? What kind of ness to consistently abandon the truth we are and what kind of country we are I think has done great damage to the statement is that about what has hap- going to be and how we behave and American people’s willingness to be- pened here? It is not controversial, my what kind of example we set to young lieve anything any of us say. They are friends. It is a sad statement about the kids in school today who read the his- less willing to listen. They are less Senate, and it underscores what is hap- tory books and dream someday of being willing to trust or take anything said pening here now. a Senator and perhaps joining the seriously. Independence and conscience and world’s greatest deliberative body. Now we find ourselves in a struggle principle are really what is at stake This is about George Bush and Karl between a great political tradition in Rove and the Republican leadership here, the independence of the Senate, the United States that seeks to find and their quest for absolute control the independence of the judiciary from the common ground, do the common over who goes to the Supreme Court an administration that is just hell-bent good, and we have a new ethic on any and to the judgeships across this coun- for leather determined to get its way. given issue, where any means justifies try. This is about carrying, beyond this Heavens knows what leverage will be the ends of victory no matter what. It branch of Government, power into an- exerted in these next hours as we see so is a new view that says, if you don’t other branch of Government that is much on the table, with military bases like the facts, just change them. If you supposed to be separate. This is about closing and other issues—who knows? can’t win by playing by the rules, just the gratification of immediate ideolog- Independence of the Senate, a special rewrite them. Witness what happened ical goals and the pursuit of power, re- institution in our Government, a place with TOM DELAY. The new view says if gardless of the long-term consequences where things purposefully slow down, you can’t win a debate on the strength to the Senate, the Congress, or the where they find their balance—that is of your arguments, then go ahead and Constitution of the country. To get what the Senate was created for. demonize your opponents regardless of what they want, the leadership has ac- It is surprising and disturbing that whether it is true. The new view says it quiesced to outside forces. Not even the members of the Republican leadership is okay to ignore the overwhelming precedents and history and quality of know what is at stake, but they have public interest as long as you can get this institution are guiding them. It is actually worked with the Republican away with it. an outside hand. administration to spreads things that This time the Republican leadership As John Danforth, with whom many aren’t true. I don’t know what hap- has gone the farthest to get away with of us had the privilege of serving here, pened to truth around here. I don’t it, hoping to convince Americans that a greatly respected former Republican know what happened to truth in the by breaking the Senate rules, they are Senator—he was George Bush’s choice discussion of great issues before this actually acting to defend the Constitu- as a special envoy to Darfur. He was country. tion, honor the words of our Founding George Bush’s choice to go to the But the truth is, in the end, none of Fathers, and avert a judicial crisis. United Nations. He is, above all, as all the constitutional issues that have This debate is not fueled by an effort of us know, a man of enormous faith, a been put forward—and today’s Repub- to protect the Constitution. It is fueled respected minister, and a leader in his lican leadership—none of them stand by ideology. It is not fueled by a short- church. Here is what he wrote a few up. They do not stand scrutiny. They age of judges on the bench because, as weeks ago: are hollow, tortured, poll-tested state- the ranking member of the Judiciary The problem is not with people or churches ments. The whole argument about the Committee has made clear, we have that are politically active. It is with a party Constitution and up-or-down votes or the best record of appointing them and that has gone so far in adopting a sectarian ‘‘unprecedented’’—the word ‘‘unprece- the lowest vacancies in years. agenda that it has become the political ex- dented’’ has been used. They sound The facts have been repeatedly tension of a religious movement. good, but they are not true, and we cleared up, again and again, and re- So spoke Senator John Danforth, Re- know it. Yet Senators continue to fall peatedly they are brushed aside with publican. in line, turning out the script, turning the old adage that if you throw enough Yet, despite Senator Danforth’s out the phases that have to be re- mud and you repeat something that is warning, most of my colleagues stay peated. It is not a true representation not true enough, enough people may right on script in this fight for history, of the Constitution, of history, or the come to believe it. Over 95 percent of this fight for principle, and this fight rights of Senators. all judges already approved. I have for rights. On script, they allow our Personally, I believe there would be a been here since 1985 and I have prob- cherished principles to be abused and lot more outrage in the Nation and in ably voted for a thousand judges. I

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5488 CONGRESSIONAL RECORD — SENATE May 19, 2005 have not counted them all. For Ronald any President is so special as to be ex- that the Constitution mandates the Reagan, for George Herbert Walker cused from the scrutiny of the minor- will of the majority always trumps the Bush, for President George Bush. What ity or granted immunity from the tools minority, I don’t hear the wisdom of have we got? Ten who have not been of democracy that protect that minor- our Founding Fathers. I don’t see or confirmed? ity. hear a respect for what happened in The Bush administration and their I didn’t win, but I can guarantee this: 1795. I don’t hear the same blind activ- allies in Congress hope to get away Had I been President, I would not have ism that characterizes the judges they with this by selling words to the public contemplated supporting or sending a intend to enforce on the Federal bench. on a ‘‘team’’ the public would never request to change what I have viewed The actions of some Senators, in fact, buy if there was a referee who put real as something of value in the entire today come closer to rewriting the facts in front of the American people. time I have been here in the Senate. Constitution than defending it. Unfortunately, words with great mean- Never would have occurred to me. It Another argument we have heard is ing—Constitution, Founding Fathers, would have occurred to me to send peo- that the filibuster itself is unconstitu- history, precedent—all of these are ple up here who could win the support tional. That has been made. That argu- being twisted and cheated of their full of people on both sides. It would have ment is deeply flawed. The Constitu- meaning and of their full import in the occurred to me to bring the members of tion in Article I, section 5 granted each process. the Judiciary Committee together and house the power to ‘‘determine the In the end, the American people are sit them down and work together to rules of its proceedings.’’ That is the being underestimated by this adminis- come to a common understanding of Constitution of the United States. tration. They may work their will what sort of standard we ought to Every Senator went down there, here; I don’t know yet. We do not apply and let the American people raised his or her hand, and swore to de- know. Certainly they have a lot of share that standard. fend the Constitution. And the Con- cards to play. But in the end, Ameri- There is nothing in our Constitution stitution says we have the power to de- cans value the Constitution, and over or in history to suggest the President termine our rules and we have a rule time this will be felt. In the end, Amer- ought to be granted immunity from the by which we determine the rules, and icans understand that the strength of tools of democracy. And that is what the current rule says you have to have our democracy is best judged by the en- will happen. a supermajority to change the rules. during strength of our minority and its My colleagues are well aware that But, no, in the flush of victory, in a ability to be heard. And Americans the power of advice and consent is moment of ideological excess, people cherish the ability of the minority to granted to the Senate and the Con- are going to come in and change the be heard. stitution says absolutely nothing rule by breaking the rule of the Senate When Americans first heard the term about how the Senate will proceed to that the Constitution itself enshrines. ‘‘nuclear option,’’ they kind of re- provide advice and consent. And the Shame. That is a disgrace to the oath coiled—appropriately. They were con- words advice and consent are there in and a disgrace to the history and a dis- fident that dismantling the filibuster their duality because advice is one grace to what this institution stands and silencing the minority would have thing and consent is another. You can for and to the quality of our democracy as catastrophic an effect on our democ- withhold your consent or you can give that we export at the lives of young racy as a nuclear blast would on our se- your consent. You can say yes, or you Americans abroad. It is wrong, fun- curity. But the majority’s action was can say nothing if you do not vote. And damentally wrong. not to back off and to say, okay, we if you do not vote, you have withheld Over the past 200 years, our prede- will play by the rules. The majority’s your consent. reaction was to change the slogan. So cessors in the Senate have taken the It didn’t take long before the new role of ‘‘consent’’ very seriously. They in an act of transparent hypocrisy, the Congress exercised its constitutional minority changed the slogan from ‘‘nu- have created time-tested rules to as- powers in 1795. Senators who were sure the rights of the minorities and to clear option’’ to ‘‘constitutional op- friends and colleagues of the Founders tion.’’ George Orwell would be pleased. balance the power of government. With themselves, who surely knew their in- a hold, a so-called hold, a single Sen- They embarked on a series of hollow tent, turned around and defeated arguments based on mythical constitu- ator can delay a Presidential nominee. George Washington’s nomination of A single committee chairman can tional provisions confident that if you George Rutledge to be the Chief Jus- just say it, somebody will believe it. block a nomination by simply refusing tice of the Supreme Court. In 1968, Re- to hold hearings. You can change the slogan, but you publican Senator Robert Griffin cap- cannot change the fact that dimin- I saw Senator Helms do that any tured the spirit of that event when he number of times. I tried to get a hear- ishing the rights of the minority di- said: minishes the spirit and the substance ing. We tried to get the possibility of a That action in 1795 said to the President of our Constitution and the foundation Governor of the United States of Amer- then in office and to future presidents, don’t ica, the Governor of Massachusetts, of our Government. Argument after ar- expect the Senate to be a rubber stamp. We gument put forward by the Bush Re- have an independent and coequal responsi- Bill Weld, nominated to be the Ambas- publican leadership is just plain false. bility in the appointing process and we in- sador to go to Mexico. Senator Helms: False. I have heard it argued that our tend to exercise that responsibility as those no hearing. Wouldn’t hear of it. It Constitution mandates specific pro- who drafted the Constitution so clearly in- could not happen. Nomination killed. tocol of voting for judges. No. They tended. What is this game that is being have used their new catchphrase, up- The Constitution did not mandate a played back and forth about who said or-down votes, hundreds of times in re- rubberstamp for George Washington what, when? We all know how this cent days. But those words do not ap- and the Constitution doesn’t mandate place has worked all these years. These pear once in our Constitution. They are a rubberstamp for George Bush today. rules were not created by the Demo- not even subliminally in the Constitu- In 1795, the rejection of Washington’s cratic Party when George Bush was tion in the advice and consent and sep- nominee was heralded as the Constitu- elected President. The filibuster was arateness of power given to the Senate tion working, not failing. There is no used as early as 1790 by Senators from and the right of the Senate to make its doubt that an active, coequal partner- Virginia and South Carolina who fili- own rules. ship was intended. That resounding re- bustered against a bill to locate the No one should be fooled. Those jection of George Washington, our rev- first Congress in Philadelphia. That phrases do not mean constitutional. olutionary leader, helped to seal the was a filibuster of one because in 1790, They do not mean democratic. They do death of the monarchy in this country. as Senator BYRD has pointed out, you not mean fair. They are phrases that The genius of empowering the Senate needed unanimous consent to end the are code for dissent-proof, minority- and the minority was that by limiting debate. They did change that rule, but proof, and filibuster-proof. There is the executive, the Senate legitimized they changed that rule by using the nothing in our Constitution or our his- the executive. So when I hear my col- rules of the Senate, not by breaking tory to suggest that the nominee of leagues come to the Senate arguing them.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5489 Think about it. Those legislators and The integrity of this Senate is does not make it all right, but it is the friends and even the Founders them- threatened when the majority at- way it works as we fight this process of selves permitted a filibuster of one. tempts to change the rules by breaking finding people who meet the consensus Knowing that, today’s activist argu- the rules. The balance of power is of the Senate. ments buckle under the weight of his- threatened when the power of advice Did you hear the minority then hide tory. The unfortunate truth is that and consent is gutted. It will be gone. behind a mythical constitutional some Senators have now fashioned Whatever nominees they want will be value? No. Did you hear the minority themselves as activist legal scholars confirmed, unless you happen to find a stand up and assert a constitutional using a false reading of the Constitu- few people who will stand up to the violation or the rules of the Senate tion to paint their opponents as ob- pressure exerted on their States’ need ought to be changed? No. The majority structionists while pursuing their po- or their reelection need or the other leader himself has voted to filibuster a litical agenda at the expense of our de- needs that the Founding Fathers want- nominee. It does not matter whether it mocracy. ed to protect Senators against. is 1, 2, or 10 filibusters, a filibuster is a I think some of my colleagues forget Our democracy is threatened when filibuster. that the Senate was designed specifi- we set the dangerous precedent that President Johnson’s nominee to be cally to be the moderating check on a minority rights will be silenced at the Chief Justice of the Supreme Court, President. And guess what. We have convenience of the majority. I believe Abe Fortas, was defeated with a fili- done unbelievably well as a nation our courts and the justice this rule is buster. these 200 years. We are the envy of peo- meant to deliver are threatened, in the Tennessee Republican Howard Baker ple all across this planet. There is not end, by some of these judges who have articulated the minority’s position one of us whose heart does not fill with been nominated. saying: pride, who is not astounded at what we As I said, that is not what this is fun- The majority is not always right all of the can do and have done, and what we can damentally, in the end, about. It is time. And it is clear and predictable that the achieve in America, and the stories of about getting everything you want people of America, in their compassionate individual Senators in this Chamber when you want it. wisdom, require the protection of the rights who have risen from adverse cir- I will wrap up in a moment, Mr. of the minority as well as the implementa- tion of the will of the majority. cumstances, and nothing, to be able to President. represent people in their States. It is a Some of my colleagues have argued Throughout our history, Presidents stunning story. It is a story based on that Democrats filibuster these judges and majorities have always had to gov- that respect for the law and based on because we simply dislike them or dis- ern a nation where minority rights are the mutual respect that has always agree on ideology or policy. Well, there protected. Until this day, Presidents of guided this great institution. I think may be some disagreement on things the majority have respected that tradi- some of my colleagues have lost track they have said or the way they have tion. They were humbled by it. They of that. approached their courts. We saw what were inspired by it, by the lessons of My colleagues also forget, as they de- Attorney General Gonzales has said history that colleagues seem to have monize the filibuster, it has been a about Priscilla Owen, that her dissent forgotten today. force for the good. Farmers don’t for- in In re Jane Doe was an ‘‘unconscion- In 1937, President Roosevelt at- get that. There are a lot of farmers in able act of judicial activism.’’ But the tempted to court pack and assert his the Midwest in our country. They don’t point is, we have confirmed countless influence. His own party said no. forget when Senators from rural States judges with whom we disagree on Thomas Jefferson once attempted to used the filibuster to force Congress to countless issues. If we have confirmed impeach a Supreme Court Justice who respond to a crisis that left thousands over 200 judges of the President of the disagreed with his political agenda. His of farmers on the brink of bankruptcy United States, you know we do not own party said no. in 1985. The big oil companies don’t for- agree with them on many of the issues When my colleagues complain of lack get it. That don’t forget when Senators that they brought to the bench, but of precedent, remember those prece- used the filibuster to defeat massive they brought a fundamental fairness or dents. They were fair, and they were tax giveaways that they were lobbying they brought a record that we did not just. They respected the Constitution for in 1981. And I don’t forget it, when, believe ought to be disputed. and they defended the judiciary. Our 10 years ago, I came to the floor and I think we have shown our good faith predecessors stood up to their own filibustered to prevent a bill that on the approach to the confirmation of party leaders because they valued the would have gutted public health and judges. We have confirmed countless real strength of our democracy more safety and consumer and environ- judges because we believed they were than the short-term success of a polit- mental protections. That bill never impartial and responsible arbiters of ical agenda of the moment. And the passed, and we know the country is the law. It is an activist judge, it is a question for all of us here is: Are we better for it. judge with a particular—many of the going to live up to that test? Some Senators come to the floor arguments have been made; I am not Recent predecessors of Senate Repub- with a practical argument about our going to go through them now—but licans have repeatedly urged respect courts. They claim that because we those arguments have been eloquently for this—their own party Members, have not rubberstamped each and every made with specificity as to these few Members of the Republican Party, peo- one of George Bush’s nominees, the Na- judges. It is judges who want to rewrite ple of extraordinary respect and even tion faces a crisis because of a shortage our laws from the bench whom we be- reverence. Former Republican Major- of judges on the bench. It is not true. lieve are unqualified for a lifetime ap- ity Leader Howard Baker said, destroy- How can you keep coming to the floor pointment. And we stand against them, ing the right to the filibuster: of the Senate saying things that are Mr. President, not as a threat to the would topple one of the pillars of American just plain not true? Constitution, but in defense of the Con- democracy, the protection of minority rights Over 95 percent of the President’s stitution. from majority rule. nominees have been confirmed. Our We have also been accused of unprec- Former Senator Chuck Mathias said: courts today have the lowest vacancy edented acts with respect to these The Senate is not a parliamentary speed- rate they have had in years. Enough of nominations. Well, I am not going to way, nor should it be. that argument. go back into all that history. A lot of Former Republican Senator Bill What is threatened is a delicately my colleagues have talked about it in Armstrong said: balanced system that for 214 years suc- the last days. But you just cannot Having served in the majority and in the cessfully prevented the Executive from come out here with a straight face, on minority, I know it’s worthwhile to have the usurping power that was granted in either side—both sides have engaged in minority empowered. As a conservative, I good faith by the American people. And delaying some nominees—many of think there is a value to having a constraint that threat manifests itself in this nu- them were not even allowed out of the on the majority. clear option that threatens the char- committee when President Clinton was My colleagues should defend their acter, the core of this institution. in. Waited years; never got out. That judges, but do it without tearing down

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While years of wisdom and sacrifice that As the name suggests, the result of the written rules establishing the Sen- raised this Nation from tyranny and this threat is nuclear, but in many ate filibuster were not adopted until chaos and spread freedom across the ways it is also a timebomb. It is a 1806, the practice existed even in the globe. Our Founding Fathers would timebomb because, while the action first Congress. Historical records indi- shudder to see how easily forces from will be visible now, it will do irrep- cate that in 1790, Senators from Vir- outside of the mainstream now seem to arable damage to the future of this ginia and South Carolina engaged in a effortlessly push people toward conduct country. filibuster, and it has continued since the American people don’t want for Its potential effects on the oper- then. their elected leaders, abusing power, ations of the United States are well The first well-documented filibuster inserting the Government into our pri- known. But here I want to address my was conducted in 1825 by Senator John vate lives, injecting religion into de- comments to the American people be- Randolph of Virginia. For several days, bates on public policy, jumping cause they are going to pay the price Senator Randolph filibustered Presi- through hoops to ingratiate themselves for the change if it takes place here. dent John Quincy Adams’ economic to their party base, while step by step The majority leader insists on break- agenda. That was in 1825. During the and day by day real problems that keep ing the rules in order to give several 19th century, there wasn’t even an op- American families up at night fall by people, some of whom deserve far tion of a cloture to end the filibuster. the wayside in Washington. greater review, lifetime appointments It continued as long as people had the Congress and our democracy itself as high-ranking Federal judges. They breath and stamina to continue. There are being tested this week and next and could be on the bench for 30 or 40 years, was no way to stop determined Sen- will be tested in this vote. We each and they will make decisions about ators from engaging in an unlimited have to ask ourselves individually, as a your lives, your families, your rights, debate. Then, in 1917, the cloture rule matter of conscience, what are we pre- and the future of your children. They was adopted, which established a proce- pared to do? I have attended the Senate will make decisions about our lives, dure to end debate only upon a vote of prayer breakfast with colleagues here. such as: Will clean air rules be enforced a supermajority. Through all of these I know this is a place of great faith and against polluters. I hope so. I would years, through every crisis, the Amer- a place of real concern. I ask my col- like to know my grandchildren can ican tradition of the filibuster has en- leagues to look into their souls and ask breathe the air and not be harmed by dured. It endured through the War of themselves, is this the right thing to it. I have one grandchild who is asth- 1812, the Civil War, Reconstruction, be doing for the long-term interests of matic. My daughter, when he goes to two world wars, the Great Depression, our Nation? play a game or engage in a sport, al- the civil rights movement. Yet because For those in this Chamber who have ways checks to see where the nearest of a few of President Bush’s judicial reservations about the choices their emergency clinic is. nominees, we are being asked to throw leadership has made and worry about So do we want to leave our kids with out the filibuster safeguards of the the possible repercussions on our Con- air that is polluted, with drinking huge minority. It makes no sense. stitution and democracy, stop over the water that is contaminated? Will we We have heard claims that it is un- weekend and look at history and find have health care? Will we still have precedented to mount a filibuster on a the courage to do what is right. His- strong constitutional rights? That is judicial nominee. It can be said, but it tory has always remembered and found what this is about. We got lost in how is wrong, and the evidence is on the a place for those who are courageous, long the filibuster rule has been in ef- Senate’s own Web site. and it will remember the courageous fect and how devastating it will be on I quote from a statement made ear- few who live up to their responsibility the process. But it goes much deeper lier by the senior Senator from Mis- now and speak truth to power when the than that. These are critical questions, souri. Mr. BOND said: and these are the judges who will be Senate is tested, so that power doesn’t Mr. President, I think the facts are clear. go unchecked. answering those questions. They might You have heard this many times. Almost ev- The Senate and the country need even one day be asked to help elect a erything has been said but not everybody has Senators of courage who are prepared President. said it, so I want to go over some of the facts to make their mark on history by When I was a soldier 60 years ago and that I think are very, very important. For standing with past profiles in courage we dropped the earliest version of the 214 years, judicial nominations have come to and defending not party, not partisan- nuclear bomb, called the atom bomb, the Senate floor and have been considered ship, but defending principle, defending we celebrated. We knew we could save without filibuster. the Constitution, and defending democ- thousands of Americans from dying in I ask unanimous consent that a table racy itself. the fight to vanquish our then enemy, that shows there were 14 judges whose I yield the floor. Japan. nominations were filibustered since The PRESIDING OFFICER. The Sen- With this nuclear option, the major- 1968 be printed in the RECORD. ator from New Jersey is recognized. ity leader is threatening to annihilate There being no objection, the mate- Mr. LAUTENBERG. Mr. President, over 200 years of American tradition in rial was ordered to be printed in the when I first came to the Senate, our the Senate by getting rid of the right RECORD, as follows: TABLE 3.—NOMINATIONS SUBJECTED TO CLOTURE ATTEMPTS, 1968–2002 [Executive branch nominations in roman; Judicial nominations in italic]

Cloture mo- Congress and year Nominee Position tions filed Outcome of cloture attempt Disposition of nomination

(1) 90th, 1968 ...... Abe Fortas ...... Chief Justice ...... 1 rejected ...... withdrawn (2) 92nd, 1971 ...... William H. Rehnquist ...... Associate Justice ...... 2 rejected ...... confirmed 96th, 1980 ...... William A. Lubbers ...... General Counsel, National Labor Relations 3 invoked ...... confirmed Board. 96th, 1980 ...... Don Zimmerman ...... Member, National Labor Relations Board ...... 3 invoked ...... confirmed (3) 96th 1980 ...... Stephen G. Breyer ...... Circuit Judge ...... 2 invoked ...... confirmed (4) 98th 1984 ...... J. Harvie Wilkinson ...... Circuit Judge ...... 2 invoked ...... confirmed (5) 99th, 1986 ...... Sidney A. Fitzwater ...... District Judge ...... 1 invoked ...... confirmed 99th, 1986 ...... Daniel A. Manion ...... Circuit Judge ...... 1 withdrawn ...... confirmed (6) 99th, 1986 ...... William H. Rehnquist ...... Chief Justice ...... 1 invoked ...... confirmed 100th, 1987 ...... Melissa Wells ...... Ambassador ...... 1 invoked ...... confirmed 100th, 1987 ...... C. William Verity ...... Secretary of Commerce ...... 1 invoked ...... confirmed

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Cloture mo- Congress and year Nominee Position tions filed Outcome of cloture attempt Disposition of nomination

(7) 102nd, 1992 ...... Edward Earl Carnes, Jr...... Circuit Judge ...... 1 invoked ...... confirmed 103rd, 1993 ...... Walter Dellinger ...... Assistant Attorney General ...... 2 rejected ...... confirmed 103rd, 1993 ...... five nominations 1 ...... State Department ...... 2 rejected ...... confirmed 103rd, 1993 ...... Janet Napolitano ...... U.S. Attorney ...... 1 invoked ...... confirmed 103rd, 1994 ...... M. Larry Lawrence ...... Ambassador ...... 1 fell 2 ...... confirmed 103rd, 1994 ...... Rosemary Barkett ...... Circuit Judge ...... 1 withdrawn ...... confirmed 103rd, 1994 ...... Sam Brown ...... Ambassador ...... 3 rejected ...... returned to president 103rd, 1994 ...... Derek Shearer ...... Ambassador ...... 2 invoked ...... confirmed 103rd, 1994 ...... Ricki Tigert ...... Board Member and Chair, Federal Deposit In- 2 invoked ...... confirmed surance Corporation 3. (8) 103rd, 1994 ...... H. Lee Sarokin ...... Circuit Judge ...... 1 invoked ...... confirmed 103rd, 1994 ...... Buster Glosson ...... Air Force Lieutenant General (retired) ...... 1 withdrawn ...... confirmed 103rd, 1994 ...... Claude Bolton, Jr...... Air Force Brigadier General ...... 1 vitiated 3 ...... confirmed 103rd, 1994 ...... Edward P. Barry, Jr...... Air Force Lieutenant General (retired) ...... 1 vitiated 3 ...... confirmed 104th, 1995 ...... Henry Foster ...... Surgeon General ...... 2 rejected ...... no final vote 105th, 1997 ...... Joel I. Klein ...... Assistant Attorney General ...... 1 invoked ...... confirmed 105th, 1998 ...... David Satcher ...... Surgeon General ...... 1 invoked ...... confirmed (9) 106th, 1999 ...... Brian Theadore Stewart ...... District Judge ...... 1 rejected ...... confirmed (10) 106th, 2000 ...... Marsha L. Berzon ...... Circuit Judge ...... 1 invoked ...... confirmed (11) 106th, 2000 ...... Richard A. Paez ...... Circuit Judge ...... 1 invoked ...... confirmed (12) 107th, 2002 ...... Lavenski R. Smith ...... Circuit Judge ...... 1 invoked ...... confirmed (13) 107th, 2002 ...... Richard R. Clifton ...... Circuit Judge ...... 1 invoked ...... confirmed 107th, 2002 ...... Richard H. Carmona ...... Surgeon General ...... 1 invoked ...... confirmed (14) 107th, 2002 ...... Julia Smith Gibbons ...... Circuit Judge ...... 1 invoked ...... confirmed 107th, 2002 ...... Dennis W. Shedd ...... Circuit Judge ...... 1 vitiated 3 ...... confirmed 1 These five nominations to various positions in the State Department received consideration and cloture action concurrently, and are counted as one case in the table. 2 Cloture motion became moot and received no action. 3 Tigert was nominated simultaneously for these two positions, and cloture action took place on each nomination in turn; the table counts these events as one case. 4 Senate unanimously consented to treat the cloture motion as having no effect. Sources: Compilations by CRS and by the Senate Library; Legislative Information System of the U.S. Congress; U.S. Congress, Senate, Committee on Rules and Administration, Senate Cloture Rule, committee print 99–95, 99th Cong., 1st sess. (Washington: GPO, 1985), pp. 44–70, 78–85; Congressional Record (Daily Digest); and Congressional Quarterly Almanac for 1986, 1987, 1992, 1995, 1999.

Mr. LAUTENBERG. Mr. President, Another small State— know, the filibuster was immortalized the Senate Web site points to one inci- had two votes among the original 13, and in the film ‘‘Mr. Smith Goes to Wash- dent from 1964 to the present time. Oc- New York and Massachusetts and Virginia ington.’’ Here we see a picture of tober 1, 1968: ‘‘Filibuster Derails Su- had two votes. Jimmy Stewart as he played Senator preme Court Appointment.’’ Why don’t The modern Senate reflects the same Smith. He used the filibuster to protect our colleagues on the other side take types of disparities in population as the interests of his constituents back their heads out of the sand, open their the original Senate. My home State, home. This image shows Senator Smith eyes, read the record, and tell the pub- for instance, New Jersey, has a popu- in the midst of his filibuster. lic the truth? lation that is greater than Alaska, Wy- From some of the things we have In 1968, Abe Fortas, Supreme Court oming, Kansas, North Dakota, South heard from the majority leader, you Justice, was filibustered. The Senate Dakota, and Mississippi combined. But might think Mr. Smith was the bad failed to invoke cloture on Fortas. New Jersey only gets two votes in this guy in that film. No, Mr. Smith, as a There were only 45 votes for cloture. body, and each one of those States I filibustering Senator, is not only the Some say this is proof that a majority mentioned also gets two votes. So it is good guy, but he is the hero of that of the Senators did not support Fortas. not surprising that when you do the film. That film is a celebration of our But President Johnson thought other- math on the current Senate, you find American democracy. It is a celebra- wise, noting that 12 Senators were ab- that the majority is actually in the mi- tion of this Senate, the world’s great- sent for the cloture vote. And here nority, and the minority is the major- est deliberative body. But if the major- ity leader is successful in ending the from 1968 is a page 1, first-page head- ity. line in the Washington Post. It says: Here is what I mean very simply put. filibuster, in ending the representation that the huge minority deserves, we ‘‘Filibuster Derails Supreme Court Ap- The Republican caucus with 55 Sen- will move from the world’s greatest de- pointment.’’ ators and with each Senator getting liberative body to a rubberstamp fac- A full-dress Republican-led filibuster broke half of the vote in that State rep- tory. out in the Senate yesterday against the mo- resents 144 million people. The Demo- tion to call up the nomination of Justice Abe The Constitution gives us an active Fortas for Chief Justice. cratic caucus with 45 Senators rep- role in the nomination process. The resents 148 million people. The first The public ought to know what is Senate is not a mere formality under one, 144 million; the second one, 148 being said. Unfortunately, in the ur- the Constitution. The Founding Fa- million—that does not look like much gency to get this done, they are not thers intended the Senate to be a check of a minority to me. That is what we being accurate in the things that are on the President’s power. We hear our are looking at. said by the Republican majority. colleagues on the other side pleading So in 1968—note this, people across Mr. President, what you find is the for a majority vote; let the Senate act the country—on a nomination to be the minority in this body, the Democratic as it should. most influential judge in the country, caucus, represents more than the ma- The Senate is responsible for the there was a filibuster. I am not a law- jority, and that is exactly what the quality of people we put on the courts, yer, but it seems to me that those who Founding Fathers wanted to protect— and if there is a challenge, so be it. Let say this has not happened before are minority rights in the Senate—because the majority party make the case, con- guilty of factual negligence. The right a minority of Senators may actually vince us that these people are not what to filibuster is fundamental to the Sen- represent a majority of the people. So we think they are in terms of their ac- ate because the Senate was created by it is corrected by a process we have tivist views. Is it an inconvenience to our Constitution to protect the rights here. The Democratic caucus on this the President to contend with the Sen- of the minority. side of the aisle represents many more ate? Perhaps. But direct your com- Just this weekend, one of the most Americans than the Republican side. plaints to Thomas Jefferson, James distinguished Members of the Senate, That is why we have a filibuster rule. Madison, and our Founding Fathers. our colleague from Arizona, Senator That is why we generally operate by You will find they had their hands full, MCCAIN, explained it very well. Senator unanimous consent. and they knew how to deal with it. MCCAIN said: The right to filibuster is not just I know our majority leader has said: The Senate was designed to protect the mi- some obscure rule in the Senate. It is We can keep the filibuster for legislation, nority. That is why Wyoming has two votes, part of our American heritage, and it just not on nominations. and that’s why California has two votes. has been celebrated by our culture and But the American people know you That’s why Rhode Island— our folklore. As many Americans cannot sort of end the filibuster. If this

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5492 CONGRESSIONAL RECORD — SENATE May 19, 2005 nuclear option goes into place, citizens enough and what constitutes a short- the country. We do not have these food across our country understand that fall. fights in Delaware. We have the best their rights will be taken away in large In Delaware, we are proud of being judiciary. We have Democrats and we part by those who have expressed the first State. We were the first State have Republicans who serve on the themselves before they were nominated to ratify the Constitution. We did it bench. They are nominated by Repub- in matters dealing with gender, dealing December 7, 1787. The Constitution lican and by Democratic Governors. with marriage, dealing with all kinds that we confirmed at the Golden Fleece I ran into a friend of mine not long of issues on which the American people Tavern in Dover, DE, had been ham- ago who has loosely been following this have a right to have a view. mered out about 75 miles north up the debate on judicial nominations. He No, this now says we are just going road in Philadelphia. The last part of asked: Why do you not confirm more of to do it for the judges. Beware, once the Constitution that was hammered the President’s judicial nominees? And that barn door opens, we are going to out, maybe one of the more difficult I said: How many do you think we have see all kinds of changes. You cannot aspects of the Constitution, was not confirmed, or what percentage do you sort of end the filibuster. You either only who is going to be President, how think we have confirmed? have to keep the filibuster or you end are we going to pick the President, how He said: Maybe half. it. long will their terms be. That was And I said: No, no my friend, 95 per- Would the majority leader like to re- worked out. They did not get caught up cent. name the Jimmy Stewart film, ‘‘Mr. in how old does one have to be to be a He said: Really? Do you not have a Smith Goes to Washington Except for Senator or how old does one have to be lot of vacancies on the Federal judici- Judges’’? to be a Representative, how long are ary bench? Speaking of popular culture, the big- the terms going to be. That was I said: No. We have one of the lowest gest film of the year is opening this worked out. What was hardest to work vacancy rates we have had in years. week, ‘‘Star Wars: Revenge of the out in the Constitutional Convention, I asked him in return: While we have Sith.’’ This is one of the characters in almost harder than anything else, was confirmed over the last 4 years 95 per- that film. He is portrayed here on this how we are going to pick these judges. cent of President Bush’s nominees to chart. He is the leader of the Senate in There were some folks at the Con- the bench, what percentage of Presi- a far-off universe. In this film, this stitutional Convention, led by Ben dent Clinton’s nominees do you think leader of the Senate breaks rules to Franklin, who were fearful we would were confirmed during his first 4 years? give himself and his supporters more end up in this country with a king. We Well, I do not have a chart here that power, and after this move from the may not call him a king or we may not says what the answer to that question Senate leader, another Senator states: call her a queen, but we would end up is, but just to remind us all, from 2001 This is how liberty dies. with a king. They were dead-set deter- to the beginning of this year, 95 per- One film critic described this film as mined to make sure we did not do that. cent of President Bush’s nominees have a story of ‘‘how a republic dismantles If we read through the Constitution, been confirmed. its own Democratic principles.’’ it is an intricate set of checks and bal- If I had a magic marker I would As millions of Americans go to see ances that are designed to make sure make a big yellow line through this this film this week and in the weeks that we have a President but we do not and write in 81 percent because that is ahead, I sincerely hope it does not mir- have a king. With those sets of checks the percentage of President Clinton’s ror actions being contemplated in the and balances, the Constitution has nominees that were confirmed in his Senate. I say to my colleagues, do not served us extraordinarily well. first 4 years. let liberty die. I urge my colleagues, on The Constitution also said, in addi- There is a great irony. I am told we behalf of the American people—and I tion to having a House and a Senate never heard a peep or a squeak from ask the American people to express and how one gets elected to serve and our friends on the other side of the themselves on this—do you want to how long they serve, it also said the aisle during the first Clinton adminis- give up your rights, do you want to House and Senate could each set out tration when his nominees were denied give up your rights to protect your their rules. The Constitution does not a vote on the floor. It was not because children against a foul environment? say what the rules of the Senate are. It of a filibuster. They were denied a vote Do you want to give up your rights to says we can write our own, and we have on the floor because somebody on the be able to work in a safe environment? done that. other side of the aisle in the Senate Ju- Do you want to give up your rights to We heard earlier this afternoon about diciary Committee would not let a decide on questions such as war and how the rules have been changed with hearing be held, not on one or two peace? I urge do not let it happen. I respect to invoking cloture to end de- judges nominated by Bill Clinton but urge my colleagues to oppose any at- bate. Before 1917, Senators could not on scores of them. They would not have tempt to break the Senate rules and invoke cloture. Another Senator could a hearing. They would not let a nomi- destroy over 200 years of American tra- talk literally as long as they could nee out of committee. They did not dition. We must save the United States stand. From about 1917 to 1975 or so, have to kill them on the floor in a fili- and the interests of our country as a the rule was that there had to be buster. They did it in committee, whole. roughly a two-thirds supermajority to quietly, out of the view of the public. I yield the floor. be able to end debate. Using the rules Now, why just a few years ago was it The PRESIDING OFFICER (Mr. of the Senate to effect change, the okay to deny 19 percent of President BURR). The Senator from Delaware. rules were changed to say, no, a three- Clinton’s nominees an up-or-down vote Mr. CARPER. Mr. President, I have fifths majority, 60 Senators, is needed on this floor? Why was that okay? And served in the Senate for a bit over 4 to bring debate to a close. why is it with this President—he re- years. When I came, I never imagined I It is interesting how we confirm our ceived 95 percent of what he wants and would stand on this floor and defend a judges in Delaware. Governors nomi- actually in the end he will get more filibuster. I came to try to make sure nate with the advice and consent of the than that. There are a couple from we preserve jobs and bring in new ones, Senate. We do not nominate people to Michigan that we are going to confirm. to make sure kids got a new education, lifetime terms on the bench. We nomi- Some of the 10 have basically with- to make sure we brought down the nate them to 12-year terms. The re- drawn their names or retired from the costs of health care and made it afford- markable thing in Delaware is for bench. able and extended to a whole lot more every—and I served 8 years as Gov- The figure of 95 percent actually un- people, that we ran a fiscally sound ernor—Democrat I nominated to the derstates what ultimately this Presi- ship of state, and that we provided for bench I had to nominate a Republican. dent will realize in confirmation vic- the security of our Nation. I came for We are equally balanced Democrat and tories. all of those things. I never imagined I Republican. The other number I want to share, would be standing in a food fight on In survey after survey, the Delaware talking about advice and consent, is how we are going to approve these legal environment, including our judi- 2,703. This number is 1. What do they judges, how many confirmations are ciary, is regarded maybe as the best in refer to? During the first 4 years of

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5493 President Bush’s presidency, he nomi- amendments, we can do it on bills. It is Mr LEAHY. Mr. President, today we nated over 200 judges. Republicans and a slippery slope. But there is an even continue to debate the Republican Democrats voted on those judges. greater concern to me, as a guy who Leader’s bid for one-party rule through There were 2,703 aye votes from the Re- wants to get things done. his insistence to trigger the ‘‘nuclear publican side of the aisle on President I see Senator LEAHY is here. He is option.’’ I spoke yesterday about this Bush’s judicial nominees. In those 4 working with Senator SPECTER on as- misguided effort to undercut the years, there was one nay vote from the bestos litigation reform. We need to checks and balances that the Senate Republican side of the aisle on a judi- pass that litigation. We need to right a provides in our system of Government, cial nominee of this President. wrong. My fear is, if we take this step, and about the need to protect the We can argue forever what advice and trying to work out a very difficult rights of the American people, the consent really was meant to be when compromise on that legislation will be independence and fairness of the Fed- the Constitution was written. But if we made more difficult, not easier. We eral courts, and minority rights here in are in a situation where 50 percent plus need to address the rising cost of the Senate. 1, 51 percent, would enable a nominee health care and all the folks who do I started my statement yesterday by of this President or any other Presi- not have it and cannot afford it, and commending the chairman of the Sen- dent to go on to serve for life on the employers are stopping providing it. ate Judiciary Committee. Today I want Federal bench, and if you look at the We need a comprehensive energy policy to add and thank a number of Senators last 4 years and only 1 person out of in this country. It is tough in the best who participated throughout the de- 2,704 votes was no, does that give you of times to hammer that out. bate yesterday for their contributions: Mr. LEAHY. Will the Senator from any kind of confidence that we are the Democratic leader; the assistant Delaware yield? Democratic leader and senior Senator going to see any sort of checks and bal- Mr. CARPER. I am happy to yield. ances going forward? It doesn’t give me from Illinois; the senior Senator from Mr. LEAHY. I absolutely agree with Washington; both Senators from Cali- much. the Senator from Delaware. We have a I do not care if you are a Democrat fornia; the senior Senator from New lot of bipartisan legislation that is not York; the senior Senator from Mon- or Republican, it should not matter. It even being looked at. The NOPEC bill should not matter who is in the White tana; the senior Senator from Min- is one, with Senator DEWINE, Senator nesota, the senior Senator from Massa- House or the House and Senate. But KOHL, myself, and others. We looked at when you get a situation where you chusetts and Senator DORGAN. the fact that gasoline prices have gone I noted yesterday that this is a set- have one party that controls the White up nearly 50 percent in the last 5 years ting in which Democratic Senators House and one party controls the alone, and yet we have no constraints alone will not be able to rescue the House of Representatives and one party on artificial prices being set by the Senate and our system of checks and controls the Senate, and you have, out NOPEC countries here in the United balances from the breaking of the Sen- of 2,704 votes for judicial nominees, States. It takes more than holding ate rules that the Republican leader is only 1 Republican Senator who ever hands with Saudi princes to bring down planning to demand. If the rights of the voted no, and it was for somebody ini- prices. We have to ask for real efforts. minority are to be preserved, if the tially nominated by Bill Clinton, that This is legislation that could pass. This Senate’s unique role in our system of is something we ought to worry about. is legislation that could pass. Put some Government is to be preserved, it will Someday, someday we are going to teeth in it. Instead of holding hands, take at least six Republicans standing have a Democratic President. Someday we could hold court actions, and we up for fairness and for checks and bal- we are going to have a Democratic ma- would be somewhere ahead. That is ances. I believe that a number of Re- jority in this body. We have sayings in just one area. publican Senators know in their hearts Delaware. I bet they have in Min- The Senator from Delaware men- that this nuclear option is the wrong nesota, too. Maybe in Vermont. Among tioned the asbestos bill. Senator SPEC- way to go. I know that Republican Sen- those sayings are these: Chickens do TER and I have worked on it on a to- ators with whom I have been privileged come home to roost; the beds that we tally bipartisan fashion with Senators to serve know better. I hope that more make are some days the beds that we on both sides of the aisle. We have a than six Republican Senators will get to sleep in; what goes around comes bill that could pass. It would take some withstand the political pressures being around. effort on the floor. It would take a brought to bear upon them and do the I promise you, I promise you, my week or so, but it could pass. Victims right thing, the honorable thing. I have friends, if a decision is made to pull of asbestosis would be helped. Compa- to believe that enough Republican Sen- this trigger, this nuclear option, and nies would have some idea what their ators will put the Senate first, the Con- we end up with a situation where the costs are. The economy would dramati- stitution first, and the American peo- rights of the minority really are, in my cally improve. That bill is going to die ple first, and withstand those political view, ignored, maybe even trampled on, if the nuclear option goes through be- pressures when they cast their votes. the Republicans who do this will come cause we will lose the ability to move Today, as we continue this discus- to rue the day. bipartisan legislation. sion, I note that the Senate remains Let me close with this. I came here We have law enforcement legislation fixated on a handful of the President’s to get things done. As I look around at a time when most of the law en- most extreme and divisive judicial this floor, the other Senators who are forcement grants, such as the COPS nominees. The Democratic leader here whom I respect, I know you came grants and whatnot, are being cut by rightly said recently that the current here to get things done as well. I men- the administration. A lot of Members tally is 208 to 5. The Senate has con- tioned at the outset the kinds of things on both sides of the aisle are trying to firmed 208 of President Bush’s judicial I wanted to see us accomplish. I de- find a way to get that money back to nominees, and we are resisting action scribe myself as a recovering Governor. our police officers, the money being on five. We have a recovering mayor who is cut. We cannot have a debate on it. I included in the RECORD yesterday presiding here today. We like to work This is going to take up—you con- my statement laying out my reasons together. We would like to work across firmed 208 judges; blocked, actually, 5. for opposing the nomination of Pris- the aisle. We are even happy to work I have been here 31 years. I don’t be- cilla Owen. As we continue to debate a with the President, Democrat or Re- lieve anyone has had a record that nomination that was rejected by the publican. good. Certainly no baseball team ever Judiciary Committee in 2002 and on My fear is here is what is going to had a record that good. The President which the Senate engaged in extensive happen. If this action succeeds, if we do ought to declare victory on that, hav- debate in 2004, the Senate is neglecting change the rules of the Senate to lower ing done so much better than all but other matters. That is the choice made to 51 the votes that are needed to end about three Presidents of recent mem- by the Republican leadership, in insist- a filibuster on judicial nominations, ory, and let us get on with things. ing on this confrontation and upcom- that is a slippery slope. If we can do it Bring down the price of gasoline, for ing conflict. on judges, we can do it on other nomi- one; that is affecting the American The Democratic leader is right when nees to other posts, we can do it on people. he urges the Senate to ‘‘put people over

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5494 CONGRESSIONAL RECORD — SENATE May 19, 2005 partisanship’’ and to work to reduce of our taking up the NOPEC bill on be- delay, as well as on the general state of gas prices, make health care more af- half of the American people. police officer safety. The Fraternal fordable, create new and better jobs Another consequence of this fixation Order of Police, the International Asso- and give our veterans and their fami- on the effort to increase the White ciation of Chiefs of Police, the Na- lies the support they need and deserve. House’s political power, and to aid this tional Association of Police Organiza- Among the matters being neglected President’s attempt to pack the Fed- tions, the National Sheriffs’ Founda- in order to engage in this political ex- eral courts, is the loss in focus and sac- tion and other law enforcement organi- ercise is consideration and passage of rifice of progress we have been making zations are all interested in working the NOPEC bill, S. 555. This is bipar- on asbestos reform. For more than 3 with us to ensure that the Justice De- tisan legislation. Our lead sponsors are years I have been working on asbestos partment produces comprehensive reg- Senator DEWINE and Senator KOHL. reform to provide compensation to as- ulations that effectively create a more With the increase of gasoline prices by bestos victims in a fair and more expe- user-friendly PSOB Program. almost 50 percent during the Bush dited fashion. In addition, we should be considering Presidency, with Americans having to Chairman SPECTER and I have worked the Social Security Fairness Act, pay so much more each week to get to closely on S. 852, the FAIR Act. It is S. 619, the bill that Senators COLLINS, work, drive their kids to school and pending before the Judiciary Com- BOXER, FEINSTEIN and a number of us just to get around, the Republican mittee. We are in the midst of our have cosponsored over the years to pro- leadership of the Senate is ignoring a markup sessions. That effort was tect the Social Security and retire- substantial burden on American work- scheduled for yesterday and today, but ment of police officers. Those on the ing families. the Chairman had to cancel our consid- front lines protecting all of us from This week, the national average price eration yesterday in light of this de- crime and violence should not see their for a gallon of regular gasoline was bate and it had to be cut short today. Social Security benefits reduced be- $2.18. In Vermont, gas is slightly less That is most unfortunate. We have cause they have historically partici- expensive, but still a hefty $2.15 per been working hard and in good faith to pated in separate retirement benefit gallon. Just a year ago the price was achieve bipartisan legislative progress programs. That needs fixing and this $1.92. When President Bush took office on this issue. We have done so despite week would be an appropriate one to it was $1.46 a gallon. criticism from many quarters. That bi- take that Senate action. The artificial pricing scheme en- partisan effort is now being retarded by These are merely examples of some forced by OPEC affects all of us, and it this continuing debate. of the business matters the Republican is especially tough on our hard-work- There are many, many items that majority of the Senate has laid aside. ing Vermont farmers. Rising energy ex- need prompt attention. I understand Mr. CARPER. Mr. President, what I penses can add thousands of dollars a that the Armed Services Committee was saying, in closing, one of my great- year to the costs of operating a 100- last week completed its work on the est fears is that we end up with this head dairy operation, a price that Department of Defense Authorization partisan battle. Those of us who fer- could mean the difference between bill. Why the Republican leadership is vently want to accomplish asbestos keeping the family business open for delaying Senate consideration of the litigation reform, a comprehensive en- another generation or shutting it Defense Authorization bill I do not un- ergy bill, determining what the busi- down. derstand. At a time when we have ness model for the Postal Service With summer coming, many families young men and women in combat zones ought to be in the 21st century or the are going to find that OPEC has put an and when the home front is being af- passenger rail service in the 21st cen- expensive crimp in their vacation fected by recently recommended base tury—what should our next steps be in plans. Some are likely to stay home; closings, I would have thought the De- welfare reform? How are we going to others will pay more to drive or to fly fense Authorization bill would be a pri- provide health care coverage, reduce so that they can visit their families or ority. the costs, and extend coverage to all take their well-deserved vacations. Let me mention just one other set of kinds of people? There is a ton of stuff, Americans deserve better, and if the legislative issues. Last week was Po- so many issues we need to address. White House will not act to abate this lice Week. On Sunday I was privileged The postal bill alone—the Presiding crisis, it is time for Congress to act. It to attend the National Peace Officers’ Officer serves on the Homeland Secu- is past the time to hold hands and ex- Memorial Service commemorating the rity and Governmental Affairs Com- change kisses with Saudi princes who service and sacrifice of 154 public safe- mittee with me. We worked for years, artificially inflate the price of gaso- ty officers killed in the line of duty Senator COLLINS, myself, and others, to line. The President’s ‘‘jawboning’’ with over the last year. I worked in a bipar- determine what should the Postal his Saudi friends has proven unsuccess- tisan way with Senators SPECTER, Service look like in the 21st century. ful. It is now time to act, and the Sen- BIDEN, HATCH, BROWNBACK, CORNYN, What should the business model be? We ate, under the Republican majority DEWINE, DURBIN, FEINGOLD, FEINSTEIN, unanimously passed the bill last year leader, is choosing instead to revisit a KENNEDY, KOHL, KYL, SCHUMER, SALA- out of committee. Over in the House of handful of extreme judicial nomina- ZAR and COLLINS to introduce and pass Representatives, almost the very same tions that have already been consid- S. Res. 131, which recognized May 15 as bill was negotiated, debated, and ered and rejected by this body. Peace Officers Memorial Day and passed unanimously by our counterpart The production quotas set by OPEC called upon the entire Nation to join in committee. There was not a single continue to take a debilitating toll on honoring our law enforcement officers. ‘‘no’’ vote. We could not get either bill our economy, our families, our busi- The President spoke movingly at the to the floor for debate. And that is nesses, our industry and our farmers. ceremony held here on Capitol Hill on when we agree. Last year and again last month, the that day of remembrance. I remind my friends, if it is that hard Judiciary Committee voted to report This week we should honor our law to get legislation through the House favorably to the full Senate the bipar- enforcement officers with supportive and Senate to the President for his sig- tisan NOPEC bill. Our legislation legislative action. In the past we have nature when we agree, God help us on would apply America’s antitrust laws worked in a bipartisan way to improve difficult issues such as asbestos or to OPEC’s anticompetitive cartel. Why the Public Safety Officers Benefit Pro- comprehensive energy policy or health not give the Justice Department the gram and to provide educational bene- care or the like. clear authority to use our antitrust fits for the families of State and Fed- Finally, I have a whole lot of quotes laws against the anti-competitive, eral officers who have been killed in here. I was trying to figure who to anti-consumer conduct in which they the line of duty. Sadly, the administra- close my remarks by quoting. I looked have engaged? We should take up that tion has not yet implemented the lat- for something for the Senator from bill, debate it and pass it without fur- est round of improvements to the Pub- Minnesota, the Presiding Officer, which ther delay. The many days of the Sen- lic Safety Officers Benefit Program might seem appropriate. I couldn’t find ate’s time allocated to the provocative that we enacted last year. I have urged anything, at least on this subject, so I ‘‘nuclear option’’ comes at the expense a Judiciary Committee hearing on this turned to another source. I think it is

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5495 actually pretty good. It is not a Sen- Now, today’s debate, though we have Something changed in the last Con- ator, but he probably wouldn’t be a bad a nominee up, I don’t think is about gress. For the first time it was actually one, a fellow who has thought a lot and one particular person because clearly used. Now, in an effort to have an up- written a lot and I think is generally we have not heard arguments that this or-down vote, to have a process like I regarded more favorably on the other is an unqualified individual. As a mat- described in the last election to the side of the aisle than this one, and he ter of fact, in seeking compromise people who elected me that I would makes a lot of sense sometimes. I will there have been proffers now to this come here and try to achieve, even if close my comments today with a quote side that suggested: We will vote on we needed to make sure that the con- from George Will. Here is what he said five, but not seven, and you pick the stitutional option of eliminating the about the filibuster: two you want to chuck overboard. filibuster only as it exists for judicial The filibuster is an important defense of What message do we want to send to nominees is removed, some suggest minority rights, enabling democratic gov- that law student out there who aspires that would be disastrous for the Sen- ernment to measure and respect not merely one day to being on the bench and ulti- ate. numbers but also intensity in public con- mately seeking a nomination by the Some of those same people in 1995 troversies. Filibusters enable intense minori- President to a Federal court or to the voted to eliminate the filibuster for ju- ties to slow the governmental juggernaut. Supreme Court? If you want to do it, Conservatives, who do not think government dicial nominees, for the legislative is sufficiently inhibited, should cherish this understand you will go through per- process, for everything, and they are blocking mechanism. And someone should sonal character assassination; that in the same ones who claim this would be puncture Republicans’ current triumphalism some cases you may have to wait 4-plus disastrous to the Senate today. by reminding them that someday they will years to get there. So much has been said, so many ac- again be in the minority. In 1995, Senator LAUTENBERG stood cusations, so many claims, so many re- Will goes on to conclude: on this same floor, in this same build- visionists of history. The reality is in a The promiscuous use of filibusters, against ing, as a Member of the Senate, and he conversation I had with a high school policies as well as nominees, has trivialized said this then when talking about fair- student just this week, as she looked at the tactic. But filibusters do not forever de- ness of the system and how it is equi- me: Can you explain these actions on flect the path of democratic government. table for a minority to restrict the ma- the floor? I talked about the 214 years Try to name anything significant that an jority view: American majority has desired, strongly and that the gentleman’s agreement al- Why can we not have a straight up-or-down protractedly, but has not received because of lowed a nominee to get an up-or-down vote on this without threats of filibuster, a filibuster. vote with no filibuster and the fear without threats of filibuster. Whether it was The PRESIDING OFFICER (Ms. MUR- Robert Bork and John Tower or Clarence that we were reaching a point where we KOWSKI). The Senator from North Caro- Thomas, even though there was strong oppo- might have to make a decision, and the lina. sition, many Senators opposed them. The concern that existed in this Senate and Mr. BURR. Madam President, I rise fact is, the votes were held up or down. around the country that it might be to urge my colleagues to support an June 21, 1995. Senator LAUTENBERG. disastrous. She looked at me after I ex- up-or-down vote on these judicial Today, he denies this Senate a vote plained it to her and she said: Senator, nominees. I have a great respect for my on a judicial nominee and threatens a with 214 years of experience, it is not colleague from Delaware, and I do not filibuster on all the nominees. going to be disastrous. Why would you stand up with pretty charts with big This afternoon, Senator KERRY wait so long to do it? numbers. I am not a recovering State claimed it is dangerous for the Senate The reality is that sometimes it legislator or recovering city mayor, to limit filibusters on judicial nomi- takes years to understand what we and I hope I am never a recovering par- nees. Senator KENNEDY and Senator have a hard time understanding up ent or father. LAUTENBERG joined Senator KERRY in here. For 214 years the filibuster was I stand up as a parent today, as a fa- defending judicial filibusters. But on not used, and we picked the best and ther of two kids, with the full knowl- January 5, 1995, just shortly before, brightest and got them on the bench edge and understanding that the work Senator LAUTENBERG was on the Sen- and they guided this country and we we do up here in large measure dictates ate floor making the statement I read, have been headed in the right direc- the America that is going to be there all three of those Senators voted to tion. for them. That if we are to follow the change the Senate rules to eliminate If the choice is made and we have to strategies on that side, the chart that all filibusters on nominations, mo- choose to eliminate this tool, this is my colleague showed would never tions, legislation—everything. If any of not a dangerous thing for the institu- change because we would never vote. those three Senators had had their way tion. We have 214 years of experience. That bipartisanship that is needed for in January 1995, we would have an up- We will be just fine. And the challenge legislation—whether it is health care or-down vote on these judicial can- will be to protect that filibuster as it or whether it is energy policy or didates, but we also wouldn’t have the relates to the legislative process. whether it is asbestos reform—would ability of the filibuster as a tool in the I am here as a new member, as a fa- not be achievable because we would legislative process. ther, as a citizen, who deeply believes I never come here to register a yea or Some claim this is the start down a was sent to the Senate to get work nay on behalf of the people who sent us road to doom. It is not down the road done. That work I do on behalf of here. to doom. Senator KERRY, Senator LAU- North Carolina and for the citizens We are faced with difficult votes, but TENBERG, and Senator KENNEDY voted across this country. There is no doubt we take those difficult votes. We do not for it and were joined by Senator FEIN- in my mind that I was sent here to do shy away from the responsibility that GOLD, Senator BOXER, Senator SAR- what the people of North Carolina people elected us to come here and to BANES, Senator HARKIN, Senator LIE- heard me say that I would do, and that make a judgment call and, more impor- BERMAN, and Senator BINGAMAN. We are was to work hard and to accomplish so- tantly, to be held responsible for it. not plowing ground that hasn’t been lutions to real problems. There is no The only thing I can think of relative plowed. doubt in my mind the task includes en- to not taking a vote is that there are If anything, we are saying, for 214 suring that the Senate provides judi- some who believe they will not be held years this institution, the Senate, had cial nominees on up-or-down votes. responsible if, in fact, they force this a gentleman’s agreement, and that I am not going to lobby my col- body not to vote, that eventually peo- agreement was that the filibuster leagues which way to vote, but isn’t it ple will wear down and that if we hap- would never be used for judicial nomi- common courtesy to allow these nomi- pen to seat someone that is not the nees. For 214 years they showed re- nees to have some finality to this proc- best, the most qualified, that is OK be- straint, even though the rule allowed ess? The judge that is up today, Pris- cause it saved this institution a fight. them to do it because they understood cilla Owen, has been in this process for I will tell my colleagues I cannot that the process was so important to 4 years. I have asked myself, even think of anything more important if make sure the best and the brightest though I am not a lawyer by profes- there is going to be a fight than that found their way to the bench. For 214 sion, would I stick with it 4 years? fight be on who we put on the bench. years a handshake was all it took. Would I put myself and my family, my

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5496 CONGRESSIONAL RECORD — SENATE May 19, 2005 friends, my career through the types of Well, the Court still meets. If we are nee should come up for a vote up or delays that she has faced? The answer not able to produce a Justice out of down—1998—no qualifications, no ex- is, I do not know. this fine Hall, then they will meet with ceptions. Well, Priscilla Owen has been The question is, What are future eight Justices. I have to believe there waiting 4 years. If we had accepted his nominees going to say when they get is an odd number of Justices for a very challenge in 1998, Senator DURBIN’s that call, when the President of the logical reason. It was so there would challenge, 150 days after she was first United States—whether he is a Repub- not be a tie. nominated, this body would have voted lican or Democrat—calls in the future, On a 4-to-4 tie, what happens? Sel- up or down. and says, I need your service to this dom have we asked the question. On a I believe she ought to be voted on up country, and they look at the prece- 4-to-4 tie in the Supreme Court, the or down today. I believe it is an injus- dent of 4 years, of 2 years, of 18 months, lower court’s decision stands. That tice to the American people that a of the harassment, of the claims? Are means all of a sudden the Supreme threat of a filibuster or the application they going to say ‘‘yes, sir’’ or ‘‘yes, Court, our highest court, the Court we of a filibuster will be applied to the ju- ma’am’’ to the President of the United look to to be the best and brightest to dicial nominees. States? They might. But we might lose interpret law and the Constitution, is Madam President, I know there are a the opportunity at the best and the insignificant in the process. It means lot of Members who want to speak. I brightest. that whatever that court of appeals am convinced there will be truths and One month ago, I joined my freshmen was—the Fourth Circuit or the Ninth there will be half-truths that will be colleagues in urging the Senate leader- Circuit—whatever decision they came spoken as we go through this process. ship to get in a room, to break the cur- up with that somebody believed was But I am also assured that every Mem- rent impasse regarding judicial nomi- wrong, and they appealed it to the Su- ber of the Senate understands the obli- nees, and to develop a process that was preme Court, and the Supreme Court, gation we have when we are sworn in. respectful of both parties, where judi- on the merits of the case, heard it, I would urge my colleagues that obliga- would become the law of the land. cial nominees, at the end of the day, tion is not to a 2-year session of Con- My colleagues on the other side receive an up-or-down vote. argue that the reason this is so impor- gress. It is not an obligation to show up I said earlier, the Democrat’s offer tant is because a Federal judgeship is every day. It is not an obligation to be was: We will vote on five but chuck two for life. Let me say to them today, if involved in committee work, or it is of them over the side, and you pick you exercise this as it relates to the not an obligation necessarily to come which two. I cannot think of anything Supreme Court of the United States, up with solutions to problems. But it is worse for the future of this country and you jeopardize that there may be a an obligation to vote. It is an obliga- than for us to treat the best and the 4-to-4 tie, the result is not for the life- tion that when you come in this body brightest with the disregard that prof- time of the judge you did not seek, it is it is with the intent to vote up or fer would suggest. for the lifetime of this country because down. I am convinced that when Pris- I remain hopeful still today that a that is now the law of the land, that an cilla Owen is allowed to have a vote, resolution can be reached. Many of us appellate court, whether it is the that her nomination will be confirmed. have worked toward a fair process Fourth or the Ninth—not the Supreme I am convinced it is in the interest of where all judicial nominees with ma- Court—that will be the ultimate deter- this Senate, of this United States, of jority support, regardless of party, re- mining factor as to what the law is my family, of your family, of the citi- ceive an up-or-down vote. Let me say that our children, our grandchildren, zens of this country, that we proceed that again: regardless of party, receive their children, their grandchildren will forward in whatever fashion we must an up-or-down vote. live by for their entirety. to assure that vote takes place. I am What happened for 214 years? This de- I urge my colleagues to consider the convinced if we don’t, the scenario of bate is about principle. It is about al- nomination of Priscilla Owen and all the inability to accede a Justice to the lowing judicial nominees an up-or- the Federal judges who enjoy the sup- Supreme Court will cause irreparable down vote on the Senate floor. And I port of a majority of the Members of harm to the policies, the laws, and to believe it is an issue of fairness. Let me this Senate. I am reminded, as I stand the future of this country. be perfectly clear, though. I believe if here, that so much has been said that I thank the Chair and I yield the one of my colleagues objects to a par- suggests this process has not been fair. floor. ticular nominee, it is certainly appro- I have looked back at some of my col- The PRESIDING OFFICER. The Sen- priate and fair for my colleague to vote leagues who have been here for years ator from Pennsylvania is recognized. against that nominee on the floor of and who have experience I hope one Mr. SANTORUM. Madam President, I the Senate. But denying judicial nomi- day to have in this fine institution. thank the Senator from North Carolina nees of both parties, who seek to serve Senator BOXER, in 1997, said: for his excellent statement. their country, an up-or-down vote, sim- According to the U.S. Constitution, the I have been on the floor many times ply is not fair. It was certainly not the President nominates and the Senate shall to talk about the issue of judicial intention of our Founding Fathers provide advice and consent. It is not the role nominations, to stand and speak in when they designed and created this of the Senate to obstruct the process and to favor of many nominees to the bench very institution. prevent numbers of highly qualified nomi- who have been debated over the past nees from even being given the opportunity Together, as Members of the Senate, for a vote on the Senate floor. couple of years. Last night, I had the we are advocates for democracy and for opportunity to meet with Justices Jan- What has changed since 1997? I read a democratic system of government. It ice Rogers Brown and Priscilla Owen. I this statement four or five times. is vital that we have a system that expressed to them my personal sym- There are no exceptions. There is no continues to serve as an illustration of pathy for them and their families, as I ‘‘shall be’’ or ‘‘case of.’’ It is very clear, effective democracy around the world. do to all of those who have had their ‘‘given the opportunity for a vote on The integrity of our judicial system is lives, careers, and decisions unjustly the Senate floor.’’ so very important, and it will certainly dragged and contorted through the And Senator DURBIN, who has been a suffer as a result of inaction. regular in this debate, in 1998, said: streets of debate on the floor of the Obstructing votes on Presidential I think that responsibility requires us to Senate. nominees threatens the future of our act in a timely fashion on nominees sent be- Four years ago now, when Justice judicial system and the nature of the fore us. Owen was nominated, I am sure that Supreme Court. You see, I am not sure He went on to say: was a very proud day for her. I am sure that many Americans have stopped to If after 150 days languishing on the Execu- she looked forward to the challenges of think: Well, what happens if this is ex- tive Calendar that name has not been called the confirmation process and the chal- ercised for Supreme Court Justices? for a vote, it should be. Vote the person up lenges of serving in the circuit court. I Because I believe in the next several or down. They are either qualified or they don’t think anyone could possibly have years we will have one or two or pos- are not. conceived that a person with her judi- sibly more Supreme Court nominees to One hundred fifty days should be an cial standing, having been rated the consider. automatic trigger that a judicial nomi- highest qualified by the American Bar

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5497 Association, having served as a su- that and chose instead something most Paris, how dare you invade me, how preme court justice in one of the larg- people would say is much more dra- dare you bomb my city. It’s mine. This est States, having been elected in that matic, and that is to secede from the is no more the rule of the Senate than State with over 80 percent of the vote, Union. But Senators, enduring that it was the rule of the Senate before not having accolades from Democrats and very contentious time when there were to filibuster. It was an understanding, Republicans alike who have served fights on the floor of the Senate, un- an agreement, and it has been abused. with her on the court, as well as public derstood that a very key part, an im- In a sense, what we see on the floor of officials in Texas—I don’t think she portant part, essential part of the Sen- the Senate is a reflection of what we could have possibly imagined she would ate is the process by which we govern often see in our society. What we often be involved as one of the focal points of ourselves; that the process protects our see in our society is a government that this maelstrom we see pouring out here rights; the process protects the system increasingly is passing laws. I get this over the last few days and, unfortu- of Government. They chose to withhold from some of my constituents some- nately, over the last couple years on their passions—the passions of the mo- times. They say: You guys are always the floor of the Senate. ment for the issue of the day—for the passing more and more laws and more These nominees have my respect. right and controversy to do what was and more laws, and ultimately when They have my respect for their courage best for the institution of the Senate, you are passing laws, in many cases and for their perseverance. It has been the greatest deliberative body in the what you are doing is restricting peo- an act of perseverance on the part of history of the world, potentially. ple’s freedom. many of them. All of them could have And now we have seen this infection The more laws we have on the books, easily walked away—not that they that entered into the bloodstream of the more laws there are to obey, the don’t have good jobs and great careers, the Senate. Whether you want to call more laws you have the ability to and if not universally respected in the it a partisan infection or an ideological break. So why do we do this? Because legal community, they are certainly infection, there certainly is a sickness. we respond to problems in society that highly respected. They don’t get nomi- I think it is a sickness that, candidly, come about certainly, in many cases, nated for these positions unless they both sides of the aisle feel. I don’t because what we once thought we did are highly respected within the com- know too many people who feel very not need a law in place to keep people munity. good about what we are going through from doing, we now have laws in place So I think it would have been very on either side. It is making us all to punish people who heretofore under- easy for many to walk away, but they weaker, sicker, and it is so doing to stood it simply was not a good thing to have not. They certainly have earned this institution. We need a cure. We do. my respect, no matter what happens had a pretty healthy institution when We did this recently with the cor- here. I think it is a very sad day when it came to this issue for 214 years. I porate scandals. What did we do? We we take highly qualified people who think we can look to the prescription passed a huge law, Sarbanes-Oxley, in are willing to serve, and who have that we had for 214 years for a cure to response to what? Activities by a group served in the judicial capacity, and what ails us in this body today. of people who simply forgot about the treat them this way. We hear so much The Senator from North Carolina ac- handshake, forgot about the duty we from the other side about many of us curately said we had an agreement—he have to each other, and pushed the law complaining about activist judges, and used the term ‘‘gentlemen’s agree- well beyond what we intended. So we being critical of judges, and how it is a ment’’—a handshake, that this was the had to pass a new law, and we had to security threat to judges. Well, I sug- way we were going to proceed. I argue constrain 99 percent of the people in gest what we have been seeing over the those in the 1850s had the right to fili- America who never even thought about last couple of years in the way these buster judges. Those in 2003 had the breaking the law or doing the things judges and their records have been dis- right to filibuster judges. I had the that were done by Enron and Tyco and torted, they have added to the sense of right, during the Clinton administra- all those people. So we had to pass laws frustration of the American public as tion, to filibuster his appointments. on everybody. to our judiciary and our system of jus- There were those whom I wanted to fil- Was it a good thing to do? We had to tice in this country. ibuster and those whom I desperately pass the law because there were some We have an opportunity to correct didn’t want to see on the court, and we who could not live by the law, could that. We have an opportunity to step stood down because in spite of the pas- not live civilly, could not live with not away from the mistakes of the past in sions and in spite of what I thought just the letter of the law but the spirit the next few days and to allow up-or- was a mistake to put a particular per- of the law. down votes on the floor of the Senate son on a particular court, there was So we had to pass legislation that re- again. For 214 years, 214 years—in this something lasting, something more im- stricted freedom, that put burdens on Chamber and the Chamber just down portant, something certainly not eter- people. That is why I have said many the hall, and once in a couple other nal, but certainly eternal for as long as times I am not crazy about having to places—in Washington and other the United States shall survive, and vote to eliminate the possibility of fili- places, such as Philadelphia—we had that is this institution. We should not busters on judges. I am not anxious to votes by Senators who were elected at go mucking around in this institution do this anymore than I was anxious to very difficult times in our Nation’s his- and changing the way we do things, pass some of the corporate responsi- tory, at contentious times, where particularly when it comes to the bal- bility provisions. One would like to judges had major roles to play on the ance of powers and the independence of think, particularly here, where we are issues of the day. Think back to the one of the branches of our Government, supposed to be a reflection of what is times of slavery, during the early 1800s, the judiciary. best in our society, that we can under- when judges played a huge role in this We must tread very carefully before stand what we are doing here is wrong issue that eventually fractured this we go radically changing the way we do and just step back from the ledge and country. I am sure there were times business here, which has served this let civility reign, let the tradition of when either side, depending on who was country well. We have radically the Senate be upheld. the President and who controlled the changed the way we do business here. I do not want to have to pass a law. Senate, felt it would have been unfair Some are suggesting we are trying to I want to see a Senate that can agree to their cause, the Northern cause or change the law, we are trying to break to act civilly, to respect tradition in the Southern cause, to have a person the rules. Remarkable hubris. Imagine, the process of running this place that on the Supreme Court who would vote the rule that this is the way we con- has worked well for 214 years. That is against their interests. I am confident firm judges has been in place for 214 what I want. many felt very much tempted to vote years, broken by the other side 2 years So I have encouraged many to sit and join a filibuster to block a nomina- ago, and the audacity of some Members down and try to negotiate. I encour- tion to require a supermajority vote. to stand up and say, How dare you aged our leaders to do so. I know our But if you think about it, it is re- break this rule, it is the equivalent of leader has tried diligently. I just spoke markable they withheld from doing Adolf Hitler in 1942 saying: I’m in with him on the phone a few minutes

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5498 CONGRESSIONAL RECORD — SENATE May 19, 2005 ago, and he continues to work to avoid You did not hear me say, do I agree Elections have consequences. In 1961, what no one—at least I hope no one in with them on this issue, this issue, or John F. Kennedy was the President. He this Chamber—wants to see happen. I that issue, because my feeling is who- won the election, and he got the ben- certainly do not. But we can no longer ever is elected President will appoint efit of the doubt on the Senate floor. live—just like we cannot live with the people who agree with their philos- He got an up-or-down vote. Majorities opportunity of those to cheat share- ophy. That is how it works, just as matter. I do not think my colleagues holders and employees—we can no when you appoint a Secretary of Vet- will hear the Senator from Georgia or longer live with the minority trying to erans Affairs or a Secretary of Energy, any other Senator on this side of the cheat those nominated by the Presi- you appoint someone who intellectu- aisle complain because for 18 months dent of the United States from a fair ally agrees with your philosophy. Priscilla Owen was held in the Senate up-or-down vote in the Senate. We can- When President Clinton was elected, Judiciary Committee during the chair- not tolerate that. That is behavior be- I came here, and I supported almost manship of Senator LEAHY. I certainly yond the pale. That is behavior that no every Clinton nominee. Did I agree will not complain. It was his right not Senate, prior to the last one, tolerated. with them? Absolutely not. Did I think to report her nomination to the Senate None. most of them would be damaging to the floor. Why? Because they were in the I have repeatedly asked and I know court? Absolutely. Did I vote for them? majority. If a majority of that com- other people have asked repeatedly, Yes. There are a couple of exceptions. mittee did not support her nomination, Name one judge brought to the floor of One in particular, I have to tell you, fine, hold it in committee. Defeat her the Senate who had majority support who caused me a lot of heartburn was in committee. That is fine. No problem. who was not confirmed. Name one, Judge Richard Paez from California If someone happens to be reported prior to 2 years ago. Never happened. who showed a record of activism on the out and a majority defeats, fine, major- Never happened in the entire history of court that was upsetting to me and ity rules. This idea that 60, 80 whatever the Senate. Never happened. We have showed that he was not someone who Clinton nominees were held in com- 10, potentially 16 who would have that understood the role of a judge. mittee by Republicans during the last privilege because of this new prece- So under that he certainly was quali- few years of the Clinton administra- dent. fied, and I had no questions about his I cannot understand how Members of tion, they were held because the major- ethics, but I did have a question as to the Senate can come here and say what ity opposed them. The majority rules, we are doing is breaking the rules. whether he understood the role of a up-or-down vote on majority vote. Breaking the rules? I do not know how judge. From his experience it showed That is the 214-year tradition of the you can possibly contort the facts of me he did not. Senate. There were many who wanted to fili- The idea now is the minority rules. this case around to where the Senate buster Judge Paez because of that very Republicans, by returning to the tradi- One can lose the presidency, lose four tion of the Senate of 214 years, is some- fact. In my mind, certainly from the seats in the House and control who is how breaking the rules. standpoint of not wanting someone on going to be the next circuit and Su- This is truly a sad day. It has been a the court, it would have been a justifi- preme Court judges in the United sad week. If you look and listen to my able filibuster, except for the fact that States? Very interesting. I guess elec- constituents—and I am sure all of our is not the way we do things in the Sen- tions do not matter. I guess who people constituents—they are not happy about ate, because you know what. The Presi- vote for, for President is of no concern this debate. They are not happy a dent won the election, and he can to the minority in the Senate. They group of 100 leaders—100 leaders—can- nominate who he wants. And we in the are the ones who should dictate who not negotiate and find some way of act- Senate have had a tradition saying if the nominees of this President should ing civilly, of reflecting to our children you can get a majority of votes in the be. They are the ones who should dic- and our grandchildren that we know Senate, you get confirmed. tate who comes to the floor and wheth- how to play nice and we know how to It is about majorities. And by the er they get a vote or not. play by the rules. way, I voted for cloture on Judge Paez That is not the precedent of 214 But the passions of the moment, the and voted against him on the floor years. It has been an up-or-down vote. passions of the moment have swept when an up-or-down vote came. He did This is an outrage. This is an abuse of over us, and those groups out there not get 60 votes. Had we filibustered, power. that are fomenting this because of he would not be on the Ninth Circuit It is interesting we are in the Senate, their own ideological agenda are the today. We did not. I did not because it and we are talking about the minority culprits, or at least the motivation, was not the right thing to do. It was abusing power. Yes, the minority can but the votes are here. The votes are absolutely not the right thing to do. abuse power in this case, and in my here. I am hopeful there are enough on I suggest that we have changed the opinion they certainly have. the other side of the aisle who will qualifications from highly ethical, One final comment, and I apologize come to the realization this is not good highly qualified and understanding the to the Senator from Georgia and I ap- for them, this is not good for their ide- role of a judge to someone who is ‘‘in preciate his patience. I just want to ology, it is not good for their partisan- the mainstream.’’ That seems to be the make a comment on one case. Yester- ship, this is not good for the institu- idea now. So we are talking about ide- day I heard the Senator from Cali- tion, and this is not good for the coun- ology, in the ideological mainstream. fornia make a statement with respect try to continue down this path. There were probably—well, Richard to Janice Rogers Brown, one I am par- When I came to the Senate, I came Paez, certainly from my view, I would ticularly concerned about because it from the House, like the Senator from argue, is probably not in the ideolog- deals with the issue of Catholic Char- Georgia, from the legislature, like the ical mainstream of America but they ities. I heard the Senator from Cali- Presiding Officer. I had never dealt all supported Judge Paez. fornia in describing Justice Janice with executive nominations before. So Probably Justice Harlan, who was Rogers Brown’s decision in that case one of the things I looked into is how the lone dissenter in 1896 in Plessy v. and she used the following words in de- do I determine what a good judge is. Ferguson, was not in the mainstream scribing her dissent: She, meaning Jus- We did a little looking around and de- at the time. tice Brown, was the only member of termined how do you evaluate a judge. Thurgood Marshall was confirmed in the court who voted to strike down a First, are they qualified? Do they the Senate to the circuit court back in State antidiscrimination law that pro- have the educational skills, the experi- 1961 with 54 votes. As a lawyer for the vided a contraceptive drug benefit to ence to do the job? Second, are they NAACP in the 1950s, probably a lot of women. That is her comment. ethical, not just did they break any people in America would not have said Now, she did not go into the fact laws, but are they ethical individuals he was in the mainstream. what this law said. What was this law? and have a reputation for high ethics? There are a lot of judges who are not Well, it was a law that said that if an And three, do they have an under- ‘‘in the mainstream’’ depending on employer provided health insurance standing of the role of a judge? Those what stream one happens to be swim- they must provide contraceptive cov- are the three things. ming in. erage—must. Now most folks who have

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5499 dealt in this area before would say: Is they vote for and against as opposed to ger crowd with the Senator from Penn- there not an exemption for those reli- following what the law says. sylvania than I had. It was early in the gious organizations who do not believe So if a consumer comes before a morning. It wasn’t much of a gallery. I in contraception? The answer is the judge, they are supposed to be pro-con- figured nobody was listening. The dis- California legislature did provide such sumer? If a business person comes be- tinguished Democratic leader quoted an exception. Let me read the excep- fore a judge, they are supposed to be me seven times since I made that tion. It said that we will exclude from pro-business? Is that what my col- speech. coverage for contraceptive methods leagues want judges to do, have a I want to address that quote for a that are contrary to their religious te- scorecard and make sure they are 50–50 second. nets. Sounds reasonable. We do that all on all of these things? You see, I told the story of being in the time. If it is contrary to religious These litmus tests that are being Baghdad and talking to a Sunni, a Shi- tenets of a religious organization, they spewed from the other side are a com- ite, and a Kurd and asking the Kurd: do not have to offer this particular plete undermining of what the rule of Well, now that you are in the minority, kind of care. law is to be about, about what justice aren’t you scared the Shiites are going As a Catholic, the tenets of the is to be about. They are infusing poli- to run over you? And he said: Oh, no, Catholic Church are that contracep- tics, policy, and partisanship in this we will use filibuster. tives are wrong, and therefore they do process. I thought that was a great remark. not want to, according to their reli- We must stop this. We must have up- Here was a Kurd from the north of Iraq, gious tenets, offer that service to their or-down votes. I hope we do it in a way in a place that had just won its liberty employees. Well, this is the California that does not force us to vote to do thanks to the blood, sweat, and tears of exception for a religious employer: that. the United States of America, and he One, the entity whose purpose is the The PRESIDING OFFICER. The Sen- was reading Adams and Jefferson and inculcation of religious values. Well, ator from Georgia. studying us. this is Catholic Charities. Is it Catholic Mr. ISAKSON. Madam President, I The next thing I know, the distin- Charities’ role to inculcate religious commend the Senator from Pennsyl- guished Mr. REID from Nevada says I values? No. One of the key roles of the vania on his remarks. For the moment said that to endorse a debate over Catholic Church is to care for the poor, that he is here, I want him to hear me whether or not the filibuster should be to care for those who are less fortu- say something. used on the confirmation of a judge. nate. It is a basic and core value of the I make the remarks I am about to I don’t blame him. But just so the church. We hear it repeatedly offered make with a full understanding, were I record is set straight, he is quoting a by Members on the other side. in the minority party and this another Kurd who read about America, who is We have discussions about the church day, I would need to make exactly the in the process of writing their constitu- and its theology, how core and central same speech and take exactly the same tion which, I presume when it is fin- helping the poor is. So they do not position. You see, I am new here, but I ished, will provide for a filibuster over qualify under that. have learned something very quickly. issues but not a filibuster to be used to Two, that primarily employs persons The words you say today will be the obstruct the justice of the new demo- who share its religious tenets. Well, words repeated to you tomorrow. cratic nation of Iraq. Catholic Charities does not primarily I learned something else. The genie I know my time is short. But I want employ people. They employ people came out of the bottle in the 108th Con- to make some observations. I want to who want to serve the needs of the gress. Whether it was Democrats or Re- make my remarks in the context of poor, and they do not ask whether you publicans, one day somebody would ul- Justice Brown. I know that Mrs. Owen want to go to church or not at a Catho- timately have to decide: Was the fili- is the current topic of discussion, lic Church. buster intended to be used on advice about which at some point in time we Three, that serves primarily persons and consent? hope there will be a vote, but Janice who share those religious tenets—in With all due respect to everybody I Rogers Brown is around the corner, and other words, only Catholics. Obviously have heard, it is just incorrect to say I felt like, after listening to all these not. They serve everyone. Mother Te- that to do away with the filibuster is debates, nobody is really talking about resa is the classic example of a Catho- going to make us a rubberstamp body. anybody’s qualifications. Have you no- lic out on the front lines serving the Go ask Clarence Thomas if this place ticed that? needs of the poor irrespective of who was a rubberstamp body, or Justice Even one of the deals that was of- they are. Bork. Think about the confirmations, fered was: tell you what, we will ap- Four, and qualifies as a church under most contentious in the last 20 years. prove any five, you just give us two we a particular section of Federal law. Ob- Nobody invoked a filibuster. One of are not going to approve. viously, Catholic Charities is not a those justices was confirmed. One was Does that tell you they care anything church. Under the religious exception not. about qualifications? Why, if you of the California statute, Catholic There are many responsibilities of thought there was an unqualified charities is an arm directly under the the Senate that are designated in the judge, would you let the other side pick control of the bishop, a mission of the Constitution. Impeachment is one. five and not pick two? I don’t think church, not a religious organization. Whoever heard anybody filibustering qualifications are the issue. I under- What Justice Brown said was that is an impeachment? Did you? The Con- stand that. That is another reason why an outrage, that is unconstitutional, it stitution says the Senate will conduct I say this is not a superfluous argu- is against freedom of religion to sug- that trial, as it says the Senate will ad- ment, were we in the minority and it gest that a Catholic organization, vise and consent on treaties—by two- was still being decided, and had the Catholic Charities, under that con- thirds majority. And on justices of the roles been on the other side. And it is struct, has to offer services in their court—simple. It doesn’t say maybe. It important that we decide it today. health care plan. I will agree she was doesn’t say if you feel like it. It is not Janice Rogers Brown was born in 1949 the sole person but that is hardly even confusing. I have it in my pocket. in the Deep South. I was born in 1944 in striking down the rights of women to I read it right before I came over here the Deep South. have contraceptive services. This was just to make sure I hadn’t missed When Janice Rogers Brown was born, an infringement upon the Religious something because I heard twice today I don’t know that her parents ever en- Liberty Protection Act. people say this document, the Con- visioned that she would be a supreme I find it very interesting a lot of stitution, doesn’t say things that it court justice in the State of California. folks come in here with their score- does say. When I was born, I doubt my parents cards. Well, she voted against con- I rise also, understanding how impor- envisioned that I would be a Senator. sumers this many times, she voted tant the words are, because the second However, in 1944, for a male white child against women this many times, she speech I made in the Senate, the first born in the South, it was possible to be voted against this, as if judges are sup- week of February this year, there was a Senator. In 1949, in the South, in Ala- posed to keep a scorecard as to who nobody in the Chamber. I’ve got a big- bama or Georgia, it would not have

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5500 CONGRESSIONAL RECORD — SENATE May 19, 2005 been possible for a parent to dream debate ends, whether through negotia- 39. Ralph Beistline, AK that for a female black child. tions or a vote, the men and women 40. Richard E. Dorr WD MO In my lifetime of studying this body, nominated to the Federal bench of the 41. Robert Clive Jones, NV the most prevalent use of the filibuster United States of America will know, 42. Ronald White, ED OK 43. Sharon Prost, Federal Circuit was by southerners in the debates over not that they are guaranteed a judge- 44. Thomas Hardiman, WD PA the civil rights laws in the 1960s. The ship, but they are guaranteed to know 45. Virginia H. Covington, MD FLO filibuster was used to protract the ulti- how the Members of the Senate voted 46. William Riley, 8th Circuit mate passage of those laws. It finally on whether or not they would be con- 47. Amy J. St. Eve, ND IL failed. Our country did what was right firmed. 48. Christopher Boyko, ND OH and those laws were passed. I yield the floor. 49. D. Michael Fisher, 3rd Circuit I would hope that today the filibuster Madam President, I suggest the ab- 50. David Godbey, ND TX would not be used to deny an up-or- sence of a quorum. 51. F. Dennis Saylor IV, Mass. down vote on Janice Rogers Brown be- 52. Gregory Frost, ND OH The PRESIDING OFFICER. The 53. J. Ronnie Greer, WD TN cause every parent deserves to dream clerk will call the roll. 54. James Robart, WD WA for every child that they will have the The assistant bill clerk proceeded to 55. Joe Heaton, OK chance—not the guarantee—but the call the roll. 56. Jose Linares, NJ chance. These justices who have been Mr. SCHUMER. Madam President, I 57. Kathleen Cardone, WD TX nominated by our President deserve an ask unanimous consent that the order 58. Larry Hicks, NV up-or-down vote. No one in here has for the quorum call be rescinded. 59. Louise W. Flanagan, ED NC challenged anybody’s right to vote yes The PRESIDING OFFICER. Without 60. Micaela Alvarez, SD TX or no. But they have challenged the objection, it is so ordered. 61. Morrison England, ED CA fact that, yes, every one of them de- Mr. SCHUMER. Madam President, I Madam President, I am illustrating serves a vote, and that is what this de- yield myself 7 minutes and then will how many judges—208 to 10—we have bate is all about. yield to the Senator from New Mexico approved in this Senate, an out- So, as one who is new to this Cham- 15 minutes immediately after me. standing 95-percent record, nothing ber but understands how important The PRESIDING OFFICER. Without that any President should complain this debate is, I rise to repeat that I objection, it is so ordered. about. will vote to support a vote, up or down, Mr. SCHUMER. Madam President, as We will continue the reading later. on every nominee. Understanding that, most have said, we believe we have I yield the floor to my friend and col- were I in the minority party and the been more than fair. We have con- league from New Mexico, Senator issues reversed, I would take exactly firmed 95 percent of the President’s BINGAMAN. the same position because this docu- judges. As I have said before, if my Mr. BINGAMAN. Madam President, I ment, our Constitution, does not daughter came home with a 95 on her thank my friend from New York and equivocate. It designates that responsi- report card, I would say, great. What congratulate him on his leadership on bility to the Senate. I repeat, we are some on the other side want to say is this very important issue. not breaking an old rule, we are ad- this: Only got a 95? Break the rules and I find it very unfortunate that dis- dressing an issue that was raised in the get 100. agreements about judicial appoint- last Congress as to where the filibuster We do not believe in that and would ments have brought us to the point would apply. It must be decided, and like to exhibit in the most graphic way where the majority is ready to take we must be diligent in our debate, re- how we have supported 208 of the 218 away the longstanding right of each spectful of the differences of opinions judges by doing something very sim- and every Senator to unlimited debate. but, in the end, understanding of our ple—by reading the names of the 208 That is a very major change in the way responsibility as Members of the Sen- judges the President has nominated business has traditionally and histori- ate and those elected to represent and gotten approved by this Senate. cally been done in the Senate. those who brought us here. 1. Callie Granade, SD AL This is a confrontation that could Madam President, I see my time is 2. Consuelo Callahan, 9th Cir. easily have been avoided by the Presi- about up. If the Chair will inform me, 3. David Bunning, ED KY dent and his legal counsel if they had I believe I have 2 minutes. 4. Dora Irizarry, USDC ED NY been willing to follow what I under- The PRESIDING OFFICER. The Sen- 5. Gary Sharpe, USDC ND NY stand to be the normal practice that 6. Henry Hudson, ED VA historically has prevailed and should ator has 2 minutes remaining. 7. James Gritzner, SD IA Mr. ISAKSON. I will close by going 8. Jeffrey Howard, 1st Circuit prevail. Someone asked: What is that to a quote I heard earlier today by the 9. John Roberts, DC Circuit normal practice? It is simply the prac- distinguished Senator from Massachu- 10. Julia S. Gibbons, 6th Cir. tice of consulting with the Senators setts, who talked about the history of 11. Kurt Engelhardt, ED LA most involved in the nominating proc- judicial confirmation, and my under- 12. Leonard Davis, ED TX ess before making a final decision on standing of history is the same as his. 13. Margaret Rodgers, ND FL which individuals to nominate. The distinguished Senator said the 14. Michael McConnell, 10th Cir In the case of judicial nominees for 15. Paul Cassell, UT Federal court positions in my State of first two times our Founding Fathers 16. Ralph Erickson, ND worried about writing the Constitu- 17. Richard Holwell, SD NY New Mexico, and also positions to be tion, they were going to designate the 18. Robert Conrad, WD NC filled on the Tenth Circuit Court of Ap- appointment of judges to the Senate. It 19. Rosemary M. Collyer, DDC peals that are designated for New Mex- was only on the third meeting that, at 20. Stanley Chesler, NJ ico attorneys, I have been contacted, the Constitutional Convention, they 21. Thomas Phillips, ED TN and I have been asked if I had objec- determined it be a joint responsibility: 22. Walter Kelley, ED VA tions to perspective nominees in each Nomination by the President, con- 23. William Smith, RI case before a final decision to nomi- 24. C. Ashley Royal, MD GA nate has been made. And that is not firmation by the Senate. 25. Clay Land, GA The distinguished Senator is abso- 26. Danny Reeves, ED KY just in the last year or 2, this is over lutely correct. He described it as a dual 27. Diane S. Sykes; 7th Circuit the 22-plus years I have served in the responsibility. It would be irrespon- 28. Frederick Martone, AZ Senate. As far as I can remember, I sible for the Senate to avoid expressing 29. Henry Floyd, SC have been afforded that courtesy each itself in advice and consent on the 30. James Gardner, ED of PA time. We, the Senate, have confirmed; qualification of any nominee. To do 31. Jay Zainey, ED LA and Presidents Reagan and Bush, Sr., anything other than that which the 32. John Houston, SD CA and Clinton and now George W. Bush Constitution designates to us would be 33. Judith Herrera USDC D NM have nominated many individuals for 34. Kim Gibson, WD PA to abrogate our responsibility. Our 35. Legrome Davis, ED PA the Federal court in my State during Founding Fathers were right over 200 36. Marcia Krieger, CO that time. years ago, and our leader, whom I com- 37. Michael H. Watson, SD OH It is also my understanding that mend, is right today. I hope when this 38. Paul A. Crotty, SD NY more often than not the chair and the

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00048 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5501 ranking member of the Judiciary Com- less they are changed as provided in these is dangerous to set a precedent of ig- mittee have been afforded that same rules. noring those rules that govern how we courtesy prior to the nomination of in- In accordance with Senate rule XXII, go about changing rules. dividuals to court of appeals positions any such change can only be made with Indeed, if one rule can be changed or to a Supreme Court position. Much the approval of two-thirds of all Sen- this way with a simple majority vote, of the current confrontation and ran- ators elected. That is 67 Senators. why not others as well? cor could have been sidestepped if that Requiring continuity of the rules The majority leader has argued that practice had been followed with respect from Congress to Congress, and requir- the Senate’s record of processing the to the nominees who are currently in ing that changes to the rules meet a President’s judicial nominees is so dispute. Unfortunately, this President threshold vote well above a simple ma- egregious that it justifies breaking the has chosen a different course. jority, has a very straightforward pur- rules and disregarding over 200 years of Rather than consulting before a nom- pose. It ensures that the rules gov- precedent in order to get more nomi- ination is made, the White House has erning the Senate remain constant, nees confirmed. Let’s examine this chosen to make nominations that it that they are not changed whenever record. My colleague from New York knows will be highly controversial, in one party believes the rules are ham- has already discussed at length the some cases where it knows that the pering their ability to get their way in number of judges, appellate court Senators from the nominee’s State are the short term. judges, district court judges, we have strongly opposed to that nominee. Some in the majority party have approved in this Senate since this Where nominations have been blocked complained that it is necessary to President has been in office. during one Congress, the 108th Con- change the rules with respect to use of We have the lowest vacancy rate in gress, last Congress, the President has the filibuster on judicial nominees be- the Federal judiciary since President chosen to renominate those same indi- cause in their view the current 60-vote Reagan was in office. The Senate has viduals in the succeeding Congress. requirement to end debate is too high. confirmed 95 percent of the President’s Madam President, this is not a strat- I have no objection to debating that nominees. In addition, Democrats have egy to unite rather than divide the issue and bringing it to a vote. Indeed, offered to bring up several of the dis- country. This is a strategy to split and throughout the Senate’s history there puted nominees for consideration, to polarize the Senate and the Amer- have been a variety of proposals to which would bring the confirmation ican people, and it is clearly having modify the rules governing the fili- rate closer to 98 percent. Unfortu- that exact effect. buster. nately, the majority leader has re- Given where we are, I, like most of For example, in 1975, the Senate re- jected that proposed compromise. my colleagues, feel obliged to come to duced the number of votes required to Some have also asserted that Demo- the Senate floor and speak on this so- end debate from 67 to 60. In 1995, I sup- crats are charting new ground in fili- called nuclear option. In my view, this ported a proposal Senator HARKIN of- bustering judicial nominees. Frankly, is a misguided effort that will not only fered which did not pass but would this is just incorrect. It is contrary to harm the Senate, it will also have a have revised the procedure. So why is the history of the Senate. Republicans significant impact on the checks and not the majority leader bringing this did filibuster Abe Fortas in 1968 when balances that our Founding Fathers proposal, which he is now threatening he was nominated to be the Chief Jus- envisioned. I am disappointed that the to make, up for a vote under normal tice of the U.S. Supreme Court. The fil- majority leader has decided to pursue procedure? Simply put, he does not ibuster was successful. He ultimately this course of action. I regret that he have the votes to pass the measure if withdrew his nomination from consid- has repeatedly rejected the minority we stick by the rules of the Senate, the eration. leader’s offers to compromise on the 67-vote rules of the Senate. I agree we have an obligation to proc- issue. So his proposal is simple: If you do ess the President’s judicial nominees in There are two distinct issues I want not have the votes to pass the proposal a fair and judicious manner, and, as the to discuss briefly today. The first is the using the rules as they exist, then record demonstrates, that is exactly manner in which the change is being make up your own rules so you can what we have been trying to do. made, the idea that the majority can pass it. Under this procedural maneu- However, I do understand the general simply change longstanding Senate ver, if the Senate votes to not end de- frustration surrounding the processing rules whenever it believes it would be bate on one of the disputed nominees, of judicial nominees. During the Clin- expedient to do so. I find that notion the majority leader intends to make a ton administration, the Republican deeply troubling. We are a nation of point of order requesting that the Pre- majority, during several of those years, laws, and our institutions need to re- flect this. siding Chair, who will likely be the killed over 60 nominees through a vari- The second issue I want to discuss is Vice President, rule that only 51 votes ety of delay tactics, mostly by refusing the merits of the proposal and the im- are needed to confirm appellate and to give hearings in the Judiciary Com- pact of eliminating the ability to fili- Supreme Court nominees. mittee. As a result, many of those buster. The use of the filibuster not Now, all of us know, and it is very nominees never got a chance to have a only ensures that minority views are clear to everyone who has studied this fair and open debate about their quali- respected in the Senate, it also plays issue, that is not what the Parliamen- fications, much less a vote on the Sen- an important role in checking the tarian would rule. The Parliamen- ate floor. power of the executive branch and in tarian has said just the opposite. I believe we should look for ways to ensuring that the judiciary remains Democrats will object, but the ruling improve the confirmation process so independent. would be upheld by a simple majority that it is conducted in a more bipar- Let me take a moment to briefly de- vote. It is my understanding this would tisan and constructive manner. But ex- scribe what this nuclear option entails. be the first time that we have changed ercising the so-called nuclear option is I recognize that discussing rules and the rules of the Senate without fol- not a step in the right direction. Let’s procedures is not an exciting topic, but lowing the prescribed procedure for be clear on what this is about. It is it is important that the American pub- doing so in the rules that we have about setting the stage for the debate lic understand precisely what is being adopted. This would entail overruling over the next Supreme Court Justice. done. This is not about whether every the Senate Parliamentarian. It is about putting in place a procedure nominee should get an up-or-down Madam President, I have to ask, that would limit the ability of Demo- vote. It is about whether it is accept- what is the meaning of a rule if it is crats and moderate Republicans to in- able for the majority party to dis- permissible to break it when one dis- fluence the debate. There would be lit- regard longstanding Senate rules in agrees with the outcome that would re- tle need to consult or to compromise if order to get its way in each and every sult if the rule were followed? If the the nominee could be pushed through case that comes before the Senate. majority leader wants to try to modify the Senate with a straight majority Senate rule V states that: the filibuster, he has the right to at- vote. The rules of the Senate shall continue tempt that, but he should do so within As I have discussed, I strongly dis- from one Congress to the next Congress un- the parameters of the Senate rules. It agree with the tactics that have been

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5502 CONGRESSIONAL RECORD — SENATE May 19, 2005 chosen here to make these changes. several of the most controversial nomi- disregarding Senate tradition. I urge With regard to the merits of the pro- nees who lacked widespread support, my colleagues across the aisle to seri- posal to eliminate the filibuster for ju- rather than to heed the concerns that ously consider the ramifications of this dicial nominees, I would like to take a had been raised about their nomina- so-called nuclear option. It is not good moment to elaborate on the profound tions. The Senate has coequal respon- for the Senate, it is not good for the implications of moving forward with sibilities in the appointment process. It delicate checks and balances that gov- this effort. I believe such a change is important for the administration to ern our Government, and it is not in would be not only detrimental to the recognize this when it decides which the interest of the American people. Senate as an institution but will also nominees to send to the Senate for con- I yield the floor. result in significant deterioration of sideration. The PRESIDING OFFICER (Mr. COR- the checks and balances that ensure Without the filibuster, the President NYN). The Senator from Maryland is the independence of our judiciary. would essentially be free to appoint recognized. Having a procedure in place that al- whomever he wants to the Federal ju- Ms. MIKULSKI. Mr. President, I rise lows 40 Senators to keep a nominee or diciary with very little restraint. This to speak against this so-called nuclear legislation from being adopted serves would threaten the independence of the option. This is a sad day for the Senate many purposes. Most important, it fa- judiciary, which is charged with check- because I believe we are about to frac- cilitates compromise by guaranteeing ing the actions of the executive and ture 200 years of precedent and tradi- the minority a voice in the legislative legislative branches, by allowing a tion. I think we are about to fracture process. Unlike in the House of Rep- President to stack the courts with in- what I had hoped would be a bipartisan resentatives, where legislation can be dividuals willing to advance a par- approach to solving the compelling easily pushed through with a simple ticular agenda or ideology. problems we face in the United States majority vote, the Senate is an institu- If the same party controls the Senate of America, and the Republicans are tion where deliberation and com- and the White House, as is the case about to change the rules in the middle promise are absolutely essential. today, the ability to filibuster is a pri- of the game. One of the hallmarks of the United Forcing Senators to achieve common mary restraint on the majority party States of America is always fair play. ground in order to complete the peo- of using its power in the nomination And fair play means a belief and re- ple’s work is something that should be and confirmation process. As the spect for the rules because we are a na- encouraged. Bipartisanship has been in Framers recognized, it is reasonable to tion that believes in rules and in the short supply in recent years, and we require that a lifetime appointee have rule of law. Whenever we are in com- need to be looking for ways to work to- the support of a substantial percentage petitive situations, we believe in rules. gether to address the challenges we of Senators who have been elected. You don’t change the rules in the mid- face in America. There is a reason why the Framers dle of the game. You don’t change the I have had the privilege of rep- granted the Senate and not the House rules in a game you are losing. But resenting the people of New Mexico for of Representatives the constitutional here especially there is no reason to over 22 years now in the Senate. I rec- authority to provide advice and con- change because the Bush administra- ognize the importance of working sent. The Senate’s procedures ensure tion is not losing. They have had more across the aisle to achieve results. Ear- extended debate and respect for minor- nominees confirmed than almost any lier this week, we held the first of sev- ity views, which in turn facilitate com- other Administration in recent history. eral hearings on comprehensive energy promise and moderation. I personally This is a manufactured crisis. There legislation to try to mark up legisla- believe that having qualified and rea- are those who say there is a crisis in tion in that area. I am extremely en- sonable judges in the Federal judiciary, terms of confirming judges. There is no couraged by how members of the com- regardless of political party, who inter- crisis. George Bush is not losing. Right mittee from both parties have been pret the law objectively and in accord- now, right this minute, we have con- working together. It is my hope that ance with mainstream legal theory is a firmed 208 of the President’s nominees bipartisanship and sense of compromise good thing. These are lifetime appoint- for the bench. That is a 95-percent con- can be adopted elsewhere in the Sen- ments, which deserve rigorous debate firmation rate. I would think that get- ate. This exemplifies how we should be and substantial scrutiny. This scrutiny ting 95% of what you want would make facilitating more compromise between would be significantly diminished if you declare victory. But, oh, no, that is the majority and minority parties. the majority party could appoint who- not good enough. There is a desire to The filibuster is not only an impor- ever they want to the judiciary with- change the rules so that the President tant check on the majority power with- out concern for the views of the minor- gets 100% and we cannot exercise our in the Senate, but it is also an essen- ity. And the independence of the judici- constitutional responsibility of advise tial check on the executive branch. Ar- ary would be threatened if judges ap- and consent. ticle II, section 2 of the U.S. Constitu- proach their work with a particular Now I know that many of my col- tion provides the Senate and the Presi- concern for carrying out the will of the leagues on both sides of the aisle don’t dent shall share the power to appoint party in power at that moment. want to change the Senate rules. They judicial nominees. The President is It is not surprising that a President know the ebbs and flows of this institu- granted the authority to nominate. would seek to expand his authority in tion one day you are in the majority The Senate is vested with the author- the appointment process. But it is dis- and the next in the minority. And they ity to provide its advice and consent. appointing to think that the Senate know its not fair to change the rules in This is a serious constitutional duty. I might accede to this and abrogate its the middle of the game because doing do not believe the Senate should be rel- own constitutional authority in exer- so undermines century of tradition and egated to the role of a glorified cising its obligation to provide advice the very essence of the Senate as the rubberstamp. That is not what the and consent. world’s premier deliberative body. American people want, not what the Lastly, the proponents of the nuclear So I have come to the floor today to Founding Fathers envisioned. option have said they only want to urge my colleagues to oppose this so- The prospect of a filibuster forces the eliminate the filibuster with regard to called nuclear option. I do this because President to submit nominees to the nominees, not with regard to legisla- I firmly believe in my heart of hearts Senate who will be able to garner the tion. But nothing about their rea- that we must always have an inde- support of more than a simple majority soning is unique to nominees. If this pendent judiciary and a judiciary that of that President’s own party. There can be done with regard to judicial has been confirmed according to the are plenty of well-qualified, conserv- nominees, it can certainly be done with traditional roles of the Senate. I know ative lawyers and judges who would regard to executive branch nominees as it is one of my foremost responsibil- easily be confirmed by this Senate. In well. And there is no logic for arguing ities as a member of the United States fact, the Senate has confirmed over 200 it cannot be done with regard to legis- Senate to protect the independence and of them since this President has been lation. integrity of our federal courts. Because in office. At the beginning of this Con- As I have stated, I have many con- our courts are charged with safe- gress, the President chose to resubmit cerns about employing this tactic and guarding the very principles on which

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00050 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5503 our nation was built—justice, equality MIKULSKI said no. That is one of the crimination. Her decisions impair the and individual liberty. ones that did not even come up. Why? rights of ordinary people to have access The courthouse door must always We think if you are going to represent to the courts. On the Texas Supreme stay open. And when someone walks Maryland on the court of appeals, you Court she has restricted a woman’s through that door, they must find an ought to be a member of the Maryland right to choose by ignoring statute and independent judiciary. In order to do bar and have some significant ties to creating additional barriers for women that, we cannot turn the Senate into a Maryland. We threatened a filibuster. seeking to exercise reproductive rubberstamp for any administration. This is the Maryland seat on the choice. We must not compromise our constitu- Fourth Circuit Court of Appeals. They We could go through Owen, and we tional checks and balances over 7 high- wanted to give us someone from Vir- could go through others. Priscilla ly controversial judges. The American ginia. We like Virginia, Senator WAR- Owen stands among a handful of nomi- people deserve better and, and the Con- NER, Senator ALLEN. We like judges nees who will turn back the clock on stitution requires it. from Virginia, but not for the Mary- protecting important constitutional When Alexander Hamilton and others land seat. And Senator SARBANES and I rights. We know through our examina- were at the Constitutional Convention said we would filibuster. So we stopped, tion of these nominees that they are inventing America, they wanted checks prevent our state from losing its seat outside the judicial mainstream, and and balances. They wanted no one to on the court of appeals because of the we want to exercise our priority and have absolute power, they wanted no Senate rules. our responsibility on advice and con- individual to have absolute power, and Though some of them never came sent. And now Republicans want to they wanted no institution within our forth as nominees, we knew we had the focus on the jobs of 7 people who al- Government to have absolute power. rules of the Senate to prevent this in- ready have jobs when we have 7.7 mil- That is why we have the system of justice to Maryland. We invited the lion Americans who don’t. checks and balances. That is why the White House to look at the thousands greatest check and balance is the ad- of lawyers in Maryland who are mem- They want the change the subject vice and consent role given to the Sen- bers of the bar, who have judicial com- away from issue that Americans care ate. The President nominates and the petence and judicial temperament and about to a handful of extreme judicial Senate has an important co-equal role commitment to basic constitutional nominees. They say there is a crisis to play in the confirmation process. principles. Maryland would recognize but there are more federal judges now So the Senate has a very real and them. than at any other point in our nation’s critical role to play here. It can’t rub- But we were ready to use these rules history. This is the lowest vacancy ber stamp nominees. It can’t give con- in the Senate to protect the Maryland rate on the courts in a decade. Repub- sent without a thorough examination seat and make sure whoever was on the licans have the wrong priorities. and it should not support nominees court of appeals for the Maryland seat I had to explain what this nuclear op- who don’t respect basic judicial prin- would at least be a member of the tion means to a head of state. Did you ciples. Maryland bar or at least be from Mary- ever have to explain to someone who is When we are talking about this, we land and have significant ties there. a former head of a government in a Eu- say, What does it mean? Who has been Those are the rules. That is how you ropean country, who himself fought for nominated? Who has been confirmed? exercise advice and consent. We gave freedom and was a dissident and even Whom have we opposed? I have given advice, they ignored it, so they were in prison, what a nuclear option the statistics. Since the President has not going to get our consent. Hey, means? He thought we were talking been in office the Senate has confirmed those are the rules. We do not want about using nuclear weapons. 208 of his nominees and rejected only those rules changed, and it would be I had to explain this to members of 10. That’s 95 percent approval and the same if there was a Democrat in my family, the senior citizens in my those we have rejected have been the White House. family. ‘‘Barb, what is this nuclear op- among the most controversial and ex- We could look at the nominees Presi- tion? Are we thinking about using nu- treme nominees. Nominees who did not dent Bush has given us. Not only do we clear weapons?’’ We use language here represent the mainstream of American get people who are not members of a very glibly, and I think exaggerated. legal thought. Nominees hostile to bar, but we get some who are outside What I said was we are headed for a civil rights, women’s rights, reproduc- the judicial mainstream. meltdown. We cannot let the Senate tive rights and working families. Judge Priscilla Owen is an example melt down, and we will melt down if we Let’s talk about the 208. Let’s talk of someone who would turn our courts do not stop these proceedings from about working on a bipartisan basis. in the wrong direction. She has a his- going forth. We need to have an insti- Let’s talk about Maryland. tory of being driven by ideology and tution that functions on a bipartisan There were three openings on the not law. Her beliefs are far outside the basis. Federal bench in Maryland for the dis- mainstream of judicial thinking. She trict court. Governor Ehrlich sent has an extreme ideological agenda on Some of the happiest and most dis- forth three names of outstanding peo- civil rights, women’s rights and the tinguished accomplishments of my life ple of judicial competency. Senator right to privacy that we severely ques- have been accomplished because of SARBANES and I moved them straight- tion and make her unsuitable to sit on working on a bipartisan basis. In the forward and ahead, even though one this federal court. 1990s, I worked with the Senator from had been the chairman of the Repub- She is a judicial activist, that means Colorado, Mr. Hank Brown, and we lican Party. We did not care about she has a consistent pattern of putting worked to bring Poland, Hungary, and that. Second, he had even run for at- ideology about the law and ignoring the Czech Republic into NATO. We had torney general. We did not care about statutory language and substituting to stand up to a Democrat such as Sen- that. What we cared about was that the her own views. Something about which ator Moynihan and a Republican such Maryland Bar Association said he was even officials in this White House have as Senator WARNER to get the Senate qualified. raised concern. Alberto Gonzales, now to consider it, but we worked on a bi- No. 2, he had been a U.S. attorney our Attorney General, who once served partisan basis, and we extended NATO and had done a stunning job, and he with her, called her dissent in a case from old Europe to a new Europe. And had extensive legal background in ‘‘unconscionable . . . judicial activism’’ right now, the people we brought into Maryland. We did not play politics. We and in another case said her dissent NATO are fighting with us side by side moved Judge Bennett, Judge Quarles, would judicially amend the Texas stat- in Iraq and are part of the coalition of and Judge Titus. ute. In other words, she was making the willing. Bipartisan relationships Then came the court of appeals. Oh, law rather than interpreting law. did that. my gosh, guess what came out of the Her opinions show a bias against con- Because of our work in the Senate Bush administration. They wanted to sumers, victims and individuals. She where the women get together at least give us a guy who was not even a mem- has consistently ruled against workers, once a month to have dinner for friend- ber of the Maryland bar. SARBANES and accident victims and victims of dis- ship and fellowship and to talk about

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00051 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5504 CONGRESSIONAL RECORD — SENATE May 19, 2005 an agenda, we have done a lot on wom- ate’s rules to protect our democracy, In 2000, the vote was 50-to-48. en’s health. We have increased mam- to protect our freedoms, and to protect In 1999, the vote was 54-to-44. mogram funding research by 700 per- our liberties. After two centuries, it In 1998, the majority was once again cent. We have increased funding for do- would be a mistake to change those unable to adopt a budget resolution. mestic violence. We have done all this rules. And 1997 was the exception that when we worked together. Unlimited debate allows Senators to proved the rule. That year, the budget My gosh, when we work together we protect minority freedoms. Unlimited resolution achieved a broad consensus, work our best. Let us now stop this debate helps to ensure that no one receiving a vote of 76-to-22. dangerous course. We should not con- party has absolute power. Unlimited But in 1996, the vote was 53-to-46. tinue further on this terrible down this debate helps to give effect to the In 1995, the vote was 54-to-46. path on which we are embarking. The Founders’ conception of checks and In 1994, the vote was 53-to-46. American people want us to be stand- balances. In 1993, the vote was 55-to-45. ing up for jobs. They want us to be able History will see the actions of this And in 1992, the vote was 52-to-41. to face straightforward the health care month as what they are: A threat to Thus, over 14 years, under Repub- crisis, and they want to make sure we those checks and balances. History will lican Presidents and a Democratic stabilize the pension crisis in the see the actions of this month as a ter- President, over the course of nearly a United States of America. Young peo- rible attempt to diminish the Senate. decade and a half, only one budget res- ple want to be able to afford college. History will see the actions of this olution has been the product of con- They wonder what are we doing here. month as an attempt to diminish our sensus. Fourteen years, and only one Republicans are spending all this time democracy. budget with more than 55 votes. on the nuclear option and debating 7 If those who seek to change the rules The time limit on debate has not led controversial nominees instead of fo- succeed, especially by breaking the to working together. The time limit on cusing on our national priorities. When rules, it will be only a matter of time debate has caused partisanship. And all is said and done, is will be that before the next step comes. It will be three times in the last decade, the time more gets said than gets done? only a matter of time before some fu- limit on debate has led to complete Let’s put the nuclear arsenal option ture Senate leader decides to once failure. back into the missile silo. We must do again to break the rules to change the That is what would happen to the so to preserve the constitutional role rules, and abolish the filibuster alto- Senate if we head down this road. of the Senate to advise and consent and gether. Votes would become more partisan, if protect our checks and balances. And what will the Senate look like that is possible, but it would happen. Let’s get back to doing the business then? And the products of those votes would of the people. The American people de- Then all our votes will be simple ma- become more extreme. serve that and they deserve a Senate jority votes. Then lost will be a cen- If we head down this road for the con- that works for them. A Senate that turies-old check and balance. And then firmation of judges, then judges will be governs best when it works together, what will be left will be a vastly dif- more partisan. Judges will be more and let’s start putting the people first ferent Senate from the one to which I likely to uphold the powers of the rather than politics. came in 1978. President who appointed them. And I yield the floor. judges will be less likely to defend indi- The PRESIDING OFFICER. The Sen- The majority leader has proposed vidual freedoms and liberties against ator from Montana. that debate on important judges be Mr. BAUCUS. Mr. President, last limited to a fixed number of hours, to the powerful executive. Just think about that for a moment. week on Wednesday, we evacuated the 100 hours. That might sound like a lot Capitol. At the instruction of the Cap- of time. Under this rule change, judges will be itol Police, more than a few Senators But the point is not the number of less likely to defend individual free- and staff actually ran from this build- hours. The point is that at the end of a doms and liberties against the powerful ing and surrounding offices in the very set amount of time, no Member of the executive. Why? Because of the par- real fear that a plane was carrying a minority party need participate. At the tisan nature under which a partisan bomb to attack this building, the cen- end of a set amount of time, only the President will have appointed them. ter of our democracy. majority party will rule. At the end of The Senate’s role in protecting Sadly, Wednesday was not the first that set amount of time, there would against extremism is particularly im- time, and Wednesday will likely not be be no more check and balance. portant in the context of nominations the last time, that we guard against If one wants to see what the Senate for the lifetime jobs of Federal judges. threats to our democracy by plane or will look like then, look at budget res- The Founders wanted the courts to be by bomb. olutions. Like the majority leader’s an independent branch of Government, But there are other threats to our de- proposed rule, they allow for a long pe- helping to exercise the Constitution’s mocracy and our freedoms just as men- riod of debate. The leader’s proposal intricate system of checks and bal- acing, equally as dangerous. calls for 100 hours of debate on judges. ances. The Senate’s involvement in the Abraham Lincoln said: The Budget Act calls for 50 hours of de- confirmation of judges has helped to America will never be destroyed from the bate on budgets. ensure that the judiciary can be that outside. If we falter and lose our freedoms, it Look at the results. more independent branch. And that will be because we destroyed ourselves. Rarely do budget resolutions achieve independence of the judiciary, in turn, Former Librarian of Congress Daniel consensus. Since 1992, only one budget has helped to ensure the protection of Boorstin said: resolution has received more than 55 our democracy, our freedoms, and our It is not slogans or bullets, but only insti- votes on final passage. liberties. tutions that can make and keep people free. This year, the vote on the budget res- In ancient Rome, when the Senate And Baron Montesquieu wrote in olution was 52-to-47. lost its power, and the emperor became ‘‘The Spirit of the Laws’’: Last year, the disagreements on the a tyrant, it was not because the em- There is no liberty, if the judiciary power budget were so partisan that the ma- peror abolished the Senate. In ancient be not separated from the legislative and the jority was not able to bring the con- Rome, when the Senate lost its power, executive. ference report on the budget resolution it continued to exist, at least in name. The effort to break the rules to allow to the floor in the Senate. But in ancient Rome, when the Senate the President more easily to appoint In 2003, the vote was as close as it lost its power, in the words of the Sen- judges that undermine the independ- could get: 51-to-50. The Vice President ate’s historian, Senator ROBERT BYRD, ence of the Federal judiciary is no less had to break the tie vote. the Senate became ‘‘little more than a than a threat to our democracy, a In 2002, once again, divisions were so name.’’ threat to our freedoms, and a threat to partisan that the majority was not In ancient Rome, when the Senate our liberties. able to secure a majority in the Sen- lost its power, the Roman Senate was For two centuries, Democrats and ate. complicit in the transfer. The emperor Republicans alike have used the Sen- In 2001, the vote was 53-to-47 did not have to seize all the honors and

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00052 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5505 powers. The Roman Senate, one after Senators. I have gotten into some of throat a judicial nomination just be- another, conferred greater powers on the discussions that are going on cause the White House wants it. Caesar. around this Capitol Building right now, I have agreed with the White House It was not the abolition of the Senate to see if we can head off this thing. It 97 percent of the time. You can cal- that made the emperor powerful. It was doesn’t look like we can. It looks like culate it mathematically, that is 97 the Senate’s complete deference. people are hardening into their posi- percent of the time. So now they want Like the Roman Senate before us, we tions. I wonder why. Is it worth chang- to take away the right, under the rule, risk bringing our diminution upon our- ing over two centuries of history and to filibuster so that no matter who selves. We risk bringing upon ourselves precedent in the Senate for what, in ef- comes in, they are going to be approved a hollow Senate, a mere shadow of its fect, are five judges? Is it worth giving if they have 50 votes. It could be 50–50, past self. And we risk bringing upon up the traditions and the protection of because the tie would be broken with ourselves a loss of the checks and bal- the minority, under the rules, for over the Vice President sitting as the Pre- ances that ensure our American democ- two centuries for five judges? siding Officer of the Senate. racy. I was surprised when I looked over There is another reason that has just This change, if it succeeds, will leave the record and found out what my vot- come to my attention why I do not Senators, as T.S. Eliot described in his ing record has been here. I have voted, want the filibuster to be eliminated 1925 poem, as ‘‘The Hollow Men.’’ In under President Bush, for 209 of his ju- from this particular set of judges. If it that poem, Eliot wrote of a place like dicial nominees; I have voted against 7. is done for this, what is next? What is what the Senate would become. He That is 97 percent of the President’s next? That the majority leader would wrote: nominees for Federal judgeships that I stand and take away the filibuster and ‘‘Our dried voices, when have voted for. Am I not entitled, as my right to filibuster as a Senator? Is We whisper together the senior Senator from Florida, to ex- he going to do that on what the admin- Are quiet and meaningless ercise my judgment on seven people for As wind in dry grass istration is bent on doing, and that is This is the dead land a lifetime appointment as judge, when drilling for oil and gas off the coast of This is cactus land I don’t think they have the judicial Florida—drilling for what 18 million In this hollow valley temperament in order to be judge for Floridians are deathly afraid of; that This broken jaw of our lost kingdoms life? That is what the Senate is all the $50 billion a year tourism industry In this last of meeting places about. That is what the Constitution We grope together is going to be threatened because of oil And avoid speech said it is all about. It says that the ju- lapping up onto our beaches? Gathered on this beach of the tumid river dicial process is a two-step process. Are they going to take away my This is the way democracy ends; this is the The President nominates and the Sen- right to stand out here and hold up way democracy ends; this is the way democ- ate decides. In the old language of the such legislation, to drill off the coast racy ends; not with a bomb, but a gavel.’’ constitutional forefathers it was ‘‘ad- of Florida, that would despoil our envi- I yield the floor. vise and consent.’’ ronment? Are they going to take away The PRESIDING OFFICER. The Sen- My advice was, on seven, that I my right to protect our military as- ator from Florida. didn’t think they had the judicial tem- sets, an asset that is so valuable it is Mr. NELSON of Florida. Mr. Presi- perament, that they would look dis- called restricted airspace? It is out in dent, before the distinguished Senator passionately at an issue, that they the Gulf of Mexico and portions of the from Montana departs, I want to thank would look at the facts and apply the Atlantic Ocean off Florida, which is him for obviously something that has law. Those seven seemed to me to have why we have so much training in Flor- been well thought out and deeply felt. their minds already made up. ida. The pilots can go out there in that He is a distinguished Senator who has That is not what I want in a judge. I restricted airspace. Are they going to served decades in the Senate and who want a judge who is going to be fair- take away my right to utilize the fili- has risen to the position as chairman minded, who is going to listen to all buster to protect the interests of Flor- of the Finance Committee. He under- the nuances and make a fair and rea- ida? stands the traditions and the comity of soned judgment. It is obvious that today they have this institution in order for it to func- I gave the President the benefit of started trying to drill off the coast of tion. It clearly cannot function unless the doubt on these 209. I can tell you, Florida. Two weeks ago, I had a meet- Senators can get along and trust each some of those were in Florida. On those ing with the Secretary of the Interior, other, where Senators can have respect I didn’t give him the benefit of the and I pleaded with her, as she had for one another, and where the minor- doubt; those were good because in Flor- agreed back in 2001, that she would not ity is not run over all the time by the ida we have a system whereby we have include within the 5-year plan that majority. a judicial nominating commission, That is one of the great checks and which is not by law but has been by there would be drilling further, other balances of this constitutional system custom over the years, and that judi- than what was the agreement back in that we have. The rights of the minor- cial nominating commission receives 2001, to extend an additional 1.5 million ity are protected because of extended the applications of people who want to acres for oil and gas leasing, and it debate which, at the end of the day, en- be a Federal district judge, they inter- started to intrude into the eastern Gulf courages compromise and consensus view them, and they make a rec- of Mexico. She promised it in the 5- building. ommendation to the Senators and to year plan which was from 2002 to 2007. As the Good Book says: Come, let us the White House. The arrangement So when I met with her 2 weeks ago I asked her to give me that—— reason together. that Senator GRAHAM and I had with So I thank the Senator for his com- the White House, with Alberto The PRESIDING OFFICER. The Sen- ments. I thank him for being a mentor Gonzales, then the counsel for the ator’s time has expired. to me, as I have so enjoyed his com- White House, was that we would inter- Mr. NELSON of Florida. I ask for an pany and his leadership as well as the view all of those recommended to us— additional 5 minutes to proceed. company of all these Senators. There is sometimes it was three, sometimes it Mr. REID. It is my understanding the not a Senator here that I don’t like. I was six—for the vacancy, and we would majority leader is on his way. I have no like them all. I want to see this body tell the White House if we had an ob- problem with the Senator speaking and continue to function as it has for 216 jection. the same time would be extended to years, as the greatest deliberative body That has worked. On the judges from the majority. in the world. We are about to change Florida that are within that 209 that I Mr. KYL. Reserving the right to ob- that dramatically if this nuclear op- voted for, I can tell you they are good ject, I was going to speak at 6 o’clock. tion is, in fact, employed. appointments. My understanding is the minority lead- I thank the Senator for his com- But that was the give and take be- er and the majority leader wanted to ments. tween the Senate and the White House intercede with a brief colloquy or com- Mr. President, I want to add in my in the filling of a judicial vacancy. ments. In order for my scheduling pur- own little way a plea to the rest of the That is not the ramming down your poses, I would like to know what the

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00053 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5506 CONGRESSIONAL RECORD — SENATE May 19, 2005 timing then might be. Can the distin- and I talk about coming to the floor, it the Senate, Bob Dole, dated Thursday, guished minority leader give me some is dog time, meaning every minute is 7 May 19, 2005. idea? minutes, so you never know. The PRESIDING OFFICER. Without Mr. REID. The Republican leader is Mr. KYL. Mr. President, I will go objection, it is so ordered. going to come to the floor and talk ahead and in between the sandwich we (See exhibit 1.) about what the schedule will be the will have the meat which will be the Mr. KYL. Secondly, I would like to next couple of days. It should not take conversation between the two leaders, very briefly remind my colleagues of long. I ask when he shows up that the but I will proceed with my remarks. the fact that when we talk about the distinguished Senator from Florida Now I am told the leader is indeed on numbers of judges President Bush has yield to the majority leader. his way, so I will suspend and yield to nominated who have been confirmed, it Mr. NELSON of Florida. Of course. the distinguished majority leader. is important for us to remember that Mr. REID. We get 5 minutes, they get The PRESIDING OFFICER (Mr. there has never been any controversy 5 minutes. CHAMBLISS). The majority leader is rec- with respect to district court judges. The PRESIDING OFFICER. Without ognized. Almost all Presidents’ district court objection, it is so ordered. Mr. FRIST. Mr. President, many judges are confirmed. Those are rec- The Senator from Florida is recog- Members have been inquiring about the ommended for nomination usually by nized for an additional 5 minutes. schedule, but I do want to thank all Members of the Senate, and it is rare, Mr. NELSON of Florida. This fili- Senators for their statements today, as indeed, that we would object to each buster issue is so important to me as I well as yesterday. The debate time has other’s recommendations. Instead, for project how it can be taken away from been evenly divided. We have heard all Presidents there is a very high me as I try to protect the interests of from a number of people. This is our number of district court judges con- Florida. second day of debate on the nomina- firmed. And indeed, that was the case I was about to point out that al- tion of Priscilla Owen for the Fifth Cir- with President Clinton and has been though the Secretary of the Interior 2 cuit Court. We have not had very much the case so far with President Bush. weeks ago, when I requested in the in the way of pauses in the debate. We So when talking about the numbers next 5-year plan that she extend the have used floor time well. And from of judges confirmed, and wondering same protections of no additional drill- both leaders, we thank everybody for what the fuss is all about, our constitu- ing in the Gulf of Mexico off of Florida, their participation and cooperation. It ents might want to focus on the fact would not give me that assurance. has been a constructive debate. that what the other side usually does I now see, as the result of a vote Tomorrow, we will resume debate. not talk about is the fact that the today in the House of Representatives, We will be continuing debate tonight, judges that are not being confirmed are an amendment offered for oil and gas but for people’s planning purposes, to- circuit court judges. These are the drilling off of the State of Florida. It morrow we will resume debate on Pris- judges directly below the U.S. Supreme may have been this amendment, may cilla Owen, and it would be my intent Court. There are not very many of have been just for gas drilling. That is to ask consent for some limitation of them. They are very important. And the proverbial camel’s nose under the time before we vote on the Owen nomi- these are the judges who are being fili- tent. nation. If we are unable to reach an bustered by the minority. All drilling, happily, in that amend- agreement, I would then file a cloture How many? Well, in the case of Presi- ment failed in the House of Representa- motion tomorrow, on Friday. dent Bush, in his first term—and none tives, but the Bush administration’s in- On Monday, we would return to ses- have been confirmed now at the begin- tent is now clear since the Secretary of sion and continue the debate on Pris- ning of his second term, so this is the Interior would not give me that assur- cilla Owen, much in the same vein it full story—35 of the President’s 52 ance that she gave me back in 2001. It has been yesterday, today, and will be nominees have been confirmed. That is is their intent to start drilling off the tomorrow. I encourage, once again, our only a confirmation rate of two-thirds coast of Florida in the Gulf of Mexico, colleagues to take advantage of the op- or 67 percent. And that puts that at the which brings me back to the filibuster. portunity to speak. The reason we are lowest percentage of any President in I don’t want to lose this precedent of spending the time is to make sure all our modern history. This chart says 216 years in the Senate, to lose this ideas and thoughts and concerns are ‘‘ever.’’ And that is what we are talk- right of a filibuster. If we do it with re- expressed. ing about here, the 10 filibusters and 6 gard to these judges, then what is com- The Democratic leader and I have other threatened filibusters last year ing next, they will take away our right discussed this, and we will have a vote of the President’s circuit court judges to stand up here for the interests of our on Monday at approximately 5:30. It who have been filibustered and, as a re- States? will be a procedural vote. I anticipate sult, have never received an up-or-down This is a matter of tremendous grav- it will be—we will say 5:30 now. Sen- vote. That is what is troubling us. ity. It affects all of us. ators should return for debate on this So I want folks to understand that I yield the floor. vote. On Monday, Senators will have as instead of talking about almost 200 Mr. REID. I suggest the absence of a much time as they need to debate the judges confirmed, and only a very few quorum. pending nomination. We will file clo- rejected, what we are talking about is The PRESIDING OFFICER (Mr. ture tomorrow, and then we would have the circuit court judges. And of those, CHAMBLISS). The clerk will call the the cloture vote on Tuesday. And the only 35 of 52 have been confirmed. That roll. timing of that vote is something the is what this is all about. And these are The assistant legislative clerk pro- Democratic leader and I have not the judges directly below the position ceeded to call the roll. talked about but will do so and make of the U.S. Supreme Court. Mr. KYL. Mr. President I ask unani- our colleagues aware. What I want to talk about today is a mous consent that the order for the With that understanding—and that is very simple and yet a very momentous quorum call be rescinded. the plan—we will have no further votes question. Does the Senate have the The PRESIDING OFFICER. Without this evening. And we would have no power to govern itself? Does the Senate objection, it is so ordered. votes tomorrow as well but continue have the power to govern itself? Spe- Under the previous order, the Sen- debate. cifically, can a majority of the Senate ator from Arizona is recognized. The PRESIDING OFFICER. The Sen- establish how we are governed? I have Mr. KYL. Might I inquire of the dis- ator from Arizona. heard a lot of careless talk over the tinguished minority leader, the major- Mr. KYL. Mr. President, very briefly, last few months and days. Some have ity leader will be here shortly? before I address the primary subject of charged the Senate will soon break the Mr. REID. A few minutes ago he said my presentation, I would like to do two rules to change the rules and destroy he was on his way. things. First, I ask unanimous consent the Senate as we know it. Some Sen- Let me say, one of the distinguished to have printed in the RECORD, after ators claim the Senate is about to ab- clerks, without divulging a person’s my remarks, the Washington Times op- dicate all constitutional responsibility, name, said that when Senator FRIST ed piece by a former majority leader of is becoming a rubberstamp. Others

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00054 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5507 raise the specter of lawlessness and ba- Second, the Supreme Court held that gether and decide, for example, to nana republics. Worst of all, Senators the power to make rules is not one change the time to hold a cloture vote, speak figuratively of detonating nu- which, once exercised, is exhausted. It even though rule XXII mandates that clear bombs and shutting down the is a continuous power, always subject the vote shall occur 1 hour after the Senate’s business. to being exercised by the House. By Senate comes into session on the sec- This kind of hysteria does a tremen- ‘‘House,’’ the court means the House of ond day after the cloture petition is dous disservice not only to the Senate Representatives or the Senate. The im- filed. Yet the leaders move the votes in but to our Nation as a whole. Not only port of this statement is crucial for direct contradiction of the rules. are the claims blatantly false, but they present purposes. The power of the ma- Of course, a unanimous consent add to the already unacceptable level jority of Senators to define Senate pro- agreement is formalistically unani- of incivility in our political affairs. It cedures is one that exists at all times, mous. But that temporary rule change, is often said we should disagree with- whether at the beginning, the middle, if you want to call it that, is done com- out being disagreeable. That is a senti- or the end of Congress. pletely outside the standing rules. ment with which I wholeheartedly con- The constitutional background is How can we do this? How can the cur. A good first step would be for my simple and uncomplicated. We can gov- Senate ignore the Standing Rules of colleagues to stop making outrageous ern ourselves. We can do it by majority the Senate? The answer is simple. It claims that Republicans want to de- vote, and we can do it at any time. Let goes to the essence of the situation be- stroy this institution. me repeat: The Supreme Court has held fore us today. As the Supreme Court The reality is the Senate is now en- that we have the right to govern our- held, the Constitution gives the Senate gaged in a historic debate and, I be- selves, that we can do it by majority the power to make rules and govern lieve, a historic effort to protect con- vote, and we can do it any time. itself on a continuous basis. We are not stitutional prerogatives and the proper Let’s look at how the Senate employs held hostage to the standing rules, nor checks and balances between the its constitutional power to govern are we required to go through the cum- branches of our Government. itself. There are four basic ways that bersome process of amending the Republicans seek to right a wrong the Senate does so: In standing rules, standing rules when it is necessary to that has undermined 214 years of tradi- precedents, standing orders, and in get something done. This has always tion—wise, carefully thought out tradi- rulemaking statutes. I will discuss been true. A fourth way that the Senate exer- tion. The fact that the Senate rules each briefly in turn. theoretically allowed the filibuster of First, the Senate has adopted stand- cises its constitutional power is judicial nominations, but were never ing rules to govern some but not all through rulemaking statutes. For ex- used to that end, is an important indi- Senate practices and procedures. I have ample, for 30 years the Budget Act has cator of what is right and why the seen much confusion in the press and been placing severe restrictions on the precedent of allowing up-or-down votes even, sadly, in this body about those rights of Senators to debate. Indeed, the Congressional Research Service has is so well established. It is that prece- standing rules. Some argue that the identified 26 rulemaking statutes that dent that has been attacked and which standing rules are the be-all and end- somehow limit the ability of individual we seek to restore. all of Senate practice and procedure. Fortunately, the Senate is not pow- Senators to debate and/or amend legis- The confusion might be understandable erless to prevent a minority from run- lation. Think about that for a moment. outside the Senate, but Senators know ning roughshod over its traditions. It We hear much pontificating on this that these rules are but one aspect of has the power—indeed, I would say the floor about the supposedly sacred and the overall set of tools, the broader obligation—to govern itself. As I will untouchable right of Senators to de- rules that the Senate uses to govern demonstrate today, that power to gov- bate on an unlimited basis. Yet, argu- itself. ern itself easily extends to the device ably, our most important function, That brings us to the second way the that has come to be known as the con- that of ensuring that government serv- Senate exercises its constitutional stitutional option. ices are budgeted and receive funding, power: the creation of precedents. The Constitution is clear about the is subject to carefully crafted restric- Precedents are created whenever the scope of the Senate’s power to govern tions of that right of debate. We have Presiding Officer rules on a point of itself. Article I, section 5, clause 2 of 50 hours of debate, followed by a major- order, when the Senate sustains and/or the Constitution states that each ity vote, period. For generations, Sen- rejects an appeal of the Presiding Offi- House may determine the rules of its ators have judged some limits on de- cer’s ruling on a point of order, or proceedings. bate are necessary just as a matter of The Supreme Court of the United when the Senate itself rules on a ques- common sense. This is one of them. States has rarely interpreted this tion that has been submitted to it by Parenthetically, no matter how clause, but one case is important for the Presiding Officer. many times a few Senators say other- our purposes, the case of the United As former Parliamentarian and Sen- wise, this controversy before us now States v. Ballin, a case decided in 1892. ate procedural expert Floyd Riddick has nothing whatsoever to do with free That case dealt with the power of the has said: speech, as the minority leader himself majority of the House of Representa- The precedents of the Senate are just as has acknowledged. This dispute has tives to make rules, and it contains significant as the rules of the Senate. never been about the length of debate. two holdings that bear on our situation Let me repeat what Mr. Riddick said: It is about blocking judicial nominees. today. The precedents of the Senate are just as We will have plenty of debate on all of First, the Supreme Court held that significant as the rules of the Senate. the nominees, as much as anyone the powers delegated to the House or Indeed, as we will see, precedents wants. the Senate through article I, section 5, have sometimes been created that di- I would like to move to another im- clause 2 are powers held by a simple rectly contradict the Standing Rules of portant aspect of this discussion: The majority of the quorum. The Constitu- the Senate. I will return to that point role of tradition and norms of conduct tion states that a majority of Members later, but I want everyone to remember in the day-to-day functioning of the constitutes a quorum, and the Supreme what Mr. Riddick said. Senate. This is crucial. Although it is Court, therefore, held that ‘‘when a A third way that the Senate exer- frequently said that the unique fea- majority are present the house is in a cises its constitutional power is tures of the Senate are individual Sen- position to do business.’’ through standing orders which can be ator’s rights to demand and amend, The Supreme Court continued: adopted by legislation, Senate resolu- there is another even more central as- All that the Constitution requires is the tions, or run-of-the-mill unanimous pect to Senate procedure. As I see it, presence of a majority. consent agreements. It is worth paus- the overriding feature of the Senate is Thus, a majority is all the Constitu- ing to note that the Senate regularly the mutual self-restraint and respect tion requires for us to make rules, to overrides the standing rules and prece- for the settled norms of this body. I set precedents, and to operate on a dents of the Senate through unanimous would like to consider a few examples. day-to-day basis. The Supreme Court consent agreements. You saw that a Senators limit their speech on an in- made this clear. few minutes ago. Our leaders get to- formal basis every day. We cut short

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5508 CONGRESSIONAL RECORD — SENATE May 19, 2005 remarks so that others can speak. We and Republicans alike in making sure calls, and force rollcall votes on the did that a few moments ago. We acqui- there were no filibusters. amendments. Rule XXII prohibited dil- esce in unanimous consent agreements Ironically, some point to those suc- atory or nongermane amendments, but that will have the effect of denying cessful cloture votes for confirmed Senate procedure did not rule these ourselves any chance to speak on a judges and claim those nominees were amendments out of order. True, a Sen- subject. We decline to object to proce- filibustered. Well, all that establishes ator could raise a point of order dural unanimous consent requests even is that both parties ensured a super- against one of these dilatory amend- though we might have good reason to majority to end debate, precisely to ad- ments, but any favorable ruling could want to slow down Senate business. We here to historical norms. We took the be appealed. A rollcall vote could then acquiesce in our leader’s floor sched- steps to ensure those judicial nominees be demanded on that appeal. And once ule. We work with bill managers to who reach the Senate floor received the that rollcall vote began, the obstruct- limit amendments so that the Senate fair up-or-down votes to which they ing Senators could accomplish their can function, so that each individual were entitled. Again, the standing slowdown in a different way—filibuster Senator’s rights do not become an im- rules might have permitted such ob- by rollcall vote. To make matters pediment to the task of governing. struction, but the Senate norms and worse, in 1977, before any point of order Senators have rights, but we also have traditions did not. could even be made against an amend- obligations to each other and to the To the extent the rules technically ment, the amendment in question had Nation. permitted such obstruction, the tradi- to be read by the clerk. By objecting to So we limit our rights on the basis of tions had rendered the power obsolete the routine courtesy of waiving the mutual respect and a belief in good and inert. In common law, there is a reading of the amendment, the ob- government but, candidly, also out of doctrine called desuetude, which means structing Senators delayed the busi- fear of retaliation. If I assert my rights that obsolete or unenforced laws shall ness of the Senate even further. too forcefully, I not only disrespect my not have effect in the future even if not That all may seem complicated, but colleagues, but I threaten my own pub- formally repealed. In other words, a there is one undeniable truth about lic policy goals. The result is a com- law that is de facto unenforced may be what these obstructing Senators were plicated mutual truce of sorts that al- treated as ineffective de jure as well. doing. It was all completely permitted lows us to do the people’s business in We faced a similar situation in the under the standing rules and the prece- an orderly way. In a word, we gain in- Senate. In fact, our tradition was our dents of the Senate. At the same time, stitutional stability. rule. To minimize the traditions of this however, these tactics were in viola- In short, the Senate is institution- body is to display a naive and legalistic tion of settled Senate norms and prac- ally stable, not just because of rules, misunderstanding of the institution. tices. So what was the Senate to do? precedents, or the standing order, or To say we are a body of traditions is The answer came when the then- the rulemaking statutes I discussed. meaningless if we do not acknowledge Democratic majority leader made the The body is stable because we respect that our traditions have content and decision these new tactics were dila- each other’s prerogatives. We under- meaning. There can be no question tory, in violation of the traditional stand that any breach of the truce will that the filibusters of the last Congress norms, and could no longer prevail. He produce a reaction. And it is that basic broke that Senate tradition and, there- asked then-Vice President Walter Mon- understanding of physics, action, and fore, the set way this body had gov- dale to sit in the chair in his capacity reaction, coupled with a genuine good- erned itself. By breaking traditions of as President of the Senate. The Demo- will that allows us to function even the Senate, members of the minority cratic majority leader made a point of with the many individual rights that should have known they would force order that ‘‘when the Senate is oper- we possess. The rights only work be- the Senate to react. Tradition should ating under cloture, the chair is re- cause we so often choose not to exer- never change without consensus, and a quired to take the initiative under cise them. So it is not just rights that consensus requires, at a minimum, a Rule XXII to rule out of order all define the Senate but also restraint. majority. The question is, what are we amendments that are dilatory or which Which brings us back to the fili- to do when norms and traditions are on their face are out of order.’’ Mon- buster of judicial nominations. It is changed by the minority? What do we dale sustained the point of order, even certainly the case that the Standing do when there is no consensus, just a though it had no foundation in the Rules of the Senate do countenance the minority with a determination to ex- rules or precedents of the Senate. An- filibuster of judicial nominations, but ploit dormant rules to further partisan other Senator appealed the Mondale it is equally the case that the long- end? The Senate can do one of two ruling, and the Democratic majority standing norms of the Senate do not. things: Let our traditions be trans- leader moved to table. The Senate then Until 2003, no judicial nominee with de- formed and permit rule by minority or voted to table the appeal. In doing so, monstrable support of a majority of we can insist that the Senate maintain the Senate created a new precedent. Senators had ever been denied an up- traditional norms and take action to But that precedent ran directly con- or-down vote on the Senate floor protect them. trary to the Senate’s longstanding pro- through a filibuster. Even on the rare That brings us to the constitutional cedures which had required Senators to occasions where there were attempts, option itself. The constitutional option raise points of order to enforce Senate they failed on a bipartisan basis. And is nothing more than the Senate gov- rules. Under the new precedent estab- why? Because the filibuster of judicial erning itself, as the Constitution pro- lished by the Senate, no such point of nominations used as a minority veto vides, by acts of majorities of Senators. order would be necessary. was not part of our tradition and never The Senate has been in this situation Again, this may seem complicated, had been. Again, out of respect for fel- before 4 times over a 10-year period, but these small changes had dramatic low Members, for the President, and for when the Senate majority reacted to a effects. The Democratic majority lead- the judiciary, and out of a recognition minority using rules that had not tra- er began to call up each of the dilatory of the long-term impact of such tac- ditionally been used to obstruct Senate amendments so the Chair could rule tics, the Senate had always declined to business. My colleague Senator MCCON- them out of order. One by one, the march down this path. NELL will discuss each instance in Chair obliged. Under normal cir- When I entered the Senate in 1995, I depth. I address one in particular by cumstances, an appeal would have been had grave concerns about some of more way of illustration. in order, but the majority leader exer- activist nominees that President Clin- In 1977, two Senators attempted to cised his right of preferential recogni- ton sent to us. block a natural gas deregulation bill tion to block any appeal. He quickly But I listened to Chairman ORRIN after cloture had already been invoked. called up every remaining amendment, HATCH, Majority Leader TRENT LOTT, They were succeeding through a strat- Vice President Mondale ruled them out and many others. They taught that we egy of ‘‘filibuster by amendment.’’ of order, and all of the amendments had a longstanding Senate tradition Post-cloture debate time had lapsed, were disposed of. against blocking Senate nominations but the obstructing Senators could Nearly 20 years later, the Senator by filibuster. So I joined Democrats still call up amendments, force quorum who orchestrated those events in 1977

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00056 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5509 explained to the Senate what he had though Majority Leader Lott and most of case interpreting Congress’s rulemaking done. He explained: the Republican caucus ultimately voted powers. [144 U.S. 1 (1892).] First, the Court I asked Mr. Mondale, the Vice President, against those nominations. But that shared held that the powers delegated to each body to go please sit in the chair; I wanted to understanding of Senate norms and prac- are held by a simple majority of the quorum, unless the Constitution expressly creates a make some points of order and create new tices—that judicial nominations shall not be supermajority requirement. [Ballin, 144 U.S. precedents that would break these filibus- blocked by filibuster—broke down in the at 6. There is no serious disagreement with ters. And the filibuster was broken—back, 108th Congress. the Supreme Court’s conclusion in Ballin. In- neck, legs, and arms. So there should be no This breakdown in Senate norms is pro- deed, Senator Edward Kennedy has said that confusion about what happened on that day. found. There is now a risk that the Senate is creating a new, 60-vote confirmation stand- only a majority is necessary to change Sen- That was the constitutional option in ard. The Constitution plainly requires no ate procedures. Congressional Record, Feb. action. The Senate faced a situation more than a majority vote to confirm any 20, 1975, S3848. Senator Charles Schumer con- where a minority of Senators was frus- executive nomination, but some Senators ceded during a Judiciary subcommittee hear- trating Senate business in an have shown that they are determined to ing on the constitutionality of the filibuster untraditional way. The majority override this constitutional standard. Thus, that Senate rules ‘‘could be changed by a wished to proceed. The majority did if the Senate does not act during the 109th majority vote.’’ S. Hrg. 108–227 (May 6, 2003), at 60.] The Constitution itself sets the not propose any formal rules change, Congress to restore the Constitution’s sim- ple-majority standard, it could be plausibly quorum for doing business—a majority of the refer the proposal to the Rules Com- argued that a precedent has been set by the Senate. [U.S. Const., art. I, 5, cl. 1.] Second, mittee, wait for its action, and then Senate’s acquiescence in a 60-vote threshold the Supreme Court held that the ‘‘power to bring it to the floor under rule XXII’s for nominations. make rules is not one which once exercised is cloture provisions for such rule change One way that Senators can restore the exhausted. It is a continuous power, always proposals. That procedure was not fol- Senate’s traditional understanding of its ad- subject to be exercised by the house.’’ lowed. Instead, the majority leader rec- vice and consent responsibility is to employ [Ballin, 144 U.S. at 5.] Thus, the Supreme ognized that the Senate had the con- the ‘‘constitutional option’’—an exercise of a Court has held that the power of a majority of Senators to define the Senate’s procedures stitutional power to bypass that route, Senate majority’s power under the Constitu- tion to define Senate practices and proce- exists at all times whether at the beginning, which is exactly what the Senate did. dures. The constitutional option can be exer- middle, or end of a Congress. As I mentioned earlier, that same cised in different ways, such as amending The Senate majority exercises this con- Democratic leader would create several Senate Standing Rules or by creating prece- stitutional rulemaking power in several other precedents while serving as ma- dents, but regardless of the variant, the pur- ways: jority leader, in each case because he pose would be the same—to restore previous First, it has adopted Standing Rules to concluded the existing standing rules Senate practices in the face of unforeseen govern some Senate practices and proce- dures. Those rules formally can be changed and precedents of the Senate were in- abuses. Exercising the constitutional option in response to judicial nomination filibusters by a majority vote. Any motion to formally adequate, and that a majority of Sen- amend the Standing Rules is subject to de- ators had the power to alter the way would restore the Senate to its longstanding norms and practices governing judicial bate, and Senate Rule XXII creates a special the Senate governs itself. In 1979, for nominations, and guarantee that a minority two-thirds cloture threshold to end that de- example, a new precedent was created does not transform the fundamental nature bate. to prevent legislation on appropria- of the Senate’s advice and consent responsi- Second, the Senate operates according to tions bills, in direct contravention of bility. The approach, therefore, would be Senate precedents, i.e., rulings by the Chair the text of the standing rules at that both reactive and restorative. or the Senate itself regarding questions of This constitutional option is well grounded Senate procedure. A precedent is created time. In 1980, the Senate used the con- whenever the Chair rules on a point of order, stitutional option to eliminate the in the U.S. Constitution and in Senate his- tory. The Senate has always had, and repeat- when the Senate sustains or rejects an ap- ability to debate and filibuster the mo- edly has exercised, the constitutional power peal of the Chair’s ruling on a point of order, tion to proceed to a particular item on to change the Senate’s procedures through a or when the Senate itself rules on a question the Executive Calendar. That situation majority vote. Majority Leader Robert C. that has been submitted to it by the Chair. is remarkably similar to the one we Byrd used the constitutional option in 1977, [Floyd M. Riddick, Senate Parliamentarian, face today. In 1987, in a complicated set 1979, 1980, and 1987 to establish precedents Oral History Interviews (November 21, 1978), of maneuvers, the Senate created new changing Senate procedures during the mid- Senate Historical Office, Washington, D.C., dle of a Congress. And the Senate several at 429.] As former parliamentarian and Sen- precedents to limit minority rights and ate procedural expert Floyd M. Riddick has declare that certain dilatory tactics times has changed its Standing Rules after the constitutional option had been threat- said, ‘‘The precedents of the Senate are just during the morning hour were out of ened, beginning with the adoption of the as significant as the rules of the Senate.’’ order. first cloture rule in 1917. Simply put, the [Riddick interview at 426.] Third, the Senate binds itself through rule- I will not examine each of these his- constitutional option itself is a longstanding making statutes that constrain and channel torical events in detail today. Instead, feature of Senate practice. I ask unanimous consent to have print- This paper proceeds in four parts: (1) a dis- the consideration of particular matters and guarantee that the Senate can take action ed in the RECORD a copy of the policy cussion of the constitutional basis of the on certain matters by majority vote. At paper prepared by the Republican Pol- Senate’s right to set rules for its pro- ceedings; (2) an examination of past in- least 26 such rule-making statutes govern icy Committee, which I chair, which Senate procedure and limit the right to de- examined each of these events in great stances when Senate majorities acted to de- fine Senate practices—even where the writ- bate, dating back to the 1939 Reorganization detail. ten rules and binding precedents of the Sen- Act and including, most prominently, the There being no objection, the mate- ate dictated otherwise; (3) an evaluation of 1974 Budget Act. [Martin B. Gold, Senate rial was ordered To be printed in the how this history relates to the present im- Procedure and Practice (2004), at 5. For a RECORD, as follows: passe regarding judicial nomination filibus- complete list of the 26 statutes that limit Senate debate, see John Cornyn, Our Broken THE SENATE’S POWER TO MAKE PROCEDURAL ters; and (4) a clarification of common mis- Judicial Confirmation Process and the Need RULES BY MAJORITY VOTE understandings of the constitutional option. for Filibuster Reform, 27 Harv. J. L. Pub. INTRODUCTION The purpose of this paper is not to resolve the political question of whether the Senate Pol’y 181,213–214 (2003).] In recent months, there has been growing Finally, the Senate can modify the above should exercise the constitutional option, public interest in the Senate’s ability to procedures through Standing Orders, which but merely to demonstrate the constitu- change its internal procedures by majority can be entered via formal legislation, Senate tional and historical legitimacy of such an vote. The impetus for this discussion is a resolutions, and unanimous consent agree- approach. Senate minority’s use of the filibuster to ments. block votes on 10 judicial nominations dur- THE CONSTITUTION: THE SENATE’S RIGHT TO SET It is important to emphasize, however, ing the 108th Congress. Until then, a bipar- PROCEDURAL RULES that these rules are the mere background for tisan majority of Senators had worked to- The Senate’s constitutional power to make day-today Senate procedure. As any Senate gether to guarantee that filibusters were not rules is straightforward, but two issues do observer knows, the institution functions to be used to permanently block up-or-down warrant brief elaboration—the number of primarily through cooperation and tacit or votes on judicial nominations. For example, Senators that are constitutionally necessary express agreements about appropriate behav- as recently as March 2000, Majority Leader to establish procedures and whether there ior. Most business is conducted by unani- Trent Lott and Minority Leader Tom are any time limitations as to when the rule- mous consent, and collective norms have Daschle worked together to ensure that judi- making power can be exercised. emerged that assist in the protection of mi- cial nominees Richard Paez and Marsha The Supreme Court addressed both of these nority rights without unduly hindering the Berzon received up-or-down votes, even questions in United States v. Ballin, an 1892 Senate’s business.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5510 CONGRESSIONAL RECORD — SENATE May 19, 2005 Consider, for example, the Senate’s con- and amend. Majority Leader Byrd’s response Majority Leader Byrd used the constitu- trasting norms regarding the exercise of in- was to implement procedural changes tional option again in 1979 in order to block dividual Senators’ procedural rights. Under through majoritarian votes in order to re- legislation on appropriations bills. [Gold & the rules and precedents of the Senate, each store Senate practices to the previously ac- Gupta, 28 Harv. J. L. Pub. Pol’y at 264–265.] Senator has the right to object to consent cepted norms of the body. Standing Rule XVI barred Senate legislative requests and, with a sufficient second, to de- In 1977, two Senators attempted to block a amendments to appropriations bills. By mand roll call votes on customarily routine natural gas deregulation bill after cloture precedent, however, such amendments were motions. If Senators routinely exercised had already been invoked. [See Martin B. permissible when offered as germane modi- those rights, however, the Senate would Gold & Dimple Gupta, The Constitutional fications of House legislative provisions. come to a standstill. Such wholesale obstruc- Option to Change Senate Rules and Proce- Thus, when the House acted first and added tion is rare, but not because the Senate’s dures: a Majoritarian Means to Overcome the legislative language to an appropriations standing rules, precedents, and rulemaking Filibuster, 28 Harv. J. L. Pub. Pol’y 206,262– measure, Senators could respond by offering statutes prohibit a Senator from engaging in 264 (2004).] A ‘‘post-cloture filibuster’’ should legislative amendments to the House’s legis- that kind of delay. Rather, Senators rarely seem counterintuitive for anyone with a cas- lative language. While another Senator employ such dilatory tactics because of the ual acquaintance with Senate rules, but might make a point of order, the Senator of- potential reaction of other Senators or the these obstructing Senators had found a loop- fering the authorizing language could re- possibility of retaliation. As a result, in- hole. Although further debate was foreclosed spond with a defense of germaneness. And, formed self enforcement of reasonable behav- by Rule XXII once post-cloture debate was by the express language of Rule XVI, that ior is the norm. exhausted, the Senators were able to delay a question of germaneness must be submitted At the same time, some ‘‘obstructionist’’ final vote by offering a series of amendments to the Senate and decided without debate. tactics have long been accepted by the Sen- and then forcing quorum calls and roll call By enabling the full Senate to vote on the ate as features of a body that respects mi- votes for each one. Even if the amendments germaneness defense without getting a rul- nority rights. Most prominent is the broadly were ‘‘dilatory’’ or ‘‘not germane’’ (which ing from the Presiding Officer first, the leg- accepted right of a single Senator to speak Rule XXII expressly prohibits), Senate proce- islative amendment’s sponsor avoided having for as long as he or she wants on pending leg- dure provided no mechanism to get an auto- to overturn the ruling of the Chair and cre- islation, subject only to the right of the ma- matic ruling from the Chair that the amend- ate any formal precedents in doing so. The jority to invoke cloture and shut off debate. ments were defective. A Senator could raise result was a breakdown in the appropriations Indeed, an overwhelming and bipartisan con- a point of order, but any favorable ruling process due to legislative amendments, and sensus in support of the current legislative could be appealed, and a roll call vote could it was happening pursuant to Senate rules filibuster system has existed for 30 years. be demanded on the appeal. Moreover, in that plainly permitted these tactics. [Standing Rule XXII’s standard for cloture— 1975, before a point of order could even be Majority Leader Byrd resolved to override three-fifths of Senators ‘‘duly chosen and made, an amendment first must have been the plain text of Rule XVI and strip the Sen- sworn’’—has been in effect since 1975.] Thus, read by the clerk. While the reading of ate of its ability to decide questions of ger- the norms of the Senate tolerate some, but amendments is commonly waived by unani- maneness in this context. Senator Byrd’s not all, kinds or degrees of obstruction. mous consent, anyone could object and re- mechanism was similar to the motion he em- Thus, while written rules, precedents, and quire a reading that could further tie up Sen- ployed in 1977: he made a point of order that orders are important, common under- ate business. Thus, the finality that cloture ‘‘this is a misuse of precedents of the Senate, standings of self-restraint, discretion, and is supposed to produce could be frustrated. since there is no House language to which These practices were proper under Senate institutional propriety have primarily gov- this amendment could be germane, and that, rules and precedents, but Majority Leader erned acceptable Senatorial conduct. It is therefore, the Chair is required to rule on Byrd concluded in this context that these the departures from these norms of conduct the point of order as to its being legislation tactics were an abuse of Senate Rule XXII. that have precipitated institutional crises on an appropriation bill and cannot submit His response was to make a point of order that require the Senate to respond. the question of germaneness to the Senate.’’ that ‘‘when the Senate is operating under [Gold & Gupta, 28 Harv. J. L. Pub. Pol’y at THE HISTORY: THE SENATE’S REPEATED USE OF cloture the Chair is required to take the ini- 265 (emphasis added).] The Chair sustained THE CONSTITUTIONAL OPTION tiative under rule XXII to rule out of order the point of order, and the Senate rejected The Senate is a relatively stable institu- all amendments which are dilatory or which the ensuing appeal, 44–40. tion, but its norms of conduct have some- on their face are out of order.’’ [Gold & The result of Majority Leader Byrd’s exer- times been violated. In some instances, a mi- Gupta, 28 Harv. J. L. Pub. Pol’y at 263.] The cise of the constitutional option was a bind- nority of Senators has rejected past prac- Presiding Officer, Vice President Walter ing precedent that caused the Senate to op- tices and bipartisan understandings and ex- Mondale, sustained the point of order, an- erate in a manner directly contrary to the ploited heretofore ‘‘off limits’’ opportunities other Senator appealed, and Majority Leader plain language of Rule XVI. [Gold & Gupta, to obstruct the Senate’s business. At other Byrd immediately moved to table. The Sen- 28 Harv. J. L. Pub. Pol’y at 265.] Moreover, times, a minority of Senators has abused the ate then voted to sustain the motion to table the method was contrary to past Senate rules and precedents in a manner that vio- the appeal. In so doing, the Senate set a new practices regarding germaneness. But the lates Senators’ reasonable expectations of precedent that ran directly contrary to the process employed, as in 1977, was nonetheless proper procedural parameters. These are ef- Senate’s longstanding procedures which re- constitutional because nothing in the Sen- forts to change Senate norms and practices, quired Senators to raise points of order to ate’s rules, precedents, or practices can deny but they do not necessarily have the support enforce Senate rules. Now, under this prece- the Senate the constitutional power to set of a majority. dent, the Chair would be empowered to take its procedural rules. Such situations create institutional conun- the initiative to rule on questions of order in The Senate’s Executive Calendar has two drums: what should be done when a mere mi- a post-cloture environment. sections—treaties and nominations. Prior to nority of Senators changes accepted institu- The reason for Majority Leader Byrd’s tac- March 1980, a motion to enter Executive Ses- tional norms? One option is to acquiesce and tic immediately became clear. He began to sion, if carried, would move the Senate auto- allow ‘‘rule by the minority’’ so that the mi- call up each of the dilatory amendments that matically to the first item on the Calendar, nority’s norm becomes the Senate’s new had been filed post-cloture, and the Chair in- often a treaty. Rule XXII provides (then and norm. But another option has been for the stantly ruled them out of order. There was now) that such a motion to enter Executive majority of Senators to deny the legitimacy no reading of the amendments (which would Session is not debatable. However, unlike of the minority Senators’ effort to shift the have been dilatory in itself) and there were the non-debatable motion to enter Executive norms of the entire body. And to do that, it no roll call votes. The Majority Leader then Session, any motion to proceed to a par- has been necessary for the majority to act exercised his right of preferential recogni- ticular item on the Executive Calendar was independently to restore the previous Senate tion to call up numerous remaining amend- then subject to debate. In practice, then, the norms of conduct. ments, and similarly disposed of them. No Senate could not proceed to consider any This section examines those illustrative appeals could be taken because any appeal business other than the first Executive Cal- instances—examples of when the Senate re- was mooted when Majority Leader Byrd se- endar item without a Senator offering a de- fused to permit a minority of Senators to cured his preferential recognition to call up batable motion, which then would be subject change norms of conduct or to otherwise ex- additional amendments. [Gold & Gupta, 28 to a possible filibuster. [Gold & Gupta, 28 ploit the rules in ways destructive to the Harv. J. L. Pub. Pol’y at 263–264.] Harv. J. L. Pub. Pol’y at 265–267.] Senate, and, instead, exercised the constitu- This was the constitutional option in ac- Majority Leader Byrd announced his objec- tional option. tion. Majority Leader Byrd did not follow tion to this potential ‘‘double filibuster’’ When Senator Robert C. Byrd was Majority the regular order and attempt to amend the (once on the motion to proceed to a par- Leader, he faced several circumstances in Senate Rules in order to block these tactics. ticular Executive Calendar item, and again which a minority of Senators (from both par- Instead, he used a simple point of order that on the Executive Calendar item itself), and ties) began to exploit Senate rules and prece- cut off the ability of a minority of Senators exercised another version of the constitu- dents in generally unprecedented ways. The to add a new layer of obstruction to the leg- tional option. This time he moved to proceed result was obstruction of Senate business islative process. His method was consistent directly to a particular nomination on the that was wholly unrelated to the institu- with the Senate’s constitutional authority Executive Calendar and sought to do so with- tion’s great respect for the right to debate to establish procedure. out debate. Senator Jesse Helms made the

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00058 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5511 point of order that Majority Leader Byrd wise obliged to put the question to the Sen- Pub. Pol’y at 226.] Negotiators produced a could only move by a non-debatable motion ate. At that point, yet another Senator an- rule that was adopted, 76–3, with the oppos- into Executive Session, not to a particular nounced he wished to be excused from that ing Senators choosing not to filibuster. [Gold treaty or nomination. [Gold & Gupta, 28 vote. There were four roll call votes then un- & Gupta, 28 Harv. J. L. Pub. Pol’y at 226.] Harv. J. L. Pub. Pol’y at 266.] The Presiding derway—the original motion to approve the But it was only after Senator Walsh made Officer upheld the point of order given that Journal and three votes on whether Senators clear that he intended to press the constitu- it was grounded in Rule XXII and long- could be excused. If Senators persisted in tional option that those negotiations bore standing understandings of Senate practices this tactic, the time it took for roll call fruit. As Senator Clinton Anderson would re- and procedures. But Majority Leader Byrd votes would cause the Morning Hour to ex- mark in 1953, ‘‘Senator Walsh won without simply appealed the ruling of the Chair and pire, and the Majority Leader would lose his firing a shot.’’ [Gold & Gupta, 28 Harv. J. L. prevailed, 38–54. Thus, even though there was ability to move to proceed to his bill without Pub. Pol’y at 227.] no basis in the Senate Rules, and even debate. All this maneuvering was wholly The same pattern repeated in 1959, 1975, though Senate practices had long preserved consistent with the Standing Rules of the and 1979. In each case, the Senate faced a the right to debate any motion to proceed to Senate. concerted effort by an apparent majority of a particular Executive Calendar item, the Majority Leader Byrd countered with a Senators to exercise the constitutional op- Senate exercised its constitutional power to point of order, arguing that the requests to tion to make changes to Senate rules. In ‘‘make rules for its proceedings’’ and created be excused were, in fact, little more than ef- 1959, some Senators threatened to exercise the procedure that the Senate continues to forts to delay the actual vote on the ap- the constitutional option in order to change use today. proval of the Journal. His solution was to ex- the cloture requirements of Rule XXII. Then- As an historical sidenote, Majority Leader ercise the constitutional option: to use ma- Majority Leader Lyndon Johnson preempted Byrd used this new precedent to great effect jority-supported Senate precedents to its use by offering a modification to Rule in December 1980 when he bypassed several change Senate procedures, outside the oper- XXII that was adopted through the regular items (including several nominations) on the ation of the Senate rules. In three subse- order. [Gold & Gupta, 28 Harv. J. L. Pub. Executive Calendar to take up a single judi- quent partyline votes, three new precedents Pol’y at 240–247.] In 1975, the Senate three cial nomination—that of Stephen Breyer, were established: first, that a point of order times formally endorsed the constitutional then Chief Counsel to the Senate Judiciary could be made declaring repeated requests to option by creating precedents aimed at fa- Committee, to be a judge on the U.S. Court be excused from voting on a motion to ap- cilitating rule changes by majority vote, al- of Appeals for the First Circuit. Judge prove the Journal (or a vote subsumed by it) though the ultimate rule change (also to Breyer was later nominated and confirmed to be ‘‘dilatory;’’ second, that repeated re- Rule XXII) was implemented through the to the U.S. Supreme Court in 1994. Without quests to be excused from voting on a motion regular order after off-the-Floor negotia- Majority Leader Byrd’s exercise of the con- to approve the Journal (or a vote subsumed tions. [Gold & Gupta, 28 Harv. J. L. Pub. stitutional option earlier that year, it is al- by it) ‘‘when they are obviously done for the Pol’y at 252–260.] And in 1979, Majority Lead- most certain that Justice Breyer would not purpose of delaying the announcement of the er Byrd threatened to use the constitutional be on the Supreme Court today. vote on the motion to approve the Journal, option unless the Senate consented to a time A fourth exercise of the constitutional op- are out of order;’’ and third, that a Senator frame for consideration of changes to post- tion came in 1987 when Senator Byrd was has a ‘‘limited time’’ to explain his reason cloture procedures. The Senate acquiesced, once again Majority Leader. The controversy for not voting, i.e., he cannot filibuster by and the Majority Leader did not need to use in question involved an effort by Majority speaking indefinitely when recognized to the constitutional option as he had in the Leader Byrd to proceed to consider a par- state his reason for not voting. [Gold & other cases discussed above. [Gold & Gupta, ticular bill, an effort that had been frus- Gupta, 28 Harv. J. L. Pub. Pol’y at 267–269.] 28 Harv. J. L. Pub. Pol’y at 260; Congres- trated because a minority of Senators ob- Majority Leader Byrd had crafted these new sional Record, Jan. 15, 1979.] jected each time he moved to proceed. To procedures completely independently of the The Senate, therefore, has long accepted thwart his opponents, Majority Leader Byrd Senate Rules, and they were adopted by a the legitimacy of the constitutional option. sought to use a special feature of the Senate partisan majority without following the pro- Through precedent, the option has been exer- Rules—the Morning Hour (the first two cedures for rule changes provided in Rule cised and Senate procedures have been hours of the Legislative Day). XXII. Yet the tactics were wholly within the changed. At other times it has been merely Under Rule VIII, a motion to proceed to an Senate’s constitutional power to devise its threatened, and Senators negotiated textual item on the Legislative Calendar that is own procedures. rules changes through the regular order. But made during the Morning Hour is non-debat- This 1987 circumstance offers a very impor- regardless of the outcome, the constitutional able. This feature of the rules gives the Ma- tant precedent for the present difficulties. option has played an ongoing and important jority Leader significant power to set the Majority Leader Byrd established that a ma- role. Senate agenda due to his right to pref- jority could restrict the rights of individual THE JUDICIAL FILIBUSTER AND THE erential recognition (which is, itself, a crea- Senators outside the cloture process if the CONSTITUTIONAL OPTION ture of mere custom and precedent). Such a majority concluded that the Senators were The filibusters of judicial nominations dur- motion cannot be made, however, until the acting in a purely ‘‘dilatory’’ fashion. Pre- ing the 108th Congress were unprecedented in Senate Journal is approved and Morning vious to that day, dilatory tactics were only Senate history. [This historical observation Business is thereafter concluded (or the first out of order after cloture had been invoked. has been conceded by leading Senate Demo- of the two hours has passed). Meanwhile, the The Senate also has endorsed (or acted in crats. For example, the Democratic Senato- clock runs on the Morning Hour while that response to) some version of the constitu- rial Campaign Committee solicited cam- preliminary business takes place. When the tional option several other times over the paign contributions in November 2003 with Morning Hour expires, a motion to proceed past 90 years—in 1917, 1959, 1975, and 1979. the claim that the filibusters were an ‘‘un- once again becomes debatable and subject to The original cloture rule, adopted in 1917, precedented’’ effort to ‘‘save our courts.’’ See filibuster. [Gold, Senate Procedure and Prac- itself appears to be the result of a threat to Senator John Cornyn, Congressional Record, tice, at 68–69.] It was this feature of the exercise the constitutional option. Until Nov. 12, 2003, S14601, S14605. No Senator has Morning Hour that Senator Byrd believed 1917, the Senate had no cloture rule at all, disputed that until Miguel Estrada asked the would enable him to proceed to the bill in although one had been discussed since the President to withdraw his nomination in question. days of Henry Clay and Daniel Webster. The September 2003, no circuit court nominee Majority Leader Byrd’s plan was com- ability of Senators to filibuster any effort to had ever been withdrawn or defeated for con- plicated, however, when objecting Senators create a cloture rule put the body in a quan- firmation due to the refusal of a minority to forced a roll call vote on the approval of the dary: debate on a possible cloture rule could permit an up-or-down vote on the Senate Journal, as was their right under the proce- not be foreclosed without some form of clo- floor.] While cloture votes had been nec- dures and practices of the Senate. Rule XII ture device. essary for a few nominees in previous years, provides that during a roll call vote, if a Sen- The logjam was broken when first term leaders from both parties consistently ator declines to vote, he or she must state a Senator Thomas Walsh announced his inten- worked together to ensure that nominees reason for being excused. The Presiding Offi- tion to exercise a version of the constitu- who reached the Senate floor received up-or- cer then must put a non-debatable question tional option so that the Senate could create down votes. The result of this bipartisan co- to the Senate as to whether the Senator a cloture rule. His method was to propose a operation was that, until 2003, no judicial should be excused from voting. When Major- cloture rule and forestall a filibuster by as- nominee with clear majority support had ity Leader Byrd moved to approve the Jour- serting that the Senate could operate under ever been defeated due to a refusal by a Sen- nal, one Senator declined to vote and sought general parliamentary law while considering ate minority to permit an up-or-down floor to be excused. Following Rule XII, the Pre- the proposed rule. Doing so would permit the vote, i.e., a filibuster. [For a review of all siding Officer put the question directly to Senate to avail itself of a motion for the pre- past cloture votes on judicial nominations the Senate—should the Senator be ex- vious question to terminate debate—a stand- prior to the 108th Congress, see Senate Re- cused?—but during the roll call on whether ard feature of general parliamentary law. publican Policy Committee, ‘‘Denying Mr. the first Senator should be excused, another [Gold & Gupta, 28 Harv. J. L. Pub. Pol’y at Estrada an Up-or-Down Vote Would Set a Senator announced that he wished to be ex- 220–226.] In this climate, Senate leaders Dangerous Precedent’’ (Feb. 10, 2003). See cused from voting on whether the first Sen- quickly entered into negotiations to craft a also Cornyn, 27 Harv. J. L. Pub. Pol’y at 218– ator should be excused. The Chair was like- cloture rule. [Gold & Gupta, 28 Harv. J. L. 227.]

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00059 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5512 CONGRESSIONAL RECORD — SENATE May 19, 2005 The best illustration of this traditional to Try Again on Blocked Judicial Nominees, All procedural changes must be made at norm is the March 2000 treatment of Presi- Boston Globe, Dec. 24, 2004 (quoting official the beginning of a Congress. Again, this dent Bill Clinton’s nominations of Richard statement by Sen. Schumer).] Senator Rus- claim does not square with history. In fact, Paez and Marsha Berzon to the U.S. Court of sell Feingold described the filibustered nomi- there is nothing special about the beginning Appeals for the Ninth Circuit. When those nees from the 108th Congress as having ‘‘been of a Congress vis-a-vis the Senate’s right to nominations reached the Senate floor, Ma- duly considered by the Senate and rejected.’’ establish its own practices and procedures, jority Leader Trent Lott, working with Dem- [Keith Perine, Fiercest Fight in Partisan or even its formal Standing Rules. As dis- ocrat Leader Tom Daschle, filed cloture be- War May Be Over Supreme Court, CQ Week- cussed above, Majority Leader Byrd used the fore any filibuster could materialize. Repub- ly, Jan. 10, 2005, at 59.] Judiciary Committee constitutional option to create a precedent lican Judiciary Chairman Orrin Hatch like- Ranking Member Patrick Leahy has referred that overrode Rule XVI’s plain text—and not wise fought to preserve Senate norms and to the filibustered nominees as having been at the beginning of a Congress. Moreover, as traditions, arguing that it would be ‘‘a trav- ‘‘effectively rejected.’’ [Congressional the Supreme Court held in Ballin, each esty if we establish a routine of filibustering Record, Feb. 27, 2004, S1887.] And in April House of Congress’s constitutional power to judges.’’ [Congressional Record, Mar. 8, 2000, 2005, Senator Joseph Lieberman claimed that make procedural rules is of equal value at all S1297.] Moreover, as a further testament to 60 votes should be the ‘‘minimum’’ for con- times. [Ballin, 144 U.S. at 5.] the bipartisan opposition to filibusters for firmation. [Senator Joseph Lieberman, Tran- The essential character of the Senate will judicial nominations, more than 20 Repub- script of Press Conference, Apr. 21, 2005.] be destroyed if the constitutional option is licans who opposed the nominations and who These characterizations illustrate the extent exercised. When Majority Leader Byrd re- would vote against them nonetheless sup- to which the Senate has lost its moorings. peatedly exercised the constitutional option ported cloture for Mr. Paez and Ms. Berzon, Without restoration of the majority-vote to correct abuses of Senate rules and prece- and cloture was easily reached. [For Berzon, standard, judicial nominations will require dents, those illustrative exercises of the op- compare Record Vote #36 (cloture invoked, an extra-constitutional supermajority to be tion did little to upset the basic character of 86–13) with #38 (confirmed, 64–34); for Paez, confirmed, without any constitutional the Senate. Indeed, many observers argue compare Record Vote #37 (cloture invoked, amendment—or even a Senate consensus— that the Senate minority is stronger today 85–14) with #40 (confirmed, 59–39). All votes supporting that change. Any exercise of the in a body that still allows for extensive de- on Mar. 8–9, 2000.] Had every Senator who constitutional option would, therefore, be bate, full consideration, and careful delibera- voted against Mr. Paez’s nomination like- aimed at restoring the Senate’s procedures tion of all matters with which it is pre- wise voted against cloture, cloture would not to conform to its traditional norms and prac- sented. have been invoked. Thus, as recently as tices in dealing with judicial nominations. It Exercising the constitutional option would March 2000, more than 80 Senators were on would return the Senate to the Constitu- turn the Senate into a ‘‘rubber stamp.’’ record opposing the filibuster of judicial tion’s majority-vote confirmation standard. Again, history proves otherwise. The Senate nominations. [For a more detailed list of And it would prevent the Senate from abus- has repeatedly exercised its constitutional Senators’ historic opposition to filibusters ing procedural rules to create supermajority power to reject judicial nominations through for judicial nominations, see Senate Repub- requirements. Instead, it would be restora- straightforward denials of ‘‘consent’’ by up- lican Policy Committee, ‘‘Denying Mr. tive, and Democrats and Republicans alike or-down votes. For example, the Senate de- Estrada an Up-or-Down Vote Would Set a would operate in the system that served the feated the Supreme Court nominations of Dangerous Precedent’’ (Feb. 10, 2003). For an nation until the 108th Congress. Robert Bork (1987), G. Harold Carswell (1970), extended examination of filibustering Sen- and Clement Haynsworth (1969) on up-or- ators’ previous opposition to judicial filibus- COMMON MISUNDERSTANDINGS OF THE down votes. [See Record Vote #348 (Oct. 23, ters, see Cornyn, 27 Harv. J. L. Pub. Pol’y at CONSTITUTIONAL OPTION 1987) (defeated 42–58); Record Vote #112 (Apr. 207–211.] If the new judicial nomination fili- Senate procedures are sacrosanct and can- 8, 1970) (defeated 45–51); Record Vote #135 busters are accepted as a norm, then the not be changed by the constitutional option. (Nov. 21, 1969) (defeated 45–55).] Even in the Senate will be rejecting this history and This misunderstanding does not square 10Sth Congress, when the Senate voted on charting a new course. with history. As discussed, the constitu- the nomination of J. Leon Holmes to a fed- It is not only the Senate norm regarding tional option has been used multiple times eral district court in Arkansas, five Repub- not filibustering judicial nominations that to change the Senate’s practices through the licans voted against President Bush’s nomi- risks being transformed, but the effective creation of new precedents. Also, the Senate nee. Had several Democrats not voted for Mr. constitutional standard for the confirmation has changed its Standing Rules several times Holmes, he would not have been confirmed. of judicial nominations. There can be no se- under the threat of the constitutional op- [Record Vote #153 (July 6,2004) (confirmed 51– rious dispute that the Constitution requires tion. 46).] In other words, the Senate still has the only a Senate majority for confirmation. In- Exercising the constitutional option will ability to work its will in a nonpartisan deed, many judicial nominees have been con- destroy the filibuster for legislation. The fashion as long as the minority permits the firmed by fewer than 60 votes in the past—in- history of the use of the constitutional op- body to come to up-or-down votes. Members cluding three Clinton nominees and two Car- tion suggests that this concern is grossly from both parties will ensure that the Sen- ter nominees. [Examples of judicial nomina- overstated. Senators will only exercise the ate does its constitutional duty by carefully tions made prior to the 108th Congress that constitutional option when they are willing evaluating all nominees. to live with the rule that is created, regard- were confirmed with fewer than 60 votes in- CONCLUSION clude Abner Mikva (D.C. Cir., 1979); L.T. less of which party controls the body. For Can the Senate restore order when a mi- Senter (N.D. Miss., 1979); J. Harvie Wilkinson the very few Senators (if any) who today nority of its members chooses to upset tradi- III (4th Cir., 1984); Alex Kozinski (9th Cir., want to eliminate the legislative filibuster tion? Does the Constitution empower the 1985); Sidney Fitzwater (N.D. Tex., 1986); by majority vote, the roadmap has existed Senate to act so that it need not acquiesce Daniel Manion (7th Cir., 1986); Clarence since as early as 1917. Moreover, an exercise whenever a minority decides that the prac- Thomas (Supreme Court, 1991); Susan of the constitutional option to restore the tices, procedures, and rules should be Mollway (D. Haw., 1998); William Fletcher norms for judicial confirmations would be changed? Can the Senate majority—not nec- (9th Cir., 1998); Richard Paez (9th Cir., 2000); just that—an act of restoration. To elimi- essarily a partisan majority, but simply a and Dennis Shedd (4th Cir., 2002).] Never has nate the legislative filibuster would not be majority of Senators—act to return the Sen- the Senate claimed that a supermajority is restorative of Senate norms and traditions; ate to its previously agreed-upon norms and necessary for confirmation. it would destroy the Senate’s longstanding Recently, however, some filibustering Sen- respect for the legislative filibuster as a ve- practices? The answer to all these questions ators have suggested that a failed cloture hicle to protect Senators’ rights to amend is a clear yes. The Senate would be acting vote is tantamount to an up-or-down vote on and debate. It is also worth noting that the well within its traditions if it were to restore a judicial nomination. The new Senate Mi- Senate is now entering its 30th year of bipar- the longstanding procedural norms so that nority Leader, Harry Reid, has stated that tisan consensus as to the cloture threshold the majority standard for confirmation is the 10 filibustered judges have been ‘‘turned (three-fifths of those duly chosen and sworn) preserved and nominees who reach the Sen- down.’’ [William C. Mann, Senate leaders for legislative filibusters. [In 1995, Senators ate floor do not fall victim to filibusters. draw line on filibuster of judicial nominees, Tom Harkin and Joe Lieberman proposed a Mr. KYL. These precedents—in 1977, Boston Globe, Jan. 17, 2005.] Senator Charles major revision to the Senate filibuster rules 1979, 1980, and in 1987—bear directly on Schumer has repeatedly stated that a failed for legislation, but the proposal failed 76–19, the situation the Senate faces today. cloture vote is evidence that the Senate has attracting the support of no Republicans and In those instances, Senate business was ‘‘rejected’’ a nomination. [Senator Charles but a fraction of Democrats (who were in the being obstructed by dilatory tactics Schumer, Congressional Record, July 22, minority). The only current Senators who that had not traditionally been em- 2004, S8585 (‘‘I remind the American people sought to change the Senate’s consensus po- ployed but which were permitted under that now 200 judges have been approved and sition on legislative filibusters were Sen- the rules. The Senate faced the same 6 have been rejected’’); see also Jeffrey ators Jeff Bingaman, Barbara Boxer, Russell McMurray, Pryor Supporters Debate Timing Feingold, Tom Harkin, Edward Kennedy, conundrum as it does today: Must the of Vote, Tuscaloosa News, Jan. 10, 2005 (‘‘To John Kerry, Frank Lautenberg, Joe Lieber- Senate permit rule by the minority, or nominate judges previously rejected by the man, and Paul Sarbanes. See Record Vote #1 can it exercise its constitutional power Senate is wrong’’); Anne Kornblut, Bush Set (Jan. 5, 1995).] to restore traditional practices? In

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00060 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5513 each case, the Senate did the latter. It But I think it is important to ac- merits quite vigorously. Senators exposed created precedents that altered the knowledge, in the interest of intellec- the ethical issues involved and the wide- practices and procedures and, in some tual honesty, that if the majority spread belief the vacancy had been manufac- cases, operation of the standing rules wanted to eliminate the filibuster for tured for political purposes. They sought to use debate to persuade other senators the themselves in order to ensure that tra- all matters, including legislation, it nomination should be defeated. dition was upheld. would have certainly had that power. After less than a week, the Senate leader- What did not happen as a result of It would be wildly imprudent, contrary ship tried to shut down debate. At that time, these earlier exercises of the constitu- to tradition, generally destructive of two-thirds of the senators voting were need- tional option? the institution, but that is what the ed to do so, yet only 45 senators supported Well, first, the Senate did not col- Constitution provides—the power of the motion. Of the 43 senators who still lapse or become ‘‘like the House of the Senate to govern itself. wished to debate the nomination, 24 were Re- Representatives,’’ which is the fear of In closing, I say to my colleagues publicans and 19 were Democrats. President Johnson saw the writing on the many Senators today. what we are contemplating doing is in wall—that Fortas did not have 51 senators in Second, Senators’ speech rights are the best traditions of the Senate. We support of his nomination—so he withdrew just as strong as ever. Nor were Ameri- are restoring our consensus practices the nomination before debate could be com- cans’ free speech rights injured, as for managing the judicial confirmation pleted. some Senators say will happen. process using a tool that has been re- The events of 37 years ago contrast mark- Third, minority rights were not de- peatedly used and has always been edly with those the Senate faces today: stroyed. The Senate minority is as vi- available. I look forward to completing (1) Fortas lacked majority support when brant as ever and has been remarkably President Johnson withdrew his nomination. this debate so that we can start voting Today, Senate Democrats block up-or-down successful in obstructing the business on individual judicial nominees and votes on judicial nominees who are sup- of the Senate, whether we are talking turn to the pressing legislative matters ported by a majority of senators. about the Energy bill, medical liability of the Senate. (2) Justice Fortas was politically associ- lawsuit reform, asbestos reform, tax re- EXHIBIT 1 ated with President Johnson and eventually lief, or other issues. [From the Washington Times, May 19, 2005.] resigned from the Supreme Court under an Before I close, I would like to address ethical cloud. No such charges have been A UNIQUE CASE OF OBSTRUCTION concerns that some of my conservative made against President Bush’s nominees. (By Senator Bob Dole) friends have recently expressed. Some (3) The Senate debated the Fortas nomina- In the current debate over judicial nomina- tion only for several days before Johnson are fretting that Republicans are tak- tions, some commentators claim Repub- withdrew the nomination, versus the four ing a dangerous step by restoring the licans such as myself are misrepresenting years some of President Bush’s nominees traditional up-or-down vote standard history by suggesting the current filibuster have been pending. It’s clear the Democrats for judicial nominees. My friends argue tactics of the Democrats are unprecedented. today have no desire to persuade, and have that Republicans may want to fili- These commentators cite the 1968 nomina- even complained further debate is a ‘‘waste buster a future Democratic President’s tion of Abe Fortas to be chief justice of the of time.’’ nominees. To that I say, I do not think United States as an example of how Repub- (4) Fortas’ support and opposition were bi- so. And even if true, I am willing to licans once attempted to block a judicial partisan, with Republicans and Democrats nomination on the Senate floor. I welcome on both sides of the question. Today, the give up that tool. It was never a power the opportunity to respond to this claim, be- controversy is purely partisan—with only we thought we had in the past, and it cause the more Americans learn about the Democratic senators, led by their leader is not one likely to be used in the fu- history of judicial nominations, the more Harry Reid, opposing an up-or-down vote. ture, unless that longstanding tradi- they will realize how terribly off-track our I recall two judicial nominations of Presi- tion is abdicated. confirmation process has become. dent Clinton’s particularly troubling to me I know some insist we will someday In 1968, President Lyndon Johnson sought and my fellow Republican members when I want to block judges by filibuster, but to elevate his longtime personal lawyer, was the Republican Leader in the Senate. I know my colleagues. I have heard then-Associate Supreme Court Justice Abe Despite our objections, both received an up- Fortas, to be chief justice. I would not be or-down vote on the Senate floor. In fact, I them speak passionately, publicly and elected a senator for a few more months, but voted to end debate on one of these nominees privately, about the injustice done to followed the news surrounding this nomina- while voting against his confirmation. Re- filibustered nominees. I think it highly tion closely. publicans chose not to filibuster because it unlikely that they will shift their There were problems with the Fortas nom- was considered inappropriate for nomina- views simply because the political ination from the beginning. Not only did he tions to the federal bench. worm has turned, again, if we sustain represent the most aggressive judicial activ- By creating a new 60-vote threshold for the tradition of the Senate. So I say to ism of the Warren court, but it soon became confirming judicial nominees, today’s Senate apparent Justice Fortas had demonstrated my friends what you say that we Re- Democrats have abandoned more than 200 lax ethical standards while serving as an as- years of Senate tradition. publicans are losing is in fact no loss at sociate justice. For the first time, judicial nominees with all. For example, it emerged Fortas had taken clear majority support are denied an up-or- My friends also argue that the legis- more than $15,000 in outside income from down vote on the Senate floor through an lative filibuster will be next. I have sources with interests before the federal unprecedented use of the filibuster. This is even seen some media outlets insist courts. This was more than 40 percent of his not a misrepresentation of history; it’s a that this exercise of the constitutional salary at the time, or about $80,000 in today’s fact. option for judicial filibusters will auto- dollars. The PRESIDING OFFICER (Mr. More fundamentally, Fortas never took off matically apply to the legislative fili- his political hat when he became a judge. ALLEN). The Senator from Texas. buster. This is completely false. More- While serving as a Supreme Court justice, Mr. CORNYN. Mr. President, at a over, no Republican Senator wants to Fortas continued serving as an informal po- time when it seems like too often de- eliminate the legislative filibuster and litical adviser to the president and even in- bate on the President’s nominees have few, if any, Democrats do. Some once volved himself in Vietnam War policy. It shed more heat than light, it has been did, but they recently recanted. In fact, later emerged Fortas had discussed pending a delight for me to sit here, as the the junior Senator from California said cases with the president, an obvious viola- Chair has, and listen to the Senator tion of professional ethics. from Arizona present in comprehensive she was ‘‘wrong . . . totally wrong’’ In fact, less than a year after his nomina- ever to have thought otherwise. tion as chief justice was withdrawn by Presi- detail the legal and constitutional Everyone here knows that political dent Johnson, Justice Fortas was forced to framework for the Senate’s authority fortunes change. It is one thing to give resign from the Supreme Court due to eth- to set its own rules by establishing this supposed ‘‘right’’ that had never ical breaches. precedents, passing standing rules, been used, such as this filibuster of ju- The claim Fortas was not confirmed due to adopting standing orders by unanimous dicial nominees. It is quite another to a ‘‘filibuster’’ is off-base. A filibuster, com- consent, and otherwise. It was an ex- be so shortsighted as to eliminate such monly understood, occurs when a minority cellent presentation and, indeed, a of senators prevents a majority from voting a powerful legislative tool. In fact, the up-or-down on a matter by use or threat of strong case, and that is exactly why first vote I ever cast as a Senator was permanent debate. leading Senators on the other side of to preserve the legislative filibuster, That simply did not happen with Fortas, the aisle, including the former Demo- and I was in the majority. where the Senate debated the nomination’s cratic majority leader, the Senator

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00061 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5514 CONGRESSIONAL RECORD — SENATE May 19, 2005 from West Virginia, the Senator from What are we to do when these nomi- member of the Texas Supreme Court. Massachusetts, and the junior Senator nees are demonized and caricatured be- As Members of this body know, I for- from New York, have all stated, as re- yond recognition to those of us who ac- merly served on that same court and cently as 2 years ago, that, of course, a tually know them; when Senators on for 3 years had the distinct pleasure of majority of Senators has the power to the other side of the aisle call them serving alongside of this able judge and set rules, precedents, and procedures. kooks, despicable, Neanderthal, and fine and decent human being. I can tell Indeed, that is why the power of the scary; when nominees are condemned you from the sharp attacks that have Senate majority to set rules, prece- as unqualified or perhaps lacking in ju- been made against her and the dents, and procedures is known as the dicial temperament, while at the same mischaracterizations that have been Byrd option or, as some have called it, time they are deemed unanimously made of the opinions she has written the constitutional option. well qualified by the American Bar As- and joined, I doubt that many Senators Let me begin my remarks by making sociation, an institution that the have actually read those opinions. If one simple point. I would prefer the bi- Democrats have always revered and they had, they would not be able, with partisan option to the Byrd option held up as the gold standard when it a straight face, to make some of the every time. America works better, in- came to qualifications to serve on the claims that have been made on this deed the Senate works better, when we Federal judiciary? floor. work together in a bipartisan way to What are we to do when Senate and Rather than reading the opinions of try to solve the problems that come be- constitutional traditions are aban- this able jurist and fine and decent fore the Congress. I would much prefer doned for the first time in more than human being, it appears the talking to stand up here, after waking each two centuries, when both sides once points they have been using are writ- day, and conduct business in a bipar- agreed that nominees would never be ten, not based on what these cases ac- tisan manner. filibustered, and then one side simply tually say, but they are talking points I have done my best to make the denies the existence of that very agree- prepared by political consultants who most of every opportunity that I have ment when it suits them, when their are more concerned with winning a seen to do so since I have been in the interpretation of Senate tradition partisan political battle at any cost. Senate. For example, I have enjoyed changes based on who happens to oc- A number of Senators, for example, working with the senior Senator from cupy the Oval Office and who happens have mentioned a case called Mont- Vermont on legislation to strengthen to be in the majority in the Senate? gomery Independent School District v. the accessibility, accountability, and What are we to do when our col- Davis. That is supposed to be an exam- openness of the Federal Government. leagues boast to their campaign con- ple of Justice Owen being ‘‘out of the I have worked with the junior Sen- tributors of this ‘‘unprecedented’’ ob- mainstream.’’ ator from Wisconsin and the senior struction, and then come to the Senate But I ask my colleagues, just read Senator from Connecticut on the im- floor and claim that it is someone else the opinion. The case involved the au- portant issue of continuity of Govern- who has changed the rules; when our thority of a local school board to dis- ment in the wake of a future terrorist colleagues justify their obstruction by miss a poorly performing and abusive attack. teacher. This teacher admitted that I have worked with the senior Sen- pointing to Clinton nominees, such as she had referred to her students as lit- ator from New York on ways that we their most prominent example, Judge tle blank blank blanks, a four-letter together can combat modern day slav- Richard Paez, who was confirmed by expletive that I will not mention on ery and human trafficking. standards they now reject for this And I have worked with the senior President’s nominees? the floor of the Senate. But when con- Senator from Massachusetts on mili- What are we to do when our col- fronted with this, the teacher justified tary citizenship and immigration leagues on the other side of the aisle the use of this expletive—to school- issues. claim that Justice Owen must cross children mind you—on the bizarre I would choose collaboration in this the threshold of 60 votes, whereas ground that she used exactly the same kind of bipartisan cooperation any day Judge Paez only required 51 votes to be language when talking to her own chil- of the week. But bipartisanship is a confirmed? dren—clearly unacceptable conduct on two-way street. Both sides must agree What are we to do when the Demo- the part of any teacher, or any adult on certain fundamental principles and crats’ former majority leader, the Sen- who is given the authority to deal so a fair process that applies no matter ator from West Virginia, claims on 1 closely with impressionable children. who is in power, whether we have a Re- day that the filibuster is sacrosanct The Senator from New York says this publican President or a Democratic and sacred to the Founders when in teacher was wrongly dismissed. Numer- President, whether we have a Repub- January of 1995 he said: ous other Senators have likewise char- lican majority or a Democratic major- I have seen filibusters. I have helped to acterized Justice Owen’s decision in ity. break them . . . the filibuster was broken— the case the same way. The most fundamental principle of back, neck, legs, arms. I have children. Many Senators have all is fairness. Fairness means that the Finally, what are we to do when they children. Are Justice Owen’s opponents same rules apply regardless of who is claim on 1 day that all they seek is really arguing that this teacher acted President. more time to debate a nomination and appropriately? That she was wrongly Bipartisanship is difficult, however, then claim on another day that there dismissed and that somehow this deci- when long-held understandings and the are not enough hours in the universe to sion, or this ruling by Justice Owen—I willingness to abide by basic agree- debate the nomination? should say in her dissenting opinion— ments and principles has unraveled so The new requirement this partisan somehow renders her out of the main- badly. Where fairness falters, biparti- minority is now imposing, that nomi- stream? Justice Owen simply said the sanship will fail. nees will not be confirmed without the local school board was justified in dis- So I ask my colleagues, what are we support of at least 60 Senators, is, by missing this teacher, hardly a decision supposed to do when these basic prin- their own admission, wholly unprece- out of the mainstream. I daresay the ciples, commitments, and under- dented in Senate history. The reason vast majority of America would agree standings have unraveled? What are we for this is simple. The case for opposing with her. to do when nominees are attacked, in- this fine nominee, Justice Priscilla However, in that case the majority of cluding being called names, simply for Owen, is so weak the only way they can the Texas Supreme Court disagreed and doing their jobs, when they are at- attempt to successfully oppose her is held that the school board could not tacked for following judicial prece- by changing the rules, imposing a dou- dismiss the teacher, notwithstanding dents adopted and agreed to by ap- ble standard in an attempt to defeat the fact that she conceded the lan- pointees of Presidents Clinton and Car- her nomination. guage that she used. Justice Owen’s ter, when they are singled out for their Different Senators during the course dissenting opinion simply concluded decision on a particular case even of this debate have come to the floor that the majority ‘‘allows a state hear- though it was held by a unanimous or and criticized judicial decisions that ing examiner to make policy decisions near unanimous court? Justice Owen has participated in as a that the Legislature intended local

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00062 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5515 school boards to make.’’ She also noted City of Garland v. Dallas Morning cial activist. As I pointed out, he swore that the majority ‘‘misinterpreted the News. In that case Justice Owen fol- under oath that is not true. It is clear Education Code.’’ lowed precedents adopted by three ap- by any reasonable reading of the opin- Another case that Senators, particu- pointees of President Carter to the ions that he never referred to her by larly the Senator from Massachusetts, Federal bench. So Justice Owen is now name or was even, in fact, referring to attacked Justice Owen for was Texas too conservative and out of the main- her by implication. Farmers Insurance Company v. Mur- stream because she happens to agree It reminds me of what Mark Twain phy. In this case, Justice Owen ruled with presidential appointees of Presi- said: A lie can travel around the world that neither an arsonist nor his spouse dent Jimmy Carter? while the truth is still putting on its should benefit from his crime by recov- The majority opinion in that case shoes. ering insurance proceeds. said we should not blindly follow the How about the pro-choice Democratic The senior Senator from Massachu- Federal courts. Justice Owen simply law professor appointed by the Texas setts says this position puts Justice said that the courts should follow Fed- Supreme Court to help set up proce- Owen out of the mainstream. I dis- eral precedence because Texas open dures under which parental notifica- agree. Do Justice Owen’s opponents government laws had originally been tion statute. Would critics tend to really believe that it is extreme and modeled after the Federal Freedom of think she might be a credible person out of the mainstream to say that Information Act. when it comes to whether Justice Owen arsonists and their spouses should not One last example. The Senator from did a good job if this same Democratic benefit from their crime? Washington mentioned a case that was pro-choice law professor supports Jus- I also point out that Justice Owen’s discussed in a recent op-ed in Roll Call. tice Owen too? She said in a letter that ruling in this case followed two unani- She claimed that in Read v. Scott has been made part of the CONGRES- mous decisions of the Fifth Circuit Fetzer Company, Judge Owen would SIONAL RECORD Justice Owen simply Court of Appeals, the very court to not allow a woman who was raped by a did what good appellate judges do which she has been nominated. Again, vacuum cleaner salesman to sue the every day. If this is activism, then any hardly out of the mainstream. company that had hired him without a judicial interpretation of a statute’s How about the case of FM Properties background check. terms is judicial activism. Operating Company v. the City of Aus- The Senator should check her facts I ask, should we trust the critics tin, relied upon also by the senior Sen- because it is simply not true. The Sen- who have misconstrued and mis- ator from Massachusetts and other ator must not have seen my letter pub- characterized and painted a picture of Senators? Justice Owen is criticized for lished in Roll Call a few days later be- this fine person beyond any recognition dissenting in this case because she did cause I pointed ought there, as I point by those who know her and have not want to use a doctrine known as out here, that the dissenting opinion worked alongside her or do you trust the nondelegation doctrine in order to made clear no one questions that the the people who actually know her, the strike down a Texas law as unconstitu- company that had hired the rapist is, people who have worked most closely tional. Yet just last month, another in fact, liable. The justices simply dis- with her? In fact, it is the very same Senator, this time the senior Senator agreed on whether another company, liberal special interest groups who from Delaware, criticized another judi- one that had not hired the rapist and criticize her today who never wanted cial nominee, Bill Pryor, for wanting had no relationship with the rapist, the legislature to pass this parental no- to use the nondelegation doctrine in should also have been held liable. tification law in the first place. another situation. So Justice Owen’s Of course, a number of Senators have It is these same liberal interest critics seem to be saying if you support spoken about the parental notification groups who literally make their living the use of this particular legal doc- cases. That is the attempt by the Texas trashing nominees of this President trine, the nondelegation doctrine, you Supreme Court to interpret a new stat- who are criticizing Justice Owen today. are out of the mainstream. And if you ute which stands for the proposition As a former justice of the Texas Su- oppose the nondelegation doctrine, you which I think most Americans would preme Court myself, I find these cases are somehow out of the mainstream. I ask them, which one is it? The agree with, that when minor girls seek moderately interesting reading. Most truth is, this legal doctrine known as to get an abortion, they should notify Senators and most Americans probably nondelegation is a controversial theory their parents or, failing that, seek a do not, and that is fine. But we can that is often harshly criticized by lib- bypass of that requirement from a surely agree on this. If these cases are erals who accuse conservatives of judge. That is what the legislature said accurately characterized and under- wanting to use it to strike down laws they should do, and that is precisely stood, they definitively demonstrate enacted by the legislature. That is fine. the statute that Justice Owen sought that Justice Owen is a capable and Fair enough. But that is exactly what to interpret. well-qualified judge, and that of course Justice Owen’s dissent criticized the I ask the people across America who is why she enjoys such impressive and majority of the court for doing. She may be listening to the debates we are wide-ranging endorsements from across stated the court has seized upon this having in the Senate, whom would you the aisle. rarely used nondelegation doctrine to trust to judge Justice Own and whether We should keep our eye on the ball. claim the constitutional authority for she did a good job in that case? Who Let’s remember what judicial activism an unprecedented restriction of the leg- was more credible to talk about the really means because the American islature’s power, and that the court quality of Justice Owen’s legal analysis people know a controversial judicial today exercises raw power to override in the parental notification cases? ruling when they see one. Whether it is the will of the legislature and of the Would it be, perhaps, say, the author of the radical redefinition of our society’s people of Texas. the law she was interpreting who sup- most basic institutions like marriage, It reminds me of the lyrics of a coun- ports Justice Owen? Would it be, per- or the expulsion of the Pledge of Alle- try and western song: ‘‘Darned If I Do, haps, her former colleagues on the giance from our classrooms, or from Danged If I Don’t.’’ court, including former Justices the public square, whether it is the Justice Owen cannot win. She is Alberto Gonzales and Greg Abbott, who elimination of the three strikes and being whipsawed by Senators who on support Justice Owen’s nomination. you are out law and other penalties one hand criticize her for doing one How about now—Attorney General against hardened criminals, or the thing, when other Senators criticize Alberto Gonzales, who swore under forced removal of military recruiters some other nominee for doing some- oath that the accusations we are hear- from college campuses, Justice Owen’s thing else. They really are arguing ing are untrue and that he never ac- ruling, of course, falls nowhere near both sides against the middle and these cused her of being a judicial activist. this category of cases. nominees cannot win, according to I have seen some of the advertising There is a world of difference be- that inconsistent, and some might even that has been done by some of the in- tween struggling to try to interpret claim hypocritical test. terest groups attacking Justice Owen the ambiguous expressions of a legisla- The Senator from Illinois has at- unfairly who are claiming that Alberto tive body and refusing to obey a legis- tacked Justice Owen for a ruling in the Gonzales accused her of being a judi- lature’s directives altogether.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00063 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5516 CONGRESSIONAL RECORD — SENATE May 19, 2005 If the Senate today were simply to selecting judges that hurts our justice ‘‘Everyone agrees: Senate confirmation re- follow more than 200 years of con- system and harms all Americans. quires simply a majority. No one in the Sen- sistent Senate and Constitutional tra- It is simply intolerable for a partisan ate or elsewhere disputes that.’’ dition dating back to our Founding Fa- minority to block a bipartisan major- The PRESIDING OFFICER. The Sen- thers, there would be no question that ity from conducting the Nation’s busi- ator from New Jersey. Justice Owen would be confirmed ness. It is intolerable that the stand- Mr. CORZINE. Mr. President, I rise today. President after president after ards now change depending on who is today to address the nomination of president had their judicial nominees in the White House and which party is Priscilla Owen to the Fifth Circuit confirmed by a majority vote, not a the majority party in the Senate. And Court of Appeals and to oppose the ma- supermajority vote. it is simply intolerable that this nomi- jority’s challenge to our Nation’s con- By their own admission, at least at nee—this fine and decent human stitutional framework of checks and one time, Justice Owen’s opponents in being—an outstanding judge has wast- balances. I also rise to protect the this body are using unprecedented tac- ed 4 long years for a simple up-or-down rights of the minority in our political tics to block her nomination and pre- vote. system. vent a bipartisan majority from cast- Yes, we need a fair process for select- This debate is historic in the context ing their vote in favor of her confirma- ing fair judges, after full investigation, of American constitutional practice, tion. full questioning, full debate, and then a and it deals with the core of necessary Again, the reason is simple: The case vote. Throughout our Nation’s more consensus building that has united and for opposing this fine nominee is sim- than 200-year history, constitutional strengthened America throughout our ply so weak that only by using a dou- rule and Senate tradition for con- political life. ble standard and changing the rules firming judges has always been a ma- Though I have come to the floor on a can they hope to defeat her. Legal jority vote. And that tradition—broken number of occasions this year to speak scholars across the spectrum have long 4 years ago after this nominee and oth- on vital domestic and national security concluded what we in the Senate know ers were proposed by the President— concerns affecting New Jersey’s and instinctively, and that is to change the must be restored. After 4 years of America’s citizens, today, with dis- rules of confirmation, as a partisan mi- delay, affording Justice Owen a simple appointment, I rise to speak—not nority has done these last 4 years, up-or-down vote would be an excellent about issues such as the safety of our badly politicizes the confirmation, as a start. troops in Iraq; protecting our citizens partisan minority has done, and badly Mr. President, I thank the Chair and at home from terrorist threats, wheth- politicizes the Judiciary and hands yield the floor. er it be at chemical plants or ports or over control of the judicial confirma- EXHIBIT 1 airports; ending genocide in Darfur; tion process to special interest groups. Professor Michael Gerhardt, who advises strengthening Social Security; pro- I ask unanimous consent a summary Senate Democrats about judicial confirma- viding access or cost control to health of supporting quotes from legal schol- tions, has written that a supermajority re- care; lowering gas prices, combating ars be printed in the RECORD at the quirement for confirming judges would be global warming; or building affordable conclusion of my remarks. ‘‘problematic, because it creates a presump- The PRESIDING OFFICER. Without tion against confirmation, shifts the balance housing—all vital issues to the Amer- objection, it is so ordered. of power to the Senate, and enhances the ican people—instead, I am here because (See exhibit 1) power of the special interests.’’ some in this body think it is their re- Mr. CORNYN. Mr. President, the D.C. Circuit Judge Harry Edwards, a re- sponsibility and right to eliminate mi- record is clear, notwithstanding what spected Carter appointee, has written that nority rights when it comes to approv- the Constitution forbids the Senate from im- ing lifetime appointments to the U.S. some opponents have said today and in posing a supermajority rule for confirma- the last 4 years. The Senate tradition Court of Appeals and to the U.S. State tions. After all, otherwise, ‘‘[t]he Senate, supreme court. has always been a majority vote, and acting unilaterally, could thereby increase the desire by some to alter that Senate its own power at the expense of the Presi- I rise to protest this attack on our tradition has been roundly condemned dent’’ and ‘‘essentially take over the ap- constitutional system and our Senate by legal experts across the political pointment process from the President.’’ traditions. In short, it is an attack spectrum. Edwards thus concluded that ‘‘the Framers that I think supports the view that I will close by simply reinforcing never intended for Congress to have such un- breaking the rules is the way to change checked authority to impose supermajority what the Senator from Arizona stated the rules. We are here today because a voting requirements that fundamentally number of my colleagues, many in good so well in his earlier remarks. To em- change the nature of our democratic proc- ploy the Byrd option is not a radical esses.’’ faith, wish to ignore the principles em- move at all. It would merely be an act Georgetown law professor Mark Tushnet bedded in the U.S. Constitution and of restoration. In fact, as we have has written that ‘‘[t]he Democrats’’ fili- allow the will of the majority to reign heard time and time again, there is buster is . . . a repudiation of a settled, pre- supreme. Absolute power is often said ample precedent to support the use of constitutional understanding.’’ He has also to corrupt, and limiting the checks and this point of order. written: ‘‘There’s a difference between the balances of the right to debate on the use of the filibuster to derail a nomination The senior Senator from West Vir- Senate floor can most certainly facili- and the use of other Senate rules—on sched- tate that abuse. ginia was then majority leader of this uling, on not having a floor vote without body and used this on four separate oc- prior committee action, etc.—to do so. All There was a reason our Founders casions—in 1977, in 1979, in 1980 and those other rules . . . can be overridden by a gave two votes to each State. That fun- again in 1987—to establish precedence majority vote of the Senate . . . whereas the damental principle was debated as the to change Senate procedure during a filibuster can’t be overridden in that way. A Founders wrote our Constitution. session of Congress. Other leading Sen- majority of the Senate could ride herd on a Today, there are two Senators from ators from the other side of the aisle rogue Judiciary Committee chair who re- California, a State with 36 million citi- fused to hold a hearing on some nominee; it zens. Similarly, there are two Senators have recognized, time and again, the can’t do so with respect to a filibuster.’’ legitimacy of the Byrd option, includ- And Georgetown law professor Susan Low from the State of Wyoming, which has ing the Senator from Massachusetts, as Bloch has condemned supermajority voting slightly more than 500,000 citizens. Our well as the junior Senator from New requirements for confirmation, arguing that Founders believed strongly in the right York as recently as 2 years ago. they would allow the Senate to ‘‘upset the I of minorities to have a voice on the In the end, I believe this debate dem- carefully crafted rules concerning appoint- floor of the Senate and embedded this onstrates, without a doubt, that it is ment of both executive officials and judges principle in our Constitution. It is ab- time to fix our broken judicial con- and to unilaterally limit the power the Con- solutely one of the most essential com- firmation process. It is time to end the stitution gives to the President in the ap- promises that was a part of creating pointment process. This, I believe, would blame game, to fix the problem, and to allow the Senate to aggrandize its own role our Constitution. In fact, it has been move on and do the American people’s and would unconstitutionally distort the the framework that has allowed the business. It is time to end the wasteful balance of powers established by the Con- Constitution to work so effectively for and unnecessary delay in the process of stitution.’’ She even wrote on March 14, 2005: some 217-odd years.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00064 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5517 At a practical level, this overreach— crats should block nominations be- gotten an up-or-down vote in the Sen- some might call abuse—by the major- cause Republicans have used process ate. ity is unfortunate for those of us who and procedure to stop Democratic One has to put this into a historical have been pleased to work well with nominees, which, in fact, has been the perspective. This is something that the White House in building a con- case. The hard facts show that the Sen- should be debated on a more funda- sensus on judicial nominations. It has ate has approved 208 of President mental level of what it is that one can happened in our State. For example, Bush’s 218 judicial nominations. That draw from the reading of our Constitu- New Jersey Senators have met and is a 95-percent rate of approval—not tion. I go back to the fact that there agreed to a set of five judges, includ- too bad; as a matter of fact, I think are two Senators for every State, re- ing, by the way, a circuit court judge most people would think if you were gardless of its size. The intent was to who reflects the best of our legal com- hitting at that level in baseball, you make sure minorities were fully rep- munity and who travels well within the would be doing pretty good. resented. mainstream of legal thought. President Clinton’s nominees were Looking at this from another per- Over my 41⁄2 years in the Senate, the often held up before they even had a spective, a more political perspective, I White House and I have agreed on an chance for debate in committee, a dif- accept that Republicans hold 55 seats outstanding package of jurists of whom ferent procedural process that led to in the Senate and that President Bush we can all be proud. And we are cur- about over 60 of the Clinton nomina- won reelection. However, neither of those facts goes against the constitu- rently working with the White House tions being blocked. But again, I don’t tional history of the right to speak on another package—for district court think this issue is about tit for tat or your mind as a minority. And neither judges and one additional circuit court getting even. of those facts give the majority the judge. It is misplaced for others to argue right to break the rules to gain more Let me be clear, while many of these that Democrats are being obstruc- power. The rules are the rules adopted. judges would not have been my first tionist because we refuse to serve as A ruling from the Chair without con- political or philosophical choice, I have rubberstamps. I was not elected by the sultation with the Parliamentarian worked, together with Senator LAU- people of New Jersey to be a would be an extraordinary action, cer- TENBERG, and before him with Senator rubberstamp. Actually, they don’t like tainly contrary to anything I have seen Torricelli, with the White House to that kind of thing in New Jersey. in the 41⁄2 years I have been here, cer- come to an agreement on smart, fair, Republicans may one day see a tainly contrary to what I hear among and hard-working judges for the Fed- change in their majority status, and eral bench in New Jersey—people clear- my colleagues. many of my Republican colleagues A rule change under extraordinary ly in the mainstream, people of whom may not like this change at another we will all be proud to have as lifetime procedures is why it has been labeled point in time. I don’t think they would the nuclear option. I would argue if the judicial appointments. All of these are seek to be a rubberstamp in the judi- judges committed to the rule of law majority were to adopt this procedure cial nomination process at that time. they would be breaking the rules to and not to promoting their own polit- This is not about an up-or-down vote, ical views or trying to rewrite law make the rules. We all know we are as Republicans suggest. That argument setting an extraordinary precedent— through judicial activism. is intended to divert the attention of I have voted many times for judges and frankly, this could become a slip- the American people from the real with whom I disagree on important pery slope for this legislative body, issue—the rights of the minority in the issues—issues as fundamental to me as particularly when it sets a precedent Senate, as developed by our constitu- choice or worker protections. But I that may be expanded upon to include tional Founders, the U.S. system of have voted for them because they re- legislative filibusters, which I hear al- checks and balances, and, frankly, the spect the law and precedent. What I most everyone argue is not something principle of fundamental fairness, that cannot and will not agree to are nomi- they would embrace. It could be a slip- you don’t change the rules in the mid- nees who are political ideologues peo- pery slope and a dangerous precedent dle of the game. ple who let us know that they will for a thriving democracy and an Au- Here is the argument that this is not challenge precedent in order to pro- gust body that has served America well about an up-or-down vote. The major- mote their political beliefs and what I by providing for checks and balances ity blocked over 60 of President Clin- believe is an extremist agenda. They through the fullness of our political ton’s nominees. They never allowed want to change the law. The job of life. them to have an up-or-down vote on writing laws is the job we have right Our U.S. system is based on the com- here on the Senate floor. the Senate floor and, frankly, they petition of ideas between the two main This debate is particularly important never allowed them to have an up-or- political parties. Clearly, each side in a practical sense to me because down vote in committee. They just seeks to prevail. What the majority is there is a vacancy currently on the used different rules and different proce- doing now goes beyond a simple desire Third Circuit Court of Appeals due to dures, at different time, but they ac- to prevail. What is going on here is an the retirement of Michael Chertoff, complished the same thing. attempt by the majority to break the now the head of our Nation’s Depart- Additional evidence that this is not rules to change the rules. That violates ment of Homeland Security. I fear this about giving nominees an up-or-down the principle of fundamental fairness Third Circuit vacancy is in jeopardy of vote is the simple fact that historically and actually attacks in a fundamental going the way of what we have seen the filibuster has been used as a Senate sense the rule of law under which our with the nomination of these activist procedural tool, often to prevent Nation operates. You don’t break the judges—jurists with views outside the Democratic judicial nominees from re- rules to win in America. That is not mainstream, with extremist views, who ceiving an up-or-down vote in the Sen- the American way. believe that it is their right to make ate. The American way is to play fairly the law as opposed to interpret it or Since 1968, at least according to the and consistently by the rules. That is apply it. legal scholars I have talked to, we have all that I believe we on this side of the If these activist individuals want to seen Republicans use the filibuster six aisle are asking for. We are asking for make law—and they may have remark- times to block judicial nominees, per- the right to play by the established able resumes—they should run for Con- haps the most visible being the nomi- rules that have been historically in gress or the Senate rather than accept nation of Abe Fortas to be Chief Jus- place, consistent with precedent, ones a nomination to the Federal bench. tice of the Supreme Court. The Fortas that have existed for decades, to chal- That is why my support for the fili- nomination was successfully filibus- lenge people who we believe are fun- buster in the judicial nominating proc- tered and was never given an up-or- damentally unqualified or judicially ess is not about anything but the fun- down vote. outside the mainstream to be Federal damental constitutional principles es- But just to put it in a broader histor- judges either because of their views, tablished by our Founders. ical perspective, 20 percent of the which are inconsistent with precedent, It is not about getting even. It is not nominations to the Supreme Court or because of their activist judicial tit for tat. I am not suggesting Demo- from our birth as a nation have never records.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00065 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5518 CONGRESSIONAL RECORD — SENATE May 19, 2005 Let me be specific as to the judicial would operate outside of the main- membership in the Federalist Society should nominees before the Senate: Justice stream if confirmed as a federal judge. disqualify her. Priscilla Owen and Justice Janice Rog- I simply cannot support placing such Well, this is about the nomination of ers Brown. Both may be remarkable an immoderate judge on the Federal Priscilla Owen from Texas. I made the people in their own right, but that is appeals court for a lifetime tenure. point of how interesting it was that not my concern. Good people may not In closing, let me return to where I while very few lawyers in America be- be fit to serve as federal judges because began. Yes, this is an important de- long to the Federalist Society—maybe of their interpretation of the Constitu- bate—maybe one of the two or three 1 percent—it turns out that about a tion, how they apply it or don’t apply most important in the last few years. I third of President Bush’s nominees be- law, and the activist approach they think it goes at the core of our con- long to this Federalist Society. I re- take. stitutional system. It is unfortunate ferred to it as the ‘‘secret handshake’’ Let’s start with Justice Owen. This is we are not here debating the real prob- at the White House and that, if you be- a judge who has consistently inserted lems that face our Nation and the citi- long, you have a much better chance to her political views into judicial opin- zens of my State, which include health become a judge. ions. That is how I read the record. She care costs, gas prices, education, en- I also made a point of the fact that has had a record distinguished by con- ergy costs, and the safety of service- when we ask nominees what the Fed- servative judicial activism. Justice men. Those are the issues that people eralist Society is and why do you be- Owen has consistently voted to throw talk to me about when I am out and long, we get the craziest answers you out jury verdicts favoring workers and about in my home State. But the peo- can imagine. There was a law professor consumers against businesses and she ple of my home State—and I suspect it from Georgetown, Viet Dinh, a nice has dismissed cases brought by workers is true of people of every State in the man who worked for the Department of for job-related injuries, discrimination, Nation—expect us to defend our con- Justice, and I said to him, ‘‘What is the and unfair employment practices, mak- stitutional liberties. They expect us to Federalist Society? Why is it so many ing decisions that are inconsistent stand for checks and balances and for Bush nominees belong to it?’’ ‘‘Oh,’’ he with established precedent. the rights of those in the minority so said, ‘‘it is an excuse to have lunch in Justice Owen has participated in that we can build a consensus to unite, Chinatown once a month. We go there cases involving companies that have not divide. They expect us to speak and somebody talks to us and we eat been involved in her own political ac- strongly to preserve those rights on and come back to school.’’ And I would tivities, including Enron and Halli- the floor of this Senate. I think that is ask others, ‘‘What is it all about?’’ burton decisions. But the real issue, what this debate is about. This debate With the exception of Senator ORRIN the Houston Chronicle concluded, was is a fundamental one and, therefore, HATCH, who I believe was on the board, that ‘‘Owen’s judicial record shows less truly one of the most important we can or may still be on the board of the Fed- interest in impartially interpreting law have. eralist Society, almost nobody will than in pushing an agenda.’’ I believe I want us to move on to the real talk publicly about who they are and this is a record that is outside the issues of the day, and they are chal- what they believe. mainstream. That justifies my position lenging for our Nation, for all of us. That was the point I was making. and, I believe, that of my Democratic Men and women are losing their lives. This curious, semisecret society is so colleagues. But there is an absolute responsibility quickly disavowed by its members As for Justice Janice Rogers Brown, for all of us to make sure that our sys- whenever you ask a public question a California Supreme Court justice tem works with the kind of care and about it. Yet it appears to be one of the nominated to the DC Circuit, she has thoughtfulness and the kind of checks most important things you can add to spent the better part of her time as a and balances that have served our Na- your resume if you want to be a judge judge attacking America’s social safe- tion so well. from the Bush administration. ty net. The California Bar Commission It is our responsibility to stay tuned And Priscilla Owen of Texas—sur- found Justice Brown unqualified in to the historical traditions of the Sen- prise, surprise—is a member and officer part because of her tendency to inter- ate and to the principles our Founders of the Federalist Society. I do not ject her political and philosophical put together that said minorities in think she should be disqualified be- views into her opinions. I don’t have a this Nation have a right to be heard. cause of that. There is nothing illegal problem with people having political The Founders established that prin- about it. I do not know what the phi- and philosophical views. Most of the ciple clearly with the Philadelphia losophy is other than what they state folks who speak here on this floor have Compromise. We must sustain this on their Web site. It is very conserv- political views. But when you go to the principle in the days ahead in our de- ative. It thinks that liberals are ruin- bench, you are asked to bring an im- bate. ing the world. It goes on and on. partiality, an independence as to how I yield the floor. I am not saying that if you belong to Mr. President, I suggest the absence you deal with a case and how you apply that you should not be qualified to of a quorum. the law and interpret the law. Justice The PRESIDING OFFICER. The serve on the bench. That is not the Brown, through her opinions as a judge clerk will call the roll. point. But when I asked someone such has made it clear that she has a dis- The legislative clerk proceeded to as Priscilla Owen, a supreme court jus- regard for legal precedent. Justice call the roll. tice from Texas whose time must be Brown has called Supreme Court deci- Mr. DURBIN. Mr. President, I ask very precious, why she took the time sions upholding the New Deal ‘‘the tri- unanimous consent that the order for to join this organization and she can- umph of our socialist revolution.’’ I be- the quorum call be rescinded. not or will not answer it, I think it is lieve that is outside the mainstream. The PRESIDING OFFICER. Without important. Let us not forget, by the way, that one objection, it is so ordered. I voted to confirm the vast majority of the main components of the New Mr. DURBIN. Mr. President, this of President Bush’s nominees and a lot Deal was the creation of Social Secu- morning, Senator GORDON SMITH came of Federalist Society members, so I am rity, which is now having a debate in to the floor. He is a close friend. He not blackballing or disqualifying them. this Nation. It is hardly a socialist ini- made a statement relative to some- I know it is an ultraconservative soci- tiative. thing I said on the floor yesterday ety, whatever it is, and I know that so Justice Brown has also—always in about the nomination of Priscilla many people are afraid to even ac- dissent—used constitutional provisions Owen. I am flattered he was listening, knowledge they are members when it is or defied the legislature’s intent to at- or that someone was listening. brought to public attention. tempt to restrict or invalidate laws I am afraid what he said about my re- I think their views are extreme and that she doesn’t like—as, most nota- marks was not completely accurate. off base, from my point of view. I think bly, she did with California’s anti-dis- Senator SMITH made the following their views are extreme and off base crimination statute. And so I believe statement: when we look at mainstream America. that this is a case where there is rea- As I understood the assistant Democratic How can you say, as they do, that the son to believe that Justice Brown leader, he was saying that Judge Owen’s legal profession is strongly dominated

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00066 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5519 by a form of orthodox liberal ideology? approval. Democrats are prepared to to the filibusters and decided which Look at the 13 Federal courts of appeal approve. Of course, that would destroy filibusters are OK and which are not. and you find 10 of those Federal courts the argument that somehow we are ob- That really destroys the whole argu- of appeal in America dominated by Re- structionist. ment that this is all about an up-or- publican-appointed judges. Liberal ide- I was involved in the debate yester- down-majority vote. ology? How can you say the legal pro- day when Senate majority leader BILL Senator FRIST voted to deny Richard fession is strongly dominated by a form FRIST came to the floor and said: Paez an up-or-down-majority vote. Now of orthodox liberal ideology when seven I rise today as leader of the majority party he says we need to change a 200-year out of the nine members of the U.S. Su- of the Senate, but I do not rise for party, I tradition in the Senate so that no one preme Court were appointed by Repub- rise for principle. I rise for the principle that can ever do the same thing he did to judicial nominees with the support of a ma- lican Presidents? Richard Paez. This is an unusual prin- jority of Senators deserve an up-or-down ciple to try to follow. It is, in fact, cre- So what I said about Justice Owen is vote on this floor. that her conservative ideology is dem- ating a constitutional confrontation Moments later, Senator SCHUMER of onstrated by her membership in the over something that is very contradic- New York asked Senator FRIST a sim- Federalist Society. However, the best tory on its face. ple, pointed question: Is it correct that documentation on her ideology is her I believe filibusters are constitu- on March 8, 2000, Senator FRIST, the own track record as a judge. So I say to tional. They are certainly allowed Republican majority leader, voted to Senator SMITH, no, it does not dis- under the Senate rules. And when we uphold the filibuster on a Democratic qualify Priscilla Owen, but it is curious get to the question of motives behind nominee, Richard Paez? Here is Sen- to me why this supreme court justice them, I really think that the Repub- ator FRIST’s reply: had the time to pay the dues and join licans, the majority has to dig very an organization which she just cannot The issue is we have leadership-led par- deep in order to find an argument to tisan filibusters that have obstructed not 1 remember what they believe in. I think make against the practice we have nominee but 2, 3, 4, 5, 6, 7, 8, 9, 10 in a routine used and others have used throughout there is more to it. way. The issue is not cloture votes per say, Senator KYL of Arizona also came to the history of the Senate. it’s the partisan leadership led use of cloture In addition, yesterday morning, be- the Senate floor. He said something I votes to kill, to defeat, to assassinate these fore Senator FRIST moved to bring up would like to address. He charged that nominees. That’s the difference. the nomination of Priscilla Owen, Sen- President Bush has only had 67 percent I spoke yesterday on the floor after- ator REID asked the majority leader of his circuit court nominees con- wards about Senator FRIST’s poor whether it would not make more sense firmed, and that this is an alltime low, choice of words. I said then, and I will for the Senate to move instead to con- according to Senator KYL. I do not say now, he is a man with a good heart. sider four other nominees about whom know if it is true or not. I do not have He cares for people. He is a doctor who there is little controversy. Senator the data going back all the way in has saved lives. He is a transplant sur- FRIST refused yesterday, as Senator time. But I know this: If the Repub- geon, well recognized in his profession MCCONNELL refused today. So for 2 lican leadership had taken me up on as a very accomplished doctor. In his straight days, the Republicans have my offer this morning and they had spare time he goes to help the poorest had a chance to pick up four circuit confirmed the four circuit court nomi- people of the world. So I do not ques- court nominees to fill vacancies, to nees I asked unanimous consent to tion that he is a man with a good give the President a higher success bring up for a vote, President Bush’s heart. That was never part of it. rate in filling vacancies on these courts circuit court success rate would be 75 I was concerned with his choice of than President Clinton, and they have percent. But I was reminded by the Re- words. It was a very bad day to use the refused; they said we are much too publican leader—in this case the Re- words ‘‘to assassinate nominees.’’ Just busy. We have to spend time here de- publican whip, Senator MCCONNELL— minutes before, Joan Lefkow of Chi- stroying a precedent in the Senate. We that there is just no time in the sched- cago had been to the Senate Judiciary have to reach the point when we can ule to bring up more of President Committee testifying in very emo- count on Vice President CHENEY to Bush’s circuit court nominees. tional testimony about her own family come to the Senate, to sit in that chair Curious, isn’t it? This whole debate, being attacked in their home and her and, when asked, give the right answer this constitutional confrontation is all husband and mother losing their lives. so they can wipe away with one ruling about whether President Bush is get- I do not want to belabor this point. by Vice President CHENEY a rule that ting enough nominees. I came to the Let me just say, let’s be careful with has been in place for over 200 years. floor this morning and said: Here are the language we use on the floor when Senator LEAHY asked if we could con- four we can take right now, confirm on it relates to judges. I do wish to talk sider a nominee from Utah, who would a bipartisan basis, and get it done be- about the rest of Senator FRIST’s state- have likely won confirmation easily fore lunchtime. Senator MCCONNELL of ment, not that particular section. yesterday. Senator FRIST refused. He Kentucky said we are much too busy to He admitted in the course of what he insisted on bringing up this nomina- deal with approving judges on a bipar- said that ‘‘the issue is not cloture tion of Priscilla Owen, one of the most tisan basis. Instead, we are focused on votes per se,’’ it is not filibusters, per controversial judicial nominees in re- one judge, already rejected by the Sen- se. And we know from his own actions cent memory, someone who has al- ate, who may precipitate a constitu- that the majority leader does not be- ready been rejected by the Senate. tional confrontation here on the floor lieve that every judicial nominee with Why would the majority leader flatly of the Senate. majority support deserves an up-or- refuse every effort to find a way out of Incidentally, President Clinton’s cir- down vote because he, in fact, on this crisis? I don’t know. It is possible cuit court success rate when the Re- March 8, 2000, voted to support a fili- he is still taking advice from people publicans were in control of the Sen- buster. In other words, the thing that who should not be trusted for advice. I ate: 71 percent. So if President Bush he is condemning when it comes to don’t know if the name Manny Miranda had these four nominees and hit 75 per- Priscilla Owen is exactly what he did rings a bell, but it should. From the cent, he has already passed the success on March 8, 2000—supporting a fili- spring of 2002 until April 2003, Mr. Mi- rate of President Clinton during his buster against a nominee, Richard randa was working for the chairman of tenure in office. Paez. I do not understand that. I can- the Senate Judiciary Committee, So there is no vacancy crisis here, not understand how he can condemn ORRIN HATCH, and then for majority and they are trying to manufacture it, that today, having done it himself a leader BILL FRIST. they are trying to suggest that Presi- short time ago. Mr. Miranda and other Republican dent Bush is being mistreated, and yet It turns out that it is a very specific staff hacked into the committee’s com- the same Republican leadership that type of filibuster to which Senator puters and systematically stole thou- talks about mistreatment could not FRIST objects—in his words, a leader- sands of documents, including con- take the time—namely, an hour or ship-led use of cloture votes. I can see fidential memos between Democratic two—to pick up four circuit court why the majority leader was such a Senators and their staff. I know. I was nominees who are standing waiting for good surgeon. He has taken the scalpel the biggest target of Mr. Miranda.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00067 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5520 CONGRESSIONAL RECORD — SENATE May 19, 2005 I discovered it when the Wall Street the first time in history, rejects the we are hearing is that many are ready Journal published an editorial and principle of extended debate, there is to cast them aside. Senator FRIST, for quoted extensively from a staff memo no guarantee that the damage of the reasons I cannot explain, wants to have in my office. And I said as soon as I nuclear option will not spread. In his the distinction, the singular distinc- read it: Somebody stole this memo. opening remarks yesterday Senator tion, to go down in history as the only There is no way the newspaper would FRIST said if Republicans would vote Republican majority leader to destroy have a copy of an obscure memo and the nuclear option, Democrats ‘‘will re- a 200-year-plus tradition in the Senate, build an editorial around it. taliate.’’ a tradition of extended debate and fili- After some investigation, we learned They will obstruct the Senate’s other busi- busters. I do not think that would be a that in fact Mr. Miranda was behind it. ness. They will obstruct the people’s busi- proud moment for this body. I do not Let me tell you what then-chairman ness. They will hold back our agenda to think it would be a proud part of any of the Senate Judiciary Committee, move America forward. An energy strategy Senator’s legacy. That is why many of to reduce our dependence on foreign oil, held ORRIN HATCH, said. I quote him di- back; an end to the medical lawsuit abuse to us are appealing to the other side of rectly: reduce the cost of health care, held back; a the aisle. I am mortified that this improper, uneth- simpler, fair Tax Code to create jobs and to Time and again in our Nation’s his- ical and simply unacceptable breach of con- encourage economic growth, held back. tory when we really faced some very fidential files may have occurred on my Supporters of the nuclear option say difficult situations with judges who watch. they only want to eliminate the fili- were controversial and courts that At which point Senator HATCH asked buster for judicial nominees. It doesn’t didn’t agree with the President, Presi- the Senate Sergeant at Arms to con- take much imagination to consider the dents have said: Give us more power. duct an investigation. Mr. Miranda was possibility of a majority leader in the We will control those courts. forced to resign from the Senate staff future saying, with gas prices at an all- And when those Presidents came to in disgrace. The findings of the Ser- time high, America just cannot afford Congress, as they had to, they found geant at Arms investigation were re- an extended debate on an energy bill. that even their own party would not go ferred to the Justice Department, If we eliminate extended debate for along with them. The Senators in those which then assigned a special pros- judges who serve for life, why would we eras of Thomas Jefferson and Franklin ecutor to the case. preserve unlimited debate on the nomi- Roosevelt took enough pride in this in- Two years later, with the case still nations of Cabinet Secretaries who stitution to say: We will make our own unresolved and finished, it appears Mr. leave office with the President who ap- rules, Mr. President. We will stand by Miranda is back. According to news re- points them? Or on laws that can be re- the Constitution. We will not give you ports, he is now helping to lead the nu- versed by the next Congress? more power. clear option fight from outside the The truth is, this line in the sand will But look what is going on now with Senate. Yesterday, Mr. Miranda sent disappear with the next wave. This is this nuclear option. It is being orches- an e-mail to allies of Senator FRIST, not about principle. It is about politics. trated by the President. And we have demanding, ‘‘a straightforward rallying Many special interest groups have too many Senate Republicans who are cry: NO DEALS, VOTE PRINCIPLE’’ made it clear they are going to fight playing the role of lapdog to the Com- and ‘‘NO UNPRINCIPLED COM- anyone who tries to eliminate the fili- mander in Chief. They are sitting there PROMISES.’’ buster over legislation. To quote the like a group of cocker spaniels in a So here we have a former aide to Sen- conservative columnist, George Will: room full of pit bulls, afraid to speak ator FRIST, a person who, according to It is a short slide down a slippery slope up. They want to give this President the investigation, broke into Senate from the postulated illegitimacy of filibus- whatever power he asks for, whatever computers. He is now in charge of ral- tering judicial nominees to the illegitimacy nominee he asks for. What a departure lying the troops on the conservative of filibustering any sort of nominee to the il- legitimacy of filibusters generally. That is from the tradition of this Senate, when side. He is the cheerleader for the nu- not a position conservatives should promote. it was truly independent, when we re- clear option. And he is demanding that Quote from George Will, the grand spected the President but also re- Senator FRIST and other Republicans guru of the conservative cause. spected—maybe more—our constitu- break the Senate rules to give extrem- Former Republic Senators Jim tional responsibilities. ist judges lifetime appointments. McClure and Malcolm Wallop, both Our constitutional responsibility is I do not quite understand this. I com- also conservative, agree. In a recent not to agree with everything the Presi- mend Senator HATCH for the investiga- op-ed in the Wall Street Journal, these dent says; not to agree with everything tion. I commend Senator FRIST for the two former Republican Senators wrote: that he wants; not to give him every investigation. They knew as we knew It is naive to think what is done to the ju- shred of power that he seeks. Through- that something wrong, probably crimi- dicial filibuster will not later be done to its out history, Senators have said: We re- nal, had occurred, and they went for- legislative counterpart. spect you, Mr. President. We respect ward with an honest investigation. They add: the Constitution more. When this man resigned in disgrace It is disheartening that those entrusted In the midst of this debate, that has you would think that would be the end with the Senate’s history and future would been completely thrown away by so of his role on Capitol Hill, but now he consider damaging it in this manner. many Republican Senators. They are has returned as a cheerleader for the I think that is what it gets down to. so loyal, to the point of blind loyalty, cause of the nuclear option. I think it is a question of this institu- that they cannot see what is happening It is hard to keep track of some of tion and its future and what it is going to this institution. That they would these players without a scorecard. But to look like. Today I am in the minor- walk away from the institutional au- keep track of Mr. Miranda. He will un- ity. You are in the majority. That thority of the Senate, the constitu- doubtedly pop up again. could change. Every election, the peo- tional authority of the Senate, over There is another thing that should be ple of this country have the final word what? addressed. Senator FRIST has given his on who will be the majority party in Take a look at these numbers—208 to word in writing that he will not seek to the Senate. What has endured through- 10. How much more graphic could it be? eliminate the filibuster when it comes out all the changes in history from one The full Senate has considered 218 to legislation—just judicial nominees, party to the next is a basic concept and judges, since President Bush was elect- Senator FRIST said. But he also said he that is, no matter how large your ma- ed, and 208 have been approved. Over 95 is leaving the Senate at the end of next jority, you must respect the minority percent. year. He has voluntarily, on his own, in the Senate. It is not democracy if When it comes to the 10, it is argu- decided to limit the terms that he you do not respect the minority—it is able who dropped out and who retired, would serve. tyranny. We know that. The Greeks but I will use the larger number of 10 So the next majority leader, Repub- knew that when they invented the just to demonstrate to those who are lican or Democrat is not obliged to term. following this debate that there is take any promise Senator FRIST might Yet when it comes to the rules of the hardly a crisis. This President has been make. The truth is, if this Senate, for Senate to protect the minority, what more successful appointing judges than

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00068 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5521 any President in 25 years. There are called the year 1937 ‘‘the triumph of dents study in law school, certainly fewer vacancies on the Federal courts our socialist revolution.’’ those who study constitutional law. In of America than at any time in recent She has said: her speeches, Justice Brown has memory. And it was not that long ago Where government moves in, community praised it. Now, at her hearing we when the Republicans, during the Clin- retreats, civil society disintegrates and our asked her, and she attempted to dis- ton administration, held a series of ability to control our own destiny atrophies. tance herself from what she said be- hearings, which I attended, arguing She has said that politicians are fore, saying that the case has been ‘‘ap- that we just have too many Federal ‘‘handing out new rights like lollipops propriately criticized’’ and ‘‘discred- judges. Senator GRASSLEY of Iowa, a in the dentist’s office.’’ ited.’’ Yet she evaded a simple question good friend, chairman of a Sub- She claimed that our Federal courts about whether she agreed with it. committee on Judiciary, used to hold ‘‘seem ever more ad hoc and expedient, It is an important case. It is a case regular hearings calling Republican perilously adrift on the roiling seas of that spells out the responsibility of the judges from different circuits who feckless, photo-op compassion and po- Federal Government when it comes to would say: Keep those vacancies. Don’t litical correctness.’’ questions of commerce and liberty of fill them. We have plenty of judges. She has even complained in the last contract. It was a decision by the court The caseload is not that heavy. 30 years, the Constitution has ‘‘been many thought moved clearly in the Now the argument is being made, demoted to the status of a bad chain wrong direction and did not even allow with even fewer vacancies, that we are novel.’’ Federal jurisdiction in questions regu- in a judicial crisis. We are not. It has Her rhetoric makes it clear she is in- lating health and safety. been 9 years since we had so few judi- spired and guided by Fountainhead, Here is another example of her eva- cial emergencies in the courts. We have Atlas Shrugged, and the Road to Serf- siveness. I asked her in writing to ex- been through times of larger vacancies dom, more than the Constitution and plain what rights she was referring to and, unfortunately, the Republican ma- the Bill of Rights. when she said that politicians are jority would not give President Clinton At her hearing, Justice Brown said handing out new rights like lollipops in the judges he needed to fill them. her speeches were just an attempt to a dentist’s office. Her full answer to These are the things which clearly ‘‘stir the pot.’’ Justice Brown’s speech that question was as follows: we find are the realities of the debate. did more than stir the pot. Those I was merely commenting in general terms A President extraordinarily successful speeches knocked it off the stove. and was not specifically criticizing a par- in creating and filling more judgeships, I have concerns about her record on ticular legislative action. a president who has been extraor- the bench, even beyond these speeches Now, in all fairness, that is a duck dinarily successful when it comes to where she has opened up her heart. and a dodge. She did not answer the convincing his presidential party to In her own words, she said: question. I asked her whether she support him, and now a move afoot to I have been making a career out of being agreed with the Federalist Society change the traditions and rules of the the lone dissenter. mission statement, the one I said ear- Senate in a way that can create con- In case after case, she has come out lier, about orthodox liberal ideology stitutional confrontation, if not con- on the side of denying rights and rem- dominating the legal profession and so stitutional crisis. edies to the disadvantaged. Oftentimes forth. She gave me the most evasive There are 55 Republican Senators. We she was, indeed, a lone dissenter and answer of any nominee, once again need six—six who will stand up and oftentimes she ignored even estab- mystified as to what the Federalist So- say: History is our guide. We cannot let lished court precedent and rulings. I ciety really means, although she has this institution change or diminish. We have a lot of concerns about her tend- attended their events. will stand with those on the Demo- ency to push her philosophical views She said: cratic side of the aisle, understanding into opinions. As a judge, I have not had occasion to de- that each of us has to use our own dis- The California State Bar Commission termine whether the law schools and legal cretion when it comes to those nomi- in 1996 said as much when it rated Jus- professors are by and large liberal or con- nees we will vote for, understanding tice Brown as not qualified for the servative, and thus do not find myself quali- that each of us is aware of the fact that California Supreme Court. Yet the fied to offer an opinion on that subject. the next election could change the bal- Bush White House wants to appoint her She did not answer half the question. ance in this Senate so quickly. to the second highest court at the Fed- My question was about law schools and One of the nominees who will be con- eral level in America. legal profession and she did not address sidered next is Janice Rogers Brown. Justice Brown suggested at her hear- the legal profession. I can go on, but I She may be the nuclear trigger—either ing the views in her speech do not re- tell you this: She was not going to an- she or Priscilla Owen. There was an ar- flect the view and her decisions. The swer questions. We have seen nominees ticle in a recent New York Times mag- facts tell a different story. There is a like her before who come before us and azine about a far-right legal movement seamless web between Justice Brown’s defy us to ask questions and to have in America called the Constitution in speeches and her decisions. It is the answers come forward. Exile. This movement consists of same person. It is the same philosophy. There is a legitimate area of inquiry. judges and scholars who believe that It is the same conclusion. I have con- I can recall when a Republican Member the right to private property and eco- cern about nominating to the DC Cir- of the Senate Judiciary Committee nomic liberty is almost absolute. Its cuit someone with her hostility to the asked one of President Clinton’s nomi- adherents believe that nearly all Gov- forces of Government. nees to disclose every vote she had cast ernment infringement on property The DC Circuit is the No. 1 adjudi- for a California referendum for or rights is repressive. They encourage cator of Federal agency disputes. I against it in her lifetime. I thought judges to strike down laws on behalf of don’t think someone who considers the that crossed the line. There is some se- rights that do not appear explicitly in New Deal a ‘‘socialist revolution’’ is crecy in the ballot box and privacy in- the Constitution. the right person for the job. Think of volved, but that was considered a fair If this philosophy sounds familiar, it all the socialism in the New Deal. I can range of questions when it came to should. The article lists Janice Rogers think of one element that she might asking Clinton nominees if they are Brown as a poster child for the Con- call socialism. Franklin Delano Roo- qualified. When we ask Justice Janice stitution in Exile movement. sevelt called it Social Security. Rogers Brown the most fundamental I served as the ranking Democrat at I want to discuss her evasiveness too. questions about things she has said Justice Brown’s hearing in October of She is a wise lawyer. And good lawyers publicly, she ducks and dodges. 2003. I asked her a lot of questions. Her knows how to duck a question better According to the Washington Post, answers offered little assurance that than a politician. We can’t properly which has defended many of President she will be anything other than a judi- perform the advice and consent func- Bush’s judicial nominees: cial activist with a very extreme agen- tion of the Senate if nominees will not Justice Brown is one of the most da. Her views on Government, courts, level with us. Take the Lochner case. unapologetically ideological nominees of ei- and the Constitution are troubling. She This is a famous case that most stu- ther party in many years.

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00069 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5522 CONGRESSIONAL RECORD — SENATE May 19, 2005 A Los Angeles Times editorial enti- The White House strategy is unfair ever you want, Mr. President. Sign us tled ‘‘A Bad Fit for a Key Court,’’ stat- to Justice Brown and her family, un- up. ed: fair to the Senate, and unfair to those I sincerely hope the Senate rises to In opinions and speeches, Brown has ar- who want to move beyond the environ- the occasion. I sincerely hope that six ticulated disdainful views of the Constitu- ment of political confrontation which Republican Senators will show the tion and government that are so strong and has become the hallmark of our efforts. courage to speak out for the value of so far from the mainstream as to raise ques- We should not have to go through this our Constitution and the tradition of tions about whether they would control her the Senate. decisions. knock-down, drag-out over filling these court vacancies. I have said to Chair- Mr. President, I yield the floor. That is from her home-State news- man HATCH, and I will say again to The PRESIDING OFFICER (Mr. paper. THUNE). The Senator from Ohio. The New York Times echoed that those listening, there are plenty of Mr. VOINOVICH. Mr. President, I sentiment and said Brown ‘‘has de- good, conservative Republican attor- rise to support the nomination of Pris- clared war on mainstream legal values neys and judges who are not so ideo- cilla Owen to the U.S. Court of Appeals that most Americans hold dear.’’ logically extreme who could fill these The Atlantic Journal-Constitution positions. You can find them in Ohio. for the Fifth Circuit. wrote that Brown’s views ‘‘are far out You can find them in Virginia. You can I believe it is important that the of the mainstream of accepted legal even find them in Illinois. Why this Senate take its responsibility to advise principles.’’ White House continues to go after and consent with respect to nomina- The list goes on and on of over 100 or- some of the most inflammatory, some tions very seriously. The people who ganizations, including the Congres- of the most extreme judges to fill the are appointed to the judiciary, as well sional Black Caucus, that oppose Jus- benches in the highest courts in the as to the executive branch of Govern- tice Brown. land is beyond me. ment, can have an enormous impact on Dorothy Height recently received the So when we find, among 218 nomi- how our Government operates. In many Congressional Gold Medal. She said nees, 10 who fall into this extreme cat- cases, an appointee can make the dif- this about a vote on Justice Brown: egory, when we say they have gone too ference on whether a particular policy I cannot stand by and be silent when a ju- far, when we say to the President: You or program is effective. rist with the record of performance of Cali- may have 95 percent, but for this other I also believe the Senate should seek fornia Supreme Court Justice Janice Rogers 4 or 5 percent the answer is no—I think to work in a bipartisan manner, par- Brown is nominated to a federal court, even we are doing what the Constitution ticularly with respect to judges. Since though she is an African-American woman. asks us to do: advise and consent. I came to the Senate 6 years ago, I Ms. Height, an African-American But the President, of course, says no. have always been open to listen to any women herself, goes on to say: I want them all. No dissent, no dis- concerns that my colleagues across the In her speeches and decisions, Justice Jan- agreement—I want every single judge. aisle may have about a nominee. ice Rogers Brown has articulated positions Strike ‘‘advise and consent’’ and put There has been a great deal said that weaken the civil rights legislation and ‘‘consent’’ in there. That is what this about Priscilla Owen and her nomina- progress that I and others have fought so tion to the Fifth Circuit. I have heard long and hard to achieve. President wants. Maybe that is what every President wanted. But the Con- the concerns about Justice Owen, but, Stephen Barnett, a University of gress and Senate in particular in the frankly, I do not see any basis for California-Berkeley constitutional law past have told those Presidents: No. We them. If Justice Owen is not acceptable professor who had endorsed Brown be- have the right to ask these questions as a nominee to the U.S. Court of Ap- fore her hearing and whose support and to demand the answers. And if we peals, we are going to have a hard time Chairman HATCH specifically men- find a nominee wanting, we have the filling the vacancies in the court of ap- tioned in his opening statement at Jus- right to reject them, either by ex- peals. tice Brown’s hearing, sent a letter to tended debate and filibuster or by the Let’s review Justice Owen’s record. Senator HATCH after the hearing and Justice Owen has a very distinguished withdrew his support for Janice Rogers majority vote that ultimately that and impressive record as a lawyer, Brown. This is what Professor Barnett, candidate would face if a motion for community leader, and most recently who was once supposed to be a strong cloture prevailed. So in this case, they have decided as a justice on the Texas Supreme advocate for her, wrote to Senator that rather than hold these nominees Court. HATCH after her hearing: to the same standard, they will change Justice Owen graduated cum laude Having read the speeches of Justice Brown from Baylor University and cum laude that have now been disclosed, and having the rules of the Senate. That is what watched her testimony before the Com- the nuclear option is about, changing from Baylor Law School in 1977. She mittee on October 22, I no longer support the the rules in the middle of the game, di- was on the Baylor Law Review and nomination. minishing the constitutional principle earned the highest score on the Texas So you would hear from the Repub- of checks and balances, reducing the bar exam in December of 1977. lican side that she is just another rou- power of the Senate against the power Justice Owen joined the well-re- tine nominee who is being beaten up on of the White House and the Presidency, garded firm of Andrews & Kurth and by the Democratic side of the aisle. and saying to this President: You may rose to be a partner by the remarkably But when you read through all these make lifetime appointments of judges young age of 30. Any lawyer in this comments of people who have observed without holding them to the same body has to be impressed with the fact her in her professional life, those who standards that every President’s nomi- that someone such as Justice Owen have followed her, not only fellow nees have been held to. could become a partner at the age of 30. judges but those in the legal profes- Some time next week—and I pray to She practiced commercial litigation sion, it is very clear: This is a con- God it does not happen—Vice President for 17 years. troversial nominee. She is a person CHENEY may take that chair, preside In 1994, Justice Owen was elected to who will bring to the bench something over the Senate, and with just a few the Texas Supreme Court, and, in 2000, less than the moderation that we look words sweep away 200 years of tradi- as has already been noted, she won a for. tion. It is an act of arrogance to think second term to the Texas Supreme I come from the Democratic side of that any person would do that without Court with a vote of 84 percent. the aisle. I understand if you are going reflecting on the history of this body This is a very impressive record. to put a person on the bench, 9 times and its traditions. I am not surprised that the American out of 10 you should look for a person It is an abuse of power that this Bar Association unanimously rated who is going to try to be moderate and White House has to have more and Justice Owen as ‘‘well qualified.’’ That mainstream. What I found is that 10 more power, that 208 judges out of 218 is the highest rating the American Bar times out of 10, with very few excep- is not enough, that they are going fur- Association can give to someone seek- tions, that is exactly what we have ther. They want them all. And they ing a judgeship. ended up with. That is not the case have found too many compliant Repub- But Justice Owen’s legal credentials here. lican Senators who have said: What- are not the only reasons I support her

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Texas Hearing & Service Dogs, and a bench but who say: I don’t want to go The minority has repeatedly claimed member of the St. Barnabas Episcopal through that process. It is a shame that President Bush has had 95 percent Mission, where she teaches Sunday that such an exceptionally qualified or so of his nominees confirmed. Yet school. She helped organize Family nominee such as Miguel Estrada finally we all know this statistic is a smoke- Law 2000, which seeks to lessen the ad- asked that his nomination be with- screen. The real issue here is the ap- versarial nature of divorce proceedings drawn after being filibustered for 2 pointment of circuit court judges, and in her State. years. As I look at what a clearly the minority has successfully pre- She has been honored as Baylor qualified nominee such as Miguel vented the confirmation of about a Young Lawyer of the Year and as a Estrada and Justice Owen must go third of President Bush’s nominations. Baylor University Outstanding Young through to serve our country, I wonder President Bush has the lowest con- Alumna. She also has been active in that the judiciary is not going to be firmation rate of circuit court judges helping the poor obtain legal services, able to attract the talent it needs. of any President going back as far as as well as other pro bono legal activi- If every nominee must get 60 votes, it President Roosevelt. I think the statis- ties. is clear that many posts simply will tics show that the real issue here is not I think her involvement in her com- not be filled. In addition, if we require that any of these judges is extreme but munity is important. We need judges 60 votes to confirm nominees, we are that there is an active campaign to use who not only have exceptional legal only going to see nominees who have the filibuster to prevent President skills, which Justice Owen certainly no paper trails or records of achieve- Bush from appointing circuit court has, but also who have a perspective ment, who have done little, if any, judges. about how the law impacts upon indi- scholarly work, and who avoid public It is the President’s job to nominate viduals and communities. or judicial controversies. I don’t want judges, and it is the Senate’s job to ad- I have reviewed the letters of support extremists on the bench, but I also vise and consent. It is time the Senate she has received, and I am pleased that don’t want bland nominees who have started doing its job and voted on these she has such broad support from the never had to make difficult decisions. nominees. If a Senator doesn’t like the people who know her best and have Comparing the Senate now to the nominee, that Senator should vote worked with her. Senate prior to the 108th Congress against the nominee. If someone I also would like to note that even when filibustering of judicial nomina- doesn’t like Justice Owen, vote against her opponents in the Senate have said tions first occurred, I have to say that her, don’t filibuster her and deny your they believe her to be a very good per- I think the old system was a lot better colleagues an up-or-down vote. I want son. Accordingly, I do not see any than what we saw in the 108th Con- to vote on these nominees. issues that could raise any questions gress. Under that system, a nominee There have been nominees in the past about whether she should be confirmed. who had the support of a majority of and some currently and some from my Rather, she is exactly the type of seri- Senators, who was reported out of the own party who I did not support. But I ous, hard-working, and well-respected Judiciary Committee, would get an up- never filibustered them, even during person who should be nominated to the or-down vote after review of the nomi- the Clinton years. I can remember in court of appeals. nee’s record and a robust debate. That our conference meetings talking about Some have said that Justice Owen is was the fair way to proceed. It has been judges and some of my colleagues get- an extremist who will be a judicial ac- that way many times. It has been that ting up and saying at those meetings: tivist. Again, I see no reason for such way, as a matter of fact, for 214 years. Let’s filibuster this judge. We can’t conclusions. Reviewing her record, I No judicial nominee sent to the Senate allow that judge to go forward. That see a judge who vigorously but care- floor who had the support of a majority judge is going to be bad for the district court to which they are being nomi- fully sets forth her reasoning in her de- of Senators was denied an up-or-down nated. I can remember ORRIN HATCH cisions and is willing to stand up for vote. There were no judicial filibusters. saying: We can’t do that because if we what she thinks is the correct decision. Thus, I do not consider the constitu- start to do this, God only knows where She is not an activist. She is an excel- tional option as a change in the rules lent judge. we are going. but a restoration of a Senate tradition, Last time around, my colleagues on Any good nominee who has been ac- the tradition that filibusters do not the other side of the aisle started a new tive in thinking and writing about apply to judicial nominees. tradition. It is not a good tradition for issues is going to have statements in My colleagues on this side of the the Senate. It is not a good tradition their writings that, if taken out of con- aisle, including myself, had many op- for the people of the United States of text, can be made to appear extreme. portunities to filibuster judicial nomi- America. I believe both the President This is what has happened to Justice nees during the Clinton years as well and my fellow Senators, as well as this Owen. Her opponents—mainly partisan as during the decades it spent in the country, deserve the courtesy of an up- interest groups—have scrutinized her minority. Just think about how long or-down vote on nominees. writings, looking for anything that the Republican Party was in the mi- I yield the floor. they could make into a sound bite to nority—from 1954 to 1980. All during The PRESIDING OFFICER. The Sen- distort her record. But an examination that time, they never used a filibuster ator from Virginia. of her record as a whole reveals that to stop a judge who was nominated. Mr. ALLEN. Mr. President, I rise to claims that she is extremist are base- They insisted that there be an up-or- speak on this matter of judges. I was less. Justice Owen is a good judge and down vote. This was the courtesy that presiding the last hour and a half or so would and will make a great circuit was extended to the other party. It listening to some of my colleagues court judge. helped make sure that the judicial speak. I associate myself with the re- There is no need to filibuster this nomination process worked smoothly marks of the Senator from Ohio. But I nominee. Justice Owen deserves an up- and fairly. I wish the present minority was listening to my colleagues from or-down vote. The filibustering of Jus- would extend the same courtesy now. New Jersey and Illinois, Senator tice Owen reveals just why the con- I also believe the ongoing abuse of CORZINE and Senator DURBIN. stitutional option may be necessary. the filibuster is preventing the Senate I heard the Senator from New Jersey The filibuster is being abused. If the from addressing other, often more talking about the rights of minorities. minority is going to abuse its power to pressing business, such as passing an The Senate does care about the rights filibuster nominees such as Justice energy bill, addressing asbestos litiga- of the minority. When one talks about Owen, then the nomination process will tion, and other issues. I can recall in the rights of the minority, one nor- break down completely. It is already the 108th Congress hour after hour mally talks about ways to enhance

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00071 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5524 CONGRESSIONAL RECORD — SENATE May 19, 2005 civil rights, to make sure there is equal struction of the President’s nominees I ask unanimous consent that this opportunity—that there is due process is unprecedented. We are trying to get statement of the background of the of law. back to the precedent we had for 214 Federalist Society be printed in the Sadly, the Democrats have changed years before they changed it. It is an RECORD before anybody else the rules. They changed 214 years of issue of fairness. It is an issue for me mischaracterizes the purpose and salu- practice, which was that when a Presi- as a Senator from the Commonwealth tary goals and mission of the Fed- dent nominated a particular person for of Virginia, the State of James Madi- eralist Society. a judicial vacancy, the Judiciary Com- son, one of the key authors of our Con- There being no objection, the mate- mittee would examine that individual stitution. It is my constitutional duty rial was ordered to be printed in the very closely, as to their scholarship, to advise and consent. What 41 Sen- RECORD, as follows: their temperament, their judicial phi- ators are trying to do is take away my [FROM THE FEDERALIST SOCIETY FOR LAW AND losophy, and ultimately if they passed responsibility to the citizens of the PUBLIC POLICY STUDIES] muster, that person would come to the Commonwealth of Virginia. I see noth- OUR BACKGROUND Senate floor. Senators, for 214 years, ing wrong with voting yes or no. Founded in 1982, the Federalist Society for would vote to confirm or deny con- Now, also in the midst of this flailing Law and Public Policy Studies is a group of firmation to that particular nominee. and background noise, from time to conservatives and libertarians dedicated to reforming the current legal order. We are That changed just 3 years ago. time, we have heard from the senior Senator from Illinois, casting asper- committed to the principles that the state What is being suggested by Senator exists to preserve freedom, that the separa- CORZINE and others on the other side is sions on an organization called the tion of governmental powers is central to that a minority of only 41 Senators Federalist Society, saying because Jus- our Constitution, and that it is emphatically should be able to deny a well-qualified tice Owen of Texas was a member of the province and duty of the judiciary to say nominee the fairness and the due proc- the Federalist Society, and that many what the law is, not what it should be. The ess of an up-or-down vote on the Sen- of President Bush’s nominees for the Society seeks to promote awareness of these principles and to further their application ate floor. Federal courts were in the Federalist Society, he wondered what this society through its activities. These individuals are well qualified, In its mission and purpose, the Federalist but they are denied the opportunity of was all about. Society is unique. By providing a forum for an up-or-down vote. These individuals, Well, after listening, I had my crack legal experts of opposing views to interact as Senator VOINOVICH said, go through staff get on the Internet and get me with members of the legal profession, the ju- a gauntlet. And when one of these the background on the Federalist Soci- diciary, law students, academics, and the ar- nominees goes through the gauntlet, ety. Let me share this with my col- chitects of public policy, the Society has re- that doesn’t last just months. It has leagues regarding what is called the defined the terms of legal debate. Our expan- Federalist Society for Law and Public sion in membership, chapters, and program been lasting for 1, 2, 3, and, in the case activity has been matched by the rapid of Priscilla Owen, 4 years. Once you get Policy Studies. Here is their back- ground: growth of the Society’s reputation and the through that gauntlet, you may be quality and influence of our events. We have bruised and you may have some asper- Founded in 1982, the Federalist Society for fostered a greater appreciation for the role of Law and Public Policy Studies is a group of sions made about you and statements separation of powers; federalism; limited, conservatives and libertarians dedicated to constitutional government; and the rule of taken out of the record and opinions reforming the current legal order. We are criticized and scrutinized and all the law in protecting individual freedom and tra- committed to the principles that the State ditional values. Overall, the Society’s efforts rest. exists to preserve freedom, that the separa- are improving our present and future lead- At the end of the day, when a major- tion of governmental powers is central to ers’ understanding of the principles under- ity of the Senators are in favor of that our Constitution, and that it is emphatically lying American law. individual and they have come out of the province and duty of the judiciary to say The Society is a membership organization the Judiciary Committee, they ought what the law is, not what it should be. The that features a Student Division, a Lawyers Society seeks to promote awareness of these Division, and a newly-established Faculty to be accorded the fairness, the de- principles and to further their application cency, the due process of an up-or-down Division. The Student Division includes through its activities. more than 5,000 law students at approxi- vote. It goes through its mission and says mately 180 ABA-accredited law schools, in- Another statement that was made is the purpose of the society is unique. cluding all of the top twenty law schools. that the Senate is to protect minority They have legal experts of opposing The national office provides speakers and interests. Well, if one would actually views to interact with members of the other assistance to the chapters in orga- read the Constitution and read the doc- legal profession, the judiciary, law stu- nizing their lectures, debates, and edu- cational activities. uments and the debates on the Senate, dents, academics, and the architects of why the Senate was created the way it The Lawyers Division is comprised of over public policy. They talk about appre- 20,000 legal professionals and others inter- is and compare that to the way the ciation of the role of separation of pow- ested in current intellectual and practical House of Representatives is, one would ers; federalism; limited constitutional developments in the law. It has active chap- find that the Senate is to protect the Government; and the rule of law pro- ters in sixty cities, including Washington, interests of the people in the States. tecting individual freedom and tradi- D.C., New York, Boston, Chicago, Los Ange- The Senate is not representative of the tional values. Overall, the Society’s ef- les, Milwaukee, San Francisco, Denver, At- lanta, Houston, Pittsburgh, Seattle, and In- population of the country, as is the forts are improving our present and fu- House. dianapolis. Activities include the annual Na- ture leaders’ understanding of the prin- tional Lawyers Convention, a Speakers Bu- In fact, the Senate was to serve, in ciples underlying American law. They reau for organizing lectures and debates, and many respects, as a safeguard of State have a student division, and the stu- 15 Practice Groups. prerogatives. So when the Senator dent division has more than 5,000 law The Federalist Society established its Fac- from New Jersey says the Senate is students at approximately 180 ABA-ac- ulty Division in early 1999 with a conference created to protect minority rights, it is credited law schools, including all of that was attended by many of the rising stars in the legal academy. The objective of to protect the right of the States. Let’s the top twenty law schools. recall that it was the people in the the Faculty Division is to provide events and They have a lawyers’ division com- other tools to help encourage constructive States who created the Federal Gov- prised of over 20,000 legal professionals academic discourse. This encouragement will ernment. Note the name of our coun- and others interested in current intel- help foster the growth and development of try: The United States of America. In lectual and practical development in rigorous traditional legal scholarship. fact, the rights of the States were so the law. Finally, the Federalist Society provides closely guarded that State legislators I urge my colleague from Illinois to opportunities for effective participation in actually selected Senators for most of recognize that they have chapters in 60 the public policy process. The Society’s on- the history of this country rather than cities, including Washington, DC; New going programs encourage our members to involve themselves more actively in local, the people. Let’s get those facts York; Boston; Chicago; Los Angeles; state-wide, and national affairs and to con- straight. Milwaukee; San Francisco; Denver; At- tribute more productively to their commu- All of this sort of talk and back- lanta; Houston; Pittsburgh; Seattle; In- nities. ground noise is trying to avoid the dianapolis, and others. They have a Mr. ALLEN. Mr. President, the Sen- point that the Democrats’ partisan ob- faculty division and more. ator from Illinois went on further to

VerDate Mar 15 2010 20:55 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00072 Fmt 0624 Sfmt 0634 E:\2005SENATE\S19MY5.REC S19MY5 mmaher on DSKCGSP4G1 with SOCIALSECURITY May 19, 2005 CONGRESSIONAL RECORD — SENATE S5525 chastise and criticize the statements court level, which is a very important ought to do as Senators is our job and that he said were contradictory state- level of appeals in this country. He has our duty. This is what the people of ments of Senator FRIST in a filibuster, nominated well-qualified nominees for America in our respective States have as he characterized it, in the year 2000. the circuit court, such as Miguel asked us to do. I really do not think it Now, if the senior Senator from Illi- Estrada. is too much for us to get off our nois, Senator DURBIN, wants to point to When you talk about qualifications, haunches, show some spine, show some prior inconsistent statements, let me Miguel Estrada received the highest backbone, vote yes, vote no on these refresh his memory. This is what Sen- possible rating unanimously from the nominees, and then you can explain to ator DURBIN said on September 28, 1998: American Bar Association and al- your constituents back in New Jersey I think that responsibility requires us to though we had, on five or six occasions, or Illinois or South Dakota or Virginia act in a timely fashion on nominees sent be- 55, 56 votes, he was denied the oppor- why you voted the way you did. fore us. The reason I oppose cloture is I tunity of a fair up-or-down vote. Fi- What we need to do is truly take the would like to see that the Senate shall also nally, his life could not continue in politics out of this process. It is harm- be held to the responsibility of acting in a such limbo and he withdrew his nomi- timely fashion. If, after 150 days languishing ful that this has become so politicized in a committee there is no report on an indi- nation. in the last several years. It is an issue vidual, the name should come to the floor. If, Priscilla Owen, a justice of the Su- I know is very important to the Amer- after 150 days languishing on the Executive preme Court of Texas, another out- ican people. They recognize President Calendar that name has not been called for a standing nomination from President Bush has a philosophy—and it is one vote, it should be. Vote the person up or Bush, the person we are actually debat- that I share—that judges ought to down. They are qualified or they are not. ing right now, received the highest apply the law, not invent the law, and Those are good words from the senior level of endorsement from the Amer- that he has found and sought out men Senator from Illinois in 1998. Those are ican Bar Association, a unanimous, and women of diverse background to the principles we are advocating now. well-qualified. Justice Owen was elect- bring their experiences, but also their These nominees have not been held up ed to the Supreme Court of Texas in fundamental belief of what the proper for just 150 days. These nominees— 1994 and was reelected with 84 percent role of a judge should be, and that is to Priscilla Owen, Janice Rogers Brown, of the vote in Texas in the year 2000. listen to the evidence, apply the facts and others have been held up for This is a person well qualified, well re- to the law as written by the legislative months and years, and in Justice spected in her State. branch in our representative democ- Owen’s case, four years. Janice Rogers Brown, another great racy, and make that ruling. Then we heard from the senior Sen- American life story of someone who is These nominees are well qualified. ator from Illinois, after saying that we the daughter of a sharecropper in seg- They have gone through a lot. They are ought to watch our words, he called the regated Alabama, moved to California, individuals. These are not just pieces of Republicans dogs, more specifically, ended up being the first African Amer- paper that you just crumble up and cocker spaniels. This was all because ican on the Supreme Court of Cali- throw aside. These are human beings, we vote for President Bush’s nominees fornia, the largest State in our Nation. and they should not be treated this for judges. So we are like dogs, cocker She is one who has been characterized way. spaniels. Let me be like an Australian as a brilliant and fair jurist who is If we are going to be able to attract shepherd and herd in the Democrats for committed to the rule of law. The Chief quality men and women in the future the last few days who have been pop- Justice of the California Supreme to our Federal judgeships and Federal ping up like prairie dogs. We have Court called on her to write the major- appointments, many giving up lives heard this charge from others, includ- ity opinion more times in 2001 and 2002 where they can make more money, cer- ing Senator KENNEDY, Senator MUR- than any other justice of the supreme tainly have less controversy, they RAY, Senator SCHUMER, Senator DOR- court. ought not to be treated like a sheet of GAN, and Senator DURBIN, who just re- In California, judges are elected rath- paper. They are human beings. Let’s cently made this unsubstantiated accu- er than appointed and in the most re- have our debates, have the arguments, sation that, we just vote for all these cent election, Justice Brown received make a judgment, and ultimately vote nominations and nobody votes against 76 percent of the vote, which was the ‘‘yes’’ or vote ‘‘no.’’ any of President Bush’s judicial nomi- largest margin of any of the four jus- That is what I think the American nees. tices up for retention that year in Cali- people expect out of the Senate, and it The truth is, all of these Senators— fornia, which is not a strong red State. is a shame we are having to spend as Senators KENNEDY, MURRAY, SCHUMER, In fact, it is kind of a pale-blue State. much time as we are on this, but it is DORGAN, and DURBIN when it came to a Nonetheless, she received 76 percent of an important principle. It is due proc- straight up-or-down vote on all of the vote in California. ess, it is fairness, and it is the rule of President Clinton’s judicial nominees, This individual, Janice Rogers law. whether they were for district court, Brown, is having to go through these I thank my colleagues. Mr. Presi- circuit court of appeals, or Supreme sort of accusations against her. She is dent, I yield the floor, and I suggest Court, never cast a dissenting vote— well respected, and she is certainly the absence of a quorum. not even once. That is a lot of affirma- within the mainstream. The PRESIDING OFFICER. The tive votes, if you ask me, for 8 years of I hope these rebuttals will shed some clerk will call the roll. President Clinton’s nominees. light on the reality of what is going on The assistant legislative clerk pro- Then I scoured around like a German here. What we are simply trying to do ceeded to call the roll. shorthair, and let me point out what I is accord these nominees the fairness of Mr. ALLEN. Mr. President, I ask found out from Senator KENNEDY on an up-or-down vote. People in the real unanimous consent that the order for straight up-or-down votes, not only on world probably do not understand this the quorum call be rescinded. President Clinton’s nominees, but on process. They do not understand why a The PRESIDING OFFICER. Without President Carter’s judicial nominees. nominee who has majority support can- objection, it is so ordered. Senator KENNEDY didn’t even cast a not be accorded the fairness of a vote. The people of America understand dissenting vote on any of those nomi- f nees. To be calling Republicans ‘‘lap courtesy, and they understand due dogs,’’ ‘‘rubberstamps,’’ and so forth—I process. They understand the bump and don’t think so. run and activity that one will have and MORNING BUSINESS Unlike Senator DURBIN, we are not statements that might be made, and Mr. ALLEN. Mr. President, I ask going to call the Democrats dogs or you can have some fun talking about unanimous consent that there now be a cocker spaniels. I think we are lucky dogs, and so forth. period for morning business, with Sen- dogs that President Bush has examined But ultimately, once you go through ators permitted to speak for up to 10 some outstanding nominees from coast all the histrionics, aspersions, charac- minutes each. to coast, outstanding men and women terizations, rebuttals, and setting the The PRESIDING OFFICER. Without who are willing to serve at the circuit record straight, ultimately what we objection, it is so ordered.

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