[Congressional Record (Bound Edition), Volume 149 (2003), Part 21]
[Senate]
[Pages 28711-28858]
[From the U.S. Government Publishing Office, www.gpo.gov]
prayer
The PRESIDING OFFICER. The hour of 12 o'clock noon having arrived,
the Senate, having been in continuous session since yesterday, pursuant
to the order of the Senate of February 29, 1960, will suspend while the
Chaplain offers a prayer.
Today's prayer will be offered by our guest Chaplain, RADM Robert F.
Burt, Chaplain of the U.S. Marine Corps and Deputy Chief of Navy
Chaplains.
Mr. REID. Mr. President, I ask that the time be equally charged
against both sides during the prayer.
The PRESIDING OFFICER (Mr. Graham of South Carolina.) Without
objection, it is so ordered.
The guest Chaplain, RADM Robert Burt, offered the following prayer:
Let us pray.
Almighty God, Lord of our universe, creator, sustainer, protector,
and comforter, source of our hope, bless us with Your divine presence
and fill us with Your joy.
Lord, thank You for these servants of our great Nation. Help them
today to sense the support and prayers that go out on their behalf, not
just here in this room, but all over our Nation as citizens lift them
up before You and sincerely pray for them every day. Answer those
prayers, O God, and fill
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these Senators with Your spirit and power.
Lord, we lift together this Nation up before You and pray that You
would continue to pour out Your rich blessing upon us. Bless our
citizens spiritually, financially, physically, and emotionally. Bless
our military personnel and their families. Lord, continue to use these
Senators as instruments and channels of Your blessing.
May they remember ``never to become weary in doing good, for in
proper time they will reap the harvest.'' Bless each Senator, bless
their families, bless the States they represent, and, most of all,
bless our Nation and its commitment to the pursuit of freedom and
liberty not only within our own borders, but also to so many nations
that desperately need our help.
We ask these things in Your awesome and holy name. Amen.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Mr. President, I believe the regular order is that we now
have half an hour on our side.
The PRESIDING OFFICER. The time until 1 o'clock will be evenly
divided.
Mr. GREGG. Mr. President, first, I thank the guest Chaplain for that
very fine prayer which brings us back to reality in a way that is
appropriate.
There has been a tremendous amount of excellent discussion today
about the issue of the process of approving those four judges who have
been nominated to the circuit courts of appeals, and the whole issue of
the filibuster and how filibusters work into the process of the
Constitution and the management of this Senate. It has been
appropriate. It has been good. It has been enlightening, I hope, to
those who have taken the time to listen at whatever hour they happened
to listen.
I heard some extraordinary discussions which have been historical and
legal and factual and informative. The question of whether or not a
filibuster is appropriate is critical, and the constitutionality of
using a filibuster relative to the Executive Calendar and the approval
of judges is a very legitimate question in my mind.
I think when you look at the Constitution and the language of the
Founders, they were fairly precise people in how they designed this
Senate when they decided to be precise. And on the issue of advise and
consent, they were precise. They said it would take a supermajority to
approve treaties, but they were silent on the issue of supermajority
relative to justices, and, therefore, in my opinion, I think it is
fairly evident that, as far as they were concerned, they expected a
majority for the purposes of approving justices and, therefore, a
filibuster is inconsistent with that.
Really the filibuster, and the issue of the filibuster which has
received so much appropriate attention today and which is obviously why
we haven't been able to get to a vote, is systematic of the bigger
issue, which is why is the opposition evolving relative to these
justices?
We have to remember--and I think it is important for people to focus
on this because there have been a lot of charts and signs up talking
about the number of judges approved--that we are dealing with the
circuit court of appeals level of the judiciary. We are not dealing
with district judges. The vast majority of the judges who are approved
by this body, who are nominated by any President, are district court
judges. They are the trial judges. What we are dealing with, however,
is the people who take a look at what happened in the trial and decided
whether law has been adequately applied to the trial and who basically
interpret the Constitution and the laws of the land and have,
therefore, a huge impact, obviously, on how our society functions.
Fewer and fewer cases make it to the Supreme Court. More and more
cases are decided on the issue of the question of their
constitutionality, the implications of the broader law involved by the
appeals level of our justice system. Therefore, when we look at the
circuit court of appeals appointments, we are looking at an
extraordinarily important position within the structure of our
governance as a nation, a governance which is based on the issue of the
protection of law. You can't have a democracy unless you have a
structure of jurisprudence which is fair, honest, and applied
consistently with principles developed over years.
Therefore, to look at all the judges out there and say 168 or 200 or
5,000 have been approved is irrelevant to the question. The question
is, what is the circuit court issue; what has happened with the circuit
court? We know in the circuit court area there have only been 29
approved, and there are presently 4 pending who are subject to a
filibuster right now, which means they can't get a majority vote. There
are going to be two more, it looks like, who are going to be subject to
that same filibuster, who won't get a majority vote, and that will be
followed by, it appears, another six subject to a filibuster and,
therefore, cannot get a majority vote. So we have 12 compared to 29.
Twenty-nine have been approved. That is a very high percentage of the
circuit court justices who have been basically blocked from getting an
up-or-down vote as should apply under our form of structure, our
Constitution, in my opinion.
There has been a lot of discussion about that point. But what is the
real implication? What is this fight over getting to a vote really
about? It is about who these justices are and what they represent,
because this is a new radicalization of the issue of judges and their
appointment to the circuit court.
The use of the filibuster at this time is symptomatic of that
radicalization, and it is the radicalization of the nominating process
which is the real issue at hand and on which the American people should
be willing to focus.
It appears--not appears--it has occurred now that a litmus test has
been put in place for the purposes of approving members to the circuit
court, a litmus test that really has no relationship to the judicial
temperament, experience, fairness, or expertise of the nominee who has
been brought forward. It is a litmus test totally outside the bounds of
what has traditionally been the way in which we evaluate a justice
nominated to the circuit court. It is a litmus test based on the
justice's personal and religious views, not the justice's judicial
actions.
This is a huge departure from what has been the traditional method by
which we have evaluated and confirmed judges in this country.
First off, the litmus test as an approach is wrong. I was a Governor.
I appointed judges. I never asked one judge what his or her view was on
any issue. What I wanted to know about a justice I was going to appoint
was: One, were they honest beyond a question of a doubt; two, were they
smart; three, were they fair; and four, have they life experience that
is going to give them some sensitivity toward the people who would be
coming before their court.
What their views were, I believed, was inappropriate to ask, but that
was my position. Clearly, it is not the position of the minority in
this body. The minority in this body decided there must be a litmus
test which every justice appointed to the circuit court has to jump
over.
I could possibly accept that if that litmus test was tied to whether
the justice was honest, whether the justice was fair, whether the
justice was intelligent, or whether the justice had the life experience
that was appropriate to go on the court. But that is not the litmus
test. The litmus test now is whether or not the justice nominated to
the position has an individual belief, not a judicial view, which is
inconsistent with the view of one Member--just one Member--of this
body. It is a staggering event representing a fundamental change in the
way in which we appoint justices and nominate and confirm and evolve a
judiciary.
Under this philosophy, it is very likely that any person who comes to
this body who subscribes to the Catholic faith and subscribes to it as
laid down by the leader of the Catholic faith and by the catechisms of
the Catholic faith, even though they may, as a justice, have made it
very clear they do not allow that faith to determine their decisions--
and in one case we have a classic example of that, and that is Justice
Pryor--that justice will not be allowed to be confirmed because his
personal
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views--not his judicial actions, not his judicial review process--but
his personal views will not have passed the litmus test simply because
he happens to maintain a religious belief.
That is an extraordinarily dangerous precedent to set in this body,
and it will fundamentally change the character of this Nation over time
if it is allowed to continue, to say nothing of the prejudice that it
reflects.
Since I have been in this body, I have voted for a lot of judges.
When President Clinton was here, I voted for Justice Breyer to the
Supreme Court. I voted for Justice Ruth Bader Ginsburg to the Supreme
Court. These were two Justices I absolutely knew did not subscribe to
my political philosophies, but they were honest, they were fair, they
were smart, and they had life experience that was appropriate.
Had I applied a litmus test coming from the other side of the aisle,
I could have easily said no, and we could have filibustered those
judges, but that was not appropriate. That is not the way to proceed.
Unfortunately, my time is up. I would like to spend more time on this
issue. Two of my fine colleagues wish to speak. I think this is the
essence of the issue we are confronting today. The filibuster is
symptomatic of it. The essence of it is we are radicalizing the manner
in which we appoint justices, and we are allowing that radicalization
to be based on personal beliefs rather than judicial action, which is
fundamentally wrong.
Mr. President, I now yield 5 minutes to the Senator from Nevada.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. ENSIGN. Mr. President, that was an excellent statement by the
Senator from New Hampshire. I wish to go further with some of the
issues about which he was talking.
Our Constitution specifically spells out only five instances where a
supermajority is required and moving to consideration, and approval of
the President's judicial nominees is not on that list. This list
includes treaties, impeachment, expulsion of a Senator, overriding a
Presidential veto, and adoption of a constitutional amendment.
The spirit of our Constitution should mean something. It is in
defense of our Constitution that we are taking these 30 hours. It has
been said we are wasting our time. Defending our Constitution is not
wasting the Senate's time. It is critical to this Senate.
What the Senator from New Hampshire was just talking about--the
Supreme Court nominees for whom he voted, even though they were
different ideologically from him--if this process is allowed to
continue, it is going to be 12, we know already, appellate nominees who
are going to be blocked by filibuster--12 out of 41. If this is allowed
to continue, we know next year it is going to be worse, and when the
next Supreme Court nominee comes up, if it is Ruth Bader Ginsburg or
Breyer or Rehnquist, those people would not be approved in the climate
in the Senate today. Highly qualified people will not be able to make
it on to the Supreme Court.
Do my colleagues know what that is going to do to the process? Good
people are not even going to be part of the process. When the President
calls them and says: I would like you to consider this, they are going
to say: Go see somebody else.
The Judicial Conference is a nonpartisan entity that acts as the
principal policymaking body for our court system, and it has declared
12 judicial emergencies on the circuit court of appeals. The President
is doing his job by sending us the nominees. It is our time to do our
job.
The Ninth Circuit, which serves my home State of Nevada, is the
largest and busiest circuit court of appeals in this Nation and is also
the most overturned court in the country. In 2001, it took 30 months in
the Ninth Circuit for a case to go from original filing in the district
court to the final decision on appeal. That is 5 months longer than the
average court of appeals.
In the Ninth Circuit in the 1996-1997 session in the middle of the
Clinton Presidency, the Supreme Court found it necessary to review 28
cases in the Ninth Circuit. Of those 28 cases, it overturned 27 of
them. By the way, this was one-third of the Supreme Court's docket that
year.
We know about some of the outrageous cases in the last year or two
from the Supreme Court. Let me mention a couple of them. We know the
Ninth Circuit is the one that is trying to overturn the Pledge of
Allegiance, saying that God should not basically be part of our country
or part of our Government, or the name ``God.''
The Senate took up a resolution which then-Senate majority leader Tom
Daschle brought to the floor, and every Senator voted to condemn what
the Ninth Circuit had done. This is the circuit to which Carolyn Kuhl
is nominated. We need to get good people on the Ninth Circuit. It is
absolutely critical for us to do that.
I feel passionately that we need to fix the process. We need to fix
it for when the Democrats are back in power so that good people get an
up-or-down vote. They shouldn't be blocked simply for ideology from
getting an up-or-down vote. If a Senator disagrees with them, vote them
down, but give them an up-or-down vote. A minority of Senators should
not be able to block the process for judicial nominees as part of the
advise and consent clause.
So let's work together. Let's reach across the aisle and say: Let's
fix the process. Otherwise, as we go into the future, this tit for tat,
this payback is going to continue to get worse and worse, and it is
truly a threat to our constitutional Republic.
I close with this: We appeal to the other side. We are going to try
to offer a resolution to fix what is going on here, and we encourage
them to join us so this doesn't just get worse as the years go by.
I yield the floor.
The PRESIDING OFFICER. The Senator has used his 5 minutes. The
Senator from Texas.
Mr. CORNYN. Mr. President, may I inquire how much time remains on our
side?
The PRESIDING OFFICER. Twelve minutes.
Mr. CORNYN. Mr. President, I yield myself 7 minutes, and I yield the
senior Senator from Texas the remaining 5 minutes of our time.
Mr. President, I have been either in the Chamber or watching the
Chamber from other parts of this building as this debate has gone
forward since early last evening. I happened to be watching from my
office just before I came to the floor most recently when the Senator
from Iowa, Mr. Harkin, made a couple of comments to which I want to
respond.
First, I want to say what I agree with. I agree with him that the
people who work so diligently in this Chamber and elsewhere, in the
cloakroom, the people who report what we say for the Congressional
Record, how much I and the rest of us appreciate their faithful and
dedicated service. Some of us got a few hours sleep last night. I am
not sure all of them did. I just want to say for all of us how much we
appreciate their service.
There is something else he said that I disagree with very strongly,
and that is where my colleague from Iowa charged the Republicans in
this Chamber, the bipartisan majority really--it is not just
Republicans--but charged those of us who believe this debate is
important with ``sanctimonious hypocrisy'' for our attempts to uphold
the Constitution for what we believe to be the unconstitutional
obstruction of President Bush's nominees.
There is a lot about this debate that I think folks at home watching
TV or listening on the radio may have a little bit of trouble getting
their head around, their brains around, because some of it involves
arcane rules of the Senate and the Constitution. There is one thing
that folks back home understand, and they understand hypocrisy,
sanctimonious and otherwise.
I think it is worth noting, indeed I think it is important to note,
comments that have been made by those who are now on the other side of
this debate, what they said a few short years ago on this very self-
same subject.
My mother used to say that the test of one's character is whether you
are
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the same person in public as you are in private, and I think using
something close to that test, we could ask whether the speeches that a
Senator gave 5, 6, or 7 years ago are consistent with the position they
publicly take today.
In that spirit, I would offer this: On March 1, 1994, the Senator
from Iowa said: I really believe that the filibuster rules are
unconstitutional.
That is the same Senator who accused those of us who believe that the
same thing he professed in 1994, when he called us sanctimoniously
hypocritical for what we are doing today--he happened to agree with us
in 1994 but has obviously changed his position today.
Senator Lieberman of Connecticut on January 4, 1995, said: The
filibuster rule, there is no constitutional basis for it. It is in its
way inconsistent with the Constitution. One might almost say it is an
amendment to the Constitution by rule of the U.S. Senate.
Then there was the minority leader, at a time in 1995 when he said:
The Constitution is straightforward about the few instances in which
more than a majority of the Congress must vote. The Founders concluded
that putting such immense power into the hands of a minority ran
squarely against the democratic principle. Democracy means majority
rule, not minority gridlock.
Then there are the comments of the distinguished legal counsel, Lloyd
Cutler, who served as White House Counsel both to President Carter and
President Clinton, who said: Nothing would more poorly serve our
constitutional system than for the nominations to have earned the
approval of the Senate majority but to be thwarted because the majority
is denied a chance to vote.
I would like to agree with the comments made by Senator Lieberman,
Senator Daschle, Senator Harkin, and Mr. Cutler just a few short years
ago, but obviously their position has changed, or I should say their
position has changed because majorities have changed. They find
themselves in a different posture today than they found themselves in
then, and it is no longer convenient or expedient for them to claim
that majority should rule.
I submit they were right then and they are wrong now. I do not know
of a nicer way to put it. It is hypocrisy to take inconsistent
positions based on expedience where they should be made on principle.
What we are fighting about today is a fundamental principle. My
colleague from Iowa said he wondered what the moral demarcation line
was between holds and committee inaction on the one hand and
filibusters on the other hand. I have an answer for him. I think it is
a great question. The answer is: The line of moral demarcation is the
Constitution and majority rule. That is where the moral demarcation
line is, and there have now been four unconstitutional filibusters.
The PRESIDING OFFICER. The Senator has consumed the time yielded to
him.
Mr. CORNYN. I yield the floor to the senior Senator from Texas.
The PRESIDING OFFICER. The Senator from Texas.
Mrs. HUTCHISON. I thank the Senator from Texas, my colleague, for
being here most of the night, as most of us were, and for carrying this
debate as a distinguished member of the Judiciary Committee who is
maybe the only Member of the Senate--I am not sure--he is the only
Member I know who has been a member of a supreme court of his State,
Texas, and the attorney general of his State. I am very pleased that he
has been such an active participant in this debate.
I wish to talk a little bit about the issue of the filibuster as it
pertains to judges. We have had a lot of debate about what is a
filibuster and did one occur, previous to this, a filibuster on a
judicial nominee.
Well, there is an argument about one, and that is Justice Abe Fortas
who was promoted to Chief Justice and was turned down by the Senate.
``Turned down'' might not be the right words, but whether or not there
was a filibuster is in debate.
There is no debate that there have been no other filibusters of
judicial nominees because Members of both parties have tried very hard
not to filibuster until 2002 because they know it is the nuclear
option. Once it starts, it is going to promote partisanship in this
very important constitutional responsibility.
I want to read a letter from former Senator Robert Griffin, who was a
Member of the Senate during the Fortas debate. He quotes an Associated
Press piece which, in discussing the nomination of Justice Abe Fortas
to replace Chief Justice Earl Warren, said:
Republicans filibustered the nomination and Johnson backed
off.
Here are his words:
Whether intended or not, the inference read by many would
be: Since the Republicans filibustered to block Justice
Fortas from becoming Chief Justice, it must be all right for
the Democrats to filibuster to keep President Bush's nominees
off the appellate courts. Having been on the scene in 1968,
and having participated in that debate, I see a number of
very important differences between what happened then and the
situation that confronts the Senate today.
First of all, four days of debate on a nomination for Chief
Justice is hardly a filibuster.
Now, we are talking about people who have been nominated for over 2
years, who have had numerous cloture votes. That is a big difference.
He goes on to say:
While a few Senators, individually, might have contemplated
use of a filibuster, there was no Republican party position
that it should be employed. Indeed, the Republican leader of
the Senate, Everett Dirksen, publicly expressed his support
for the Fortas nomination shortly after the President
announced his choice. Opposition in 1968 to the Fortas
nomination was not partisan. Some Republicans supported
Fortas; and some Democrats opposed him.
When on October 1, 1968, a vote was taken on the first and
only cloture motion, the count was: 45 in favor of the motion
[for cloture] and 43 against. Of course, those opposed to the
nomination were jubilant, not only because the count fell far
short of the \2/3\ then required to impose cloture but, after
reviewing the leanings of the absentees, we were more
confident than ever that we had, or would achieve, majority
support for our position [against Justice Fortas]. Of course,
it also demonstrated that the White House could not produce
the showing of a majority in favor of the nomination. Even if
four days of debate were to be characterized as a filibuster,
it could not be claimed that our debate was thwarting the
will of the majority. Needless to say, that picture stands in
stark contrast with the tactics employed these days by Senate
Democrats.
President Johnson the next day withdrew the nomination.
The difference here is, there was not a partisan filibuster. There
was not a majority that could be counted, and if anyone knows former
Senator Lyndon Johnson, who was President of the United States, they
know he was a vote counter. The Senator, now President Johnson at the
time, withdrew the nomination because he did not have the majority vote
for the nomination. So there has not been this kind of partisan
filibuster. Both parties have refused to allow it to happen for good
reason, and I would hope it would end today as well.
The PRESIDING OFFICER. The majority's time has expired.
The Senator from Vermont.
Mr. LEAHY. Mr. President, this has been interesting, and I think for
the public who might be watching, they may want to know what they are
getting for their $100,000 to $150,000 of taxpayer's money that is
being spent in this filibuster and those staff members who have lost
any ability to have time for themselves and their families.
So I thought I might boil this down to its essence. Have filibusters
been used before on Executive Calendar nominees, including judicial
nominees to the lower courts, as well as to the Supreme Court? Of
course they have. No matter how much my friends on the other side say
no, of course they have. They know that.
The Congressional Record is open for all to read, and we do not even
have to go back to ancient history for this. Three years ago, there
were even two simultaneous Republican filibusters on the Senate floor
against Richard Paez and Marsha Berzon, two of President Clinton's
nominees. In fact, here is a list of Republican filibusters of
nominees. It is a pretty long list.
I do not think we have to remind our friends on the other side of the
aisle
[[Page 28715]]
about the dozens more that were blocked not through votes in the open,
on the Senate floor, but through holds by anonymous Republican
Senators. In fact, these were filibusters by one or more anonymous
Republicans. If one or more Republicans objected to one of President
Clinton's nominees, they never got a vote. They never got on the floor.
They never got out of committee. One actually did get out, and then by
a party line vote he was voted down. That was the African-American
chief justice of the Missouri Supreme Court.
So what happened in these one-person anonymous filibusters by the
Republicans? Not 4 people being held up, it was 63 of President
Clinton's nominees. Sixty-three of President Clinton's nominees were
blocked by the Republicans by a one-person anonymous filibuster.
So are filibusters, including judicial nominees, rare? Sure, they
are. And, incidentally, these are the Clinton circuit court nominees
blocked by the Republicans during 1995 to the year 2000. As we can see,
it is a pretty large number: James Beatty, Rich Leonard, Jorge Rangel,
Robert Raymar, Barry Goode, Alston Johnson, James Duffy, Elena Kagen,
James Wynn, Kathleen McCree Lewis, Enrique Moreno, James Lyons, Allen
Snyder, Kent Markus, Robert Cindrich, Stephen Orlofsky, Roger Gregory,
Christine Arguello, Elizabeth Gibson, Bonnie Campbell, Andre Davis,
Richard Paez, Marsha Berzon, H. Lee Sarokin, and Rosemary Barkett.
The Senate's rules are intended to protect against abuses by the
majority that at any given time controls the Senate. I have been here
eight times in the majority, eight times in the minority. So the
majority and minority go back and forth all the time. In this case, the
Senate's rules protect against abuses of power--we have a system of
checks and balance--especially by a White House that is so bent on
controlling all the levels of power. They even want the Senate to
change their rules, rules that have governed this body for over 200
years.
Now, should filibusters be used sparingly? Of course. And they have
been used sparingly. But unlike the times of the recent Republican
filibusters where 63 of President Clinton's nominees were stopped, we
have used this very sparingly against a President who wants to run
roughshod over other safeguards built into our system of government and
into the very rules and practices of the Senate and its committees.
By using it sparingly, all this talk--you know, it is almost ironic
to see my Republican friends with a straight face say how terrible this
is and spend $150,000 or so of the taxpayers' money to tell us how
terrible this is, after they stopped, by using 1-person filibusters, 63
of President Clinton's nominees.
Let us put the chart up there, if we might. Here is what we have
done. We did not stop 63, as they did. We have stopped four. We have
confirmed 168, and we stopped 4. There is even a T-shirt floating
around which says: We confirmed 168 of President Bush's nominees and
what did we get for it? When you look at the back, it says: All I got
was this lousy T-shirt.
So this year, with breathtaking arrogance and a certain disdain for
the past and certainly an unwillingness to be honest about the history
of the Senate, we have seen a systematic dismantling of the Judiciary
Committee's own rules. One by one, Republican majorities have changed,
bent, and even broken the longstanding rules and practices that are
intended to protect the rights of Senators to defend the rights of
their States and their constituencies. These are the very same rules
they used--some would say abused--when there was a Democratic
President.
Would filibusters be necessary at all if the President lived up to
the Constitution's injunction that he seek not only the Senate's
consent but also its advice in selecting candidates for the independent
Federal judiciary? Remember, the Federal judiciary is not supposed to
be an arm of the Republican Party or the Democratic Party. Of course,
it is supposed to be independent. It is a real question: Is there a
clear way forward without the need to prevent the confirmation of any
judicial nominee? The President has the ability to stop all of this.
None of this impasse would be necessary if the President actually
followed advice and consent.
If the President did what other Presidents of both parties have done,
where they have tried to be a uniter, not a divider, if the President,
who has declared his disdain for what he calls judicial activism, had
nominated people who were not judicial activists, if he had tried to
unite and not divide, none of this would be happening.
Instead of working with the Senate to name mainstream nominees to our
courts, he has chosen instead to try to politicize the courts. He and
his aides have unabashedly declared that they are out to remake the
federal judiciary in the image of ideological activism. Our courts are
foundational to our system. Our independent judiciary is the envy of
the entire world.
In deference to groups on the far right, he has nominated judicial
activists who cannot help but raise questions about their impartiality
and their capability to administer justice for all.
What we need is an independent judiciary. Time and again, Democratic
Senators have acted in good faith to fill vacancies that Republicans
kept open for years when there was a Democratic President. Time and
again they have blocked, by one or two anonymous Republican holds,
Democratic nominees of President Clinton's from going forward.
We have filled those. That is why we are able to get 168 of the
President's nominees through. We have stopped four. Come on. Is this
worth spending the taxpayers' money? Perhaps not. Maybe, though, they
believe it is worth it to send out fundraising letters.
The public's priorities v. the Republican leadership's priorities:
During this 30-hour talkathon, the Republican leadership of the Senate
again is following a script laid out for it by a White House intent on
bending all other branches of government to its will. This is a White
House intent on establishing some sort of unitary government and intent
on removing the checks and balances among our three branches of
government that are a foundation of the American system. In furtherance
of this script, in these rare final hours of this year's legislative
session, the Republican leadership has decided to abandon work on the
real priorities of the American people. They are obstructing those
priorities, in favor of repetitive speeches about promoting these four
controversial nominees to lifetime positions as federal judges--four
people who already have good, well-paying jobs--is more important than
the three million Americans who have been struggling to find any jobs
at all.
The Republican leadership has already overshot the Senate's
adjournment date by more than a month. We have already had to enact
three continuing resolutions to keep the Federal Government operating
because the appropriations bills that the Congress needs to pass have
not been enacted. It is now more than five weeks after the fiscal year
began and we should have completed all 13 appropriations bills, but the
Republican Congress has enacted a total of only four out of 13.
The remaining annual appropriations bills include the funds that go
to improve our schools. The funds that NIH uses to advance our medical
knowledge in fighting disease and illness. The resources used by EPA to
enforce our clean air and water laws. They include appropriations for
our veterans and for law enforcement.
Yesterday evening as the Republicans gathered to accommodate the
programming requests of a certain television network, the senior
Senator from West Virginia was trying to get the Senate to do its work.
Senator Byrd, as the ranking Democrat on the Appropriations Committee,
was searching for the Republican leader and urging the Senate to
complete its work on the appropriations bill that funds services for
our military veterans. He asked that the Senate continue that work so
that we could finish Senate consideration of this important bill
[[Page 28716]]
and proposed that we do so in just two hours. The Republican leadership
objected. He renewed his request when the Republican leader did appear
on the floor but was, again, rebuffed by Republican objection. Those
few minutes may turn out to be the most telling of this entire so-
called debate. Republicans chose to sacrifice the work of the Senate,
the priorities of the American people and the interests of our veterans
to a partisan political stunt.
In one of their many press conferences on this diversion, on November
6, the Republican leader committed to ``complete the appropriations
process'' before beginning this charade. Even the junior Senator from
Pennsylvania, agreed with that and said: ``The leader's right. What
we're about to embark in next week, after the appropriations process
has run its course, is to enter into a debate. . . .'' Well, when given
the chance to honor that commitment last night, the Republican caucus
chose partisan theater over the work of the Senate.
There is the unfinished business of providing a real prescription
drug benefit for seniors. There is the Nation's unemployment and lack
of job opportunities that confound so many American families. With
millions of Americans having lost their jobs in the last three years,
the Republican Senate is, instead, insisting on spending these final
days of this session on a handful of highly controversial judicial
nominations that divide the Senate and the American people and ignoring
the needs of the almost 10 million Americans who are out of work,
including those more than three million Americans who have lost their
jobs since President Bush took office.
There are the corporate and Wall Street scandals that concern so many
of those who have invested and placed their trust and financial
security at risk in our securities markets. While we are listening to
Republicans pontificate about a handful of highly controversial
judicial nominees, some Republican has an anonymous hold on S. 1293,
the Criminal Spam Act of 2003. This is a bipartisan bill that can do
something about the worst spam abuses. Earlier this week, the
Washington Times reported that spam is doing more damage to our economy
than hackers or viruses. A few weeks ago the entire Senate joined in
adopting a version of S. 1293 to the Burns-Wyden bill and we joined to
pass that bill. Now some Republican has turned around and under cover
of anonymity is holding up the bipartisan bill that can be enacted
before adjournment this year that can stem the tide against the worst
abuses and fraudulent conduct that is gumming up our internet economy
and communications. This is the type of anonymous Republican hold that
was likewise responsible for holding up more than 60 of President
Clinton's qualified nominees to the federal judiciary from 1995 through
2001.
There is the need for Congress to continue the federal highway
programs that build and repair our roads and highways and bridges.
There is the need to perform real oversight of the U.S.A. PATRIOT Act
and to provide real oversight for the war in Iraq. Just as Republicans
objected to the Senate Judiciary Committee investigating the factors
that led to September 11, Republicans are now objecting and preventing
a full investigation by the Select Intelligence Committee of what led
the Bush administration to contend that Saddam Hussein had weapons of
mass destruction and was about to use them against the United States
and that we had to embark earlier this year on a preemptive war.
Nor has the Senate taken any action on the misrepresentations made to
us by Bush administration officials about their efforts to gut Clean
Air Act enforcement. When they appeared and testified before us, they
declared that their policies would not affect enforcement of the Clean
Air Act and ongoing cases. Over the last two weeks we have seen how far
from the truth that testimony was.
For the last three years this Administration has run roughshod over
environmental protection and the Republican Senate has done nothing to
stem the tide. They have catered to special interests in rolling back
protections for clean water, clean air, toxic cleanups and public
health. The Senate should be focusing attention on these attacks upon
the environment and these rollbacks, but nothing could be farther from
the agenda of the Republican Senate leadership.
Forty-two environmental rollbacks by the Bush administration that
have been announced on Friday is the number the Senate should be
working on. There have now been more environmental rollbacks than there
are vacancies throughout the entire federal judiciary. The Bush
administration's announcement that they are halting enforcement actions
against industrial polluters under the New Source Review provision of
the Clean Air Act flatly contradicts the assurances by Justice and EPA
officials to the Senate last year. The toxic pollutants that will cause
asthma and heart disease for our children and grandchildren is
apparently of little interest to the Republican leadership of the
Senate. That would be worthy of serious inquiry, debate and Senate
action.
Last week the House passed by an overwhelming bipartisan margin the
Advancing Justice through DNA Technology Act of 2003, H.R. 3214. This
landmark legislation provides law enforcement with the training and
equipment required to effectively, and accurately, fight crime in the
21st Century. More specifically, the bill would enact the President's
DNA Initiative, which authorizes more than $1 billion over the next
five years to eliminate the backlog crisis in the nation's crime labs,
and to fund other DNA-related programs. It also includes the Innocence
Protection Act, a death penalty reform effort I launched three years
ago with Senators and Congressmen on both sides of the aisle.
The House vote was a major breakthrough in finding solutions to the
flaws in our justice system. I understand that Republican Senators are
now blocking action on the bill in the Senate. This bill is the result
of extensive, exhaustive negotiations among Democratic and Republican
leaders in the House and the Senate. It has broad support, both in the
Congress and across the country and deserves the Senate's immediate
attention and passage.
We have shown that the death penalty system is broken, we know that
the reforms in this bill will help, and we know that every day we delay
action may be another day on death row for some innocent people. These
mistakes in our system of justice carry a high personal and social
price. They undermine the public's confidence in our judicial system,
they produce unbearable anguish for innocent people and their families
and for the victims of these crimes, and they compromise public safety
because for every wrongly convicted person, there is a real criminal
who may still be roaming the streets. This matter is also being stalled
by Senate Republican inaction.
The Senate has yet to take up the Anthrax Victims Fund Fairness Act
of 2003, S. 1740, which Senator Daschle and I introduced with a number
of other Senators because we are concerned that the citizens harmed by
the anthrax letters addressed to Senator Daschle and to me in October
2001 are the forgotten victims of the aftermath of September 11. They,
too, should have access to the Victim Compensation Fund. The Senate has
yet to consider the September 11th Victim Compensation Fund Extension
Act, S. 1602, which must be passed before we adjourn or hundreds of
families who suffered on 9/11 will likely be left out in the cold
without the compensation Congress and the American people intended to
provide. Nothing will take away the pain and loss of September 11 and
its aftermath for the victims but we owe them the Senate's attention
before we adjourn.
New rules for Republican nominees: Rather than consider those
important matters, why would the Republican leadership insist on
rehashing the debate on the handful of judicial nominees on which
further Senate action is unlikely? When they were considering the
judicial nominees of a Democratic President in the years 1995 through
2000, they showed no concern about
[[Page 28717]]
stranding more than 60 of President Clinton's judicial nominations
without hearings or votes. They did not demand an up or down vote on
every nominee but were content to use anonymous holds to scuttle scores
of qualified nominees. Indeed, they stood cavalierly by while vacancies
rose from 65 in January 1995 to 110 when Democrats assumed Senate
leadership in the summer of 2001. They presided over the doubling of
circuit court vacancies from 16 to 33 during that time.
Indeed, the Republican leader at that time famously came to the
Senate floor to defiantly declare that the Senate had confirmed too
many of President Clinton's judicial nominees as far as he was
concerned. That was when the Senate was considering less than half as
many judicial nominees and had more than twice as many judicial
vacancies as there are today. During those days the Republican leader
said he only had one regret, one apology regarding his obstruction of
President Clinton's judicial nominees: ``I probably moved too many
already.'' Four years ago, toward the end of the third year of
President Clinton's term, a year in which only 34 judges were
confirmed, the Republican leader left no doubt that Republicans and the
Republican leadership were unrepentant about their delays and
obstruction of scores of qualified judicial nominees when he
proclaimed: ``Getting more federal judges is not what I came here to
do.'' That Republican leader would not schedule votes on President
Clinton's judicial nominees when vacancies were much higher and growing
in the summer of 2000 and, ironically, sought to use appropriations
bills as an excuse. The Senator from Mississippi said: ``[S]pending
bills must move first. . . . . Until we get 12 appropriations bills
done, there is no way any judge, of any kind, or any stripe, will be
confirmed.'' Of course, now the Republican caucus shows little interest
in completing the Senate's work on appropriation bills, even though we
are no longer in the summer but four months later in the year, well
past the deadline and already into the next fiscal year without having
even had the Senate initially consider these fundamental legislative
matters. As I have noted, just last evening the Republican leadership
rebuffed Democratic efforts to complete action on appropriations for
our veterans, which could have been done in two hours.
In those years, the Republican chair of the Senate Judiciary
Committee repeatedly argued that 67 vacancies in the federal judiciary
was ``full employment'' as far as he was concerned. He wrote in USA
Today in September 1997, when there were more than 100 judicial
vacancies, that there was no judicial vacancy crisis and that the 742
active judges were sufficient. Over the last three years, Democrats
have cooperated in confirming 168 judges nominated by this President,
including 68 this year; we have reduced judicial vacancies on an
expanded federal judiciary to 40; and we have 837 active judges, the
most in U.S. history. We have 40 percent fewer vacancies than what
Republicans used to call ``full employment'' for the federal judiciary
and almost 100 more active judges than just a few years ago when
Republicans were content to delay and obstruct President Clinton's
nominees and argue that there was no problem.
So why do Republican partisans insist that the Senate now devote its
time to rehashing the debate on some of this President's most
controversial nominees to the independent federal judiciary? Is it
merely coincidence that the Republican leadership has chosen to
schedule these proceedings for the week of the Federalist Society's
National Convention in Washington? Perhaps this is to give Republicans
the opportunity to preen and posture while such an important segment of
their base activists are in town. Perhaps it is to give the Republican
leadership another chance to make false arguments about judicial
nominations. Perhaps it is to give some a platform for baseless and
McCarthyite accusations against Democratic Senators. Or perhaps it is
to distract from the real concerns that affect Americans every day.
Newspapers this week report that this exercise is precipitated because
of a ``brewing rebellion by conservative activists.'' Reportedly
partisan diehards ``are accusing the Senate GOP leaders of going too
easy'' and apparently when Republicans appear on conservative radio
talk shows ``they are often barraged with questions'' about why the GOP
is not successfully ramming every judicial nominee through the Senate
that they control. Apparently this dissatisfaction has even begun to
affect Republican fundraising and, according to the Washington Post,
``a recent mailing [by a conservative group] to raise money for
candidates yielded empty envelopes'' from those who had formerly
contributed. Let us hope that this is not the real reason for this
grandstanding. Let us hope that when something begins to affect
Republican fundraising, it is elevated to the top of the agenda--the
public, the responsibilities of the Senate be dashed.
Mr. President, 168 nominees have been confirmed. If the Republican
leadership has staged this vote in order to try to persuade the
American people that Democrats are obstructing the President's judicial
nominees, they are going to have to stray far from the facts, because
the facts show that the Senate has made dramatic progress on judicial
vacancies when and where the Administration has been willing to work
with the Senate. Indeed, last week the Senate confirmed the 168th of
this President's judicial nominees 100 of them, confirmed by the
previous Democratic-controlled Senate, in just 17 months. We could
confirm several more if the Republican leadership would just schedule
the votes. There are other nominees who were reported unanimously by
the Judiciary Committee and are just waiting to be confirmed. The
number of confirmations could easily total 170 or more if the
Republican leadership were truly interested in filling vacancies. Of
course, more progress might undercut the partisan message that some are
trying to peddle. Maybe that is why for weeks at a time the Republican
leadership in the Senate has repeatedly refused to schedule votes on
judicial nominees who will be approved, and have chosen is choosing,
instead, to focus on the handful of the President's most extreme and
divisive nominees.
The truth is that in less than three years' time, the number of
President Bush's judicial nominees the Senate has confirmed has
exceeded the number of judicial nominees confirmed for President
Reagan, the ``all time champ'' at getting Federal judges confirmed, in
all 4 years of his first term in office. A handful of the most extreme
and controversial nominations have been denied consent by this Senate
in the proper exercise of its duties under the rules. Only four. One-
hundred-sixty-eight to four. That is in stark contrast to the more than
60 judicial nominees from President Clinton who were blocked by a
Republican-led Senate.
McCarthyite smears: If this show is being staged to give some a
platform for repulsive smears that Democrats are opposing nominees
because of their religion, Republicans will have entered a realm of
demagoguery, repeating false allegations and innuendo often enough to
hope that some of their mud will stick.
Before they do that again, I would refer them to what the
distinguished Senator from Louisiana, Ms. Landrieu, said this morning,
because if this was not almost ridiculously contrary to the facts,
there is one part in this whole debate that should be troublesome to
both Republican and Democratic Senators, and that is the religious
McCarthyism that has crept into this debate. The distinguished
predecessor of mine, Ralph Flanders of Vermont, stood up on this floor
and brought a halt to a member of his own party, Senator Joseph
McCarthy, because of the smears he was making, the unsubstantiated
smears he was making on people. Now, some of my friends on the right
and some of my friends in the Republican Party have been making this
smear. They are saying if you are opposed to these people, you are
anti-Catholic or anti-Christian. If it was not so hurtful it would be
humorous.
I first heard this when a radio talk show said I was anti-family,
anti-
[[Page 28718]]
Catholic. On Sunday morning, they asked my press secretary about it. He
said: The Senator did not hear it because he was at mass with his wife
of 41 years.
We should not sink to something that we know is not so. Slanderous
accusations have already been made by Republican Senators, and ads run
by a group headed by the President's father's former White House
counsel and a group whose funding includes money raised by Republican
Senators and even by the President's family when they falsely claimed
that judicial nominees were being opposed because of their religion.
These contentions are despicable and unfounded. Other Republican
members of the Judiciary Committee and of the Senate have either stood
mute in the face of these McCarthyite charges, or, worse, have fed the
flames. Such accusations are harmful to the Senate and to the Nation
and have no place in this debate or anywhere else.
Just a few weeks ago, President Bush rightly told the Prime Minister
of Malaysia that his inflammatory remarks about religion were ``wrong
and divisive.'' He should say the same to members of his own party.
Today, Republican Senators have another chance to do what they have not
yet done and what this Administration has not yet done: Disavow this
campaign of division waged by those who would misuse religion, race and
gender by playing wedge politics with it. I hope that the Republican
leadership of the Senate will finally disavow the contention that any
Senator is being motivated in any way by religious bigotry or for
racial or gender-based reasons.
This week rumor is that the Republican public relations machine will
be cranking overtime to try to make Democratic Senators appear anti-
woman. Led by Senators Mikulski, Feinstein, Boxer, Murray, Landrieu,
Lincoln, Cantwell, Clinton, and Stabenow, it is hard to see how
Democrats can be subjected to such allegations with a straight face,
but that is what the rumor is.
The facts are that under Democratic leadership, the Senate confirmed
100 judicial nominees, including 21 women, nominated by President Bush
in just 17 months, including four to our Courts of Appeal. During the
107th Congress, President Bush nominated only 18 women to district
court seats, out of 98 district court nominees (18 percent), and only 8
women to circuit courts out of 32 circuit court nominees (25 percent).
This year Democrats have supported the confirmation of 12 additional
women nominated to the Federal bench, including three to our Courts of
Appeal. This President's nominees have included only one woman in each
five judicial nominees. The 33 women judges confirmed represent 20
percent of the 168 judges confirmed.
By contrast, nearly one of every three of President Clinton's judges
are women. Of course, the Republicans who controlled the Senate and the
Judiciary Committee during the Clinton Administration also blocked 18
women nominated to Federal judgeships by President Clinton. Women who
were blocked from getting Senate action on their judicial nominations
include Kathleen McCree-Lewis, Elena Kagen, Elizabeth Gibson, Helen
White, Christine Arguello, and Bonnie Campbell, all of whom were
nominated to the circuit courts. These six outstanding women lawyers
were not extreme or ideologues. They were outstandingly qualified women
lawyers whose nominations were blocked anonymously by Republican
Senators, without explanation, without a vote, without accountability.
Records of activism: On important issues to the American people--the
environment, voting rights, women's rights, gay rights, Federalism,
privacy rights, equal rights, civil rights and more--too many of this
President's nominees have records of activism and advocacy. That is
their right as American citizens, but that does not make them qualified
to be judges. As a judge it would be their duty to impartially hear and
weigh the evidence and to impart just and fair decisions to all who
come before the court. In their hands, we entrust to the judges in our
independent Federal judiciary the rights that all of us are entitled to
enjoy through our birthright as Americans.
The President has said he is against what he calls ``judicial
activism.'' How ironic, then, that he has chosen several of the most
committed and opinionated judicial activists ever to be nominated to
our courts.
The question posed by his controversial nominations is not whether
they are skilled and capable advocates. The question is whether--not
for a 2 year term, or a 6 year term, but for a lifetime--they would be
fair and impartial judges. Could every person whose rights or whose
life, liberty or livelihood were at issue before their courts, have
faith in being fairly heard? The President has chosen to divide the
American people and the Senate with his highly controversial
nominations. If Republicans want to clean the slate and start fresh, we
should do so with nominees who unite the American people, nominees who
can be supported by a strong bipartisan majority in the Senate.
We are also hearing the claim by Republicans that the filibuster of a
judicial nomination in unprecedented. Republicans themselves
filibustered the nominations of Judge Richard Paez and Marsha Berzon as
recently as 2000. They previously filibustered the nominations of Judge
Rosemary Barkett and Judge H. Lee Sarokin. Of course, while in the
majority, Republicans took full advantage of the secret hold and of
their control of the agenda to prevent a vote on 63 nominations by not
scheduling hearings and votes on them. Many of those now claiming that
Senate filibusters are unprecedented participated in them and voted
against cloture just a few years ago.
Indeed, as the Senate's own website notes in an articled entitled
``Filibuster Derails Supreme Court Appointment,'' the 1968 nomination
of Abe Fortas to be Chief Justice was filibustered with the help of
Republicans: ``Although the committee recommended confirmation, floor
consideration sparked the first filibuster in Senate history on a
Supreme Court nomination.'' The attempt at cloture on the Fortas
nomination was rejected by the Senate.
In addition, Republican Senators turned the filibuster of President
Clinton's nominees and of legislation into a destructive art form. A
nomination to be Surgeon General, Dr. Henry Foster, was defeated by a
Republican filibuster, ambassadorial nominations were filibustered and
bill and bill was filibustered as Republicans obstructed the work of
the Senate and the legislative agenda. For Republicans to claim foul
now, after their use of the filibuster tactic, may earn them the
political equivalent of an Oscar, Tony or Grammy.
For 3 years I have asked the President and Senate Republicans to join
with us to fill the vacancies on the Federal courts with qualified,
fair, nonideological judges. Democrats have bent over backwards to
support a record number of nominees. When the White House will work
with all Senators, we have been able to identify and confirm judges
quickly and by consensus. When the President has chosen to select
ideological activists and try to pack the courts, we have opposed a
handful of his most extreme nominees.
The Federal courts should not be an arm of the Republican Party, nor
should they be an arm of the Democratic Party. The Senate should
continue to honor its constitutional responsibilities to this third
branch of our Federal government and to the American people whose
rights are protected by our Federal courts. No President, with or
without the complicity of any current majority in the Senate, can be
allowed to relegate the Senate to the role of rubber stamp.
The PRESIDING OFFICER. The Senator from New York.
Mrs. CLINTON. Mr. President, I thank the Senator from Vermont for his
exemplary leadership on these issues. During a very difficult time in
the Senate's history, he has continued to deal with the challenges and
criticism in his usual humorous, self-deprecating way. It is a real
example for all Members.
I, like many of my colleagues, have been following this debate not
just for
[[Page 28719]]
the last hours but for the last months. It is troubling for the two
views being presented here to be so diametrically opposed about what
the history is, what the facts are, what the law is, what the
Constitution says and demands.
My friends on the other side of the aisle have chosen this
opportunity to try to garner public attention for their perspective,
which is that somehow the Democrats, acting in what we believe is the
highest sense of duty, our understanding of the Constitution and the
law, have drawn a line. We have seen this hour after hour now in the
Senate, in the big chart that says 168. That is how many of the
President's nominees have already been confirmed. Those men and women
are sitting on our Federal benches. They are making decisions that
affect our lives. I voted for virtually all of them. They would not
have been my choices. I would not have nominated some of these people
in that 168 number, but they passed the test. They passed the test of
judicious temperament. They passed the test of being people who
understood the critical role of what it meant to be a judge in a free
society like ours.
So what is this really about? We got some hints from some of our
colleagues on the other side of the aisle. This is about trying to gain
political partisan advantage and also increase fundraising. I was
amused to read a story about how some of their more extreme supporters
sent back empty envelopes when solicited for funding for the Republican
Senate campaign committee. Those contributors said: You are not tough
enough. You need to make a big issue out of it.
So, in obedience, the Republican leadership decided to do that. That
is their choice. They can dominate the floor on whatever issue they
choose. It is a shame they keep the attention on this issue to the
exclusion of so many other important issues such as the economy,
education, homeland security, what is happening in Iraq, and should
happen. But that is their choice. That says a lot about their
priorities as they respond to the music played by the most extreme of
their privileged contributors.
It is somewhat disquieting for those who have a memory longer than 24
hours, or longer even than 2\1/2\ years, to see the distortions that
have been presented with great passion and conviction. But,
nevertheless, beating on the table does not necessarily mean what you
are saying is true.
I am concerned, too, about the misleading way that the treatment of
nominees during the Clinton administration has become a mantra on the
other side of the aisle. I think 168 to 4 shows the Democrats in the
Judiciary Committee and here on the Senate floor have shown great
deference, 98 percent deference to the President's nominees and the
will of the majority. That is certainly not something that nominees by
President Clinton or the Democrats on the Judiciary Committee and in
this body received when the shoe was on the other foot.
I am a little bewildered by this because time and time again my
friends on the other side overlook the history of how extremely
qualified men and women from all walks of life, all races and ethnic
backgrounds, were treated under the Clinton administration.
The other side suggests that there were no mistreatments because
there were so few, if any, filibusters. That is what they claim. Here
are the pictures of the circuit court nominees blocked by Republicans.
I know many of these people personally. I have the same feelings about
them that I know some of my colleagues on the other side have about the
nominees from their State. I know what they and their families have
been put through for months, for years. And why was that? Because the
way they were treated was done essentially in secret.
I give the other side great credit. They did not come out in the open
like we are. They did not come out and debate the merits and demerits
of the nominees from the current administration. What happened is,
these distinguished men and women never even got a hearing. They never
got to appear before a committee in most cases. They never got a vote
out of a committee. The Judiciary Committee, under Republican
leadership, became a judge buster. You could not get out of the
committee. You could not get to the Senate floor. So, of course, there
could not be a filibuster because they never had the opportunity.
I have a little chart that shows the difference in how nominees were
treated, that clearly demonstrates we had 63 nominees, 23 circuit court
nominees, 40 district court nominees. They are represented by apples on
my chart. We grow a lot of apples in New York so I am partial to
apples.
These 63 well-qualified, distinguished lawyers and judges were
stiffed. They were not even given, in many instances, the decency of a
committee hearing. They were left hanging out there, twisting in the
wind, by a Republican majority that decided: We do not want to have to
stand up and say why we will not confirm these people because if we
have to talk about it publicly, everyone will see through us and it
will be demonstrated conclusively that this is not about the
Constitution or the law. This is about blocking well-qualified nominees
from a Democratic President from having lifetime tenure on the Federal
bench.
So, 63 qualified people were blocked. We have blocked 4 for a variety
of reasons. We have been publicly willing to go on the record and say,
for the world to hear, they are lemons. We cannot support these people.
They do not have the temperament, the quality that should sit on the
Federal bench.
I find this sad. That is the word I would use. Neutral, nonpartisan
experts agree that the Clinton administration judicial nominees were,
by and large, moderate, accomplished, excellent choices. What are we
given? We are given four people who, for a variety of reasons, are just
waving red flags. I understand that. This is not about confirming
judges. This is about exciting a base. This is about scoring political
points. This is about raking the money in. I can imagine the phones are
ringing over at the Republican Senate campaign headquarters. They are
making so much money today because they have their hard-core base
sending those dollars in. Keep standing up there, keep fighting. But I
venture a guess that even a majority of those folks do not know the
facts. They certainly are not going to get it from what is said on the
other side of the aisle.
It is sad, it is kind of heart breaking, actually. We had an
opportunity during the 8 years of the Clinton administration to
nominate 63 well-qualified people, none of whom were given the decency
of fair treatment. It was done under the cloak of secrecy. It was done
behind closed doors. It was done with anonymous holds. It was done with
no committee hearing being scheduled. You can go through the individual
accomplishments of these people, and it is stunning how well qualified
they were. You can look at the names. I know many of these people.
Republicans blocked 15 times more judicial nominees of President
Clinton than have been blocked here. It has been a little difficult for
many on this side of the aisle to explain to our constituents why we
did not block more of them. A lot of the people who got through in that
168 were people many Members would prefer not to be on the bench, but
we could not stand up in public and say why we would vote against this
person, so we voted for them. When it comes to the four we blocked, we
have more than ample reason.
I regret the majority has chosen to politicize this important
process. I regret that they have chosen to ignore history and to
distort the facts. I regret they would decide to spend time on these
matters instead of the many important issues that confront our Nation
and our world. We have a lot of big challenges around the world. I am
personally concerned about what is happening in Iraq, what is happening
in Afghanistan. I wrote to the Secretary of Defense yesterday because
of reports about potential threats from al-Qaida to hijack cargo
aircraft and fly them into nuclear powerplants. We have a lot of very
difficult issues facing us. But instead, my friends on the other side
want to rewrite history, want to ignore the well-qualified people they
[[Page 28720]]
blocked through every maneuver, faint, and incredible behind-the-scenes
stealth they could come up with.
I will now yield the remaining time on our half hour to my good
friend and colleague, Senator Schumer, who has been a champion on this
issue.
Unanimous Consent Request--S. 1853
Mrs. CLINTON. Before I yield, I ask unanimous consent the Senate
proceed to legislative session, the Finance Committee be discharged
from further consideration of S. 1853, a bill to extend unemployment
insurance benefits for dislocated, displaced workers; that the Senate
proceed to its immediate consideration, the bill be read the third time
and passed, and motion to reconsider be laid upon the table.
Mrs. HUTCHISON. Mr. President, reserving the right to object, I ask
consent that the Senator modify her request so that just prior to
proceeding as requested, the three cloture votes be vitiated, the
Senate would then immediately proceed to three consecutive votes on the
confirmation of the nominations, with no intervening action or debate.
The PRESIDING OFFICER. Will the Senator from New York modify her
request?
Mrs. CLINTON. No, Mr. President.
Mrs. HUTCHISON. Then I object.
Mr. REID. Mr. President, before the junior Senator from New York
speaks, I want to spread on the record the entire Democratic Caucus's
appreciation for his stalwart service during the last many hours. The
Senator has been here now for his fifth shift. On behalf of all the
caucus, I extend my appreciation.
Unanimous Consent Request
Mr. REID. I ask unanimous consent the Senate stand in recess today
from 4:15 to 5:15 so we can all go upstairs and find out what is
happening from Ambassador Bremer, our No. 1 person in Iraq on the war
in Iraq. It seems to me the fact that we talked 23 hours instead of 24
hours should not have any bearing on the outcome of the proceedings,
but it would help every Senator, Democratic and Republican, to be able
to give their full attention to the proceedings in the secret room
upstairs. I so move.
Mrs. HUTCHISON. Mr. President, reserving the right to object, I
certainly understand the sentiments of the distinguished deputy leader.
We do all want to be able to do that, and we will be able to go in
shifts. All Members are very interested in what is going on and very
pleased that there is action by the United States to make sure that we
do everything possible for the stability of Iraq. But we are in a very
important debate. We are debating a constitutional issue. I would have
to object.
The PRESIDING OFFICER. The objection is heard.
The Senator from New York.
Mr. SCHUMER. Mr. President, I thank all of my colleagues for the
debate. I repeat something I have repeated in the five other times I
have been here. We have had a lot of talk, a lot of palaver. But this
one sign, this one chart is more persuasive than everything that has
been said. No one, except a far-right militant, extreme minority,
believes that the courts are obstructed when 168 judges are approved
and four are not approved. Say whatever you will, that fact is
transcendent. That fact is dominant.
I thank my colleagues on the other side for giving us the opportunity
to repeat it over and over.
Now, we have been engaged in a lot of sophistry, a lot of arguments
that do not make a difference. The lead argument is that there should
not be filibusters. Last night, I talked at some length about all the
filibusters that have gone on before. By the way, if you believe that
the Constitution prohibits filibusters, you certainly believe it
prohibits them not only for the judicial branch but the executive
branch. Of course, that would be interpreting the Constitution because
there are no words in there that say it. So my colleagues on the other
side who are so worried about those who expand the law are doing it
themselves.
I make another point today. We have heard this morning a little bit
of a shift in the themes from my colleagues. Majority should rule. Just
give them a vote. That is all we want, they say. If we want to give
every nominee a vote, how is it different preventing the vote by
speaking on the Senate floor or preventing the vote by refusing to
bring the nominee up in the committee?
Did Annabelle Rodriguez get a vote? All she wanted was a majority
vote. No. Did Clarence Sundram or John Bingler or Robert Freedberg or
Lynette Norton or Legrome Davis or Robert Raymar or Robert Cindrich or
Stephen Orlofsky get a vote? Nope, these are President Clinton nominees
who were not brought before the committee.
What is the rule? That when the President nominates someone, all the
other side is saying is, majority vote. Here is a list of 63 people who
did not get that majority vote. If the Constitution is telling us every
nominee should get a majority vote, why didn't it apply to these 63 as
well as those 4?
And one other thing my learned colleague from Texas got up and said,
hypocrisy is when you did one thing 10 years ago and do a different
thing now. These were not 10 years ago; these were 5 years ago. I would
ask but he is not here. Is it hypocrisy for the members of the
Judiciary Committee on the other side, who never called these people
for a vote, who deprived them of the principle of a majority vote, not
to bring them up and now complain they want a majority vote for these
four? I am not sure either measures up for hypocrisy. That is a strong
word. But what is good for the goose is certainly good for the gander.
The whole issue of majority vote----
The PRESIDING OFFICER. Time controlled by the minority is consumed.
The Senator from Pennsylvania.
Mr. SPECTER. While the Senator from New York is on the Senate floor,
I ask him to respond to a question, and that is, Does he consider this
Senator a far-right extremist militant?
Mr. SCHUMER. Is this on the time of the Senator from Pennsylvania?
Mr. SPECTER. Yes.
Mr. SCHUMER. Please repeat.
Mr. SPECTER. It was argued a few moments ago with a chart, 168 to 4
that only ``a far-right extremist militant'' would say that was an
insufficient record.
So my question to the Senator from New York is, Do you consider Arlen
Specter a far right extremist militant?
Mr. SCHUMER. I do not, in answering his question. But sometimes he
has occasional lapses in his very fine judgment. And this is obviously
one of those.
Mr. SPECTER. Well, I do not know how the Senator from New York can
say there is a defect in judgment when I have not asserted anything
yet. All I asked, Mr. President, was a question as to whether he
considered Arlen Specter a far right extremist militant. And he said,
no, but sometimes there are lapses in my judgment.
I will ask a followup question to the Senator from New York. In the
absence of any assertion or statement of judgment, where are the lapses
in my judgment at the moment?
Mr. SCHUMER. I will say to my colleague, I heard him speak on this
before, and when it comes to the issue of judicial nominees, where my
colleague has usually quite good judgment, in recent months he is sort
of edging way over to the right side, for reasons I am not sure of. But
his normally sound and moderate judgment, in my judgment, when some of
these nominees came up, has abandoned him, at least in this moment.
I say to my colleague, any nominee who believes that Lochner--and my
colleague is very erudite, so I do not even have to describe to him
what it is--who says that Lochner was correctly decided does not belong
on the bench, in anyone's book, and, my guess is, really in his heart
of hearts, does not belong on the bench in the book of the Senator from
Pennsylvania. I know he will dispute that, but seeing his record, I
have admired his record. And a judge who believes that property rights,
that zoning is taking----
The PRESIDING OFFICER (Mr. Bunning). The Senator from Pennsylvania
has the floor.
Mr. SCHUMER. I was responding to the question.
[[Page 28721]]
Mr. SPECTER. Mr. President, I do thank you for your intervention. I
had not wanted to interrupt the Senator from New York by calling for
regular order, which would be in order when the comments go beyond--far
beyond the scope of the question. But I thank the Chair for his
intervention.
I would ask the Senator from New York another question, and ask him
to be as restrained in time as he can be because we only have a half an
hour, for I was concerned the last answer might use up the entire half
hour.
When the Senator from New York made the comment that he questions my
judgment, did he disagree with my judgment when President Clinton
nominated Berzon to be a Court of Appeals judge for the Ninth Circuit
and I joined with Democrats to get her confirmed?
Mr. SCHUMER. As I said--and I will try to be brief; and I know
neither the Senator from Pennsylvania nor I is known for brevity on the
floor----
Mr. SPECTER. Mr. President, that calls for a yes or no answer.
Mr. SCHUMER. As I said, normally I think the judgment of my colleague
is a good one. Berzon, in my judgment, the nomination of Judge Berzon,
she was quite far to the left. But I spoke about this last night. I
believe, at least, because President Clinton, by and large----
The PRESIDING OFFICER. The Senator from Pennsylvania is not
privileged to ask a question of the Senator absent consent. The regular
order is that the Senator from Pennsylvania has the floor.
Mr. SCHUMER. I ask unanimous consent that he be allowed to continue
asking me questions.
Mr. SMITH. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. SMITH. I would like to speak.
Mr. SPECTER. Mr. President, the Senator from Oregon will have time to
speak. We are in a 30-minute sequence. I would follow up the question
to the Senator from New York: Did he disagree with my judgment on
agreeing for the confirmation of Judge Paez, along with the Democrats,
nominated by President Clinton?
Mr. SCHUMER. Mr. President, there was no--do we have unanimous
consent? I did not hear.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, I withdraw the question.
The PRESIDING OFFICER. You withdraw the question.
Mr. SPECTER. We will proceed with the debate.
The PRESIDING OFFICER. Thank you.
Mr. SPECTER. We have quite a number of people here who are already
prepared to speak, and we will go on in regular order. But I asked the
Senator from New York those questions because I think his assertion,
when you hold up the chart with 168 to 4 and then say that only a far
right extremist militant would question that, is grossly in error. I
sought to illustrate it by asking the question as to whether Arlen
Specter fits that bill of a far right extremist militant.
The reality is that the 168 to 4 does not tell the picture. It is a
misconstruction. Beyond the 4 who have been rejected by the filibuster
by the Democrats, there are 5 others who are currently being
filibustered; there are 14 others pending where the filibuster is
imminent. President Bush has had only 63 percent of his appellate
judges confirmed, whereas in similar circumstance for the past three
Presidencies, there have been 91 percent confirmed.
So the chart, which has been seen more often than the most activist
commercials, simply is misleading. These filibusters have gone very
deeply into the heart of the nomination power of the President. The
tradition has always been that the President gets substantial latitude
in selecting judicial nominees. And where you have a challenge in
ideology, the Democrats have, in this proceeding, gone to a new level
in filibustering circuit judges. It simply has never been done before.
Last night, the Senator from Illinois made a comment that all the
Republicans were doing here was theater. And I spoke shortly
thereafter, and I agreed with him that this is theater. But it happens
to be factual theater, and the theater is being utilized for a very
important purpose; that is, to acquaint the American people with what
is happening in the Senate on the politicization of judicial nominees.
I outlined in some detail yesterday, and will summarize it only
briefly, the business of it being difficult when the party in the White
House is different from the party in the Senate, which is what happened
during the last 2 years of President Reagan's administration, and all
of the administration of President George Herbert Walker Bush, where
the percentages were very low. Then, in the first 2 years of President
Clinton's administration, the percentages were high because he had a
Senate controlled by his own party. And when President Clinton made
nominations in the last 6 years, the percentages again were low. So the
fault has been attributable to both parties when one party controlled
the White House and the other party controlled the Senate.
But what has happened here more recently has been a new low. It has
been a new low because for the first time there has been a filibuster
of a circuit judge, which had never happened in the preceding 216 years
of the Republic. And what we are doing here in this marathon--aptly
named; it is not a filibuster, it is a marathon--is to call the
attention of the American people to what has happened.
I related the filibuster sequence back in 1987, which is worth
repeating, because it illustrates the point about how these proceedings
are effective in telling the American people what is going on.
In 1987, there was a filibuster by Republicans on campaign finance
reform. Senator Byrd was the leader of the Democrats. At about 2 a.m.--
one early morning--Senator Dole, the Republican leader, called us all
back into the cloakroom, a few feet to the rear of where I stand now,
and said he would request that no Republican Senator go to the floor,
so as to compel the Democrats to maintain a quorum--51 Senators--
because in the absence of a quorum on the floor, any Senator may
suggest the absence of a quorum and then there is no further business
to be transacted.
Senator Byrd then responded with a motion to arrest absent Senators,
and the Sergeant at Arms, Henry Giugni, was armed with the warrants of
arrest. The Sergeant at Arms started to patrol the halls, and the first
Senator he found was Senator Lowell Weicker. Sergeant at Arms Henry
Giugni was about 5 feet 6 inches and 150 pounds. Senator Lowell Weicker
was 6 feet 4 inches and 240 pounds--in fact, still is 6 feet 4 inches
and 240 pounds. The Sergeant at Arms decided not to arrest Senator
Weicker, which I think was a wise decision.
I note the Senator from Connecticut, Mr. Dodd, smiling. He was
Senator Weicker's colleague at the time from Connecticut and I think
would confirm the wisdom of not arresting Senator Weicker.
So then the Sergeant at Arms started to knock on Senate doors. It is
interesting how, when you tell a story, there is so much more attention
paid to what is going on. People are snoozing here generally during
this marathon.
At any rate, Henry Giugni went to knock on doors, and he knocked on
Senator Packwood's door, and Senator Packwood foolishly answered the
door. Then Senator Packwood was carried, feet first, in through that
door. I was in the Chamber at the time. They carried him feet first.
This is a true story. You do not get many true stories out of
Washington, but this is a true story. Even the pages think it is funny.
It was really funny that night. It attracted a lot of attention. And
that is what we seek to do here today, is to attract attention, because
if the American people focus on what is going on with this filibuster,
of the politicization of the judges, we think we can end it. And we are
trying to make C-SPAN the channel of choice, to replace Jay Leno in the
late hours.
There are many people who are surfing as we speak. It is amazing how
many people will even watch C-SPAN or get to C-SPAN inadvertently in
[[Page 28722]]
surfing. And I would urge them to continue to listen because what is
happening here is substantively important, and I think even more
interesting than the soaps, or at least stay tuned for the next 20
minutes, until after Senator Smith and Senator Sununu have had an
opportunity to speak.
I want to cover one other subject very briefly before yielding to my
colleagues, and that is the subject of the quality of the nominees who
have been filibustered. I will cite only one in the interest of time,
and that is Miguel Estrada.
This is a young man who was born in Tegucigalpa, Honduras. He came to
the United States as a teenager. Really, it is the great American
story. He went to Columbia, where he was Phi Beta Kappa and magna cum
laude, and that is a considerable achievement. He then went to the
Harvard Law School where he was magna cum laude and on the Harvard Law
Review. That is a unique achievement.
He then was a law clerk to two distinguished Federal judges, one of
whom was on the Supreme Court of the United States. He then had a
distinguished career as a practicing lawyer. Then he went to the U.S.
Attorney's Office in the Southern District of New York. And I can tell
you from my own experience as an assistant DA, that is a very valuable
experience. Then he was an Assistant Solicitor General and had really a
remarkable record.
He was rejected by the Democrats on a filibuster and ultimately
withdrew, and it was really because he was potentially a Supreme Court
nominee. And the reasons given: the reasons were that he was a stealth
candidate. But any fair analysis of his responses to other nominees'
would demonstrate that he answered the questions at least up to the
standard level, and then the Democrats objected to his nomination
because he refused--the administration refused to turn over memoranda
he had written as an Assistant Solicitor General. But if those
memoranda are to be turned over under that circumstance, every lawyer
who is an Assistant Solicitor General or an assistant DA or in any
legal position would be chilled by the prospect of having such
memoranda disclosed at some time in the future when that individual was
subject to the confirmation process.
Now, it is my hope that these proceedings will produce something
useful by way of focusing the attention of the American people.
I was on a radio program in Fargo, ND, for about 25 minutes earlier
this morning, and these ideas have been spread across the country. It
is my hope that the American people will communicate with the Senators
on both sides of the aisle, both Republicans and Democrats. I think
when the American people focus on this issue, there will be great
pressure to change, to take politics out of the selection of Federal
judges.
I now yield to my distinguished colleague from Oregon, Senator Smith.
I ask the Senator, how much time would you like?
Mr. SMITH. Ten minutes.
Mr. SPECTER. Done.
Mr. President, how much time remains?
The PRESIDING OFFICER. Thirteen minutes 20 seconds.
The Senator from Oregon.
Mr. SMITH. Mr. President, for those of you who may still be watching
this debate, I know the suggestion has been made by our friends on the
other side that essential work is not being done. This time, I assure
you, what is being done is a lot of work, and it is being done
currently in conference committees.
What we are doing here, I think, is also very important. In terms of
dialog and debate in our democracy, we have an important issue before
us. You have seen the sign. It says: 98 percent. All these judges have
been confirmed. It is important not to get locked into that number
because what is being missed is whether we are upholding our oath to
the Constitution only 98 percent of the time or 100 percent of the
time.
In my view, my reading of the Constitution, it is that
supermajorities are provided for in our Constitution in cases of
Presidential vetoes, expelling a Member, and other areas.
Mr. President, I listened to my friend from Connecticut last night.
He made a very good speech. He talked about his boyhood and sitting
here in the time of his father. I am sure he was listening to great
civil rights debates, and the filibusters went on and on in terms of
civil rights.
But I will tell you, based on my reading of the recent book on Lyndon
Johnson's life, by Robert Caro, ``Master of the Senate''--central in
the fight among Democratic southerners and Democratic northerners,
along with Republican northerners--there was the frustration over the
issue of the filibuster. Hubert Humphrey and Clinton Anderson of New
Mexico repeatedly began each session trying to change the rules on
filibuster because they knew if they could not change them, then
Senator Russell would make it impossible for them to break the veto and
deny the African-American community civil rights in this country.
What is the difference between that fight over a filibuster when it
comes to a legislative issue such as civil rights versus an executive
appointment or Executive Calendar issue such as we are dealing with
today?
Well, I suggest that what has happened ever since the defeat of
Robert Bork is each side is upping the ante and we are exalting now
single-issue politics in our country in a way that I think truly
disserves our country.
There is an old maxim in the law that justice delayed is justice
denied. It is a fact that many justices or judges have been confirmed,
but the real potential exists not just to delay justice--and thereby
deny justice--but to dumb down justice in our country. Let me tell you
why I believe that this could happen.
Right now, we are seeing the winnowing out of anyone in the law who
is learned, well written, well spoken, and whose views are well
revealed to the American people. I remember as a new lawyer listening
to the debate in the Senate over Robert Bork. I remember as a law
student, prior to that, particularly enjoying the writings of Laurence
Tribe and Robert Bork. These two great legal scholars would debate in
their writings over the word ``liberty'' and the proper role of judges
in enforcing and providing for liberty.
You couldn't find two scholars with more polar opposite positions
than Tribe and Bork. But, I loved their readings. I had the feeling
when I would read them that I was a part of the contest of ideas. I
remember the feeling when Robert Bork was defeated that, doggone it, I
would sure have given them Laurence Tribe if they would have given us
Robert Bork. Because I knew the writings of our country's legal
journals would be all the better if the judiciary could attract the
best and the brightest.
Now we are saying as the Senate, if you have strongly held views, you
had better check them at the door. And, if you don't do that, you had
better not expose them. We are saying to the judicial branch of
Government--we, the Senate, the legislative branch--we don't want the
best and the brightest; we want the mediocre, we want the mushy middle;
we want those who are just going to go along and get along.
I think we also disserve the marketplace of ideas when both parties
ratchet up these politics. This is what has happened. The difference
between the filibuster as it relates to the Legislative Calendar and
the Executive Calendar is simply that we, the legislative branch, are
now attacking the judicial branch.
American justice will be the poorer for this because, you watch, when
we have a Democratic President and a Democratic majority in the
Senate--this will happen again--watch the filibusters come up. That is
unfortunate because we have elections for a reason. This is an ebb and
flow in American politics that is important.
Am I suggesting we get rid of filibusters? I am not, but I am
suggesting we have escalated this too high. I believe we are exacting
single-issue politics, I believe we are delaying justice, and I believe
we are dumbing down justice in America.
The unspoken word here is the single issue of a woman's right to
reproductive choice. The word is ``abortion.''
[[Page 28723]]
Every one of us has wrestled with that issue. I truly believe and I
understand why a woman doesn't want the Government part of such a
decision. I also believe there are times when life is so viable and so
obvious that the law ought to protect that life.
As I looked in the mirror and then presented myself to the people of
the State of Oregon, I had to say: You know, I am pro-life. I am pro-
life with exceptions, but I am pro-life. My State is pro-choice. But,
they had a right to know my position. I told them. Ultimately, I was
elected anyway. I promised them I would not have a single-issue litmus
test on judicial appointments.
I am here to tell the people of Oregon, I have kept that promise. I
voted for President Clinton's nominees who were pro-choice because I
believe we should not let single-issue interest groups rule the day on
an issue so constitutionally fundamental to the future of justice in
our country. But that is what is happening here. That is why this time
is so important, that we spend it debating and hopefully resolve this
issue.
Mr. President, I will not take more time. My colleague, Senator
Sununu, deserves to be heard.
I pray, I plead, I hope we can get beyond this as it comes to
executive appointments, the Executive Calendar, because we are
disserving America with this process that has now ratcheted up to a new
level that is constitutionally dangerous.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SUNUNU. Mr. President, I very much appreciate the remarks of my
colleague from Oregon and in particular the emphasis he placed on what
the tone and the tenor of our current debate on nominees could mean for
future nominees, for future qualification of those who might be
interested in serving on the bench.
As elected officials, we talk all the time about tenor in politics,
big media, and advertising campaigns, and all the rest that a modern
campaign involves, and the way in which the introspection and
intrusiveness of that process discourage good people from running for
office.
Anyone who has ever spent time looking at the political process is
aware of that concern. It doesn't matter if you are running for the
Senate or not; you could be running for school board or mayor or
dogcatcher, for that matter; but people understand that there is a
level of intrusiveness, an invasion of personal life, that discourages
good people from running for office.
There is not much we can do about that as a Senator, as an elected
official, but there is something we can do about this process, the
judicial nomination process, the vetting process, the approval process.
If we allow this current tone and tenor to remain, then, as the Senator
from Oregon has described, we will not only discourage good people from
wanting to serve on the Federal judiciary to bring their judgment and
intellect to bear, to help provide justice to those who deserve and
need justice, we will even discourage people from engaging in debate,
from putting their ideas out on the table, from writing, from thinking
about different ways to look at or evaluate the law.
I am not a lawyer. I am about as far from the law as one can get. I
am an engineer by training, and I am proud of that fact. I understand
the value of creativity, innovation, and debate, and the marketplace of
ideas. When we have Members of the Senate come to the floor and say: I
am voting against someone because I don't like the way they decided a
case, that raises a red flag for me. If there is a specific case and a
specific issue and you truly believe the way they decided the case
means they are not capable, they are not fit, they are not qualified,
that is fine, but let's not suggest for a minute that we will ever or
should ever seek to find candidates who agree with us on every issue on
every legal point.
My constituents back home won't agree with me on every issue anytime.
I don't think there is a member of my family who agrees with me on
every issue. And we certainly shouldn't accept that kind of bar for our
judicial candidates. What we should look for are qualifications of
experience, intellect, or a sound, consistent case record.
I think we have moved away from that. When we have nominees who have
the support and endorsement of every paper in their State, liberal or
conservative, or we have nominees for the judiciary who have received
the support of 70 or 75 percent of the people in their State, liberal
and conservative, or we have nominees who have demonstrated time and
again, as we do, their commitment to uphold the law as written
regardless of their own point of view, I think these nominees deserve
the fairness of an up-or-down vote, and that is ultimately what I think
is at stake here.
We can look at the numbers and discuss whether or not there has ever
been a cloture vote at a particular time or a particular place on a
particular nominee, and we have had cloture votes before, but what is
different about the current debate is that cloture votes have never
been used in a partisan way to prevent a nominee from getting that up-
or-down vote on the floor. It certainly hasn't been used on the past on
four, five, six, seven, or eight nominees. It is that process that I
think has Members of this Senate, Democrat and Republican, and the
public very frustrated.
Technically, is it within the right of the minority to force these
cloture votes? Sure. It is not a question of whether it is technically
within the right of a Member of the Senate or the minority to engage in
this kind of obstruction. The question is, Is it the right thing to do,
is it the fair thing to do?
Ultimately, it is important that we take a stand as to whether or not
we believe it is right. I certainly do not. And ultimately the public
will also be asked to decide whether they think this is appropriate
behavior for their Senators and for their leaders in Washington, DC.
I yield the floor.
The PRESIDING OFFICER. The majority time has expired.
Mr. SPECTER. Mr. President, that is what I was about to inquire. I
thank the Chair.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Ms. STABENOW. I thank the Chair.
Mr. President, every debate we have in the Senate comes down to a
question of values and priorities for all of us, how we spend our time
personally, how we spend our time in the Senate, where we choose to put
our efforts.
I wish to speak today about where I believe we should be putting our
efforts if we are going to spend 30 hours of time speaking on the floor
of the Senate.
First, I remind colleagues again, lest we get lost in all of the
discussion of what we are talking about, we have, since I have been in
the Senate, approved 168 judges. We have confirmed 168 judges, and we
have said no to 4--168 to 4. Almost every one of those 168 I voted for.
We are talking about four people who currently have jobs who want to
be promoted to lifetime positions as Federal judges. What I would like
to spend my time talking about today are the 3 million people who don't
have jobs. Three million Americans have lost their jobs during this
same time period, in the last 2\1/2\ years.
What I want to spend my time speaking about are the 162,000 people
and more who have lost their jobs in the great State of Michigan, most
of those in the manufacturing sector.
I am very proud of the fact that Michigan is first in the Nation in
the manufacturing of automobiles. About 31 percent of all of the
automobiles that are made in this country and almost 17 percent of all
the trucks made in this country are made in the great State of
Michigan.
I am proud of the fact that we produce about half the office
furniture. Three leading office furniture manufacturers in the Nation
are based in Michigan. I am proud of our tool and die makers. I am
proud of everyone in our small manufacturing businesses. Most of our
businesses are very small with under 20 people in auto supply and in
the tool and die industry. I know they are under severe crisis today.
[[Page 28724]]
We are under severe crisis in Michigan and in this country as it
relates to our manufacturing economy. That is worth 30 hours of debate
on the floor of the Senate. That is worth 30 hours of action on the
floor of the Senate.
We cannot afford to lose our ability to make products in this
country. That is what we do in Michigan. I am proud of the fact that we
make products, we grow products, and we do it well. Give us a level
playing field for our businesses and our workers, and we will compete
and win. That is not happening, and I am deeply concerned about the
stories after stories I have heard.
I wish to share a couple stories today. I look at the headlines:
``2,700 jobs in danger as Electrolux considers closing Greenville
refrigerator plant.'' This is in the Grand Rapids Press:
Electrolux Home Products announced today it may eliminate
2,700 jobs at Greenville refrigerator plant and shift
production to Mexico.
That is all too common a headline, and it is something that is going
on in Michigan.
Such a move would be a huge blow to the city of Greenville
and Montcalm County, where Electrolux and its predecessors
have long been the largest employers and among the largest
taxpayers.
That is what we should be talking about: What is happening in
Greenville and Electrolux.
``Ford sets a timetable for plant closings. Revitalization plan
called for cutting 35,000 jobs.''
Ford Motor Co. will close plants in Ohio and Michigan by
year's end and another in New Jersey in the first quarter of
next year.
It goes on:
Another factory in Ohio will end production in the next
four years.
Not four people who already have jobs, but people who right now are
working hard every day, 9 to 5 or longer, to earn a paycheck so they
can have a good-paying job in the United States of America and send
their kids to college, to afford their health care, to afford their
house, maybe a cottage up north, which is something we like to do in
Michigan, maybe a boat, maybe a snowmobile--those things that allow a
good quality of life in our country. We are in danger of losing that
when we lose manufacturing jobs.
``Straits Steel closing sad news for plant's 180 employees.'' This
comes from Ludington.
We read in the Lancing State Journal: ``Jobless rate could rise in
the winter.'' There is more concern about what happens when we lose
construction jobs in the wintertime.
I receive a lot of letters from people writing me and asking for
help. They would love to see us spending 30 hours on the floor of the
Senate not only talking but actually doing something to save their jobs
and to support our manufacturers.
I would like to read you just one letter from Walker, MI:
I am writing to you in the hope you will read my letter.
What I want to write you about is how much of our industry is
disappearing. Factories continue to close or lay off. Often
they leave the State and, even worse, they leave the country.
A lot of these are American companies, like Lifesavers plant
in Zeeland.
Yes, we need bankers, lawyers, doctors, and computer
consultants. I am one. But that is not our strength. Our
strength is in our industry, in our farms, in our shops. I
live in Grand Rapids, MI, and I see a lot of construction,
but it is all retail and restaurants. How can we continue to
grow if we are all making only $8 to $10 an hour? Most of the
time you can't even make that. Henry Ford knew that he had to
pay his employees a living wage so that they could afford to
buy his cars.
There is story after story coming from the State of Michigan, across
the Midwest, and all across our country. They are asking for our help.
With over 3 million jobs that have been lost--3 million, not 4--3
million jobs that have been lost, what is the response of the
administration? We have had to fight to stop them from taking people's
overtime pay. Can you imagine, 3 million people lose their jobs and
what is the response? Take away the other people's overtime pay.
Then we have to fight to extend unemployment compensation for the
people who have lost their jobs and are having difficulty finding new
jobs. Of deep concern to me is what is happening as relates to a lack
of a level playing field in China and Japan and other Asian countries.
We know in the Banking Committee--and the esteemed Senator presiding
today I know has expressed concerns as well as to what is happening to
the currency manipulation in China and Japan. Effectively, we are
seeing a tax on American goods and services sold in China and Japan,
and they get a tax break here or a price break because of what they are
doing. We need a level playing field.
We asked the administration to do something; join us; we know it is
happening, and yet they refuse to step up and join us in the tough
efforts that need to happen to give our businesses the level playing
field they need to keep jobs in America.
We have seen a refusal to address the high health insurance costs. We
need to create more competition with pharmaceutical drugs. We need to
be working with our employers to lower health care costs, the No. 1
pressing issue that has caused layoffs, that has caused people to pay
more in deductibles and premiums and has caused businesses to struggle
to survive.
Let's talk about those issues that create jobs, that relate to our
ability to have a standard of living that we have been accustomed to
and deserve in this country. If people are willing to put in a day's
work, they ought to be able to know there will be a good-paying job
there so they can care for themselves and their families and they can
do those things that will allow them to have the best possible life in
this great country of ours.
Finally, we have seen a continual block over and over on the issue of
increasing the minimum wage. An awful lot of folks working for minimum
wage are women. They are women with children. They are working minimum-
wage jobs, most often without insurance. They are paying for daycare.
They are wanting to work and yet finding themselves in a situation
that, no matter how hard they try, working 40, 50, 60 hours, they just
can't make it because the minimum wage has not kept up.
So it is very concerning that we have seen a continual effort to
block a simple $1.50 increase in the minimum wage for 7 million people
living in the United States of America, who work hard and play by the
rules and assume that if they do that, they will be able to succeed and
care for their families. Seven million people need our help today with
a $1.50 increase in the minimum wage.
Thirty-seven percent of those folks right now are seeking emergency
food aid, and they are working. They are working, and yet they cannot
make it and are having to ask for food assistance. So we over and again
have asked for the support of our colleagues on the other side of the
aisle to address those 7 million individuals who work hard every day
and believe in America and want to be able to be successful.
So I am very hopeful that we will be able to do that.
Unanimous Consent Request--S. 224
At this time, I ask unanimous consent that the Senate now return to
legislative session and proceed to the consideration of Calendar No. 3,
S. 224, the bill to increase the minimum wage; that the bill be read a
third time and passed, and the motion to reconsider be laid upon the
table.
Mr. SMITH. Mr. President, I would ask that the Senator modify her
request so that just prior to proceeding as requested, the three
cloture votes would be vitiated, and the Senate would then immediately
proceed to three consecutive votes on the confirmation of the
nominations, with no intervening action or debate.
Ms. STABENOW. Mr. President, I would object.
The PRESIDING OFFICER. The Senator will not modify her request?
Ms. STABENOW. No.
Mr. SMITH. I would object.
The PRESIDING OFFICER. The objection is heard.
Ms. STABENOW. Mr. President, I am going to turn in a moment to my
esteemed colleague from Connecticut who has been in this Chamber time
and again, not only addressing the issue that brought us here but other
issues as well. He is someone who has been
[[Page 28725]]
fighting for those good-paying jobs. He is a consensus builder and
problem solver and somebody who knows how to get things done. I am very
grateful to be sharing this time with him today because of the
wonderful leadership he brings to the Senate and the way in which his
work has touched so many lives of people in Michigan as well as across
the country.
In conclusion, I end as I started by saying what we do around here
always relates to values and priorities. I hope we will choose to focus
our time and attention on those things that affect the most people in
our country, those things that are best to move our country forward and
to keep the economic engine moving forward for all of us, that will at
the end of the day allow us to say that what we did on the Senate floor
today gave people an opportunity to work hard and create a better life
for themselves and their families.
We are losing the manufacturing sector in this country. We need a
sense of urgency about that. We need to act to give our businesses and
employees a level playing field and address those issues that will
allow them to keep jobs in this country. I hope as we are debating
about 4 people, we will remember 3 million people who are counting on
us to act.
I now yield time to my colleague from Connecticut.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. Mr. President, first, I thank my colleague from Michigan
not only for her work today but her tremendous contribution in the
relatively short time she has been a Member of this body. We thank her
immensely for her very balanced and deliberate approach. I thank her
particularly for raising the issue she has today.
While the subject matter defined by the majority is the question of
judicial nominations, I think the point she has raised, that there are
an awful lot of people all across this country who are--while they may
be interested from an intellectual standpoint, even some maybe on a
more passionate level on the question of judicial nominations, there
are a significant number, the overwhelming majority, I think, of
people, if asked how they would like to see the Senate of the United
States allocate its time and resources, the Senator from Michigan has
identified a subject matter that is of far more compelling interest to
a larger number of people in this country, the issue of putting people
back to work; what has happened to the closure of so many small
manufacturing firms all across the United States that have seen their
products no longer marketable in this country and elsewhere because of
the onslaught of foreign products that have come in through misguided
and failed trading agreements we have reached, particularly with the
People's Republic of China and elsewhere.
So I thank her. I suspect there are an awful lot of people across
this country who appreciated the fact that she took 15 or 20 minutes to
talk about the 3 million people who over the last 29 months have lost
their jobs in this country and who are sitting there today wondering
whether or not they are going to be able to keep that home, whether or
not they are going to be able to afford their children going on to
college, whether or not if they get sick they will be able to pay for
that illness, if they had a job that provided health insurance for
them.
So I thank her and I suspect there are an awful lot of people across
this country who appreciate immensely her determination to see that
those jobs, not just the jobs of some people who were unable to have a
vote on the Senate floor to confirm them for a judicial nomination,
will be the consideration of this institution.
I must say as well, I appreciate my colleague's kind comments about
my efforts as a legislator. I try to take some pride in that. I think
my colleagues on the other side know this. I work very hard to maintain
my relationships with every Member. Regardless of what battle may ensue
today, tomorrow is a new day and I always reach across the aisle
wherever I can because I have never seen an issue in my 24 years here
that had any value and merit be accomplished without it being
bipartisan, ever. I defy any Member to mention a single issue of any
significance that was ever adopted by this body that was not bipartisan
in nature.
When we lose our ability to do that, we not only suffer as an
institution but the people we seek to represent suffer terribly. So it
is critically important that we make those efforts.
I have spent a lot of time over this last number of weeks trying to
get something done on asbestos reform. My colleague from Michigan and
my colleague from Oregon know of the efforts we made in this regard. It
is terribly worrying to me that we are about to end this session. We
have 700,000 lawsuits that have been filed for people who were exposed
or could get ill from exposure to asbestos. Seventy thousand cases are
being filed a year. There are major companies that have gone bankrupt
because of the problems with exposure and the liabilities as a result
of the asbestos issue. I would have hoped, maybe vainly, that we might
spend some time on an issue such as that, candidly. I noticed to my
colleagues the other day that while I voted against cloture on the
class action reform issue, I immediately took the floor to say I am
very interested in a class action reform bill and I am prepared to
support one. There were issues that needed to be worked out.
I know there are businesses all across this country that would like
very much to see us address the issue of class action reform. There is
nothing like 30 hours' worth of debate on class action reform. There
will be no 30 hours of debate on asbestos issues here, unfortunately.
So I say with all due respect--and I do respect my colleagues, all of
them--that it is a reflection to some degree of what your sense of
priorities is. There are a lot of issues that deserve attention, but I
would ask any average American to identify for me, when given the
choices to debate, whether or not we ought to do something about class
action reform, something about asbestos legislation, something about
joblessness, something about Medicare reform, prescription drug
benefits. I have seen nothing even remotely close to 30 hours of debate
in this Chamber on any of those issues at all--none, absolutely none.
So while we in the minority cannot set the agenda, the power of the
majority is the power to be recognized, and the power to be recognized
means you set the agenda. Even though our ranks are only separated by
two Members, the division of two Members makes it possible for the
majority to decide what this Chamber will do, what this institution
does, on a daily basis, on an hourly basis.
The majority, in their judgment, have decided that this issue, the
issue involving four judicial nominations, is far more important than
anything else on which this Congress, this session, with hours away
from terminating it, should spend its time and efforts.
I do not disagree that this is an important issue. I think it is an
important issue, particularly where we may be asked to vote on changing
the rules of the Senate to either eliminate or virtually eliminate the
right to filibuster judicial nominations. That is a profound question,
and I just regret that it ends up being debated at 2, 3, 4, and 5
o'clock in the morning and not something that ought to consume a
serious debate in this Chamber as to the wisdom of such a potential
move. I am not sure that amendment is going to be offered, or that idea
will be suggested to us by tomorrow, but I have been told it will. I
will come to that in a minute.
I do think it is important that people wonder whether or not this
body, or politics or Congress, ever gets it. One of the questions we
all face from time to time when we conduct our town meetings is: Do you
have any idea, Senator, what it is like to raise a family today, with
all the pressures we are under? Do any of you in Congress--I do not
care whether you are Democrats or Republicans--do you have any idea
what we are going through out here?
When we conduct 30 hours of debate about four judicial nominations, I
sometimes think that question has a lot of merit, unfortunately.
So I wish we were spending some more time on some of these other
[[Page 28726]]
issues. Maybe we will get to them. Hope springs eternal, and I will
keep trying to work on it. I have been asked to come and spend some
time to protect our interests on the floor and so I will utilize some
time, as I did last night, to talk about the issue at hand.
I am terribly disappointed that we are spending the time of this
institution on something such as this when we need to be spending our
time, what little time we have, on so many other questions, that so
many people in this country want to see us address and try to come up
with some answer for. They know it is difficult.
Look, what we love about this institution is also what galls us the
most about it. The beauty of the Senate is not only the manner in which
we do things but also the frustrations that are evoked as a result of
how we do things. Had the Founders of this great Republic sought
efficiencies, they never ever would have set up this system. The last
system you would ever set up, if you were trying to get the job done
expeditiously, is the one we have lived with for 217 years. This is a
terribly frustrating system. It will drive you to madness watching it
happen, particularly this institution of the Senate.
When the Framers were debating the existence of a legislative
branch--in fact, the idea was pretty much to have a unicameral system I
think in the early discussions: One house, simple majority rules. I sit
in the seat of a man by the name of Roger Sherman, from the State of
Connecticut, who was one of those Framers of the Constitution, the only
one of the Framers, by the way, to ever have signed all four of the
cornerstone documents of the United States. He signed the Articles of
Confederation, the Declaration of Independence, the Constitution of the
United States, and the Bill of Rights. I am very proud to sit in his
seat in the Senate, after 217 years.
In that Constitutional Convention, it was Roger Sherman, my forbearer
in this job, who suggested, along with Oliver Ellsworth from
Connecticut as well, the creation of a separate body in the Congress of
the United States that we have come to know as the Senate.
The argument was about small States and large States. The fear was,
for people who came from smaller States, that in the House of
Representatives, since it would be determined by population, large
States by population would so dominate the Congress of the United
States that those who lived in smaller States would be overwhelmed.
They were about to vote against the Constitution when Sherman and
Ellsworth came up with the idea of a Senate, where every State,
regardless of size, would have equal representation--two Senators from
every State.
My colleague from New Hampshire and I from Connecticut, small States,
we have two Senators; my colleague from Michigan, a large State, and
from California, two Senators. It is a rather beautiful system in a
way. They went beyond the idea of just small States and large States.
The seed of the notion that there ought to be a place where the rights
of a minority get protected was also included in this concept.
In the House of Representatives, in which I had the privilege of
serving for 6 years before coming to this body 24 years ago, the
majority rules. If you are in the minority in the House--I do not know
if my colleague from New Hampshire ever served in the minority in the
House, but I certainly did not; I was always in the majority there--
being in the minority in the House is painful because it can roll right
through you. What the majority wants to do happens. That is it.
In this body, the idea was to create a place where the minority
interests, including a minority of one, would have rights that you
would never get in the House of Representatives. Hence the right of one
Senator, if they stand up and can stand long enough and do not leave
the floor, to have the right not to be interrupted, extended debate;
the right to amend. It has been a wonderful balance. The rights of a
majority are down the hall. The rights of a minority are here in this
Chamber. We have tried over the years to see to it that those unique
rights give us a sense of balance, what one of the Framers called the
saucer--the Senate--in which the passions would cool, because the
tyranny of a majority can be overwhelming. So the Senate was a place to
say let's stop, let's take a look, let's think again about whether or
not this is the right way to go.
Now, if we go back and look at the genesis of the thought process
that was involved in the creation of the Constitution in this Republic,
a unique event in the history of mankind, certainly they had been
through an experience where a king had been overbearing. Remember, two-
thirds of the population of this country in 1776 was not terribly
enthusiastic about a revolution. Only about a third of the population
thought that was necessary. As the tyranny of a king grew larger and
people's rights were being deprived, taxations levied without their
ability to be heard, they decided: We need to move away from that.
So as this system evolved and a discussion of what it would look
like, the last thing the Founders wanted to do was create an executive
without some checks and balances on it, an unlimited tyranny of an
executive. In fact, as I pointed out last night, there is ample
evidence, of course, that when it came to judicial nominations, the
Framers did not want to give the right to nominate to the President. It
was only an afterthought that said, on judicial nominations, they ought
to go to the President, and then the Senate would provide its advice
and consent.
I carry with me every day a copy of the U.S. Constitution. It was
given to me by my seatmate Robert C. Byrd many years ago. It is a
rather worn-out copy of this wonderful document, but I carry it with me
7 days a week. I read it constantly. As I get older, my appreciation
for the wisdom of these people grows deeper.
It is very clear article III of the Constitution lays out judicial
power, the judicial part of it. It says that people are appointed to
the courts, supreme and inferior courts, and they will serve for life,
during good behavior for life. It is unique. It is the only office in
the country where one gets a lifetime appointment. The President does
not. Members of Congress do not. A Federal judge gets a lifetime
appointment. If you are appointed when you are 35 years of age and you
live to be 85--50 years--unless you do something terribly wrong, you
are there; you are not going anywhere.
Of course, in article II, they lay out in section 2: He--speaking of
the President--shall have the power, by and with the advice and consent
of the United States Senate, to make treaties, and so forth. It goes
on. And by and with the advice and consent of the Senate shall appoint
ambassadors, other public ministers, and so forth, judges of the
Supreme Court, and all other officers of the United States.
Does anyone really believe for a single moment that the Framers of
this unique document intended that the President, the executive branch,
would appoint and that it was then the duty of this body to just
rubberstamp that choice? Of course not. In fact, they did not even want
to give him the power to appoint to begin with because they were uneasy
about someone having too much power in their own hands.
I suspect our predecessors probably had in mind what some of the more
recent predecessors did with postmasterships.
I remember my father talking about the postmastership appointment. He
used to say that this was a dreadful idea, to give Senators the right
to appoint postmasters, because he said inevitably you would have about
100 applicants for the job. Of course, once they were confirmed, they
could never get involved in politics again. So he used to say you would
end up with 99 enemies who did not get the job and 1 ingrate who did
who could never talk to you again.
I suspect that may have been true as well about Federal judgeships,
that our colleagues in the Senate, in the earliest days, probably said:
Look, we do not want the business of having to nominate these guys
because inevitably we are going to pick someone and the other guys are
people who are
[[Page 28727]]
going to be upset with us. So why do we not give that to the President,
let him appoint them, and then we will decide whether or not they
deserve to be confirmed.
The notion somehow that one has a constitutional right to a vote--I
have read this document; I read it every day--there is nowhere in this
document one gets a constitutional right to a vote on anything, any
more than the American people have a right to a constitutional vote on
the minimum wage or on Medicare reform or any other matter I want to
bring up. There is no constitutional right to that. There is certainly
no constitutional right that if one gets nominated to be a judge, they
have a constitutional right to be voted on. Nowhere does the
Constitution give someone that, in any area whatsoever.
The idea somehow that we would only apply a filibuster to legislative
matters and not judicial nominations, so one can filibuster a sense-of-
the-Senate resolution----
The PRESIDING OFFICER. The time of the Senator has expired. The
Senator's half hour is up.
Mr. DODD. I thank the Chair very much. I apologize to my colleagues
for going a little bit. I appreciate the indulgence of the Chair.
The PRESIDING OFFICER. Does the Senator from Alabama seek
recognition?
Mr. SESSIONS. Mr. President, the Senator from Alaska is prepared to
speak.
The PRESIDING OFFICER. The Senator from Alaska is recognized.
Ms. MURKOWSKI. Mr. President, I thank the Senator from Alabama for
this opportunity.
I join today with my colleagues in the Senate to address the judicial
confirmation process and really the procedural quagmire in which we
find this body right now. I take very seriously my obligation under the
Constitution to provide the advice and consent to the judicial
nominations of individuals who are nominated by the President to serve
on the Federal bench. I have heard repeatedly over the hours the term
``rubberstamp,'' there is a rubberstamp approval. Those on my side of
the aisle would automatically take the President's nominees. I do not
take part of my job to mean that my vote is intended to be a
rubberstamp of approval for the President's nominations to these
critical judicial positions.
I am frustrated that after serving in the Senate for almost a year,
and contrary to what some Members may assert, the Senate has not been
permitted to vote up or down on the merits, on the qualifications of
the individuals who are embroiled in this current dispute. Rather, we
have been prevented, I have been prevented as a Member of the Senate,
as an individual, from voting for or against a nomination by a
legislative procedure, legislative procedural rules unique to this
body.
We are engaged in the Senate in a historic session for not quite 24
hours, during which time we have heard about the nomination process,
the qualifications of certain individuals to be Federal judges, the
need for jobs, unemployment issues--a variety of compelling,
interesting significant issues. I bring to this debate this afternoon a
new issue and explain why legislation I have proposed, along with
several other colleagues of the Senate, to split the Ninth Circuit
Court of Appeals, why this is relevant and important to the debate
today.
The Senate has debated the qualifications and character of specific
individuals to serve on the Ninth Circuit. As some would argue, by
invoking the Senate procedures to filibuster the current judicial
nominations, those on the other side of the aisle are simply trying to
ensure the balance or the mainstream ideology on the U.S. court of
appeals.
But there is little doubt in my mind they seek to maintain what I
perceive to be philosophical bias on the Ninth Circuit Court of
Appeals. For those looking for circuit courts whose actions may raise
concerns about ideology and balance, I suggest my colleagues take a
close look at the U.S. Court of Appeals for the Ninth Circuit. In the
makeup of who is currently serving on the Ninth Circuit, the court
currently has 9 judges appointed by Republican Presidents and 17 judges
appointed by Democrat Presidents. I will put the Ninth Circuit record
into a historical precedent, a recent historical precedent.
During the United States Supreme Court October 1996 term, the Supreme
Court found it necessary to review 28 cases decided by the Ninth
Circuit. These cases from the Ninth Circuit made up approximately one-
third of the Supreme Court docket despite the fact that the Supreme
Court has jurisdiction over 11 other Federal circuits and over Federal
questions decided in courts of all 50 states.
Of those 28 Ninth Circuit cases back in 1996, the Supreme Court
reversed 27. Some could argue this reversal rate is simply the impact
of a more conservative Supreme Court disagreeing with the Ninth Circuit
on close questions. However, most of the reversals were unanimous. In
fact, six were summary reversals. The Supreme Court did not even ask
for briefing or oral arguments. The Supreme Court simply reversed the
Ninth Circuit on the basis of the petition for certiorari. This
lopsided reversal rate has since continued since that 1996 term.
As we compare other circuit court reversal rates, it is helpful
because it puts the Ninth Circuit into a context and helps us review
the balance.
In 1997, of those cases decided by the Supreme Court in a full
opinion, the Supreme Court reversed or vacated four cases from the DC
Circuit cases and affirmed five. Balance that against the Ninth
Circuit, where in that same year the Supreme Court affirmed 3 cases
from the Ninth Circuit and reversed or vacated 14.
Let's go to 1998. The Supreme Court affirmed one case from the DC
Circuit, vacated one case, and reversed no DC Circuit case. In
comparison to the Ninth Circuit, in 1998 the Ninth Circuit was affirmed
4 times and reversed or vacated 14 times.
1999, the Supreme Court affirmed three DC district cases and reversed
or vacated no cases from that court.
In 1999, the Ninth Circuit in comparison was reversed or vacated 9
times that year and affirmed only once.
In 2000, the DC Circuit was reversed once and only had one case from
that court to go up to the Supreme Court that year. The Ninth Circuit
was affirmed 4 times, and in the year 2000 reversed or vacated 13
times.
Over the last 3 years, one-third of all cases reversed by the Supreme
Court came from the Ninth Circuit, the circuit that my State is part
of. That is 3 times the number of reversals for the next nearest
circuit, and a 33 times higher reversal rate than the Tenth Circuit.
I suggest these statistics are astounding in their proportion. One of
the reasons the Ninth Circuit is reversed so often is it has become too
large and too unwieldy. It is a simple fact. The circuit serves a
population of more than 54 million people, almost 60 percent more than
served by the next largest circuit. By the year 2010, the Census Bureau
estimates that the Ninth Circuit will preside over a population of more
than 63 million people. According to the Administrative office of the
United States Courts, the Ninth Circuit alone accounts for more than 60
percent of all appeals pending for more than a year. The shear
magnitude of cases brought before the court explains why it takes
nearly 50 percent longer than the national average, almost 1 year and 4
months, to get a final disposition of a case in the Ninth Circuit. It
takes 5 months longer to resolve a case in the Ninth Circuit than the
national average for a court of appeals, and the delay increased by a
full month in 2003 compared to the time it took in the year 2001. Talk
about justice delayed, this is it here in the Ninth Circuit.
With such a huge caseload, the judges cannot possibly have the
opportunity to keep up with the decisions within the circuit, let alone
track decisions made in other circuits. I suggest that now is not the
time to have vacancies on the bench in the Ninth Circuit.
One of the individuals who is the subject of these 30 hours, Carolyn
Kuhl,
[[Page 28728]]
has been waiting for an up-or-down vote to the Ninth Circuit since June
22, 2001. There are many who believe the U.S. Court of Appeals, the
Ninth Circuit, is out of touch with the mainstream. This is part of the
reason that I support splitting the Ninth Circuit and part of the
reason the Senate must complete the pending nominations.
We only need to look back to March of this year when the Ninth
Circuit decided that the Pledge of Allegiance was unconstitutional.
Talk about a very graphic example of the Ninth Circuit being out of
touch with mainstream America. The Senate, by a 94-0 vote, went on
record expressing unanimous opposition to the Ninth Circuit decision in
Elk Grove Unified School District. The U.S. Supreme Court shortly
thereafter granted certiorari and briefs to be filed before the end of
the year.
Another part of the problem with the Ninth Circuit is it is never
able to speak with one voice. All other courts have one entity to hear
full court en banc cases. The Ninth Circuit sits in panels of 11. This
system injects unnecessary arbitrariness to decisions. In an en banc
decision, a case is decided 6 to 5. There is no reason to think it
could actually represent the views of the majority of 24 active members
of the bench. In fact, there are some commentators who have suggested
that a majority of the 24 members of the Ninth Circuit may have
disagreed with the pledge decision. But there was a concern that a
random pick of 11 members of that circuit to hear the case en banc
might have resulted in the decision being affirmed.
The time has come to fill the vacancies in the Ninth Circuit and to
enact legislation to split the circuit. We have heard again many times
in the Senate over the course of these hours: Justice delayed is
justice denied. That is most certainly happening in the Ninth Circuit.
That is happening to the individuals who are pending before the Senate
seeking confirmation of their judicial appointments. Filling the
current vacancies would decrease the time it takes to resolve cases and
would therefore provide better administration of justice.
I see the Senator from Ohio is in the Senate, and I know he was to
have a share of our side's time.
Mr. SESSIONS. What is the time situation?
The PRESIDING OFFICER. The majority controls 17 minutes and the
minority controls 30 minutes allocated.
Mr. SESSIONS. I yield to the Senator from Ohio for 10 minutes or so.
Mr. VOINOVICH. How much time remains?
The PRESIDING OFFICER. There are 16\1/2\ minutes.
Mr. VOINOVICH. Mr. President, today I rise to talk about this body's
treatment of President Bush's judicial nominations. This is not the
first time I have been forced to come to the floor to protest this
treatment, but I hope it will be the last.
Over the past few years we have seen highly qualified nominees wait
sometimes two years before their nomination reaches the floor of the
Senate, only to see their records and reputations vilified for
political purposes in the interim or to watch as cloture vote after
cloture vote fails.
And where has this filibustering and posturing gotten us?
I want to underscore that one might question spending 30 hours on the
issue of the Democrats using the filibuster to frustrate the Senate's
right to advice and consent on presidential nominees, but we would not
be here today if my colleagues across the aisle had not created a
constitutional crisis with their use of the filibuster--and have now
driven us--in order to protect the Constitution to consider changing
the cloture rules of the Senate.
Beyond the constitutional crisis, there is a diminishing of the third
branch of Government, the Judiciary, at the hands of the legislative
branch that has serious implications for the people of the United
States.
We have 12 judicial emergencies on the circuit courts of appeal. The
President has done his job, nominating new judges for 11 of the 12
appellate court vacancies. But the Senate has not done its job in
confirming these judges.
And there is a cost associated with these vacancies. The American
taxpayers spend $5.1 billion for the federal judiciary every year. The
American people are paying for fully staffed courts--not for political
games. When courts are vacant and cases take longer than they otherwise
could, lives are disrupted; businesses can be crippled, and financial
resources are drained from the productive economy.
My circuit in particular, the Sixth Circuit, is getting slower and
slower as the obstruction continues. It has been plagued by political
game-playing by my friends, the Senators from Michigan, who want to
control who President Bush appoints to the circuit court vacancies that
currently happen to exist in Michigan.
Over the last 2 years, court delays in the already-slow Sixth Circuit
have increased by nearly 2 months.
In 2001, it took 28.9 months, that's over 2 years, in the Sixth
Circuit for a case to go from original filing in district court to
final decision on appeal.
By June, 2003, it took 30.8 months. This 2-month increase difference
may seem small, but there are more than 2,000 cases in the Sixth
Circuit affected by this growing delay. With 2,000 plus cases being
delayed nearly 60 days, more than 120,000 extra days have been spent by
both parties waiting for a decision. What a waste of resources.
I would like to draw your attention to a nominee who has faced the
harshest of criticism from this body: Charles Pickering. I preface my
comments on Judge Pickering, with a brief review of my civil rights
record. The utility of this will be important in a few minutes.
I have always been very proud of my record on civil rights. When I
was Mayor of Cleveland, we created the first Minority Business
Development Center operated by a city. As a result, minority
participation in city contracts rose from 1.5 percent to 28 percent in
the first 2 years.
As Mayor, we also increased the amount of business the city did with
minority and female businesses from less than $1 million per year to
more than $90 million/year by 1989.
We recruited and promoted more minority firefighters than any other
administration in the city's history. We increased minority hiring on
the police force by 63 percent in 5 years.
We successfully defended our fire and police hiring program in a
landmark U.S. Supreme Court case that established that prospective
race-conscious relief for past discrimination is constitutional.
I also lobbied Congress on behalf of establishing a Martin Luther
King Day and made sure, as President of the National League of Cities,
that it was properly celebrated across America. I was one of only 2
invited to the inauguration of Martin Luther King Holiday in Atlanta.
As Governor, we established the Governors Challenge Conference, to
discuss positive human relations. We established the Disadvantaged
Black Male Commission, which helped achieve a 200 percent funding hike
for the Commission on African American Males; the Urban Schools
Initiative, to improve accountability and performance in Ohio's urban
school districts; and the Cleveland Scholarship Program, recently
upheld by the U.S. Supreme Court, to give scholarships for low-income
families and allow them to send their kids to the school of their
choice.
These are just a few of the civil rights initiatives I worked on
before coming to the Senate. And yes, I broke ranks with my colleagues
on this side of the aisle to support hate crimes legislation, and I
have been working with one of my colleagues on the other side of the
aisle on racial profiling legislation.
I mention all of this now so that people know that I would not
support a nominee such as Charles Pickering if I thought for one minute
that he would undo any of the progress we have made in the civil rights
area, or if I thought he would treat individuals differently because of
the color of their skin.
Judge Pickering has been a leader for equal rights, integration,
inclusion and reconciliation in his community, church, political party,
and state.
As a county attorney in the 1960's, he worked with the FBI to
dismantle, disrupt and prosecute violent members of
[[Page 28729]]
the Ku Klux Klan. In 1967, he testified against the Imperial Wizard of
the KKK for a fire bombing of a civil rights activist in Mississippi.
That was not easy in 1967.
In 1976, he hired the first African-American staffer for the
Mississippi Republican Party.
In 1981, he successfully represented a black man falsely accused of
robbing a 16-year-old white girl.
In 1985, as President of the Mississippi Baptists he presided over
the first Convention session addressed by an African-American pastor
and the first African-American congregation to join and integrate the
Convention.
In 1988, he chaired a race relations committee for Jones County,
Mississippi.
In 1991, he worked with his son and son-in-law to integrate his
former fraternity at the University of Mississippi. He helped establish
and still serves on the Board of the Institute of Racial Reconciliation
at the University of Mississippi.
In 2000, he helped establish a group to work with at-risk African-
American youth in Laurel, Mississippi.
Mr. President, in examining Judge Pickering's fitness for this
judgeship, it is important to not only look at his record, but also his
broad base of support from individuals of varying backgrounds and
political affiliations.
Judge Pickering has been endorsed by the current president and 17
past presidents of the Mississippi State Bar. He has been endorsed by
all major newspapers in Mississippi. He has been endorsed by all
statewide elected Democrats and the chairman of the Mississippi
Legislative Black Caucus.
James Charles Evers, brother of slain civil rights leader Medgar
Evers has said of Judge Pickering:
As someone who has spent all my adult life fighting for
equal treatment of African-Americans, I can tell you with
certainty that Charles Pickering has an admirable record on
civil rights issues.
Rev. Nathan Jordan, Pastor, St. John United Methodist Church and
former President of the Forrest County NAACP:
Without hesitation, I can truthfully say that Judge
Pickering is an extremely fair judge who serves all our
citizens. . . . It seemed to me that he pushed very hard to
insure the fair treatment of minorities.
Ruben V. Anderson, the first African American Supreme Court Justice
in Mississippi and former associate counsel for the NAACP stated:
I have known Judge Pickering for at least a quarter of a
century. At all times I have found him to be an honorable
man. . . . Judge Pickering would be an asset to the Fifth
Circuit Court of Appeals and I recommend him without
reservation.
There is no reason--no reason--as one looks at the qualifications of
hundreds of people that this Senate has already confirmed over the
years that Charles Pickering should not be sitting on the Fifth Circuit
Court of Appeals.
The reason he is not is because my colleagues on the other side of
the aisle, for all intents and purposes, have modified the Constitution
by filibustering his nomination and denying this man an up or down vote
on the floor of the Senate.
It is an outright violation of the advise and consent provision of
the Constitution, and all Americans--Democrats and Republicans,
liberals and conservatives--should demand that it stops now so that the
judicial branch of Government can go about doing the job envisioned for
it by the Constitution, and this body can get on with the other
business of the people.
This has to end--it has to end--and I prayerfully and respectfully
ask my colleagues on the other side of the aisle to cease and desist
their obstructionist tactics for the benefit of our Constitution and
the people of the United States of America.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, will the Senator yield? He has been
talking about the Sixth Circuit and this chart they have been placing
in the Chamber.
By the way, Mr. President, what is the time on this side?
The PRESIDING OFFICER. The majority controls an additional 7\1/2\
minutes.
Mr. SESSIONS. They have been saying there are four judges being held
up. But there are four being held up in the Sixth Circuit.
This is a resolution just passed I believe yesterday by the Michigan
State Senate, expressing concern about this. I would just like to read
from it. I know the Senator from Ohio was concerned about this circuit.
It is his circuit.
They say:
Whereas, The Senate of the United States is perpetuating an
injustice and endangering the well-being of many Americans.
Its actions are jeopardizing our system of justice in 6 out
of the 12 federal judicial circuits that have been declared
``judicial emergencies,'' including the 6th Circuit Court of
Appeals which includes the state of Michigan. . . .
They say:
Whereas, The Senate of the United States is allowing the
continued, intentional obstruction of the judicial
nominations of all these nominees put forth by the President
of the United States, including four fine Michigan jurists:
Judges Henry W. Saad, Susan B. Nielson, David W. McKeague,
and Richard A. Griffin, nominated to serve on the United
States 6th Circuit Court of Appeals. . . .
I ask the Senator from Ohio, isn't it true that the chart they have
been putting up says four judges are being mentioned; it does not
include these four judges whom they are also obstructing?
Mr. VOINOVICH. They do not include those four judges who are being
obstructed.
Mr. SESSIONS. I will just point out, Mr. President, if the Senator
will yield the floor----
Mr. VOINOVICH. I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Mr. President, I will just conclude by noting this is a
very strong resolution from the Michigan State Senate. They say:
Resolved by the Senate--
That is the Michigan Senate--
That we memorialize the United States Senate and Michigan's
United States Senators to act to end the filibusters of the
federal circuit court nominees pending on the Senate floor,
to release those being upheld in the Judiciary Committee of
the Senate of the United States, and to vote for the
bipartisan Frist-Miller Resolution. . . .
I ask unanimous consent that this resolution be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Senator Cropsey offered the following resolution:
Senate Resolution No. 199
A resolution to memorialize the United States to end the
filibusters of the federal circuit court nominees pending on
the Senate floor, to release those being held up in the
Judiciary Committee of the Senate of the United States, and
to support the reforms of the federal judicial confirmation
process, all which will be addressed during 30 hours of floor
debate this week.
Whereas the Senate of the United States is perpetuating an
injustice and endangering the well-being of many Americans.
Its actions are jeopardizing our system of justice in 6 out
of the of 12 federal judicial circuits that have been
declared ``judicial emergencies,'' including the 6th Circuit
Court of Appeals which includes the state of Michigan; and
Whereas the Senate of the United States is allowing the
continued, intentional obstruction of the judicial nomination
of all these nominees put forth by the President of the
United States, including four fine Michigan jurists: Judge
Henry W. Saad, Susan B. Nielson, David W. McKeague, and
Richard A. Griffin, nominated to serve on the United States
6th Circuit Court of Appeals; and
Whereas there has never been a filibuster on any Court of
Appeals nominee in the history of the Senate. This
obstruction continues to harm the lives, careers, and
families of eminently qualified judicial nominees and is
prolonging the judicial emergencies that have compromised the
administration of Justice for many of our fellow citizens in
Michigan and around the country; and
Whereas both of Michigan's Senators continue to block the
Judiciary Committee of the United States Senate from holding
hearings regarding these nominees. This refusal and the
refusal by many of their colleagues to allow the United
States Senate to complete its constitutional obligation of
advice and consent is denying all of the nation's
filibustered nominees an up or down vote on their nomination.
All the while, the severe backlog of cases is growing; and
Whereas the 30 hours of debate on the floor of the Senate
of the United States aims to improve our judicial system by
attempting to end the filibuster on several nominees, and the
blocking of our Michigan 6th Circuit nominees, while
instituting necessary reforms in the judicial confirmation
process; now, therefore, be it
Resolved by the Senate, That we memorialize the United
States Senate and Michigan's United States Senators to act to
end
[[Page 28730]]
the filibusters of the federal circuit court nominees pending
on the Senate floor, to release those being upheld in the
Judiciary Committee of the Senate of the United States, and
to vote for the bipartisan Frist-Miller Resolution (S. Res.
249); and be it further
Resolved, That copies of this resolution be transmitted to
Michigan's United States Senators, The Senate Majority
Leaders, the President Pro-Tempore of the United States
Senate, and the President of the United States.
Mr. SESSIONS. Mr. President, there has been a lot said here. I just
want to share a few thoughts. This matter is, at its core, about the
rule of law in this country. We have a system that believes judges are
here to apply the law as written, they are not here to enforce their
rules, their personal political agenda, do what they think is nice in
every case.
Clients have rights. If the rights they have protect them from
lawsuits, they should be protected. If they are entitled to recover or
be successful, they ought to be successful. It is up to the judge to
apply the law fairly and objectively.
President Bush has his hand on the heart of the problem. He
understands what is wrong with the judiciary in America. He knows it is
out of control. He knows we are allowing verdicts to run wild. He knows
we have a radical secularization of America that is occurring through
the power of the Federal courts. It is not healthy. We have things such
as the Pledge of Allegiance being struck down. He knows criminal cases
are being tossed over at record rates.
Two judges we confirmed--Berzon and Paez--and I voted to give them an
up-or-down vote, and I voted against them on the merits--these two
nominees, in separate cases, struck down California's highly effective
``three strikes and you are out'' law that has helped drive down the
crime rates significantly in California. And I say that as a former
prosecutor of over 15 years. Absolutely, that has had an impact in the
reduction of the crime rate in California. They struck those down as
unconstitutional.
Mr. President, 170 death penalty cases have been overturned, as the
Senator noted, by this Ninth Circuit, the most liberal circuit in
America, and they struck down the Pledge of Allegiance. The U.S.
Supreme Court has reversed the Ninth Circuit--in 1 year--in 27 out of
28 cases; in another, 14 out of 17 cases. In fact, the New York Times
several years ago, in a news article, said a majority of the Supreme
Court considers the Ninth Circuit to be a rogue circuit.
So what we are trying to do is come back to the mainstream. I am
shocked that the distinguished Senator from New York, Mr. Schumer--who
is really the point man on the advocacy of judicial activism in the
Senate--I would submit this is what he said in this debate earlier, and
I am just shocked by it. No wonder when I came in, I saw Senator
Specter having his feelings hurt. Senator Schumer said:
No one except a far right militant extreme minority
believes that the courts are being obstructed when 168 judges
are approved and 4 are not.
So that is not the language of moderation. That is not the language
of collegiality. They are accusing Members over here of being far right
extremists because they do not agree with the filibuster tactics that
are going on here.
In another comment recently, on the Internet site 365Gay.com:
New York's other Senator, Democrat Chuck Schumer [was
quoted as saying he] launched a broadside at conservatives,
accusing the President of ``loading up the judiciary with
right-wingers who want to turn the clock back to the 1980s.''
Schumer said America is under attack from ``the hard right,
the mean people,'' and said ``They have this sort of little
patina of philosophy but underneath it all is meanness,
selfishness and narrow-mindedness.''
That hurts my feelings.
Mr. President, these nominees who are here who are being held up are
not extreme. Janice Rogers Brown, an African American, who grew up in
Alabama under racial discrimination, went to California, got her law
degree at UCLA, a single mom, got elected to the Supreme Court of
California, not a conservative State. She got 76 percent of the votes.
Are these mean-spirited, selfish, narrow-minded people? Not Janice
Rogers Brown, if you saw her testify, as I did.
Carolyn Kuhl went to Duke Law School, graduated on the Law Review,
clerked with Justice Anthony Kennedy on the Ninth Circuit when he was
on the Ninth Circuit, and has served for a number of years on the
courts out there and has won bipartisan praise from those courts.
Mr. President, I ask unanimous consent that I be given an additional
3 minutes to be deducted from the majority time in the next section.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. SESSIONS. And Priscilla Owen. I guess they claim she is a right-
wing, mean-spirited person. Priscilla Owen graduated at the top of her
class in law school, made the highest possible score on the Texas bar
exam. She was one of the most successful legal practitioners in all of
Texas. They asked her to run for the supreme court. She did. She won
reelection with 84 percent of the vote and the support of every major
newspaper in Texas.
Bill Pryor, the attorney general from Alabama, got 59 percent of the
vote in his reelection bid.
These are people out of the mainstream of this country, right-wing
extremists? No, sir. The values this country holds dear with regard to
the legal system, that were bequeathed to us from the English
tradition, need to be cherished and protected and valued. America
understands this. Mainstream America is very troubled by courts that do
not adhere to the traditions of how to interpret law in America. They
do not believe judges are entitled to reinterpret the meaning of words
and statutes, and in our Constitution to legitimate the perpetuation of
a political agenda.
That is what it is all about. President Bush understands that. The
American people understand that. That is mainstream. The kind of
allegations we have had here against these fine nominees is not
mainstream. It is typical of the hard left that comes from the People
for the American Way, the American Civil Liberties Union, and those
kinds of groups.
Mr. President, I feel really strongly about it. I believe the
majority acted responsibly during the Clinton years. We did not
maintain a filibuster against Clinton judges, as has been done now for
the first time in history. That is what is occurring today, a
filibuster, systematically, of a number of highly qualified judges for
whom there is no basis to object on the merits.
I yield the floor and I reserve the remainder of the time.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. KOHL. Mr. President, I have been in the Senate now 15 years, and
I must say I never experienced what will be 30 hours, when this debate
ends at around midnight tonight, that I thought were as off point and,
in many ways, as not relevant to what we are talking about here--which
is Federal judgeships in our country--as this debate has been.
In my judgment, that is because our colleagues on the other side of
the aisle have not wanted to deal with the facts and have wanted to,
instead, try to create impressions which are not true. Because the fact
is--and it has been said now on many occasions and many times since
this debate started last night--the President and the committee have
sent to the floor 172 nominees since he came into office, and we have
voted out 168 of them positively, and 4 have been held up.
So how can anybody claim that in fact there is a conspiracy to deny
those nominees sent up by the President a vote? Mr. President, 168 have
been voted on and are now sitting in their Federal judgeships, and 4
have been held up.
Furthermore, the vacancy rate at the Federal judgeship level is less
than 5 percent. In other words, over 95 percent of all the Federal
judgeships in this country are now presently occupied. When you have a
vacancy rate of less than 5 percent, how can anybody make the argument
that there is something sinister going on?
[[Page 28731]]
Just a minute ago, my colleague from Alaska suggested that in the
Ninth Circuit, because of the vacancies, apparently, justice delayed is
justice denied. That phrase has been used time and again to suggest
that perhaps a third or a half of all of the Federal judgeships in this
country today are vacant. Again, I repeat, it is less than 5 percent.
It is at its lowest point since 1985 in terms of vacancies.
Now, on the Ninth Circuit, which was referred to by my colleague from
Alaska, there are 25 circuit court judges who are supposed to be
sitting, and there are but 2 vacancies at the present time. So how can
we make the argument that justice delayed is justice denied because
there are ``so many vacancies on the Federal judiciary''? It simply is
not true.
So what is the argument about? What are we spending these 30 hours
on? To suggest that the Democrats are holding up the Federal judiciary
by some vast conspiracy which, in fact, the numbers do not suggest in
any way to be true?
In fact, when President Bush took office, we did have a vacancy rate
of about 12 percent, and now it is down, as I said, to less than 5
percent, which is at its lowest point since 1985.
So to my colleagues on the other side of the aisle, what is the
point? Why are we spending 30 hours debating an issue which, in fact,
is not an issue? If we want to debate ideology, that is an entirely
different story. But that is not what this 30-hour debate is all about.
It is about the assertion made by the other side that the Democrats are
preventing our Federal judiciary from doing its job by decimating
Federal judgeships all over the country.
As I pointed out here, in the most clear manner, in an arithmetic
way, the argument in no way has any merit. So I wish we could move on
and talk about the things that are really important to the American
people today, on which they are looking to us for leadership: Our
economy, our deficit, our unemployment rate, our health care crisis,
our educational crisis, the problems men and women who are leading
their regular lives every day face and on which they are looking to the
Federal Government for at least some help and assistance.
They are not all hot and bothered about the fact that 4.5 percent or
5 percent of the Federal judgeships in this country are today vacant,
which is to say that over 95 percent are occupied. They are not
concerned about that. They are concerned about their real problems and
what we are doing to try to alleviate them. And here we are, taking 30
hours and, in my opinion, just wasting it in talking about a problem
which the other side alleges exists and does not exist.
Finally, when President Clinton was in office, and the Republicans
controlled the Senate from 1995 to the year 2000, nominees were also
denied votes in that era. They were denied votes because they were not
given hearings by the Republican Judiciary Committee. So they were
denied their vote in much the same way that some are being denied a
vote right now. That is the way the process works. There is nothing
sinister about it, and it certainly does not cripple our country's
judicial system.
My colleague from New Jersey is, I believe, waiting to speak.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. LAUTENBERG. I thank my friend from Wisconsin, Mr. President, and
I was very interested in what he had to say. I thought it was right on
the mark.
The fact is, this is a clear example of misplaced priorities, those
of the Republican leadership and the White House. It is hard to
understand why there is such outrage on the other side of the aisle
about these four people being denied a spot on the Federal bench.
If they are worried--and I heard it requested here: Give these people
a break. Be fair with them.
They are worried about these four people being denied their
opportunity, but there is an expense to putting them on the bench that
is going to be felt by Americans across this country.
What about the 3 million people who are denied jobs? What about the
millions of jobless being denied unemployment benefits? What about the
White House's attempt to deny millions of workers their overtime pay?
What about lower income, working Americans being denied an increase in
the minimum wage? What about the millions of women being denied their
right to reproductive freedom by nine men surrounding the President
when he signed the new anti-choice law? They took away a woman's right
to make a decision, in concert with their doctor, about their health
because these nine men--the male oligarchy--decided that it was
appropriate that they take away a woman's rights.
There was not one woman on the floor to defend that decision. Not one
woman spoke about it. Not one woman in this picture or even in the
other picture that was shown in the top newspapers across the country.
Not one woman, but they are making decisions about women.
I said the other day on the Senate floor, and I repeat it, I have
three daughters, and I respect their judgment about how they ought to
conduct their pregnancies and how they ought to live their lives to
make sure they are healthy to take care of the nine grandchildren I
have been blessed with, and not run any risk--my middle daughter is on
her fourth pregnancy right now--not to run any risk that anything was
amiss with her health that she couldn't take care of her three
children.
What about the administration's attempts to deny our troops their
imminent danger pay?
I just came from Walter Reed Hospital with other Senators, and I met
a couple of people there. One was a young double amputee from Rockland,
MA. He was in Iraq 3 weeks. He has no hands. Part of one arm is still
in place. Most of the other arm is missing. It is a tragedy.
My guess is he was somewhere in his early twenties. He had been a
member of the National Guard a few months and was called up from
Rockland, MA.
By the way, two of our Senators--one former and one present, amputees
themselves; one with three limbs missing--went to Walter Reed to
console this young man and encourage his spirit and his belief that
life can be functional. Senator Cleland, now out of office, and Senator
Inouye with an arm missing that he lost in southern Italy, went to
cheer up this young man.
What about them? We are using time here to talk about these choices
when they are not choices. They are not qualified by the judgment of
many. But why carry on this battle? Why this stick in the eye to the
public at large when there are so many other issues about which to
talk?
I had a chance to be on TV this morning with one of our Republican
colleagues. We talked about what was going on. He said: We are not
losing any time. My duty was at 5 o'clock in the morning. What time did
we lose? It occurred to me, what a foolish response. If it is important
enough to be here at 5 o'clock in the morning, then why isn't it
important enough for us to be taking care of what we have to in Iraq
and getting those kids home and making sure we get as many allies as we
can to pick up this burden we have and share it.
Why can't we talk about that at 2 o'clock in the morning or 3 o'clock
in the morning or 4 o'clock in the morning? I don't get it. Why can't
we talk about 3 million jobs lost and talk about a way to adjust that
situation--jobs lost.
What about the administration denying photographers the right to
honor our fallen heroes coming back in flag-draped coffins? When do we
say the public doesn't have a right to honor them and remember that
these people gave their lives on behalf of our country? Why is that not
permitted? Why is it so obscure? We can't see them. They don't show the
people what has really happened in the war. Maybe they won't think it
is such a bad idea that we don't have the kind of partnership we ought
to have over there fighting the battle.
On Monday, I went to a funeral in Newark, NJ, of a young man named
Joel Perez. He was a sergeant. He was
[[Page 28732]]
on the Chinook helicopter, as was the man we visited this morning.
There are bones broken all over his body, but he is glad to be alive.
He is very happy to be alive. He knows what happened to the 16 others.
They lost their lives.
Since May 1, the President has found time for 36 fundraisers. How
many families did he visit to console, to tell them he is sorry and
acknowledge their bravery in serving? No, the debate is on four judge
nominees. What do the American people think about that?
Look at the majority leader's own Web site. He said he did a poll.
The poll said: Should the President's nominees to the Federal bench be
allowed an up-or-down vote on confirmation as specified in the
Constitution?
First error, ``as specified in the Constitution.'' I will talk about
that in a minute. The poll answers came in: 60 percent said no, the
President's nominees to the Federal bench ought not be allowed an up-
or-down vote if the opposition doesn't want to give it to them--60
percent. But they quickly changed this Web site because they didn't
like the answer they got. So they changed it to a more mealy-mouth kind
of thing: Should we do it or shouldn't we do it? The Constitution says
``advise and consent.'' It doesn't say consent and then advise, which
is what they would like to see us do here. They would like to see us go
ahead and say: Mr. President, that is what you asked for; that is what
we are giving you. No, our responsibility in the minority and in the
majority is to stand up for what we believe and what the people who
sent us here want us to say, and if they don't want us to say it, then
they will reject it at the appropriate time.
This Senate spending 30 hours to talk about four judicious--judicial;
they are not judicious at all--judicial nominees? Meanwhile, 3 million
have lost their jobs since this President took office.
I ask my colleagues to listen closely to this fact. In the private
sector, two Americans have lost their jobs every minute that George W.
Bush has been President. Two families without an income; two families
where there may be some humiliation about an inability to go to work.
I remember my late father who finally, in the desperate days of the
Depression, had to take a job with the WPA. He was embarrassed about
doing it because it looked like welfare. It was a job. The Government
had created jobs. He was humiliated having to take that job, but he did
it because he wanted to provide for me, my mother, and my little
sister. He had to do it.
What about those 3 million people? What are we doing to help them go
to work? The latest survey shows there are a total of 8.8 million
Americans currently unemployed; 3 million have lost their jobs since
this administration took office; and the reality is this administration
doesn't have a jobs plan. Not surprising. It has a bad record on jobs.
Let's look at this chart of the last 80 years. It shows jobs gained
or lost during administrations, in the millions. We have two
administrations identified in red. By the way, those in green were
Harding, Coolidge, Roosevelt, Truman--a variety. None of them, except
President Herbert Hoover and George W. Bush, have lost jobs during
their administrations. It is a sad commentary.
The chart shows actual jobs gained or lost in the millions, and here
we see there are 3 million lost.
The two blobs on this chart are the administrations of Herbert Hoover
and the current administration. When we look at this chart, there are
only two administrations in the last 80 years that have resulted in a
net job loss: this administration and Herbert Hoover's administration.
I don't remember thinking about it during Hoover's time, but I was
there at the time. I knew it was a disaster in my house.
I would think the Bush administration doesn't enjoy sharing this kind
of company, but the inaction of this administration on this issue makes
me wonder if they understand the damage they are causing to the economy
and families across the country. But we are taking 30 hours of time.
The 30 hours don't belong to us. They belong to the people of the
country. It belongs to our constituents.
Taking 30 hours of the time of the Senate not to pass a jobs creation
bill, not to pass incentives for companies to continue manufacturing in
the United States, not to extend the unemployment benefits for people
victimized by this economy--none of that. We are here to discuss a
couple of extremist judicial nominees the President wants to force down
our throats.
President George W. Bush presented himself in the beginning days of
his campaign and in the early days of his administration as being a
uniter, not a divider, except that is far from the truth. I have never
seen a more ideologically partisan White House, and I served with
Ronald Reagan when he was President. I served with George Bush, Sr.,
when he was President. I served with President Bill Clinton. I have
never seen a more ideologically partisan White House. This
administration and my colleagues across the aisle are driven
ideologically to the point that I think there is kind of an impaired
vision to the simple, clear, and irrefutable facts.
The Senator from Wisconsin said it. As of today, the Senate has
confirmed 168 judicial nominees recommended by President Bush and
blocked 4 in 3 years. President George W. Bush has gained more
confirmations than President Reagan did in his first full term. Mr.
President, 168 confirmed judicial nominees is particularly impressive
because 100 nominees were confirmed when Democrats still controlled the
Senate in the last Congress. We did our share, and we will continue to
do our share, but we will not let the judicial system and the citizens
of this country be taken advantage of, not if we can help it.
This is a 98-percent rate of confirmation for President Bush's
judicial nominees. That is an impressive rate. As I said before, the
Constitution says that the Senate must advise and consent, not consent
and then advise, which is what we would like to see happen here. It is
the Senate's job to put a check on the President's appointments. If it
were not, then the Founding Fathers would not have written the consent
requirement into the Constitution.
I think it is instructive to look back at the treatment of President
Clinton's judges by the Senate. During the Clinton administration, 248
Clinton judicial nominees were confirmed, and 63 were blocked from
getting votes. That is 20 percent of all President Clinton's nominees,
and now there are complaints from the other side because President Bush
is not getting just 2 percent of his choices.
During the Clinton administration, Republicans placed secret holds on
judicial and executive nominees preventing many fine Americans from
even having a hearing in the Senate Judiciary Committee.
The Senator from Wisconsin is on the Judiciary Committee. He knows
and everybody in this room knows that you don't have to have a
talkathon to kill nominees. All you have to do is just not bring it
before the committee, or if they go before the committee, not bring
them before the Senate. That is the control of the majority.
We did it differently when we were in charge. We processed most of
the administration's recommendations.
In total, 63 Clinton judicial nominees and more than 2,200 Clinton
executive nominees were defeated by delay or no votes. These numbers
are unchallengeable. We see it here: Clinton nominees from 1995 to
2000, number confirmed, 248; nominees blocked, 63, 20 percent of the
total. Of the Bush nominees, we processed 168; nominees blocked, 4;
total, 2 percent. That is what is happening. And now to have this
circus taking place with the crocodile tears about how we treated these
nominees, and not one word about how we are treating the public. No,
no.
Mr. SESSIONS. Will the Senator yield for a question?
Mr. LAUTENBERG. No, I would like to finish, Mr. President. I am
sorry. At such time as the floor shifts hands, I will be happy to
answer any questions.
The fact is, Democrats have used the filibuster only to block
nominees with records of extremism. Americans deserve an independent
judiciary with fair judges who will enforce their rights and uphold the
law. Republicans
[[Page 28733]]
want Democrats to blindly confirm result-oriented, agenda-driven judges
whose rules of judicial interpretation change to meet their ideological
agenda.
It is pretty obvious, I guess, to the American people, we are not
consenting. That is the choice and the right that the Founding Fathers
gave us as Senators. I am not about to give up that right.
I ask the Chair, how much time do I have remaining?
The PRESIDING OFFICER. The Senator from New Jersey has 4\1/2\ minutes
remaining.
Mr. REID. Will the Senator yield for a question?
Mr. LAUTENBERG. I will.
Mr. REID. Through the Chair to the distinguished Senator from New
Jersey, I ask my friend, we have spent--how many hours it has been
since last night at 6 o'clock--talking about four people. I am sure the
State of New Jersey, like the State of Nevada, and all 48 other States,
has people who are unemployed. New Jersey is a very heavily populated
State. Does the Senator from New Jersey think the people in New Jersey
would care about our dealing with, for example, unemployment insurance
where during the last 3 years we have lost 3 million jobs, or does the
Senator think they would like to talk about some way to get jobs for
the more than 9 million people who are unemployed in this country?
Would the people in New Jersey rather we be doing that or what we are
doing now?
Mr. LAUTENBERG. I say to my friend from Nevada, I hear two principal
concerns from the people in New Jersey: One, jobs; having to get to
work because not only is it the deprivation of funds and the shortage
of being able to afford, many times, the necessities, but it is the
humiliation of not being able to provide for your family. That is what
they talk about.
Do you know what else they talk about in New Jersey? They talk about
health care. They talk about prescription drugs. People in the senior
community--and I happen to fit, thankfully, in that community--are
concerned about the prescription drugs they can't get to sustain
themselves.
We saw things in the paper today--I read these with great interest--
about the successful effects of a drug that is called Lipitor. I am not
advertising any medication, but look in the paper and you will see that
it has reduced the possibility of heart attack. People want those
drugs. We have got to live this long because, A, we were lucky and, B,
maybe because we had the right doctors and the right prescription drugs
to keep us going. So that is what they think about.
I have yet to have a call, that I am aware of, that said: Senator,
for crying out loud, pass those four judges and, by the way, I am
jobless, in case you should think about it; or: Pass those four judges
and do not worry about the environment because we can stand some more
toxic waste in our skies or on our ground. No, do not worry about those
things. Senator, you just take care of getting those four people the
job that the President and the Republican Party want them to have.
To answer the question the Senator from Nevada asked--and I am
reminded about this constantly--3\1/2\ million people, since January
2001, have lost their jobs in manufacturing. It also breaks the
economic structure that we desperately need. We need manufacturing jobs
because those are decent-paying jobs. One does not have to have a
college education there, or a master's degree, or anything like that
for most of those jobs. It is for the people who want to go to work who
have not had the advantage of getting the extended education.
That is what they want us to talk about. They want us to talk about
what is happening: Where are these jobs going that are leaving our
shores? What should we do about it?
Well, we do not have time for that debate. I have to remember to tell
them that when they call up. Sorry, we cannot discuss jobs or
prescription drugs, or your kid's schooling. We do not have time for
it. We are busy, very busy, and we are under the gun, and that is to
get our appropriations bills done and things of that nature. We have to
get it done so that we can end this session and we can get back to our
communities and talk to our people and do what we have to, to stay in
touch. No, we do not have time for that.
The PRESIDING OFFICER (Mr. Crapo). The time of the minority has
expired.
Mr. LAUTENBERG. Mr. President, I reluctantly yield.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, may I inquire how much time now is allotted
to the majority side?
The PRESIDING OFFICER. The majority has 27\1/2\ minutes.
Mr. CRAIG. Mr. President, I recognize the Senator from Wisconsin is
still in the Chamber. Let me say, in all fairness, I was listening from
my office to the Senator when he asked how justice delayed is justice
denied when the vacancy rate is so low. He also wondered why we are
spending time on judges. I think his own words answer the question.
Senator Kohl declared that the judicial confirmation process should
not be about politics. In a quote in the Congressional Record of 1997,
Senator Kohl said: We need these judges both to prosecute and sentence
violent criminals and to prevent more backlogs in the civil cases.
I think he also stated it was in our system where judges got blocked
and that there was nothing sinister about it.
Let me read a couple more of the Senator's quotes because we have
been accused of hypocrisy on this floor and I do not think any of us
ought to be accused of that. Different circumstances and different
times oftentimes produce less than consistent quotes. My guess is that
this Senator has been a bit guilty of that on occasion, too.
In the Congressional Record of May of 1997, it says that Senator Kohl
urged votes on nominees who had been approved by the Judiciary
Committee. Let's breathe life back into the confirmation process, let's
vote on these nominees who have already been approved by the Judiciary
Committee, and let's see a timetable for future hearings on pending
judges. Let's fulfill our constitutional responsibilities. Justice
denied demands that that be at a minimum--and so forth and so on. I
could read other quotes. My guess is that if we searched the Record, I
would find quotes by myself.
I come to this debate in probably a slightly different way than some.
I am a freshman on the Judiciary Committee. I have spent plenty of time
over the last year watching the inner workings of the Senate judicial
nomination process. With all due respect to our colleagues on the other
side of the aisle, there is an emerging trend in the process that is
very disturbing to this freshman Senator on the Judiciary Committee.
I refer to an effort by a select few to legitimize probes into the
nominee's personal and political ideology, in addition to the nominee's
judicial philosophy. That is, they would have us ask what the nominee
thinks about such items as abortion, the death penalty, affirmative
action, even though the future job of the nominee has nothing to do
with what he or she thinks about these issues and everything to do with
how the nominee would apply and enforce constitutional, statutorial,
and common law in the cases involving those issues.
Now, that ought to be very clear and it ought to be a clear
difference between how one approaches a judicial nominee and how we are
now approaching judicial nominees. Those who have mounted this crusade
have tried to divert attention from serious constitutional problems
this process poses. They have held straw hearings and brought in
heavyweight legal scholars to say, of course, a nominee's political
ideology should be considered in the nomination process in an effort to
pass off. Everybody knows that sort of attitude. But the academic gloss
quickly wears off when there is no substance underneath, and they find
out this is not a probative debate on judicial philosophy, this is
really raw politics of the first instance.
[[Page 28734]]
In a 2001 Senate judicial committee hearing, the leading proponent of
the personal ideology probe said this: For whatever reason, possibly
Senators' fear of being labeled partisan, legitimate concerns of
ideological beliefs seem to be driven underground. It is not that we do
not consider ideology, we just do not talk about it.
Now you talk about it openly. If you do not have the right ideology,
you cannot make it to a vote on the Senate floor. You may be the
brightest legal scholar in the country, with an absolutely gold-plated
record, but if you do not walk the fine line of political attitude,
political philosophy, you do not cut it.
That Senator may truly not know that political ideology is not
traditionally the subject of an extensive probe. However, I would
submit that the rest of us do know the reason.
Law students--I have never been one--in their first year of law
school know the reason. They cannot tell you that when they are called
into the class, but a professor makes it very clear that it does not
matter what they think about the legal issue at hand but only what the
law is on the issue and how they should apply the law. That is what a
freshman law student finds out.
From the very beginning, it is not the politics of the issue, it is
the law: What does the law say, and how do you apply the law?
We are in the Chamber today not about law. We are in the Chamber
today because of politics, because these judges who have been
responsibly nominated by a President, brought before the Judiciary
Committee, with the highest possible credentials in almost every
instance, gold-plated records in the judicial process, cannot now come
to the floor for a vote, not even a simple up-or-down vote.
Why? Because the other side has now established a litmus test of
political philosophy, and if they do not meet it, they do not cut it.
That is the bottom line.
Our Democratic colleagues even know the reason. Let me tell my
colleagues what Senator Pat Leahy has said. I am quoting him. I would
not take him out of context. Nobody should take any Senator out of
context. Here is what he said: We need to get away from a rhetorical
and litmus test and focus on rebuilding a constructive relationship
between Congress and the courts. We need balance and moderation that
respects the democratic will and the weight of precedence. We do not
need our Federal courts further packed with ideological purity. We do
not need nominees put on hold for years while we screen them for their
Republican associations.
I guess the only thing I can say about that quote is: that was then,
this is now.
Senator Tom Harkin said: I thought that if the President nominated
them, they had a fair hearing, and they were reported out, my own
decision was whether or not they were qualified, not whether they were
ideologically opposed to me or to how I feel about what they believe.
Again, that was then, this is now.
So then Senator Harry Reid said: I do not think we should have a
litmus test on members of the subcabinet, the Cabinet, or the judges.
But then again, that was Harry Reid then, not Senator Reid now.
Although I myself have never studied the law, I know the reason, too.
I am going to try to be as honest as I always am on the floor and as
direct as I can be. When the nomination of Ruth Bader Ginsburg came up
for the U.S. Supreme Court in 1993, I was confronted with a nominee
whose past revealed that she had a vastly different political ideology
than my own. My constituents from Idaho, in fact, made it clear how
different she was in what she had done from the mainstream of my
State's thinking. However, Justice Ginsburg was a judge of great
ability, character, intellect, and temperance. Her record was replete
with this evidence, and though at one time she had been a vocal
advocate of particular political issues, she had a sharp understanding
of the limit, of the character of the judiciary and the role she would
play as a judge, a neutral arbiter, not an advocate.
Well, I voted for Ruth Bader Ginsburg, not because she had the same
ideology--my guess is she was here and I am there, and I think the
record probably clearly demonstrates that, but I was convinced she was
a bright legal mind who would, in fact, not be an advocate but a
neutral arbiter.
That is not the kind of judgment nor is that the kind of test that is
being applied to the nominees who are before us now. It is raw
politics, folks--nothing more, nothing less. It is a fine litmus test
of the attitude on the part of the Democrats, and if it does not match
the litmus test, they do not get the vote.
Now and then, of course, we probably ought to make a few examples
here to prove that you have that kind of power, or that you can exert
that kind of power, even in fact when the advice and consent clause of
the Constitution, in my opinion, and I think the opinion of a lot of
constitutional scholars--of which I am not one--is that we advise and
we dispose, or consent, and that you do that not by suggesting to the
President that he can only send up those who meet the narrowest of a
litmus test but those who meet the broadest and the most easily
substantiable character, quality, training, expertise, and talent. That
is what we want.
Our Founders also understood the reason judicial nominees should not
be subjected to personal ideologies. For instance, in Federalist Paper
78, Alexander Hamilton underscored how important an independent
judiciary was to the separation of powers:
The courts must declare the sense of the law; and if they
should be disposed to exercise will instead of judgment, the
consequence would equally be the substitution of their
pleasure to that of the legislative body.
To guard against such legislative encroachments, Hamilton emphasized
the need for qualified judges; that is, individuals who possess virtue,
honor, requisite integrity, competent knowledge of the law, be of fit
character, and those who have the ability to conduct the job with
utility and dignity. Character and competence is what Hamilton talked
of and was, therefore, the foundation of the judicial selection
process. Consideration of an individual's independent political will
would undermine it.
Yet today, we have slipped into that morass of politics. We are not
holding up individuals looking at them for the character of the
individual and the quality of the legal mind and how they have
demonstrated the use of that talent in their lifetime and through their
professional ways.
Those are the issues that are debated on the floor, and that is the
substance of this debate. For the first time, this freshman on the
Judiciary Committee is witnessing something unique, and that uniqueness
is quite simple. We are now applying politics instead of the judgment
of character to the judges the President is sending forth for us to
consider.
May I ask how much time remains on our side?
The PRESIDING OFFICER. Thirteen minutes, 50 seconds.
Mr. CRAIG. I yield such time to the Senator from Wyoming as he may
consume.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. THOMAS. I will not take much time. I have been listening, of
course, as we all have, to the debate, some of it from the chair this
morning. Nearly everything has been said, I suppose. Not all of us have
said it, and so it is important that we all do.
I am no expert in the judicial system. I am not on the committee. But
I have been here and I have observed what has gone on throughout this
whole last year. We keep talking about the fact that we ought to be
talking about unemployment, we ought to be talking about a number of
things, and I agree with that. We should have been doing that over the
last year, but we spent a lot of time on this very issue right here on
the floor when we could have been talking about energy; we could have
been talking about health care; we could have been talking about all of
those things.
So I kind of hate to hear that this 30 hours is holding things up
when we
[[Page 28735]]
spent much more than that with the other side simply holding up moving
things along.
I am convinced there needs to be a system in the Senate we can depend
on and work with, that we can bring it to a vote and decide yes or no.
There has to be that system. That is what this is all about. There
seems to be a lot of talk, of course, about the individual candidates
we are talking about here who have not been able to be dealt with. But
the real fact is it is the system that is in question. That is what it
is really all about, and I think we need to deal with that issue.
There has been obstruction, frankly. There has been obstruction on
almost all of our issues. It has been called slow-walking. Some
evidence of that from last year is that we did not even get a budget.
Remember that? We did not even get appropriations through the whole
year.
That same obstructionism has been going on this year. It is all
political. It is too bad, really, because we have so much we can do and
so much we really ought to do. We have a constitutional duty, of
course, to provide the advice and consent of these nominations. It is
pretty simple. The Constitution specifically requires a supermajority
for overriding a veto, for impeachment, for ratification of treaties.
Advice and consent is not in that category and has not been in that
category.
As I said, I will not take long. Some of the past comments from the
other side of the aisle I think have been interesting as time goes by.
Let me quote from Senator Edward Kennedy from the Congressional Record
in 1999, in September: Delays can be described as an abolition of the
Senate's constitutional responsibility to work with the President and
ensure the integrity of the Federal courts.
Another quote: The delay has been especially unfair to nominees who
are women and minorities, selected for that sort of business.
Another from the Senator from California: I am very glad we are
moving forward on judges today.
We have all heard, as we were growing up, that justice delayed is
justice denied. We have vacancies in many of our courts that have gone
on for a year or 2 years, in many cases getting to a crisis level. I am
pleased we will be voting. I think whether the delays are on the
Republican or Democrat side, let the names come up and let us have a
vote. Let us debate and have a vote. The Senator from California and I
agree with that point of view.
I yield the floor.
Mr. CRAIG. Mr. President, I thank the Senator from Wyoming for his
comments as we debate this issue. How much time remains on our side?
The PRESIDING OFFICER. There are 9 minutes 40 seconds.
Mr. CRAIG. I yield to the Senator from Utah 8 minutes.
Mr. BENNETT. Mr. President, we have compared numbers around here,
particularly the number of 168 to 4 over and over again. I make it
clear that these two numbers are not in the same ballpark; that is,
this is not 168 who have been approved and 4 who have been disapproved.
There has been no vote disapproving the 4. Rather, it is 168 who have
received a vote in the tradition and the precedent set and maintained
for 214 years.
The Constitution was ratified in 1789, and from that time forward
there has never been an instance where a judge reported out of the
Judiciary Committee, or whatever committees preceded the Judiciary
Committee in the existence of the Senate, never been a time when a
judge whose name has come to the floor has been denied a vote until
this year. If you take apples and apples, if you take the number of
those reported to the floor and voted on until this year, the number
was 2,372-0 for 214 years. Whether it was under control of the
Democrats or the Republicans, this body never denied a reported nominee
a vote. Some of those who got votes got defeated, but no one who was
reported was denied a vote until this year.
We talk about the law. We talk about the Constitution. One of the
parts of the law as I understand it becomes established is the question
of precedent, 214 years of precedent, 2,372 cases of precedent upset in
this Congress by the Democratic leadership.
A lot of people have called a lot of people names during this debate.
I don't want to do that. I was urged to do that just before I came over
here by some who said: Why don't you say the kind of things about them
they are saying about you or their nominees? Mix it up.
I don't want to do that because I don't think that is useful. What I
would like to urge on the Senate on this occasion is that we go back to
a proposal that was made some years ago by the Democrats, specifically,
Senator Lieberman and Senator Harkin, a proposal endorsed by Senator
Daschle, that said let us eliminate the filibuster for nominees, start
out with a 60-vote cloture motion, followed up with a second cloture
motion at a lower level, follow it up with another cloture motion at
another level, and so on. The Republicans did not endorse that. I am,
today, rising to endorse that. I am today rising to say, we thought
that rule change was not necessary because we thought the precedent
would hold. But the precedent has now been broken. The precedent did
not hold.
The time has come to recognize the wisdom of Senator Lieberman and
Senator Harkin and Senator Daschle and others to change the rules. The
vote we will have tomorrow on what is now called the Frist-Miller
proposal is a vote to endorse the wisdom and farsightedness of Senator
Lieberman, Senator Harkin, and Senator Daschle in previous Congresses.
And the practical effect of passing Frist-Miller will be to establish
in the Senate rules a 214-year-old precedent that has been broken in
this Congress for the first time. The effect would be to establish in
the Senate rules a precedent that has held up 2,372 times, and has only
fallen in this Congress. It will be a vote to make a bipartisan
solution to a problem that has spawned far too much acrimony, far too
much controversy. It will be a permanent solution to this matter.
It will not solve the question of Miguel Estrada who was tired of
having his reputation trashed and decided to withdraw and thus deprive
the United States of the opportunity to have the services of a man who
excelled academically, who excelled professionally, who, though he was
appointed to the Solicitor General's office by the first President
Bush, was maintained in that office for several years by President
Clinton because they thought he was that good.
Today he has been attacked on this floor as a lemon, someone who
deserved to be rejected. We have fallen to that level of discourse, and
we should avoid that level of discourse. Let us adopt a bipartisan
solution which Republicans previously blocked. This Republican is
prepared to repent. This Republican is prepared to say, OK, I recognize
the wisdom of Senator Lieberman's proposal. I am willing to endorse it.
Now it is before us once again. Let us not kill it just because it
bears the name Frist-Miller instead of the names Lieberman-Harkin as it
originally had.
Give Members an opportunity to put the bitterness, the wild and
sometimes excessive statements behind us and move forward in the future
as we have done in the past for 214 years to see to it that any nominee
who makes it through the committee process and gets reported to the
floor gets voted on, whether he or she is a Republican or a Democrat,
Hispanic or an African American, a Roman Catholic or a Jew or whatever
the situation. If he or she survives the committee process and comes to
the Senate floor, he or she deserves a vote in the same tradition that
we have followed for 214 years.
I yield the floor.
Mr. CRAIG. How much time remains on this side?
The PRESIDING OFFICER. There are 2 minutes 15 seconds.
Mr. CRAIG. Mr. President, let me be brief and close. I see the
Senator from Washington and the Senator from Wisconsin ready to speak.
As the Senator from Washington engages this afternoon, I would like to
quote some of her comments so they are fresh in her mind.
Senator Murray raised the issue of the action on female and minority
[[Page 28736]]
nominees was denying justice and holding the system hostage. On
September 14, 2000, she said at a press conference: Our justice system
is being held hostage and American communities are paying the price.
Senator Murray went on to say at a press conference on September 14:
This delay is especially troubling when we look at what happens to
women and minorities. It is time to dismantle the glass ceiling and let
qualified jurists take their place on the bench. We are here to send a
message. Confirm the judicial nominees pending before the Senate and
let these qualified men and women fill the vacancies of the courtrooms
across America.
That is a quote from the Senator who is about to address this
afternoon the issue of the filibuster of the qualified judges who are
before the Senate. I hope her statements of less than 3 years ago would
be fresh again in her mind as she resumes the debate this afternoon.
I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, this morning on the Senate floor I spoke
at length about the importance of the Senate's role in confirming
judges for lifetime appointments and talked of the success in the
Senate confirming 98 percent of the judges sent to the floor. We have,
I remind our colleagues, confirmed 168 judges on the Senate floor. That
is pretty impressive. But all the Senate action that is important to
occur before the end of the year is now being held up over four judges.
I also talked this morning about the success we had in Washington
State using a bipartisan commission to select and confirm qualified
judges. This morning I noted that we should be spending our time on
much more pressing issues like helping the many unemployed workers who
are about to run out of unemployment benefits.
We are wasting 2 days of the Senate's very limited time left in this
session on four judges. We certainly have more important things to do.
We were supposed to pass 13 appropriations bills by October 1. We did
not. Today, more than half the bills that fund the Federal Government
are incomplete, waiting for congressional action. We have a lot of work
to do that affects millions of families. But instead, we are wasting 30
hours of the Senate, precious hours of time talking about four judges.
What we are not doing is we are not helping laid-off workers in these
30 hours. We are not improving health care. We are not fixing roads
across this country. We are not improving the economy. We are not
helping our troops. And we are certainly not improving veterans care.
We are not doing anything for the millions of Americans who need help
today because the other side is tying the Senate in knots so nothing
can get done.
What we are doing right now reminds me a little bit of the behavior
back in 1995 when the other side did not get exactly what they wanted
on the budget, so they shut down Government. Boy, we really heard from
people across the country when the Government was shut down. Federal
services were shut down, people could not get their Social Security
check, agencies were shut down. The needs of every American were set
aside at that time so Republicans could complain about a budget with
which they disagreed.
The same thing happened here today. The needs of every American are
being set aside so Republicans can complain about four judges they want
confirmed. Forget the laid-off workers, forget health care, forget
education. The other side wants to make a point, and they are shutting
down the Senate and the needs of the American people so they can make
that point.
Each passing hour on this floor feels more and more like the
Government shutdown of 1995. We cannot work on critical needs because
the other side is holding things up. After 30 hours of hearing about
this, the American people will get it. They will see that we are not
working on the things that really do matter to them. I am sure many
Americans are scratching their heads, wondering what is going on in the
Senate. The answer is, we are not working on jobs. We are not working
on education. We are not working on health care because the majority is
upset we have confirmed only 98 percent of President Bush's judicial
nominees.
As I mentioned this morning, there are much more important things we
need to be doing. We do need to extend unemployment benefits for laid-
off workers. I tried to bring up the bill to help laid-off workers get
unemployment benefits, but when I bring it up the majority says it is
not the right time to discuss helping laid-off workers.
I invite the majority to explain to laid-off workers in my State who
are going to exhaust their benefits on December 31 why we are talking
about judges instead of helping those laid-off workers? These hours
that we are wasting on this manufactured crisis could be much better
spent on the real crisis facing so many Americans.
Two weeks ago I introduced legislation to extend unemployment
benefits to workers who will run out of benefits on December 31, right
after Christmas. For millions of Americans who cannot find jobs, the
clock is ticking and every day counts. Unless this Congress acts, those
families are going to start the new year without a job and without any
help paying for the basics like housing and food and medicine.
Two weeks ago I introduced the amendment in the Senate. If the
majority wants to vote against helping laid-off workers, that is their
choice, but we are going to force them to take a vote because working
families should not be punished any more than they already have been in
this tough economy.
Congress cannot leave town for the year--and many people are talking
about ending next week--we cannot end next week without extending the
benefits on which these many families rely. We have extended benefits
in past recessions and we need to do it in this recession because the
clock is ticking.
In my home State of Washington, we have the third highest
unemployment rate in the Nation. It is 7.6 percent. Since President
Bush took office, we have lost more than 70,000 jobs in Washington
State. Those laid-off workers want jobs. They are eager to work. In
King County alone, 10,000 people are on a waiting list for job
training. They want to provide for their families, but they are about
to get cut off unless the Congress does the right thing and extends
unemployment benefits. If Congress does not extend those benefits,
another 124,000 in my home State, Washington State, will exhaust their
benefits by December 31. These families are draining their savings
accounts just to hang on. Many of them have run out of options. But
they still have to pay their mortgage. They still have to pay their
medical bills. They still have to pay college tuition. That is why they
need these unemployment insurance benefits.
The bill I introduced will do three things. First, it will help
families as they try to get back on their feet. These benefits simply
will help them buy groceries, pay the mortgage, keep their kids in
college. It will give them a little bit of cushion as they try to find
work.
Second, extending benefits will help stimulate the economy in every
State and every Member wants their economy to be better in their State
because when we send the unemployment insurance, people then have the
money they need to buy things for every day. That will be a shot in the
arm for the hard-hit States, for our hardware stores, for grocery
stores, and all of our businesses like that. It means these people will
have the money they need to keep those businesses going as well.
Finally, extending benefits will help stimulate our Nation's economy.
Every dollar invested in these benefits generates another $1.73 for our
economy.
Laid-off workers deserve a vote on this bill. They deserve a debate
on this bill. They deserve time in the Senate on this bill. They need
our help. We should be using 30 hours of time to talk about the
unemployed workers, the difficulties facing them, and how we in this
Congress are going to get them back on their feet. That is what we
should be spending 30 hours on.
It seems to me at a time when we are spending $1 billion a week in
Iraq, the
[[Page 28737]]
very least we can do is give unemployed Americans a few hundred dollars
a week. Congress cannot leave town without providing a life line to
laid-off workers. The clock is ticking, time is running out, and we
should be helping laid-off workers instead of squandering our limited
time on the judges issues.
To understand how serious this is, I will read some letters from the
people I represent.
How much time remains on my side?
The PRESIDING OFFICER. The Senator has 21\1/2\ minutes.
Mrs. MURRAY. I ask the Presiding Officer to notify me when I have
used 6 minutes.
The PRESIDING OFFICER. You will be notified.
Mrs. MURRAY. Let me read a letter from Laura Perry in Battle Ground,
WA, a small community in southwest Washington. Laura wrote:
I really need to know what is being done not only in the
State of Washington, but in Congress to acknowledge workers
who have lost their jobs.
Millions of us are going to lose our homes!
Throughout my life, I have done all the right things to
stay current with the job market.
In spite of this fact and having a college degree, I lost
my job after 9/11 when my company closed the northwest branch
office due to the economic downturn.
Now, a year and one-half later, I find that I do not fit in
all the niches for acquiring employment retraining because I
am not on welfare, I haven't been employed by Boeing, I am
not a dislocated homemaker, and I am not a veteran.
Please let me know what is being done to help the
unemployed in this country when the unemployment insurance
runs out.
For the first time in my life, I am also without medical
benefits.
I think Laura Perry deserves 30 hours of time on the Senate floor.
Let me read a letter from Marshall Dunlap of Kent, WA, a suburb out
of Seattle. He writes to me:
Please support the upcoming bill to extend unemployment
benefits to those who have lost our jobs.
It doesn't help the economy when millions of us are about
to become homeless.
I would prefer a job but until the economy recovers I am
finding this impossible.
I am a high tech worker and have no other skills.
I am 53 years old and have very few options.
For every job I apply for there are hundreds of other
applicants.
Once the economy comes back, I'm sure I'll be able to
support myself but without help until that happens I will
lose my house.
I know I am not alone so imagine the problem multiplied by
millions.
There are over 97,000 people unemployed in the Puget Sound
are alone. Please help.
That is from Mr. Marshall Dunlap, in Kent, WA.
I think Marshall would prefer we were spending 30 hours talking about
how we are going to help him get back into the workforce and able to
provide for his family.
Here is a letter from Ronnie Harper of Kingston, WA:
Thank you very much for working to extend UI benefits in
the state of Washington.
I moved here 6 years ago to enter the technology market,
which I did immediately upon my arrival.
Unfortunately, things turned sour at Hasbro last year
because people stopped buying toys, and I was laid off after
5.5 years of exemplary service.
I have been working extremely hard over the past year to
find another job; a job that is in the IT industry with a
competitive compensation package.
My efforts have been practically fruitless, with most
employers even refusing to discuss their reasons for not
considering me for their open positions, and many filling
posted positions internally.
At this point, I am on my last week of unemployment
insurance, and I have mouths to feed. I hope very much that
this bill is successful, please keep us posted!
That is from Ronnie Harper in Kingston, WA.
Unfortunately, I need to add that since he wrote this letter to me,
Mr. Harper has now exhausted his benefits. That is why I think this
Senate needs to act and why we should be spending 30 hours of debate
time talking about how we are going to help Mr. Harper.
Mr. President, how much time do I have left?
The PRESIDING OFFICER. Seventeen minutes 40 seconds.
Mrs. MURRAY. Mr. President, let me add one final letter before I turn
it over to my colleague from South Dakota who has been waiting in the
Chamber.
This is a letter from Bill Gilbertson of Sequim, WA. He says to me:
Dear Senator Murray: Thank you for your support of S.1708,
Emergency Unemployment Compensation Act.
Your comments to the Senate, describing the real life
problems of being unemployed will hopefully encourage passage
of this important matter.
Please pass on my comments to your colleagues who don't
know what its like to be jobless.
Life without a job is a demeaning experience; it affects
all aspects of your life.
You have to be very careful with the little money you have,
only necessities can be considered.
Fear, low self image, feeling of lack, and despair of the
future are some of the challenges you face when hit by
unemployment.
I have been unemployed now for over a year, it's been
tough, but I won't give up till I get a job.
Extension of S. 1708 would really help me thru this.
That is Bill Gilbertson of Sequim, WA.
We are talking about real people facing real problems. I think it is
essential that this Senate deal with this issue now.
Unanimous Consent Request--S. 1853
Because of that, I ask unanimous consent, Mr. President, that the
Senate proceed to legislative session and the Finance Committee be
discharged from further consideration of S. 1853, a bill to extend
unemployment insurance benefits for displaced workers; that the Senate
proceed to its immediate consideration, the bill be read a third time
and passed, and the motion to reconsider be laid on the table.
The PRESIDING OFFICER. Is there objection?
Mr. CRAIG. Mr. President, reserving the right to object, I appreciate
the concern of the Senator from Washington. The Senate is in session.
The Senate is working. It is November 13. The timeline she has outlined
is December 31.
Mrs. MURRAY. Is there an objection?
Mr. CRAIG. I therefore object.
The PRESIDING OFFICER. Objection is heard.
Mrs. MURRAY. I am deeply disturbed to hear that. The Senate is going
to be out of session shortly. Everyone wants to finish by Thanksgiving.
I am sure the letters I have read from a few of the people in my State
reflect a lot of people's concerns that these people are going to be
facing Thanksgiving without knowing how they are going to be paying for
their mortgage, their food, and their basic necessities.
The PRESIDING OFFICER. The Senator has used 6 minutes.
Mrs. MURRAY. Mr. President, I yield to my colleague from South Dakota
who has been waiting.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. JOHNSON. Mr. President, I rise today to express not just my
profound disappointment but, very frankly, my contempt for the
outrageous political ploy the Senate Republican leadership is foisting
upon this Senate and upon the American people.
This is a monumental waste of time, every Member knows that, at a
time when we have so much work to be done, to be wasting 30 hours--now,
I understand, perhaps more than that--on a false, fabricated issue.
On top of that, all of this, I am being told, is costing the
taxpayers at least $100,000--taxpayer money for this political ploy to
be brought to the floor. And as the media has said from all around the
Nation, there is no judicial crisis in America at the Federal level.
This is a fabricated crisis which, frankly, is a polite way of saying
that what is being brought to the floor is a fake. It is phony. It is
fabricated. At stake is not a principle; at stake is--let's face it--
money.
What is at stake is the far radical right of the Republican coalition
with their vision of an America with no Social Security and no
Medicare, no Federal role in the schools, what have you, a radical
vision that very few Americans share. They have let it be known to the
Republican leadership of the Senate here that they are going to not be
as generous with their political contributions if they do not see more
noise and more combat on behalf of a tiny
[[Page 28738]]
percentage of judges nominated by the President.
This, what we have here today, and last night, and on into the night
tonight, is an incredibly cynical political ploy not worthy of the
Senate, certainly not worthy of the American people, Republican or
Democrat.
The American people deserve better. They deserve better of this
institution than what the Republican leadership has foisted on this
country; and then, to add insult to injury, putting it on the credit
card of the American people.
So far, this President has had 168 Federal judges--virtually all
conservative, Republican judges--approved by this Senate, and I have
voted for most of them. So the question is not whether the Senate will
approve conservative Republican judges--we have over and over and over
again; 168--but the Constitution requires the Senate to provide advice
and consent to this President or any President on these appointments,
which are of a lifetime nature. This is not some Cabinet appointee who
will come and go with whoever is President. These people will sit on
the Federal bench for as long as they live, if they so choose. Much
longer than virtually anyone in this Chamber will live, these nominees
will still be there.
If the expectation--which apparently is the logic of the opposition
here today--is that anything short of 100 percent approval of these
judges is out of compliance with the obligation of the Senate, then
what does that say about our Republican friends' notion of what advice
and consent is all about?
Now, President Bush, obviously, with 168 successes to 4, could have
100 percent success if he would send us mainstream, conservative
Republican judges, which he mostly has done. But obviously he has taken
the political tactic of rounding up a handful of judges who are
absolutely beyond the pale and sending them here knowing they would be
lightning rods, knowing they would energize the radical, political
right in this country, and it would gin up political contributions.
That is what this is all about.
Now, when President Clinton was President, he was told: Do not send
any liberals to be nominated for the bench. They will not even get
hearings, much less votes on the Senate floor. And that turned out to
be true.
The Senate, because of our parliamentary rules, allows the minority
party to exercise a 60-vote criterion on issues that are controversial.
It is one of the reasons the Senate has long been the institution of
moderation, relatively speaking, in the Congress, because while in the
other body the majority of one allows them to jam almost anything
through that body, on the Senate side we have an ability to enforce a
certain level of bipartisanship because nobody can get anything done
that is controversial without 60 votes. I would suggest that this is
one of the geniuses of the Senate, that this is not the House of
Representatives, that there is a certain level of consensus that is
required to get things done in the Senate, and I believe that is what
the American people want to see.
Now, we respect the right of this President to nominate like-minded
people to the bench. He has. And they have been approved--168 of them.
But where those people, those nominees, fall outside of the broad
consensual understanding of the Senate, and cannot get 60 votes, those
nominees ought to be rejected.
They will be easily filled by other no doubt conservative
Republicans, but at least people who have the respect of the bar
associations, of the Senators of their States, and who fall clearly
within the mainstream of contemporary legal and political thinking.
Mr. President, 98 percent of the administration's judicial nominees
have been confirmed--98 percent. That is a good success ratio in almost
any human endeavor, contrary to what you hear from the other side.
Mr. President, 95 percent of Federal judicial seats are now filled.
We currently have the lowest judicial vacancy rate in 13 years. If
anything, this Senate ought to be patted on the back for its
acceleration of judicial nominees the Judiciary Committee has
considered and the floor has approved.
Last year, the Senate, led by my colleague from South Dakota, Senator
Daschle, confirmed the largest number of judicial nominees in a single
year since 1994--a remarkable track record. So to stand this on its
head and suggest there is some sort of an obstruction, some sort of
interference with the process, it goes beyond outrage, it defies
comprehension.
Sometimes we hear: But what about the appellate judges? Well, the
Senate has confirmed 29 of President Bush's circuit court of appeals
nominees to date. More Bush circuit court nominees--get this, and this
is the highest Federal court until you get to the Supreme Court--than
Clinton, Reagan, or George Herbert Walker Bush had by this point in any
of their administrations.
We also hear that this process requiring 60 votes, this process
requiring bipartisanship on judicial nominees for their lifetime
appointments, is some unprecedented sort of thing. Well, that is far
from the truth.
Our Republican friends required 60 votes on 6 Democratic judicial
nominees on the floor and filibustered 63 nominees in committee. So
there is nothing unprecedented that is going on here. What is happening
is there is an enforced bipartisan, an enforced moderation that I think
is good for the country, and certainly good for the Federal bench, at a
time when this country is narrowly divided, at a time when we are
approving people who will serve on that bench for a lifetime.
What is sad is that while these hours are being devoted to a
fabricated fake crisis that has to do with political fundraising, we
are not getting on with the issues of jobs, of education, of health
care, and prescription drugs. We have an Energy and Medicare bill in
conference, but they are both on life support as we speak.
The budget, which was supposed to have been done by October 1, the
first day of the Federal fiscal year, has not been done. It is not even
close to having been done. And yesterday Senator Byrd, our colleague
from West Virginia, noted that this week, the week of Veterans Day, the
Republican leadership insisted we shut down the debate on the Veterans
Administration legislation appropriations bill in order to consume this
time on this issue. The American people deserve better than that.
I have to wonder if the other side that concocted this cockamamie
scheme has any shame at all, to have done this to the American people,
and to have done this to this institution. We ought to be talking about
the jobless economy that continues to drag on. The economy would now
have to create 326,000 jobs every month to keep the Bush administration
from having the worst job creation record of any administration since
the Great Depression.
As of October 2, 2 million people have been unemployed for over 6
months, more than triple the number at the beginning of the Bush
administration. That remains the highest level in 10 years. Almost 5
million people work part time because of the weak economy. This is an
increase of 44 percent since January of just 2001--the highest level in
almost 10 years.
Talk about crisis. Talk about the need for attention. What about an
increase of 44 percent in part-time workers and record high
unemployment? Mr. President, 24,000 manufacturing jobs were lost last
month alone. Imagine that, 24,000 manufacturing jobs just last month
lost. And in too many cases, those jobs are not coming back.
Talk about crisis. That is what this body ought to be talking about.
According to job placement firms, planned layoffs of U.S. companies
shot up to 172,000 jobs in October from 75,000 in September. Announced
layoffs are at their highest level since October 2002, when 176,000
jobs were cut.
Recent studies suggest that jobs lost since 2001 are now gone for
good. A study by the Federal Reserve Bank of New York has concluded
that the vast majority of job losses since the beginning of the 2001
recession were the result of permanent changes in our economy and are
not coming back.
[[Page 28739]]
The labor market is not going to regain strength until positions are
created in new economic sectors. The surge in discouraged workers masks
the true impact of the economic downturn.
Currently, 1.6 million people are marginally attached to the labor
force; about 462,000--almost a half million of these workers--have
stopped looking for work altogether because they do not believe there
is any work available.
African Americans and Hispanics bear the brunt of the economic
downturn. During a month with a net gain in jobs, the unemployment rate
among African Americans jumped to 11.5 percent in October, about twice
the national average. The unemployment rate among Hispanics, 7.2
percent, is far higher than the national average.
This anemic job creation of the last month provides about 25,000
fewer jobs than are required to even keep up to the new entrants into
the labor market. We actually lost ground this last month, meaning
young people leaving high school and college cannot find work in too
many cases. In addition, average hourly wages increased by 1 penny last
month.
So when we talk about urgency, when we talk about a crisis, we need
to get past the right-wing politics and get back to political
moderation, which is what this 60-vote requirement requires of this
body, and we ought to get back to the real issues the American public
want the United States to be considering.
The PRESIDING OFFICER. The time of the minority has expired.
Mr. JOHNSON. I yield the floor.
The Senator from Mississippi.
Mr. LOTT. Parliamentary inquiry, Mr. President: I believe there will
now be another hour, 30 minutes to the Republican side of the aisle,
followed by 30 minutes to the Democratic side of the aisle.
The PRESIDING OFFICER. The Senator is correct.
Mr. LOTT. Under that agreement, I am glad to yield such time as he
may consume to the distinguished senior Senator from my great State of
Mississippi, Mr. Cochran.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. COCHRAN. I thank the Chair. Mr. President, I appreciate my
colleague yielding me time.
Back in 1787, with a great deal of disenchantment around the country
with the Articles of Confederation, a new Constitution was written to
bring all the States of the Union into a workable bond. One of the
fundamental principles reflected in that Constitution, as explained in
the Federalist Papers, was majority rule. It was a difficult concept
because the States were not all the same size, and the Senate would
have two Members from each State.
There were situations that could develop when a minority of Senators,
or Senators reflecting a minority of the population, could actually
cause a decision to be made in behalf of all of the people of the
country. So there are controversies surrounding that principle. But it
was a fundamental maxim that is reflected in the Federalist Papers.
One other complicated factor is Gov. George Clinton of New York was
strongly opposed to ratification of the Constitution. The Framers
thought if he prevailed, then it might kill the effort to ratify the
Constitution and get the country moving forward to fulfill the hopes
and aspirations of the Framers.
Alexander Hamilton was also from New York, and he took the lead in
crafting some essays that were published in newspapers in New York to
convince the general public and, through them, the legislators who
would vote on ratification that the Constitution was a good idea for
the country. He was joined, of course, by James Madison and John Jay.
They all collaborated, contributed to the essays published under the
pseudonym Publius, and they were persuasive.
That majoritarian principle has been carried down through the years
in our country, in our Government, in our Federal system. Now only in
exceptional circumstances is more than a majority needed on any
particular issue. As a matter of fact, the Constitution itself States
that supermajority voting requirements exist only in certain specific
circumstances. Confirmation of judges and other high-ranking officials
in the administration are not among those instances where a
supermajority is required by the Constitution.
The Framers were committed to the majority-rule principle, and the
rules of the Senate carry forward that principle. But this year, the
Standing Rules of the Senate are being used in an unprecedented way to
impose a supermajority requirement of 60 votes to obtain confirmation
by the Senate of Presidential appointments.
Article II of the Constitution creates a unique relationship between
the President and the United States Senate in the selection of people
to serve in the Government. It provides that the President ``by and
with the Advice and Consent of the Senate, shall appoint'' and then it
lists those that come under this section.
Section 2 of article II actually contains the exact language. It is
instructive to be reminded what the Constitution itself says:
He shall have Power,--
The President--
by and with the Advice and Consent of the Senate, to make
Treaties, provided two-thirds of the Senators present concur;
and he shall nominate, and by and with the Advice and Consent
of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments are
not herein otherwise provided for, and which shall be
established by law; but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper,
in the President alone, in the Courts of Law, or in the Heads
of Departments.
It is very clear, in my mind, that this majority principle is
supposed to apply and obtain in the votes for confirmation as described
in section 2 of article II of the Constitution.
The filibustering of nominations is a new development. Prior to this
year, the number of cloture votes taken on any executive nominee was
three, and on any judicial nominee, it was two.
The cloture rule was adopted by the Senate in 1917. This was the
first time Senators were guided by a procedure for bringing a debate to
a close on any measure, motion, or other matter pending before the
Senate.
Over the next 51 years, no judicial nomination was filibustered, and
not one cloture vote was required to end debate on a judicial nominee.
The minority has begun a process that only history will be able to
judge, but I fear--I genuinely fear--that nominations in the future by
any President will be denied confirmation unless they can muster 60
votes to win approval by the Senate. That is not what the Constitution
requires. That is not what the rules of the Senate require. A 60-vote
requirement for the confirmation of Federal judges is not consistent
with the history and the practices of the Senate. It must be rejected.
If we are unable to prohibit this practice by a change in the Senate
rules, we will find it harder than ever before to attract talented and
well-qualified candidates to serve in the Federal judiciary.
The PRESIDING OFFICER (Mr. Smith). The Senator from Mississippi.
Mr. LOTT. Mr. President, I thank my distinguished colleague from
Mississippi for his comments. He has shown, once again, he is a student
of the Constitution and of the law. I hope our colleagues found his
speech to be informative, and I keep hoping and praying that there will
be a change of heart and mind in how we deal with this issue.
Mr. President, the debate that has been taking place for nearly 24
hours is the culmination of 9 months of obstructionism by a minority of
Senators who have subverted the Constitution's advice and consent
provisions and undermined the very fundamental tenets of democracy.
It is an elementary principle of democratic government that the
majority determines the outcome of political questions. Certainly the
minority has a right to state it's case and have input into the issues.
But at the end of
[[Page 28740]]
the day, when the final decision is at hand, a majority decides the
outcome.
Yet in the 108th Congress we have seen an unprecedented attack on
this core principle of democracy. Instead of majority rule as our
governing principle, we have the rule of the minority. Four nominees to
the Courts of Appeal are supported by a clear majority of Senators. Yet
a minority of Senators refuses to allow the Senate to vote on these
nominations.
The Founding Fathers well recognized the dangers inherent in granting
a minority a veto over the will of the majority. James Madison, in
Federalist 58 pointed out that the Constitutional Convention explicitly
rejected the idea that Congress be required to adopt a supermajority
quorum to transact business. He warned that the ``fundamental principle
of free government would be reversed,'' if we allowed a minority to
overrule the majority.
Why is majority rule the ``fundamental principle of free
government?'' Simply stated, Mr. President, if the will of the majority
is not the prevailing principle, then it is legitimate for one person,
whether a king, or autocrat, to determine the fate of political
society. Our Founding Fathers rejected that idea and all of American
society has rejected that concept since 1776.
Unfortunately, what we have witnessed over the past 9 months in
connection with the nominations of Miguel Estrada, Priscilla Owen,
William Pryor, and Charles Pickering is a hijacking of the Senate's
constitutional responsibility to advise and consent on the President's
nomination and to accept the idea of majority rule.
A minority of Senators have literally rewritten the Constitution to
engraft a supermajority rule into the confirmation process, a
requirement that completely contradicts the intent, spirit and language
of the Constitution.
The Founding Fathers believed there were a few extraordinary
instances where supermajorities are necessary and they spelled them out
in the Constitution: Ratification of a Treaty; override of a
presidential veto; conviction in a case of impeachment; passage of a
constitution amendment; and expulsion of a Member.
Amendments to the Constitution have added two other supermajority
requirements--one, a post-Civil War disqualification rule for serving
in Congress; and another regarding a determination of whether a
President is disabled.
But now a minority in the Senate has effectively rewritten the
Constitution to demand a supermajority vote on some Presidential
nominations. That completely contravenes the Constitution.
When the members of the Constitutional Convention considered the
appointment power, they first debated placing the appointment power in
the Senate. However, that idea was rejected because the members of the
Convention believed the Senate was ``too numerous and too little//
personally responsible, to ensure a good choice,'' according to
Madison.
The convention also considered giving the President the sole
authority of appointment. In an effort at compromise, Madison suggested
that the power of appointment be given to the President with the Senate
able to veto the choice only if two-thirds of Senators opposed the
nomination. Ultimately, the Convention allowed for a simple majority
vote on the President's nominations.
The Founders were so confident that the power of judicial appointment
is primarily an executive function that they wrote into the
Constitution a provision that allowed Congress to pass a law giving the
President exclusive authority to appoint all judges below the Supreme
Court. In addition, the President was granted the power to make
temporary appointments when the Senate is in recess.
You can search the historical record and not find a single shred of
evidence to suggest that the Framers of the Constitution ever
envisioned a scenario where a minority of the Senate could cause the
rejection of a Presidential nominee. But that is exactly the situation
we face today.
On 7 different occasions, as many as 55 of 100 Senators voted in
favor of ending debate on the nomination of Miguel Estrada. But the
minority obstructing his nomination refused to allow an up or down vote
and ultimately Mr. Estrada withdrew his nomination.
Fifty three Senators voted to end debate on the nomination of
Priscilla Owen. But the minority refused to allow an up or down vote.
Fifty three Senators voted to end debate on the nomination of William
Pryor. Again, the minority refused to allow an up or down vote.
And just 2 weeks ago, a majority of 54 Senators voted to end debate
on the nomination of Charles Pickering. And once again, the minority
prevented us from bringing this vote to a conclusion.
This undemocratic obstructionism threatens to destroy the integrity
of this institution.
I have heard it said by some who are blocking the President's
nominations, that there is nothing wrong with the confirmation process.
They say we've confirmed 168 of the President's nominees; why is there
a problem just because we block four nominees? 168-4 is a pretty good
record, they say.
I would like to bring to the Senate's attention another statistic:
The number of President Clinton's judges that were blocked by Senate
filibusters. 0. No a single Clinton nominee who was brought to the
floor was blocked by a filibuster.
Cloture petitions were filed on 5 of President Clinton's nominees.
But every single one of those nominees was given a straight up or down
vote. Every one of them. So if we are comparing records, here is the
record that matters: Four of President Bush's nominations blocked by
filibuster and none of President Clinton's nominees blocked by
filibuster.
This is not baseball or basketball; this is the responsibility of the
Senate to live up to its Constitutional responsibilities. And what a
minority of Senators have done is to create a double standard for
judicial nominations. They say for some judges, we accept the
constitutional mandate of a majority vote. But for other nominees, we
have created an extra-constitutional higher standard.
For nominees Miguel Estrada, Priscilla Owen, William Pryor, and
Charles Pickering, a constitutional majority is not good enough. You
have to garner a supermajority.
That's a standard that is not fair, yet that is precisely what a
group of Senators in the minority have demanded. And as a result, they
are failing to fulfill their constitutional responsibility to provide
advice and consent.
For those who say there is nothing wrong with the confirmation
process, I say look at this chart.
Up until 1968 there was never a filibuster of a judicial nominee. In
some instances, cloture was filed twice and even when cloture was not
invoked, every single nominee whose name had not been withdrawn was
given an up or down vote.
We have had an unprecedented 7 cloture votes on Miguel Estrada and 3
on Priscilla Owen. In both cases, a majority of the Senate voted in
support of the nominees. But a minority of Senators refuse to give
these nominees straight up or down votes as required by the
Constitution.
I believe that establishing a rule that if a nominee cannot garner a
supermajority of 60, the nominee will not be entitled to a vote is a
very dangerous precedent that will haunt this chamber for decades to
come.
We have never in 214 years established such a rule. Even in the case
of the most controversial nominees in recent memory--Robert Bork and
Clarence Thomas--the Senate carried out its constitutional
responsibility by giving each of them an up or down vote.
In June, I chaired a Rules Committee hearing on judicial nominations
where one of the witnesses claimed that in the 19th Century, there were
several instances where a minority of Senators prevented the Senate
from considering judicial nominees. I would like to take a few moments
to clarify the record on this issue.
In December, 1828, lame duck President John Quincy Adams nominated
John Crittenden to the Supreme Court.
[[Page 28741]]
In February 1829, a month before Andrew Jackson was to be sworn is as
President, the Senate voted 23-17 to postpone the nomination until
Jackson came into office. Clearly, in this instance a minority was not
blocking the will of the majority.
In June, 1844, President John Tyler nominated Ruben Walworth and
Edward King to fill Supreme Court vacancies. The Senate, by votes of
27-20 and 29-18, voted to postpone the nominations. After Tyler was
defeated in the 1844 election, he resubmitted the Walworth and King
nominations. The Senate refused to vote on the nominations submitted by
the lame duck.
John Meredith Read was also nominated by lame duck President Tyler. A
month before Tyler's successor was to be sworn into office, the Senate
voted to adjourn rather than consider the Read nomination. Obviously,
the will of the majority was not thwarted by the minority when the
Senate voted to adjourn.
In the summer of 1852, President Millard Fillmore nominated Edward
Bradford to the Supreme Court. The nomination was made just before the
Senate was already planning to adjourn. It adjourned before considering
Bradford's nomination. When the Senate reconvened, Franklin Pierce had
won the 1852 Presidential election. And Fillmore did not renominate
Bradford. Instead, in early 1853, lame duck Fillmore nominated George
Badger to the Supreme Court. The Senate voted 26-25 to postpone
consideration of Badger's nomination. Fillmore then nominated William
Micou, but the Senate refused to act on the lame duck nomination. There
is no evidence that a majority supported Micou.
Finally, Mr. President, in January 1881, the lame duck President,
Rutherford B. Hayes, nominated Stanley Matthews to fill a vacancy on
the Supreme Court. The nomination never was reported from the Judiciary
Committee. When President Garfield took office in March, he renominated
Matthews. After 2 months of debate, Matthews was confirmed by a vote of
24-23.
I have taken the Senate's time to provide details of these 19th
century nominations to make the point that there is no evidence that
any of the controversial justices nominated in those years was blocked
by a minority of Senators.
In every instance, a majority voted to delay or defer consideration.
And in most of these instances, they involved nominations made after a
sitting President was defeated for re-election. They have absolutely no
relationship to the situation that has confronted President Bush
throughout this year.
As my colleagues are well aware, historically, the Senate has
demonstrated a great reluctance to tamper with the Rules that govern
this body, especially the rules that govern debate. However, when a
minority of Senators have repeatedly abused the filibuster, the Senate
has acted to change its rules.
After a minority of Senators blocked efforts to have an up or down
vote on a proposal to arm merchant ships during World War I, the Senate
adopted its first cloture rule. The cloture rule was larger changed in
5 separate occasions, most recently in 1986.
The last attempt to change the cloture rule occurred in 1995 when
Senators Harkin and Lieberman proposed a cloture rule nearly identical
to the majority leader's proposal, but broader in scope because it
applied to legislation as well as nominations. On a motion to table,
that effort failed by a vote of 76-15.
I voted against that proposal because I agreed with Senator Byrd that
the biggest abuse of the filibuster had occurred in connection with
Motions to Proceed and that the Rules of the Senate, in particular
Paragraph 2 of rule VIII, provided an adequate remedy to address this
problem.
However, it has become apparent that there is no remedy in the
current Senate rules to address the obstructive practices of a minority
of Senators to block Presidential nominations. And that is why I
cosponsored the majority leader's resolution, S. Res. 138. This
resolution was reported favorably from the Committee on Rules on June
26, of this year.
The majority leader's resolution that will return the advice and
consent responsibility to what the founding fathers intended. Our
resolution would give the opponents of a nomination more than a fair
opportunity to express their reasons for opposing a nominee. But it
would not allow a minority of members to avoid their constitutional
responsibility to have a final yes or no vote on a nomination.
Under our approach, cloture on a nomination could not be filed until
the Senate has considered the nomination for at least 12 hours. On the
first cloture vote, 60 votes would be necessary to invoke cloture. On a
second vote, cloture could be invoked by 57 votes. If a third vote was
necessary, 54 votes could bring cloture. And if a fourth cloture vote
was necessary, then, and only then, a majority of Senators voting and
present would be all that is needed to invoke cloture.
What our proposal does is give the opponents of a nomination 12 hours
to first express their opposition. And then they will have as many as 8
days to speak against a nomination. And then, if cloture is invoked on
the fourth cloture vote, the opponents will still have 30 hours in
which to speak.
In other words, Senators would have as many as 234 hours to speak for
or against any Presidential nomination. I think that is more than
enough time for the Senate to fully consider a President's nominations.
The Republican cosponsors of this resolution are making a very simple
statement--no matter whether the occupant of the White House is a
Republican or a Democrat, we believe that a nominee reported from
committee is entitled to a confirmation vote on the Senate floor.
We believe it is unconscionable and constitutionally infirm for a
minority of Senators to have the capacity to prevent the Senate from
carrying out it's advice and consent functions.
Filibusters by a minority of members to prevent a vote on a
nomination should have no place in the Senate. Whether a cabinet
choice, a district court judge or a Supreme Court Justice, Presidential
nominees are entitled to a vote. That is what the founding fathers
anticipated and that is what our resolution would achieve.
I would prefer that we could break this impasse without changing
Senate Rules. But if this action stands, if a minority of Senators can
obstruct the will of the majority and prevent the President's nominees
from having a vote, the Rules of the Senate must be changed.
I wish to talk about how I feel personally touched and involved in
what we are dealing with here.
In my 15 years in the Senate in a variety of positions as a new
Member, as a member of the leadership, both as secretary of the
conference and as whip and leader, I have experienced a lot of what has
gone on with confirmations personally and firsthand. I have been
involved in a lot of them.
I must say, without it being aimed at just one party or the other,
this process has been on a slippery slope down that whole time. I
believe it goes back to the nomination of Judge Bork before I actually
got to the Senate. The pattern continued with John Tower who was
nominated to be Secretary of Defense in my first year in the Senate,
and it continued to slide down with the nomination of Justice Clarence
Thomas. And throughout the Clinton years, we had difficulty in this
area.
I just wonder how much further downward can it go. I think we have
reached the bottom. We are trying now to abuse the rules of the Senate,
to ignore the Constitution, and set in place a new precedent to block
good, qualified men, women, and minorities to the Federal judiciary. We
have to stop it. We should stop it here and begin to go back up into a
more positive approach in how we deal with Presidential nominees.
I was involved with President Clinton's first Cabinet. I was selected
by then-minority leader Bob Dole to work through the nominations and
see if there were problems. As a matter of fact, I want the record to
show that we confirmed every one of his nominees by the day he was
inaugurated. It was not easy. Some nominees had some problems. We got
the job done. He was the
[[Page 28742]]
President. These were his Cabinet selectees. They deserved to be
confirmed.
During my years as majority leader, we had a lot of discussions back
and forth over how the process worked, how judicial nominees were
treated when they got to committee, and when they got to the floor. I
remember a lot of those debates. I remember the Senator from Maryland
was involved in those debates in March and in December of 1997. I
didn't always like the process. I wasn't always proud of how we treated
these nominees. But I will tell you this: On my watch, not one Clinton
nominee was filibustered. Zero. None.
If you want to use the numbers game--this is not baseball or
basketball, but that is an important statistic--during the Clinton
years, from 1993 to 2001, no judge was defeated by a filibuster. By the
way, it was attempted a few times. I had to file cloture several times,
but usually we were able to set it aside and, in every instance, we
confirmed the nominee.
On one occasion, I remember late in the afternoon--actually the
Senate voted not to invoke cloture, not to cut off the filibuster on a
judge--I took this spot in the Senate and said we cannot let that
stand. Senator Orrin Hatch, chairman of the Judiciary Committee, said
the same thing. And before the night was over, we backed away from that
position. Zero in the Clinton years; 4 already in the Bush years.
It has been just this year that this new abuse of procedure has
started--the American people understand that. The American people
understand there is something innately unfair about dragging out an up-
or-down vote on these men, women, and minorities. So four already, and
at least two more are threatened.
I don't know where it is going to end, but I do think that it is
important the people understand this is not insignificant. This is very
important. We are about to set this precedent, something the Senate did
not do before this year. We did not do it in the 214-year history of
this country, and now we are about to set this new precedent.
What do my colleagues on the other side of the aisle think is going
to happen if the tables are reversed? What if there should be in some
far off, distant future time a Democratic President and a Republican
majority? Do they think if this precedent has been set that the tables
won't be turned and there won't be filibusters of liberal judges on the
other side? I will be opposed to that if I am here, as I have been in
the past.
That is another number we ought to look at: 214 years, and no judges
were defeated by a filibuster. I feel very personal about this point. I
have gone back, in addition to looking at the number of years, and
looked at occasions when there were attempted filibusters, when
Presidents late in their terms made nominations and there were
subsequent votes. I want to show you the list of what has happened over
the years where there have been attempted filibusters.
This shows what happened in 1968, 1971, through the eighties and
nineties. We can see there were some attempted filibusters, and cloture
motions to cut off this extended debate were filed. But in every case
but one, they were all confirmed. Justice Fortas, in 1969, had his
nomination withdrawn by President Johnson when it was revealed that he
did have some serious ethical problems.
Over all these years, even though there were filibusters and cloture
motions, they were all confirmed. There are a couple of nominations on
this chart about which I feel very strongly.
There was an attempt to hold up in a variety of ways two nominees to
the Ninth Circuit Court of Appeals--Richard Paez and Marsha Berzon.
Their filibusters were offered. I had great concerns about these
judges, but I voted against the filibusters. I voted to invoke cloture,
and they went to a straight up-or-down vote. I voted against them, but
they were confirmed.
I was under intense pressure to not let that happen, but I refused to
let that precedent be set on my watch because I didn't think it was
fair at all.
I also feel personally and, I admit, emotionally involved because of
the very unfair treatment that Judge Charles Pickering of Mississippi
received over the last 2\1/2\ years. This is a good man, a good judge.
He has had his reputation besmirched. This is a man who was confirmed
unanimously by the Senate 13 years ago. Now he is being filibustered by
the Senate. It is so unfair.
I hear a lot of talk about the human aspects of unemployment. What
about the human aspects that these men, women, and minorities have had
to go through? Their career is in limbo. They don't know whether they
should stay with their law firm, stay on a State supreme court; are
they going to be confirmed; how do they explain, how do they answer
questions from the press? They have a very personal problem, too.
In the limited time we have, I don't want to just complain about what
is going on here, I want to talk about the solution, how we get out of
this situation, how we get off this limb onto which we have worked
ourselves. We know this is wrong. Both sides of the aisle know this is
wrong, and there has to be some concern about what the long-term impact
will be. It has contributed to the overall atmosphere we are now
dealing with in the Senate.
Here is what we can do. First of all, we can bring up the nominations
of these good people. Justice Owen from Texas is a brilliant,
impressive woman on the Texas Supreme Court. She is being filibustered.
Why? Is she not qualified? Does she not have the proper education? Does
she not have impressive credentials in her experience? Is she not
sitting on the highest court in Texas? What is the problem?
The answer is that she is a conservative woman, that is all, a
mainstream conservative woman. They try to let on there is something
wrong with her philosophy and how she has ruled. I looked at a lot of
these rulings. This is an eminently qualified woman. Yet she is being
blocked by a filibuster. How do we get out of this situation? First of
all, we try to give our colleagues on the other side of the aisle an
opportunity to stop doing this filibustering. We bring up nominations
of the judges. Apparently, they are not going to stop. At the end of
this week, we will probably have three men and three women, including
minorities, all blocked by filibusters--Hispanic, African American,
women, men, it doesn't make any difference. I don't understand what is
happening here.
What do we do next? We have a debate like we are doing now. Some
people say: Why are you doing this? The Federal judiciary has a huge
influence in what happens in this country. So these lifetime
appointments are very important. We are trying to put the American
people on notice as to how dangerous this is and what is going on, and
it is getting some additional coverage. People are now calling in and
saying: I didn't know that was going on. Why are you doing this?
Give us an opportunity to highlight the unfairness and the precedent
we are setting and allow the people to weigh in a little bit. That is
step 2.
Step 3: As chairman of the Rules Committee, I worked with the
majority leader, Bill Frist, and Senator Zell Miller of Georgia, and we
came up with a process that could stop these filibusters. It is an
elongated process, but one to which surely nobody could object.
After 12 hours of debate, we would have a cloture vote. It would
require 60 votes. Then after a period of time, there would be a second
vote. Fifty-seven votes would be required. A third vote would then
occur with 54 votes required, and finally, only on the fourth cloture
vote, would we get down to 51. We would have the 12 hours initially.
Then we would have 30 hours after the fourth cloture vote to speak. All
total, it could take as long as 234 hours. It is not a perfect process,
but at least it is a process.
A similar proposal was made a few years ago by two current Senators
on the Democratic side of the aisle. We should perhaps have a vote on
that proposal.
Last but not least, at some point I feel very strongly we are going
to have to make it clear through some process--and I won't go through
it now--
[[Page 28743]]
that says judges will be confirmed with 51 votes--only 51 votes. That
is what the Founding Fathers intended. Senator Cochran made the
historical point, and so have I. That is what it should be.
We can go back and vote on these nominees. They might not be
confirmed, but I think the American people understand the fairness of
voting them up or voting them down. Justice for judges. Do whatever the
Senate's will is, but don't use a procedural technique requiring 60
votes to defeat these good men, women, and minorities.
This is an important issue. It is worth taking time to debate. I am
very pleased we are debating this issue. I see Senator Sarbanes on the
floor of the Senate. He has been on the House Judiciary Committee. I
was on the Judiciary Committee with him way back in the seventies. He
is a lawyer. He has looked at these issues. I know he has been involved
in them. We have had some discussion back and forth over the years.
In March 1997, he rose on the floor of the Senate and spoke in
support of the nomination of Merrick Garland to be on the district
court. He said:
It is not whether you let the President have his nominees
confirmed. You will not even let them be considered by the
Senate for an up-or-down vote. That is the problem today. In
other words, the other side--
The Republicans--
will not let the process work so these nominees can come
before the Senate for judgment. Some may come before the
Senate for judgment and be rejected. That is OK. But at least
let the process work so the nominees have an opportunity and
the judiciary has an opportunity to have these vacant
positions filled so the court system does not break down
because of the failure to confirm new judges. . . .
These judges along the way were being slow-walked or they had
problems or they got to the floor and we had other legislation we
wanted to consider. We did not always get them up, but here is an
important point: During that time I was the majority leader, we
confirmed Merrick Garland. It happened. He got confirmed. He is on the
bench today.
Senator Sarbanes was right, give them an up-or-down vote, and that is
what we are calling for today.
I see Senator Graham of South Carolina is in the Chamber and prepared
to speak. I may want to have a final statement later on today, but
before I yield to Senator Graham, let me wrap it up this way: I plead
with my colleagues in the Senate. This is not a good thing for us. It
is not good for the institution. It is not good for our country. It is
not good for our relationships. It is not good in terms of getting our
work done and making sure we have a judiciary that is occupied by good
men and women.
We should stop rejecting these judges just on the basis of their
philosophy. I voted for Justice Ruth Bader Ginsburg. I knew I would not
agree with her decisions. I did not agree with her philosophically
across the board, but by education, demeanor, qualifications, and
experience, she should have been confirmed. I voted for her. I ask no
less of my colleagues on the Democratic side of the aisle.
Let's stop this, and then let's get back to making sure we pass
energy legislation, pass aviation legislation, get a prescription drug
plan for our elderly people. This discussion is not delaying that. Work
is being done on it right now. We can get this process corrected and
then we can pass these substantive bills.
I yield the remainder of my time to the Senator from South Carolina.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM of South Carolina. I thank the Senator from Mississippi
for yielding.
How much time remains?
The PRESIDING OFFICER. Eight minutes.
Mr. GRAHAM of South Carolina. I think it would be appropriate now to
compliment Senator Lott. During his time as majority leader, he ran
into a very dicey situation with judges. There was a lot of emotion on
both sides. He was able to manage the system so that the people would
get the vote the Constitution requires.
After having witnessed this debate for the last day or so, I can
understand how hard that must have been. It must have taken a lot of
effort, a lot of courage. He had to tell people no who did not want to
hear no. The country is better off by Senator Lott allowing these
people to have a vote up or down. If we do not fix this situation
before the Senate, and it becomes part of the institutional way of
doing business, then the consequences to the public are very dire.
The first thing that is going to happen, in my opinion, is we are
going to get good men and women who are watching this, maybe one day
aspiring to be judges, to say: Why in the world would I put myself
through this? You are called all kinds of bad names. They take
everything you have written or said or thought about saying, and they
cut and paste it and try to create mental images of who you are that
are totally contradictory to your life's work, are contradictory to
what the ABA says about you as a professional, are contradictory to
what your friends and the people who have practiced with you say about
you. So it is not a very pleasant thing.
The Senator from New York, Mrs. Clinton, with whom I have very much
enjoyed working on other matters, had a chart talking about 168 to 4.
The 168 were apples; the 4 were lemons. Now we are down to calling
people lemons. These are real people and they have one thing in common.
It is not four that are going to be filibustered, it is well over a
dozen before it is over with. The one thing these four have in common
right now--and that is not including Justice Brown and Judge Kuhl, who
will be filibustered; they cannot get a vote either--is that they are
the first in the history of the country.
We could literally put everybody in a phone booth who has been voted
out of the Judiciary Committee by a majority vote but has never
received a vote on the Senate floor. This 168 to 4 is a joke. The four
people in question are the only ones in the history of the country to
come out of the Judiciary Committee and never get to be voted upon.
That is very dangerous because if that is the way we react to people
who come out of the Judiciary Committee, if we start letting 40, 41
Senators dictate the advise and consent role, then we have really taken
a turn for the worst because the Constitution says the Senate will
advise and consent to the Presidential nominations.
Who does the advising and consenting? A majority of us or a minority
of us? For 200-plus years, we have done it one way. But on the watch of
Senator Daschle, with whom I have also enjoyed working, we have taken a
very big turn for the worst.
We are in political and constitutional quicksand. The harder we try
to get out of it, the deeper we go. If my colleagues do not believe it
will be answered in kind down the road if there is ever a Democratic
President, as Senator Lott talked about, then I think we are all naive.
What I hate the most is I have been in the Senate for a year, and the
abuses of the past I am sure are real. I have never put a hold on any
judge for any reason. I am worried about the future. I think my job as
a new Member of the Senate is to talk about the consequences of this
action for the future.
I do not want to serve in the Senate in its darkest days. Right now,
we are writing every day we speak one of the darkest chapters in the
history of the Senate. Good people are being put through the wringer
unnecessarily. If my colleagues do not think they are good people and
they really think they are lemons, the Constitution gives my colleagues
a way to object to them, and that is vote.
My colleagues can be on record forever saying, this is a lemon, this
person should never be able to be on the bench; but they do not have
the right to take the Constitution and turn it upside down for their
own political gain and their own political desires. That, my colleagues
do not have the right to do.
Money was mentioned. They were talking about the phones ringing over
at the Republican Senatorial Committee because our base is excited we
are fighting back and this is a fundraising opportunity. Well, people
are
[[Page 28744]]
raising money off this event and it pretty much stinks, on both sides,
but that is the moment in which we find ourselves.
Let me read an e-mail that was sent out on November 3 by Senator
Corzine, the chairman of the Democratic Senatorial Campaign Committee.
His job is to fire up his donors to give money so the Democratic Party
can recapture the Senate. There was a great deal of lambasting the
Republican Party about writing fundraising letters about this event,
and that we are doing this to fire up our base, and that we are doing
this to raise money.
Let me read what Senator Corzine told his Democratic contributors:
Senate Democrats have launched an unprecedented effort. . .
.
We are well into the 30 hours and we cannot get an agreement as to
whether or not this is unprecedented. I can assure my colleagues that
he is not lying in the e-mail, that this is not false advertising. If
it is false advertising, people ought to get their money back.
It is unprecedented, and the word ``unprecedented'' is underlined for
a reason. No one has ever done this before. He was not lying when he
put it in an e-mail to open up people's wallets. Unprecedented by doing
what?
By mounting filibusters against the Bush administration's
most radical nominees.
Let's break that statement down. It is unprecedented, but my
colleagues on the other side will not admit it is. Filibustering,
exactly what my colleagues on the other side are doing, against the
Bush administration's radical nominees because of their ideology. That
is something that is very dangerous, too.
One of the nominees was asked the question why he and his wife chose
not to take their two daughters to Disney World during Gay Pride Day.
Nobody should be asked about that. They are trying to ask that question
to have a mental construction that this person somehow is not going to
be fair to people based on sexual orientation.
The Mississippi situation is the worst of them all, in my opinion, of
trying to change an image of who somebody really is. In 1967, Judge
Pickering, who has been a Federal judge for a dozen years, well
qualified by the ABA, well respected in the State of Mississippi, was a
young prosecutor--an elected position--who chose to testify against the
Imperial Wizard of the Ku Klux Klan in Mississippi, not the fast track
to get ahead in 1967. It was radical in the right way.
In 1967, they integrated public schools in Mississippi, as they did
in South Carolina. I was in the sixth grade. I could remember going
back to school and seeing five Black kids come to my class for the
first time in my life. As an adult, a 48-year-old man, I now realize
how their parents must have felt, to send their kids into a very
uncertain, unchanging situation, but they sent their kids to public
schools to make it better. I respect those parents because a lot of
people quit, on both sides.
In 1967, Judge Pickering chose to send his children to public schools
when White flight was the phenomenon of that county. We will see a
photograph of a lot of Black kids with very few White kids in 1967
Mississippi public schools, and those White kids are Judge Pickering's
kids. That was the right thing to do.
These people are not lemons, but if my colleagues do not like them,
vote against them. My colleagues do not have the right to change the
Constitution for the political moment.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Minnesota.
Mr. DAYTON. May I inquire, does this side have 30 minutes?
The PRESIDING OFFICER. There are now 30 minutes for the Democratic
side.
Mr. DAYTON. May the time be equally divided between the Senator from
Maryland and myself?
The PRESIDING OFFICER. It may if the Senator wishes.
Mr. DAYTON. I thank the Chair.
Mr. President, it is now 4:30. At 4:15, the Central Intelligence
Agency began a classified briefing of all Senators on a just completed
report on the worsening conditions in Iraq, a report that, according to
the news accounts that were published yesterday and today about it, was
reportedly leaked by a very high level Bush administration official so
that it could not be hidden from the American people and from us in
Congress.
When I became aware of this--and we were only informed of this
briefing this morning--I asked Senator Daschle and Senator Reid to see
if we could suspend our talking and talking and talking about all of
this for 1 hour to go listen to what is happening to the 130,000
courageous Americans whose lives are on the line in Iraq and to learn
what we might be able to do, or must do, to support and aid them.
Senator Daschle and Senator Reid inquired, could our colleagues
across the aisle either give up 1 of the 30 hours that we are talking
and talking about the jobs of four Americans and devote that time to
protecting the lives and protecting the safety of 130,000 Americans and
to preserving their heroic success that they achieved last spring in
Iraq, which was for some of them their heroic sacrifice on our behalf,
and which the CIA assessment reportedly has concluded is now in real
jeopardy. Or even if that was not satisfactory, could that hour be
added on to the scheduled conclusion for this blame-athon, keep the 30
hours as planned even though it is clear to this Senator, having
participated between 12 and 1 this morning and listened to others
throughout the early hours and now up until this time, that 30 hours
for this topic is excessive and that our speeches are becoming
increasingly repetitive, but just pause for 1 hour so that all of the
Senators could attend that briefing on behalf of their constituents who
are over in that precarious situation.
The answer was no. I thought that when this blame-athon began, it
showed fellow caucus members on the other side of the aisle with
mistaken priorities, but this has convinced me that it is much more
serious than that. Winston Churchill once described a fanatic as
somebody who cannot change his mind and will not change the subject.
This fixation today fits that description.
We had a Senate Armed Services Committee hearing scheduled this
morning, the committee on which I serve, with the Acting Secretary of
the Army and other high-level Army officials testifying. We just
received a briefing from them, reports of the timetables they have for
deployments in and out of Iraq. We have seen reports of other news
sources that within a few months the intention is to increase
significantly in Iraq the number of reservists and National Guard men
and women, which has a lot more importance to a lot more people who
live in my State of Minnesota, whose loved ones are either over there
now or are training to go over there soon or will be called up to go
over later, than any judicial appointment. That hearing was cancelled.
The House of Representatives is taking this whole week off. They are
waiting for us to catch up on passed appropriations bills for a fiscal
year that started on October 1. Yesterday, we suspended action on the
VA-HUD appropriations measure, set it aside for this period of time to
talk and talk on the same well-beaten, thoroughly debated, and
genuinely disagreed-upon difference of our respective opinions, which
is somehow so important to some of us that everything and everyone else
must simply wait.
The House Members are being paid by the American taxpayers to not
even be in town this week because they are waiting for us to catch up.
We are spending our time and American taxpayers' dollars to say the
same things over and over and over and over again.
Unanimous Consent Request
I ask unanimous consent that the Secretary of the Senate be
instructed to deduct the pay of all Senators for 15 hours, which is
half the time that we are engaged in this excessive pursuit, and that
should be our time, and for indulging in our priorities and playing to
our audiences and doing whatever else this is supposed to be about but
it is not serving the interests of the people of America any longer and
I believe we should face up to that and recognize that.
[[Page 28745]]
The PRESIDING OFFICER. Is there objection?
Mr. LOTT. I object.
The PRESIDING OFFICER. The objection is heard.
Mr. DAYTON. I would point out we are not going to vote until
tomorrow. We are going to vote tomorrow on a couple of these matters,
on a couple of these nominees. According to our own Senate rules and
procedures, we are not able to vote until then. Contrary to what some
people watching this show might deduce from comments that have been
made in the last few minutes, and before me and in the hours preceding,
we actually do follow our rules and procedures in this body. We have
216 years' established rules and procedures, and if any 1 of the 100
Senators who doubts that those rules and procedures are being properly
followed or disagrees with the action, we have a remedy for that. We
have a referee, we have a head umpire and impartial ruler on our rules,
who is the Senate Parliamentarian. He or she, as the case may be, at
the moment can be asked by any one of us to rule on any action, any
tactic, any maneuver being employed by any Member of the Senate or any
group of the Senate.
Yet for all the accusations for the last number of hours that we are
violating somehow the rules, the procedures, the traditions, the
Constitution, the intent of the Founding Fathers and just about
everything else anybody has conjured up to justify their own point of
view, we could ask. No one has asked. I am told that as of yesterday no
one had asked the Parliamentarian, and I believe the reason is likely
that the colleagues on the other side know that the answer would be
clearly and unequivocally that we are following the practices and the
traditions long established over 216 years by which this body conducts
its matters, its business on behalf of the people of the United States
of America.
We can have legitimate differences of opinion about whether that is a
good set of rules, one that serves us and serves us in one situation or
does not serve us, but they are there. I have learned this in my 3
years here, to my own proper humility, that there is a real collective
wisdom that has been established with almost 1,900 men and women
serving over the course of those 216 years and that while I may still
not agree with some of the particulars, there is a way in which this
country has been better served in the eyes of many people more learned
than I about government and legislative procedure, has been better
served by this body than any other legislative body in the history of
the world anywhere on this planet.
Two generations ago, Gladstone called the Senate of the United States
``that remarkable body, the most remarkable of all the inventions of
modern politics.''
James Madison, one of the authors of the document which we swear to
uphold when we take this oath of office, the Constitution of the United
States, said at the time:
In order to judge of the form to be given to this
institution [the Senate], it will be proper to take a view of
the ends to be served by it. These were,--first, to protect
the people against their rulers, secondly to protect the
people against the transient impressions into which they
themselves might be led.
I appreciated the words of the distinguished Senator from Mississippi
just now because he was kind and gracious enough, and correct enough,
to disagree with the application of these rules and procedures. But not
as some have done, casting aspersions on following the rules and
procedures, but beyond that, following our responsibilities and
proscriptions under the Constitution of the United States, which I
consider to be about the most serious accusation that any Member could
direct toward anyone else.
As I said earlier, we have taken an oath of office to uphold the
Constitution of the United States. That is the most solemn oath I have
ever taken in my life. I expect every other Member of this body who has
taken that oath is as sincerely and dedicated to that oath as I. To
different people it may mean different things. But I never imagined
questioning any Member's commitment. If there were reason to doubt or
question, the proper way to direct that is through courts of this
country, because it is a constitutional matter of the gravest import.
I urge everyone who has engaged in this constitutional practice these
many hours to weigh those words far more carefully than some are doing.
As I am on the Senate Rules Committee, I appreciate the approach the
chairman of that committee suggested or implied in looking at these
matters and, through a proper forum, if it be the desire, to consider
them in a learned way, to bring in constitutional scholars who can give
us a variety of opinions, impartial, nonpartial opinions about the
Constitution and case law.
Then we can have an opportunity to consider whether what is
established as a long-standing tradition and practice, whereby 41
Members of this body can prevent the other 59 from proceeding on
something that would be passed by majority vote. I could argue the
merits or demerits of that position over a particular matter, but I
certainly would not question any Member's proper use of that just
because I did not happen to like its application.
There were 69 of those measures taken in the last two years when we
were in the majority; 69 times Senator Daschle had to move to proceed
and file cloture when he was majority leader to consider bills and
amendments, to go to final passage of legislation that affected health
care for senior citizens, veterans benefits, environmental protection,
matters that had far more consequence to many more Americans than any
single judicial appointment to a Federal court.
I respect and appreciate the chairman of the Rules Committee and his
thought on that matter. I welcome the chance to participate in that. I
believe that is the responsible forum to review these matters and, if
deemed necessary or desired on the part of those to consider it, to
recognize we have the right and responsibility.
We have been elected independently by the men and women of our own
States to do this job as each of us sees best, and I am willing to give
anyone the benefit of the doubt who is doing so. That is our
responsibility. That is our right.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. SARBANES. Would the Chair state the parliamentary situation,
please.
The PRESIDING OFFICER. The Senator from Maryland has 15\1/2\ minutes
remaining on the Democratic side.
Mr. SARBANES. I will address the various issues concerning the long-
term unemployed in this country. Before that, I will make a couple of
comments about the judges.
Sixty-three of President Clinton's nominees were blocked from
consideration. Four of President Bush's nominees have been blocked.
Twenty percent of the Clinton nominees in the period of 1995 to 2000,
the period when the other side controlled the Senate, the committees
and the floor, were blocked and not given any opportunity to move
forward. Many of those blocked were extraordinarily able people. Only
four of President Bush's nominees have been blocked. Many of us feel
very strongly that they represent extreme points of view outside of the
legal mainstream in this country.
In a sense, the period over the last 6 years of the last century when
an incredible number of the President's nominees were blocked is the
genesis of the situation that people are talking about. Of course, the
other side was able to do it in committee. They did not have to do it
on the floor, they did it in the committee since they had a majority in
the committee and they simply brought the curtain down at that point.
Yesterday, the New York Times ran an editorial entitled ``Chatter in
the Cave of the Winds.'' I ask unanimous consent the full text of that
editorial be printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit No. 1)
Mr. SARBANES. I will quote part of it and then I will elaborate on
this issue.
[[Page 28746]]
Senate majority Republicans might take a moment--or even a
vote--to extend reassurance to the nation's millions of
unemployed tonight during the 30-hour ersatz ``filibuster''
they plan to protest the Democrats' blocking of President
Bush's more extremist judicial appointees. The filibusters
will talk through the night, performing from a political
script in a time-wasting tableau designed to produce campaign
fodder for next year. But out there in real life, federal
emergency unemployment benefits are scheduled to expire on
Dec. 31 with no sign of notice from the Republicans in
Congress. A year ago, they blithely quit the Capitol and let
the unemployed stew through the holidays before retroactively
approving a benefit extension that was far too modest.
I recall that very well because I was involved in the effort last
year to try to extend these unemployment insurance benefits and the
Congress left. It went home. The unemployment benefits ran out. People
found themselves in absolutely dire circumstances. When the Congress
finally returned, they extended the benefits retroactively. But
meanwhile, people had passed through an extraordinarily difficult time
for themselves and their family.
Nearly 9 million workers are unemployed today. There are another 4.8
million, just under 5 million Americans, who want full-time jobs but
can only find part-time work. Some people choose to work part-time.
These are people who want to work full time but cannot find full-time
jobs so they have part-time jobs. That is almost 14 million Americans,
those that are unemployed and those that are underemployed. In addition
to that we have about 1.5 million Americans who were in the labor force
but dropped out because they are so discouraged about the prospects of
finding work.
This is the worst jobless recovery since the Great Depression. During
this administration we have lost 2.9 million private-sector jobs, as
measured by employees on private nonfarm payrolls. This chart shows
where we were in January of 2001 and this is where we are in October of
2003. That is a loss of just under 3 million jobs.
Even the Secretary of the Treasury is not predicting that all of
those jobs, will be recovered by the end of this term. He has made a
prediction which a lot of people think cannot be achieved, but even the
administration is not predicting that they are going to recover all of
the lost jobs.
Now, if they do not recover these lost jobs, and I see no way that
they can possibly do that, this will be the first presidential
administration since Herbert Hoover under which the economy has lost
private-sector jobs.
This chart shows presidents and private-sector jobs gained or lost
during an administration, in millions. We start with President Harding
and then we go to President Coolidge. The green on the chart shows
there was job gain during those administrations. Then we plunge down
with President Hoover and we come back for job gains, all positive, net
job gains during these administrations, President Roosevelt, President
Truman, President Eisenhower, President Kennedy, President Johnson,
President Nixon, President Ford, President Carter, President Reagan,
President Bush the first, President Clinton; and, now, the current
President Bush, with a negative, net job loss.
In the past, it has been a long-standing bipartisan policy to extend
unemployment insurance during periods of labor market weakness.
Unemployment insurance benefits were actually extended four times
during the Reagan administration and three times during the first Bush
Administration. The month we are in is the 31st month since the
recession began. At this point during the 1990s recession, every worker
was eligible for a minimum of 20 weeks of additional benefit. The basic
benefit is 26 weeks. We then seek to extend it if the labor market is
not improving, so people can support their families. Actually, the
benefit they get is less than 50 percent of what they were earning and
in order to draw an unemployment insurance benefit you must have built
up an employment record. So by definition, you were working and you had
a job, you lost your job, and only then do you get the unemployment
insurance benefit. The benefit is designed to help carry you and your
family through difficult circumstances.
Now we have 13 weeks of extended benefits but that pales in
comparison with what was done in previous times. It certainly is
inadequate in the face of a labor market in which we are not recovering
jobs. What are these people to do who lose their jobs, they start
drawing unemployment benefits, the benefits run out, they have been
looking for work, they cannot find work, and then they no longer
receive benefits. How do they support their family at a minimum level?
They cannot do it.
As the New York Times said in this article:
After the tax-cutting binges President Bush and Congress
engineered for the affluent, failure to renew the nation's
helping hand to the jobless would present a scandalous
holiday scenario worthy of Dickens. More than talk, action is
required.
They are absolutely right. Mr. President, 1.4 million American
workers have exhausted their benefits and are unable to find work. They
are out in the cold with no support. We now have over 2 million long-
term unemployed. That is people who have been out of work for 26 weeks
or more.
When President Bush came into office in January of 2001, the number
of long-term unemployed, people unemployed for more than 26 weeks, was
660,000. The number of long-term unemployed in October of 2003, is just
over two million. The number of long-term unemployed has tripled in the
course of this administration. It now constitutes 23 percent of the
entire unemployed population.
The last time such a large percentage of the unemployed were the
long-term employed--in other words, people out of work for more than 26
weeks--was 20 years ago. This is the worst performance in 20 years, in
two decades. Obviously, we need to extend these unemployment benefits
and repeated efforts to do so have been blocked. The leadership is
talking about leaving at the end of next week until next year. Of
course, what that means is millions more will run out of their benefits
and be unable to sustain their families.
There is money in the unemployment insurance trust fund for this
purpose. That money is paid in, in good times, in order to address the
situation in bad times. But that money is not being used. It was
specifically set aside for this purpose. The extension of unemployment
insurance benefits is a policy we have followed in the past. It has
support from both sides.
These benefits are for people without jobs. I am hearing lamentations
about four people who did not get their Federal judgeships. They have
other jobs. These people have no jobs.
We made repeated efforts to bring the legislation up. I will make
such an effort right now, once again. There is legislation pending to
address this issue in the Finance Committee. It would help these
workers. It would help our economy. It would ensure that we did not go
through the travail and the turmoil which occurred at the end of last
year, as well. It would provide an additional 13 weeks of benefits to
those who have already exhausted their benefits.
[From the New York Times, Nov. 12, 2003]
Chatter in the Cave of the Winds
Senate majority Republicans might take a moment--or even a
vote--to extend reassurance to the nation's millions of
unemployed tonight during the 30-hour ersatz ``filibuster''
they plan to protest the Democrats' blocking of President
Bush's more extremist judicial appointees. The filibusterers
will talk through the night, performing from a political
script in a time-wasting tableau designed to produce campaign
fodder for next year. But out there in real life, federal
emergency unemployment benefits are scheduled to expire on
Dec. 31, with no sign of notice from the Republicans in
Congress. A year ago, they blithely quit the Capitol and let
the unemployed stew through the holidays before retroactively
approving a benefit extension that was far too modest.
This filibuster has no practical purpose. In the older
days, a single lawmaker had to talk nonstop to block a hated
bill; nowadays, the leadership merely counts heads to see if
enough senators want to block a bill and then it is silently
hung up. So if the retro-orators just want to make rhetorical
points today and run short of topics, we beg them to ponder
their jobless constituents instead of resorting to
boilerplate sound bites and creaky filibuster stunts (in sad
memory there was Alfonse D'Amato's singing an ``Old
McDonald'' parody).
[[Page 28747]]
Serious help is needed for the 2.4 million more recent
jobless facing the end of their state benefits, not to
mention the 2.1 million long-term unemployed who have slipped
off the job-hunting scope. The promising uptick in the deep
hiring slump--126,000 new jobs in October--is less than half
the rate needed to even begin to dent the backup of
joblessness. To deal realistically with the problem, Congress
needs to double--to 26 weeks from 13 weeks--the federal
emergency benefits that are available when state benefits run
out. This would be similar to the help offered during the
recession of a decade ago when long-term joblessness,
especially in manufacturing, was hardly the problem it is
now.
After the tax-cutting binges President Bush and Congress
engineered for the affluent, failure to renew the nation's
helping hand to the jobless would present a scandalous
holiday scenario worthy of Dickens. More than talk, action is
required.
Unanimous Consent Request--S. 1853
Mr. SARBANES. Therefore, Mr. President, I ask unanimous consent that
the Senate proceed to legislative session, that the Finance Committee
be discharged from further consideration of S. 1853, a bill to extend
unemployment insurance benefits for displaced workers; that the Senate
proceed to its immediate consideration; that the bill be read the third
time and passed and the motion to reconsider be laid upon the table.
Mr. LOTT. Reserving the right to object, I ask consent that the
Senator modify his request so that just prior to proceeding the
requested 3 cloture votes be vitiated and the Senate immediately
proceed to three consecutive votes on the confirmation of the
nominations, with no intervening action or debate.
Mr. SARBANES. Mr. President I made a unanimous consent request, which
is pending.
The PRESIDING OFFICER. Is there objection?
Mr. LOTT. Does the Senator object to the modification?
Mr. SARBANES. The Senator does not modify the unanimous consent
request.
The PRESIDING OFFICER (Mr. Cornyn). Objection to the request is made.
Is there objection to the request as made?
Mr. LOTT. In view of that, I object.
The PRESIDING OFFICER. Objection is heard.
The Senator's time has expired.
The Senator from New Mexico.
Mr. DOMENICI. Mr. President, I do not have a New York Times to quote,
but I think I am a lot more fortunate because I have two New Mexico
papers, important papers in my State, to quote. I do not have to use
them to change the subject. I will quote from a couple of our New
Mexico papers on the issue of the nominations, the nominating process,
and what has happened to that process in the last couple of years.
Let me first quote from our largest newspaper, the Albuquerque
Journal. It says in its headline: ``End Filibuster, Put Court Nominee
to Vote.'' And then it says:
What the Colt revolver was on the dusty streets of the Old
West, the filibuster is on the floor of the U.S. Senate: The
great equalizer gives 41 senators the ability to bring the
chamber's business to a halt.
The tactic should be unholstered only on issues of high
principle or grave importance. Considering the issues
currently confronting Washington, the judicial nomination--
In this paper it is referring to Miguel Estrada when it says:
The judicial nomination of Miguel Estrada does not rise
above partisan wrangling. To block a vote on his appointment
to the U.S. Court of Appeals for the District of Columbia
Circuit is an abuse of the filibuster.
I ask unanimous consent that this editorial from that distinguished
newspaper be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Albuquerque Journal (NM), Feb. 23, 2003
End Filibuster, Put Court Nominee to Vote
What the Colt revolver was on the dusty streets of the Old
West, the filibuster is on the floor of the U.S. Senate: The
great equalizer gives 41 senators the ability to bring the
chamber's business to a halt.
The tactic should be unholstered only on issues of high
principle or grave importance. Considering their issues
currently confronting Washington, the judicial nomination of
Miguel Estrada does not rise above partisan wrangling. To
block a vote on his appointment to the U.S. Court of Appeals
for the District of Columbia Circuit is an abuse of the
filibuster.
Democrats say the filibuster is justified because too
little is known about Estrada and he has not been forthcoming
about his judicial philosophy.
New Mexico Sen. Jeff Bingaman said Friday he has not made
up his mind about backing continuation of the delay tactic,
and echoed the Democratic indictment of the Honduran
immigrant as a stealth conservative.
``Obviously, you become suspicious of a person's point of
view if he won't answer questions,'' Bingaman said.
Let's get on past mere suspicions of Democrats and declare
guilt by association. Estrada is the choice of President
Bush. His views doubtlessly come closer to mirroring Bush's
than those of left-learning Democrats or those of Clinton's
judicial nominees.
Femisinst Majority president Eleanor Smeal, for one,
doesn't need any more information about Estrada to know that
in blocking him, ``the Democratic leadership is giving voice
to its massive base of labor, civil right, women's rights,
disability rights, environmental, gay and lesbian rights
groups.''
Oh, then this is about constituent politics.
There's another constituent-oriented facet: Miguel Estrada
is a successful immigrant, current front-runner to become the
first Hispanic Supreme Court justice and an obvious role
model in short, a poster boy for Republican recruitment of
minorities away from the one, true political faith.
This isn't about suspicions; Estrada is the Democrats'
worst nightmare from a partisan perspective.
From a personal perspective, Democrats who have worked with
him in the Clinton administration have high praise. Seth
Waxman, Clinton's solicitor general, called Estrada a ``model
of professionalism.'' Former Vice President Al Gore's top
legal adviser, Ron Klain, said Estrada is ``genuinely
compassionate. Miguel is a person of outstanding character
(and) tremendous intellect.''
During Judiciary Committee hearings in September, Estrada
said: ``Although we all have views on a number of subjects
from A to Z, the first duty of a judge is to a put all that
aside.''
That's good advice for a judge, and it's good advice for
senators sitting in judgment of a nominee. Put aside pure
partisan considerations; weigh Estrada's qualifications,
character and intellect; end the filibuster and put this
nomination to a vote.
Mr. DOMENICI. This editorial continues:
Feminist Majority President Eleanor Smeal, for one, doesn't
need any more information about Estrada to know that in
blocking him, ``the Democratic leadership is giving voice to
its massive base of labor, civil rights, women's rights,
disability rights, environmental, gay and lesbian rights
groups.''
Oh, then this is about constituent politics.
Then there was another editorial in a New Mexico paper, the paper is
a rather liberal newspaper, the Santa Fe New Mexican. The Santa Fe New
Mexican editorial is entitled: ``Estrada Tosses Towel; Pyrrhic Win For
Dems.''
So Senate Democrats got what they wanted--or avoided what
they didn't want: Miguel Estrada has asked President Bush to
withdraw his nomination to the U.S. Court of Appeals. . . .
The 41-year-old Honduran immigrant, who led his law class
at Harvard, was a vastly better choice for the judiciary than
any number of Democrats who slid onto the federal bench
during the early Clinton presidency.
Now, with a GOP president and a bare Republican majority in
the Senate, the Dems still are able to stymie the appointment
of conservative judges reflecting the apparent wishes of the
American electorate: There are too few Republican senators--
or principled Democrat ones--to apply cloture to threatened
filibusters over the confirmation of Estrada and other
qualified appointees.
And it goes on to talk about various Senators and how they conducted
themselves on this nomination. I ask unanimous consent that the
editorial from the Santa Fe New Mexican be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Santa Fe New Mexican, Sept. 5, 2003]
Estrada Tosses Towel; Pyrrhic Win for Dems
So Senate Democrats got what they wanted--or avoided what
they didn't want: Miguel Estrada has asked President Bush to
withdraw his nomination to the U.S. Court of Appeals, for the
District of Columbia Circuit.
The 41-year-old Honduran immigrant, who led his law class
at Harvard, was a vastly better choice for the judiciary than
any number of Democrats who slid onto the federal bench
during the early Clinton presidency.
[[Page 28748]]
Now, with a GOP president and a bare Republican majority in
the Senate, the Dems still are able to stymie the appointment
of conservative judges reflecting the apparent wishes of the
American electorate: There are too few Republican Senators--
or principled Democratic ones--to apply cloture to threatened
filibusters over confirmation of Estrada and other qualified
appointees.
Estrada was appointed to the appellate court in the spring
of 2001. He's been in a kind of limbo ever since. Yesterday,
he threw in the towel, saying it's time to devote full
attention to his law practice and his young family.
We can almost hear the echo of hurrahs from Capitol Hill,
where only four Democrats sided with 51 Republican colleagues
who quite properly saw him as an excellent appointment. New
Mexico's Jeff Bingaman wasn't one of the four. The Senator
has offered excuses about a lack of information on Estrada,
who has been in a figurative fishbowl since long before his
nomination--but Bingaman knows darn well this is party
politics at its lowest. Republicans have pulled similar
stunts on Democratic nominees during years past. This is
payback time--or repayback time; playing schoolyard games
with our nation's system of justice.
For the Dems, this could prove to be a Pyrrhic victory: The
day will come when a Democratic president's nominees might
face treatment as shoddy as Estrada got. We can only hope the
Republican Senators of that day will prove more gracious than
their GOP predecessors--and today's Democrats.
Mr. DOMENICI. Mr. President, I just want to move, for a moment, to
compare how certain other judges have been treated in terms of how long
they had to wait while the Senate did nothing because we were in a
filibuster mode in the Senate. I want to take two or three of our
nominees and just go through with those who are listening the various
qualifications and the like for various nominees. I will start with
Miguel Estrada, and I will take three other nominees and talk about
them versus Miguel Estrada.
Nominee:
Douglas H. Ginsburg: nominated by President Ronald Reagan; college,
Cornell University; law school, University of Chicago Law School;
circuit court clerkship, Carl McGowan of the D.C. Circuit Court of
Appeals; Supreme Court clerkship, Thurgood Marshall; Federal Government
service, Deputy Assistant AG.
A. Raymond Randolph: nominated by President George Bush; college,
Drexel University; law school, Pennsylvania Law School; circuit court
clerkship, Henry J. Friendly, Second Circuit Court of Appeals, Federal
Government service, Assistant to the Solicitor General.
Merrick B. Garland: nominated by President Bill Clinton; college,
Harvard, summa cum laude; law school, Harvard Law School; circuit court
clerkship, Henry J. Friendly, Second Circuit Court of appeals; Supreme
Court clerkship, William J. Brennan, Jr.; Federal Government service,
Special Assistant to the AG.
Now, for each of these: it took 15 days for one of them, 66 days for
one of them, and 71 days for the third.
Then we come to Miguel Estrada: nominated President George W. Bush;
college, Columbia, magna cum laude; law school, Harvard Law School,
magna cum laude; circuit court clerkship, Amalya Kearse, Second Circuit
Court of Appeals; Supreme Court clerkship, Anthony Kennedy; Federal
Government service, Assistant U.S. Attorney and Assistant Solicitor
General. Mr. President, he waited 848 days.
Obviously, Mr. President, there is no validity to the conversations
coming from the other side that they have not taken qualified
appointees and decided that they would apply this rule of 60 instead of
51.
Out there in America, when people look at the Senate they say when
you have 51 votes, that is the way you win. With 51 votes you win; with
49 you lose--but not when it comes to judges they do not like, just
plain do not like--not that they are not qualified, they just do not
want them.
For some reason they have decided they are not going to let that
person on, and no longer is the majoritarian rule the rule of the day.
It is a supermajority. Then the time begins to run.
Miguel Estrada had to wait more than 800 days before he gave up. I
have just gone through the names of three. I am not going to say the
others were not qualified; they were. But certainly Miguel Estrada is
as qualified as any of them are, if you look at just the paper
background and the previous service and achievements prior to them
coming to the floor and languishing or getting confirmed.
For none of those three are better nominees than Miguel Estrada, and
everybody looking at his record and seeing what he has done and what he
has not done knows that.
Now I would like to close with a last editorial, an editorial also
from New Mexico. This one is from the Albuquerque Journal. This
editorial speaks about the current situation when so many candidates
and other Democrats in high positions are coming to our State, the
State of New Mexico, to talk to the Hispanic people where we have large
numbers, and to talk politics to them.
I am quoting from a September 11, 2003, editorial from the
Albuquerque Journal. It says:
Democratic presidential hopefuls mouthed and sometimes
mangled Spanish words in Albuquerque last week, searching for
Hispanic votes.
Earlier that day, a Hispanic judicial nominee who wanted a
simple up-or-down vote on the Senate floor withdrew after two
years of Democratic mangling of the confirmation process.
Democrats could not argue that Miguel Estrada was
unqualified to serve on the appeals court for the District of
Columbia, a stepping stone to the U.S. Supreme Court.
Playing catch-up after emigrating from Honduras at 17 with little
English, Estrada graduated from Columbia with honors, earned a Harvard
law degree and clerked for Supreme Court Justice Anthony Kennedy.
Estrada's credentials were good enough for the Clinton
administration, where he worked for five years in the U.S. Solicitor
General's Office.
Though he has no paper trail of decisions as a judge, his reputation
as one of the nation's finest appellate lawyers led to a unanimous
American Bar Association rating of ``well qualified'' for the Supreme
Court.
But ``well qualified,'' in terms of legal intellect, is not
qualification enough in the U.S. Senate. There's blame enough to spread
around both sides of the aisle. . . .
But Democrats have escalated the partisan warfare to the filibuster
level. Estrada would have been confirmed by a simple majority, but
Democrats raised the bar for this Hispanic from the wrong side of the
political tracks. Estrada had to have a super majority of a Senate
where Democrats toed the party line against him.
Though accustomed to adversity, Estrada finally withdrew after two
years of this absurdity. His experience should not be in vain.
Democrats who take Hispanic support for granted but can't bring
themselves to vote for a qualified Hispanic should learn a new word
from the lips of voters: !Basta!--Enough of this purely partisan
jockeying on judicial nominations.
I think, while many came to the floor and quoted the New York Times
and other major newspapers, I think my two New Mexico papers have hit
it on the head, the last one right where it belongs during a political
campaign--come and mingle and mangle our language and our last names,
and then when one is nominated, make them have the supermajority, all
the time asking for their vote--paraphrasing the last editorial that I
just read from the Albuquerque Journal.
I think what has happened to these nominees--in particular, the four
we are speaking of, led by Miguel Estrada, and the three women--it is
clear they have been politicized. They are qualified. If they would
have had a chance under other Presidents at other times with their kind
of qualifications, they would be serving on a higher bench in the
United States without question.
They have just found themselves at a point in time when the
filibuster rule is applied with such assurance that there is no harm to
come to those politically or otherwise who use the instrument of
filibuster against the extremely qualified.
That is exactly what has happened here. I am pleased to speak for
just a few moments. I compliment all of those who have taken much time
over
[[Page 28749]]
the last day and a half to speak to the issue, specifically as to these
people, and generally as to how this process used this way is ruining
the political process and making good candidates--let's make it
superior candidates--subject to the whim of the 60-vote rule.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. TALENT. How much time do we have remaining on our side?
The PRESIDING OFFICER. There are 15 minutes 20 seconds.
Mr. TALENT. I am going to be brief, Mr. President. I had an
opportunity to speak last night and I want to have a chance to hear my
friend from Ohio and I want to give him a full opportunity to speak.
We are here--I am here again; others have been here more often than
I--because we are trying to put a stop to filibusters that are
unprecedented in their nature. For the first time in the history of
this institution, court of appeals nominees of the President of the
United States have been filibustered to death on the floor of this
Senate by a determined minority.
It is a usurpation of the Constitution. It is hurting the courts, and
it is unfair to these nominees who are not only qualified, who not only
should be confirmed, but who would, just a few years ago, have flown
through this body because of their extraordinary qualifications.
I just want to address a couple points. One that has been made very
often by some Senators who have been participating in these filibusters
is that, in fact, they are really not doing anything that unprecedented
or that bad because they have approved, they have allowed all but four
of the nominees to go through. Well, that is just not the right way of
looking at it.
They set out to hunt, if you will, the big game, the court of appeals
judges. So it is true, they have not been taking any shots at the
rabbits, at the squirrels, at the district court judges. Those they
have let through. But they have taken down or they are threatening to
take down, through the filibuster, a quarter of President Bush's
nominees to the court of appeals.
This graph shows it. None of the previous four Presidents, or any of
the Presidents, had ever lost a court of appeals nominee by a
filibuster of the minority on the floor of the Senate.
President Bush has had 29 court of appeals nominees confirmed. Twelve
of them have either been filibustered or they are going to be
filibustered tomorrow or there are threats to filibuster them.
He sent 46 down in total. Twelve have been filibustered or threatened
to be filibustered, which is a quarter of his nominees. That is not a
passing percentage in anybody's book, and it is unprecedented to have
even one filibustered.
Second, Senators have said: Well, look, the filibuster has been used
in the past, and that is because motions for cloture have been offered
and passed sometimes in the past. There have been small groups of
Senators who have tried to filibuster nominees in the past, and the
rest of the Senate has said: No, we do not do that. We may not like the
nominee, but we do not filibuster them. In every case, the leaders of
both parties have supported motions for cloture, and cloture has been
invoked.
They are using instances when the filibuster has been stopped by the
Senate in the name of the Constitution, and in the name of the
traditions of the Senate to support their efforts where the filibuster
has succeeded. They are turning the past on its head to support a
present and a future which is completely inconsistent with the
Constitution and the traditions of the Senate. It is wrong, and it is
wrong to people involved.
I wish I had time today. Perhaps I will have time later to go through
the qualifications of these nominees. On top of everything else, they
just deserve this. Many of these people have overcome tremendous
obstacles, personal obstacles in their youth, to achieve tremendous
success in the field of law. They would be great judges. We need those
judges on the courts.
Finally, Mr. President, and before I yield to my friend from Ohio, I
just want to say that repeatedly it has been suggested by that group of
Senators who have been filibustering that: Well, we ought to go on to
other business. In fact, they are upset that the process of the Senate
is being obstructed.
Well, I would sure like to go on to other business, too. You can
filibuster or not filibuster. There is no question under the rules of
the Senate, Members have the raw power to do this. What you cannot do
is filibuster and then complain about obstruction. You cannot do that.
That is called having your cake and eating it, too. The minute that
Members of this Senate decide they want to go on to other business, we
can go on to other business. Just allow us a time agreement to vote.
Allow us to vote on these people. Five minutes after you do that, we
are off to other business of the Senate, which all of us want to go on
to.
In the meantime, please, if you are going to filibuster these
nominees, at least do not complain about obstruction of the processes
of the Senate.
With that, Mr. President, I yield the floor to my friend from Ohio.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, the nominees who President Bush have
nominated are outstanding attorneys, people who would make fine judges
and, frankly, the sooner we have an up-or-down vote on these nominees
the better.
The nomination of these judges affects the citizens living in their
judicial circuits and the nominees themselves. So this is not just a
theoretical debate, this is a real world debate with real consequences.
Let me turn to one of those nominees, and that is Judge Charles
Pickering. I want to talk about the merits because that is what we
should be talking about, what we should be debating on the Senate
floor, the merits of all these nominees. If we had an up-or-down vote,
I say to the Members of the Senate, that is what we would be able to
do. That is what this whole discussion for these 30 hours is about: our
request to be able to vote on the merits.
Let me talk about the merits and what we would be able to talk about
if we had that opportunity.
Judge Pickering, a man who graduated from the University of
Mississippi with honors. This is a man who graduated from law school
the first in his class; a man who has had a distinguished career as a
lawyer; a prosecuting attorney; a judge who was confirmed unanimously
by the Senate to a district court position 13 years ago.
What about the ABA? We always hear about the ABA. We don't think that
should be the be-all and end-all, but the ABA should be a part of what
we look to. Here is a letter ABA sent to me and other members of the
Judiciary Committee:
Senator DeWine, We are transmitting to you for your
consideration, this committee's evaluation pertaining to the
nomination of the Honorable Charles Pickering, Sr., as judge
of the United States Court of Appeals for the Fifth Circuit.
I am pleased to report, as a result of our investigation, a
substantial majority of the committee is of the opinion that
the Honorable Charles W. Pickering, Sr., is well qualified
for appointment as judge to the United States Court of
Appeals for the Fifth Circuit.
That is what they had to say about him.
People who know Judge Pickering best in his home State of Mississippi
also agree that he should be on the bench. People who have known him
for years have written to this Congress and have talked with us and
have said this man is qualified. This is a man of great character; he
should be on the bench.
There have been attacks about Judge Pickering. Let me talk about
these for a moment. Again, this is the type of discussion we should be
having on the Senate floor. We shouldn't have to be down here making
the argument that all we want is an up-or-down vote. This substantive
argument is what we really should be able to have.
Let me talk about some of the attacks on Judge Pickering. At the time
of our hearing on Judge Pickering, he had decided roughly 4,500 cases
as a district court judge. Out of those 4,500 cases, he has been
appealed 328 times and ultimately he was reversed or had
[[Page 28750]]
the case remanded for additional work or some clarification in 26
cases.
Without getting too much into the numbers, I can tell you he has a
good reversal rate--about 8 percent. That is better than the national
average, and it is even better than the average in the Fifth Circuit.
Some of Judge Pickering's critics would argue the problem is not the
number of cases on which he has been reversed. They say the problem is
what you find in those reversals. Let's take a moment and look at that.
I looked at the 26 cases where he was reversed or where the case was
sent back for further clarification. The statement was made in one of
Judge Pickering's hearings several times that his cases boiled down to
civil rights, voting rights, employment, and that is what was
troubling. I think we need to look at each of these areas, and I will
try to do that in the brief time I have.
There are a few ways to categorize a case and what type of case it is
remains, certainly, in the eyes of the beholder, but I have looked at
the reversals and the areas mentioned during the hearings, and this is
how I break them down.
On my count, 2 of the 26 cases involve employee rights, 1 case
involved voting rights, and 4 were civil rights cases. I believe as we
look at these cases, there is no merit to the charges in regard to
Judge Pickering.
Let's look first at the accusation of voting rights. Judge Pickering
was reversed on one voting rights case, and that was Watkins v.
Fordice. Judge Pickering was part of the three-judge panel that decided
that case. Here is the key. We should be very clear about this. The
voting rights issues in this case had already been resolved. The issue
that went up for appeal was, guess what--Listen to this: attorneys
fees. That is what the issue was. That is what went up on appeal.
So to categorize that as a voting rights case, that the judge was
appealed on a voting rights case and overturned on a voting rights case
is simply not fair. It is not fair by any good judgment.
When the case went up on appeal, the court of appeals said: We need
more information. And they sent it back to Judge Pickering's three-
judge panel. Judge Pickering and the other two judges gave them more
information. It went back up, the court of appeals looked at it, and
said: It's OK, you were right. We are not going to reverse you. And
that ended it. That is the voting rights case about which everyone is
talking.
I should also note for the record there were three other voting
rights cases that Judge Pickering decided. Not one of these cases--not
a single one--was reversed. In fact, nobody ever appealed the cases,
which again tells us something. When a voting rights case is not
appealed or when a major case is not appealed, it certainly tells us
something.
So we end up on the voting rights issue with only one case where he
was appealed, in that particular case it was about attorney's fees and,
in the end, Judge Pickering was held to be correct anyway, and three
other cases were not appealed at all.
Let me talk briefly about Judge Pickering and the civil rights cases.
Every one of the civil rights cases--of the 26 cases we are talking
about--every single one of them involved claims made by prisoners. I
point that out not to say prisoners rights cases are unimportant; they
certainly are important. We all know they are important. They can
involve basic rights. But these are not the type of cases that we would
normally associate, or at least the public would normally associate, as
civil rights cases. Lawyers know them as civil rights cases, but I
believe the general public would not think of them as typical civil
rights cases. They were often procedural requests, sometimes requests
for very specific relief.
For example, in one case, the whole issue was whether or not a
prisoner had a right to use a certain type of typewriter. This prisoner
wanted to use a memory typewriter instead of a regular typewriter, and
that is what the substance of the case was about.
There were procedural issues there, and the court of appeals took a
look at them. They were reversed, and we certainly understand that.
Again, I am not minimizing that, but I think we just need to put this
whole case in its proper perspective.
Let me also note for the record that Judge Pickering was reversed, as
we have said, in a total of 11 of the so-called prisoner cases out of
an estimated 1,100 prisoner cases with which he dealt.
Let's now talk about Judge Pickering's employment cases. I will be
very brief because I see my time is almost up. We need to look at both
the employment cases, the Marshall case, and the Fairley case. In the
Marshall case, Judge Pickering upheld an arbitrator's decision
reinstating an employee who had been fired from her job. In the other
case, the judge found on behalf of the worker suing his employer's
disability plan for damages. In both cases, Judge Pickering ruled in
favor of the employee.
The court said he was wrong about how he did it, wrong in the
decision, and the court overturned him. But no one should use the
employment case where he was overturned--these two cases--as in any way
indicating that he is not sensitive to employees. He did, after all, in
these two cases, rule in favor of the employees.
Judge Pickering is well-qualified. There is no doubt about it. His
overall record as a judge is excellent. The specific cases cited as a
concern do not show anything at all except that he is a human being who
sometimes made some mistakes. I submit that virtually every district
court judge that we look at and look at as carefully as we have looked
at Judge Pickering, we would find similar reversals.
When we look at these specific cases, I believe there is no
indication that Judge Pickering is hostile to civil rights, to voting
rights, to employment rights, or any other type of rights. I believe
there is no evidence at all that Judge Pickering substitutes his
personal opinions for the law. In fact, the evidence shows that he
clearly does follow the law.
Judge Pickering has testified under oath to the Judiciary Committee
twice that he will follow the law and abide by the law, and Mr.
President, his record shows that he will.
This is just an example of the debate that I think we ought to be
having. If our colleagues across the aisle would allow us to have an up
or down vote on these nominees, we could talk about the qualifications
and criticisms of these nominees. We could talk about allegations and
they could be supported or dispelled. There are many, allegations
against these nominees that would be dispelled--just like the ones I've
just discussed about Judge Pickering.
I encourage our colleagues to let us have the debate on the merits
of the nominees. Then Senators can hear all the facts--both sides of
the debate. And then they can make up their minds and vote--yes or no,
just vote.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, as I understand under the agreed
procedure, the Senator from Hawaii and myself will have a half hour; is
that correct?
The PRESIDING OFFICER. That is correct.
Mr. KENNEDY. I yield myself 15 minutes.
The PRESIDING OFFICER. The Senator is recognized.
Mr. KENNEDY. Mr. President, I have listened with interest over the
last 24 hours to those who have taken exception to the action that has
not taken place in the Senate with regard to judges. I listened very
carefully. Many of our colleagues have been extremely eloquent in their
presentations.
As we are reaching the 24-hour point, it is important to understand
exactly what our responsibility is in the Senate with regard to the
appointment power, what our Founding Fathers expect of the Senate, and
whether we are measuring up to the test which they established at the
Constitutional Convention.
I draw the attention of our colleagues once more to the raw
statistic,
[[Page 28751]]
which I think effectively rebuts so many of the allegations and the
presentation that has been made, where we have actually confirmed 168
of the nominees, and only 4 have not been affirmatively approved. That
is 98 percent. We ought to think about what has been said on the other
side about the abuse of those who have expressed opposition to these
nominees, whether there has been an abuse of the system itself, when we
find out they have gotten 98 percent of their way over this Congress.
My good friend from Vermont has gone through the statistics in great
detail.
I listened a little earlier to one of my colleagues on that side of
the aisle say there never has been an instance where a circuit court
judge was filibustered by the other side. I am a member of the
Judiciary Committee, and I would be glad to sit down with my colleague
and go over the 23 well-qualified nominees who never emerged from the
Judiciary Committee to be considered on the floor of the Senate.
Nonetheless there are those who are listening tonight who may say,
``My goodness, we have these nominees and they are not being
considered. Isn't this a one-way street, where now Democrats, perhaps a
few Republicans, are not permitting the vote on particular nominees?''
I can remember very well the other side using the same rules to their
own advantage with regard to judicial nominees, and history
demonstrates that, as has been pointed out by our colleagues.
Rather than dwelling on that, I think it is instructive once more to
think about what our Founding Fathers expected of this body with regard
to the appointment process. When we look at that, we will see that they
expected us to exercise our own good, independent judgment. There are
those on the other side who say, if the President sends someone up to
the Senate, you better find a good reason not to vote for him or
otherwise the President is entitled to that individual. That is not the
case. That has been repeated time and time again.
To the contrary, if you look at the debates in the Constitutional
Convention, our Founding Fathers weighed their debates and discussions
believing that we in the Senate should have the heavy hand in terms of
the final judgment with regard to nominees. I will take a few moments
to review that because it is instructive.
The Constitutional Convention met in Philadelphia from late May until
mid-September of 1787. On May 29, 1787, the Convention began its work
on the Constitution, and when the Virginia Plan was introduced by
Governor Randolph, it provided that a National Judiciary be established
to be chosen by the National Legislature.
Under this plan, the President had no role--no role--in the selection
of Federal judges. When this provision came before the Convention on
June 5, several Members were concerned that having the Congress as a
whole select judges was too unwieldy.
James Wilson of Pennsylvania suggested an alternative: that the
President be given the sole power to appoint judges. The idea had no
support. John Rutledge of South Carolina said he ``was by no means
disposed to grant too great a power to a single person.'' James Madison
agreed that the legislature was too large a body, and stated that he
was ``rather inclined to give the appointment power to the Senatorial
branch.'' This is the debate of our Founding Fathers, a group
sufficiently stable and independent, as James Madison pointed out, to
provide ``deliberate judgments'' on judges.
A week later, Madison offered a formal motion to give the Senate--the
U.S. Senate--the sole power to appoint judges, and this motion was
adopted without a single objection.
On June 19, the Convention formally adopted a working draft of the
Constitution, and it gave the Senate the exclusive power to appoint
judges. This was the thinking of our Founding Fathers.
We learn in that debate on the floor of the Senate, the Founding
Fathers intended the Senate of the United States to be a principal
partner, obviously, in the consideration of these judges.
On July 18, the Convention reaffirmed its decision to grant the
Senate the exclusive power. Wilson again proposed ``that judges be
appointed by the executive,'' and again his motion was defeated. The
issue was considered again on July 21 and in the Convention for the
fourth time and again agreed to the exclusive Senate appointment of
judges. In a debate on the provision, George Mason of Virginia called
the idea of executive appointment of Federal judges a ``dangerous
precedent.''
Not until the final days of the Convention was a compromise
suggested. On September 4, 2 weeks before the Convention work was
completed, the committee proposed that the President should have a role
in selecting judges. It stated: ``The President shall nominate and, by
and with the Advice and Consent of the Senate, shall appoint judges of
the Supreme Court.''
The debate made clear, Mr. President, however, that while the
President had the power to nominate the judges, the Senate still had a
central role. Gouverneur Morris of Pennsylvania actually described the
provision of giving the Senate the power ``to appoint judges nominated
to them by the President.''
It's clear that the Constitutional Convention, which had repeatedly
rejected the proposal to let the President alone select the judges, did
not intend the Senate to be a rubberstamp for the President. And it is
equally clear that, especially when the Senate is controlled by the
President's own party, the Founders did not intend the Senate to roll
over and play dead whenever the President tells them to.
We have approved 168. And only 4 have been rejected. That is a pretty
good record for this President.
On the contrary, it is clear what the Founders would say to us today.
They would say, ``We gave you this power to use it whenever you think
the President proposes judges who will not be beneficial to the Nation.
We did not tell you what rules to use to exercise that power. We gave
you the right to set your own rules.''
And they did. And the Founders did not say, and did not mean that
``the President can appoint whomever he wants to the Federal courts, as
long as he gets a bare Senate majority to consent.'' If we did adopt a
rule that allowed the President to do so, the Founding Fathers would
look down on us and say, ``Shame!''
``You are the Senate. If we wanted the President alone to be able to
pick the judges, we would not have given you the power that we did in
the Constitutional Convention. For 214 years, you have used that power
wisely, and under the power we gave you, you have the authority to set
your own rules.'' That is what the Founding Fathers said.
As Senators, we have the obligation to say no to the President when
we think he is wrong. We should not abdicate the powers the Founding
Fathers gave us. If we are true to our oath of office as Members of the
Senate, we cannot abdicate the powers the Founders gave us.
We should not erase the rules which give us the ability to be the
Senate and protect the independence of the Federal courts.
We exercise different judgments on Presidential nominees. The
independence of the Senate and the courts is the essence of our
Constitutional system of checks and balances that has served us so well
throughout our history.
The Senate has never hesitated to exercise its advice and consent
power. During the first 100 years after ratification of the
Constitution, 21 of 81 Supreme Court nominations one out of four were
rejected, withdrawn or not acted on. During these confirmation debates,
ideology often mattered. John Rutledge, nominated by George Washington,
failed to win Senate confirmation as Chief Justice in 1795. Alexander
Hamilton and other Federalists strongly opposed him because of his
position on the controversial Jay Treaty with Great Britain. A nominees
of President James Polk was rejected because of his anti-immigration
position. A nominee of President Herbert Hoover was rejected because of
his anti-labor view.
When a President makes the request for a member of the Cabinet, it is
time
[[Page 28752]]
limited to the 4 years that President is going to be there. The
President has the heavy presumption that he is entitled to his own
advisers, and that is why the overwhelming majority of nominees by the
Presidents for their Cabinet are approved. We have some for the
regulatory agencies that may be a little bit longer, or go past a
particular administration, and perhaps we apply a somewhat tighter and
more stringent test, but we are talking about lifetime tenure on
important courts of this land.
The DC Circuit Court has really been called another supreme court
because they have the appellate jurisdiction on so many of the
regulatory agencies. These appeals that come before that DC Circuit
involve the rights of working men and women. They make the decision in
terms of whether the workplace is going to be safe for all of those who
go in and work in their plants and factories. They are going to
interpret whether the various legislation dealing with the environment
is adequately enforced, along with a whole range of different issues
that affect the health and safety and well-being of the people of this
country.
Our friends on the other side say, ``If the President nominates
someone, why are you not rubberstamping it?'' That is not what our
Founding Fathers said or agreed to or instructed us to do. They said we
should make our own independent judgment and decision, and the fair
judgment and decision, I believe, is whether these individuals who are
nominated demonstrate a core commitment to the fundamental teachings of
the Constitution of the United States. That is what this Senator looks
for with a nominee.
When they will not answer the questions--but the administration knows
what those answers are--or they have demonstrated over a lifetime by
statements and deeds that they will not abide by the fundamental
teachings of the Constitution, why in the world should we take a
chance, in representing the people we do, to think they deserve a
promotion to serve in these high courts? It should not be that way. The
Founding Fathers never expected us to be that way, and we will not have
it that way.
Recently, we had a very distinguished historian who wrote a
magnificent book. It is called ``Master of the Senate'' by Robert Caro.
In that book, he did an enormous amount of reading and studying of the
views of our Founding Fathers and also of the early years of the Senate
in order to put his historical figure, President Johnson, then-Majority
Leader Johnson, into some perspective. I will just mention these lines
which I think are very insightful about the Founding Fathers and what
they believed this institution was really all about:
``The writings of the framers of the Constitution make clear that
Senators, whether acting alone or in concert with like-minded
colleagues, are entitled to use whatever means the Senate rules provide
to vigorously contest a President's assertion of authority with which
they strongly disagree.
One could say, in fact, that under the fundamental concept of the
Senate as envisioned by the Founding Fathers, it is not merely the
right, but the duty of the Senators to do that, no matter how popular
the President or how strongly the public opinion polls of the moment
support the President's stand on the issues involved.''
Then he continues:
`` . . . in creating the new nation, its Founding Fathers, the
Framers of the Constitution, gave its legislature . . . not only its
own powers, specified and sweeping . . . but also powers designed to
make the Congress independent of the President to restrain and act as a
check on his authority, (including) power to approve his appointments,
even the appointments made within his own administration . . . ''
And the most potent of these restraining powers the Framers gave to
the Senate is:
`` . . . the power to approve Presidential appointments was given to
the Senate alone; a President could nominate and appoint ambassadors,
Supreme Court Justices, and other officers of the United States, but
only `with the Advice and Consent of the Senate.'''
`` . . . the Founders, in their wisdom, also gave the Senate the
power to establish for itself the rules governing exercise of its
powers. Unlike the unwieldy House, which had to adopt rules that
inhibited debate, the Senate became the true deliberative body that the
framers had envisioned by maintaining the ability of its members to
debate as long as necessary to reach a just result. For more than a
century, the Senate required unanimous agreement to close off debate.
The adoption of Rule XXII in 1917 allowed a two-thirds cloture vote on
`measures,' but nominations were not brought under the rule until
1949.''
In short, two centuries of history rebut any suggestion that either
the language or the intent of the Constitution prohibits or counsels
against the use of extended debate to resist Presidential authority. To
the contrary, the nations's Founders depended on the Senate's Members
to stand up to a popular and powerful President. In the case of
judicial appointments, the Founders specifically mandated the Senate to
play an active role, providing both advice and consent to the
President. That shared authority was basic to the balance of powers
among the branches.
Surrendering such authority is not something which should be done
just because of a Senator's point of view on the particular issues of
the moment--because much more than the particular issue is involved.
Republican Senators are wrong when they say, ``The President is
entitled to have his own people on the courts.'' We know that history
tells us the opposite. The Senate usually chooses to give the President
broad leeway in appointing members of his cabinet and filling other
positions in the Executive Branch. He is politically responsible for
these appointees. They generally serve at his pleasure, and their
appointments end at the end of his term in office. But appointments to
the federal courts are lifetime appointments. Federal judges are able
to fulfill their own constitutional responsibility because they are
independent of both Congress and the White House.
The Founding Fathers wanted the checks and balances, the independent
government agencies: The Presidential and the executive, the Congress
with the House and the Senate, and an independent judiciary. It does
not belong to the President. It does not belong to the Congress. It
belongs to the American people, and both the President and the Senate
have an important responsibility to make sure it remains independent.
I yield the remaining time to the Senator from Hawaii.
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. AKAKA. Mr. President, I have spent the past 23 hours listening to
the debate which was billed as a debate on judicial nominations and has
turned into a semantics fest over who is responsible for the delayed
enactment of legislation important to both sides of the aisle. One
thing is clear to me, this is not getting us any closer to enacting the
legislation we have identified as important.
We are devoting 30 hours to debate the fact that the Senate has
passed only 98 percent of President Bush's nominees, not 100 percent. I
take my responsibilities as a United States Senator very seriously. My
understanding is that I am to provide the President with my advice and
consent regarding the individuals he nominates for a lifetime position
to the Federal judiciary. It troubles me that we are spending 30 hours
to discuss the fact that we have not acted on 2 percent of the
President's nominees to the Federal judiciary.
We are talking about 4 individuals, 4 individuals who have jobs,
while 3 million people have lost jobs since President Bush took office.
We should be talking about jobs. We should be debating and voting on
legislation to increase the minimum wage. We should be finishing our
appropriations bills. We should be talking about ways to strengthen our
manufacturing base. We should be discussing extended unemployment
benefits for the long-term unemployed, the 3 million Americans
[[Page 28753]]
who have lost their jobs during the Bush presidency.
If we want to start talking about legislation that is important to us
as individual Senators, we could be talking about Federal recognition
for Hawaii's indigenous peoples, Native Hawaiians, an issue of extreme
importance to my constituents in Hawaii. We could be talking about
ending mutual fund abuses for investors or promoting financial literacy
for our students. We could be talking about how to fund the promises we
extended when we passed the No Child Left Behind Act which has been
severely underfunded since its enactment.
Instead, we have spent 23 hours talking about 4 judicial nominations,
4 nominations out of 172, which have not been approved by this body. We
have spent the past day blaming each other for the lack of progress on
the issues that we have identified as priorities. It is sad that we
have come to this point. During my tenure in the Senate, we have been
able to work in a bipartisan manner to achieve our goals.
I take particular offense, to the claims that have been made about
Democratic Senators being anti-woman, anti-Catholic, anti-Hispanic, and
anti-African-American, merely because we refuse to approve 4 of the
President's judicial nominees. Since when do we cast aspersions simply
because we are unable to get our own way? As a former principal and
teacher, this is not behavior that I would condone in the classroom,
much less on the floor of the Senate.
My colleagues from the other side of the aisle argue that this is the
first time a filibuster has been used for a judicial nominee.
Republicans have openly filibustered 6 judicial nominees on the floor
of the Senate, 5 of which were circuit court nominees.
There seems to be a theme that my colleagues on the other side of the
aisle have not engaged in efforts to block a judicial nomination. I
want to share with my colleagues a situation I encountered during the
104th and 105th Congress. An individual from Hawaii was nominated to
serve on the U.S. District Court, District of Hawaii. This was a
nominee strongly supported by both Senators from Hawaii. This nominee
had a hearing before the Senate Judiciary Committee and was reported
favorably. However, this is where the process stopped for a period of
two-and-a-half years.
A colleague from another state placed a hold on this nominee for over
30 months before allowing us to confirm this nomination. In effect, a
Senator from a State thousands of miles from Hawaii blocked a district
court nominee that the senior Senator from Hawaii and I supported. This
colleague is now the attorney general of the United States, and happens
to be a good friend of mine. I found this situation to be so unusual,
that a colleague from another state would place a hold on a district
court nominee from my State when both Hawaii Senators strongly
supported the nomination. I also find it highly ironic that the person
who placed that hold is now in a position of great importance in this
administration. I raise this issue to dispute the notion that this is
the first time a nomination has been blocked, after the Senate
Judiciary Committee favorably reported the nomination to the Senate for
consideration.
I could also speak about the nomination of Justice James Duffy to the
United States Court of Appeals for the Ninth Circuit. A fine nominee,
described by his peers as the ``best of the best,'' he had strong
support from Senator Inouye and me to fill Hawaii's slot on the Ninth
Circuit. Yet, Justice Duffy never received a hearing in the Senate.
Seven hundred and ninety-one days without a hearing. Justice Duffy is
one of the well-qualified and talented men and women nominated during
the Clinton administration, individuals with bipartisan and home-State
support, whose nominations were never acted on by the Senate. In back
of me are pictures of those, and Mr. Duffy's picture is on the chart.
The last person I will mention is Richard Clifton, who is now serving
on the U.S. Court of Appeals for the 9th Circuit. Richard Clifton was
nominated after President Bush withdrew Justice Duffy's nomination.
Richard Clifton served as the Hawaii State Republican party counsel.
While I don't necessarily agree with all of his views, I supported his
nomination, and he was confirmed within a year of his nomination.
Ninety-five percent of Federal judicial seats are now filled,
creating the lowest vacancy rate in 13 years. So let's get back to the
things we should be talking about--jobs, education, Medicare, minimum
wage, unemployment insurance, and helping the poor.
We are squandering valuable time that the Senate could and should be
using to address matters of great importance to thousands of Americans.
I am honored to cosponsor legislation offered by the senior Senator
from Massachusetts, Mr. Kennedy, to raise the minimum wage. He has
spoken with tremendous passion of the urgent need for an increase in
the minimum wage.
I remind my colleagues that since establishing the minimum wage
requirement in 1938, we have had only 19 increases in the minimum wage,
the latest occurring in September 1997. The minimum wage would need to
reach $8.38 an hour to equal the purchasing power of the statutory
minimum wage in 1968. A full-time worker paid the minimum wage earns
about $4,000 below the poverty line for a family of three. This is not
right.
We should not only be raising the minimum wage so that employees
working full time are not struggling to stay above the poverty line. We
should also extend the Temporary Extended Unemployment Compensation
program. This program, which was enacted on March 9, 2002, provided up
to 13 weeks of federally-funded benefits for unemployed workers in all
states who exhausted their regular unemployment compensation benefits.
In addition, up to an additional 13 weeks for certain high unemployment
states that have an insured unemployed rate of 4 percent or higher. The
program has been extended several times, with the latest extension
enacted into law on May 28, 2003. While this program will be phased-out
through March 31, 2004, the program actually ends on December 31, 2003.
Although employment has risen, the national unemployment rate has
remained unchanged at 6 percent. In October 2003, the Department of
Labor has indicated that 2 million unemployed persons were looking for
work for 27 weeks or longer. This is greater than the 13 weeks of
regular unemployment and greater than the additional extended
unemployment benefits. We should be doing more not just for our men and
women who are fighting our war on terrorism, but for those who are
fighting the war on poverty.
My time is almost up, so I will end here. In a Senate where the
divide between the majority and minority is held by a mere vote, and
that division reflects the viewpoint of the American body politic at-
large, it is imperative that we work together to resolve so many of the
issues that are important to our constituents. When it comes to
judicial nominations, the confirmation rate of 98 percent clearly shows
that we, in the minority, are doing what we can to work with the
majority in upholding our constitutional obligation to provide advice
and consent to the President on judicial nominations. I can only hope
we achieve a 98 percent rate in enacting the laws addressing funding
for education, healthcare reform, Medicare reform, increasing the
minimum wage, extending unemployment insurance, and providing Americans
with the financial tools to be successful.
The PRESIDING OFFICER (Ms. Murkowski). The Senator from
Massachusetts.
Mr. KENNEDY. How much time do we have remaining?
The PRESIDING OFFICER. The minority has 1 minute remaining.
Mr. KENNEDY. I thank my colleague and friend. He mentioned the
increase in the minimum wage. It has been 7 years since we have
increased the minimum wage. In that time, we have also increased the
pay for Members of the Senate five times, but we are denied the
opportunity to increase the minimum wage for working families in this
country. I think it would not take us
[[Page 28754]]
very long. If the Senator would agree with me, it would take us about
half an hour before we are prepared to go ahead and vote on a minimum
wage, and here we have just used 30 hours or are going to be using 30
hours of discussion that is not related to that or to education,
overtime, unemployment compensation, jobs, or education funding.
I thank the Senator for an excellent presentation. I believe our time
is just about up.
The PRESIDING OFFICER. The Senator's time has expired.
Who yields time for the majority?
The Senator from Georgia.
Mr. CHAMBLISS. Madam President, I say to my colleagues that if they
will give us an up-or-down vote on all of these nominees, as they have
done in every other instance and as the Senate has done for every other
President of the United States, there is a lot of work we need to do
and we look forward to moving on to that. What we have been doing over
the past 24 hours almost now, what we are going to do for the next
several hours, is some of the most important business this Senate can
ever take up, and that is the confirmation of our judicial nominees.
I am pleased to yield such time as he may consume to the Senator from
Missouri, Mr. Talent.
Mr. TALENT. Madam President, I thank my friend for yielding. It has
been a pleasure, in a sense, to be here. I will not take very much
time.
I have enjoyed hearing the remarks of my friends, the Senator from
Hawaii and the senior Senator from Massachusetts. I have the pleasure
of serving with them on the Armed Services Committee. They have often
been eloquent on the floor of the Senate.
My friend from Massachusetts has been eloquent on the subject of
judicial nominations before. I am going to quote something he said
about 5 years ago. I do it with respect and for a reason. He said on
January 28, 1998:
Nominees deserve a vote. If our Republican colleagues don't
like them, vote against them. But don't just sit on them--
that is obstruction of justice. Free and full debate over
judicial nominations is healthy. The Constitution is clear
that only individuals acceptable to both the President and
the Senate should be confirmed. The President and the Senate
do not always agree. But we should resolve these
disagreements by voting on these nominees--yes or no.
We should resolve these disagreements by voting on these nominees--
yes or no. I have quoted this for a reason. The divisiveness over
nominations, holding them up in one way or another, is not new to this
Senate. This tactic of abusing the filibuster rule for a minority to
stop court of appeals judges from even getting a vote, that is new;
that is unprecedented. They have been blocking now or threatening to
block a quarter of President Bush's court of appeals nominees. That is
unprecedented, and the Senators doing it are responsible for doing it.
They have to stand up for that. But the divisiveness and some elements
of obstruction are not new.
We have an opportunity with this debate, and we are all exhausting
ourselves talking, trying to come up with a real bipartisan resolution.
I hope we can end the debate by stepping back and coming up with a set
of rules that will be fair to whoever is the President and whichever
party controls the White House. If we could do that, then we could
clear these nominees for a vote.
We are coming to the end of President Bush's term. We don't know who
is going to be President a year from now. But we know that President
deserves a better procedure than we have given this President. Now is
the opportunity to do that, and then we can get on to the other
business of the Senate.
I encourage both sides to do that, and I thank my friend from Georgia
for yielding.
Mr. CHAMBLISS. I thank my friend for his very insightful comments, as
always.
I yield such time as she may consume to the Senator from North
Carolina, Mrs. Dole.
Mrs. DOLE. Madam President, when the Constitution was drafted so many
years ago, it outlined a process by which the President of the United
States would nominate judges with the ``advice and consent'' of the
U.S. Senate. The filibuster expands the Senate's advice and consent
role in nominations well beyond what the Constitution envisioned.
And for too long, politics has prevented the Senate from doing its
constitutional duty.
The judicial process is obviously gridlocked. Qualified candidates
have been nominated only to find that they are unable to get proper
consideration on the Senate floor. In the meantime, burgeoning court
dockets, delayed trials and overworked judges have become the norm for
far too many of our courts, especially in North Carolina.
This simply isn't right. Every President, Republican or Democrat,
deserves to have his nominees voted on. Every Senator has a
responsibility to exercise his or her constitutional duty to vote on
the President's nominees, and every nominee deserves a hearing, a
committee vote, and an up-or-down vote on the Senate floor. Americans
deserve courts that are staffed with qualified judges, and the process
should be absolutely free of politics.
I was sworn in as a U.S. Senator to represent 8 million North
Carolinians. In doing so, I took an oath to fulfill the duties of this
office, including one of a Senator's most important responsibilities--
voting on judicial nominees submitted by the President. Unfortunately,
politics has undermined this process. Americans have the right to know
where their Senators stand, and no one, no one should be able to hide
behind parliamentary loopholes to avoid accountability to his or her
constituents. The Constitution calls on all 100 Senators to give their
advice and consent--not one Senator with a blue slip, not a group of
Senators on the Judiciary Committee, but all 100 Senators.
President Bush has said that each judicial nominee deserves a vote
within 180 days of his or her nomination. Unfortunately, that is not
the case for several of our excellent North Carolina nominees. Right
now, we have three candidates whose nominations have been languishing
in the Senate.
Terry Boyle was first nominated to the 4th Circuit Court of Appeals
in 1991--and then again in May 2001--this means he has been denied the
courtesy of a vote in the Senate for more than a decade. Let me make
that clear--More than a decade. The 4th Circuit hears federal appeals
from North Carolina, South Carolina, Virginia, West Virginia, and
Maryland. North Carolina is the largest State in the 4th Circuit, and
historically the number of judges roughly corresponds with population.
By this measure, we should have four to five judges on the court. We
have only one. This seat has been vacant so long it has been declared a
judicial emergency, so it is imperative that we act now.
And Terry Boyle is extremely well qualified for the job. He is Chief
Judge for the U.S. District Court in the Eastern District of North
Carolina, having served on that court for 17 years. He was designated
to sit with the court of appeals 12 times, and he has authored over 20
appellate opinions. Everett Thompson, an Elizabeth City lawyer and a
Democrat, said this of Terry Boyle: ``I think he is really one of the
best trial judges I've every appeared before. He's a student of the
law, he works hard, he's bright, he's fair. And I never saw him be
political about anything at all.''
And then there is Jim Dever, former Editor-in-Chief of the Duke
University Law Journal, nominated to serve on the U.S. District Court
for Eastern North Carolina. How long should a nominee have to wait for
a hearing? Three weeks? Six week? Six months? This distinguished
attorney has waited 18 months just to get a hearing. The seat has been
vacant for almost 6 years--currently, the longest district court
vacancy in the country. And the Eastern District is an area where his
skills and expertise are desperately needed--this vacancy has been a
judicial emergency since 1999--and, until the recent confirmation of
Louise Flanagan, there were only two full-time judges there. The
caseload got so heavy last year that U.S. District Judge Malcolm Howard
had to continue seven civil cases because of the
[[Page 28755]]
pressing criminal docket, which takes precedent by law. In an order
announcing his decision, Judge Howard wrote, ``For more than two years,
this four-judge authorized court has functioned with two active judges.
The result over time is that the caseload, civil and criminal, has
become almost insurmountable.'' Mr. President, there hasn't been one
single objection raised about Jim Dever's qualifications. He has broad
bipartisan support. Robinson Everett, a Duke Law professor and former
chief judge of the Court of Appeals for the Armed Forces, describes Jim
Dever as having ``all the requisite qualities''--``he will be a superb
jurist.''
And, Bob Conrad is a well-respected U.S. Attorney nominated in April
to be U.S. District Judge for the Western District of North Carolina.
He is sorely needed. This is a district that had one of the highest
caseloads in the country for the sixth year in a row. Bob Conrad is
held in high esteem by his colleagues--Republicans and Democrats. He is
known for his prosecution of a cigarette smuggling ring funding the
terrorist group Hezbollah. In 1999, he was appointed by then-Attorney
General Janet Reno--Janet Reno, as the point man for a Justice
Department Task Force looking into illegal fundraising on the campaign
trail. Roy Cooper, the Democrat Attorney General for North Carolina,
said of him, ``Bob is a straight shooter. We are from different
political parties, but I believe he is a student of the law and his
decisions are not affected by partisan politics.''
All three North Carolina nominees come with superb credentials, yet
none has ever been considered by the Senate Judiciary Committee or, of
course, the full Senate. This is a fairness issue. It isn't fair to
these nominees and certainly isn't fair to our judicial system, which
must not be subjected to political maneuverings.
If a Senator believes a nominee is not qualified, then have the
confidence to convince fellow Senators to vote against him. But at
least take a vote. I trust my colleagues will vote based on a nominee's
qualifications, like integrity, fairness, intelligence, work ethic,
adherence to the rule of law and judicial temperament. We owe it to
their constituents to take a stand on each and every judge. And that
simply isn't happening in the U.S. Senate.
There are a variety of ways that nominees have been held up in the
Senate over many years. But we have reached an unparalleled level with
the filibuster of judges. Instead of continuing a trend of retaliation,
we have the ability to stop this downward spiral in its tracks. If we
don't, the loser will be justice, the hundreds of thousands of crime
victims in the United States and the judges who are overworked and
unable to meet the demands on their courtrooms. And common sense tells
us that many of America's highest courtrooms don't have judges to run
them, and as a result, the legal system simply can't function. Yes,
justice delayed is justice denied.
Mr. CHAMBLISS. I thank the Senator from North Carolina for her very
insightful comments, as always, about what has been happening in North
Carolina with respect to the delay of judicial appointments once again.
Now I yield such time as he may consume to the Senator from Indiana,
one of the most respected men in the Senate, Mr. Lugar.
Mr. LUGAR. Madam President, I thank the distinguished Senator from
Georgia. I thank him for his leadership throughout this debate and his
extraordinary contribution to our understanding. I likewise appreciate
very much the testimony of the distinguished Senator from North
Carolina with specific references to remarkable nominees, and the
distinguished Senator from Missouri, who preceded the Senator from
North Carolina, with his insightful comments.
I would like to take a slightly different approach in my speech. I
believe this debate is about the thought that we ought to have a vote
up or down on each nominee. That is very important to the Senate, to
our country, for fairness to the nominees and to the strength of the
judiciary.
It has been my privilege to serve almost 27 years, 15 of these years
with a Republican President. The custom I knew as a young Senator and
now in whatever age I am at is that you have a responsibility: If you
are going to make recommendations to the President of the United
States, do so with care.
In the first 25 years of my career, I appointed a nominating
committee in Indiana made up principally of very distinguished
attorneys and judicial figures for whom I had respect and from all over
my State. I knew these people commanded respect, and they were very
helpful in identifying, each time a judicial vacancy occurred, several
nominees.
Without fail, I presented all of these nominees to the President, and
his staff sifted through them and in each case came up with one of the
nominees, frequently the one recommended first by the panel I had
suggested. And thank goodness, each one of these nominees had an up-or-
down vote, usually a very fine consideration by the Judiciary
Committee. I did not ever take that for granted, but I saw coming along
the horizon a very different story in the current workings of the
Judiciary Committee.
I have great respect for that committee and its members and for those
who have served as chair and ranking member of the committee. I think
there is a crisis in that committee which is very important for us to
be thinking about. I believe that privately a good number of members in
the committee on both sides of the aisle deeply regret what has been
occurring in the committee.
Nevertheless, once again, on May 15, 2002, I was confronted with the
news that Judge William Lee and Judge James Moody would both be
retiring. I appreciated that those vacancies, two of them, were going
to come in to the particular milieu about which we are now talking.
So on this occasion, I took the responsibility personally to write to
the press throughout our State that we had a very substantial
opportunity ahead of us. I outlined all the qualifications I could see
of a Federal judge and, with great cooperation of the press, invited
every well-qualified person to apply. The applications the candidates
filled out consumed tens of pages, including substantial writings and
often the statements they had made in their professional work.
Over the course of 4 months, ultimately 15 serious candidates
emerged. I personally read all of their statements carefully. Those 15
candidates included 6 State judges, 4 U.S. magistrate judges, 2
attorneys in private practice, 1 Federal prosecutor, 1 Indiana
prosecutor, and a legal professor. Their ages ranged from 35 to 61 and
they represented 11 counties across our State.
After taking a hard look at all of these applications, I interviewed,
over the course of an hour or 2, 5 of the nominees I thought were the
most promising. In those interviews, I was interested principally in
their professional skills, but likewise I had read the opinions of
these nominees. I did not ask them questions on social issues in
America today, on political issues, on foreign policy issues. I did ask
them about their work, the characterization of how they would fulfill
their responsibilities.
Following all of that, I submitted three names to the White House,
and two of those persons were in fact nominated. They were Philip
Simon, an assistant U.S. attorney and chief of the criminal division in
Hammond, IN, and Theresa Springmann, a U.S. magistrate judge from
Hammond, IN, this being the northern half of that State, that
particular district that was involved.
In fact, I have nominated a third, whom I shall not indicate in this
address. But President Bush, in fact, did send those two nominees I
have cited, Mr. Simon and Ms. Springmann, to the Senate.
Philip Simon, I had found and the Senate Judiciary Committee
discovered, had a remarkable record as a U.S. attorney. He was chief of
the criminal division and responsible for all criminal prosecution in
the Northern District of Indiana. He supervised and participated in
prosecutions involving
[[Page 28756]]
large-scale drug distribution rings, illegal firearms trafficking,
white-collar fraud cases, environmental crime, and mob-related
racketeering cases. He was in charge of a public corruption task force
in Lake County, IN, which was very vigorous. He has been the recipient
of a number of awards and commendations. The mutual insurance companies
of Indiana presented an award to Judge Simon for his work to combat
insurance fraud. He was given the Directors Award by former Attorney
General Janet Reno, the highest award given to a U.S. attorney by the
Justice Department in the last administration.
Judge Springmann was the first woman to be made partner at Sprangler,
Jennings & Doherty, the largest law firm in northwest Indiana. She
followed this up by becoming the first woman judicial official in the
Northern District of Indiana, presided over 30 civil jury trials, 10
civil and criminal bench trials, and conducted 300 settlement
conferences for the district court. She received a number of
commendations and the highest rating from the Lake County Bar
Association.
At this point, I decided to write to Senator Hatch and Senator Leahy,
chairman and ranking member of the committee. Beyond that, I went to
both of them for personal conversation about these nominees, to explain
the procedure and my own criteria, at least, in making these
suggestions to the President.
In fact, on March 12 of this year, Judge Springman and Judge Simon
were given hearings; but prior to that time, I approached Senator Evan
Bayh of Indiana, and I gave to Senator Bayh the total records of these
nominees, so that he might see exactly the same applications I had
examined, the same opinions. I asked him for his support of these
nominees, and in fact he gave that. He appeared with me before the
Judiciary Committee on behalf of these two nominees.
Perhaps we had an unusual situation in Indiana, but I point out that
I was pleased the Judiciary Committee acted promptly on the nominees
and the Senate did likewise. Thus, what could have been a gaping hole
in the Northern District of Indiana judiciary lineup, in fact, was
promptly filled, even after the departure of these two distinguished
judges. Now, that will not work for every situation, and there may be
occasions, as a matter of fact, when the President of the United States
has nominees in mind, as he takes a look at a particular State, that
the Senator from that State may not have in mind. I can conceive that
my three nominees might have led to the President or his people saying:
Go back and try again and see if there are not other persons among
these distinguished people you have nominated who more fit the idea of
what I believe ought to be on the bench in America today. I recognize
that.
But it was very important to my constituents in Indiana that we have
the service of these judges--continuity in that regard. It was very
important that they knew the criteria, the character, the whole
process, that it was totally transparent and played out over several
months with an enormous amount of publicity.
Sadly enough, the Northern District of Indiana has an extraordinary
number of political corruption trials going, with problems of gang-
related crime from Chicago and the Illinois border, and sometimes from
Michigan and through that area, which brings a total Federal emphasis
quite apart from the local situations that might have been involved.
These were controversial areas of turmoil, not the placid situations
that more characterize my State.
This is why the selection of people in this particular business--
where there was enormous fraud, abuse, and corruption--was especially
important and the civic trust in these judges is especially important.
They have been serving for several months with distinction, as I
anticipated they would. There was in fact a recognition at the time
they were sworn in by the total community, in a very large celebration,
celebrating the judiciary and the rule of law in that part of our
State.
I recite all of this and have asked Senators to indulge in what
amounts to maybe a parochial recitation about Indiana simply to say I
believe that somehow in the workings of the Judiciary Committee and the
relation of that committee with the White House and with us, there
really has to be a working out of a better feel. What I suspect is
occurring here is that, unfortunately, there may be individual members
of the committee who have decided a way to carve out a different
function for themselves or maybe suggest a different function for the
Senate.
We are all judges of the Constitution and what is proper and so
forth. There are some who say, after all, a Presidential nominee for a
Cabinet position is going to be bound by the term of the President. But
these are lifetime officials, and we recognize that. But as the
distinguished Senators who preceded me have pointed out, new Presidents
come and go. The fact is that Republicans and Democrats are somehow
going to have to work together year after year in an ongoing body for
the continuity of our country.
What is occurring now doesn't work. Without arguing the wisdom or
justice of someone holding up a nomination through a filibuster, I
submit that this is not in the best interest of the Senate or our
judiciary. The public doesn't like it. There may be partisan persons or
people with special interests in America who do like it. Whose entire
being resonates with a particular cause and they attempt to prevail
upon people to stop somebody at all costs before they do harm. I
understand that. We all have to deal with that.
What we are talking about today is, I hope, the continuity for the
very broad number of Americans who want to have confidence in justice
and confidence in us, even in a closely divided Senate, maybe in a
closely divided country, and to be able to work in their interests.
That is why this debate is so important--to elevate this idea not only
of comity but of justice, doing the right thing to a much higher level,
as opposed to the tactical advantage of filibuster, of a misuse, in my
judgment, of a separation of power situation to cause harm.
Madam President, I appreciate the opportunity to participate in this
debate with my distinguished colleagues.
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Madam President, I thank the Senator from Indiana. As
always, he has provided great insight into the way in which judicial
nominees are best handled. He does it in a way in which all of us
function. It does work. Particular instances we have had on the floor
under consideration have also gone through a similar process, where the
President has picked nominees he knows are great jurists and great men
and women.
Unfortunately, we are having to go through the exercise that we are
having to go through to hopefully seek the cloture and to vote to
ensure that these men and women get an up-or-down vote.
I want to talk quickly, in the remaining time we have, about two of
the nominees.
I had the opportunity to visit this afternoon with the Honorable
Janice Rogers Brown, who is a justice on the Supreme Court of
California, whom the President has nominated for a position on the DC
Court of Appeals. Justice Brown has a very distinguished 26-year legal
career, all but 2 of which she served in public service. She has a
great Horacio Alger story to tell. She was born in a tiny community
called Greenville, AL, outside Montgomery. She grew up in the rural
South just, as I did and Senator Alexander did, at a time that was very
difficult. She made the best of the conditions under which she grew up
and she survived in a situation which a lot of people didn't survive.
I was so impressed not only with her legal background and her
educational background but just with Janice Rogers Brown as a person.
She is just a great lady. For her to go through what she is going
through now, for one simple reason--that reason being nothing to do
with any particular decision she has rendered in the Supreme Court of
[[Page 28757]]
California. The only reason she is going through what she is going
through now is that she gave a speech to about 50 people in which she
challenged the young people in that audience and, as a result of that,
she is now being filibustered or is in the process of coming to be
filibustered by the Democrats.
I urge my colleagues to consider very thoughtfully voting positively
on the cloture motions we are going to have tomorrow.
The PRESIDING OFFICER. The Senator from Maryland is recognized.
Ms. MIKULSKI. Madam President, here I am in the Chamber again exactly
24 hours 30 minutes from when I was gaveled down from trying to
complete the VA-HUD bill. I was on the floor 24 hours 30 minutes ago,
standing up for veterans, trying to protect the environment, and
working very closely and enthusiastically on a bipartisan basis with
the chairman of the subcommittee on appropriations for veterans,
housing, the environment, and other independent agencies.
We were only 2 hours and about five or six amendments from being
gaveled to come to cloture on the bill. As I was gaveled down, I was
just heartsick that we could not take 2 more hours to finish the bill.
Instead, this went on for 30 hours, and I am puzzled what has been
accomplished by it.
I know what wasn't accomplished by it. We did not finish the
appropriations bill yesterday. Because we didn't finish the
appropriations bill yesterday, we essentially said to millions of
American veterans that we are going to put you on hold. We said to
those thousands of faith-based organizations that build housing for the
elderly--oh, no, we have to worry about a filibuster for judges; oh,
no, we cannot move the bill. For those people who are trying to bring
criminal prosecutions on polluters in the environment, we said we
cannot really fund that, even though you don't have the right computers
and enough staff. We have to talk about four judges. Millions of
veterans, housing to be built for the elderly, the environment to be
protected, getting our astronauts back to space safely, investing in
science and technology at the National Science Foundation--that is the
stuff of the VA-HUD subcommittee. That is why I am so passionate about
it. It is one of the greatest subcommittees in Appropriations because
it meets compelling human needs and yet gets America ready for the
future.
But oh, no, we could not finish it yesterday, we could not take 2
hours--oh, no, we had to talk about four judges and a process.
I am very disappointed in that, and I have to express my gratitude
for the way Senator Byrd pushed for completion of the bill. I also
express my gratitude to Senator Ted Stevens, who obviously worked out
something where tomorrow we can come back and attempt to finish the VA-
HUD bill. But this could have been done in the spirit of comity. We had
momentum yesterday. It is the way the Senate ought to work. We had a
bipartisan bill. We were forging bipartisan compromises, because when
it comes to standing up for veterans, we cannot be the Republicans and
Democrats, we have to be the red, white, and blue party.
Today, I was at Walter Reed talking to Marylanders who will forever
bear the permanent wounds of war. We were in wards with young men who
have put themselves on the line. They didn't lose their lives, but they
have lost a limb. You see their families. You say hi to a young lady
who is a wife or to a mother of one of those wonderful soldiers getting
great treatment at Walter Reed. You have a 22-year-old wife and a 42-
year-old mother trying to be there with her husband and her child, the
man they love, so he can get well and get back on his feet.
They are doing a fabulous job at Walter Reed. We are going to do all
we can to support them. Those men and women look so young, so fragile.
They are so brave and they cannot wait to get back on their feet. Some
want to get back to their unit. They are going to come back to the VA.
We cannot abandon these soldiers, sailors, and marines who are coming
back from Iraq either bearing permanent wounds of war or the permanent
impressions of war on them. We have to have a VA. This is why we need
to move our legislation forward promptly, expeditiously, on a
bipartisan basis.
I know, working with the distinguished Senator from Missouri, the
chairman, we can do this. But oh, no, we could not do it last night. We
had to put it aside. I didn't tell the guys at Walter Reed that we
didn't fund veterans health care last night. It would have broken my
heart to tell them we are going back to the Senate to argue about a
filibuster, to argue about four people of questionable qualifications
to sit on the Federal bench.
I didn't say that to them, but I say this to you. We have to get
serious about the agenda for the United States of America. We need the
right priorities. Do we need a good judiciary? You bet we do. That is
why we passed 168 judges already. With these four, with the
qualifications that are so thin and troubling and these other issues, I
don't think so.
I want to talk about the priorities. Fortunately, again, because of
the vigor of Senator Byrd and the cooperation of Senator Stevens, we
are going to be in the Chamber tomorrow. We do have priorities. I spoke
about veterans health care. You also know we have really significant
issues in housing. Our communities need help. We are ready to move
funds such as the community development block grant. This is money that
goes into local communities, whether it is a big city such as New York
or the small communities of Alaska, providing help to build childcare
centers, rehabilitation of dilapidated properties. CDBG, last year,
created over 100,000 jobs. When we asked for 2 hours, we were standing
up for that. When we look at housing for the elderly, most of it is
built and operated by faith-based organizations, such as the Associated
Jewish Charities, Associated Catholic Charities, the Lutherans. It is
wonderful because they take small amounts of Federal dollars and
leverage them with philanthropy. They not only run programs, they run
them with great compassion.
These are the things we should be spending hours on the floor
advocating. That is why we also worked to have funds to protect the
environment. I wanted to talk about the Chesapeake Bay. Last night, I
didn't talk about how we needed to protect the bay because we were
short of time. People wanted to stand up on how they want to protect
something about these four judges in the filibuster.
How about the National Science Foundation? That needed attention last
night, too. This is the one that invests in groups such as
biotechnology and infotech and nanotech. Nanotechnology is a whole new
field of inventing subatomic particles. I said to the Senator from
North Carolina yesterday when she was presiding, our earrings, Madam
President, this will contain all the books in the Library of Congress
20 years from now. That is what nanotechnology means. Taking one pill--
you can take everything from your heart rate to your blood sugar, and
also make new metal that is 10 times lighter than steel and 10 times
stronger.
I just lost thousands of steel jobs--thousands--and they are losing
their pensions and their health care. Maybe with nanotechnology, we
will have a new kind of metal mill and we can bring manufacturing back
to our country. Instead, we are sending our jobs on a fast track to
Mexico and a slow boat to China while we are slowing the Senate down in
this 30-hour process and squandering time and not focusing on national
priorities.
I don't want to diminish what we are doing on judges. The judiciary
is a separate and independent branch of Government. This is why we need
to have the best of the best.
Our courts are charged with safeguarding the very principles America
stands for: justice, equality, individual liberty. That courthouse door
must always be open, and when someone walks through that door they have
to find an independent judiciary. I want to be sure when somebody walks
through that courthouse door they not only get a fair trial and a fair
hearing, but they know that person providing it is the best of the
best.
[[Page 28758]]
The Senate does have an important and coequal role in the
confirmation of judges. There is an advise-and-consent clause. It
doesn't say sit around and rubberstamp. There is nothing in the
Constitution that talks about 180 deadlines. It says give advice and
consent.
We gave advice, but we do not give our consent on four individuals.
When I look at judges, I have three categories: judicial competence,
integrity, and commitment to the core constitutional principles.
My senior colleague and I have just supported three Republican judges
from Maryland. We did it with enthusiasm. One was Judge Titus, whom the
Senate confirmed just a few days ago. He is a brilliant man, very
esteemed, involved in the Maryland bar. He could go on the Fourth
Circuit Court of Appeals.
Another we backed in committee and on the floor was Judge William
Quaries, an African-American jurist who I predict will go far. A
scholar with a touch of the people. He has a unique touch.
We also backed someone unique, a man who chaired the Republican Party
in Maryland. He actually ran against a Democratic attorney general and
Senator Sarbanes and I signed the blue slips with a flourish and
appeared before the committee. Why would we do that? Because Judge
Robert Bennet is a fantastic person and an excellent judge. He was
fabulous as the U.S. Attorney. He brings legal ability, writings, et
cetera. Look, we said, let bygones be bygones, he would make a great
judge, and we are not going to stand on the party. This is the way
Sarbanes and Mikulski have operated.
But guess what. Now we get to the court of appeals. What a process
this has been. First they sent us a gentleman who wasn't even a member
of the Maryland bar. He lived in Maryland, but we don't think ZIP Codes
are the only qualification. We think you have to be a member of the
Maryland bar and participate in the Maryland legal community. So we
rejected him.
The next person they sent was on the staff of Judge Gonzalas. We felt
that was a little--it was an excellent job for him, but a little thin
for the court of appeals.
Guess what. Now we have been sent a Virginian. You might say, Is
there anything wrong with being from Virginia? No, as long as it is the
Virginia seat. It is by tradition that there are geographic seats on
the court of appeals and we want ours. My colleague Senator Sarbanes
and I are going to fight that on the basis of geography. There are many
other things about Mr. Allen that are troubling about his background,
but right now our battle will be because this should be a Maryland
seat.
I have voted for Republican judges and I voted for Republican judges
on the court of appeals in Maryland. There is Judge Niemeyer, an
excellent judge. I supported him for the district court and now on the
court of appeals.
When Judge Dianna Motts went to the court of appeals I didn't even
know what party she was. I didn't know. You know what, I didn't care.
Here we are, arguing over a process. We are squandering our time,
while pressing national needs are here. I would say, let's move on.
Let's get back to the business America wants us to focus on. We can't
have food fights and so on in the Senate. I have worked with so many of
my colleagues on a bipartisan basis that I would like to get the
momentum back for that type of action.
Tomorrow when I get another chance at VA-HUD, I look forward once
again to returning to work in the Senate that tries to move bipartisan
legislation. When it comes particularly to national security and the
people who defend America, we put party aside and we are the red,
white, and blue party. Maybe we need to start acting like that in the
Senate on every issue.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, as I understand the allocation of time,
we have the remaining time, am I correct?
The PRESIDING OFFICER. Yes, 15\1/2\ minutes.
Mr. KENNEDY. We have 15\1/2\ minutes.
As my friend and colleague from Maryland pointed out, we have been
listening to our friends on the other side of the aisle for at least
half of the past 24 hours. After we have listened to that, we still
come back to the fact that 98 percent of their judges have been
approved and 4 have not, and the Constitutional Convention never
expected us to be a rubberstamp. We are faced on the other side by the
prospect, at least, of changing the rules of the game even though those
on the other side have used the system and refused to permit
consideration of a number of judges. They did that in the Judiciary
Committee of which I have been a member for many years.
It is interesting to me as we have gone over that ground so many
times, our friends on the other side would be so interested and
concerned about four individuals who have lost their jobs when we are
facing so many other Americans out there who have lost their jobs and
are really suffering.
We were talking about numbers. I mentioned the recent figures of the
Department of Agriculture that say tonight there are 13 million
children who are going hungry. That is Department of Agriculture
statistics. Have we heard over the period of the last 24 hours ideas or
suggestions or recommendations about how we are going to deal with the
problems of hunger in children? That is happening tonight, 13 million.
The other side is talking about four judges--four individuals who
make more than $100,000 a year. What about the 13 million hungry
children? Have we talked about that?
How much have we talked about the 9 million Americans who are
unemployed? There are 1.4 million who have already lost their
unemployment compensation, with all the implications of that. They
can't buy health insurance, they can't put food on the table, they
can't pay the mortgage, they can't buy a birthday present for their
children, they can't celebrate any kind of holiday for any of the
members of their family. They are hard-put and hard-pressed. Have we
talked about that for those individuals?
How about the millions of Americans who do not have health insurance
tonight? How about the millions of Americans who do not have health
insurance tonight, the hundreds who lost their health insurance today,
and all of their concerns for their families? How are they going to be
able to deal with medical bills? Have we talked about that?
The escalation of the cost of health care--have we talked about that
and what that means to families? Have we talked about families who have
gone into bankruptcy because they can't pay their medical bills? That
affects 2 million Americans every year. We talk about four judges; we
don't talk about 2 million Americans who go bankrupt every year because
of health care costs. We don't talk about that.
We haven't talked a great deal about the 80,000 workers who have
contributed to the unemployment compensation fund, and starting the end
of next month--and we are in the final moments and hours of this
session--80,000 a week are going to lose their unemployment. This is at
a time when the unemployment fund has $20 billion in surplus.
We are in the final hours, as the Senator from Maryland has pointed
out. Have we talked about what is going to happen to them? Don't you
think they are concerned about whether the Senate is going to take any
action in the final hours? Do we demonstrate any anxiety about what is
going to happen to their families? I haven't heard a great deal about
it from our friends on the other side. I haven't heard a great deal
about it.
We haven't heard a word from the other side about doing anything
about increasing the minimum wage. It has been 7 years since we have
increased the minimum wage; 7 years have gone by, and we can't get a
vote on it in the Senate. The other side brings up a bill like the
State Department reauthorization and I offer the minimum wage as an
amendment and the majority Republicans pull the bill to deny us the
[[Page 28759]]
opportunity to vote on it. I mean, if we are going to get indignant
about the rules of the Senate, come on. Come on. Let's vote on an
increase in the minimum wage. All of those on the other side who said,
``Let the majority have a chance, let's have a vote on an issue, let's
have a vote on this, let's have a vote on that,'' we say, ``Let's have
a vote on the increase in the minimum wage.'' Oh, no, we can't do that.
We can't have a vote on the increase in the minimum wage. We couldn't
even get a vote now on the question of extending unemployment
compensation. Oh, no, we can't do that. No, no, we are not going to be
able to do that. We can't get a vote on hate crimes. No, no, we can't.
We have to study that some more.
I mean, come on. Twenty-four hours and you are going to continue for
another 6 hours pontificating about the injustice that is being
perpetrated when you have all this taking place across this country?
The anxiety and tremendous frustration and the sense of hopelessness
that takes place across this country, and you refuse to let us have a
vote on the increase in the minimum wage?
This is the chart on the minimum wage. This is what is happening to
the minimum wage in the United States of America.
This blue line indicates the purchasing power. It was almost $8.50
back in 1968. It is now down to, without the increase, $4.95 in
purchasing power this year, without any increase. It will be just about
the lowest it has ever been.
Who are the minimum wage recipients? Here we go. Here is another
chart that shows the minimum wage no longer lifts a family out of
poverty--from 1972 through 1982, there were 2 years when it was just at
the poverty line. We said people who want to work and can work will
work 40 hours a week, they will be able to get out of poverty. Look
what has happened in the 1980s, 1990s. We were able to get a little
blip in early 1992 and again in 1998. It was basically the same
legislation. Now, since 1998 to 2003, we are unable to get a vote to
increase it $1.50 over 2 years.
Can you imagine the amount of money we have seen returned to American
taxpayers, $2 trillion over the past 2 years, and we can't get an
increase in the minimum wage for working men and women? And the other
side is trying to be indignant about the fact four individuals who are
making over $100,000 are being put upon and we are going to have to
listen to them for 6 more hours?
What is the increase in the minimum wage? It is the equivalent of
$3,000. It might not seem like a lot to people, but it is 7 months of
rent, 11 months of groceries, 14.5 months of utilities, full tuition
for a community college degree. That is what that represents. That is
real money for working families who are at the bottom end of the
economic ladder.
Our Republican friends refuse to give us at least the opportunity to
vote. Understand, vote. We heard that word used a great deal on the
floor of the Senate. Let's get a vote on this issue.
Let me review as well about jobs. We talked about four jobs. What we
are facing here is 3 million Americans who have lost their jobs. Let's
think, besides the statistics, exactly what it means in terms of
financial hardships of the unemployed. Look at this. Half the
unemployed adults have had to postpone medical treatment--that is 57
percent--or cut back on spending for food. I have just given the
figures and the statistics of the Department of Agriculture that have
13 million children hungry tonight. Thirteen million children are
hungry tonight.
One out of 4, 26 percent, has had to move to other housing. Imagine
that. We have 3 million people who have lost their jobs and 1 out of 4
had to move out--move in with friends or relatives. There is a problem
that deserves debate, discussion, and ideas and solutions and
resolution and determination and accountability here. There are 38
percent who have lost their telephone service, 22 percent are worried
about losing their phones, more than a third, 36 percent, have trouble
paying the gas or electric bill--things that are absolutely assumed
around here.
People are really hurting. We are not talking about 4 people, we are
talking about hundreds of thousands of people, and we have occupied the
time of the Senate to talk about 4 judges who are not qualified, I
don't believe, to serve on the Supreme Court. We are not expected to be
rubberstamps. Our Founding Fathers never intended that.
I want to mention one other item that is now in the conference. It
would be pretty worthwhile if we had engaged our friends on the other
side to tell us what is happening in the conference on the issue of
overtime pay. When people work overtime, something that for some 60
years has been in our law, it ensures people who work longer than 40
hours a week are going to be fairly treated. We have the proposal by
the administration to deny that to 8 million Americans. It was defeated
here on the floor of the Senate, defeated in the House of
Representatives, and now it is in a conference.
Why don't we hear from the other side what has happened to that
conference? Why don't we hear where they are on the issues of overtime?
That makes an enormous difference to people. It makes a big difference
in their lives. It is not 4 people and their livelihood, it is hundreds
of thousands, tens of thousands, millions of people whose lives are
going to be affected.
Right off the top of the list are firefighters, policemen, nurses.
Does that ring a bell to anyone around here? They are the backbone of
Homeland security. We are cutting back on their income.
We have had a bipartisan determination on that issue here. Do we hear
anyone on the other side, when they are talking about 4 jobs, talk
about all these numbers of Americans who are losing out?
Madam President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 2\1/2\ minutes remaining.
Mr. KENNEDY. I would have liked to have gone on. Maybe we will have
time later.
Unanimous Consent Request--S. 224
In the meantime, I ask unanimous consent the Senate return to
legislative session, proceed to the consideration of Calendar No. 3, S.
224, the bill to increase the minimum wage, that the bill be read a
third time and passed, and the motion to reconsider be laid on the
table.
The PRESIDING OFFICER. Is there objection?
Mr. CORNYN. Madam President, I ask unanimous consent that the Senator
modify his request so that just prior to proceeding as requested, the
three cloture votes would be vitiated and the Senate would then
immediately proceed to three consecutive votes on the confirmation of
the nominations, with no intervening action or debate.
The PRESIDING OFFICER. Is the Senator from Massachusetts willing to
modify his request?
Mr. KENNEDY. Madam President, I withdraw my consent request because
it is quite clear there is objection by the Republicans to the
consideration of an increase in the minimum wage.
Unanimous Consent Request--S. 1853
I ask unanimous consent the Senate proceed to legislative session,
the Finance Committee be discharged from further consideration of S.
1853, a bill to extend unemployment insurance benefits for displaced
workers, that the Senate proceed to its immediate consideration, the
bill be read a third time, passed, and the motion to reconsider be laid
on the table.
Mr. CORNYN. I ask consent the Senator modify his request so just
prior to proceeding as requested, the three cloture votes would be
vitiated and the Senate would then immediately proceed to three
consecutive votes on the confirmation of the nominations, with no
intervening actions or debate.
The PRESIDING OFFICER. Does the Senator from Massachusetts modify his
request with those conditions?
Mr. KENNEDY. I withdraw my request and let the Record indicate the
Republicans have objected to the extension of the minimum wage and have
objected to the extension of unemployment compensation for hard-working
Americans who have paid into that fund.
[[Page 28760]]
Mr. CORNYN. Madam President, once again, we are proceeding with the
Democrats' filibuster of the circuit court nominees.
Mr. KENNEDY. Do I have the floor?
Mr. LEAHY. Regular order, Madam President.
The PRESIDING OFFICER. The time of the Senator has expired.
Who yields time?
Mr. SHELBY. I yield myself as much time as I require.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SHELBY. Madam President, I rise tonight to speak on behalf of the
President's right to select qualified judges of his choosing and the
Senate's duty to provide advice and consent on these judicial nominees
by means of an up-or-down vote on their confirmation.
The quagmire in which we currently find ourselves I believe threatens
the constitutionally-vested discretion of this and all future
Presidents in appointing those judges they see fit. Second, it
threatens the independence and effectiveness of the federal judiciary,
and third, it threatens the future function and effectiveness of the
United States Senate as the deliberative and distinguished institution
it is today.
Article 2, Section 2, Clause 2 of the United States Constitution
vests the President alone with the power of appointing Federal judges
``with the Advice and Consent of the Senate.'' Nowhere does the
Constitution grant the Senate any power over selecting judicial
appointments.
A review of over 200 years of the Senate's history and practice makes
it clear that the Senate's role in Presidential nominations is either
to confirm or deny their appointment by means of an up-or-down vote on
the floor--nothing more and nothing less.
The unprecedented obstruction we are now experiencing is simply
unjustifiable, I believe.
Why not allow the President to do his job of selecting judicial
nominees and let us do our job in confirming or denying them?
Principles of fairness call for it and the Constitution requires it.
Those of my colleagues who are currently blocking confirmation of the
President's circuit court nominees have admitted to doing so on
ideological grounds. They feel that these nominees are outside of their
definition of ``mainstream''--whatever that may mean. When Senators
impose a subjective litmus test on judicial nominees, they are really
just seeking out candidates that agree with them ideologically. This
introduces a political element into the constitutional framework of
judicial appointments that isn't there--and with good reason.
The Constitution grants Federal judges lifetime tenure and salary
protection precisely in order to insulate them from political
influences.
The Senate's standard for confirming a judge should simply be a
nominee's honesty, competence, temperament, and appreciation for the
proper constitutional role of an Article III judge.
Any test beyond this substitutes the judgment of individual Senators
over that of the President and unduly politicizes a position that is
intended to exist outside the realm of politics. What is more, as my
colleagues in the minority continue to use their ideological litmus
test to justify blocking the President's circuit court nominees--four
so far, with more promised--these unfilled vacancies impose a heavy
burden on our judiciary.
The ability of these appellate courts to manage their caseloads and
to effectively interpret and apply the law is dependent on a full
complement of judges available to consider and rule on pending cases.
We all know the saying ``justice delayed is justice denied,'' and we
simply can not allow our own political agendas to undermine the fair
application of the rule of law.
I would encourage all Senators to take a step back from the current
debate and envision the future of this Senate if the obstruction of
these judicial nominees continues. Do we really want to operate in an
environment where judicial confirmations require 60 votes? That is the
direction in which we are rapidly headed.
I can understand that some of my colleagues don't agree with our
current President's politics. That is politics. I can understand that
this President's judicial nominees may not be to some of their
ideological liking. That is politics. However, this does not justify
denying a judicial nominee a simple up-or-down vote.
I feel quite certain that my colleagues on the other side of the
aisle would not be nearly as accepting of these obstructionist tactics
if they proverbial shoe were on the other foot.
I am not asking any of my colleagues to vote in favor of confirming a
nominee that they oppose. I leave that determination to their
discretion. I am simply asking them to allow the Senate to complete its
constitutionally-appointed duty in providing the President with advice
and consent on all of his judicial nominees.
Now, I would like to take just a few moments to discuss two of the
President's filibustered circuit court nominees in which I take a
particular interest: Alabama Attorney General Bill Pryor and California
Supreme Court Justice Janice Rogers Brown.
Bill Pryor is the President's nominee for the United States Court of
Appeals for the Eleventh Circuit. I have known Bill for many years and
have the highest regard for his intellect and integrity. Whether as a
prosecutor, a defense attorney, or the Attorney General of the State of
Alabama, he understands and respects the constitutional role of the
judiciary and specifically, the role of the federal courts in our legal
system.
I am confident that Bill would serve honorably and apply the law with
impartiality and fairness, if he were confirmed for the Eleventh
Circuit. Unfortunately, Attorney General Pryor's nomination has been
filibustered for most of this year.
Janice Rogers Brown is the President's nominee for the United States
Court of Appeals for the D.C. Circuit, which is widely regarded as the
court second in importance only to the United States Supreme Court.
I am proud to say that Justice Brown is a native of my own State of
Alabama, having been born in Greenville and raised in Luverne before
moving to California.
The progression of her career to serve on California's highest
court--the first African American woman ever to do so--is a remarkable
story of success through hard work and dedication that serves an
example for us all.
Justice Brown has enjoyed a distinguished career on the California
Supreme Court, most recently receiving 76 percent of the vote the last
time she came before California voters.
Justice Brown possesses the highest character and ideal temperament
for this important judgeship. Unfortunately, her nomination is subject
to filibuster and thus the D.C. Circuit is denied her services.
It is the role of the Senate to provide the President with advice and
consent on his judicial nominations. We can only fulfill this duty by
allowing each of these nominees an up-or-down vote by the full Senate.
The proper function and balance of the executive, judicial and
legislative branches depends upon it.
It is my hope that we can end this impasse tonight and vote on each
of these nominees. Let the majority vote. Let the majority count. If we
get the majority vote, they will be confirmed, but they should not be
obstructed. They should not be filibustered.
I yield the floor.
The PRESIDING OFFICER (Mr. Chambliss). The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I yield myself such time as I might
consume.
Mr. WARNER. Mr. President, parliamentary inquiry: Can the
distinguished Senator from Iowa--we were told to come here at certain
times, and if he were to take as much as he wishes, that would preclude
any other Senator speaking in the time period.
Mr. GRASSLEY. I yield to the Senator whatever time he needs.
Mr. WARNER. I withdraw my parliamentary inquiry.
Mr. GRASSLEY. I yield the Senator whatever time he wants.
Mr. WARNER. I will sit down. The Senator may go ahead.
[[Page 28761]]
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I rise today to discuss the Democrats'
filibuster of President Bush's judicial nominees. The Senate Democrats
still think it is Halloween and are trying to spook us into believing
that President Bush has nominated a bunch of extremist individuals that
cannot be good judges. The Democrats are claiming that these nominees
are ``outside of the mainstream''. The truth is that these individuals
will not implement a liberal agenda on the bench. The truth is that
these individuals will follow the law, rather than bend to the will of
the political left. But these inside the Beltway, left wing groups have
gotten the Democrats to do their bidding. They have hijacked the
judicial confirmation process in an unprecedented filibuster of
judicial nominees, and they are denying these good men and women an up
or down vote. Federal judicial seats will remain unfilled, and
litigants seeking justice from those courts can expect further delays.
The reality is that the Constitution of the United States gives the
President the power to appoint individuals to seats on the Federal
judiciary. The Constitution gives the Senate the responsibility to
advise the President in this process. And the Constitution requires the
Senate, by a simple majority vote, to give its consent to the
President's choices for Federal judgeships, or to withhold that
consent. But through an unjust abuse of the filibuster, a minority of
Senators is preventing the majority of the Senate from taking an up or
down vote on President Bush's judicial nominee. That is not right.
I have always been of the position that judicial nominees should be
carefully scrutinized by the Judiciary Committee because they are life-
time appointments. It is my opinion that judicial nominees should have
intellect, experience, character and integrity. They should also have
the right judgment and temperament for the job. But most importantly,
they should understand their role on the bench, which is to interpret
the law and to follow the law, not to make the law and legislate from
the bench. That is the most important credential in my book. And I take
that job of looking at judicial nominees very seriously.
However, once the Senate Judiciary Committee has had the opportunity
to review these candidates and to approve them, these individuals
should get an up or down vote by the full Senate. This is the right
process. This is a fair process. During my tenure with the United
States Senate, I haven't always agreed with a sitting President's
choices for the Federal bench. I have voted against a number of
judicial nominees because I didn't believe they were qualified to be a
judge, or because I didn't believe that a seat needed to be filled. But
I have never filibustered a judicial nominee.
But that is just what is happening right now. We are seeing the
unprecedented use of the filibuster rule to stop judicial nominees from
being confirmed. An exceptional group of men and women are being used
for political gain by this minority group of Senators. The nominees
that the Senate is considering right now, Janice Rogers Brown, Carolyn
Kuhl, and Priscilla Owen, as well as Bill Pryor and Charles Pickering,
two nominees that have been filibustered, they all are distinguished
individuals that deserve an up or down vote. They all deserve to be
confirmed.
Let me say a few words about the men and woman that are being
filibustered. These men and women are being characterized as outside of
the mainstream, extremist people. They are being characterized as ``bad
judges'' that have to be stopped. Nothing is further than the truth.
The reality is that some left-wing interest groups are skewering these
nominees' reputations with baseless allegations because they don't have
a liberal ideology. And the Senate Democrats are more than happy to do
the bidding of these racial outside groups. And our nation will suffer
dearly for it.
Priscilla Owen is currently a judge on the Texas Supreme Court. She
was unanimously rated well qualified by the ABA and enjoys a steller
reputation in her home state. She's been repeatedly reelected to the
Texas Supreme Court by wide margins and has served that court
admirably. Judge Owen enjoys the support of her two home state Senators
and has been endorsed over and over again by elected officials, fellow
jurists, and attorneys alike.
Janice Rogers Brown, the daughter of a share cropper who attended
segregated schools, put herself through California State University and
eventually law school at UCLA. She did all this while raising two
children as a single mother. She served her state in a variety of legal
roles, including Deputy Attorney General and then later as a legal
affairs secretary to the Governor. Judge Brown has served on the
California Supreme Court since 1996.
Carolyn Kuhl has been a judge on the Los Angeles County Superior
Court since 1995. She served in a variety of positions in the Justice
Department, and then was a partner at a prominent Los Angeles law firm.
Judge Kurl received a well qualified rating by the ABA, and enjoys
bipartisan support.
Three other highly respectable nominees have already been
filibustered. Bill Pryor has earned the reputation as one of the most
experienced states attorneys general in the country. He graduated from
law school magna cum laude, and clerked for Fifth Circuit Judge Wisdom.
We have seen that he enforces the law regardless of his personal
convictions. General Pryor also has overwhelming support from across
the political spectrum.
Judge Charles Pickering has been a lawyer and county prosecutor, and
has served as a distinguished federal district court judge for the past
11 years. He received the ABA's highest rating, ``well qualified.'' He
stood up against the Ku Klux Klan, and has been a leader for equal
rights, integration and inclusion in his community. The people that
know Judge Pickering best support him without hesitation.
Finally we have Miguel Estrada, who was nominated to the D.C. Circuit
Court of Appeals. He become so frustrated with the process that he
withdrew his nomination after waiting over 2 years for an up of down
vote. Yet he is the true American inspiration story. Born in Honduras,
he came to America as a young boy and through determination and hard
work, elevated to the top echelons of the law profession. He was an
Assistant Solicitor General of the United States in the Clinton
Administration, and was a partner in a prominent law firm. Mr. Estrada
received the highest rating from the American Bar Association, and is
well respected by colleagues and friends alike.
It is a real shame that this fine man felt he had to withdraw his
nomination from consideration because of the guerilla smear tactics of
the far left and because of the guerilla smear tactics of the far left
and because of the Democrats' unprecedented filibuster tactic. And it
is a real shame that these other fine men and women, and their
families, have to go through this same miserable saga. As I think about
these nominees with their stellar reputations, outstanding intellects,
and their compelling life stories, it saddens me to know that the
Democrats have been so ready and willing to stomp all over their good
names and to deny the American people quality jurists--all this in the
name of carrying the sword for special left wing interest groups.
I have served in this body for many years. And I have seen the
filibuster used to leverage a better bargaining position on legislative
matters. But it hasn't been used to block a judicial nominee, and
especially not where that nominee enjoys majority support by the
Senate. This is the first time in history that the filibuster has been
used to prevent a judicial confirmation, even though my colleagues on
the other aisle say that isn't the case. It is wrong and probably
unconstitional. It is an abuse of the process. The Senate is supposed
to provide advice and consent. The Democrats are denying the rest of
the Senate our responsibility under the Constitution to give our
consent--or even to withhold our consent. It is a terrible disgrace and
ought not to continue.
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The Democrats are leading us down a path that is just going to make
matters worse. The judicial confirmation process is already in an
unhealthy state of repair--we don't need to destroy it altogether. The
Democrats need to stop playing politics with the judiciary. They need
to stop spooking people about the qualifications and ability of these
nominees to be good federal judges. They need to stop spooking away
qualified nominees like Miguel Estrada. We need to stop this unjust
filibuster and give these worthy nominees what they deserve--an up or
down vote.
I yield the floor. I yield whatever time the Senator from Virginia
needs.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I thank my good friend, my colleague from
Iowa.
Mr. President, what is the parliamentary situation, and what time
remains under the control of my distinguished colleague from Iowa who
is managing this set of debates at this time?
The PRESIDING OFFICER. The majority controls 10 minutes, the minority
has 30 minutes.
Mr. WARNER. So we have 10 minutes remaining.
The PRESIDING OFFICER. That is correct.
Mr. WARNER. I thank the Chair.
Mr. President, I commend my good friend from Iowa for a very
statesmanlike coverage of the responsibilities of the Judiciary
Committee on which he has served these many years.
I turn to the following. If we look back in history in the summer of
1787, 55 individuals gathered in Philadelphia to write our
Constitution. It was a very hot summer, and it was a long and arduous
debate, many drafts back and forth, but careful consideration was
given. Finally, in mid September, it was over. It was a monumental
achievement. But the Framers did not know at that time what a great
achievement they had made, one that would enable the United States,
today, these 200-plus years later, to become the oldest continuously
surviving Republic form of government on Earth today.
Almost every other government in existence at the time of the
Constitutional Convention has fallen into the dustbin of history. So we
must ask ourselves, why? It is very clear to this humble Senator that
it was due, in part, to the wisdom of the Framers to have three coequal
branches of the Government. I view this debate as one to determine the
survivability of the coequal stature of the three branches.
I am not going to argue about all the things that have taken place
back and forth, but just go to this magnificent document--the
Constitution. The Presiding Officer has placed a copy of it on every
desk in the Senate chamber, and many of us daily carry it in our
pocket. The Constitution very clearly states that a simple majority
vote is the regular order of business, with the exception of a few
instances specifically enumerated in the Constitution that require
super-majority votes. Had the Framers decided that we should require 60
votes for the confirmation process of the Senate, they would have
explicitly written in such a requirement.
It is quite interesting to note that:
Two-thirds of the Senate must vote to ratify a treaty; two-thirds of
the Senate must vote to convict on an article of impeachment; two-
thirds of a House of Congress must vote to expel a Member of that body;
two-thirds of each House of Congress must vote to override a
President's veto; and two-thirds of each House must vote to propose an
amendment to the Constitution. With regard to the advice and consent,
clearly enunciated in the Constitution, and given to only one body of
Congress, the Senate, there is no mention of a higher than simple
majority vote. It is there to protect, again, the checks and balances.
It is there to protect against an executive branch nominee which, in
the fair judgment of the Senate, does not meet the high standards to
become a member of the judicial branch.
The case here is very simple: Are we going to abide by what the
Framers laid out, what has kept this great Nation together these 200-
plus years? Or are we going to devise and contrive in our own words
some system by which to prevent a simple vote up and down on a judicial
nominee?
The Constitution does not include that super-majority. If the bar is
to remain at 60 votes, as my colleagues on the other side have so
vehemently argued in favor of, I say then the Senate would have far
more power on questions of judicial nominees than was intended by the
Framers. The checks and balances concept of our Constitution would be
changed. And how would that affect our Republic?
Well, when the Constitutional Convention was over in September 1787,
Benjamin Franklin emerged and was greeted by a crowd, some were
reporters. He was questioned, ``what have the Framers wrought?'' He
replied, ``a Republic, if you can keep it.''
And that is what we are doing here in this historic debate. We are
determining the rules by which we keep that Republic.
Throughout this historic debate, this Chamber has resonated with the
use of the word ``filibuster.'' I ask: Can any Senator point to use of
that word in any of the rules of the U.S. Senate? In every desk, every
Senator has their book on the rules of the Senate and procedures of the
Senate. You can't find the word ``filibuster'' in that book because it
is not there. But, should I be wrong, parliamentary inquiry to the
Presiding Officer, can the Parliamentarian find the word ``filibuster''
in the rules of the Senate or any definition in the rules of the
Senate?
The PRESIDING OFFICER. The word ``filibuster'' is not contained in
the standing rules of the Senate.
Mr. WARNER. I thank the Presiding Officer. It is not in the rules.
Where do you go to look for it? Webster's Dictionary. This dictionary
has been in my office these 25 years since I have been privileged to
serve in this body. And I use it often. I say to my colleagues, this is
an interesting bit of history. The dictionary defines ``filibuster''
as, ``An irregular military adventure especially one in quest of
plunder, a free-booter, applied to buccaneers infesting the Spanish
American coast, later an organizer or member of a hostile expedition to
some country or countries with which his own is at peace in
contravention of international law.''
Go all the way down to the last definition, and you will find a
reference that is most appropriate to this debate. I read:
A member of a legislative or deliberative body who, in
opposition to the proposed action of the majority, obstructs
or prevents action by the extreme use of dilatory tactics
such as speaking merely to consume time and so forth.
It is about the fifth definitional use of this word.
I say, most respectfully, that it is a word that is a slang word. It
probably has been used to cover many types of procedures that both
sides have followed under the rules for many years.
I went back and did some research in this wonderful book. It is
entitled ``Senate Cloture Rule, Limitation of Debate in the Congress of
the United States, Legislative History of Paragraph 2 of Rule XXII of
the Standing Rules of the United States Senate.''
I do not find in this excellent treatise, put out in 1985 by the
Library of Congress, printed by the direction of the Rules Committee
and Administration of the United States Senate, any instance in which
the situation we are faced with today with these nominees is covered.
They do refer to the use of the word ``filibuster,'' but loosely.
Ultimately, with all of the confusion surrounding the word
``filibuster,'' I think you have to come down to what it was the
Framers intended, what is in this book--the Constitution, which has
held this Nation together these 200-plus years, this great Republic of
our's.
I say to my colleagues, as Ben Franklin said, we have a Republic, and
this debate is determining the ground rules by which we can or cannot
keep it.
Clearly, the President has the authority to nominate. Clearly, this
body has the authority of advice and consent. But remember, it is to be
in a balance of powers between the executive and the legislature. I say
if we are to
[[Page 28763]]
set a precedent here that it requires 60 votes to act upon a nominee,
three nominees--
The PRESIDING OFFICER. The time of the majority has expired.
Mr. WARNER. I ask unanimous consent for 1 additional minute.
Mr. LEAHY. Then I ask for 1 additional minute on our side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. If we were to set a precedent that nominees reported out
of the Judiciary Committee were subjected to a 60 vote requirement,
this precedent would disrupt the carefully crafted system of checks and
balances embedded in our Constitution by giving the Senate far more
power in the judicial selection process than the Executive Branch, the
President. These nominees deserve a simple up-or-down vote as provided
in the Constitution by the absence of any reference to a supermajority
or a 60 vote requirement.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. CARPER. Mr. President, I am honored to follow the Senator from
Virginia. I want to return to the Constitutional Convention that he
spoke of from 216 years ago. Among the last issues resolved at the
Constitutional Convention was the question of whose job it is to select
the members of this third branch of Government that was to be created.
We have an executive branch, the legislative branch with the House
and Senate, and a judicial branch. At that time in this country there
was a great concern on the part of those framing the Constitution and
trying to craft a framework of our Government. Foremost among the
concerns they had was the concern that somehow we would unintentionally
invest too much power, too much authority in one person. Having dealt
with the King of England and not wanting to have to deal with another
figure of authority with the kind of powers of a monarch, there was a
great debate over what would the powers be for this new President and
how would we constrain those powers.
Among the last issues resolved at the Constitutional Convention was
the question of who selects the judges, who selects the members of that
third branch of the judiciary. There were plenty at the Convention who
thought that in order to make sure we didn't end up with another
monarch in this country, a king, the power of selecting the judiciary
should lie with the legislative branch. There were those who thought
the Senate or the House or some combination thereof should select who
the judges would be. There was another school of thought that said, no,
maybe we should give the President, our Chief Executive, the power to
select who our judges would be. As we all know, the compromise that was
struck was one that says the President may nominate with the advice and
the consent of the Senate.
Yesterday, as our youngest son came home from school, he shared with
his mom and me some good news. He shared with us that while he won't
get his report card for another week or so, he had learned the results
of his scores, his grade in English language arts. He is in the eighth
grade. He came home and he said: I got a 94 for English language arts
in this grading period, dad. I get an A. I get an A.
We were delighted. He has a tough teacher. He has worked real hard,
and he earned a 94. He is going to get an A. We hope he does as well in
his other courses.
On the scorekeeping for how this President is doing with respect to
getting his nominees confirmed, I think of the 172 we voted on so far;
168 have been confirmed, 4 have not. That is 98 percent. In my book, in
my son's book, that is an A. That ain't bad.
Before I came here to serve in the Senate with my colleagues, I was a
Governor. I know some people get tired of hearing me talk about that.
But it was a great privilege to be Governor of my State. In our State,
Governors nominate people to serve on the bench. The Senate can
confirm. Whether it was a judge, supreme court, magistrate court, any
commission, I would like to have had every single nominee confirmed. I
suspect that most other Governors who similarly make nominations for
appointments in their States would like to have all their nominations
confirmed as well. Not all of my nominations were confirmed.
There is a give and take with the Senate in my State, just as there
is a give and take with the Senate in this city for our National
Government. I don't often quote Mick Jagger and Keith Richards, but
there was an old song from my youth they used to sing: ``You can't
always get what you want, but if you try sometime, you get what you
need.''
We need from this President good nominees. I expect they are going to
be Republicans. I expect they are going to be conservative. My guess is
that of the 98 percent who have been confirmed, they were all
Republicans. For the most part they were all conservative. I don't
think it is realistic of this President to expect that we are going to
confirm 100 percent of his nominees.
It sure wasn't the expectation of his predecessor, Bill Clinton. He
got a majority of his nominees confirmed but not 100 percent, not 95
percent, not 90 percent, not 85 percent, but about 80 percent were
actually nominated, had hearings, and their names actually ended up on
the floor for a confirmation vote. That is a B-minus. Compared to the
A-plus that this President is getting with respect to confirmations, I
am not sure I understand fully the great dissent and the great
disappointment and the great frustration our friends on the other side
have shared.
Here is my frustration. I didn't come here to be about partisan
politics. I didn't come here to be about gridlock. I didn't come here
to pursue that agenda. I came here as one who wants to work with people
on the other side of the aisle. I want to get things done.
I have voted with this President more than 75 percent of the time. I
am told that only 7 Democrats have voted with this President more than
I have in the last 2 years. I have tried to provide leadership on
issues that both of my colleagues are concerned with, Senator Leahy and
Senator Hatch: class action, asbestos reform, bankruptcy, welfare, a
comprehensive energy policy.
Meanwhile, while we are standing here tonight debating on whether or
not 98 percent is good enough, we don't have an energy policy. Over
half the energy we get that we use in America comes from foreign
sources, a lot of it controlled by people who don't like us. We don't
have an energy policy. We should be debating an energy policy and
adopting it.
Standing here tonight we have a legal system that has lost its sense
of balance, whether the issue is class action litigation that is being
heard in small, remote courthouses around the country or whether the
issue is asbestos and folks sick and dying getting the help they need.
Meanwhile, the people who will never be sick will get money from those
who need it. We should be debating those issues here tonight.
We have too much sulfur dioxide or nitrogen oxide and mercury in our
air, putting out too much carbon dioxide, causing global warming. We
should be addressing those issues.
We had a trade deficit last year that exceeded $400 billion. It is
getting worse. We have a budget deficit that this year will approach
$500 billion in 1 year alone. We are paying today on our national debt,
just today, $800 million--plus just in interest on the debt. We ought
to be debating how we rein in those budget deficits and trade deficits,
not deciding is 98 percent enough or is 97 percent high enough in terms
of success in nominations.
As former Governor and someone who was once privileged to chair the
National Governors Association, we looked at the States as laboratories
of democracy. We looked at the States to provide best practices,
whether it was moving people off welfare, helping to make sure people
coming out of prison didn't recidivate and go back to prison, what
could we do to raise student achievement.
I want to talk about one model that works real well with respect to
judicial nominations, and one I know the most about is my State of
Delaware. Since 1897, the constitution of my State has called for
balance with respect to our
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judiciary. We have year after year a legal climate and a judiciary that
is acknowledged by some of the foremost attorneys who practice in this
country as the best--the best legal climate, the fairest of any State
in America. We are proud of our judiciary.
In the 8 years I was Governor, I nominated as many Republicans to the
bench as I did Democrats. Mike Castle, my predecessor, now a
Congressman, when he was Governor, he nominated as many Democrats to
the bench as he did Republicans.
In our State, there has to be a symmetry. Essentially, for every
Democrat you nominate, the next one has to be a Republican. We have
done that for over 100 years and have ended up with a terrific
judiciary, widely respected at home, across the country, and even
beyond our borders. There is a saying, ``If it ain't broke, don't fix
it.'' That is not what we ought to say. We should say if it is not
perfect, make it better.
The way we nominate judges in our National Capital for our Federal
Government is broken and it needs to be fixed. Whether George Bush is
President or Bill Clinton is President, we waste more and more time on
judicial nominations. We are bogged down in that. We still haven't
passed our spending plan for the new fiscal year, which started a month
and a half ago. We are still wrestling with our appropriations bills.
This system is broken.
My friends, the solution may be in Delaware, it may be in Vermont, or
it may be how they nominate judges in Georgia or in Iowa. There is a
better way to do it than what we are doing here. We have to find it and
we have to come to some kind of closure around a better plan. When we
do, instead of facing the prospect of leaving here without action on
class action legislation, action on asbestos, or action on an energy
bill, or without action on transportation policy, or early childhood
programs, maybe we can do our jobs and even pass appropriations bills
on time instead of the kind of mindless--oftentimes mindless debate we
devote to judicial nominations.
That having been said, I yield to the former chairman of the
Judiciary Committee, the ranking Democrat, Senator Leahy, with my
thanks.
Mr. LEAHY. Mr. President, I thank the Senator from Delaware for what
he said. He has a distinguished record in the other body, as Governor
and now here. We listened to him in this Chamber. I wish they would
listen to him on the other end of Pennsylvania Avenue because the
person who makes the nominations is the President. I have been here
with six Presidents. I have never known a time when a President is less
willing to engage the Senate in advise and consent. President Ford did,
President Carter did, President Reagan did, former President Bush did,
and President Clinton did. I hope this White House would begin to do
that also.
Interestingly enough, today I was given a petition signed by 310,000
Americans from all over the country. This petition supports a
filibuster of extreme judicial nominees of the President. In fact, in
the last 72 hours, 172,000 Americans signed these petitions. I went
through them, thanks to the ability to search electronically, and
picked out some from my State of Vermont.
In Moretown, VT, someone wrote:
It is a disgrace how this administration is attempting to
pack our Federal courts with right-wing extremist judges that
seek to undermine the hard-fought pillars of legal precedent
that reflect the values of a vast majority of Americans. I
wholeheartedly support the efforts of the Senate Judiciary
Committee Democrats to oppose this blatant abuse of the
majority power. . . . The Senate GOP leadership should be
ashamed of wasting precious legislative time to engage in
what amounts to a publicity stunt. . . ..
Shame on them. They don't deserve the seats that the people
have entrusted in them.
Moretown, VT, is a little town a few miles away from where I live. It
is straight down the valley; you can look straight down the valley from
the front lawn of my home. We used to go to mass there on Sunday. It is
where one of my grandmothers was born. So I was pleased to see that.
I received this petition from West Townshend, VT:
Thank you very much for all your hard work and valuable
work. We appreciate it.
West Townshend is a very small town in Vermont. People are very
independent there.
This one is from South Burlington, VT:
I support any measure to prevent Bush's extreme judicial
appointments. Keep up the good work.
This is from Barre, VT:
Please be strong and stand against the Republicans.
Ashcroft has already taken away too many of our civil
liberties; we cannot have judges doing the same.
Barre, VT, is considered the granite center of the world,
with the largest granite quarries in the world. My
grandfather, Patrick J. Leahy, was a stonecutter in Barre,
VT. My father was born in Barre, VT. The people of Barre, VT,
are as strong and independent as the beautiful granite in
their quarry.
I have one from South Ryegate, VT:
You must protect the cherished rights of women to control
their own bodies. Do not approve judges whose records show
that they do not believe in women's rights.
South Ryegate, VT, is a beautiful little town on the eastern side of
Vermont. I know it well. When my maternal grandparents immigrated to
this country from Italy, not speaking a word of English, they came to
South Ryegate, VT, where my Italian grandfather was also a stonecutter.
My mother, a first-generation American, was born there, her first
language was Italian, but she learned English at school. I remember my
grandfather, so proud of the judicial and constitutional system of this
country, and so proud of taking the oath of citizenship. My father, in
Barre, VT, was so proud of the separation of powers in this country--
the legislative branch, an independent branch of Government, equal to
the other two; the executive branch, independent and equal to the other
two; and the judicial branch, independent and equal to the other two.
I remember him sitting in the gallery when I was first sworn in as a
Senator, knowing I was part of that triumvirate of powers in this
country, which is why our democracy has lasted this long. But
throughout it all, it was so important that one branch was outside of
politics, that one was independent of either of the political parties,
and that is the judiciary. It should not be a Democratic judiciary or a
Republican judiciary.
The battle we are having now is because this White House does not
want it to be an independent judiciary. They want it to be the most
extreme possible. They want it to be an arm of the Republican Party.
One hundred sixty-eight to four. We have confirmed 168 of President
Bush's nominees. We stopped four of the most extreme. Lordy, the
crocodile tears that have been shed here, at great cost to the American
taxpayers, over the last 24 hours--the crocodile tears that have been
shed for that.
I do not remember one single Republican standing on the floor and
saying how terrible it was when the Republicans blocked 63 of President
Clinton's nominees, but, oh, my, it is like Niagara Falls, the
crocodile tears, when we blocked four of theirs.
I received another one from Burlington, VT:
The courts need to represent all Americans. Keep extremists
out. Thank you for fighting for representation of all
Americans by blocking the extremist judge nominees. Shame on
President Bush.
I mention Burlington because I was married there 41 years ago. I
still vote there. My children were raised there. I know the people in
Burlington, VT. They are independent, good people--people who care for
an independent, not a political, judiciary.
Little Hardwick, VT, stands at that junction between Montpelier and
St. Johns and Barre. They say:
Stay awake. Stay vigilant. Protect civil rights, a woman's
right to choose, public education and worker's rights. We
stand with you.
Hardwick, VT, let me tell you, I stand with you, and I will stay
awake and be vigilant. The people on this side of the aisle will stay
vigilant and we will protect an independent judiciary. We will not
allow the judiciary to be an arm of any political party.
The President said that he wanted to be a uniter and not a divider.
Oh, how
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much I wish he were. If there was ever a time that this country needs a
uniter, not a divider, it is right now. But, instead, in deference to
groups on the far right, the President has nominated judicial activists
about whom one cannot help but raise questions regarding their ability
to act impartially, with justice for all. We need an independent
judiciary.
We are fortunate in Vermont because we have the most independent
Federal judges you can imagine--people with total integrity, who will
treat whoever comes into their court with impartiality regardless of
whether they are Republican or Democrat or independent. That is what
all courts should do.
Time and time again, Democratic Senators have acted in good faith to
fill vacancies Republicans kept vacant by blocking a Democratic
President's judicial nominees. After Republicans blocked 63 of
President Clinton's nominees, when a Republican President came in, they
said: Look at all these vacancies. My God, we have to move as fast as
we can to fill them. This is terrible. This is a crisis in the
judiciary. How could this possibly have happened? How could this
possibly have happened; there are 63 vacancies here. My Lord, the sky
is falling down.
Where did those vacancies come from? They came from one person, one
Republican, holding an anonymous filibuster. If one Republican said, I
don't want this judge of President Clinton's, the nominee went no
further. Notwithstanding that, some of them had the highest
qualifications this country has seen. Notwithstanding that, some of
them were the most brilliant judges. Notwithstanding that, they were
Hispanics, women, African Americans, people of faith, and people of
great conscience. They were not allowed to go forward because one
member of the Republican Party said he or she did not want them to go
forward. But notwithstanding that the Republicans created all those
vacancies, notwithstanding that, the Democrats said, we will help you
fill them.
Notwithstanding the arrogance and the one-person filibusters on the
other side, the Democrats started filling those vacancies with
President Bush's nominees. We have filled 168 vacancies. We stopped
four of the most extreme nominees. And now, lordy, lordy, lordy, the
Niagara Falls of tears comes from the other side--crocodile tears,
hypocritical tears, from those who said not a word, not a word when
they blocked 63. Not a word. Not a word. They blocked 63. Not a word.
We stopped four of the most extreme, and you would think the world was
coming to an end.
What Democrats have done is that we have stood up for our principles
and for the independence of the Senate in its constitutional role in
the judicial confirmation process. The Republican leadership has
decided to spend, I am told, upwards of a quarter of a million dollars
of the taxpayers' money to have this debate. I apologize for that. I am
not the one who wanted to do this. I apologize to all the staff--the
police officers, who should be home with their families, the
doorkeepers, those who keep the journal of these proceedings--who are
some of the finest men and women I have worked with in nearly 30 years
here.
But that quarter of a million dollars the Republican leadership is
spending on this charade of crocodile tears could almost be worth it if
one thing comes out of it. If the President would realize that this
whole process begins with him, not with the Senate. The President has
an absolute right to nominate anybody he wants. The Senate has an
absolute right to advise and consent, to determine whether nominees are
confirmed, especially to lifetime jobs.
I ask him once again, work with the Senate. Every President through
history has sought the Senate's advice and consent. In those instances
when they did not, they did not get their way. There was another
President named George, the greatest President in this Nation's
history, George Washington. He was the most popular man in America in
the time he lived and probably the most popular person America has ever
had. He was a man who brought us together as a country, who set the
precedent to make this a great democracy. But George Washington
nominated judges the Senate felt he should not have. The Senate
exercised its constitutional authority, and not all of George
Washington's judicial or executive branch nominees were confirmed.
President Washington knew he had to come back and seek the Senate's
advice and consent before his nominees would go through.
A great hero of mine, not just because I am a Democrat but because I
remember what he meant to people like my parents, who owned a small
business in Montpelier, VT, was Franklin Delano Roosevelt, also one of
the greatest Presidents to ever serve this country. He kept this
country together, kept the world together at the time of naziism and
fascism, and the Japanese attack on Pearl Harbor. He brought us out of
a recession, and he did this even though he was physically crippled. He
worked so hard for this country, it finally killed him. But even
Franklin Delano Roosevelt, when he tried to pack the court and change
the independence of our Federal judiciary, a Democratic-controlled
Senate said he could not do that. In fact, not only did Franklin Delano
Roosevelt not get every one of his judges confirmed, but his court
packing plan was filibustered.
No matter how partisan anybody is here, I don't think anybody is
going to suggest the problems began here. The Senate said no to
Washington. The Senate said no to Franklin Roosevelt. The Senate can
say no to George Bush. Tradition is there. The Constitution is there.
Our rights are there.
Basically, we have taken all this time spending a quarter of a
million dollars of the taxpayers' money to talk about this because we
don't want to vote on minimum wage, or workman's compensation, child
programs, or the appropriations bills that, by law, we are required to
have voted on by September 30. We still haven't. We don't want to vote
on veterans benefits even though the administration seems hellbent on
cutting veterans benefits.
We don't want to do any of those things. We will spend a quarter of a
million tax dollars on the Republican's charade. I say the same thing
today that the Senate said to George Washington and said to Franklin
Roosevelt: We are going to ask for advice and consent. The Senate is
going to stand up for its rights. I yield the floor.
The PRESIDING OFFICER. Does the Senator yield back his time? He has
56 seconds.
Mr. LEAHY. Mr. President, let me say this. Again, I have been here
with six Presidents, Republican and Democrat. Presidents have always
sought advice and consent. They have not always liked what they have
heard. Five of the six Presidents have been willing to work with us on
judicial nominations: Presidents Ford, Carter, Reagan, former President
Bush, and President Clinton. I urge the current President to follow
their example. Things will go far more smoothly. I do yield the
remainder of my time.
The PRESIDING OFFICER. All time has expired. Who yields time? The
Senator from Alabama.
Mr. SESSIONS. Mr. President, I appreciate the remarks of the
distinguished ranking member of the Judiciary Committee. He has been
around the Senate and the confirmation process for a long time.
He said he wanted to apologize for people staying here and having to
work tonight. It is unfortunate that we are here. We are here because
we have a filibuster organized and sustained by the Democratic
leadership against six nominees. We have more in the pipeline to be
blocked, so it is not just four. I want to ask, would the Senator want
to apologize for his remarks that he made in 1998 when he, Senator
Leahy, in the Congressional Record, said:
I cannot recall a judicial nomination being successfully
filibustered. I do recall earlier this year the Republican
chairman of the Judiciary Committee and I noted how improper
it would be to filibuster a nomination.
That was when President Clinton was in office and Chairman Hatch, a
Republican, was chairman of the Judiciary Committee. Chairman Hatch
said on the floor of the Senate and in committee and in private
Republican conferences that a filibuster was not good.
[[Page 28766]]
Senator Leahy and the Democratic leadership all said filibusters were
not good. We did not have those filibusters.
So it is amazing to me, now that within a year or two after making
statements such as that, and taking that position, we now have those
very same people leading a filibuster. I would say apologies need to
come from the other side.
Let me mention a few basics about confirmations under President
Clinton: 377 nominees were confirmed, 1 was voted down on this floor in
an up-or-down vote, not blocked by a filibuster, and no filibusters
were had against those nominations. That is what happened.
There were 41 left pending and unconfirmed. Many of those were
nominated late, after the August recess. Some of them had FBI
background problems, including drug use or other unresolved issues. So
there were 41 left pending and unconfirmed; 18 nominees were withdrawn
by President Clinton before the final term. So I guess that is how they
get 59, 60 nominees who they say got blocked. But that is what
happened.
When former President Bush was President and he left office and the
Democrats controlled the Senate, they left 54 of his nominations
hanging. So under Senator Hatch's leadership and under Trent Lott's
leadership, only 41 were left unconfirmed when President Clinton left
office.
They say you blocked them with holds. Holds were put on nominations,
just as they are today. Senator Levin has a hold against four circuit
judges for the Sixth Circuit. They say they are only holding up four;
this is not truth; with the nominees being blocked by Senator Levin
they are holding at least eight. In fact, there are 13 circuit judges
who are being held up and blocked by the Democrats right now. It just
so happens we are only in full-blown filibuster of five, one having
withdrawn, making six.
I will say one more thing. My colleagues on the other side of the
aisle just blithely and consistently and repeatedly say these nominees
are extreme, extreme, extreme. ``Most extreme,'' I believe is the
phrase I have heard: Most extreme possible; extreme judicial nominees.
As if saying this can make it so.
When we talk about judges, each judge is a human being. Each judge is
entitled to a fair and decent consideration on the floor of this Senate
and in committee. If they are not extreme, they ought not be called
extreme. That is wrong for us to do that.
I know these attack groups, People for the American Way, the Alliance
for Justice, the National Abortion Rights League and that crowd are the
extremists.
They accuse and call our nominees extreme. That is for sure. These
groups are not accountable. The problem is when these extreme notions
are picked up by Senators. This should not happen. Senators are the
ones who are elected. Senators are the ones who have taken the oath.
Senators in this body have a responsibility not to call a nominee such
as Priscilla Owen extreme. She got 84 percent of the vote in Texas and
was given a unanimously well-qualified rating by the ABA to be a
judge--she is not extreme.
Judge Janice Rogers Brown from California, who got 76 percent of the
vote in the State of California, not a conservative State, for justice
of the supreme court in that State, is not extreme. And neither is
Carolyn Kuhl, who rated the highest rating possible by the American Bar
Association, who has received incredible bipartisan support from the
hundred or so judges in her area where she practices as a State judge.
She was editor of the Duke Law Review and clerked for Justice Anthony
Kennedy and is a brilliant nominee of the highest order. These are
outstanding nominees. They are not extreme.
The extremists are the groups and the people calling them extreme.
These nominees teach Sunday school. They serve on the Altar Guild. They
are involved in civic groups in their communities. They have held
important positions in their States. They are the kind of people we
ought to have on the bench. It is wrong for them to be accused of being
out of the mainstream.
President Bush knows what the people want in Federal judges. He has
nominated that kind of Federal judge. The people will support him on
that, and it is very disturbing to hear them called extremists when
they are mainstream and effective judges and nominees.
I now recognize the Senator from Colorado. I believe he is prepared
to make some remarks.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. CAMPBELL. Mr. President, this evening I am pleased to join my
fellow Senators--including my good friend from Utah--Judiciary
Committee Chairman Hatch--for this ``Justice for Judges'' Marathon. I
doubt if anyone will change their minds, but the debate is one we need
to air.
First of all, I would like to thank Senator Hatch for the excellent
work he has been doing--just as he consistently does day after day and
hearing after hearing--as the Chairman of the Judiciary Committee.
I also thank Chairman Hatch for his support for another bill I am
sponsoring this year, the Law Enforcement Officer's Safety Act of 2003.
Every one of our Nation's leading law enforcement organizations--
including the Fraternal Order of Police--consider this bill to be one
of their top legislative priorities. I am especially pleased that this
bill now enjoys the strong bipartisan support of 66 cosponsors--
including 41 Republicans and 25 Democrats. I also want to point out
that Senators Leahy and Hatch are lead original cosponsors of this
important legislation, and thank them for their support. Unfortunately,
this bill is a perfect example of how the intent of the U.S. Senate can
be subverted by the few opposed to a bill.
I also want to point out that even though this bill enjoys bipartisan
support, and easily enough to get it passed by the Senate in an up-or-
down vote--or even to invoke cloture--it is still being held hostage by
a few Senators who have dug in their heels and refuse to let it pass.
It is not fair nor just in a body where fairness and justice is
paramount that a minority of a few can hold up the will of 67 Senators.
I want to let my fellow Senators know that I will be pushing for the
passage of the Law Enforcement Officers Safety Act early next year.
The challenges we are now facing in the form of the unprecedented
filibustering of Circuit Court judicial nominees is in no way the
result of Senator Hatch's ability as a Chairman or as one of the
Senate's great gentlemen.
Unfortunately, we are now facing a situation in which judicial
nominees that clearly have the bipartisan support they need to be
confirmed by the Senate in an up-or-down vote simply cannot get the
vote they deserve.
Repeated refusals to allow Circuit Court nominee Miguel Estrada the
straight up-or-down vote he deserved unfortunately led to him
withdrawing his nomination.
As a Coloradan, I am not alone in my assessment that an injustice was
done, and not just to Miguel Estrada, but to our finely balanced system
of Constitutional government as handed down by our Founding Fathers.
We all know the history of Miguel Estrada. He is a great American
success story. He is a man of impeccable credentials dedicated to
upholding the law. Unfortunately, he has committed the high crime of
being a conservative. He does not deserve the insult of being called a
``lemon'' as one Senator has done today. Whether to vote against
nominees is each Senator's decision, but they do not deserve insults.
On September 10, 2002, the Pueblo Chieftain editorial stated:
One would think that Democrats in the Senate, who claim to
hold diversity in such high esteem, would be amendable to Mr.
Estrada's nomination. But he committed the political sin of
being conservative.
The Pueblo Chieftain went on to say:
For the first time in the Nation's history, Senate
Democrats filibustered the nomination. By doing so they
turned the Senate's historic practice of advice and consent
into a litmus test for liberal interest groups. The Democrats
also have launched filibusters to stall the nominations of a
half-dozen other candidates.
[[Page 28767]]
The editorial continues:
Mr. Estrada asked President Bush to withdraw his
nomination, which had languished in the Senate for nearly two
years. Mr. Bush did so, with regret.
Mr. Estrada should have been confirmed. He was just as
qualified as a dozen other judicial nominees who were
eventually confirmed.
But Democrats have resorted to the filibuster to stop those
judicial candidates feared to be opposed to abortion. But
when asked about the Roe v. Wade abortion ruling during
confirmation hearings, Mr. Estrada said, ``It's the law. I
will follow it.''
In the long run, Democrats may have hurt themselves and
their outreach to Hispanic moderates and independents by
denying all Hispanics a historic moment--the first and
highest-ranking Hispanic on the Federal bench who also had
strong backing from a wide range of Hispanic groups.
Mr. President, let me speak about a towering figure in Colorado
history. Byron White, a football star and then a conservative U.S.
Supreme Court Justice who retired in 1993 after 31 years on the Federal
bench. After having lived a long and fruitful life, Justice White
passed away on April 15, 2002. I met Justice White. His many
achievements made most but not all Coloradans proud.
Justice White was appointed to the Nation's highest court by
President John F. Kennedy in 1962. I knew Justice White--he had a
handshake that would make you wince, even in his 80's.
Byron White combined physical prowess--as a nationally acclaimed
football star in the 1930's who went on to become a Rhodes scholar and,
eventually, a leading jurist.
In 1937, Byron ``Whizzer'' White was an All-American football player
with the University of Colorado Buffaloes. He led the nation in both
scoring and rushing yards while leading an unbeaten team. He never
liked his nickname ``Whizzer''. But sports writers did so he was stuck
with it.
He also was an outstanding football player in the earliest days of
professional football, playing running back for both the Pittsburgh
Steelers and the Detroit Lions.
He used his professional football signing bonus to pay his way
through Yale Law School. He graduated first in his class.
During World War II he served as an intelligence officer with the
U.S. Navy. It was Byron White who wrote the official report on the
sinking of John F. Kennedy's patrol boat, the PT-109.
White ``had excelled in everything he had attempted'' President
Kennedy said admiringly when he appointed his long-time friend and the
Deputy Attorney General as our Nation's 98th Supreme Court Justice in
history.
However, despite the outstanding strengths and qualifications, as
articulated by President Kennedy, Justice White had some views that
most likely would have led to filibuster by today's Senate. In fact, if
it had been a Republican President who nominated Byron White in 1965
instead of a Democrat, he probably would not have been confirmed even
then.
For instance, he dissented from the historic 1973 ruling that
declared that women have a constitutional right to an abortion.
In 1986, he stirred a storm of controversy by writing the Supreme
Court's opinion that constitutional protections of privacy do not
extend to homosexual conduct.
Justice White consistently opposed restrictions on law enforcement
officers, which led him to dissent from the famous 1966 Miranda ruling
that police officers inform a criminal suspect being arrested of their
rights.
Justice White also dissented from rulings that outlawed voluntary
prayer for children in public schools.
By the late 1980's, Justice White had joined conservatives in
opposing ``affirmative action'' programs on the grounds that they
amounted to reverse discrimination.
The point is that he was appointed by President John F. Kennedy--but
even so--under today's atmosphere, including political correctness and
in-your-face special interests--with litmus test approaches to public
policy--Justice White would have almost certainly been relentlessly
filibustered and would probably not be confirmed.
I am not sure that I would have voted for his confirmation had I been
here, because I disagree with some of his decisions, but I would have
been given the chance.
The way that today's Senate is treating judicial nominees stands in
even starker contrast when it is pointed out that Justice White was
confirmed by the Senate by a voice-vote, and without objection. Not one
Senator objected--``D'' or ``R.'' That was on April 11, 1962.
A lot has changed since then. Some for the better and some not. One
thing that has certainly not gotten better is the way judicial nominees
are being treated. Questioning has given way to badgering. Civility has
given way to discovery. Playing ``Got Ya'' is a poor substitute for an
impartial hearing.
The question is not whether the President's nominees should or
shouldn't be confirmed. That is a smokescreen. The question is should
we, as duly elected Senators be accorded our constitutional
responsibilities of advise and consent by voting on each nominee. The
minority is denying me the right to an up-or-down vote through their
filibusters--and thereby are denying the people of Colorado the right
to be represented through my vote. I have heard time and again from our
colleagues on the other side of the aisle that 168 nominees have been
confirmed and only four have not. What are they talking about? I
haven't been given the chance to even vote on those four. Not a
question of numbers. It is a question of fairness.
We need to do what we can do to reverse and correct the emerging
practice of filibustering judicial nominees.
There is no question in my mind that many deserving and well-
qualified people will refuse the call of public service after watching
the kangaroo court they might now face in getting confirmed. It doesn't
make any difference who is in the majority. No nominee should have to
be verbally flailed in the confirmation process.
Mr. President, it is not too late to turn back, reverse course, and
give all judicial nominees the up-or-down votes they deserve.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. I thank the Senator from Colorado for his remarks. It
is true, we need to treat these nominees with civility. That is the
least we can do in this body.
I believe we have one more Senator to speak, the Senator from
Wyoming, and we have about 14 minutes.
Mr. ENZI. Mr. President, first, I wish to concentrate a little bit on
some of the comments I heard during the 3\1/2\ hours I chaired last
night.
A lot has been made of this number, 168 to 4. But you cannot compare
district court judges with circuit court nominations. Instead, you
should look at the situation for what it is, an attempt to obstruct the
confirmation of circuit court judges.
Since January 2003, President Bush has nominated a total of 29
circuit court judges. Of those judges, only 12, or 41 percent, have
been confirmed. Of the remaining 17, my colleagues across the aisle
have obstructed or threatened to obstruct 11 qualified and talented
judges. In other words, almost 50 percent of the circuit judges ready
to come to the floor for confirmation have been held up by the
Democratic side for political purposes.
Last night I heard this 98-percent factor, and I heard it said that
if my child came home with a test and he got 98 percent, I should
congratulate him and work hard to get the other 2 percent.
I will tell you what ought to happen if your kid comes home with only
50 percent, and that is what we are talking about when we are talking
about circuit court judges, we are talking about failure of the system,
a total breakdown of the system.
You have to look at the concentration that there is on the circuit
court. That is because those circuit court folks could become Supreme
Court Justices. And Lordy, we don't want to pass any who might make it
to that.
Every day the Senate is in session we begin with a prayer and the
Pledge of Allegiance. I know my colleagues on both sides of the aisle
are firmly committed to this country, and that as we
[[Page 28768]]
say the words of the pledge, like me, they mean every word of it and
they honestly pledge their alliance to the flag and to this Nation. But
I have to wonder if they haven't forgotten the meaning of all of the
words in the pledge, especially when I hear them put forward the
argument that we do not need to vote on all the judicial nominees
because we have already voted on most of them.
The last six words in the Pledge of Allegiance, ``with liberty and
justice for all,'' mean we do not preserve justice or liberty for just
a few people or for most of the people and leave a few or even an
individual behind. It means we have justice for all, for everyone. That
is 100 percent. We pledge that and we don't make exceptions because we
have a high percentage of success.
In fact, this is one of the situations that the courts were created
to protect: the rights of the individual. I think it is a little ironic
that there are those in the Senate who would be willing to withhold
justice and rights from some, in this case four highly qualified
individuals, and the cases they could be hearing, if they were
confirmed.
That is justice being denied as well. That is justice only for a few,
or maybe most, but not all--just because the individuals don't have the
same political philosophy as those across the aisle.
While it may be true--the percentage of judges we have voted on--when
you are the one who is left out and are not allowed justice, that is
100 percent of your life--the one who is being affected, and 100
percent of justice that is being denied as an individual.
I think this is wrong. I sincerely hope we move off this
obstructionism and have an up-or-down vote on the highly qualified
individuals with talent, experience, and integrity, and who could be
considered as the ideal we want in all judges.
I think everybody knows about the qualifications.
The comments made last night are what we are seeing here for the
first time--a change in the way we do judges. The problem with it is it
probably will continue and at some point there will be a reversal of
roles. We will spiral down and down until we are not approving judges.
It won't be 2 percent counting all of the district judges and not doing
the true statistics on just the circuit court judges. It will not be
approving a majority of them.
I have to tell you, I have been through that spiral once before. When
I first got here, there was a judge nominated. She would only sentence
a person to 90 days in jail who had raped a minor because she didn't
like the rehabilitation system of the prisons in her State. I was
appalled by it. In our State, there are a lot of people who would think
that maybe he should have been shot. He raped a minor.
I put a hold on that person so we could have a debate instead of a
unanimous consent. I eventually got the debate.
I had an unrelated piece of property that some people had been paying
taxes on for 70 years which they had bought from the BLM but the title
had never changed. It took an act of Congress to change the title.
Because I put that hold on, it took me 3 years to get that piece of
property transferred to the people. Do you know what those people said?
They appreciated what I had done on that judge.
But I have to tell you that unless an up-or-down vote happens on that
judge, that is the way it is supposed to be.
It was exactly 200 years ago, in 1803, that the Supreme Court and our
Nation's judicial system went through its first and most dramatic
change since it was established by the Judiciary Act of 1789. This
change occurred when then Chief Justice John Marshall issued his
decision in the landmark case, Marbury vs. Madison. In that decision
Marshall established the responsibility of the Federal court to review
the constitutionality of congressional actions. His action brought the
courts out of almost obscurity, seen as the weakest and most timid of
the three branches of government, and gave it a prominence and power
that is not equaled by any other court system in the history of the
world.
Before Justice Marshall was appointed to the court in 1801 the court
seemed to lack direction. There was no clear idea of purpose or vision
about whether or not the court could consider itself to be an important
entity. The very first Supreme Court Session was held in New York City
in 1790. It was almost postponed when only three of the original six
justices arrived for the court's opening session. The court had to wait
and put off doing business until a fourth justice arrived and they had
enough judges to constitute a quorum.
Justice Marshall himself did not initially consider the court to be a
prominent institution. At the time of his appointment to the court, he
was also serving as Secretary of State for President John Adams and he
had turned down an earlier appointment to the court in order to run for
a seat in the U.S. House of Representatives. After President Adams
finally talked him into serving as Chief Justice of the court, Justice
Marshall served as both Chief Justice and Secretary of State for 2
months because he felt it wasn't worth giving up the position of
Secretary of State to serve on the Supreme Court.
Over the next 34 years Justice Marshall reinvented the court and
provided the leadership it needed to assume the prominent role it plays
in our court system today.
One has to wonder what Justice Marshall would think about what is
going on in the Senate today. Would he agree with my colleagues across
the aisle that it is all right to put partisan politics and partisan
bickering ahead of the rights of judicial nominees if those impacted
are just a small fraction of society. Would he agree with them that
justice denied for a few was acceptable? Or would he hold true to the
basic tenets of the Constitution that all men are created equal and
that everyone has the right to their day in court?
A lot has been made about the numbers 168 to 4. You really can't
compare district court judges with circuit court nominations. Instead
we should look at this situation for what it really is, an attempt to
obstruct the confirmation of circuit court judges. Since January 2003
President Bush has nominated a total of 29 circuit court judges. Of
those judges only 12 or 41 percent have been confirmed. Of the
remaining 17, my colleagues across the aisle have obstructed or
threatened to obstruct 11 qualified and talented judges, or in other
words, almost 50 percent of the circuit court judges ready to come to
the floor for confirmation have been held up by the Democrats for
political purposes.
Every day that the Senate is in session we begin with a word of
prayer and with the Pledge of Allegiance. I know that my colleagues, on
both sides of the aisle, are firmly committed to this country and that,
as they say the words of the Pledge, like me, they mean every word of
it and that they honestly pledge their allegiance to the flag and to
this Nation. But I have to wonder if they haven't forgotten the meaning
of all the words in the pledge, especially when I hear them put forward
the argument that we do not need to vote on all of our judicial
nominees because we have already voted on some or most of them. The
last six words in the Pledge of Allegiance, ``with liberty and justice
for all,'' mean that we do not preserve justice or liberty for a few
people, or for most of the people, and leave a few, or even an
individual, behind. It means we have justice for all, for everyone, 100
percent and that we don't make exceptions because we have a high
percentage of success.
In fact, this is one of the situations that the courts were created
to protect, the rights of the individual. I think it is a little ironic
that there are those here in the Senate that would be willing to
withhold justice and rights from some, in this case four highly
qualified individuals, and would not extend justice to all, just
because those individuals don't have the same political philosophy.
While it may be true that the percentages of judges that have been
voted on is high, when you are the one that is left out and are not
allowed justice, that is 100 percent of your life that is being
affected and 100 percent of justice that is being denied you as an
individual.
[[Page 28769]]
I think this is wrong, and I sincerely hope we move off this
obstructionism and have an up or down vote on these highly qualified
individuals, whose talents, experience and integrity can easily be
considered the ideal for what we want in judges.
We often talk about the ideal in our debates in the Senate. We hold
up a picture of what things should look like and how things should be
done in the hopes that someday, we can move our Nation forward to the
point where the ideal is, more often than not, reality. One of those
ideals that has been presented is a world where our judges and our
courts are more representative of America. Our courts have often been
accused of being elitist. The Bush Administration has been working hard
to change that image by making sure our judges are more diverse. By
nominating people like Miguel Estrada, Carolyn Kuhl, Janice Rogers
Brown, Priscilla Owen, William Pryor, and Charles Pickering, President
Bush has set an example of the ideal by selecting people from different
backgrounds, with different styles, who share the same passion and
enthusiasm for the law.
The list of judges that is before the Senate represents a group of
candidates who are well educated, fully talented, and well qualified
for the posts for which they have been nominated. Unfortunately, for
some, this list also represents the unfairness of the system--a system
which, in theory, guarantees each nominee a vote--but--in practice, can
be used to deny a nominee a vote.
So here we are, well down the road, holding a list of candidates that
still haven't received a vote. In spite of all their qualifications and
the personal integrity they have shown throughout the process, these
judges have been forced to wait as the Senate decides whether or not we
can simply hold an up or down vote on them. Why? It's pretty clear to
just about everyone. Because these are good nominees and in a fair and
just world, they'd win the vote hands down. Therefore, the only way to
avoid having these candidates confirmed is to deny them their
constitutional right to an up or down vote.
What is most tragic about this situation is that these delays have
not come without cost. These nominees aren't the only ones who are
being denied their rights. Let's not forget the other victims in this
situation who have been denied their right to a fair and impartial
judicial process because there are not enough judges to hear all their
cases. The real victims of these delays are not the nominees, or the
Bush administration, or even the Republican Party. No, the real victims
are the people whose rights have been denied to accommodate some
increased partisan bickering.
There is a saying ``Justice delayed is justice denied.'' We make
people with very real needs and very real issues wait while we try to
score a few points in the game of politics. We drag out their court
costs, their attorney's fees, and delay their restitution and damage
payments all because we want to get one up on the other party.
We have a crisis in our courts that we can solve today. I urge my
colleagues to step up to the plate and become a part of the solution. I
urge them not to accept the belief that justice for some is sufficient.
I urge them to allow the Senate to conduct its constitutional duty and
hold an up or down vote on these judges. If you don't agree with them,
or feel they are not qualified, then vote against them. That is your
prerogative and duty as a Senator. But do not continue to deny justice
for the nominees or the courts any longer.
Mr. SESSIONS. Mr. President, the Senator from Montana is here and I
know he would like to finish up.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BURNS. Mr. President, a lot of questions are being asked about
this debate as we roll along. We went late last night and there are
probably some folks who have been short of sleep.
Let there be no doubt about it, as we close this half hour, this is
obstruction. A week ago tomorrow, we argued about definitions. Now we
are worried about ideologies and how we appoint our judges. Here is one
way you can have an issue and you can be on both sides of it and never
worry about the consequences. That is healthy for us. We passed that
through this Senate with strong bipartisan support and only 14 folks
voting against it. Now we can't name conferees. ``Well, I voted for
it.'' But we do not want it to get to conference.
I am fighting for two judges, Janice Rogers Brown and Carolyn Kuhl.
Both of them are nominated to the Ninth Circuit. Why am I fighting so
hard for them? Let me tell you why.
I am sponsoring legislation to split up the Ninth. It is too big. It
covers California, Arizona, Nevada, Idaho, Washington, Oregon, Alaska,
Hawaii, and my home State of Montana. It covers 14 million square
miles--that is a fairly good sized pasture--with 45 million people. The
second highest population is the Sixth Circuit with 29 million. It has
the highest number of active judges with 28. The average number per
judges per circuit, including the Ninth, is 12.
Let me tell you another reason why. The decisions that have been
handed down by the Ninth lately--from 1996 through 1979--the Supreme
Court heard 228 cases from the Ninth Circuit, and 27 of those decisions
were overturned, 17 of them by unanimous decision.
From 2001 through 2002, 12 of the 17 Ninth Circuit decisions were
reversed, and 7 of those were unanimous.
How would you like to have that track record? And we live in that
circuit. Then you wonder why we get excited about the appointment of
judges to that Ninth Circuit.
It is absolutely unbelievable.
I am an original cosponsor of S. 562. We must get it done.
What we are talking about here is people in a circuit who can't
handle the work and come up with decisions that can't stand the test in
the Supreme Court. That is pretty bad--1 in 27. That is almost as bad
as 0 and 1 in a gunfight in judicial terms.
I am not an attorney. I don't think I will ever be one. But I will
tell you that you can read and you know where the American people are,
and those people are denied representation on the Ninth Circuit.
Definitions: We have heard it. If we cooperate, things would really
get along good here. If we cooperate--we did--that is healthy for us.
Now we can't name conferees to finish the job that is in front of us.
This is not my first rodeo. I know what is going on here. They should
be ashamed--ashamed to contradict their own conscience.
Obstructionism: Give these judges a vote up or down. That is the way
you got here. They deserve the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama has 3 minutes 30
seconds remaining.
Mr. SESSIONS. The Senator from Virginia.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. ALLEN. Mr. President, I wish to speak about some statements that
have been made in the past and the inconsistency of these statements
with the ones we are hearing today.
Let me quote for my colleagues some sentiments with which I very much
agree, and I then I will ask you all to guess who said it: ``I find it
simply baffling that a Senator would vote against even voting on a
judicial nomination. Let the Senate vote on every nomination.''
Here is another quote. See if you can figure out who said this: ``I
don't know how Members tell the Hispanic community we are being equally
as fair with them as we are with all non-Hispanic judges when that
simply is not true. Hispanic or non-Hispanic, African-American or non-
African-American, woman or man, it is wrong not to have a vote on the
Senate floor. What are they afraid of? What are they afraid of? What is
wrong with a vote?''
Another quote from one of our colleagues who quoted Chief Justice
Rehnquist: ``As Chief Justice Rehnquist has recognized, the Senate is
surely under no obligation to confirm any particular nominee but after
the necessary time for inquiry it should vote them up or vote them
[[Page 28770]]
down. An up-or-down vote that is all we ask.''
Have you guessed the speaker yet? No, that is not Orrin Hatch; it is
not Senator Sessions; it is not Senator Enzi and it is not me. That is
Senator Tom Daschle, the Democratic Minority Leader. These quotes are
from October 5, 1999 and October 28, 1999.
Senator Kennedy said nominees deserve a vote. He said: ``If our
Republican colleagues don't like them, vote against them. But give them
a vote. Don't just sit on them. That is obstruction of justice.''
My goodness. Senator Daschle and Senator Kennedy certainly had the
right idea 3 years ago.
Senator Daschle also said that Senators ``have a constitutional
outlet for antipathy against a judicial nominee. Vote against that
nominee.''
Senator Daschle, the Democrat leader in all of this obstruction and
delay, said in 1998: ``All we are asking of our Republican colleagues
is to give these nominees a vote and hopefully the fair consideration
they deserve. We will press this issue every day and at every
opportunity until they get the vote.''
Doesn't that sound familiar as to what we have been trying to do for
the last several years?
Senator Daschle is also on record complaining about how long it took
for some cases and decisions that had been pending for months. He said
for ``anyone to be held that long is just an extraordinary unfairness
not only to the nominees but to the system itself.''
The PRESIDING OFFICER. The time has expired.
Mr. ALLEN. If I may, with consent, have 2 minutes that is attributed
to our time at 9 o'clock.
The PRESIDING OFFICER. Is there objection?
Ms. STABENOW. Reserving my right to object, my colleague, I
appreciate the time, but in order for us to stay on schedule and given
the fact I have been waiting here at this point, I would appreciate his
wrapping it up. If he would like to take 1 minute to wrap up, I would
not object to that.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALLEN. I would like to close with a final quote from Senator
Daschle that he made in September 1999: ``It is so incredibly unfair to
me that they would continue to persist in the determination not to
allow these very qualified people to even have a vote.''
Mr. President, that is what all of this is about. Tomorrow morning we
will have a chance to end debate on these nominees and allow for fair
up or down votes. In addition we will be able to determine the
veracity, truth, and sincerity of our colleagues that I have previously
quoted. If they were willing to tell the truth 3 or 4 years ago, they
will have an opportunity to stop this spiral of unfair actions and
delays which only bring more retaliation and more delays.
Senators will then be upholding the Constitution and will be
accounting to their constituents, as well as giving fairness to the
nominees.
I thank the President and I thank my colleagues.
The PRESIDING OFFICER. The Senator from Michigan.
Ms. STABENOW. Mr. President, as I said before on the floor, all the
statements that are being made, and all the time we spend in relation
to our values and our priorities, I also believe we get things done
when we work together, when we work in a bipartisan way. That is what
our constituents expect us to do.
I see the esteemed chairman of the Judiciary Committee on the floor.
I thank him publicly for working with the senior Senator from Michigan
as we work through difficult issues that relate to Michigan. I
appreciate his willingness to do that. That is how we get things done--
when we work together.
When we look first at the record of legislation taken up on this
floor, I think it shows we work together. I think when we have worked
together to confirm 168 judges, most of those I have voted for
overwhelmingly, and when we see that we have only had a disagreement on
4, I think that shows bipartisan cooperation. I think that shows what
the people of this country, and certainly the people of Michigan, want
to see done. There is no question in my mind that this demonstrates our
willingness to roll up our sleeves, to be fairminded, to look at the
facts, to look at the nominees, and to work together.
It also shows, though, that we are willing to make a critique, that
we are not a rubberstamp for this administration, nor should we be for
any administration of either party. It shows we are willing to make a
judgment. When the nominees go too far, we say no. That is what
happened four times.
What I am most concerned about now, though, in this 30 hours--which
now, instead of ending at midnight, is going to go until 9 in the
morning--is that we are saying our values and priorities are spending
time talking about four people who already have jobs and want to get a
promotion that will last a lifetime. These are lifetime appointments.
My concern is that we need to be spending time on this floor not only
talking but doing something about the 3 million people who have lost
their jobs in the last 2\1/2\ years--3 million people. They do not have
a lifetime job. They would just like to know they have a job tomorrow
for their families. They would like to know that the job probably
carries health care with it and will be there so they can put food on
the table and they can pay the mortgage, the car payment, send their
kids to college, and know they can have a good life in America that
they assume if they work hard they will be able to achieve.
That is the debate I have said a number of times that we need to be
having. One-hundred and sixty-thousand-plus of these 3 million are
people who have lost their jobs in Michigan; people who have lost good-
paying jobs, good-paying jobs with health care and pensions. They find
themselves in very difficult circumstances and they are asking us to
help them.
I am very proud of the fact that Michigan is the first in the
production of automobiles. Thirty-one percent of all the automobiles in
this country are produced in the State of Michigan.
My dad and my grandfather owned a Cadillac dealership in Claire, MI.
We have been proud to be a part of supporting the Michigan automakers.
We also are first in the production of trucks, producing l7 percent
of trucks. We have the three leading office furniture manufacturers in
Michigan and produce nearly half of the office furniture.
Why do I say this? Because we have a crisis in manufacturing in this
country that we need to be addressing in this Senate. Jobs can't all be
in the service industry. We need to make things and we need to grow
things. That is what we do in Michigan. We make things and we do it
well. We will compete with anybody any time. Just give us a level
playing field. We also grow things. We are willing to compete with
anybody any time. Just give us a level playing field. We don't have
that right now. We don't have that level playing field. We are not
addressing that.
We are not addressing what is happening with the fact that China is
violating the WTO or that China and Japan basically have put a tax on
American goods and services sold in this country by manipulating their
currency. We are not doing anything about that.
As a member of the Banking Committee, I sit and listen to the
Treasury Secretary basically acknowledging that something is not right
but not wanting to step up and take the tough action on behalf of
American manufacturers and American workers.
We need to be talking on this floor and taking action on behalf of
the men and women who have been the backbone of this country in
manufacturing and have created the middle class that separates us from
other countries around the world.
Why aren't we having that debate? Not a debate about 4 people who
already have jobs, who want to get promoted. Three million people do
not have a job and are now struggling with their families.
I want to share a few comments that I have heard. Earlier today I
shared
[[Page 28771]]
some headlines from newspapers in Michigan about what is going on. I
want to share one of those this evening with my colleagues. It is from
the Ludington Daily News, in northwest Michigan. It says: ``Tough Loss,
Straits Steel closing sad news for plant's 180 employees.'' Then it
starts out by saying:
Despite the looming possibility over the past few months
that their plant might close, workers at Straits Steel & Wire
Co. kept their production quality high and their attitudes
positive, said General Manager Tyndall.
But on Friday, Tyndall was forced to tell his co-workers
and friends that corporate officials decided to close the
Ludington plant, 56 years after it began operations in 1947.
Making the announcement twice--to the first shift in the
morning, then the second shift in the afternoon--was not easy
for Tyndall, who joined workers on the floor of the
production plant as he shared the bad news with the group.
``People are down,'' he said Friday afternoon. But he
stressed the plant's closing is not related to performance.
``When we walk out, we can hold our heads high and go chest
to chest with anyone on the street and say we did our jobs
well.''
They did their jobs well. But because of what is happening and the
unfair competition around the world and the stress and struggle as it
relates to cost, the plant closed.
Why aren't we dealing with issues that will help this Straits Steel
and Wire Company in Ludington, MI? Those are the jobs I want to be
talking about. Those are the jobs people in my State want us to be
trying to fill.
Let me mention a few letters I have been receiving from people in
Michigan that say it better than I can. First from a gentleman who
says: I am writing you regarding the health of my business. I have a
high tech business servicing industrial lasers, much like the ones that
are no doubt cutting metal subassemblies for our armed services use as
well as civilian businesses. My business has the flu. It is feverish
and sluggish almost to the point of no business at all. Our country was
initially built on small businesses providing services and employment.
Our government encourages small business growth yet at the same time
small businesses are being destroyed one by one because our economy is
in such dire straits that business orders are essentially flat, which
in turn is causing my business to fail. Occasionally I call the few
customers I have left and ask questions about how they feel about the
economy and what they think will happen in the near future. They say
they are very concerned about the future. Some are laying off
personnel. Others take pay cuts to keep their jobs. Still others feel
they are sinking with no relief in sight. My business is now on the
verge of collapsing and the only reason is the economy. I find it
extremely difficult to believe that because of a few positive economic
reports showing up here and there that our economy is getting better.
The only real indicator of an improving, recovering economy, in my
opinion, are reports coming in of companies rehiring people and putting
them back to work. No other indicators, in my opinion, mean a thing
until people start going back to work.
I agree with that. It is about putting people to work and having
businesses recover from the flu.
Also from a Michigan resident: I am a tool die maker for over 40
years. I now find myself out of a job and unable to find one in my
field. I have no health insurance. Why has America farmed most of our
manufacturing jobs out to other countries? I think America has got to
be not only the greatest thinking country in the world but we have to
also regain our status as the greatest producing country in the world,
as we did in World War II. That is, as you remember, the reason we won.
From Bridgman, MI: I would like to say I have worked in manufacturing
for 20 years. This is the first time in my career that my hours have
been reduced. I have a house payment, utility bills, children to feed
and clothe, doctor bills, car payment, insurance, school lunches and
preschool. This is just a few of my expenses. We are hanging on by a
thread, day by day living. This is not the way Americans should have to
live, especially in this day and age.
I agree. If people work hard, they get up in the morning and they go
to work and they work all day, they ought to be able to know they are
going to be paid a good wage, that they can count on that job being
there, that we want them to be able to have health care. We want them
to be able to put money aside for a pension, and we want them to know
they will have the security of being able to take care of their
families and plan for the future as part of the great middle class of
America.
Our manufacturing economy has given us that. We are losing that. We
are losing that. We need to pay attention. We need to talk for 30 hours
on the floor about jobs and how to help our manufacturing sector. We
need to talk for 60 hours or 90 hours. More importantly, we need to act
to do something so we can level the playing field. As I have said
before, I will put our workers and our businesses up against anybody,
if it is a level playing field. Just make it fair and we will compete.
We need to address issues of health care. We know one of the biggest
challenges right now for our manufacturers is the explosion in the
prices of health care. I also know from talking to our automakers about
half of that is because of prescription drug prices, the lack of
competition, and the explosion in prices. We ought to be doing
something about that.
We have bills in front of us right now in the Medicare conference
where we could do something, if we wanted to, about that to lower
prices. I would love to have a 30-hour debate on that because there is
nothing right now more challenging to businesses and workers than the
issues of health care. Workers are finding they are being asked to pay
more in premiums and deductibles or their salary is capped in order to
pay for health care increases or, worse yet, they are losing their jobs
because of the increases. That is a debate worth having. That is a
debate that would result in our focusing on something that means
something very important to the people of this country. I would look
forward to that debate.
Let me read a couple more letters: I've worked in manufacturing for
23 years, and this is the first time in my career I have had my hours
reduced. I am worried about losing my job. My family is suffering
because of my reduced income and planning for the future of my trade. I
am a mold maker, and this has always been a solid trade. My trade is
faltering, not only because of the economy but also because of foreign
competition. How can we compete with countries that pay drastically
reduced wages with no benefits?
We have to address that, not by saying you have to work for less,
Michigan workers. You have to work for less and you have to take no
health care and no benefits. We have to be fighting for our middle
class and creating a way to raise the standards of living around the
world instead of lowering ours, which is exactly what is happening
right now. It is probably the most serious threat to our future in
terms of maintaining our economy and our middle class. That is worthy
of a 30-hour debate.
There are many more letters I could read that are the same. So where
are we, when we are talking about 3 million jobs lost and counting just
in the last 2\1/2\ years, a little less than 3 years. What is the
response from the administration to this number? Are we pulling
everybody together to figure out what we can do to lower health care
costs? Are we figuring out what we can do to level the playing field
and stop China and Japan from using advantages and manipulating their
currency and creating a situation that is unfair to us? Are we looking
for ways to stop the small manufacturers from going and moving their
plants overseas? No.
What is the response from the administration? The first thing is to
propose to cut people's overtime pay, people who already are working.
We are going to cut their overtime pay. That is one of the major points
the administration is fighting for right now in the appropriations
process. They fight every effort to extend unemployment for the people
who are currently unemployed. In the past, on a bipartisan basis, every
President from Nixon and Carter and
[[Page 28772]]
Reagan and Clinton, every President we have during times of recession,
we have extended unemployment compensation for those who are
unemployed. We have to fight now at every turn on behalf of the
unemployed. I have mentioned earlier the administration has not been
willing to get tough with China, has not been willing to deal with what
is happening in Japan as well, that has so affected our automobile
industry and our manufacturing economy.
We need leadership to step up and do more than just words to get
tough on them, to create a level playing field. We have seen the
administration not be willing to address the high cost of health
insurance and do those things that will bring prices down. Earlier
today I offered a unanimous consent request to increase the minimum
wage $1.50 an hour so 7 million people, a large share of them women
with children who are working for the minimum wage and trying to make
it and don't have health insurance, paying their child care every day,
trying to make it, trying to do what we are asking them to do in this
country, could get a raise. It was objected to by colleagues. So we are
seeing the people who earn the least can't get a raise. The
administration won't support 7 million folks getting a raise. They want
to take overtime away from the folks who are already working, not
wanting to deal with those who are out of work with unemployment, not
wanting to level the playing field so we can keep our manufacturers
here and keep those good-paying jobs.
Over and over again, we see efforts that block what we need to turn
this number around of 3 million jobs lost and counting.
That is the reality of what is happening. Frankly, I am disappointed
we are not willing to spend time. If we are going to ask people to stay
up all night and the staff to be here and so on, let's address
something that affects them and their families and everyone who is
listening and watching, and that is how we move this economy forward,
how we protect manufacturing, how we support our businesses large and
small, and our workers working harder and harder every day just to make
ends meet, so we can make sure the quality of life and standard of
living we want for our families is maintained in this country.
We are the greatest country in the world. But we are truly in crisis,
I believe, as it relates to what is happening in our economy and with
our manufacturing sector.
Let me take an opportunity to read a few more of the letters I get
every day, unfortunately, from the people of Michigan. A letter that
says: I have never written to a Michigan Senator before, but for me,
now is the time. You see, I am one of the discouraged unemployed in
Michigan. After over a year of fruitless searching for a nonexistent
job in my field as a CAD designer, I have given up. It breaks my heart
to leave the field I love. I must just ask you this: Where are all the
automotive engineering jobs? Is it true that we in Michigan have lost
much of our employment base as it relates to engineering through
outsourcing? I know many colleagues who are also out of work and many
who have left the field altogether, as I am contemplating. I just want
you to know how one of your constituents is feeling about the
employment situation here in Michigan.
Of the 3 million jobs that have been lost, over 2.5 million of them
are in manufacturing. These are jobs that pay well, that bring health
care with them, that bring a pension, that create middle-class America,
those folks who can buy the houses and the cars--we want them to all
buy them American made--who buy the boats and the snowmobiles and the
cottage up north, who send the kids to college and believe in the
American dream: that if you work hard, you can be successful in this
country and you will have the opportunity to have the dignity of work.
From Union City, MI: I am writing this letter because there seems to
be some confusion about our economy. Our government seems to think that
a tax cut will help but I don't think so. Since the year 2000, there
has been over 3 million manufacturing jobs that have been lost, gone to
China. My wife and I own a small machine shop in Union City, Michigan.
At one time we had 7 employees. Now my wife, my son and myself are all
that is left. Most of the time we don't even have enough work for
ourselves. I have watched as many of my friends and competitors have
gone out of business and just closed their doors or filed bankruptcy.
While we fight the war on terrorism, if we are not careful, we will
lose a much bigger war to the rest of the world without a shot being
fired.
From Clyde, MI: My husband, a 25-year mechanical engineer, designer
of automotive special machines, has been laid off for seven months. The
company he worked for was bought by Fiat and within two years, began
outsourcing the engineering to countries such as Bosnia where engineers
will work for $6 an hour. Our workers can't compete with that
obviously. The engineering department is now closed completely,
everything is outsourced. He is 55, laid off, 2\1/2\ weeks short of his
retirement, vesting at 100 percent, can't draw Social Security, and has
been unable to find work. The market is flooded with engineers because
outsourcing is happening all over. I work two jobs and a third when I
can get the work. If we want to maintain the quality of our environment
and keep our families fed, we need legislation to address the
inequities in manufacturing standards globally, balancing tariffs,
something. Our workers can't compete with the salaries outsourcing
provides from other countries but for which foreign workers can
maintain their own standard of living.
Again, I have received letter after letter after letter saying the
same kinds of things. I also receive letters from furniture makers. I
have had the opportunity to be in Grand Rapids, MI, and talk with
furniture makers who have lost their contracts to Chinese contractors
or subcontracting has moved over to China. They say: Well, it is
because they can't compete. It is just the way the economy works.
Well, no, it is not. China manipulates their currency and it amounts
to about a 40 percent tax on goods and services we send to China. They
are not playing by the rules. They don't play by the rules. Why aren't
we standing up for us? My constituents are saying: What about us? What
about our jobs? We appreciate the fact that four people who wanted to
be promoted as judges have not had the opportunity to do that. One
hundred sixty-eight, yes; four, no.
But I hear from people representing this 3 million people saying:
What about us? What about a marathon for us? What about spending time
on the floor debating solutions that will create jobs for the people in
this country that represent the majority who believe in this country,
who work hard every day, who want to work hard, who want the dignity
and respect of work? They don't want a handout. They want to work. They
are finding their jobs are leaving, and they need our help.
Our manufacturers, large and small, and the people who work for them,
need our help. They are asking us to work on a bipartisan basis. These
folks are not Democrats or Republicans. They are Americans. They are
Michigan citizens. They are asking us to turn our focus to those
families, those people in our country who need our help. What we do is
always about values and priorities--always. It is always about values
and priorities.
I believe this debate is about misplaced priorities and we need to
return to what is most important in the precious hours we have here and
the time we have to get something done for the American people, because
there is a lot at stake, including the quality of our way of life as a
country. We cannot afford to lose our manufacturing base. We cannot
afford to lose the middle class of this country, which has made us
strong. If we are not careful, that is exactly what is going to happen.
I call on my colleagues to spend this time on how we move forward and
take this number of 3 million jobs down to 2 million and to 1 million
and get it down to zero, because that is the number that truly counts
for all of us.
Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from Idaho.
[[Page 28773]]
Mr. CRAIG. I inquire of the time. Where are we?
The PRESIDING OFFICER. The minority still has 41 seconds remaining.
Mr. REID. We are happy to yield 41 seconds to the majority.
The PRESIDING OFFICER. Does the Senator from Idaho seek time?
Mr. CRAIG. The chairman of the Judiciary Committee is on the floor. I
will yield to him.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. Mr. President, I apologize to those listening in and to my
colleagues for having laryngitis.
Mr. REID. I want my 41 seconds back with that voice.
Mr. HATCH. Your voice is not much better than mine, from what I can
hear.
Whenever you are losing an argument, you try to bring up something
that might help you to win. This argument about jobs is very important,
but I remember all last Monday being wasted by our colleagues on the
other side. I can list all of the obstructions that have occurred this
year, time after time, when we tried to do something that might be good
in that area. This phony chart of 168 to 4, it doesn't take any brains
to realize that is totally false.
Tomorrow, we are going to have two cloture votes on two more, so
there are at least six. If you go through all those they really do plan
to filibuster, you get up around 15, 16, or 17. This is the first time
in history this has happened.
I rise to speak about the judicial nominees being filibustered by a
minority of Senators. I have served in the Senate for 27 years, and I
can honestly say President Bush's nominees are among the best I have
ever seen. They are experienced, intelligent, ethical, hard working,
respected in their communities, and they have given their lives to
public service. We honor these great men and women for volunteering to
serve their country. They have put forward their good names for
evaluation by the Senate and they deserve a simple up-or-down vote--
just the dignity of the vote. Our priority is to vote on these
nominees. We owe them no less.
By June of this year, we had two well-qualified nominees blocked by
filibusters. These filibusters were the first two in the history of
this body. By the end of July, we again made history, adding a third
filibustered nominee. By October, we had four nominees filibustered,
another record. Shortly, we will have two more filibustered nominees,
yet another record. The number continues to rise.
Those who are watching this, don't believe this phony chart. That has
never happened before. Like you say, it is one thing to say we gave the
168 a trial. Most of them are district court judges now. So we gave 168
a trial, but we only lynched 4 of them--6 of them now, or 8 probably
next week. It will be up to 17 before long.
I promise not to talk about the color of somebody's tie or my
favorite fast food. I want to talk more about numbers tonight. I want
to talk about President Bush's nominees to the Federal court. Ambrose
Bierce defined nominee as a ``modest gentleman [or gentlewoman]
shrinking from the distinction of private life and diligently seeking
the honorable obscurity of public office.'' That may or may not be the
case, but I want to highlight several of the distinguished and
respected judicial nominees who are currently being filibustered by the
Democratic Party members, Justice Janice Rogers Brown, Justice
Priscilla Owen, and Judge Carolyn Kuhl. We can talk in terms of
numbers, but I prefer to talk about why these three distinguished
judges deserve a simple up-or-down vote on the Senate floor, and why
they deserve to be confirmed as Federal judges.
We started hearing from the other side that, according to my
colleagues, these nominees have despicable views, or are wildly out of
the mainstream, or from the hard right, are mean people, have
embarrassing records, are far out and off the charts, are unqualified,
are activist, are extremists, or rightwingers who would like to take
the country back to the 1890s, are deeply hostile to and actively
seeking to undermine civil rights, women's rights, and workers rights--
gee--seek to turn back the clock on constitutional rights, have records
of not really helping women, seem to have little regard for the rights
of women, and represent the ``worst of the worst,'' as one colleague on
the other side put it the other day. Those were the nice things they
have said.
Actually, Judiciary Committee hearings often remind me of an old Far
Side cartoon showing three cowboys on Main Street in the Old West. One
cowboy lies sprawled on the dusty street, with a revolver lying next to
his arm. The cowboy on the left stands with a smoking gun, staring at
the fallen man, and saying: ``OK, stranger . . . What's the
circumference of the Earth? . . . Who wrote the `Odyssey' and the
`Iliad'? . . . What's the average rainfall of the Amazon Basin?'' The
cowboy on the right stands stunned, with his hands to his face, saying,
``Bart, you fool! You can't shoot first and ask questions later!'' In a
similar vein, Ambrose Bierce wrote that to nominate someone was to
``designate for the heaviest political assessment. To put forward a
suitable person to incur the mudglobbing and deadcatting of the
opposition.'' I often fear we do not give our judicial nominees a fair
chance before shooting them down.
The other side, before they heard one word out of Janice Rogers
Brown's mouth, was already shooting her down; they didn't give her a
chance.
I hope we can move past applying labels to the fine men and women who
have volunteered to serve their country through judicial service. Our
duty under the Constitution is to determine whether judicial nominees
possess the experience, intelligence, and temperament needed for
judicial service. Our constitutional responsibility is to judge whether
judicial nominees are willing and able to place the rule of law above
all other concerns in rendering justice. The Senate cannot fulfill its
constitutional duty when a minority of Senators refuses to allow an up-
or-down vote for the President's nominees. As it stands, a bipartisan
majority of U.S. Senators stand ready to vote on and confirm each of
these excellent nominees.
Mr. COLEMAN. Will the Senator yield for a question?
Mr. HATCH. Yes, I am happy to.
Mr. COLEMAN. A concern we have with nominees is they are competent
and able to do justice and do the right thing. There are ways to
measure that. I ask the chairman, is it true the three nominees we are
debating have been rated qualified or well qualified by the American
Bar Association? Is that an objective standard by which nominees can be
rated?
Mr. HATCH. That is true. Remember, all throughout the Clinton
administration, on all their nominees, our friends on the other side
were saying if the ABA approves them with a qualified rating, then they
deserve to have an up-or-down vote. When they have a well-qualified
rating, the highest rating you can possibly have, then there is no
question they deserve an up-or-down vote. Like the three cowboys in the
street I talked about, they shoot them down before they even get a
chance to have that vote up or down.
Mr. COLEMAN. Sometimes the people can rate judges, when judges are up
for election. I ask, is it true Justice Owen was elected to the Texas
Supreme Court by 83 percent of the vote in Texas?
Mr. HATCH. Absolutely true.
Mr. COLEMAN. Is it true Janice Rogers Brown was retained to serve by
76 percent of California voters?
Mr. HATCH. Yes. I might add Justice Owen, to get back to her, had 84
percent of the vote in the year 2000. That is the highest support of
any State supreme court justice that year. Most every major newspaper
in Texas endorsed her. Our colleagues on the other side say she is out
of the mainstream. Give me a break.
In the case of Justice Brown, she won 76 percent of the vote. I think
there were four, if I recall correctly, supreme court justices up for
election. She won the highest vote of all of them in a State not known
for conservative politics. Yet they have tried to paint her
[[Page 28774]]
like she is some sort of a rightwing nut. Well, just look at NBC News.
They made it pretty clear she is no rightwing nut. She is a very good
person.
Mr. COLEMAN. I ask the chairman, sometimes judges can be graded by
peers, folks who served with them, who know firsthand the quality of
the work they do. Is it true Judge Kuhl has the support of over 100
California judges across the political spectrum?
Mr. HATCH. Yes, of both Democrats and Republicans. She is one of the
most highly rated judges in California. She is outstanding. Frankly,
these are Democrats saying she made one of the best judges on the Ninth
Circuit Court of Appeals.
Mr. COLEMAN. I ask one last question. How is it the opponents of
these nominees can claim these nominees are extreme or out of the
mainstream, or not qualified?
Mr. HATCH. Well, I suppose the overwhelming majority in the most
populated State, in the case of California, is out of the mainstream. I
guess the overwhelming majority in one of the largest States in the
Union, Texas, is out of the mainstream. You know, I suppose having the
support of her fellow judges, in the case of Carolyn Kuhl, across the
board, Democrats and Republicans, is out of the mainstream. According
to these people over here--I will tell you who is out of the
mainstream, it is these people over here who are filibustering judges
for the first time in history and really endangering this process. It
is ridiculous. It is wrong. I think the American people have to rise up
and let them know it is wrong.
Mr. COLEMAN. I thank the Senator.
Mr. ALLARD. Will the Senator yield for a question?
Mr. HATCH. I am happy to.
Mr. ALLARD. I am a veterinarian by profession, and we have a code of
ethics in our profession. I understand we are expected to abide by the
code of ethics, and I understand the American Bar Association has a
code of ethics for judges. My understanding is the code of ethics says
you will not take a position, when you are in the process of seeking a
position on the bench, that might prejudice your ability to decide a
case. Every one of these individuals up for consideration is highly
respected by their peers. I suspect it is because they are honorable
and they live by the code of ethics.
I am disturbed by the specific questions that come from members of
the committee when, in my view, it makes it difficult for the nominee
to answer those questions because it would make it difficult for them
to be objective in the way they look at a case that comes before them.
I wonder if you would share with me about the code of ethics and the
question on how is that practical, and do you have any reason to
believe these are horrible individuals who would not measure up to the
highest standards of the court, based on their peers who recommended
them as highly well qualified?
Mr. HATCH. I have been on the Judiciary Committee for 27 years. I
have to say I have not seen any better nominees in that whole time. As
far as ethics, the only one the Democrats demanded an answer to every
question--questions about future cases that will come before them--not
the only one, but the main one, was Bill Pryor. The other one was
Miguel Estrada. To make a long story short, it has been a very unfair
process for these people. We have more than made the case that Miguel
Estrada was treated completely different from John Roberts. Both of
them served in the Solicitor General's Office. They asked these stupid
questions about documents that are the most highly privileged documents
in the Government today, and seven former Solicitors General said these
cannot be given, and they used that as a phony excuse to shoot down
Miguel Estrada, who is well qualified by the American Bar Association.
When Bill Pryor answered all the questions, they said you answered too
many questions. You are damned if you do, damned if you don't.
It is pretty clear, they just wanted to shoot these people down right
from the beginning. To come out here and make such a fuss about jobs
when they have been obstructive all year long is so phony that I have
to admit, it almost brings tears to my eyes. Maybe it does bring some
tears to my eyes because phony things tend to do that.
Mr. ALLARD. I thank the Senator for responding to my question. I have
one other followup question. You mentioned jobs and it seems to me we
have an efficiently operating judiciary. We don't have a lot of
lawsuits that help the economy. That means we need to move out of
filibuster and get these nominees voted up or down and get them on the
bench, particularly in the circuit courts where we have a lot of
pending cases. One of the best things I think we can do is to get these
nominees on the bench and fulfilling their duties. Do you agree?
Mr. HATCH. I do. Sometimes the district courts are involved and that
is why we need the circuit court of appeals. Yet this President is
treated different than prior Presidents, including President Clinton.
About two-thirds of the circuit court nominees haven't even had a vote.
Usually by this time in a President's career about 90 percent have had
a vote.
Ms. COLLINS. Will the distinguished Senator yield for a question?
Mr. HATCH. I am delighted to.
Ms. COLLINS. The Senator from Utah is an extraordinary lawyer, and he
also has a distinguished history in the Senate and has served so ably
as the chairman of the Senate Judiciary Committee. I wonder, given the
Senator's breadth of experience, if he happens to know the origin of
the word filibuster and could he enlighten the Members of this body and
those who are watching tonight as to its origin and meaning.
Mr. HATCH. I was hoping somebody would ask that. We have a chart
prepared. They put it up. Filibuster comes from a Spanish word
``filibustero,'' meaning a pirating or hijacking, one word for
obstruction. That is what it is. Look, I have no problem with
filibusters on the legislative calendar because the Senate can set its
own rules. But when it comes to the Executive Calendar, that calendar
depends on your exercising restraint by advising and consenting, which
means a simple majority vote up and down.
In the Clinton years, every Clinton nominee who came to the floor got
a vote up or down. We did have a few who wanted to filibuster Clinton
nominees. I personally stopped that because I recognized it would be
disastrous for the Senate if we went down that road. As you can see, it
is disastrous. We are in the middle of going down that road. We have
already gone down it because our colleagues on the other side just
don't seem to understand how important it is for them not to filibuster
Federal judicial nominees. But I thank my colleague for bringing it up.
Ms. COLLINS. I thank the Senator for his clarification. That is
indeed fascinating and we have learned a great deal here this evening.
Mr. SESSIONS. Will the Senator yield for a question?
Mr. HATCH. I will be happy to.
Mr. SESSIONS. Addressing the distinguished chairman of the Judiciary
Committee, who has served so ably for so many years on these matters, I
would like to follow up on that question that was just asked.
During your tenure as chairman of the Judiciary Committee when
President Clinton was President, and he was nominating judges that
sometimes would not have been our choice, or your choice for a judge,
did you have occasion to express your opinion as to whether a
filibuster was appropriate or not?
Mr. HATCH. As the Senator will recall, right in the middle of a
couple of very controversial nominees, Judge Paez, now Judge Berzon,
there were some on our side who legitimately felt they should
filibuster both of those----
Mr. SESSIONS. I hate to interpret the Senator, but his microphone is
distorting pretty badly. Maybe the cord is broken?
Mr. HATCH. Maybe I can bring it down here. Maybe it will work better
here. I have it too close to my mouth. I am glad the Senator corrected
that.
Judge Paez had been an activist judge in the eyes of many of our
colleagues on the district courts out there
[[Page 28775]]
in California. Marsha Berzon was one of the leading labor lawyers in
the country. We had some who wanted to filibuster them. I stood up in
caucus and said that is not going to happen. To his credit, the then
majority leader Trent Lott stood up and said that is not going to
happen.
We are both leading conservatives, but we knew that was a disastrous
thing to do in this body because it would lead to animosities you could
never quite--that would remain. It would lead to partisanship. It would
violate the Constitution, it would violate the very advice and consent
clause, the great power we have been given by the Founding Fathers.
Frankly, as the distinguished Senator has pointed out, I stood up and
said that is not going to happen and it did not.
Did we have some cloture votes? Yes. But the cloture votes were to
get to the nominee so we could vote. Every Clinton nominee who came to
the floor, who was brought to the floor, got a vote up or down. Only
one was defeated and that was Ronnie White, on a straight vote up or
down. But every other one, all 377 of them, the second highest total in
history, passed.
Did I agree with all those judges? You bet your life I didn't. But
they were qualified. The fact I didn't agree with them ideologically
was irrelevant. What is relevant is, Are they qualified? I certainly
would not take away the opportunity of serving in the Federal
Government for an otherwise qualified person just because I disagreed
with that person on abortion or on any other issue, for that matter.
Mr. SESSIONS. Will the Senator yield for a further question?
Mr. HATCH. Yes, I yield.
Mr. SESSIONS. I remember that very well. I remember you speaking
clearly that the filibuster was inappropriate. You both said it
publicly and in the Republican conference when the issue was raised by
people who did not have your experience in this matter. Trent Lott, the
Republican leader in debate--I voted to end debate, Trent Lott voted to
end debate, you voted to end debate and allow an up-or-down vote, and
when that occurred I voted against the nominee. But I agree with your
argument that a filibuster was not sound.
Let me ask you this. At that time, when Senator Daschle was the
Democratic leader and Senator Leahy was ranking member on the Judiciary
Committee, did they take a public position that a filibuster of Clinton
judges was not appropriate?
Mr. HATCH. Virtually every Democrat said it, took the position a
filibuster should never take place. All they asked for was an up-or-
down vote. That is all they wanted, if we would just be decent enough
to give them an up-or-down vote. We did. We were decent enough.
What does that imply about what is going on on the other side? I will
let the public draw their own conclusions. But we were decent. We did
what was right. We gave them up-or-down votes. Frankly, what is going
on here is just appalling.
Mr. SESSIONS. Let me follow up. Now that President Bush is in the
White House and he is sending judges over, has your position on whether
a filibuster is appropriate or not changed in any way?
Mr. HATCH. No, it has not, because a filibuster is inappropriate when
it comes to judicial or even executive nominees, especially judicial
nominees. Our ability to give advice and consent means if you don't
like the nominee, vote against him or her. If you do, vote for them.
But, above all, don't obstruct, which is exactly what they are doing
here, obstruction, from the Spanish word, ``filibustero,'' meaning a
pirating or hijacking. Just one more objection. Now we have six more
objections, as of tomorrow--actually they require cloture votes to be
filed on Janice Brown, and of course Carolyn Kuhl, so we now have six.
I could name up to 17 they have threatened to filibuster and probably
will.
To keep bringing that phony chart up here is an insult to everybody
on this floor. It is an insult to everybody watching. It just shows
they are void of any real arguments. To now try to change the nature of
the debate to jobs, when they have obstructed all year long, is an
insult.
Mr. SESSIONS. Will the Senator yield for one following question?
Mr. HATCH. I will be happy to.
Mr. SESSIONS. Senator Hatch, so it is clear to me, it is your
position, the position of Trent Lott, has not changed as to whether a
filibuster was appropriate, and neither has that of our majority
leader, Bill Frist?
Mr. HATCH. It has not changed. But their positions have changed.
Mr. SESSIONS. Let me ask you with regard to Tom Daschle, the
Democratic leader, and Senator Leahy, the ranking member on the
Judiciary Committee, who argued so aggressively against filibusters
just 2 or 3 years ago, has their position changed today? Are they, in
fact, participating in an unprecedented procedure, an unprecedented
filibuster of judicial nominees?
Mr. HATCH. No question. They were very forthright and very strong
that there should never be filibusters of judicial nominees. Now all of
a sudden when it is to their advantage, they think--I think it is to
their great disadvantage. They lost the 2000 election in part because
of the way they are treating judgeship nominees. I think they are going
to lose a lot of standing in this country. The way they are treating
southern nominees is abysmal, like Bill Pryor. Like Charles Pickering.
It doesn't take any brains at all to realize they just don't think
these two able people are worthy of being on the bench when in fact
they are more worthy than many of the nominees we approved for them in
the 8 years of the Clinton administration.
Mr. SESSIONS. I thank the Senator for his leadership. I asked those
questions because it was suggested last night in debate that somehow
those on this side had changed our view. I think it is quite crystal
clear the only views that have changed and only positions that have
been changed are those on the other side. Unfortunately, it has changed
the historical principles of this Senate with regard to filibusters of
nominees.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, will the chairman of the Judiciary
Committee yield for a question?
Mr. HATCH. I will be happy to.
Mr. CRAIG. The chairman in earlier questioning by the Senator from
Minnesota alluded to the fact that NBC News tonight featured as their
lead story Janice Rogers Brown, Supreme Court justice from California.
I am a freshman on the Judiciary Committee so I have not had the
experience you have had, going through numerous years of confirmation
hearings. But I must tell you I was so impressed with this woman's
talent and her clarity in answering questions.
What is her background? What was her beginning, if you will? I think
it is the great American story, I am told.
Mr. HATCH. She was born a sharecropper's daughter. This woman had it
rough all the days of her life. She put herself through college and law
school as a single mother. She has worked in State government now for I
think it is 26 years. And they are trying to say she is against
government? My gosh, she has worked there and been supportive for I
think 26 years. She is one of the best nominees I have ever seen.
If we had done to three woman nominees what they are doing to these
three--Priscilla Owen, who broke through the glass ceiling, getting
women a right to be partners in law firms; Carolyn Kuhl has the support
of 100 of her fellow judges out there, Democrats and Republicans;
Janice Rogers Brown, sharecropper's daughter, has risen to the top of
the heap, who has fought her way all her life--if we had done this to
any of their nominees they would be screaming about it right up to
today. It is unbelievable they are trying to do this on these three
women nominees. They want a regimented liberal approach to everything,
and if it is not there, then they are out of the mainstream, according
to them.
I think most people in this country are in the middle and, I think,
the middle or moderate conservative. But, be
[[Page 28776]]
that as it may, these are competent, qualified, well-qualified women,
and they are treating them like dirt. I don't understand it, myself.
Mr. CRAIG. Will the Senator yield for another question?
Mr. HATCH. I will be delighted to.
Mr. CRAIG. It was also mentioned in that questioning by the Senator
from Minnesota that Justice Brown had received--I think your response
was--74 or 76 percent of the vote of the State of California in a
reconfirmation of her position. We have heard a great deal about judges
who dissent too much. She was criticized by the Democrats for some of
her speeches, that she was ``out of the mainstream,'' even though she
received this phenomenal vote in California. Didn't Justice Brown write
more majority opinions than any other justice in the Supreme Court of
California--in the last term, I believe is what they are saying?
Mr. HATCH. Yes, the distinguished Senator makes a good point. She was
elected by 76 percent of the vote. I would have to say, she wrote a
majority of the majority opinions, and joined in some 73, if I recall
correctly, unanimous opinions. In other words, she is not only in the
mainstream, she is one of the best justices, State justices in the
country. They are treating her like dirt. I don't understand that kind
of treatment.
The PRESIDING OFFICER. The majority's time has expired.
Mr. CRAIG. I thank the Senator for his answers to my questions.
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. NELSON of Nebraska. Mr. President, I rise this evening to express
what might be best described as my disappointment in what has occurred
during the past 24 hours, now I understand perhaps another 12 hours. I
ask we move the process forward.
Mr. HATCH. Will the Senator yield for a unanimous consent request? It
will only take a few seconds.
Unanimous Consent Agreement
I ask unanimous consent at 8:30 a.m. on Friday the Senate begin an
hour of debate equally divided prior to the first cloture vote;
further, that the last 20 minutes be equally divided, the first 10
minutes under the control of the Democratic leader or his designee and
the last 10 minutes under the control of the majority leader or his
designee.
Mr. REID. No objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I thank my colleague.
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. NELSON of Nebraska. Mr. President, I rise tonight to express
disappointment over what has happened over these past nearly 24 hours,
or past 24 hours-plus, and perhaps another 12 hours. I just ask we move
the process forward.
I would like to make very clear a few statistics I think are
appropriate tonight. We have seen many statistics or many different
versions of the same statistics over these past many hours. Tonight I
would like to make very clear a few statistics with respect to my
voting record on confirmation of judicial nominees, which is really
based on the principles I hold as a Member of the Senate.
I voted to invoke cloture 13 times. That is a 100 percent voting
record on judicial nominees. To date, I have never voted against
invoking cloture on a judicial nominee, not one.
I have voted in favor of confirming all nominees except one, and I
voted for cloture to move the process forward, even on a nominee I
cannot support.
I have done all these things because I believe in moving the process
forward. As Governor of Nebraska, I had the great privilege of
appointing judges to the bench. I appointed the entire Nebraska Supreme
Court and the entire Court of Appeals over my 8 years, and nearly 50
percent of the judges in Nebraska. I may not be good at it, but I have
had a lot of experience.
I would hope we could move forward this process. If we cannot agree,
then at least we ought to move on. What is happening right now during
these hours of debate is not about moving the process forward. In fact,
what is being accomplished seems to me to be just the opposite, setting
us back. This debate has served only to further frustrate the work of
this body, delayed action on critical legislation that must be
addressed, and has further polarized the competing sides on these very
controversial appointments.
The question I ask tonight is, Does using a tactic of delay to
criticize and attack another tactic of delay cause you to make the
point or lose the point?
To add further frustration to this matter, this delay occurred only
after we were forced to choose between missing votes on Tuesday,
Veterans Day, or cancelling the many obligations most of us made to our
constituents to participate in events to honor veterans back home. The
leadership basically decided having these hours of debate seemed to be
more important than honoring those who fought and died while protecting
the freedoms that under ordinary and normal circumstances are debated
and defended in this very Chamber every day. By having votes on
Veterans Day, I could not participate in that exercise, and I didn't
appreciate having to choose between Nebraska veterans and votes on
legislation before this body. Like others, I chose to be with my
veterans. I missed two votes. I would do it again in a heartbeat.
But it is not only our veterans who were not given the consideration
they deserve. It is also our seniors, who are anxiously awaiting a
prescription drug benefit. What do I say to George and Lee back home
when they ask me, ``Why haven't you been able to get a prescription
drug benefit but the Senate could debate on other issues for 30-plus
hours''?
It is those who suffer from mesothelioma who desperately await an
asbestos reform bill. What do I say to a widow of a recently deceased
judge in Nebraska who was waiting to collect money because of the
bankruptcy of a particular company? She is unable to collect it, but
would have the opportunity, under an asbestos reform proposal, to
collect on behalf not only of herself, but on behalf of her young
children.
I am just one of 100 in this great legislative body, and I am very
honored to be here. Even though I am relatively new to the scene, I
think it is very clear each of us is entitled to his or her own
opinion. I have to say some of us are moving the process forward. I
find it difficult to explain to others why we cannot be independent in
our thinking about judges. Someone might say there is not too much of a
difference about this judge or that judge. That is what this process is
all about. But when we can't come to an agreement about a particular
judge and we can't move forward, we cannot delay in this situation, but
we must in fact move on.
I oftentimes try to impress upon myself and my family and my friends
and others that reasonable people can and will disagree. But when they
are unable to agree, it is unreasonable to expect the process to come
to a halt regardless of the rules, but it is important to go ahead and
move on. I embrace that philosophy because I too would always like to
have everything go my way. I would like to see every bill read exactly
as I wish and every nominee be the one I choose. Instead, I do embrace
that philosophy because I believe we can have those differences of
opinion, hold different views on the issues, serve different
constituencies from diverse regions of this great Nation, and we can,
in spite of all that, and in many instances because of that, achieve
progress in addressing the critical issues of our entire Nation.
I don't believe these hours of debate have helped us move closer to
resolving our differences on these 4 nominees. In fact, I am afraid it
has achieved just the opposite. I fear this exercise may have poisoned
the well, leaving this body with such stark disagreements, and any
progress on the issues that matter to my constituents--a prescription
drug benefit, an energy policy, asbestos reform, welfare reform--and
the bills that run the Government may not be now attainable.
Many Americans question the motives of both sides as this spectacle
continues. I am not going to suggest a
[[Page 28777]]
motive for all of this, but I can surmise a conclusion: These hours
have been needlessly carved out while the critical issues remain
unresolved. My constituents sent me here to get things done--not to
pander, not to be a partisan, not to disrupt, delay, object, or deny,
not to waste 30 minutes or 30 hours.
In the interest of moving forward, making progress, and doing good
work for the American people, I urge my colleagues, not in any partisan
way, to think long and hard about what is being orchestrated here for
these hours and what the American public expects of us during the final
days of the session--so we can deal with the prescription drug benefit,
so we can deal with the energy needs, so those folks who are today
worried about the cost of natural gas and the high cost of energy
sources in the future know there is a solution in sight.
Drought relief: I can go back to Nebraska and say, Well, we couldn't
get a drought bill. I guess it was OK that we debated 30 hours on other
issues, but in fact when you are losing your family farm as a result of
the continuing drought, that isn't probably going to sell.
Highway reauthorization: Many States today are waiting for the
highway reauthorization so they can continue to build and improve their
infrastructure, because that relates to jobs--jobs in construction, but
also jobs because of the improved infrastructure.
Many States are worried today about FAA reauthorization. I have
airports in smaller communities in Nebraska that are worried about
being able to build and expand and improve their airports due to part
of the reauthorization.
What do I say to them if that doesn't get accomplished? What do I say
to those who are waiting for asbestos legislation? What do I say about
class action? When are we going to get that accomplished?
When are we going to say enough is enough? If these 30 hours-plus
that are now going into more hours had been used to debate health
insurance, the full funding of special education, dealing with the
Federal unfunded mandates, or some of us had worked previously on State
fiscal relief, or in finding more ways to create jobs and improve the
jobs and the markets we have today, looking for ways to make trade not
only free but fair so we don't export jobs but we do import and export
our products at the same time--if we had spent the time on that, then
this time could have been productive.
In many ways perhaps there can be a catharsis as we move forward on
finding new ways to deal with the judiciary. I have looked back and
forth over the years looking at the role of the judiciary to see if
there is anything anywhere that ever gives the judge the right to
legislate or to make law. The one thing I made clear with every
judicial candidate was: Are you going to be in the position of a judge
or do you want to be a legislator? Are you going to legislate or are
you going to adjudicate? The position of a judge is not to legislate.
It is to interpret law, to apply law, and to adjudicate.
To win constituency groups in Presidential elections, the unfortunate
thing for some time has been to say I am going to appoint judges to do
certain things, to rule certain ways on the Supreme Court bench, to
rule in certain ways on certain issues that will appeal to a
constituency or to win constituency groups.
Sometimes I think we politicize the judiciary, and that is why we are
where we are today. We need to move away from worrying about ideology,
political philosophy, and to make sure judicial activism is not a part
of what we do. If Presidential candidates say they are going to appoint
Supreme Court judges not to be conservative or liberal, but those who
will fairly apply the law and those who will do what they think is
right under the law, not to make the law, then I think it is important.
Politicians do keep promises. In the view of many, maybe not many
promises. But politicians do keep promises when they say they will
appoint judges of a certain kind. Then they are obligated to
constituency groups to do that.
That is the root cause of our problem--moving away from ideology and
political philosophy so we only deal with judges who come to the bench
with the idea they are there to apply, to interpret the law, not to
legislate, not to make the law. Until we do that, we are going to be
hopelessly bogged down from time to time. But I am here to move the
process forward. If the rest of us can't get together to move the
process forward as a body, then we at least ought to move on.
Thank you, Mr. President. I yield the floor to my colleague from West
Virginia.
The PRESIDING OFFICER. The Senator from West Virginia.
Unanimous Consent Request--S. 1853
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the
Senate proceed to legislative session and that the Finance Committee be
discharged from further consideration of S. 1853, a bill to extend
unemployment insurance benefits for displaced workers, the Senate
proceed to its immediate consideration, the bill be read a third time
and passed, and the motion to reconsider be laid upon the table.
Mr. CRAIG. Mr. President, reserving the right to object, I ask
unanimous consent that the Senator modify his request so that just
prior to proceeding as requested, the three cloture votes would be
vitiated and the Senate would then immediately proceed to three
consecutive votes on the confirmation of the nominations with no
intervening action or debate.
Mr. ROCKEFELLER. The Senator from West Virginia will not do that.
Mr. CRAIG. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. ROCKEFELLER. Mr. President, I am extremely frustrated that the
Senate continues this debate, or whatever it is. It is already more
than a day. We are dealing with the nominations of a handful of judges.
That is not trivial. I understand that. As a Senate, we have a
responsibility to address the most urgent issues facing our Nation.
Unemployment insurance for those who are unemployed, I think, happens
to be one of them. Today we are, embarrassingly, failing to live up to
that responsibility.
This morning I talked at some length about the crisis facing our
Nation's manufacturing sector. I will not relent on that subject. As
factories close down, people across this country are losing jobs,
losing health care benefits and retirement benefits. As a country, we
are losing the industrial base that is responsible for the greatness of
this Nation.
Some of the statistics I mentioned this morning I am going to repeat.
Manufacturing employment is at a 41-year low, and more than 2\1/2\
million manufacturing jobs have been lost in the last couple of years.
This morning I described legislation I introduced to address this
manufacturing crisis. I happen to feel very strongly about that
legislation. As I explained, the bill I crafted would offer relief to
American manufacturers in three ways:
First, by lowering the effective corporate income tax rate by about 3
percent; second, by providing employers tax credit up to 75 percent to
help cover the cost of health care coverage for retirees who had worked
for that company; and, third, by strengthening our trade protection
laws. There is a plan I laid out to help stem the terrible flow of
manufacturing jobs from the United States overseas. I recognize other
Senators have different ideas about the best way to help our Nation's
manufacturing companies compete. I welcome the vigorous debate. I
believe we ought to leave no stone unturned when looking for a solution
to this crisis which is so vital to so many of our people. That is why,
frankly, I am so frustrated and disappointed we are going through this
30-hour charade.
On the 1st of October, the Senate Finance Committee, on which I am
proud to serve, approved legislation known as the JOBS Act. That stands
for ``Jumpstart Our Business Strengths.'' The legislation enjoyed broad
bipartisan support in the Senate Finance Committee and passed out of
it. But 6 weeks later it is still awaiting action by the full Senate.
I do not necessarily agree with every provision of that bill, but
that did not happen to be important to me because
[[Page 28778]]
it represents a serious effort to help America's factories and the
people who work in those factories. I care about those people. I
represent those people and I will fight for those people.
The more important provision of the bill reduces the corporate tax
rate, much the same as my own legislation would do. Unfortunately no
debate has been scheduled for this important legislation. Some seem to
believe we will not have time to consider the legislation before
adjourning this year. That is tragic for the people who are not
working. This Presiding Officer faces that in his own State, the State
of Illinois.
I cannot understand that thinking. How can we possibly have 30 hours
to air our grievances about judicial nominees when we all know exactly
what the result is going to be? There is no time to debate a way to
protect American factory jobs. I could pick on many other subjects and
would be happy to do so, but I pick one subject tonight.
I believe if the Senate took up the JOBS Act, we could have a
thoughtful, constructive debate and we could pass it. In fact, as I
look about the Senate floor, I see the Senator from Nebraska, the
Senator from Maine, and the Senator from West Virginia, and the last
time we were on the floor together, we passed a bill which spread out
to the States $16 billion of Medicaid assistance which they desperately
needed--two Democrats and a Republican. It could have been two
Republicans and one Democrat. It makes no difference. We got the job
done. The bill passed, and the States benefited from it.
But what are we doing now? We are talking. We could pass legislation
on all kinds of things. I would ask all of my colleagues to think for a
minute about the Americans who right now as we speak are hard at work
on the evening shift in factories around the country. They are making
everything from cars to contact lenses. Many of these factory jobs are
exhausting. They require concentration and heavy lifting. They cause
injuries. They require concentration. When Americans are toiling away
in our factories right now, we cannot help but be inspired ourselves to
concentrate and to do some heavy lifting of our own. We must work hard
and do our jobs. It is our job as Senators to look at the serious
policies that make our country work or work less well. People having a
job and putting food on the table is a very major part of that.
Much to my dismay, we are not engaged today in serious debate about
ways to create and maintain jobs in America. That is the subject of
discussion in my State. We are not a wealthy State. We are a good
State. Our people are as good or better than anybody in any other
State. I fight for then. But they need work. Instead, our factories
continue to struggle and are forced to shut down. Millions of Americans
are out of work. Because so many of our factories are leaving the
country, it is more and more difficult for Americans to find new jobs.
People always think when you lose a job, you can get another job.
There was a day when that was true. That is no longer true. Indeed,
economic experts have concluded the vast majority of job losses
suffered in the last few years are permanent, are not replaceable.
Factories are closed and will not reopen.
Let me take a moment to discuss the economic situation in my own
State of West Virginia. Our steel industry has been struggling to
recover from years of unfair and illegal competition against steel that
was dumped on our markets and sold in America at below the cost that it
cost to produce it in the country it came from--dumped steel, illegal
steel, breaking our national law.
What was once our State's largest employer, Weirton Steel, recently
announced it will cut an additional 800 jobs. I can remember when
13,000 people worked at that company. If President Bush backs down on
the steel tariffs, of course, it will hurt the industry just as it is
poised to recover. Ending the tariffs early will cost many more
Americans jobs and at a time we know that new factories are not being
opened in steel. We have to protect those steel jobs we have. I mean
``protect'' in the best sense of the word by using the American law and
by being faithful to our own conscience.
Employment in the coal fields is also affected. The coal industry has
long supplied our steel industry with the finest quality coal in the
world. That has continued to decline. There are not many coal miners
left anymore in West Virginia. Indeed, the manufacturing base all over
my State continues to shrink drastically, and, as it diminishes, so do
jobs with good wages and good benefits. That is the American dream.
In the southern coal fields, two other established prominent
manufacturers--EIMCO, a Norwegian company that manufacturers mining
equipment, and the Dean Company, with which I spent most of my life, a
maker of wood veneers--are closed; they went overseas.
The past year has brought the closing of two long-time manufacturers
in north-central West Virginia, the Clarksburg Casket and Glassworks
Company. In the Mid-Ohio Valley in Parkersburg, two long-time
manufacturers, Johns Manvillle and Ames True Temper, closed plants.
Just 3 weeks ago, it was announced another 50-year-old plant was
scheduled to close in Parkersburg, putting almost 200 workers at Schott
Scientific Glass out of work. Their jobs went overseas.
In the Kanawha Valley where this Senator lives, two well-established
chemical companies are closing, Flexys in Nitro and FMC in South
Charleston. These closings mean hundreds of jobs lost.
Where are these workers supposed to turn? Their average age may be 45
to 55. What are they meant to do? Take up computer sciences?
Biochemistry, physics? They can't do that. There is no place for them
to go. There are no replacement jobs. Some of them take temporary jobs
where they don't get benefits and try as best as they can to work with
their families.
I was extremely pleased at the recent news of the strong economic
growth in the third quarter of this year in this country. This does not
translate into new jobs in West Virginia. New jobs is what we look at.
People do not feed their families and do not pay their mortgages with
news of strong economic growth. They need paychecks. It comes from
jobs.
This Congress has not done enough to protect the paychecks of hard-
working Americans. We have failed to stem the flow of jobs overseas, a
subject about which I could speak for 6 hours. We have not done enough
to provide temporary assistance to workers who have lost their jobs.
Currently, 9 million Americans are unemployed and almost 2 million
Americans have been unemployed for more than 6 months. In West
Virginia, almost 42,000 workers are facing the holidays without a job.
Today, the Senate ought to be addressing the needs of these workers.
Therefore, I am pleased to be a cosponsor of legislation introduced by
Senator Kennedy that would extend the unemployment compensation for
those Americans of which I speak who are still struggling to find work
in our so-called jobless economic recovery.
As factory after factory closes its doors, or freezes hiring, workers
are unable to find new jobs. They are running out of unemployment
benefits at an alarming rate. As many as 80,000 workers per week are
expected to exhaust their unemployment compensation in December itself.
Senator Kennedy's bill would continue Federal unemployment benefits for
an additional 6 months. The legislation would also provide 33 weeks of
additional Federal benefits in States with especially high unemployment
rates.
This bill provides crucial assistance for long-term unemployed
workers. There are more than 1 million workers who have already
exhausted their extended benefits but have not been able to find a new
job.
Let me be clear. Men and women in West Virginia and across the
country would rather have a paycheck than an unemployment check. We all
know that. However, the jobs are not available. The choice is not
theirs. They have families to feed. The Federal Unemployment Insurance
Program was specifically created to help workers when the economy
suffers prolonged
[[Page 28779]]
downturns. Workers have paid into the unemployment compensation fund
and they deserve to collect benefits from the fund during such a weak
jobless recovery.
Currently, the unemployment insurance trust funds have $20 billion
sitting in a bank. The benefits outlined in Senator Kennedy's bill
would cost $16 billion. To me it is unconscionable to leave the funds
in the bank when they are needed by workers during hard times.
Moreover, by making additional unemployment benefits available,
Congress will also obviously be helping our economy.
I am afraid that the charade we are engaged in at the moment is a
lose-lose proposition for the American people. I do not diminish the
importance of judges, but I do not diminish the importance of
unemployed workers whose self-esteem is destroyed and whose skills are
ready to be put to work. It does nothing to help 9 million Americans
who have already lost their jobs to have this debate. It does nothing
to protect the jobs and factories that are currently struggling to
compete to have this debate. I would also suggest that it hampers the
ability of Senators to come together to address the urgent business of
the Nation because of the nature of this debate.
There is certainly no shortage of important business before the
Senate. We need to pass a prescription drug bill, and there are many
other issues I could discuss.
I will end with simply this thought: I love America. I love my State
of West Virginia. I love its people. I know they need to be well
represented by judges. But I also know they have to work or else it
probably doesn't make much difference to them.
What I am talking about tonight, what I talked about this morning is
the ability for Americans to have jobs, to hold jobs and, if they lose
them, to get unemployment insurance.
I yield the floor.
The PRESIDING OFFICER (Mr. Enzi). Who yields time for the majority?
Mr. HATCH. Mr. President, I appreciate our colleague's comments about
the necessity of jobs. I agree with him. We are debating the third
branch of Government, without which there wouldn't be any jobs for
anybody, without which the Constitution wouldn't be alive today,
without which we wouldn't have the freedoms we have.
In all this talk about jobs, I haven't heard any real ideas as to how
we get more jobs. It is as though they think Republicans aren't
concerned about jobs. Of course, we are. We are debating something that
is equally important; in fact, over the long run, much more important
than almost anything else we can debate. That is, are we going to have
an honest, decent judiciary to uphold the Constitution?
I have seen this body and the other body pass unconstitutional
legislation many times in my 27 years. I have seen Presidents act
unconstitutionally a number of times in my 27 years, and before that.
It has been the judiciary that has saved the Constitution. It has been
the judiciary that has corrected matters. It has been the judiciary
that has helped small business, where the jobs are. It has been the
judiciary that has given justice to this country, that has protected
Americans from criminals, that has done so much good for this country.
That doesn't mean all judges are perfect or right. But by and large, it
has worked very well. That is why we make these positions lifetime
appointments, so they don't owe anything to anybody but the law.
Here we have a distortion for the first time in history,
filibustering judges and phony, untrue charts of 168 to 4. Let me tell
you, they wouldn't have allowed the 168 to go through had we not been
fighting as hard as we could and forcing them to allow those judgeships
to be brought up. We would have nowhere near 168.
With regard to the four, we are already up to six. We were there last
night. We were there months ago when they indicated they were going to
filibuster Janice Rogers Brown and Kuhl, in addition to the other four
who have been mentioned. Then there are probably at least 13 others who
I can name. There will be more, because there is an arrogance here, it
seems to me, that goes beyond doing what is right for this country.
Very few things rise to the dignity of the importance of judges and
getting a good Federal judiciary. I am for jobs like everybody else,
but because they don't have any other arguments, that is why they are
doing that.
I would be happy to listen to my colleagues on any suggestions they
have with regard to jobs. Usually it is another big Federal program
that literally doesn't create any jobs. It just creates another burden
for taxpayers. That is what they think creates jobs.
I am happy to yield to the distinguished Senator from Virginia.
Mr. WARNER. I listened carefully as our distinguished chairman was
referring to other nominees who have been acted upon by the
distinguished members of the Senate Judiciary Committee. I have been
studying extensively the very impressive record of achievement of a
number of these individuals who are awaiting action on the floor.
You mentioned Justice Janice Rogers Brown, a distinguished jurist of
25 years on the California Supreme Court. The record shows that she was
born to very proud parents but ones of modest means. Sharecropping was
their profession.
This distinguished, hard-working young person worked her way through
college, worked her way through law school, and has now served the
people of California for a quarter of a century, including the last 7
years as a California Supreme Court justice. That is remarkable.
Further, we heard that she was elected or reelected to the California
Supreme Court. I think the chairman should explain the distinction
between our Supreme Court, which is subject to the process we have been
discussing these several days. But in a number of States, they do have
a State election. All of us in this Chamber are here by virtue of the
support of people in elections. But how many of us have been elected to
the Senate with 76 percent? I don't think my distinguished junior
colleague from the State of Virginia got that.
Mr. ALLEN. Far from it.
Mr. WARNER. Well, I was pretty close to it, I mention to the Senator.
But I don't claim 76 percent. That is quite a record. We have heard
that she has ruled for the plaintiffs in many civil rights and consumer
protection cases. She is supported by her colleagues in California,
those who know her best.
But could the distinguished chairman advise the Senate with regard to
his opinion with respect to the nomination as it is hopefully brought
before the whole Senate?
Mr. HATCH. Well, of course, she is subject to the same advice-and-
consent rule of article II, section 2 of the Constitution, as are all
of these Federal judges. But she deserves the dignity of an up-or-down
vote.
The senior Senator has brought out she is an African-American woman
who has come from nowhere, in a sense, a sharecropper's daughter, to
being a justice on the California Supreme Court.
Mr. WARNER. That is a dream of millions of students all across this
country, to have that opportunity to come up through our system, to
gain their degrees, to take their place in society, to stand for the
cause of freedom in this great country, and some few do manage to get
on the judiciary of the States. I know that Presidents look to the
jurists in States, because they have a proven record, to select them
for the Federal judiciary.
Mr. HATCH. That is right.
Mr. WARNER. I do hope this distinguished nominee will fare well and
be treated with fairness when that name is brought before the Senate.
Mr. HATCH. I appreciate my dear colleague. But we will find out
tomorrow that the other side is going to vote against cloture. They are
filibustering this terrific African-American woman justice who has made
it on her own throughout life, who wrote most of the majority opinions
in the California State Supreme Court while joining unanimously with
others in over seven cases just last year.
[[Page 28780]]
They have tried to paint her as though she is out of the mainstream.
I would like to suggest who is out of the mainstream. It is a high
percentage of those on the other side of the aisle who think that only
the left has any ideas in this country. Because she is a conservative
black woman and she is not monolithically in step with what they think
black people ought to be, they are against her. If we did that to one
of their nominees, the whole world would come down on us.
Mr. WARNER. She is proud of her African-American heritage. I hope the
Senate gives her fair treatment.
Mr. HATCH. I do, too. I hope the Senator is right. But from what I
have seen here, she is going to be filibustered right along with the
rest of them.
I recognize the distinguished Senator from Virginia, and then I will
come to the distinguished Senator from North Carolina.
Mr. ALLEN. Mr. President, following up on my esteemed colleague from
Virginia's comments and observations on Justice Janice Rogers Brown,
she is the first African-American woman to serve on the California
Supreme Court, having come from segregated schools in the South, worked
her way up.
I find it very interesting that the following quote was made a few
years ago: Whether it is Hispanic or non-Hispanic, African American or
non-African American, woman or man, it is wrong not to have a vote on
the Senate floor. What are they afraid of? What are they afraid of?
What is wrong with a vote?
Tomorrow the person who made that statement on October 28, 1999,
Senator Tom Daschle, Democratic leader, is going to lead a filibuster
against Justice Janice Rogers Brown.
Mr. HATCH. That is my understanding.
Mr. ALLEN. Clearly, a prior inconsistent statement showing duplicity.
I would ask, when you referred to some of their arguments that she is
out of the mainstream, I was looking at the record from the hearings. I
understand Justice Brown was criticized for a single ruling she made on
a parental consent case. We have parental consent laws in Virginia. The
vast majority of people, even some who consider themselves pro-choice,
recognize that if an unwed minor daughter is going through the trauma
of an abortion, that at least the mother or father ought to be
notified, ought to be involved, because it is a medical procedure that
even for ear piercing or tonsils being taken out, you need consent. So
for something as traumatic as the surgery of abortion, which is
physical obviously, but also something that is emotional, parents
should know when their 17, 16, 15-year-old daughter is going through
such a procedure.
She is being criticized for that. I don't find that, at least from
Virginia standards, or if the Senator could share with us, do you
consider that out of the mainstream? From what I can see from surveys,
80 percent-plus of all Americans, regardless of the color of their skin
or their ethnicity or gender, think parents ought to be involved when
their unwed minor daughter is contemplating such a procedure.
Mr. HATCH. Well, the Senator raises a good point. But not according
to that side. It is out of the mainstream. Just think about it. The
Senator is correct. Eighty-two percent of the people are for parental
notification laws. Challenging the reasonableness of parental
notification statutes lies somewhere between hard and impossible. That
is why an overwhelming majority of Americans support those laws,
including the parents of Holly Patterson. Holly was a young girl who
died 7 days after taking RU-486, the abortion drug.
Her father learned about her abortion just hours before her tragic
death. If there was a parental notification statute, Holly might still
be alive today.
Parents do have some rights here. Most people acknowledge that. But
that is one of the big reasons why our friends on the other side are
against all three of these women nominees, I suppose. If there had been
a parental notification statute, young Holly would be alive today.
It is ridiculous to criticize these two fine nominees for their
opinions upholding parental notification statutes. Justice Brown's
opinion on the parental consent statute is well within the legal
mainstream. The U.S. Supreme Court has routinely found notification
statutes constitutional.
So the Senator has raised a very important point. But that is
considered out of the mainstream by our colleagues. Again, we know who
is out of the mainstream. It certainly isn't Janice Rogers Brown.
I will just point to the side that is out of the mainstream. Yet they
are trying to make everybody march in unison, in accordance with their
liberal plan for America. That is not right. I turn to the
distinguished Senator from North Carolina.
Mrs. DOLE. Mr. President, will the distinguished Senator yield for a
question?
Mr. HATCH. I would be delighted.
Mrs. DOLE. I have heard that the Senate minority leader called
Priscilla Owen unqualified. Yet I understand Justice Owen attended
Baylor University and Baylor University Law School, graduating cum
laude from both institutions. I understand that she finished third in
her law school class and earned the highest score on the Texas bar
exam. And she accomplished these remarkable achievements at a time when
women were a distinct minority in the legal profession.
Isn't it true that 15 past presidents of the Texas State bar, both
Democrats and Republicans who hold a variety of views on important
legal and social issues, agree that Justice Owen is an outstanding
nominee and should be confirmed as a Federal judge?
Mr. HATCH. Absolutely true. By the way, one of the arguments that the
side across the aisle from us is out of the mainstream again is over
parental consent, a dissent that she had written, upholding the finder
of fact in the lower court. The majority just ignored those facts and
overruled the right of parents to consult with their daughter before
the daughter had an abortion.
She is not out of the mainstream. Guess who is out of the mainstream?
I thank the Senator.
Mrs. DOLE. Senator, is it not the case that former Texas Supreme
Court Justices John Hill, Jack Hightower, and Raul Gonzalez, all
Democrats, say Justice Owen is unbiased and restrained in her
decisionmaking?
Mr. HATCH. That is correct. These are people who know her or who have
worked with Justice Owen on the Texas Supreme Court. They are all
Democrats. They are all partisan Democrats, by the way. They think she
would make a fine judge on the circuit court of appeals.
Mrs. DOLE. As I understand it, some of our Democratic colleagues
oppose Justice Owen because she is too pro-business, her opinions are
results-oriented. Didn't the leading tort law professor, Victor
Schwartz, look at Justice Owen's opinions and find those opinions,
those characterizations of the opinions to be untrue?
Mr. HATCH. Victor Schwartz is one of the law professors who wrote the
book on torts. He is one of the most distinguished legal thinkers in
the country. In fact, Professor Schwartz wrote:
Any characterization of Justice Owens as pro-plaintiff or
pro-defendant is untrue.
But we are getting used to that. The reason they are all talking
about jobs, it is a political reason, of course. They are trying to get
people to not pay attention to this debate. But the reason they are
talking about jobs is because they don't have a good argument against
Priscilla Owen, nor do they have one against Janice Rogers Brown, nor
do they have a good argument against Carolyn Kuhl. And three
outstanding women who, if we treated three of their women justices like
that or nominees like that, all hell would break loose.
In all honesty, Professor Schwartz said that just isn't true.
Ms. LANDRIEU. Parliamentary inquiry.
The PRESIDING OFFICER. Does the Senator from Utah yield?
Mr. HATCH. Not yet, I yield to the distinguished Senator from Texas.
Mrs. HUTCHISON. To follow along with what the distinguished Senator
from North Carolina was saying, Justice Priscilla Owen, a personal
friend of
[[Page 28781]]
mine who I have known for years, isn't it true that she was endorsed by
every newspaper in Texas when she ran for reelection to the Supreme
Court of Texas, every single one?
Mr. HATCH. The distinguished Senator from Texas knows that is true.
That is not easy in the State of Texas. There are some very liberal
newspapers down there that scrutinized every aspect of her life.
Mrs. HUTCHISON. It was really phenomenal. In fact, isn't it true that
she got the highest number of votes of any person running for the
supreme court that year?
Mr. HATCH. No question about it. She is a terrific person.
Mrs. HUTCHISON. I heard one of my colleagues on the other side of the
aisle say: There are not enough hours in the universe that would be
sufficient for debating Justice Owen's nomination. I thought that was
very interesting because, the fact is, if we had 1 more minute of
debate, it wouldn't matter, because she already has a majority vote in
the Senate. Isn't that true?
Mr. HATCH. That is true. In fact, all three of them do.
Mrs. HUTCHISON. If she has the majority vote on the floor of the
Senate, and the Constitution says that advise and consent is not a
supermajority, that is what it implies because it didn't ask for a
supermajority, then why isn't she sitting on the Fifth Circuit bench
right now?
Mr. HATCH. Well, I think it is because she is not a liberal. That
seems to be the only mainstream the other side is interested in. I
cannot say she is all that conservative either. But the fact of the
matter is, she is not a liberal Democrat. Here is a woman who has every
credential in the world, as the Senator from Texas pointed out, who
broke through the glass ceiling for women so women can now become
partners in law firms, when that was tough to do. Here is a woman who
has fought every day of her life to excel, who has excelled. Yet look
how she is being treated, like she is ``outside of the mainstream.''
Since they don't have any real legal arguments, any real
philosophical arguments--they don't have any real arguments, and that
is why we are getting a filibuster on one of the best nominees I have
seen. By the way, she got the highest rating from the not-conservative
American Bar Association, which during the Clinton years was called the
gold standard. If you got a ``qualified'' from the ABA and you were a
Clinton nominee, that meant you were OK, you were in the mainstream.
Here is a woman with a ``well qualified,'' the highest rating from
the ABA, and they are trying to say she is outside of the mainstream.
That is just another misuse of terms because they don't have a real
argument against her.
Mrs. HUTCHISON. You know, the distinguished Senator from North
Carolina is a graduate of Harvard Law School. She went through when it
was very tough. I am a graduate of the University of Texas Law School,
and there were five women in my class of 500. So we know what it is
like to go through those hard times and graduate from law school.
Frankly, we would have a hard time finding a job.
Priscilla Owen went through that. She has known the tough times. She
has known herself to be superior. That is why I appreciate the Senator
from North Carolina talking about my friend, Justice Owen, and why I am
standing up for her today, because I know what she has been through.
She has come out on top. She has come out on top in everything she has
done, and she would have gotten a majority vote on the floor of the
Senate. She deserves to be sitting on the Fifth Circuit today.
I will ask this final question. Why in the world would the Senate put
a blemish on the record of a woman who has high moral standards, who
has faced the electorate and won overwhelmingly, who has been endorsed
by every newspaper in Texas, and got the highest number of votes the
year she ran? Why would the Senate keep her from getting the
appointment she is so qualified for?
Mr. HATCH. I cannot see a good reason. It is a mystery to me why our
Democratic colleagues refuse an up-or-down vote. Like the distinguished
Senator from Texas said--and I really admire the Senator from Texas,
who is a lawyer, from the University of Texas, and the Senator from
North Carolina, Senator Dole, who is a lawyer, who graduated from
Harvard Law School. I think the other side ought to be listening to the
two of you, especially with regard to an eminent woman jurist named
Priscilla Owen, and another jurist named Janice Rogers Brown, and
another one named Carolyn Kuhl.
To make a long story short, if they don't like these nominees, then
vote them down. The reason they are stopping them is because all three
of them have a majority of the Senate willing to vote for them. They
are flying in the face of the advise and consent clause, refusing to
give them the dignity of an up-or-down vote. I think women across this
country ought to be outraged by it--liberal women, moderate women, and
conservative women. It is a slap in the face to every one of them, the
way these three women are being treated by the other side. I have heard
for 27 years how much greater they are for women. Don't believe it. If
they were, they would not be arguing against these wonderful women
nominees. Don't believe that for one second. It is all politics.
The only reason they are talking about jobs, in all honesty, is
because they don't have the arguments against these eminent women
lawyers and judges. It is pathetic.
Mrs. HUTCHISON. I thank the Senator from Utah.
Mr. HATCH. How much time is left?
The PRESIDING OFFICER. There are 6 minutes 15 seconds.
Mr. CRAPO. Will the Senator respond to a question?
Mr. HATCH. I surely will.
Mr. CRAPO. The Senator from Utah spent time responding to questions
about the nominees we are going to vote on tomorrow. I note those who
oppose this vote often bring up a chart that says 168 to 4, noting they
have only filibustered 4 judges in this Congress. I think it is
important to point out, though, that number 4 is the first time in the
history of this country, in the history of the Senate, a filibuster has
been sustained against a judicial nominee of the President of the
United States.
I think it should be clarified to the American people that the fact
we are now seeing a filibuster sustained against nominees of the
President turns the Constitution on its head and begins a very
dangerous precedent with regard to how the nominees for the judicial
branch are treated by this Senate.
Mr. HATCH. No question about it. That 168 to 4 doesn't even begin to
tell the story, because if it had been up to our colleagues on the
other side, there would not be 168. We had to fight for every one of
those people, and we had to fight hard fights. We had to force them to
vote. They cannot vote against everybody. So there is not just four. We
have already got six. We had to file cloture on Carolyn Kuhl and Janice
Rogers Brown, which will be up tomorrow. I can name probably another 11
they are going to filibuster. So that is a blatant, outright lie.
Mr. CRAPO. Would the Senator from Utah tell us how many of the
nominees of President Clinton to the bench were filibustered during his
Presidency?
Mr. HATCH. Not one. Our side would not permit that because of the
detriment to the Senate, the detriment to the Federal judiciary, the
detriment to the Constitution, the detriment to just good reasoning. We
didn't filibuster one.
Mr. CRAPO. Isn't it also true that out of the last 11 Presidents--and
I think we used 11 Presidents because it was 1949 when the filibuster
became possible--not one of their nominees, until today, until this
Congress, not one of the President's nominees has been successfully
filibustered in the Senate of the United States because of the
understanding of the fact that the Constitution gives the President the
right to a vote?
Mr. HATCH. That is right. Once they hit the floor, they have had a
vote up or down. And 377 Clinton judges are
[[Page 28782]]
serving in the Federal judiciary today because we had the decency to
give them the dignity of votes up or down--something not being accorded
our nominees.
Mr. CRAPO. It is my understanding that 2,300 nominations have come to
the floor since the filibuster was possible.
Mr. HATCH. It is 2,372.
Mr. CRAPO. Zero were filibustered this year, and this year four have
been successfully filibustered, and what is it, five, six, or seven
more are scheduled to be filibustered?
Mr. HATCH. That is right. Actually, it is more than that. We have two
more tomorrow. That gets us up to six. Then probably there are another
11 I can name. I won't take the time to do that now. There hasn't been
one filibuster by us. There have been cloture votes, but they were used
for time management purposes to get us to a vote. In every case, the
Clinton nominee got voted up, except for one.
Mr. CRAPO. I thank the chairman. I think it is important to look at
this and understand what this debate is about and why we are giving it
this time, to focus on the threat to the Constitution that is being
posed by the treatment of judicial nominations in this Congress. I
thank the Senator.
Mr. HATCH. I thank my colleague. The real number, for the past 11
Presidents of judicial nominees confirmed versus the filibustering they
are doing, is 2,372 that were confirmed. None were filibustered, until
President Bush became President. He is being treated wrongfully. It is
unfair to him, unfair to these nominees. I like what the Senator said
earlier. I think he said we gave a fair trial to 2,372--actually 168.
We gave a fair trial to them and with regard to the four, we just hung
them. That kind of shows in that one sense it is great to give a fair
trial, but we are not giving a fair trial to these four. They are
arguing it is all right for four because it is only four. Well, it is
not all right if people are hung without a fair trial. They are
certainly not getting a fair trial.
Mrs. HUTCHISON. Mr. President, will the Senator yield for a question?
Mr. HATCH. I surely will.
Mrs. HUTCHISON. I think in hearing the debate, the most egregious
misrepresentation I have heard is about Judge Carolyn Kuhl and a case
she had, where there was a woman who was being examined who had breast
cancer, and there was someone in the room who was not a doctor, a
person from a pharmaceutical company. It was said she callously let the
pharmaceutical company be dropped from the case. Isn't it true, though,
there was also an action against the doctor who was negligent, and she
kept the lawsuit alive so that woman could have a recovery?
The PRESIDING OFFICER. The time of the Senator is expired.
Mr. HATCH. I ask unanimous consent for 30 more seconds.
Ms. LANDRIEU. I object.
Mr. HATCH. Let me just say that it is true.
Ms. LANDRIEU. I object. I know the distinguished chairman has been on
the floor for a while making some truly offensive statements to
colleagues on this side of the aisle that, in my opinion, are beneath
the dignity of the committee on which he serves as chair. I ask the
chairman if he recognizes the number on this chart. Could he state for
the record what it is.
Mr. HATCH. I don't recognize the number. However, I do recognize the
argument.
Ms. LANDRIEU. The Senator from Utah----
Mr. HATCH. Let me answer the question, if I may.
Ms. LANDRIEU. The distinguished Senator from Utah has answered the
question.
Mr. HATCH. May I please finish?
Ms. LANDRIEU. He has answered my question. He said he didn't know
what the number was. I would like to explain to him and to the other
Members.
Mr. HATCH. Will the Senator yield?
Ms. LANDRIEU. No, I will not. The number is 98 percent----
The PRESIDING OFFICER. Senators will address other Senators through
the Chair.
Ms. LANDRIEU. The number the distinguished Senator from Utah did not
recognize--I don't know why he would not recognize it since he is
chairman of the committee, but he says he doesn't recognize it. The
number is 98. Ninety-eight percent of the judges that were sent to this
Senate by President Bush we have approved--98 percent. There are not
many people in America, not white people, or black people, or Spanish
people, or women, or men, who think the Senate should approve 100
percent of any President's nominees. It is beyond the realm of reason,
particularly a President who did not win the popular vote.
Earlier in the debate, the chairman, who also doesn't recognize this
number, this 98 percent, also fails to recognize the numbers in the
last election. The numbers of the last election were Bush 50,456,169;
Gore 50,996,116. So 500,000 more people voted for Vice President Gore
in the popular vote than President Bush. He won by a handful of
electoral votes in Florida, and we know that. The Court decided it. I
am not complaining about it, but numbers are important. Let me tell you
another number----
Mr. SESSIONS. Will the Senator yield for a question?
Ms. LANDRIEU. I will not.
Mr. REID. Regular order.
Ms. LANDRIEU. I will not yield for a question.
Another number is 63. I want the public who is watching this--and I
think a lot of people are watching this, and I am glad because this is
what the next election is going to be about, and I am very excited to
help lead this fight. Sixty-three nominees were blocked. It wasn't an
open filibuster. It wasn't debated in the open, like tonight where
there are no secrets and we can all speak about what we believe. This
was done in secret, and not by many Senators who represent millions of
people, but maybe by one Senator who just decided he or she didn't like
the nominee, and so they would not sign the slip.
The chairman of the committee reigns over this. He understands this
number 63. They didn't even have the decency of getting a vote or a
hearing in committee because the chairman from Utah had a system in
place that blocked them.
Mr. HATCH. Will the Senator yield?
Ms. LANDRIEU. No, I will not yield.
Mr. HATCH. I have a question.
Mr. REID. Regular order, Mr. President.
Mr. HATCH. I object to that, Mr. President.
Mr. REID. How rude that is.
The PRESIDING OFFICER. The Senator from Louisiana has the floor.
Ms. LANDRIEU. Thank you, Mr. President. I will not yield the floor,
and we are not going to yield this point.
Technically, the majority is correct that there has not been a
technical filibuster successfully completed. But there have been
filibusters on this floor that have been tried, but they weren't strong
enough to stand up to them because their arguments weren't strong
enough. The only way a filibuster can survive is if the arguments and
the truth is strong enough to stand up to lies. That is the only way a
filibuster survives. That is why this filibuster survives, because the
truth is always stronger than a lie.
This 63 people never could come out of committee. I am not even going
to go into that. I am going to talk about something else.
How much time do I have remaining?
The PRESIDING OFFICER. The Senator has 24\1/2\ minutes.
Ms. LANDRIEU. Good. I am going to take every one of them.
I want to tell the Republican majority something quite simple. This
country, no matter your best efforts, will not be divided. No matter
your vicious rhetoric about Protestants and Catholics and blacks and
whites and Hispanics and women, we refuse to be divided. In a time of
war, which we are in, when the country is under assault and we have men
and women dying in Iraq, it is the height of disrespect and un-
Americanism to come to this great floor and talk about the pettiness
and say this woman Senator, who has spent 25 years in public office,
and every woman who has ever served, that there is something wrong if I
don't want a
[[Page 28783]]
woman as a judge or I don't want African Americans to be here.
The Senator from Utah must forget where I am from. I would like to
remind him where I am from. I am going to fight for Louisiana. In the
63 years before Rosa Parks decided to sit down in her seat because her
feet were so tired she could not move, a man named Homer Plessy decided
he would get on a rail car that was entitled ``whites only.'' He got on
it in New Orleans, my hometown. He rode on the train and he knew he
would be arrested. But a group of lawyers, African-American free men of
color, had decided that he would be the right one. Why? Because he was
white enough to pass, to get on the train, and black enough to be
arrested. And that is exactly what happened.
Forty years before the Civil Rights Act, Plessy rode that train and
the great movement began to free people who had been slaves for 300
years.
I have to sit in the Senate Chamber and listen to the Republican
majority argue that, in the whole country, they can't find a better
African-American woman than this Janice Rogers Brown to serve on the
bench, to hold up Rosa Parks, to honor the work of Louis Martinet, and
to honor the memory of Plessy. The only person they can find to serve
on the bench is a woman who says--and I want to read what she says so
the people in this country can just decide for themselves. Don't listen
to all the technical parts. I am just going to read to you what the
woman said and you decide for yourself if you think this is mainstream
or not:
Some things are apparent. When government moves in,
community retreats, civil society disintegrates, and our
ability to control our own destiny atrophies. The result is
families under siege, war in the streets, the precipitous
decline of the rule of law, the rapid rise of corruption, the
loss of civility and the triumph of deceit. The result is a
debased, debauched culture which finds moral depravity
entertaining and virtue contemptible.
What do you think Rosa Parks thought when the Federal judge came down
to Alabama and government intruded and said: Lady, you don't have to
suffer anymore. You think that Rosa Parks thought that government was
bad?
Let me go on to say what this mainstream woman thinks of all the
grandparents in the United States.
My grandparents' generation thought being on the Government
dole was disgraceful, a blight on the family honor. Today's
senior citizens blithely cannibalize their grandchildren,
because they have a right to get as much ``free stuff'' as
the political system will permit them to extract.
Excuse me, but on behalf of all the grandparents I represent, this is
an insult to every single one of them who raised their children, and
then when some of their children got into trouble, raise the
grandchildren and the great-grandchildren on their Social Security
paychecks of $672 a month, which the Republican side refuses to raise,
and a minimum wage which is $5.50, which they won't raise, and you are
asking me to put a woman on the court that insults the grandparents of
Louisiana? Take your dossier and go somewhere else.
Now, if these people are in the mainstream, then I don't know what
mainstream we are talking about, because it is not mainstream in
Louisiana. That is what this debate is about.
The Senate Democrats didn't want to have this filibuster. We are made
to have this filibuster because the Republicans on that side think they
can divide the country and split us up and cause trouble. I will tell
you what people at home want. We are in a war. They want us to be
united and fight together. But they have us fighting against Catholic,
Protestant, rich, poor, young and old. It is a disgrace, and it is not
the Democrats fault. It is the Republican majority.
I will just say this. I know the men and women who serve over there
and individually they are fine. But, boy, collectively they can sure
get themselves up into a lather. The country deserves better. The
people want better.
We have an Energy bill to pass; we have appropriations bills to pass;
I have 400,000 veterans in my State who are looking for help, and they
turn on the television to see the chairman from Utah saying something
about the women in the Senate don't want women on the bench, and we
don't want Hispanics on the bench, and we don't want African Americans
on the bench? Whoever heard of such ridiculousness?
I beg this body, let's stay on the facts. The facts are that we have
approved 98 percent of President Bush's nominees. We have rejected
people such as Janice Rogers Brown, and no matter how many times they
bring her up, she will be rejected because she makes statements like
this that are an insult. She is not going anywhere. We will vote on her
100 times. She will never get on the bench. Whether or not we have a
vote on her, she is not going to get on the bench.
Let me say I just made a call--how much more time do I have?
The PRESIDING OFFICER. The Senator has 16\1/2\ minutes.
Ms. LANDRIEU. Good.
I just made a call to the National Bar Association, which is the most
distinguished group of African-American lawyers in the country. I am
sure maybe there are smaller groups that other people might think are,
but this is the most well thought of group of lawyers. This group of
lawyers, more than almost any other group, would surely know the
history of the civil rights movement. They would surely understand the
characters and people I have talked about, and all the stories and all
the drama. You would think that President Bush, who ran on
compassionate conservatism, and the Republicans who keep saying we are
reaching out to African Americans--we want to reach out to African
Americans, we want to go and put African Americans on the bench--you
would think that sometime in the last 3 years they would have called
the National Bar Association, or the President would have called the
National Bar Association and said: Look, I'm a conservative. You all
probably are more liberal as a group, although there are probably some
conservative members. Why don't you give me a recommendation, knowing
that I can't support a real liberal judge. But if you work with me we
could get some really good African Americans on the bench that are
highly qualified, that the Democratic majority would like. I would feel
happy about that. We are in a war. It would be really important for us
to unite our country.
Do you think he ever consulted with them? No. The President, this
White House, or the Republican leadership never called the National Bar
Association, which is the most prestigious group of African-American
lawyers, to just ask them. Is there any conservative judge, moderate
conservative judge you all would think would be good that I could
appoint?
This is not about doing what is right. This is about winning
elections and ginning up the far right in the wings. I understand that.
It has been done before. But not during a war. Not when people are
dying. It is just not right.
So we could stay on the floor all night, all tomorrow, all next week,
but I tell you the people in this country are going to have enough of
it pretty soon because they don't believe this is right. They can tell
when something is not moving in the right direction.
I will end with this. No matter how hard the Republican majority
tries to divide us, we will not be divided. We are going to stand
united. We are going to speak the truth. We will debate in the open why
these nominees do not deserve to sit on the bench and why we will
filibuster these nominees.
We will continue to do that until the people decide in the next
election what kind of America they want. In my heart I believe they
want an America that is united, not divided.
I see my colleague from New Jersey is here. We have a few moments
left. I thank him for his patience.
Mr. CORZINE. I thank the Senator from Louisiana. I think you have
spoken brilliantly tonight, about the idea of trying to divide us over
something that is basically a disingenuous issue to start with.
You talk about the 98 percent. Over the last 24 hours, we have seen
this 168 to 4 over and over. No one could speak more eloquently about
the facts; 98 percent is a hell of a number.
[[Page 28784]]
Ninety-five percent of judicial positions in this country are filled.
When President Clinton left office and President Bush took office, it
was at 75 percent. The reason was because those 63 that the Senator
from Louisiana was talking about never got a hearing, never got a
chance to get a vote in committee, never got reported to the Senate to
get voted on. Sixty-three judges were blocked. It is a different
technique under the rules of committees as opposed to here on the
floor, no committees, no votes, no reports--63 qualified judges, at
least in the opinion of the then-President, never had a chance to fill
that void, and 25 percent of seats went unfilled. Now 95 percent are
filled.
When there is cooperation--I can tell you there has been cooperation
in New Jersey. We have had five district court judges and a circuit
court judge, we worked with the White House and the Judiciary
Committee, and it has worked very smoothly. It can work if we reach out
and work with each other, which we have to do in this society if we are
going to get good things done--not by dividing us.
You know, it strikes me that we spent a lot of time talking about
four judges or six judges. One of those 63 judges--by the way, who
couldn't get a hearing, it went on for a year and a half--is now the
dean of the Harvard Law School. It is hard to understand how he wasn't
qualified to be considered for the bench but is qualified to be the
dean of the Harvard Law School.
By the way, this shows it in a pictorial sense. This is the list of
63. This is the 4. It is very clear.
I want to dwell on something else. The real issue is not 4 people who
are not being approved on this Senate floor. The real issue are the 3
million people who have lost jobs since 2000, the 9 million Americans
who do not have a job, the 2\1/2\ million Americans who have lost
manufacturing jobs, and the real agony we have in the country because
we are not creating jobs fast enough in this country.
We have gone fast enough to get 98 percent of the judicial positions
filled, but we have not gone fast enough to take care of the 3 million
Americans and the 9 million unemployed and the 2.5 million
manufacturing jobs lost.
I think we have our priorities wrong. We have been debating 4 people
while there are 9 million Americans out of work. We have been doing
that now going on 24, 26 hours. We are going to go on some more.
Americans know what impacts their lives: their ability to take care
of their kids, their families, their grandparents, their future. They
are interested in having a job. Jobs count. We are talking about 4
while 9 million are missing in action in our debates on the floor of
the Senate.
I think it is disingenuous. I think it is clearly staged. I think we
are off on the wrong target.
I point out today I went through some of the press reports that came
out over the AP wire today. The U.S. trade deficit grew to $41.3
billion in September--$41.3 billion. We are going to have a $500
billion current account deficit in this country, and what we are going
to have, more importantly, is a deficit in manufacturing jobs because
they are all going overseas. We ought to have a debate here about
economic policy that puts Americans to work--a $41.3 billion trade
deficit this month. It is going to be $500 billion for the year.
We have had discussions in committee--which, by the way, we had to
cancel all our committee meetings--about whether we have the proper
trade policies, the proper positioning with China where we are losing
jobs right and left across the manufacturing sector. We had the biggest
trade deficit with China we have ever had in the month of September.
Why are we talking about 4 jobs when we are losing millions of jobs,
2\1/2\ million jobs, because we have an economic policy that is out of
kilter with the needs of the American people?
If that is not enough, the poverty rate has grown 1 percent in this
country in the last 3 years. That is about 1.7 million people. We have
seen the uninsured in America, those without health insurance, go up a
little over 2 million. We are having no discussion on issues that
impact people's lives who are watching this debate. We want to have
real debates that make a real difference in people's lives. We ought to
be talking about these jobs. We ought to be talking about health
insurance. We ought to be talking about that trade deficit, ripping out
the heart of middle-class America's jobs.
I don't understand why we have our priorities on 4 people when we
have a 98-percent positive ratio of confirming judges. It doesn't make
sense, particularly when we can argue about whether they are mainstream
or they have made the kinds of statements the Senator from Louisiana
quoted from one of those individuals who is going to be considered
tomorrow for confirmation. It doesn't make sense.
There are all kinds of things we could be doing right now. We could
be raising the minimum wage. That would improve the lives of about 4
million Americans. We could pass a transportation bill that would
create, by almost every estimate about 1 million jobs. It is lingering
in committee. We don't want to talk about it on the floor, but it is a
million jobs. It builds America; it invests in our future.
We could talk about increasing investment in higher education or
maybe do something about making sure we don't take 8 million Americans
away from having the opportunity to make overtime pay so they can
operate and live in this community of America in a more secure way.
Then, the greatest tragedy, in the last 13 days we have had 42
Americans killed in Iraq. We have changing policies. We have generals
in Iraq saying we are not living in the real world. We are not talking
about it as if it is a war. General Sanchez today said we are not
walking away from using the word; we are going to win this battle--no,
we are going to win this war because the people back in Washington need
a dose of realism in their debates about this issue.
Then we have a meeting to discuss the intelligence report that was
leaked by someone with regard to what is happening on the ground in
Iraq, and nobody shows up because we are debating 4 judges.
It strikes me we have our priorities wrong in this country when we
are talking about 4 judges when we have 9 million people unemployed,
when we have lost 2.5 million manufacturing jobs, when we have 2
million people losing their health insurance. We have a tie-up on the
prescription drug benefit bill and the Energy bill and we can't get
these bills out. We have generals in Iraq saying we don't have a
realistic view of what is going on in the debates we have here in
Washington. There are real issues that matter to real people across
this country, in the millions--in the millions, not 4--not when 168 are
approved and 4 are not.
I don't know where our priorities are when we turn our attention to
such an issue when there are real debates about whether they fit into
the mainstream or not, whether we ought to have a real debate. By the
way, other people used other techniques at another time when it was
convenient to do it. It is disingenuous to say, use the rules of the
Senate which are authorized under the Constitution. I hear all this
``unconstitutional'' view. That is not unconstitutional. We should
change the rules if we don't like the rules of the Senate, just the
same way that we can change the rules in committees.
It is not sensible that we are not putting our priorities on the loss
of jobs and taking care of the American people in the way they expect
us to--to debate and put in the time and effort.
This whole debate, which has now gone on for 26 or 27 hours, should
be about jobs--not 4 but 9 million. It should be about the important
issues that impact people's lives, the people who are uninsured, the
people who haven't had an increase in the minimum wage in 7 years--7
years. We can't get a vote on that. We can't get a vote on the
Transportation bill that would create a million jobs. There are all
kinds of things we can't get votes on around here because people don't
want to have them. They use the rules for those purposes.
[[Page 28785]]
Four out of 172, 98 percent have gotten votes. It is very hard to see
how we have our priorities straight in this area tonight and have had
properly placed priorities for the last 26 or 27 hours.
I hope we can get focused on something other than 4 jobs. We should
get focused on the 3 million people who have lost them, the 9 million
people who don't have jobs. We ought to be talking about extending
unemployment benefits to the 80,000 people a day who are going to lose
those in another 30 days when we are not in session.
It is incredible--our priorities. It is incredible. I believe as much
as anyone else that we ought to cooperate. We have in many, many
places. That is how we got 168 judges approved. That is how we got to a
95-percent fill ratio on the number of judges' slots that have been
filled. But we have major problems with employment and the economics of
this country. It is time we get our priorities straight.
I yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from Utah.
Mr. HATCH. Mr. President, it has been a good debate. But I have
noticed the folks on the other side of the aisle want to shut down the
debate on judges because they don't have an argument. Jobs is where it
seems their only argument is, and more Federal Government programs. In
fact, they don't even have very good arguments there. It is ``increase
the minimum wage.'' I am not sure it will create jobs. And ``re-up
insurance,'' which certainly doesn't create more jobs.
On the other hand, I am not saying they are not compassionate. They
are decent people wanting to do those things. But when you do not have
any arguments against the judges we are talking about, then you change
the subject. That is exactly what they have done.
If the distinguished Senator from Louisiana were here, I would ask
her why she took the number 129 because, of course, that is a number of
confirmed judges that were left off her chart. We have had distortions
of the facts. We have had distortions of the statistics. You can prove
anything with statistics if you want to manipulate them. There are 129
judges left off that chart she was showing. We confirmed 377 Clinton
judges--not 248. If you want to be factual, be factual. Don't distort
the facts.
I was a little surprised that now at the 29th hour of debate an awful
lot of Democrats come on the floor without any arguments that are
really valid against these nominees we are talking about. They are
changing the subject because their arguments don't hold water.
As for Democrat claims that they have been blocking only the most
extreme Bush judicial nominees, let us look at the facts.
Priscilla Owen won 84 percent of the vote in her last election for
the Texas Supreme Court. Bill Pryor won 58 percent in his last election
for the Alabama attorney general's position. Janice Rogers Brown won 76
percent in her last election for the California Supreme Court. And
Charles Pickering was confirmed to the Federal district court in 1998
by this body by unanimous vote. Yet he has been treated like dirt. You
wonder why people in the South are getting sick of it.
By the way, the unanimous consent vote included the support of 24 of
the Democrats currently in the Senate, 23 of whom now refuse to give
him the dignity of an up-or-down vote. Why? Because they know he would
be confirmed.
These nominees are hardly extremists as painted by the other side who
claim that is what they are talking about. Give me a break.
Let us look at this a little differently. What is more extreme?
Receiving 84 percent of the votes in Texas, the second most populous
State in the Nation, as Judge Priscilla Owen did in her last election?
They are filibustering a qualified nominee for the Fifth Circuit for
the first time in American history. That is what they are doing,
without any real arguments against her. They don't have any. They do
not have the facts on their side so they change the subject.
I think jobs are important. I will tell you, there will not be any
jobs in this country if we lose our freedoms because we don't have the
Federal courts staffed by competent and decent judges.
Mr. COLEMAN. Mr. President, will the Senator yield for a question?
Mr. HATCH. I would be happy to yield.
Mr. COLEMAN. I listened to the Senator from Louisiana. She was
talking about filibusters. I was glad to hear her say unequivocally
that it was a filibuster. We will filibuster these nominees. There is
no question.
Mr. HATCH. We are not going to let these people through.
Mr. COLEMAN. She also said, I believe the only way filibusters
survive is the truth--truth. I have only been in this body for less
than a year. I know there is history in this body. The history is not
always the greatest history when it comes to filibusters. There were
attempts on the floor of this Senate to make sure that minorities
didn't have certain rights; that minorities had poll taxes; that anti-
lynching laws were filibustered. I have a chart here that talks about
filibusters.
I ask the distinguished chairman whether under F.D.R. civil rights
was filibustered; under Truman, civil rights was filibustered; under
L.B.J. civil rights was filibustered.
Again, would it be the Senator's belief that necessary laws that were
filibustered is something to be ashamed of and they were not the truth;
filibusters were not the truth; the attempts to provide civil rights
and opportunities for Americans for good things and they were
filibustered, and filibustered was not the truth?
Mr. HATCH. Absolutely right. In every case it was Democrats who led
the filibuster. In every case, including this one. It is not the truth.
Janice Rogers Brown, 76 percent of the vote, State of California
Supreme Court; Priscilla Owen, 84 percent; William Pryor, 59 percent of
the vote.
What is more extreme, receiving 76 percent of the vote in California,
the most populous State in the Nation, as Janice Rogers Brown did in
her last election to the California Supreme Court--filibustering a
brilliant nominee to the DC Circuit, the Nation's second highest court?
If Justice Brown is so extreme and leftwing, California voters
certainly would have recalled her, but they didn't. Three-quarters of
them voted to keep her on the bench.
By the way, the late Justice Stanley Mosk on the California Supreme
Court was the California Supreme Court's well-known liberal voice for
decades. In that same election, she got 76 percent. He only got 68
percent of the vote in the last retention election.
Does anyone want to guess whether the Senate Democrats would call him
more extreme than Justice Brown in left-leaning California if he were
up for the District of Columbia Court? Of course not. He would be in
the mainstream.
Once more, extreme--receiving 59 percent of the votes in Alabama, as
Bill Pryor did in his 2002 election to the office of attorney general
of that State. They are filibustering a nominee with broad bipartisan
support across the Eleventh Circuit for a judicial emergency vacancy on
that appellate court. In each of these cases, these unprecedented
filibusters of qualified nominees to the appellate courts are
undoubtedly extreme.
There is extreme action by our colleagues on the other side. There is
nothing else you could call it. It is demeaning to this body. I don't
care how excited someone gets on the other side. Sooner or later they
run out of arguments and start talking about jobs because they have to
change the subject and hopefully get the American people off of the
importance of putting people on the Federal bench.
The Senator brings up a very important point. Every one of those
unjust filibusters was conducted by Democrats. It was the Republicans
who basically pushed through the civil rights law, along with some good
Democrats as well. I want to make sure credit is given on both sides.
The fact is, the leaders of those filibusters were Democrats. But in
this case, 168 to 4, virtually all Democrats--
[[Page 28786]]
not all. I know one or two who do not believe filibustering should be
done to the judges. But all the rest of them are leading this unjust
filibuster.
Mr. BROWNBACK. Will the distinguished chairman yield for a question?
Mr. HATCH. Yes, I would.
Mr. BROWNBACK. I want to follow up on a question by my colleague from
Minnesota. I think this is the point. He points out that you have a
couple of filibusters on major issues to change the country. The issues
that were filibustered ultimately got through, and I believe these
judges will ultimately get through when the public gets the Record and
has a chance to read it. These issues were things that were changing
the country--when you talk about the law, civil rights laws, things
that were being brought forth. Isn't that what is really being
addressed here today? We are not talking about 4 judges or 29 who are
being blocked on circuit courts. This is really about a group trying to
block a certain set of individuals who may, as some say, have deeply
held beliefs being on the Federal bench and trying to purge that set of
philosophies or thoughts from the Federal bench. Isn't this a much
bigger issue than the appointees? Those law changes were bigger than
filibustering one law. This is about the impact on all of society, on a
whole culture.
Mr. HATCH. That is right. Frankly, yes. It is as important as these
four and tomorrow's six. Next week, who knows how many nominees are
being filibustered. It is demeaning to the Senate. It is detrimental to
the country. It is detrimental to the judiciary. It is unfair to the
President. It is unfair to these qualified nominees who have been rated
so highly by the ABA--their gold standard, by the way, during the
Clinton years. If you got a qualified rating from the ABA, that is all
you needed, you should be confirmed. We did confirm 377 of them, the
second highest total number of confirmations in the history of this
country--Bill Clinton's judges. We did it because we were fair. We
didn't filibuster those judges. Every one of them got a vote. It was
377 to 0. We didn't filibuster them.
For all I have heard from the other side--I heard some of the
emotional remarks--I was the one, along with Senator Lott, who made
sure we didn't filibuster their nominees. I don't think they are in a
position to criticize me.
By the way, in the past, there were 11 Presidents' judicial nominees
confirmed versus those who were filibustered, the past 11 is when the
filibuster rule came into being in the current filibuster rule. We can
go all the way back to the beginning of this country 214 years ago. We
have never had a filibuster before these folks on the other side have
been doing it this year, 2,372 judges have been confirmed to zero
filibustered.
The history of the successful Senate filibuster, from July 4, 1789,
to March 6, 2003, there is no question about the successful or
unsuccessful because there were not any until March 6, 2003. March 2,
to the present, we have had four so far as successful filibusters. We
are apparently going to have two more tomorrow even though all six of
these folks would win an up-or-down vote in the Senate.
One of the Senators said we are going to vote on these judges
tomorrow. No, we are not going to vote on the judges. We will be voting
granting the right to vote on these judges. Since only 41 Senators are
necessary on this side to stop us from granting that right for these
judges to have an up-or-down vote, there will be six of them tomorrow.
I suppose when we go down the line there will be as many at 17.
Let me make a couple of other points that I think are important. Look
at three of the President's nominees who have been accused by the
Democrats of being out of the mainstream. They don't look to me like
outside the mainstream. They have received overwhelming support in each
of their home States. Apparently, these are not only a majority of the
Members of the Senate outside the mainstream who support them but a
vast majority of the citizens of California, Texas, and Alabama are all
outside the mainstream, too, I guess.
Democrats seem very fond of their 268-to-4 chart and believe this
number 168 of President Bush's judges who have been confirmed since he
took office will distract people from the important fact that the
Democrats have filibustered four appellate nominees, Miguel Estrada,
Priscilla Owen, William Pryor, Charles Pickering, and now Janice Rogers
Brown and Carolyn Kuhl for the first time in American history.
The point is that no raw number of confirmations means anything in
and of itself while these unprecedented filibusters continue. While the
number of filibusters as of today stands at four, Senate Democrats are
virtually certain to add others to the list, including Janice Rogers
Brown nominated to the District of Columbia Circuit and Judge Carolyn
Kuhl nominated to the Ninth Circuit. That makes a total of six.
There are other filibuster targets on the horizon, a Fourth Circuit
nominee Claude Allen and Terrence Boyle, North Carolina District Court
nominee, James Dever and Bob Conrad. They are also potential for
filibuster. These are just some of them who we have already been told
will be filibustered.
That figure is extremely misleading, all the while more vacancies in
our Federal courts continue to be classified as judicial emergencies.
Mr. SESSIONS. Mr. President, will the Senator yield for a question?
Mr. HATCH. I would be happy to yield.
Mr. SESSIONS. I notice the Senator, when this 98-percent chart was
put up the Senator didn't recognize it and neither did I. Isn't it true
that the President has nominated some 200 judges and 160 or so have
been--and the idea that the 98 percent of his nominations have been
confirmed is certainly not accurate; is it?
Mr. HATCH. The President has nominated 209 judges; 168 have been
approved. So 20 percent of his nominations have not made it.
Mr. SESSIONS. I do not know where the eight came from.
Mr. HATCH. I don't know. I knew what the distinguished Senator from
Louisiana was driving at. Again, a distortion of the facts.
Mr. SESSIONS. I ask another question: They show a chart that says 168
to 4. Is that the 4 they were filibustering last week or is that the 4
who have been held hostage? What 4 are they talking about? There are
well over 10 nominees who are being actively filibustered or obstructed
at this point.
Mr. HATCH. That is right.
Mr. SESSIONS. I do not know how that chart comes about, either.
Mr. HATCH. This chart is just the beginning of what they intend to do
to the Federal judiciary. Democrats have also implied that it is just
fine to prevent an up-or-down vote on at least these four nominees
because we blocked 60 or so of President Clinton's nominees. That is
extremely misleading. I think their number is 63.
Let me briefly break that down. First, 18 of those nominees were
withdrawn by Clinton himself--18 of them. Second, 25 of these nominees
were either nominated after the August 2000 recess, do not have home-
State support because the Clinton administration did not consult at all
with the relevant Senators, or there were confidential investigative
reasons that prevented the nominations from moving forward. At most,
there were about two Clinton nominees who the Republican Senate did not
confirm.
The numbers are even more stark. If you look at the difference
between 168 and 209, you can see that it is about the same. The numbers
are even more stark when you compare the number of nominees left
hanging at the end of the first Bush administration by Senate Democrats
with the number of Clinton nominees awaiting confirmation at the end of
the Clinton administration.
Let me refer to this chart. There were 54 judicial nominations not
confirmed at the end of Bush 1. That is when the Democrats controlled
the Senate. Fifty-four of the first President Bush's nominees were
unconfirmed at the end of 1992.
In contrast, at the end of the Clinton administration, only 41
nominees remained unconfirmed. But 9 of those were put up so late there
was no way we could have confirmed them. There were really only 32.
[[Page 28787]]
At almost the end of the Presidencies you have that or more who just
can't get through the system. Looking at that, according to the Senate
Democrats, they don't even deserve the dignity of an up-or-down vote.
Contrast this with the prior 3 Presidents' confirmations for their
first 11 circuit nominees.
In every case, less than 100 days, Senate Democrats in the 107th and
108th Congress have been the most obstructionist of the President's
judicial nominees in recent U.S. history. It is that simple.
Confirmation times for the first 11 circuit nominees, Reagan-Bush, it
was one. George Bush, look at how much that has gone up, and it is
growing. This President is not being treated fairly. Neither are his
nominees.
Furthermore, there are more Federal appellate vacancies today, 18,
during President Bush's third year in office, than there were at the
end of former President Clinton's second year in office, where there
were 15. Over half of President Bush's appeals court nominees in this
Congress have not been confirmed. There are 41 total vacancies on the
Federal district and appellate benches, 22 of which are classified as
judicial emergencies by the nonpartisan Administrative Office of U.S.
Courts. A staggering 67 percent of the vacant appeals court slots are
judicial emergencies.
There is a different scorecard that I find more significant. That is
the 377 to zero. President Clinton, with 6 years of a Republican Senate
after 1994, had 377 of his judicial nominees confirmed without a single
filibuster by Republicans, even though Republicans had to swallow hard
on a lot of them. Only President Reagan, with 382, had more of his
judges confirmed, 5 more than President Clinton. But Reagan had 6 years
of a Republican Senate to help him. Clinton only had 2 years of a
Democrat Senate. Yet he came out with almost the same number as Ronald
Reagan. He was treated fairly. Clinton is No. 2 in U.S. history, even
though his opposition controlled the Senate for 75 percent of his term.
Just to give you a sense of how unprecedented Democrat current
filibusters are, here is another scorecard we have talked about: 2,372
judges have been confirmed in the last 11 Presidents and zero were
filibustered. The 11 Presidents that precede the current President
Bush, back to President Franklin Delano Roosevelt, never had a judicial
nominee filibustered and had 2,372 nominees confirmed. So these
filibusters are empirically unprecedented.
How about this scorecard? Years since the Judiciary Act in 1789 that
we have gone without filibustering judges until this President. Since
the beginning of the year, beginning with Miguel Estrada, there have
been four, and there will no doubt be two more tomorrow. How many more?
Up 10 percent, 15, 17? Up to 10 percent as Senator Schumer suggested
last week in the Judiciary Committee? If there is some filibuster
percentage the Democrats have in mind, what is it? The majority of the
Senate and President Bush would really like to know. I think the
American people would really like to know, too.
One final word on the Democrat scorecard. Even one filibuster of a
judicial nominee is too many, because every judicial nominee who
reaches the Senate floor should be afforded the dignity of an up-or-
down vote. We owe our third branch of government no less. By way of
analogy, would it be acceptable to enforce all but four of our criminal
laws? Would it be acceptable to defend all but four of the
constitutional amendments that comprise the Bill of Rights? Of course
not. It is no more acceptable to allow up-or-down votes on all but four
and counting of the President's judicial nominees. Vote them up or vote
them down. But just vote. That is all we are asking.
The Democrats have a right to consent. They have a right to advise.
If they don't want to give their consent, then they have a right to
vote against any of these nominees. That I will find no fault with. I
might disagree, but they have a right to do that. What they don't have
a right to do is to subvert the Constitution for the first time in
history and allow 41 Senators to prevent an up-or-down vote of these
judicial nominees.
The distinguished Senator from Minnesota, with his chart on the
terribly wrong filibusters, brought out a very good point. I don't want
to compare rankings or anything, but this one is just as important as
the others because without a good Federal judiciary, our civil rights
would not be enforced. Explain the chart one more time, because I think
people need to hear it. But in all four of those, those filibusters
were conducted by Democrats, and every one of them was wrong,
especially this 168 to 4 we are going through right now, but especially
the other three as well.
Mr. COLEMAN. Will the Senator yield for a question?
Mr. HATCH. I am happy to yield.
Mr. COLEMAN. Again, I listened to the words of my friend from
Louisiana, where she made the comment that the only way a filibuster
survives is if it is the truth.
I was reflecting on the history of filibusters. I read about it when
I was a young man. Certainly preceding my youth, going back to the
times of Harry Truman and FDR, unfortunately, there is a terrible
history in this body of opposing efforts to provide civil rights
opportunities, opposing efforts to ensure that there were antilynching
statutes, opposing efforts to get rid of things like the poll tax. This
is a sad part of the history of this body. I ask the distinguished
chairman, who has a much better sense of history than I, is it true the
tool that was used to oppose those efforts, oppose good things, the
tool was the filibuster, and the filibuster did not represent the
truth? Would that be a fair statement?
Mr. HATCH. The Senator is absolutely correct. Here we have a
situation where we have a terrific African-American justice on the
California Supreme Court who won 76 percent of the vote, who came from
nowhere to somewhere, who fought her way throughout life to be what she
is, who has ruled in favor of plaintiffs, civil rights claimants, the
poor, the disadvantaged throughout her career, who is being treated in
this shabby fashion with a filibuster.
Mr. COLEMAN. Would it be the truth in regard to these nominees, in
regard to Owens and Kuhl and Pickering and Estrada, who we haven't
talked about, that in each and every case the measures of their
competence, be it the bar association, the gold standard my colleagues
across the aisle have talked about for so long, be it the
recommendations of their colleagues, other judges with whom they have
worked, be it the recommendations of the voters when they put
themselves up for a vote--in each and every case, they received the
highest recommendation; that is the truth, is it not?
Mr. HATCH. That is right. And let me just say this: Filibusters are
not the only means the Democrats are using to obstruct. During the 3
years of the Bush administration, the Senate has taken 108 rollcall
votes on judicial nominees at Democrats' insistence. Eighty-seven
percent of these votes have been unanimous, 87 percent, calling into
question why we needed these rollcall votes at all. Contrast that to 8
years of the Clinton administration during which the Senate took only
46 rollcall votes out of 377 judges, only 39 percent of which were
unanimous. Couldn't we have been passing appropriations bills or
creating jobs instead of wasting the time on unanimous votes?
Look at this chart. Clinton, 18 votes, 2.25 average votes per year,
486 minutes were consumed, 8.1 hours, 61 average minutes per year;
Bush, 104 votes, 34.7 average votes, these are unanimous rollcall
votes, 34.7 average votes per year, 2,808 minutes were consumed, 46.8
hours, 939 average minutes per year. In this body that is delay,
obstruction, complete shutdown of the body while we have these votes
everybody knows will be unanimous. It is just another illustration of
how far they have gone to obstruct on these judges.
Finally, who is wasting time? Unanimous rollcall votes on judges,
compare Clinton; we didn't require rollcall votes on unanimously to-be-
approved judges. Look what they have done to the Bush administration.
This President is being treated very unfairly.
[[Page 28788]]
When you hear them talking about jobs, look, I am as interested in
jobs, and so is every other Republican, as they are. The only reason
jobs is coming up is because they know they can't handle the criticisms
that are coming their way for the way they are treating these judicial
nominees. They just can't. They can distort the facts. They can distort
the statistics. They can distort the record. But they really can't
justify what they are doing.
Again, go back to your chart, the distinguished Senator from
Minnesota. Every one of those unjust filibusters that took away rights
from people and kept people enslaved to a large degree, every one was
led by Democrats.
The PRESIDING OFFICER. The time of the majority has expired.
The Senator from New York.
Mr. SCHUMER. Mr. President, I yield myself 15 minutes and the
remaining 15 minutes to my colleague from New Jersey.
I have enjoyed these debates. I said at the very beginning these
debates would be good for our side. They have proven to be. One little
chart here, this chart seems to be under all of my colleagues' skin
because they are debating it and coming with up with their own numbers,
et cetera. But let me tell you, this one chart has won this debate. You
can come up with as many others as you want, and tonight what have we
debated, why 168 to 4 is not true? That is what the other side has
said.
I said at the beginning of this debate this would help us. Because
this one chart was equal to 30 hours of palaver. To my good friend from
Utah, he is a good man. He is my friend. But do you know what he just
said? Rollcall votes are a form of obstructionism. I would just like my
colleagues to have recalled the words of my good friend from Utah:
Rollcall votes are obstructionist.
My goodness. What are we called on to do here if not vote. And
letting people know how you voted, isn't that the whole mark of
democracy?
I realize my colleagues on the other side of the aisle are
frustrated, and so they have had to come up with all kinds of sophistic
arguments. But this one tops the cake. The fact Democrats have asked
for rollcall votes on judges is a means of obstructing. Maybe we should
just, when the President nominates somebody, not have a hearing and not
have asked questions and not have any votes and just let the President
appoint all the judges. Next we will be hearing from my colleagues on
the other side of the aisle that is what the Founding Fathers really
wanted.
Again, to all of those who are listening, I hope there are a few
left, 168 to 4. That fact is immutable, unchangeable, irrefutable. The
reason it has such resonance is because the other side fails to mention
it. Whether it be our colleagues when they speak, whether it be the
rightwing radio shows when they say we are obstructing all of the
President's judges or most of the President's judges, whether it be the
editorial pages that try to kneecap us, 168 to 4, 168 to 4, 168 to 4.
Don't forget it. There is no judiciary in crisis. There is no
obstructionism.
There are some judges--whether they be Black, Hispanic, women,
Catholic, Jewish, Muslim, Baptist, southern, northern, eastern,
western--who are so far out of the mainstream that they should not be
on the bench, and we are upholding the Constitution by doing that.
Now the arguments of my good friend from Minnesota, these charts, are
getting to the point of ridiculous. They are what logicians and lawyers
would call ``outcome determinative.'' We want an outcome so we put
together numbers. Successful filibusters. I ask my colleagues, if a
filibuster is against the Constitution, why is an unsuccessful anymore
unconstitutional than a successful filibuster? Why is a filibuster of
an executive branch nominee any different than a filibuster of a
judicial nominee?
Do you know what the other side is saying? We are just going to take
judges in green shoes and give you the numbers on those and not judges
in pink shoes or purple shoes.
They are differences that don't make a difference. What we are
talking about here, again very simply, is how many judges have come
before this Chamber and how many have been approved. One hundred sixty-
eight to four. No denying it. No refuting it. No getting around it. The
truth hurts because the American people know--30 hours, I guess now it
is 39 hours, you can debate this for 390 hours, 3,900 hours, 39,000
hours, and all your words are not equal to 168 to 4.
For those who watched this debate, this has been elucidating, because
what the hard right and their allies tried to spread throughout America
is, we were holding up all the judges, most of the judges, a judiciary
in crisis, a huge number of vacancies. My colleagues, do you know what
answers all of that hyperbolic falsity? One hundred sixty-eight to
four.
We are going to keep that chart up. I realized when I first put the
chart up, one of my colleagues objected. I understand it gets under
your skin. I understand it pulls the rug out from the argument.
Now, do you want to talk about judges rejected? Do you want to talk
about judges who didn't get a majority vote? Then talk about them. Here
we have two charts. Sixty-three of President Clinton's judges didn't
get a majority vote. It doesn't matter whether they didn't get it by
filibuster or by not bringing them up for any vote. Again, that is like
green shoes versus pink shoes. They are all judges.
Here are some names. Did every one of these people twist in the wind?
You bet. Some longer, some shorter. Were some withdrawn by the
President? Of course. Some withdrew their names themselves. My good
friend from Utah, who I dearly love said: Well, some of the names were
withdrawn by President Clinton. Does that mean we can erase the name of
Miguel Estrada from this debate? He was withdrawn. That is not going to
work. He was blocked. So were the others.
One final thing I would say, because I do want to spend about half my
time now, or less than half, talking about one of the nominees. The
Senator from Louisiana was correct. We are opposing judges because of
their views, not their ratings by the bar association, which talks
about their education and legal training, and not their sex, ethnicity,
or religion.
The other side seems to think that should be a determination of who
becomes a judge. Shame on the women because they won't just rubberstamp
any woman. Shame on the Blacks or on the rest of us because we won't
rubberstamp every Black, shame on everybody, me. They called me because
I didn't agree with Miguel Estrada, but should I have let him go
because he was Hispanic? That is un-American. It is not right. It is
un-American. It is below the belt.
My good friend from Louisiana--I have never heard her more eloquent--
had every right to be angry and upset. To say the women should be
ashamed of themselves because they are not voting for another woman.
What do you think the American people would think if they thought that
ought to be our norm? Every Baptist should vote for every Baptist and
every Catholic should vote for every Catholic and every Jew should vote
for every Jew. What kind of logic is that?
Let's get back to the reality here. The reality is a handful of these
judges are way out of the mainstream, at least in the opinion of a good
number of us. Enough to block them. The one that I would like to talk
about for the little bit of time I have left is Justice Brown.
I don't agree with her views on affirmative action, but that is not
dispositive to me in this case. What is dispositive to me is that we
have not seen--I have not seen, in the 18 years I have been here, a
judge further out of the mainstream than Justice Brown. I want to read
to you what she said in a case called San Remo Hotel v. City and County
of San Francisco:
Turning a democracy into a kleptocracy does not enhance the
stature of the thieves, it only diminishes the legitimacy of
government.
What does she mean by that? She was against zoning laws. Do most
people think zoning laws are a kleptocracy in 2003? Maybe that went on
in 1900, when
[[Page 28789]]
we could have factories built next to homes and when workers' lungs
would be polluted. But no more.
Here is what else she said in a speech to the Federalist Society:
Where government moves in community retreats, civil society
disintegrates, and our ability to control our own destiny
atrophies. The result is [this is when government is around]
families under siege, war in the streets, unapologetic
expropriation of property, the precipitous decline of rule of
law, the rapid rise of corruption, the loss of civility, and
the triumph of deceit. The result [this is what government
brings] is a debased, debauched culture which finds moral
depravity entertaining and virtue contemptible.
Many colleagues on the other side of the aisle believe in limited
government. That is legitimate. I, for one, feel in certain areas
Government goes too far. But this view? That is kind of disturbing,
particularly for a judge on the DC Court of Appeals, which has more to
do with Government than any other court in the land, with the exception
of the Supreme Court. Please, you can find conservatives, you can find
people who are against affirmative action who don't express these
views; but these views are circa 1850, and even then would not be
supported by most Americans. We are supposed to support a judge like
that? Do you know what. I would guess if you asked my 51 colleagues on
the other side of the aisle to nominate someone for the DC Court of
Appeals and the record of Justice Brown were brought before them, they
never would have nominated her.
Why is she here today? That is the question we ask. Is this to be
deliberately provocative? Is it that the President doesn't believe he
should nominate African Americans who are within the mainstream? I
don't think so. He has nominated a few. I don't get it. The views of
Justice Brown go so beyond what there is in a consensus in America,
liberals and conservatives, that it is appalling to me she would be
nominated for the DC Court of Appeals. There is only one reason: The
extremists on the hard right are demanding something of the President.
He is doing a prescription drug bill. He is talking to the United
Nations. He is not demanding Roe v. Wade be repealed at this very
moment. By nominating somebody like Justice Brown, maybe he appeases
them, even though he may know she will not be approved. I don't know.
That is just a theory.
But I will tell you this. If Justice Brown were White, or Asian, or
Hispanic, a man, or if she were Protestant, Catholic, or Jewish, or
Muslim, or Hindu, I would oppose her nomination. If Justice Brown got
100 percent of the vote in California, I would oppose Justice Brown.
Justice Brown does not belong on the DC Court of Appeals where over
decades, over centuries, beliefs among Democrats, Republicans,
liberals, conservatives, 99 percent of Americans about what Government
should and could do would be totally rejected. Justice Brown will be
defeated tomorrow, I hope and I believe. It will not be because of
outside groups and it will not be because of any of the women not
standing up for women. It will simply be because her views are so
ideologically out of the mainstream that she does not belong on the DC
Court of Appeals. It is that simple.
When we knock out Justice Brown, I believe the Founding Fathers will
be smiling upon us. One of them might say to the other: That is why we
gave the Senate some power to block the President's nominees. This is
the kind of nominee who should be knocked out. This is the kind of role
the Senate, as the cooling saucer, should play, and whether it be by
filibuster or by not bringing her up for a vote, or by defeating her in
committee, which are the various ways the Senate has to be the cooling
saucer, none of them--51-49, none of them simple majority, the Senate
will be fulfilling its hallowed, ancient, and continuing role as a
check on abuse of power of the President.
The PRESIDING OFFICER. The Senator from New Jersey is recognized.
Mr. CORZINE. Mr. President, I thank the senior Senator from New York
for making sure the fundamental issue is understood by the American
public. The fact is, 172 nominations have come to the floor; 168 have
been approved. Four have not been sustained under the rules of cloture.
And 98 percent--you can talk about it any way you want. The numbers fit
the commonsense judgment of the American people that something positive
is going on here with regard to how we are dealing with the
confirmation of judges. I go back to the practical reality that 95
percent of the judicial positions in the Federal courts, district and
circuit and Supreme Court, are filled; 95 percent of them are filled.
In 2000, at the end of the Clinton administration, only 75 percent of
those positions were filled.
This is the lowest vacancy rate in 13 years. The reason is very
simple--168 to 4. It is not a complicated issue. It is not a
complicated issue. Then you have to look at the four. The Senator from
New York read this statement about the judge we will be looking at
tomorrow, talking about ``when government advances, freedom is
imperiled.'' I don't think that is what the American people would
think--those people who believe in Social Security, those people who
might think we ought to have a prescription drug benefit for all
Americans, people who believe we ought to pull together an army to
protect the American people from terrorism, the folks who think we
ought to build highways, bridges, schools, and other things, which are
generally done by the public. When the government advances--what is
this? I want to say this right. ``When the government advances, freedom
is imperiled.'' There is one out of the four. One wonders whether that
is the mainstream of American thought.
A couple of judges in this four have serious issues some people think
approach or have gone over the line of ethical violations. I have heard
almost everybody say at some level they believe integrity is an issue.
There are serious concerns about actions of several of the people who
are involved--aside from their views. I will not even mention the
judge. One judge said, in talking about the role of Congress:
Congress, for example, should not be in the business of public
education, nor in the control of street crime.
That may be a view that is mainstream for some in this body, but I
have a hard time understanding where many of us believe the role of
Congress would prohibit us from being involved in the business of
public education or the control of street crime. It doesn't sound to me
like a mainstream thought. That is one of the judges.
Then another judge we will be considering tomorrow talked about
privacy rights, threw out a case where someone was performing an
operation on a patient, and it happened to be a female. The doctor had
a male drug salesman attend without asking for that right of the
individual. Then the judge said that wasn't a violation of privacy
rights. That kind of thing--I am not a lawyer and I don't know all the
details of this precedent, but it is kind of like 168 to 4. You would
think if somebody is undergoing surgery and somebody asks you a
question about who the person was who was observing you going through
surgery, if you had a drug salesman overseeing that, you might think
that was an invasion of privacy. That is sort of common sense to me.
I think there are reasons to debate these four and maybe the two, if
we are going to get people who are not necessarily following precedent,
settled law--I hear a lot of arguments about activism on the court. It
sounds to me like there is an active view that is different than
settled law with regard to privacy. There is a view that is outside
settled law and precedent with regard to the role of Government, with
regard to schools and crime in our streets.
I think there is a reason to question some of these four. Therefore,
it is not inappropriate, when you think people are going to be out of
the mainstream and may have ethical issues that are legitimate
questions that people raise, that somebody ought to exercise that
judgment here on the floor of the Senate when we are asked to vote on
it. From my perspective, that is what guides my vote and one of the
reasons I have helped make this 168 to 4 happen.
By the way, I am proud of the 168 and while we now have the highest
percentage of occupancy of judicial positions
[[Page 28790]]
in the last 13 years--that looks to me like a pretty good track record.
In most walks of life, it would be a pretty reasonable statement of
cooperation and effort to make things happen. That is certainly, again,
the perspective I want to start with, 168 to 4, filling up the
judiciary.
Then we heard the argument raised that somehow we are trying to
change the subject. This is changing the subject. We are talking about
four folks, while we have 9 million people unemployed, 2.5 million
manufacturing jobs lost in America, and we have the rampaging trade
deficit, budget deficit, a rise in the poverty rate, declining insured
and health insurance coverage in America, no prescription drug benefit
for seniors, no passage of the Transportation bill, no consideration of
a minimum wage increase for 7 years. We cannot get it to the floor.
We don't want to talk about four judges when we have a war going on
and all these economic issues before the country. They say we are
changing the subject? I think we ought to change the subject. I would
imagine the people watching this debate are changing the channel
because they want to know what the heck is going on in the fundamental
parts of their lives, their jobs, what their kids are doing in Iraq,
what is going on with regard to jobs that are going to be created for
the rest of their families. They want to know what is happening to
their health insurance. They would like to know whether school class
size is going to be 18 or 26. Those are things that matter, and we are
debating four judges who, as I read some of the most extreme comments
here--again, we are debating whether it is appropriate to have a
filibuster about somebody who says ``where government advances''--it
says ``advances relentlessly''--``freedom is imperiled.''
We are debating that, as opposed to worrying about whether 9 million
people can get extended unemployment benefits, whether we can get a
jobs bill to build highways and bridges and other things in this
country, whether we can have an honest debate over intelligence
operations in this country. It strikes me we have our priorities out of
place. It just makes no sense in the world we are living in that we are
debating 4 judges out of 172 and they have views like ``where
government advances, freedom is imperiled.'' I don't think the American
people--anyone you sat down around the kitchen table with and you
talked about this issue, with this language, and this perspective on
judicial philosophy--would say I would rather you be focusing your time
on the floor of the Senate at 5 minutes to 12, 29 hours and 55 minutes
into a debate, saying it is more important that we are talking about
that judge than we are talking about what is happening with our men and
women in Iraq, or whether we have appropriate investment in our
intelligence operations that protect them, or the 9 million people are
getting the proper attention on their unemployment benefits. I don't
get it. There is no comparison of the importance. It is not changing
the subject. It is getting to the subject the American people want us
to do. At least that is the way it is in New Jersey. I have not had one
single person ask me about a judge, until today when we got a call-
athon calling in--the first time we got a call with regard to whether
the filibuster was holding up these rights. I had my people read back
this: ``When government advances, freedom is imperiled.'' About half of
the people said I don't know whether that is somebody I want to stand
with because I don't know that that is a position that really fits with
the American Constitution, in my view, of what the American democracy
is about. It is very hard for me to understand where we have our
priorities.
Lastly, I want to bring up a point that filibusters weren't only used
to stand in the way of civil rights acts by Democrats back in the 1930s
or 1940s. On February 3, 1991, a filibuster was executed on this floor
on the Family and Medical Leave Act. There were no Democrats who voted
for that cloture. Let's see. Handgun violence prevention on November
19, 1993. I think that is the Brady bill. Let's see. Goals 2000, to
educate America on March 24. I have a list of about--something that
approaches about 50--maybe a little more than that--60 filibusters that
were executed, including a couple with regard to judges, where judges
withdrew their nominations that were executed by the other side of the
aisle.
Filibusters have been used. No one was calling them unconstitutional
when you were trying to deal with family and medical leave, or nobody
was calling them unconstitutional when we were talking about the Hatch
Act. Funny how that comes up. No one was calling them unconstitutional
when we were dealing with judges at an earlier time when they withdrew
their names. I want to make sure we keep the right perspective here
because we are making all kinds of statements. Frankly, I think all of
it is irrelevant. It makes no sense when we should be talking about the
9 million Americans who don't have jobs and we are talking about the 2
million people who have lost health insurance in the last 2\1/2\ years,
when we are talking about the 1.7 million people who slipped into
poverty in the last 2\1/2\ years, when we have gone from a $250 billion
budget surplus to a $375 billion budget deficit, a $550 billion
negative cashflow swing in this country because we are not handling our
finances right, and we have a war going on and the generals are saying
we are having unrealistic views about it back here.
I don't know, maybe we should not change the subject. We should just
talk about these four judges. I wonder if the Senator thinks that is
the right prioritization. It strikes me it is out of touch with
America, and we are now 29 hours and 59 minutes talking about 4 judges.
The Senator from New York is right; 168 to 4 actually expresses what
the debate about judges is all about. But one could think we ought to
be talking about the 9 million Americans or, by the way, the 130,000
troops we have on the ground who are in harm's way. It strikes me, the
discussion we have had for these 30 hours is missing a very major point
to the American people.
I yield the floor.
The PRESIDING OFFICER (Mr. Brownback). Is there further debate? The
Senator from South Carolina.
Mr. GRAHAM of South Carolina. Mr. President, we got to the bewitching
hour. It is midnight. I am going to enjoy the evening the best I can
because I have a chance to engage with two of my colleagues. I don't
know how long it will last, but I really enjoy the give and take of
dealing with Senator Schumer. It may come to surprise people, we
actually have been working on a couple of things. We had some successes
in the past and we will have some in the future. I believe with a great
deal of certainty, if the shoe were on the other foot, if my party were
engaged in filibustering nominees of a Democratic President, that
Senator Schumer would be right out here fighting for his cause. Senator
Corzine and I are getting to know each other. We will have all night to
get to know each other. I have enjoyed working with him, also.
This is unusual for the Senate. I don't know if this has ever been
done before. I hope it is not necessary to do again. But here we are.
We are here at midnight. We are talking about whether or not there is a
filibuster. Has there ever been one in the past? Who shot John? Who has
been the meanest and the baddest in the past?
I guess what I am trying to focus on for the next few minutes is,
What about the future? I guess that is my biggest concern. We have had
all kinds of charts about how nominees were treated in the past. I have
been here a year. Since I have been here, it has been like pulling
teeth to get certain people on the floor for a vote. But that is OK.
The process is what it is. The Constitution says what it says and we
will all have our chance to express what we think is right versus what
we think is wrong.
This is a big deal. It is a big deal for the Senate. There are a lot
of other issues that need to be talked about. Sure, Iraq is certainly
one of them, people out there in harm's way. We have 9 million people
unemployed. I am the first to admit there are a lot of
[[Page 28791]]
issues in this country that need to be talked about and addressed.
But this is one of them. One of the reasons Senator Corzine has not
had too many calls is Americans are able to walk around with a pretty
secure feeling that the system works. I think it is a blessing we are
not nervous every day about whether or not you can go to court because
we expect, if we have a problem, a legal problem, there will be a place
to go to get it resolved. That is just part of our mindset. We don't
worry a whole lot about that and I think that is great.
But, really, that is a luxury. There are a lot of countries in this
world where there is no venue to go to settle disputes. You have to go
by force or violence, or you have nobody to help you out when you are
down.
We have a pretty good legal system. God knows it needs to be fixed in
some respects, but the idea of a rule of law nation caring about how
you appoint judges is a big deal. Imagine if you had a system where it
would be almost impossible to confirm somebody who had an actual belief
or opinion. What you would find is there would be a lot of vacancies
and there would be a backlog of cases. The things we assumed were
always there for us would no longer be there. So this really is a big
deal.
If you believe in a system where the weak can hold the strong
accountable, then you ought to be listening to this debate because only
in a rule of law nation, a courtroom, is that possible, because in a
political environment the strong always win over the weak. In a
confrontation of resources, the strong always win over the weak.
But America is a little bit different. You can hold anybody
accountable. You can have your day in court. Even the President of the
United States can be sued by an average, everyday person, if the
President of the United States is claimed to have violated their
rights.
That is a big deal. That is something worth fighting for. Some people
believe that is worth dying for.
Now, that is very much at risk. The way we do business with our legal
system is very much at risk. Because you can put up all the charts you
want to put up and you can play all the number games you want to play,
but the truth is, and I challenge someone to prove me wrong, that this
is the first time in the history of our Nation that nominees have come
out of the Judiciary Committee with a majority vote and have been
blocked by a filibuster from being voted up or down. This is
unprecedented. This is dangerous. We find ourselves in political and
constitutional quicksand.
Of all the conflicts we have had in this Nation, of all the fights
between the Republican and Democratic Parties, of all the likes and
dislikes that have happened politically, no one before has chosen to go
down this road. The road our friends on the other side have chosen to
go down really is the road to oblivion, in terms of trying to get good
men and women to be willing to serve their country as a judge.
My friend and colleague, Senator Coleman from Minnesota, is new to
the Senate like myself. The strength of this Nation is people with
accents have a chance to get ahead in life. I am the first person in my
family to go to college. My dad was a World War II veteran and came out
of the war and started his own business and married my mom and neither
one of them finished high school. But they impressed upon me and my
sister the value of an education. Because of the good, sound, strong
public school system of which we partook, I was able to do things I
never dreamed of doing. Now I find myself in the Senate.
I am a lawyer. If you can't take a joke, you should not be a lawyer,
because there is a lot of lawyer jokes out there. But I have always
enjoyed the role of being an attorney because I like representing
people and I like representing causes. The law to me was not just a
job; it was a passion.
The ultimate ascendancy for somebody in the law is to become a judge.
You will make less money but you will get authority and respect, and
you will have a chance to mold the law. To many people that is much
more important than money.
To me it is a shame, if you are willing to apply for the job, that
you have to be treated so poorly as these four people we are talking
about have been treated. But make no mistake about it, they are not
four people; there are going to be at least a dozen in the next couple
of weeks. They are being treated differently than anybody in the
history of the Nation. They are having some very hard things said about
them and all they want to do, and all they are willing to do, is to
serve their country in the Federal judiciary.
Our friends on the other side have pulled out a chart, 168 to 4, with
an illustration: 168 apples represented those people who were allowed
to go forward. The Senator who had the chart said, I like apples, so I
picked apples to represent the 168. And the four, well they were called
lemons. I thought that was pretty cute at the time. But the more I
thought about it, that is really not fair. If you don't like these
people, if you disagree with their philosophy, if you disagree with
their view of the world, you have a chance to express it. You have a
chance to vote them up or vote them down. But I don't think it helps
anybody to label them as lemons. We are going to have a long talk about
the people they have labeled as lemons. Between now and 9 o'clock in
the morning, we are going to have a long talk, eventually, about the
individual nominees.
You can decide whether or not you will vote for them. You can kind of
be a Senator for a day, if you would like. That would be an exercise
that would be interesting for those who want to watch. If you don't
like them, you can vote against them in the Senate. But I think you
have an obligation to vote them up or down.
As I talk about these individuals I will tell you why I am willing to
vote yes. I don't expect anyone on the other side, or my side, to vote
because of my reasoning. I do expect the people at home, in South
Carolina, to be able to judge me and hold me accountable for my
reasoning. I will tell you, with a deep sense of pride, that I think
the four people who have been called lemons are very fine Americans and
deserve more respect than they have gotten.
The thing I like most about serving with my colleague, Senator
Coleman from Minnesota, is that his race was one of the most watched
and unusual races in the Nation. It was full of triumph and tragedy.
His opponent, Senator Wellstone, who I knew fairly well and certainly
respected for his strong beliefs, tragically died right before the
election. Senator Coleman ran against former Vice President Mondale.
The thing that impressed me most about his race, as I watched the
debate, was the sincerity he had when it came time to present the
reason he wanted to be a Senator for the people of Minnesota, along the
lines of: I would like to go to Washington and do something. I watch
you from afar and you seem to be fussing and fighting about everything.
People are hurting out here and I would like to be a Senator who could
go to Washington and work across the aisle and actually do something.
Tonight, at almost quarter after midnight, I would argue to the
people who may be listening in Minnesota that your Senator is doing
something. It is not what he envisioned. It is not what he hoped for.
It is not what I hoped for. I hoped to be home right now. And we passed
some legislation long overdue. But I argue the Senator from Minnesota
is doing something that needs to be done; that is, standing up for his
beliefs and his view of the Constitution.
I am confident that over time this exercise will be judged well in
history. When there is an accounting in this period of the Senate, it
will be one of the darker periods of the Senate and my hope is it will
be a period that will not have lasted long. Because the future is why I
am here. The future is why I and Senator Coleman ran. We have a lot of
problems with Social Security and Medicare and a budget and a war to
fight and many obstacles facing this country. We are dying to get on
with it. We really do want to help win this war on terrorism and make
the economy better and stronger and fix the retirement problem the
Nation faces.
[[Page 28792]]
We didn't ask for this. But it came our way. It happened on our
watch. I think this may be one of the most important things we will
ever do as Senators.
With that, I will yield to my good friend, Senator Coleman from
Minnesota, and let him know in my opinion that he is doing something
that is very important to the country by participating in this debate.
The PRESIDING OFFICER. The Senator from Minnesota is recognized.
Mr. COLEMAN. Mr. President, first, I thank my friend and colleague,
the Senator from South Carolina. We came in in the same class. He
served in the Congress. He is more experienced and understands the ways
of Washington. But he understands the ways of South Carolina. He is
about as real as he can be. People think of Washington as a phony town.
I look at my colleague, my friend from South Carolina, and he is very
real. That is a good thing.
In the discussion we have had tonight--now past 30 hours--I
appreciate his effort to humanize the four individuals whose lives have
been, in some ways, put on hold, their future put on hold, certainly by
the actions of this body. No, they are not lemons and they are not
simply numbers. They are people. They are moms, dads, fathers,
daughters, sons. They are folks who have the capacity to have an
incredible influence on our lives.
I was a former prosecutor. The Senator from South Carolina had that
experience of doing some prosecution in his time. I can tell you,
courts have an impact on your lives, on your family's lives in many
ways. So I appreciate it, if as we move now into the morning hours,
there will be votes coming up this morning--not tomorrow morning, this
morning--to put a human touch on what this is about.
I think there was a mood or a feeling in the country at the time that
we got elected that really did focus on getting something done. I was
running for office and disaster assistance bills were being debated in
the Congress. The House was passing bills but the Senate was not. I can
tell you my constituents were unhappy. They were concerned.
Last year there was a debate over a prescription drug benefit. I was
running for office. There were still seniors forced to make the choice
between prescription drugs and food. That is a bad thing. That is not a
good thing. Hopefully, this year we are close and before we get out of
here, assuming folks come together, we can get something done.
I think that was the tone. That was the message. By the way, I hope,
certainly the message I heard--it should not be a partisan thing. There
are a lot of things I heard in the debate tonight from my colleagues on
the other side. I don't disagree with all of it. My colleague from
Louisiana made a comment that we can't be divisive. She is right. I can
tell you we are not trying to be divisive. Being divisive is when you
do something that is unprecedented, and that is really what we are
talking about today.
The fact is, one of the things we did kind of settle tonight is the
filibuster. There was a discussion all along about whether they are
really filibustering nominees, a lot of discussion about filibusters.
First, I say again I was disappointed what I heard tonight. If
anything, it was the comment of my colleague from Louisiana saying
filibuster was the successfulness of the truth. No. With filibusters we
have stopped some very good legislation. We have used the filibuster in
a very terrible way in this body in its history. We have filibustered
to try to prevent antilynching laws coming into effect. We have
filibustered civil rights legislation. We have filibustered against the
poll tax. We filibustered about a lot of things and not often good. A
filibuster is often to be ashamed of and this one is to be ashamed of.
My colleague asked what is the difference between filibustering
legislation and judges? The difference is this little book. It is
called the Constitution. That is the difference. The Constitution laid
out very clearly when the President has certain powers. The President,
by the way, doesn't get elected unanimously. He gets elected following
the laws. Not everyone votes for him but he then becomes the President.
Once you become the President, you have certain powers and the Senate
has certain powers and responsibilities. So it is a matter of seeing
there is a difference between what one can do legislatively, using
filibusters, and what the Constitution provides.
There is a reason why, in the history of this country of 214 years,
up until this Congress, this body has never used a filibuster to stop
circuit court nominees once they got through committee. That is the
reality.
You can put all the charts up and all the statistics; that is the
reality. If folks are listening, they have to be thinking there has to
be some reason in over 214 years why folks have not done what is being
done today. In part, it is because of the consequences. If we do that,
what we do is we let a minority--that is what we have here because in
each of these cases the judge is being filibustered, a majority of the
Senators, Democrats joining with Republicans--yes, they are going to
vote for them. We know that. That is why the minority is filibustering,
stopping the vote.
So what you have here is a situation where the minority stands up and
says: We don't support a person. Maybe it is because of a particular
issue. Maybe the issue of abortion comes up again and again, which, by
the way--and we will have plenty of time to talk about this--what is so
interesting if you look at the record, the nominees who have been
criticized or attacked because of their position on abortion, to a
person have said that they would follow the law, that they would put
personal beliefs aside.
You choose a judge and what you ask of them over here is can you put
your personal beliefs aside and make a judgment. That is what these
folks have all said. Because they have those beliefs, the minority
comes together and blocks them. What is the outcome?
This, I know, frustrates my friend from South Carolina and it
frustrates me. We all look into the future. I campaigned and I wanted
to be a charter member of the ``Let's Get It Done Coalition.'' Let us
figure out a way to solve problems.
The Senator from New Jersey is right. We have to get an energy bill
through. I hope we get it through. We have to do something about
prescription drugs. We have to do something about jobs, and something
about medical malpractice. We should do something about class action.
Those efforts are not going to be allowed to come to a vote. Those are
the jobs bills. Let us get it done. Let us put the bickering and
partisan stuff aside and figure out a way to get it done.
The problem we have as we look to the future is who is going to get
confirmed. If anybody with deeply held views is going to be
filibustered by one side, now the Democrats are in the minority, there
may come a point in my time where my friend from South Carolina is
sitting in the minority and a Democrat President may propose a judge,
and I will say to the body that I intend to use the same standard with
a Democrat President. Are judges qualified? Will they commit to uphold
the Constitution? I will not support folks who will use the
Constitution to create laws of their own beliefs. But if they agree to
follow the Constitution and are qualified, then you support them. The
President has that authority.
If you look at the history of the judiciary, it is kind of a balance.
There have been Democrat Presidents and Republican Presidents going
back over the last 12 years--8 years of Bill Clinton, 8 years of
Reagan, 4 years of Bush, Jimmy Carter. There are about almost equal
numbers of Democrats and the Republicans on the judiciary. It is
balanced. What is happening here today is we are changing that balance.
When we allow minorities to take hold, we change that balance. That is
what happens.
In the future, you are going to get folks with strongly held beliefs
and there may be a Ruth Bader Ginsburg, a liberal who went to my high
school, James Madison in Brooklyn, NY. I disagree with some of her
reasoning on decisions. She is a good judge. She is
[[Page 28793]]
bright. She exercises her judgment. I don't think in this environment
if the Democrats are in charge that Ruth Bader Ginsburg would be
confirmed. That would be sad for America. The same would be true with
Scalia and a number of members of the Court.
What are you going to get? The best and the brightest are going to be
cast aside because they may have a strongly held belief, which is what
you see in some of the nominees here because a minority says we don't
want them to come forward. A minority then filibusters in a way again
in contradiction to article II of the Constitution. That is why we are
raising this. That is what we are talking about and doing something
that has not been done in history.
It is interesting. In terms of the Constitution, it is very clear.
The President has certain powers--unlike, by the way, in European
countries and in contrast to monarchs who would simply make treaties.
Leaders in Europe could make treaties. Our folks said, no. The
President's power of making treaties is going to be contingent upon
two-thirds of the Senate present and concurring. That is in the
Constitution. We wanted to limit the powers of the President. When it
came to appointment of judges, it is not two-thirds. Two-thirds is only
for treaties. Very clearly there is a delineation.
For some reason to date, 214 years into our country's existence, the
standard has been changing. That is an important thing. Jobs are
important. As a former mayor, I have said 1,000 times the best welfare
program is a job; the best housing program is a job; the best health
care comes with jobs. Jobs are important. I understand that. What is
interesting is my colleagues on the other side of the aisle are crying
economic--by the way, never once mentioning 9/11. If you talk about
what has happened to this economy, you have to talk about the impact of
9/11. You have got to talk about the recession that occurred before the
President came into office. You have to talk about the impact of
WorldCom and the impact of Enron.
The reality is now because of the policies, many of which this
Congress passed, policies which cut taxes, which put money in the
pockets of moms and dads which give businesses the incentives to
invest, the economy is starting to move forward. The last numbers
report 7.2 percent gross domestic product growth, and over 200,000 more
jobs in the last couple of months. The number is revised upward.
Business investment is moving forward, in part in large measure because
of the tax cuts. Yet the other side of the aisle says we want to talk
about jobs. I am looking forward to that debate. But it is all
important. The judiciary is important. What we do with judges is
important. In order for businesses to operate and for families to
operate, you have to have a judiciary that works.
What is fascinating here--and I love that chart of 168 to 4. I love
seeing that chart. When the other side puts up a chart showing 168 to
4, that is their argument. They keep coming back with the underlying
supposition of, It is false. Their argument doesn't carry weight. Let
us talk about 168 to 4. The real discussion here and what is going on
here is the President of the United States has the power to appoint
district court judges.
A little lesson, for those listening, a first impression in the
Federal system: What happens when the district court judge issues an
opinion, there is a review process. It is reviewed by the circuit
courts. The courts of appeal level, by the way, is right below the
Supreme Court, which is one of the things I think comes into play here.
When you pick judges who may be on the circuit court, what happens is
they then became a candidate for the Supreme Court. That is the real
deal. They are all the real deal. Being a judge on the court of appeals
is an incredible honor. It is a higher court than the district court.
What is happening is the President has had 29 circuit court judges
confirmed. We as of tomorrow will have six who have been filibustered.
There are more in the hopper. That is very clear from my colleagues on
the other side of the aisle. They will be filibustered. Out of the
circuit court, the other side is saying 168 to 4, and some judge like
wearing pink shoes and green shoes--no. The difference between circuit
and district court judges is not the color of their shoes. The
difference between circuit court and district court judges is these
judges are on a higher court. These are the judges who are right below
the Supreme Court.
District court judges sit in a particular district. Circuit courts
sit in a multistate area. They have a broader range and geographic
jurisdiction. It is the higher court.
What has happened here is it is not 98 percent. Even 98 percent of
the time, adherence to the Constitution is wrong. When we took our
oath, when the distinguished Senator from Kansas took his oath, and the
Senator from South Carolina took his oath on that floor, we swore to
uphold the Constitution of the United States 100 percent. It wasn't
qualifying.
I find it absolutely startling that folks take pride in upholding the
Constitution 98 percent of the time. The first amendment, freedom of
the press: If there are 172 newspapers in the country and 168 of them
are going to have freedom of the press and not the other 4, they
wouldn't be very happy and very American.
The reality here is we have 29 circuit court judges who have been
approved and we have 12 who are being filibustered. I think we are
talking around 30 percent, 25 or 30 percent. That is a big number. I
believe that is the largest number certainly since World War II. I have
to go back in the history books. That is wrong. That is the number
here.
The other side keeps coming back saying 168 to 4; therefore, no
problem. The problem is you can put up all the numbers you want, but
the difference is not the difference, whether it is green shoes or pink
shoes; these are courts of highest jurisdiction.
What has happened here and what is happening is unprecedented in 214
years of the history of this country. This hasn't happened.
All we are asking is for these 12 judges to simply have a vote. We
are talking about a vote. A cloture vote tomorrow is not a vote on the
judges. We are simply saying give--Miguel Estrada, by the way,
withdrew.
My time may be coming to an end. I want to get back to talking about
him--an immigrant, incredible record, education record, incredible
performance record, a brilliant man, and withdraws.
Priscilla Owen, give her a vote. William Pryor and Pickering, give
them a vote. If you do not support them, you vote them down. Your voice
is heard. It is not about a rubberstamp. I am not asking my colleague,
the Senator from New York, to vote for these folks. Vote them down. If
you do not like Judge Brown, vote her down; Judge Kuhl, vote her down.
Vote these folks down. But give them a vote. That is what the
Constitution requires.
Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from Searchlight, NV.
Mr. REID. Thank you, Mr. President.
First of all, I want to extend my appreciation--and I speak for the
Senate, both Democrats and Republicans--to the staff which has been
supporting us the last few days. People are working very long hours.
The Capitol Police are working a 16-hour shift. Their shifts are very
important. There are some people from all over the world who target the
Capitol of the United States where we now stand. These men and women
who guard us, protect us, make us secure, have to be vigilant. They are
among the best trained police officers in the entire world. I extend
appreciation from all Senators to them for the work they do, not only
during the time in the past few days but all of the time--having been a
Capitol policeman in the day when things were much more calm and
deliberate than they are now.
I also extend the appreciation of all Senators to all the staff,
Parliamentarians, clerks, the enrolling clerks, the court reporters--I
don't think I have done that--and the pages. We have juniors in high
school who are here tonight. I haven't mentioned everyone.
[[Page 28794]]
But my compliments go to everyone who supports this great institution.
I am sorry they have had to work another night, but that is the way it
is.
The reason you have seen all the charts on the other side of the
aisle change is because this number Mr. Schumer talked about bothers
them a lot. Now they have come up with judges who haven't even come
before the Senate. They know only four have been turned down. But now
they have the other thing, that there is going to be 12. Well, we might
wait and see what is going to happen. Why don't we wait?
I say this: The 30 hours we have spent so far has been totally
wasted. There isn't going to be a single vote changed. Nothing is going
to change. This has been an effort to toss meat to the rightwing
extremists. Many Senators--and I say many--certainly at least a dozen
Republican Senators approached me and made different excuses and
apologies for what is going on on the other side. They know this is
very nonsenatorial. But we are involved in this and we are going to
proceed in the best and most dignified way we can.
There is something else I would like to spend some time talking about
tonight, and that is jobs.
Let us talk about what is happening in the last 30 hours. What has
happened? We can start at a number of different places. During the last
30 hours, 2,833 Americans--men women, teenagers, old people, married,
unmarried, grandparents--have been laid off. They have lost their jobs.
In America today, things are so difficult dealing with jobs. For the
2,833 Americans who have lost their jobs during the last 30 hours, the
average time for them to find a good job will be 5 months. Five months,
2,833 Americans will wait an average of 5 months to find another job.
It seems to me it would be good for us rather than spending 30 hours
plus on 4 people and not a single vote has been changed--4 people who
have jobs, good jobs--that we would spend some time talking about how
to create more jobs, thirty hours of debate here in the Senate about
programs.
For example, I think what we should have is an infrastructure
development program where the Federal Government is involved in putting
out money so the contracts can be let in the private sector so
companies can build roads, they can build dams, they can build bridges,
they can do water systems, sewer plants. We could spend some time here
debating where it should go and how much we should spend. We know for
every $1 billion spent, we would create 47,000 jobs as compared to
2,833 Americans who have lost jobs in the last 30 hours--47,000 high-
paying jobs. Of course, the spinoff from these jobs would be
significant and magnificent.
As I indicated, 2,833 people have lost their jobs in the last 30
hours. The four people who have been dwelled on by the majority have
jobs--good jobs. Who are the people who have lost their jobs? I have
already talked about parents, single parents, families. It is really
sad to understand that 2,833 people are going to have to wait on
average 5 months to find another job.
During the last 30 hours, 8,698 people have lost their health
insurance.
A man flew in from Arizona to meet with me today. He graduated from
Utah State University where I did. He was a star football player at
Utah State University. He is a big man physically and a big man
emotionally. He flew back here because he is now a physician. He is
terribly concerned about the 8,698 people who have lost their health
insurance. He understands what it means for people to come to him and
have no health insurance. He talked to me and my staff about what we
can do about it. He felt so strongly about it that he came back and
talked to me.
How does a mother feel, how does a father feel, who have children or
no children, how do they feel going to bed at night recognizing if
something happens to them or their family, they have no health
insurance. What do they do? They do not get the treatment and care they
need. They only go when something desperate has happened to them. An
automobile accident, they go to the emergency room. Preventive care,
forget about it. During the last 30 hours, 8,698 people have lost their
health insurance. I think we should talk about that. We need to do
something about that. There are 44 million Americans who have no health
insurance.
In addition to 44 million people who have no health insurance, there
are millions of people who are underinsured, meaning they have
insurance but it isn't very good. That is what I talked about today
among other things with my friend from Utah State University, a
wonderful man, who is a young physician who cares about his community
and his country.
We have 44 million Americans with no health insurance, and we are
here, and we have been here for the last many hours talking about four
people who not only have jobs but they have health insurance. Every one
of the four have health insurance. And they have jobs.
What does it mean not to have a job? Does it take away someone's
dignity? Does it cause divorce, dissension? Does it cause kids not to
be able to go to school, to college? Of course it does. Does it cause
crime? Of course it does. Does it cause our welfare rolls to go up? Of
course it does.
But the 4, the 168 to 4, those 4 have jobs. They have health
insurance. Why are we not here talking for 30 hours of constructive
debate about doing something in this Nation about health insurance so
people when they get sick can go to a doctor, people when they need
preventive care can get it. In the long run it would save the country
lots of money.
In the last 30 hours, the trade deficit of this country has gone up
$300 million. In 30 hours, the trade deficit has gone up $300 million.
What does that mean? It means we have bought more into this country and
sold less outside our country to the tune of $300 million. That is not
good.
I have heard my friend from North Dakota, Senator Byron Dorgan, give
lectures in this Senate about the need to do something about our trade
policies because the trade deficit continues to rise, causing this
country lots of problems. We are doing nothing about it. We have a
trade deficit with China. They jiggle their money, and it is
continuing. We are afraid to take that issue up here.
My friend, the distinguished Senator from New York, Mr. Schumer, has
attempted on several occasions to bring forth an amendment to stop the
Chinese from playing with the numbers so that the trade deficit
continues. But we have been unable to do that. Why? Because we are
talking about four people who have jobs, who have health insurance, and
could care less about the trade deficit.
In the last 30 hours, focusing away from some problems that to some
may not seem important--the trade deficit--we could talk about
something that is real important. During the last 30 hours when we have
been here talking about four people who have jobs, who have health
insurance, and who have nothing to do directly with the trade deficit
but are keeping us from talking about it, during that 30 hours the food
stamp rolls in this country have gone up by 6,237. During the last 30
hours, 6,237 desperate people have signed up for food stamps saying, in
effect: We are hungry. Government, will you help us buy food for our
families? We have never done it before. But these are new people
signing up for food stamps.
I could say without any qualms or reservations, the four people I
have talked about here tonight and the majority has talked about here
for a long time, they have not lost their jobs. They have not lost
health insurance. They don't even have to consider food stamps. But
wouldn't it be good for us as a nation to spend some time talking about
food stamps?
I can remember when I was a new Senator, the great Senator Pat
Moynihan--his chair was right back there. There was a vote going on
about the homeless. Senator Moynihan said to me: We have helped create
the homeless by Federal policies where we have, in effect, emptied out
our mental institutions, but we have done nothing to have community
health centers. A lot of the people who are homeless are people who
need medical attention.
[[Page 28795]]
Well, food stamps, we need to do something about that.
About poor people, in America today, as sad as it seems, the rich are
getting richer. The rich are doing fine. The wealthy are doing fine.
The elite of America are doing great. The poor are doing real bad. The
middle class is narrowing all the time. We need as a nation to figure
something out to do something about that. We don't want to live in
America like many countries where you have the rich and the poor and no
middle class. Why don't we spend 30 hours doing that? Not spending 30
hours talking about four people who are well educated, have jobs, have
health insurance, are not on food stamps.
During the last 30 hours, when we have been here in the Senate
talking about these four people, we have had in America 36 mass
layoffs. Employers have had 36 experiences where they said: We have to
lay off more than 50 people. A mass layoff, by Department of Labor
standards, is more than 50 people. During the last 30 hours, we have
had 36 of those.
Why are we having so much trouble in America today keeping people
working? Why is it taking so long for people who lose a job to find a
job? I would think this Nation would be better served talking about
jobs, not about four people who have jobs, who have health insurance,
who are not on food stamps, who have not been part of a mass layoff in
the last 30 hours.
On this Senate floor, during these last 30 hours, there have been
seven attempts by the minority to extend unemployment benefits for
people whose unemployment benefits have run out. Is that important?
During the last 30 hours, while we have been here talking about four
people who have jobs, who have health insurance, who are not on food
stamps, who have not been part of mass layoffs, 13,194 people have had
their unemployment benefits run out. The people who have lost
unemployment benefits are real. These are not statistics that somebody
made up.
Let me read to you a letter I received from a woman in Las Vegas, NV.
We will just call her Margo. I won't give her full name. She writes,
October 10, 2003:
Dear Senator Reid:
On July 2, 2003 I became a displaced airline worker after
38 years as a TWA (now American Airlines) Flight Attendant.
As a result of union concessions given to American Airlines,
I received no severance pay.
My Unemployment Benefits will expire on January 2, 2004.
Congress has passed new legislation which made December 28,
2003 the cut-off day for Temporary Extended Unemployment
Compensation. After that date, there will be no more
extensions. I will miss the deadline for Extended
Unemployment Benefits by 5 days.
I am a single woman and a sole supporter. I have no skills
applicable to this difficult job market and my age makes an
already bad job market even more limited. It will take time
to learn skills and find a suitable job. Extended
Unemployment Benefits will be needed for my very survival.
I ask you--
She has it in bold type--
to please support S1708--
The one we have tried to move seven times to the floor in the last 2
days, objected to by the majority--
which will extend the TEUC [benefits] and provide additional
Unemployment Benefits to those who cannot find jobs.
This is a real person. This is not someone who is made up. This is
descriptive of the 13,194 people who, during the last 30 hours, have
lost their unemployment benefits. That is sad.
I have another letter here from another woman. I will read the last
paragraph:
I am not writing this letter to get a hand out or sympathy.
For every job that is open, 50 people apply. I have faith in
God that he has a perfect job for me and that he will provide
for us.
I ask unanimous consent that these two letters be printed in the
Record, and with the permission of the Chair, I would ask the clerk to
block off the names because I have not spoken to them for permission to
make their names public.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
July 31, 2003.
To: President George W. Bush, Congressman John Gibbons,
Senator Harry Reid.
Re unemployment benefits.
Gentlemen: I really don't expect that any of you will
actually read this letter. It will probably go to an aide and
if I am lucky I may get a response. So why I am writing this
letter? Because there are many other people in this country
who are unemployed and have run out of unemployment benefits.
Man people like me, feel that writing a letter like this is a
waste of time. Many have no hope, but I believe that one
person's voice can make a difference.
I live in a small community in Northern Nevada. There are
at least 50 people applying for every job opening. We have
thought about moving to other cities, but the job market is
tight every where. My husband is disabled and receives a
small social security check each month. It pays all but $15
of our first mortgage on our house. I have to supply the
money to pay a second mortgage and all of our living
expenses. Three years ago we had to file for bankruptcy. With
a job and a new start we have been rebuilding our credit, but
have not been able to refinance our home.
In December of 2001 I had to quit my job. I quit for cause.
My doctor wrote a letter and I was eligible for unemployment
benefits. Less than 6 months after I left that company, the
position that I had held for 6 years was eliminated company
wide. Some people moved up into management, but many were
laid off. It took me five and a half months to find a job. My
training and experience has mostly been in the accounting
field. I took a job as an outside sales rep. for an office
supply company, because that was what was available. The job
lasted 8 months. Then the company that I was working for
updated their computer system to make it easier to purchase
items off an internet web site. As a result they laid off
some sales people including me.
Here in lies the problem. Because I was on unemployment
from January to June 2002 it affected my base period for
benefits. When I got laid off on March 2003 I was only
eligible for 13 weeks of unemployment benefits not the full
26 weeks. My lack of employment in the base period was not by
choice. I was on unemployment, but because I was on
unemployment and had no job earnings it shortened the amount
of weeks that I was eligible for benefits. When I applied for
the federal extension the same thing happened. I was eligible
for 7 weeks not 13 weeks. I have sent out hundreds of resumes
with little response.
I am not writing this letter to get a hand out or sympathy.
I have faith in God that He has the perfect job for me and
that He will provide for us. There are many thousands of
people who do not have this hope. They have been laid off
multiple times, and were eligible for little or no benefits.
I have friends that were laid off over a year ago and are
still trying to find work. Unemployment should not be a free
ride. There has to be a limit on benefits or it would turn
into another welfare situation. People would get on it and
have no incentive to better themselves and get off it. But
the way the current system is setup, it paralyzes people who
have been laid off multiple times over several years. All I
am asking is that people, who are truly trying to find work,
get a fair chance to provide for their families while they
seek employment. I would work a part-time job or 2 part-time
jobs in lieu of a full-time job if I could find them. So the
solution is two fold. Get the economy going so that people
like me can find a decent paying job or jobs. And revise the
current system so as not to penalize people who have already
gone through one or more layoffs in a short period of time.
Gentlemen, this is the greatest country in the world. The
middle class needs a break. I don't want a free ride. I just
want a job or jobs that will supply the basic needs for our
family.
____
October 10, 2003.
Hon. Harry Reid,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Reid: On July 2, 2003 I became a displaced
airline worker after 38 years as a TWA (now American
Airlines) Flight Attendant. As a result of union concessions
given to American Airlines prior to my furlough, I received
no severance pay.
My Unemployment Benefits will expire on January 2, 2004.
Congress has passed new legislation which made December 28,
2003 the cut-off date for Temporary Extended Unemployment
Compensation (TEUC). After that date, there will be no more
TEUC extensions. I will miss the deadline for Extended
Unemployment Benefits by 5 days.
I am a single woman and sole supporter. I have no skills
applicable to this difficult job market and my age makes an
already bad job market even more limited. It will take time
to learn skills and find a suitable job. Extended
Unemployment Benefits will be needed for my very survival.
I ASK YOU TO PLEASE SUPPORT SENATE BILL S. 1708 which will
extend the TEUC bill and provide additional Unemployment
Benefits to those of us who cannot find jobs.
Thank you for your consideration in this matter.
Respectfully submitted.
Mr. REID. I would also say that this woman says she would take two
jobs at
[[Page 28796]]
minimum wage just to make things work. She has a husband who is
disabled. That is what this is all about.
We know that during the last 30 hours people in America have had some
problems. Two thousand eight hundred thirty-three people have lost
their jobs; 8,698 have lost health insurance; food stamps increased by
6,237; the trade deficit has gone up $300 million; 36 mass layoffs,
13,194 people lost their unemployment.
During the last 30 hours, we have 65,357 people who applied for
unemployment benefits for the first time. We have had, during this 30
hours, desperate people; 5,137 people have filed for bankruptcy.
I did general practice. I have had interviews with people who told me
they had no choice but to file bankruptcy. Usually it is some problem
with medical expenses, but these people are desperate. We don't have a
bunch of deadbeats out there. We don't have 5,137 deadbeats. We have
5,137 desperate people.
What are we talking about here? Not doing something about the
bankruptcy law when we came that close to passing it. There was one
provision in it that because of the ideology of certain people it
didn't pass. We came so close to reforming the bankruptcy law which
would have helped a lot of these people. We should spend some time on
bankruptcy.
I have talked to the distinguished senior Senator from Iowa on many
occasions about the need to do something about this. And by the way, he
is a Republican. We need to do something about it. But what are we
doing? Spending 30 hours talking about people who have jobs. They have
not lost their health insurance. They are not drawing food stamps. They
have not been part of mass layoffs. They have certainly not lost their
unemployment. They have not had to file for unemployment benefits for
the first time, and they have not had to file for bankruptcy.
During the last 30 hours, to get real personal about this, 80 people
have committed suicide. While we have been here talking about these 4
people, 80 people in America have killed themselves. These are real
people. The distinguished junior Senator from Oregon lost a 22-year-old
son about 2 months ago as a result of suicide. In this Senate Chamber,
there are lots of people who have suffered as a result of suicide. My
father killed himself.
We need to learn more about suicide. More than 31,000 people in
America a year kill themselves. We don't know why. It is one of the
leading causes of death for teenagers. Why are we spending time on
these four people? Why couldn't we spend 30 hours trying to find out
why people kill themselves? We don't know. And we, as a Congress, have
trouble even having a hearing on it. The first hearing on this was held
less than 10 years ago. We have done a little since then but not very
much. There are desperate people out there trying to decide are they
going to kill themselves today.
I met up here in my office today with a prominent person, a prominent
name in Washington, DC. She proceeded to tell me when she was 17 years
old she tried to kill herself. She took a lot of pills. She described
to me how she believed she went to the other side and came back. This
isn't some nut. This is a good friend, someone who a lot of people
know, a wonderful person. We need to learn more about suicide. But we
are not going to do it talking about these four people, these four
people who have jobs, who have health insurance, who are not on food
stamps, who have not been part of mass layoffs, who have not filed for
unemployment benefits or bankruptcy.
During the last 30 hours--and this is very difficult to comprehend--
during the last 30 hours, 10,000 people have died in Africa because of
AIDS; 10,000 people in 30 hours have died in one continent because of
AIDS; 70,000 people in a week. There are no vacations. Christmastime,
Thanksgiving, Easter, it doesn't matter, they keep dying. What about a
debate for 30 hours recognizing what we can do to approach the needs of
this worldwide problem which has an affect on America?
During the last 30 hours, Nasiriyah, Iraq, a suicide bomber, 31
killed; during the last 30 hours in Baghdad, Iraq, 2 of the 1st Armored
Division killed; during the last 30 hours in Iraq, 37 attacks by
terrorists, many of our troops not dead but injured; during the last 30
hours, seven funerals of American servicemen killed in a helicopter
downing in Iraq, seven funerals.
I understand how strongly people feel about these four people. I know
how strongly people feel about this. But as I said yesterday, I don't
in any way suggest we are wrong. I believe as strongly as I can that we
have done the best thing for America in turning down these people who
would be bad for the judiciary.
I have been to juries lots of times. I have tried over 100 cases with
juries. I have the greatest respect for our justice system. I have
tremendous respect for judges who try cases themselves. But I also have
some idea in my own mind, having been a trial lawyer, how important it
is to have good people on the bench, especially the Federal bench.
These are appointments for life. I think no matter how strongly people
feel about this issue, and assuming for purposes of this discussion
that we are wrong, which I disagree, but let's assume for purposes of
discussion, don't you think we have carried this thing a little too
far? Don't you think the same points could be made?
I have tremendous respect for my friend from South Carolina. I sat
right here, just like this, scared to death 5 years ago. It was the
first time I had ever sat this close, first time I ever had the job as
the assistant leader of the Democrats. I was afraid to be here. The
first big thing was the impeachment trial of the President of the
United States. The Senator from South Carolina was one of the managers.
He is a fine lawyer. I have great respect for him. He is a man of
courage. He breaks from his party on occasion. I admire him for that.
But I say to my friend, I think we have made our points. I mean, you
make a good case. But for Heaven's sake, everything has been said by
your side, and everybody has said it. On our side, I think everything
has been said, and everybody has said it.
Enough is enough. I think during the last 30 hours we could have been
discussing issues that are more important, such as jobs, not the four
people who have jobs, who have health insurance, who have not had to go
on food stamps, who have not been part of mass layoffs. They have not
lost unemployment benefits. They haven't had to file bankruptcy. There
are just so many problems we need to deal with that we have not done
because of these 30 hours.
I say to my friends, we have had an equal discussion. I think that is
good, that the two leaders worked that out, because it could have been
a real nasty situation here without allocating the time in a balanced
fashion. Maybe history books will look at this as something that has
been important to the country. I hope so. But I have my doubts.
I think the more important issues are not those dealing with these
four people. The more important issues are those dealing with the
personal lives of other than those four people.
I would ask that we recognize that. I know the content of the
character of the Senator from South Carolina who is leading the debate
on the other side. I know he will lead a civil debate. I appreciate
that. But I just say: Why don't we all just wrap it up and go home.
Come back and vote at 8:30. That is what the schedule is anyway. I
think that would be better for the whole body.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. REID. Whatever time we have remaining, I yield to the majority.
The PRESIDING OFFICER. Time is yielded back from the minority side.
The Senator from Minnesota.
Mr. COLEMAN. Mr. President, I have great respect for the Senator from
Nevada and the deep concerns he has for a range of problems and
concerns that he talked about. They are real. We are talking about more
than just four people. We have to recognize that. It is not just about
four people. For people who were confirmed and should be confirmed as
court of appeals judges, we
[[Page 28797]]
will have a tremendous impact on the lives of the folks about whom the
Senator from Nevada was talking. That is what the courts do. It is not
a personal thing. This is not a measure of whether these nominees have
jobs, don't have jobs. It doesn't take away from anyone else. This is
about the third leg of the stool of Government: legislative branch, we
are part of that; executive branch; and judicial. Those are the three
legs of the stool that uphold the system we have.
It is not about four people. The Senator is right. There are so many
important issues to talk about, such as AIDS. I came back from a trip
to Africa with the majority leader and a group of my colleagues. We saw
the devastation and destruction. We were in South Africa where 5
million people are HIV positive, and 20,000 of them on treatment. We
looked into the eyes of people who were dying and into the eyes of the
doctors treating them. We are doing stuff about that; we are acting. We
passed in this body a bill that provides over $2 billion--$2.4 billion,
and you add in our commitment to the global fund. The President made a
commitment of $15 billion, which is unprecedented, and overwhelmingly
we are acting on it.
It is not enough to simply lay out a litany of problems. Maybe I am
more of an optimist and a realist. My favorite quote is from the first
Prime Minister to serve Israel, who said that anybody who doesn't
believe in miracles is a realist. Goodness gracious, the world is not
falling apart. There is a lot of hope and optimism. It is not just
enough to talk about problems, as my colleagues on the other side of
the aisle do. We can talk about the economy and jobs. What are you
doing about it? That is the question. What is the plan? Their plan has
been to roll back the President's tax cut. That is what their nominees
for President are talking about--rolling back the tax breaks we are
giving to moms and dads, that we are giving to small business,
accelerating depreciation, increasing the opportunity to expense
capital investment to generate more investment. The latest survey shows
that business investment is up by 15 percent. So it is not simply to
lay out a litany of woes, how terrible the world is. What are you going
to do about it?
That is what my colleague from South Carolina and I talked about in
our campaigns. We want to do something about it. It is not enough to
lay out just how the sky is falling and how the world is falling apart.
We are trying to do things here.
We will have time to debate the economy. We have debated it, and we
passed the third largest tax cut in the history of this country. And
what do you see? The GDP is estimated at 7.2 percent, down in the third
quarter of 2003. Employment increased by 126,000 in October, while the
number of jobs added in September was revised to 125,000 from the
previous estimate of 57,000. The unemployment rate decreased from 6.1
percent in September to 6 percent. It is still too high but it is
decreasing. There is a downward trend in jobless claims. The stock
market, on November 3, jumped to a new 17-month high. We have trillions
of dollars of new investment in this economy.
The tax cuts we passed here, which were opposed by our friends across
the aisle, are responsible for the accelerated growth in opportunity.
Spending by businesses grew at an annual rate of 11.1 percent in the
third quarter, following an impressive 7.3-percent gain in the second
quarter. Again, these are things we have done that have encouraged
investment and, in the end, generated opportunity and are generating
jobs. That is what it is all about. We have a ways to go, absolutely.
But it is not enough just to lay out the litany of how terrible things
are. What are you going to do about it? One of the things we do about
it is why this debate is important--it is to make sure we have a strong
Government, that we have a strong judiciary. That is what this is
about.
The fact is, when the President of the United States has 30 percent
of his circuit court judges and court of appeals judges filibustered,
it is unprecedented in 214 years of the history of this country, and it
is wrong. The fact is, we should talk about upholding the Constitution.
I am a former solicitor general in Minnesota. I had the opportunity
to argue before the highest court of my State many times. I have great
love and appreciation for its constitution and history, and it is
important. To the person who is unemployed and is getting a job, that
is important.
I say to that person that I am committed to doing everything I can,
with every breath that I have, to make sure you have opportunity. I am
going to do that. At the same time, we have the ability to do more than
one thing at a time in this body. I can tell you, we are debating at 1
in the morning, but to those listening, I hope this is an educational
experience.
Let's talk about the Constitution now. By the way, to my friends
across the aisle, I noted his conversation with the doctor from Utah
State, that he was concerned about health insurance, as he should be.
One of the keys to getting health insurance is jobs, small business.
The things that we have done to generate new investment and grow jobs,
that helps people get health insurance. I ask my colleague, the
distinguished minority leader, assistant minority leader, whether the
doctor talked to him about medical malpractice, whether he talked to
him about the impact that medical malpractice has on his ability to
practice and to provide quality health care. The cost of that, by the
way, on businesses makes it more difficult for them to grow jobs. That
is another issue that was filibustered by our friends across the aisle.
I think we came within a vote or two on class actions--within a vote
of changing that. The fact is, it is not enough just to talk about it.
So it is important to talk about the Constitution. That is what we are
going to do.
The fact is that all of us, when we got sworn in, raised our hands
and swore to uphold it. The Congressional Oath of Office is: I solemnly
swear that I will support and defend the Constitution of the United
State against all enemies, foreign or domestic, that I will bear true
faith and allegiance to the same, that I take this obligation freely,
without any mental reservation or purpose of evasion and that I will
well and faithfully discharge the duties of the office upon which I am
about to enter, so help me God.
That is a pretty strong commitment. It is not a partial commitment.
It is not a 98-percent commitment, and it sure as heck isn't a 70-
percent commitment. That is what we are dealing with today. My
colleagues seem proud of that. You are even using the 98-percent
figure.
Again, the reality is we are dealing with circuit court judges, and
close to 30 percent have not been confirmed and have been filibustered.
The fact is that right now it is four but tomorrow it will be six. We
know the other six are there. Unless my friends from across the aisle
would say we are not going to filibuster another six, I will run the
names by them. We will change the chart and say something different. We
all know the reality. Let's lay it out here at 1:10 in the morning.
Twenty-nine nominees were confirmed and 12 were not. Just think, if
we took the approach that it is not important, you know, 98 percent--as
I said before on the floor, if the airline that got me to St. Paul told
me that I had a 98-percent chance of getting there and a 2-percent
chance I would crash, I would not be flying.
The Constitution is wonderful. The first amendment says:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people to peacably assemble, and to petition the
Government for a redress of grievance.
I want those listening to think why is it that in the 214 years of
the history of this great Republic, this great country, the Senate has
not done what we are doing now. We are changing the system. It is very
dangerous.
The second amendment says:
A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear
Arms, not be infringed.
[[Page 28798]]
Minnesotans are pretty strong about the second amendment. We like to
hunt and we like our firearms. That is OK. Imagine if I went to a group
of 172 using my colleagues' chart and said 168 of you are going to have
the second amendment, or if I went to 41 and said we are going to give
these rights to 29 of you. There would be a revolution.
The third amendment says:
No Soldier shall, in time of peace be quartered in any
house, without the consent of the Owner, nor in time of war,
but in a manner to be prescribed by law.
Can you imagine if I went to 41 Minnesotans and said 29 of you are
going to have a third amendment right, but 12 may be forced to quarter
without your consent. I don't think they would do it. They would say,
where is America? There is a reason why we have fidelity to the
Constitution.
The fourth amendment says:
The right of people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures.
Can you imagine going to 41 Minnesotans and saying 29 of you will
have the right not to be subjected to unreasonable search and seizure
but 12 of you don't have that right? There would be a revolution. On
and on.
The fifth amendment talks about the right against self-incrimination.
The sixth amendment says:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel
for his defence.
Can you imagine if out of 41 defendants, 29 were told you would have
a right to speedy trial? Even if you told 168 they would have that
right, but not the other 4, there would be a revolution.
We are not just talking about four individuals here. We are talking
about one of the foundations and the underpinnings of this Government.
I tell the young people listening in the Chamber, this is your
future. The greatness of this country is built on its fidelity to the
constitutional principles. It has allowed us to kind of grow into the
greatest nation in the world with the freedoms we enjoy, and those
freedoms we have enjoyed have triggered great entrepreneurial
opportunity--growing jobs. It is tied together and it is about growing
jobs.
You grow jobs when you have a constitution that is adhered to and you
have stability. I am chairman of a subcommitte of the Foreign Relations
Committee on which we both serve. I can tell you that the concerns I
have about some of the countries in Latin America have to do with
whether they have rule of law. The reality is, if there is no rule of
law, we see there is no investment, you don't grow jobs. So they are
related. They are related.
In the end, I want to get away from just talking about the
principles, these sorts of abstract constitutional principles. They are
important and that is why we are here, because we must have fidelity
there. We have to get things back in sync. We have to get away from
this process, this unprecedented filibuster. By the way, those are not
my words. Those are the words, as I understand it, of John Corzine, the
chairman of the Democratic Senatorial Campaign Committee. In an e-mail
he had--we have a chart here--it says:
Senate Democrats have launched an unprecedented effort by
mounting filibusters against the Bush administration's most
radical nominees. Senate Democrats have led the effort to
save our courts.
Unprecedented filibuster, that is what this is about. There has to be
a better way. This is about being divisive. We have to get away from
divisiveness, from everything being a battle. We have to get back to a
fidelity to the principles that founded this great country. They are
pretty clear. You don't need a Ph.D. or a law degree to understand the
Constitution. It is pretty clear, pretty easy reading.
So that is what this is about today. In the end, it is not simply
about four people; it is not about whether they have a job. It is
whether, in fact, we uphold the obligation that we have, that we do our
duty, that we do our job. In the end, we should simply give people a
vote. If you think that they are good nominees, vote for them. If you
think they are bad nominees, vote against them. But you give them a
vote. That is what we have done for over 200 years. To fail to do that
will have terrible consequences.
One last story before I turn the floor over to my colleague from
South Carolina. It is about this building and a little bit of history
from a number of years ago. There is an old Senate Chamber down the
hall. When you walk out of here, it is maybe about 50 yards away. When
we get sworn in in here in the official ceremony, we then have a
ceremonial picture taking with the Vice President. It is a very special
moment for all of us, especially for kids from humble roots. I am one
of 8 kids, and to have my mom and dad there was very special.
In that old Senate Chamber, in the old days the Supreme Court
actually operated on the floor above the Senate. At one time, they were
planning on remodeling the Supreme Court chambers. Some enterprising
young architect decided that one of the pillars that was kind of
holding it up didn't need to be there. So they said don't worry about
that. What happened was that the Supreme Court crashed into the Senate,
disrupting its work.
There is a moral to that story. If you displace or undermine one of
the pillars of Government, which is what we are doing here, beware of
the consequences. We cannot let that happen. These nominees--100
percent of them--deserve what we have done for 214 years: give them a
vote, vote them up, vote them down, but give them a vote.
With that, I yield the floor to my colleague from South Carolina.
Mr. GRAHAM. I thank the Senator. The Senator did an excellent job of
trying to put into perspective what we are trying to do. Senator Reid
from Nevada has left. If anybody deserves a break, he does. A couple of
days ago, he spent about 8 hours-plus on the floor trying to prevent
some legislation from coming forward that he thought was inappropriate.
He was committed to making sure that the activity of the Senate did not
go forward. He used his right as a Senator to speak. I applaud him for
that. I don't agree with him, but the worst thing I think I can say
about Senator Reid is that sometimes I disagree with him. He is a very
nice man. I have enjoyed getting to know him over the years and serving
with him. I appreciate the nice things he said about me.
The point is that we disagree on this, and I don't question his
motivation. I just question the judgment of what we are doing here. He
described the United States problems in very graphic terms. God knows
we have problems in this country, but I think it was used to try to
illustrate or trivialize what we are doing tonight. If we have all
these problems, why are we talking about this? I don't think it is
healthy to trivialize the constitutional process of nominating judges.
Whatever problems we have in this country--and there are a lot of
them--none are going to be made better by hijacking the Constitution.
If you expect us to just lay down and forget about it, then you have
mistaken who we are. If you feel strong enough to stand up for 8 hours
to stop something from happening, God bless you; if you think other
people are not going to do the same, you have made a huge mistake. We
are going to talk until 9 o'clock and do other things.
I announced today that if this doesn't change, I am going to ask the
Supreme Court to decide whether or not the tactics of the minority have
violated the Constitution, because I believe they have. If you are into
numbers, I can tell you this. In the past 11 Presidents, on their
judicial nominees confirmed versus those filibustered, we have had
2,372 people confirmed. We have not had one person filibustered. Now we
have 4, and in just a couple weeks we are going to have a dozen. Some
things were said. If nothing changes, nothing will change.
I can stand here, talk until I am blue in the face, and I have no
illusions about my ability to change anybody's vote on the other side.
I feel a real need to let history know, and my constituents back in
South Carolina know, I
[[Page 28799]]
think this is a lousy thing that is going on. I think this is a change
for the worse, that you are taking the country down a road no other
group has ever taken it in the Senate. You are doing it for political
reasons you believe are just, but I think history is going to judge you
poorly. I think it is going to be one of the darkest chapters in the
history of the Senate. You have started something you can't stop, and
most likely we will answer in kind down the road and you have taken 200
years of history and thrown it in a ditch. That is a big deal.
There are a lot of problems in this country, but you are about to
create one that is very bad. You are adding to that list of problems
the fact the Constitution has been changed in a way I think is illegal.
Certainly it violates the traditions of the Senate. And we have to deal
with it and we are going to deal with it. We are going to talk about it
and we are going to try to get you to vote and we are not going to let
this go.
I am going to ask the Supreme Court to look at this case that is
going on before the Senate and see if the filibuster, requiring 60
votes, violates the terms of the Constitution because the Constitution
requires a simple majority vote to confirm a judge sent over by the
President.
Since we are going to have about 8 hours, I will save some of the
time to talk about the history of the constitutional debate that went
into that clause, why they picked a majority versus a two-thirds
requirement that you have for ratifying treaties and impeaching the
President. There is absolutely a rhyme and a reason for everything in
this document.
There is no rhyme or reason for what is going on now, other than
politics of the moment.
If you listen to Senator Reid, you would want to leave the country. I
mean it is an assessment of the problems of the country, given to try
to trivialize our objection to the Constitution being changed in an
improper way. But it also is a distortion of who we are as Americans,
because Americans, given all of our problems, are still the most
hopeful people in the world. After listening to this rendition you
would just wonder why everybody is not moving to Canada or Mexico.
We are not leaving the country. Other people are trying to get into
our country. One of the biggest problems we have that he did not talk
about is illegal immigration. People are literally risking their lives
to get to be part of the American dream.
I would rather focus on some of the positive aspects of our country,
one of them being a courtroom available to everybody and anybody,
regardless of your status in life, where you can go have your day in
court, and that requires a judge. Judges are picked by the President
and confirmed by the Senate. The advice and consent clause for the
Senate has never meant a minority telling the President what to do. It
has always meant a vote on the nominee with a majority being required
to put you on the bench, until now.
Let's talk a little bit about some of these people, the four names.
But there are many more affected by this than just four. This is the
America I like to talk about, and relish.
Justice Brown: Janice Rogers Brown is one of the four who is being
filibustered. She sits on the California Supreme Court. Senator Schumer
said she is out of the mainstream. She is not of the temperament and
the thought process, in his opinion, that makes her a mainstream
person, so she would do harm to the country if she served as a judge.
President Bush disagrees with Senator Schumer because he chose her to
go on the court of appeals. Senator Schumer has an obligation under the
Constitution to give his advice and give his consent and eventually
vote. He doesn't have the right, in my opinion, to band together with
39 other Senators and bring us to a screeching halt. No one has ever
done that before. It is called a filibuster. The number of filibusters
in the last 11 Presidencies is zero up until now.
Let me tell you a little bit about Justice Brown. No. 1, she lives in
California and she got 76 percent of the vote. In California you get to
vote on a judge. You get to decide. You, as a citizen, get to vote to
retain a judge once they become a judge. You actually get to express
yourself. I am going to go out on a limb here and say no rightwing nut
is going to get 76 percent of the vote in California. I am going to
stand firmly behind that statement. I don't believe 76 percent of the
electorate in California would vote for somebody described as Senator
Schumer has described this lady. I believe 76 percent of the people in
California see Judge Brown like the President sees Judge Brown. This
whole argument that she is somehow out of the mainstream just does not
pass the smell test because the people of California get to vote on
Justice Brown.
We finally got a Republican Governor of California. Arnold is an
interesting figure, Governor Schwartzenegger is a larger-than-life
figure--literally. But I don't think anybody would ever accuse him of
being a rightwing nut. California's political makeup is such that the
person described by Senator Schumer would never, ever make it. This is
just one example of the cut-and-paste job on all four of these judges,
with more to follow.
Let's talk about the America she came from. Only in this country can
you do what Senator Coleman and myself have done. I grew up in a pool
hall restaurant--beer joint is probably a more accurate term--and made
it to the Senate. I am very proud of my parents. They worked hard. They
are small business people. I feel I am the luckiest person in the
world.
She is the daughter of a sharecropper. She was not born in
California; she was born in Greenville, AL in 1949. She attended
segregated schools. I attended segregated schools up until I was in the
sixth grade. I was born in 1955.
I can remember, I think it was the sixth grade--about 1967, somewhere
along that period of time--showing up and for the first time in my life
having African-American students attend my class. It all worked well
back home where I lived. In other parts of the State it was more
dramatic. In Alabama it was more dramatic. This is the State where
George Wallace stood in front of the door of the University of Alabama
and said, No, you are not coming here if you are an African American.
It took the Alabama National Guard, federalized by President Kennedy,
to open that door.
That is where she grew up. She talked about listening to her
grandmother's stories about the NAACP lawyer Fred Gray, who defended
Dr. Martin Luther King, Jr., and Rosa Parks, and her experiences as a
child of the South, and that motivated her to become a lawyer.
Senator Schumer said she is not very good on affirmative action.
Maybe her view of affirmative action is not what Senator Schumer's view
is, but I would argue if she was somehow in the right ditch on
affirmative action, 76 percent of the people in California wouldn't
have voted for her and somebody would have informed them otherwise.
This lady's story is compelling. She moved to Sacramento when she was
a teenager. She got a BA in economics from California State in
Sacramento in 1974, her J.D. from the UCLA School of Law in 1977. She
received an honorary doctor of law degree from Pepperdine University
Law School, Catholic University of America School of Law, and
Southwestern University School of law.
Prior to more than 8 years as judge in the State courts, she served
from 1991 to 1994 as the legal affairs secretary to California Governor
Pete Wilson, another known rightwing crazy person, where she provided
legal advice on litigation, legislation, and policy matters. From 1987
to 1990 she served as deputy secretary and general counsel for the
California Business, Transportation and Housing Agency, where she
supervised the State banking, real estate, corporations, thrift, and
insurance departments.
She was deputy attorney general in the Office of the California
Attorney
[[Page 28800]]
General. She began her career as a legislative counsel of the
California legislature and more will come about Justice Brown.
The PRESIDING OFFICER. The time of the majority has expired. Who
yields time? The Senator from Minnesota.
Mr. DAYTON. Mr. President, I was on the floor the second time
yesterday, 4 or 5 in the afternoon. I observed, then, the time we
devoted to this had already become excessive as indicated by the fact
the statements being mailed were becoming increasingly repetitive and
redundant. Now I see the added problem is, as we go even further, they
become less and less factually correct and reliable, which is bad
enough under normal circumstances. But the accusations that are being
made are the most serious accusations that can be directed toward
another Senator.
One point of factual agreement is we all do take an oath of office
when we are sworn in here in this Chamber by the Vice President of the
United States and we do swear to uphold the Constitution of the United
States. When I took that oath 3 years ago, that was the most solemn
oath I have taken in my lifetime. There is nothing I ever committed to
that I take more seriously, and I do my best, as I can possibly see to
do so, to uphold that. I have never had occasion in my almost 3 years
here to question or certainly not to cast aspersions on any other
Member for failing to uphold that solemn oath as he or she believes it
is best performed.
We have information available to us through the Library of Congress
and the Congressional Research Service that has been in existence since
just about the time the country began. We use it as a learned and
nonpartisan and, as much as possible, nonbiased source of information
about the 216-year history of this body. It is not hard to get this
information. You just pick up the phone and call and ask to get it. So
I did the other day.
They list the chronological history of efforts to limit debate in the
Senate. It goes back to the Journals of the Constitutional Congress in
1778. It references the very first session of the Senate in 1789, which
started adopting these rules of various sorts. You can read, and over
and over in the summaries, I am sure you can go back to the Journals
and read in greater detail, how this has been discussed, considered,
debated, argued, voted upon, modified, turned down by Members of this
body for 216 years.
When people are accusing us of acting outside the rules and the
procedures of this body in doing what has been done here and debated
about here for all that time, they either are woefully ignorant of the
facts or they know the facts and they are being, I think, extremely
irresponsible to the American people, if they have the misfortune to be
watching this at this hour, to lead them to believe we are doing
something here which is anything other than our right, well established
in 216 years.
If the Members on the other side want to disagree with what we are
doing, or why we are doing it, or who we are doing it for or against,
they are perfectly within their rights to do so. But to say we are
violating the rules of this body is not true. To say we are violating
the Constitution of the United States is a heinous fault and I will go
with the Senator from South Carolina, I will join with him going to the
courts of this country, right up to the Supreme Court and let's get the
ruling he wants. Because I guarantee what it will be. Courts have ruled
for the last 216 years the House and the Senate have the right under
the Constitution to establish their own rules. That is what we have
done. That is what this book is about.
This book is 1,524 pages, called ``Senate Procedure.'' These are all
the precedents and changes in the rules and modifications and the like.
It only goes up to about 1992 because over the last 11 years the chief
Parliamentarian, who is the editor of this book, hasn't had the time to
add to it. There are probably another 500 pages or whatever that have
not been added to this that are all the different precedents, all the
different changes. Any time any one of us thinks anybody else here is
acting in violation of those, we have somebody right there. Every
minute we are in session we have somebody we can ask and get a factual
answer, an impartial and nonpartisan answer, and that is the
Parliamentarian.
I ask the Parliamentarian if anything in these books for 216 years
precludes our right to do what we are doing and if it is not within the
rules of this body. I think it is shameful that anybody states
otherwise.
One important rule, in 1902, was adopted. Rule XIX was amended by
inserting at the beginning of clause No. 2 the following:
No Senator in debate shall, directly or indirectly, by any
form of words impute to another Senator or to other Senators
any conduct or motive unworthy or unbecoming a Senator.
I can't think of any imputing of any conduct or motive more unworthy
to a United States Senator than the violation of the U.S. Constitution,
violation of the Constitution that we each took the oath of office to
uphold. To do so without basis in fact is just beyond the pale.
The Senator from Mississippi, the chairman from Mississippi, earlier
today said he had his disagreements, he thought we should review these
matters in the Rules Committee. I laud him for saying so. He doesn't
have to agree with what we are doing. He has every right to disagree
and he has every right as the chairman of the committee to go through
that process and I welcome the opportunity for him to bring in
constitutional scholars, the Congressional Research Service, the
Library of Congress authorities, and go through all this and consider
other questions about whether the minority should be able to hold up
the nominations of some 60 nominees of a President of the other party
when they are in the majority; as the Senator from Florida suggested,
whether these should be lifetime appointments. By the time he passed
away, Thomas Jefferson was opining that they should not be, to the
Federal judiciary.
Let's get the facts. Let's ask the Library of Congress, the
Congressional Research Service, to tell us if this is wrong. It's on
their stationery that up until 1917, when the Senate first adopted a
cloture rule, until 1949, I read directly:
. . . cloture could be moved only on legislative measures and
nominations could not be subjected to cloture attempts.
But then the Senate rule was changed, by the Senate. Following the
rules and procedures of Senate they changed it so these steps could be
taken with regard to nominations.
I am on page 3, reading again exactly:
Even after Senate rules began to permit cloture on
nominations, cloture was sought not until 1968 on a motion to
proceed to consider the nomination of Justice Abe Fortas
which was debated at length.
Moving ahead:
Cloture was sought on no other nomination until 1980.
Subsequent to 1980, of the 12 nominations on which cloture
occurred during the 103d Congress, ten were for executive
branch positions except in that Congress most nominations on
which cloture had been sought have been to judicial
positions.
They have a table which says between 1967 and 2002 on judicial
nominations cloture was invoked by the Senate 11 times; cloture was not
invoked 6 times. Executive branch nominations, cloture was invoked 10
times, not 8 times.
It is pretty easy to get this information. If somebody thinks they
are just making it up, they are wrong. They should make that case. But
otherwise people are making up misrepresentations and misinformation.
It is outright false. They are doing a great disservice to this body
and to the credibility we all strive to maintain.
One of our predecessors from Minnesota, a man I worked for back in
1975 as a legislative aide, Walter Mondale, former attorney general of
Minnesota, served for 11 years as a Senator. He said one of his
proudest accomplishments was modifying the procedures under rule XX
from two-thirds to three-fifths of Senators. On behalf of the change,
Senator Mondale said at the time as sponsor of this resolution the
proposal was a reasonable accommodation of the right to debate and the
[[Page 28801]]
right to decide. We believe this might be harmonized in such a way as
to protect action.
Anybody in this body has a perfect right to disagree with that
statement by Senator Mondale with the actions of the majority of his
colleagues in that session to make this modification and to leave this
rule as it essentially is today. But to just imply it is a violation of
the rules in what we are doing--implying we disrespect the body and the
purpose of the established procedures and upholding the best interests
of this country for 216 years--by people who have been here less than a
year themselves I think is an abomination. Then to go beyond that and
say we are in violation of our oath to uphold the Constitution of the
United States is I think a disgrace.
I yield to my colleague from New Jersey the balance of our time.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. LAUTENBERG. Mr. President, I thank the Senator from Minnesota. It
is obvious he is outraged at the triviality that is being thrown out
here about how we are violating our oath and violating our standards.
Think about this. We are now in the 32nd hour of this talkathon on
judicial nominations, brought to you by the Republican Party. I guess
the first 30 hours were so successful they decided to extend the hours.
But instead of helping anyone promoting a good cause, Republicans are
using this staged event to push for job applicants who are unfit to
take the job. They are unfit, they are unqualified, they have shown
they are likely to abuse their authority as circuit court judges who
advance an extreme rightwing agenda and not in the best interests of
America.
The Republicans so desperately wanted this talkathon to be a made-
for-television movie they attempted to coordinate their efforts with
FOX News, the providers of fair and balanced Republican television. It
comes from the distinguished majority leader's office, one of his staff
people. It says: ``It is important to double your efforts to get your
boss to S. 230 on time. FOX News channel is really excited about this
marathon. Brit Hume at 6 would love to open with all of our 51 Senators
walking onto the floor. The producer wants to know we will walk in
exactly at 6:02 when the show starts so they can get it live to open
Brit Hume's show. If not, can we give them an exact time for the walk
in start?''
That hardly sounds like a sincere effort to me to get something done.
I hear the outrage about how we are playing politics on this side.
What is this? If that is not raw production, I have never seen it. Line
up. I wonder if the suit colors and ties were described at the same
time. It is good to see a bunch of penguins walking down here 51 deep.
FOX News presents--it says 30 hours. They made a mistake. They didn't
know how enjoyable this was, that we were going to go on with this.
The passions are so high there are things said that are just not
accurate.
I point to this hallowed document, Senate Manual, which talks about
the Constitution of the United States. It is part of the book. It talks
about the powers of the President. He ``shall have power by and with
the advice and consent of the Senate to make treaties et cetera and
with the advice and consent of the Senate shall appoint ambassadors,
other public ministers and consuls, judges of the Supreme Court and all
other officers of United States.''
Advise and consent--it doesn't say consent and advise. It doesn't say
just approve them and we will talk about it later. We are maintaining
our responsibility to the Constitution to a ``t''. It is our friends
who want to ride roughshod over it and perhaps maybe find another way
to curtail the appropriate dissent of the minority as has been
evidenced so many times in the past.
I think about what is going on here after a visit I made yesterday
along with others to Walter Reed Hospital, and I met a young man there.
I knew he was in a ward in an area--a single room but in an area where
the amputees are cared for. I didn't want to really inspect him with my
eyes. I reached out my hand to shake his hand, and I wound up feeling a
cloth and nothing in the cloth. His hand was missing. On the other side
his arm was missing. He is about 23 years old, full of life. My guess
is 23. I know he is young. He was positive and said, I am going to get
on with this. We had the good fortune to have former Senator Max
Cleland from Georgia who lost three limbs in Vietnam and was made out
to be unpatriotic in the last election. Figure that one out. But he had
the good judgment to ride in there in his wheelchair and look at this
young fellow who had been, by the way, 3 weeks in Iraq, and about 4
months in the Reserve; no hand on either side, and no arm on one side.
He told this young man, Have courage. There is life for you. And then
he gets visited by Danny Inouye, Congressional Medal of Honor winner,
missing an arm. He comes in to say to this young fellow, There is life
out there. You can accomplish something.
And here we stand on this nonsense. Why aren't we talking about what
the problems are in Iraq and how we solve them?
Let me read to my friends on the Republican side what a very
distinguished Republican Senator said, John McCain. Few had his
experience in military matters in a war. He said:
The Pentagon's proposed withdrawal of U.S. troops in Iraq
would be an irrational move. ``If anything,'' said McCain, a
senior member of the Senate Armed Services Committee and an
outspoken critic of the administration's postwar policies in
Iraq, ``the United States needs to increase its troop
presence in Iraq, specifically special forces and Arabic-
speaking intelligence officers. The attacks are up. The
wounded Americans are up. Killed Americans are up, and the
Pentagon announced a withdrawal or decrease in the number of
American troops. It is not reasonable or rational,'' says
John McCain.
I agree with him. Why aren't we discussing that? Why aren't we having
a marathon, 30-hour marathon, and talking about the war, talking about
what is going on and talking about what we do to make it easier on
those to make them safer, and send the 10,000 or 20,000 additional
troops John McCain says are necessary and I believe are necessary? I am
no military expert. I spent 3 years in the Army. I was a corporal
during World War II. But I know we need more there. We have to help our
troops.
Do not talk about whether we are violating the Constitution. Where is
your oath? Is it in your heart? It is the process we are talking about.
Go to the Supreme Court and have a great trip. We will escort you
there. Take and read the Constitution--just like you can, just like I
can. Forgive me--just like the Senator from South Carolina can.
That is what we ought to be talking about and not talking in front of
the American people about the process and about how fair we have to be
with judges we think are unfit and we are going to talk about it. Just
as we were threatened by the debate that went on, we are not going to
go away, as I heard the Senator from South Carolina say. We are going
to stay here. We are going to do this, and I am going to the Supreme
Court. Have a good visit. The fact of the matter is it is very clear
what our responsibilities are.
I talked about my trip yesterday to Walter Reed. On Monday, I made a
trip to the Sacred Heart Cathedral in Newark and watched a young man
who was on a Chinook helicopter. By the way, the fellow I saw in Walter
Reed was not the American amputee. The other fellow, burned, broken
bones all over his body, he was in the Chinook helicopter also. It
wasn't many days ago this fate befell them, and they were already in
the hospital here.
But Sergeant Joe Parez--25 years old, wife, little baby girl, mother,
father, brothers--was buried at the Cathedral in Newark. He was one of
the 16 who perished when the Chinook helicopter went down.
We had a brief moment of conversation. I said we would try to be of
help to the widow and the family. She is a very young woman totally
overcome by the loss of her husband.
This was a week for me that brought home reality. I saw it when I
served in Europe during World War II, and I saw it here, and I saw it
when I went to the hospital that took care of Vietnam veterans.
[[Page 28802]]
There is a price, a terrible price people are being asked to pay.
They are there. They are worried about their families. They are worried
about their jobs. They are worried about this country. They are worried
about how they are going to adjust back into society after being away
too long. We are stretching this rubberband so tight. We have
reservists who signed up for duty that included weekends and a couple
of weeks a year out in field exercises. Their job primarily was to be
there in the case of emergency, floods, natural disasters, riots, those
kinds of things that happen. But we do not talk about those. As a
matter of fact, what has happened here I find quite shocking is there
is a deliberate attempt by this administration to conceal the fact that
these dead guys are coming home in caskets, and they deserve the honor
of being acknowledged and not hidden off in some obscure air terminal
and shipped quietly in trucks to get them out of the way. Stand up, Mr.
President, and stand up, my friends on the Republican side, and demand
we have an inquiry about this instead of fooling around with 30 hours
here to prove nothing.
The Constitution tells you how it goes. Read it. Read it and tell the
truth to the American public. Stop talking about politics because that
is exactly what you are doing. You think the TV perhaps is going to get
your brave message out to the rest of the country. Yes. Our heroes
stood up and they stood up for a process. The rate, I think, is
something like $80,000 an hour it costs to put on this not very good
circus, I would say.
I say to the critics on the other side, stand up, talk about things
that affect people, tell us how we are going to get out of Iraq without
losing more of our young people. We are over 400,000. There are far
more casualties than we had in gulf war 1.
I managed to be the first legislator to be there in 1990. We had
540,000 people on the ground and we lost far fewer than we have lost in
Iraq II. Why? Maybe we were better prepared. Why? Maybe we had enough
people to make sure they couldn't maraud our troops and our units there
and decimate them, and not only break their lives but break the hearts
of the Americans across the country because they do not understand what
is happening.
This is a colossal waste of time. Face up to it. The minority
disagrees with the selection. You have seen the statistics--168 to 4. I
think the number is a very small percentage of those who have been
challenged. More judges have been confirmed in this Senate than we saw
in the entire years of the Clinton administration. We have done our
job, and we have done it well. Tempers fly high. I think they ought to.
I don't like losing my temper. But I dislike losing my mind.
That is what is happening here. This is a loss of purpose. This is
raw politics. To call it anything else is unfair and false. The
Constitution says advise and consent. It doesn't say consent and
advise. It says nothing in the Constitution, no matter how many
attributions, that we have to lay down and simply accept what the
President sends down. There are checks and balances, just as a
reminder, in case one doesn't understand that. This is a perfect
example of what it is about.
No, we will not accept people who we think are unfit. This has not
been an unreasonable Senate. We have done what we have to. We have
watched appropriations bills language all over the place. We have seen
there is hardly a serious long day of work to get the job done. But
this falsely heroic effort to make a difference in the way our society
functions is I think see-through politics. I think it is obvious what
we are watching--someone called it theater. I call it a circus. It is
not fair to the people we serve.
I hope we will be able to get on with the business of the people
soon. We have our votes tomorrow morning. I would like to see us turn
to the war in Iraq and have a serious debate about it and hear from the
high-posted officials, the Secretary of Defense, the National Security
Adviser.
I was at a briefing today. I don't know whether any of the other
Senators here were in the room. It was a relatively junior staff
presentation. The news didn't particularly have much insight attached
to it. But we went to try to find out.
We ought to make a pledge right now that we will do another 30 hours,
maybe start tomorrow night and talk about the Iraq war, talk about our
people, talk about how we are going to get them home and talk about how
we are going to end it; talk about how we are going to justify to the
American people why we are spending $20 billion for the reconstruction
of Iraq but we can't rebuild schoolhouses filled with asbestos or
otherwise.
The PRESIDING OFFICER. The minority's time is expired.
Mr. LAUTENBERG. I yield the floor.
Mr. GRAHAM of South Carolina. Mr. President, I thank Senator
Lautenberg for his services to this country. Serving in World War II is
a big deal no matter your rank. My dad was a corporal, too. If you
think it is a waste of time, have your say. This is a huge deal. The
Democratic leadership and the members of the Democratic Party have set
in motion something I don't know how to stop. I had a chart that says
in the last 11 Presidencies we had 2,372 people confirmed and not one
person filibustered. You decided to do something different. It bothers
me as much as our response bothers you. The people being filibustered
are very qualified people, in my opinion, and you certainly have your
right to disagree.
I don't believe the Constitution gives the minority of the Senate the
right to advise and consent. We have 214 years of history where the
advice and consent clause has been the Senate speaking as a majority.
What hurts the most about the filibusters, which are unprecedented and
are harmful to the country, is every nominee that is being filibustered
by our friends on the other side has enough votes to become a judge.
Literally a minority of Senators have taken it upon themselves for the
first time in the history of the country to make sure a majority of the
Senate cannot vote to confirm a judge by using a rule of the Senate.
I would like the Supreme Court to hear that case because I don't know
of any other way to make this go forward. Chances are the Supreme Court
may very well say this is not something we decide because you are the
Senate. We are the Court. These rules are your rules. They may well say
that, but I feel a need to push this as far as you can to get an answer
and try to move on and have a better future.
The future of the Senate when it comes to judges is going to be
lousy. We have four filibusters going on with another seven or eight to
come. But if we behave with each other like this, we will have hundreds
before long. As time marches on, we will have a lot of people caught in
this vise.
Senator Coleman from Minnesota made a great point, I thought. Justice
Ginsburg would not have a prayer because she has a liberal view of the
law and a lot of people on this side voted against her. But they voted
and she won the day. Justice Scalia is vilified by the left. He would
never have a shot. A lot of people on the Democrat side voted against
him. But he won the day and he is sitting on the Court. That is the
strength of the Nation. When you have someone like Ginsburg and Scalia
in a room having to talk to each other trying to find a way to move
forward in terms of judges, it is going to be very disappointing
because good people are not going to put themselves through this.
Justice Brown will be filibustered just as sure as I am standing
here. She is an African American who sits on the Supreme Court of
California. She has authored more majority opinions in California than
any other justice. I gave a rundown a while ago about her story coming
from a sharecropper family in Greenville, AL, going all the way to the
Supreme Court in California, getting 76 percent of the vote in her last
election. And you have to vote on judges in California. My argument is
that no one would get 76 percent of the vote in California if they were
the rightwing ideologue that the other side is describing.
I am not here to convince Members that I am right. I am here to set
the
[[Page 28803]]
record straight in terms of why I believe President Bush picked a good
person. If you disagree, vote against her. Don't allow the Constitution
to be changed in the way you are doing because you are putting the
country in constitutional and political quicksand. Members will regret
it down the road. I know the country will regret it.
Now, there is politics going on here. I will put a human face on
this. Justice Brown has had a pretty rough time of it in committee. She
has been very successful with her career in California. She has been
successful in every endeavor she has engaged in, serving in a variety
of capacities to the point that people want to promote her and the
three-fourths of the citizens of her State think she has done a great
job. But she comes to the Senate and she runs into a buzz saw because
she is conservative. Apparently that is a crime.
This is a cartoon by the Black Commentator, a paper. The first
amendment allows people to talk about public figures. This is just a
little bit of what it is like to be in the environment our friends on
the other side have created. This cartoon has ``Welcome to the Federal
Bench, Ms. Clarence, I mean, Ms. Rogers Brown. You'll fit right in.''
And it is a caricature of President Bush and a racial stereotype, an
offensive drawing, of Miss Brown. The people in the choir are clapping,
as Justice Clarence Thomas--a very distorted picture which is
offensive, I think--Colin Powell, African American, Secretary of State,
a great general and somebody I admire, and Condoleezza Rice, our
national security adviser, another African American who I think will
help us do a good job in Iraq. This has been a miserable experience for
this lady. I am very sorry she has had to go through this.
Over 50 percent of the Senate will vote for her when the cloture vote
comes. Pickering, Owens, Pryor, all have received over 50 votes but we
cannot get to passage because the filibuster rule requires us to get 60
votes. Therein is my problem. The Constitution does not require 60
votes to confirm a judge. There are several places where two-thirds are
required. The Constitution says you will advise and consent by majority
vote in the Senate.
They are using a procedural device, the Democratic Party is in this
case, to block a vote on what I think are well-qualified people. No one
else in the history of the country has done this before, Republican or
Democrat. This is the first time someone has come out of the Judiciary
Committee with a majority vote who cannot receive an up-or-down vote.
There are four of them with a bunch more to come.
I give no apology for wanting to try to do something about this
because, as sure as we are all here tonight, there will be a Democratic
President come later on and that person will make a recommendation to
this body, a nomination to this body, and if we do not change the way
this trend is going, it will be a miserable experience. We will get
bogged down and we will never be able to move forward as the
Constitution has envisioned. This has worked well for 214 years. This
is not time to change it.
Senator Lautenberg was right, there is a political dynamic going on
here. I am sure Republicans have been abusive in the past in terms of
the way the judges have been treated. I have heard a lot about that.
Like Senator Coleman, I am new to the Senate. I would rather not
perpetuate that problem. I would like to be someone who solved that
problem.
We have some quotes from the past that I will read quickly. Senator
Leahy, the ranking member of the Judiciary Committee, said in 1998: I
stated over and over again on this floor that I would refuse to put an
anonymous hold on any judge--that is a way of keeping a judge coming
through the committee--that I would object and fight against any
filibuster on a judge, whether it is somebody I opposed or supported,
that I felt the Senate should do its duty. If we don't like somebody
the President nominates, vote him or her down.
Very wise advice. We are not doing that at all. I don't know why we
changed but we have.
Senator Leahy, 1998: I cannot recall a judicial nomination being
successfully filibustered. I do recall earlier this year when the
Republican chairman of the Judiciary Committee and I noted how improper
it would be to filibuster a judicial nomination.
I will read before the night is over many statements in the past
where our Democratic colleagues were absolutely against the idea of
doing anything other than giving a person an up-or-down vote. That has
changed in an unhealthy way.
E-mails were talked about before. Let me read an e-mail that I think
says a lot. This came from Senator Corzine, the chairman of the
Democratic Senatorial Campaign Committee, November 3, 2003, not very
long ago, and it was sent out to raise money. I am sure we have sent e-
mails and letters saying: Help us. The Democrats are destroying all of
President Bush's nominations. That is the political environment we have
gotten ourselves into. Like Senator Coleman, I would rather not
perpetuate this. I would like to end it and move on and get it right.
Based on the prior statements of Senator Leahy and others that we
will read later on, they have changed for some reason. Now they are
going into the past and saying, we are doing this because you did that.
Where does this end? The truth is, no one has done what they are doing
now. That is just a fact.
From the e-mail:
Senate Democrats have launched an unprecedented effort.
I will stop right there. I think that is a true statement. I don't
believe Senator Corzine is misleading the donor population. I think he
is trying to tell them, folks, we are doing something nobody else has
done before. This is unprecedented. You need to pay attention. You need
to look at your Democratic Senators, pay attention to what we are
doing, because we are taking a step no one has ever taken before. What
is that step?
By mounting filibusters against the Bush Administration's
most radical nominees, Senate Democrats have led the effort
to save our courts.
This e-mail is designed, quite simply, to let people in the
Democratic Party know that the Senate Democrats have done something
different, something unprecedented, and they are filibustering the
President's nominees because they are radical. You cannot send this e-
mail out to collect money and spend 32 hours denying you are
filibustering anybody. You are filibustering judges in an unprecedented
way. And they are the Bush administration's nominees. The question is
whether or not they are radical.
If you think they are radical, vote against them. I don't believe
Justice Brown is radical. I don't think 76 percent of the people in
California who have voted would have voted for her if she was radical.
I think the attacks against her have been radical. But that is just my
opinion.
This e-mail clearly establishes the fact that the Democratic Party
has made a calculated effort in the Senate wing of the Democratic Party
to do something different, to stand up against President Bush. They are
blinded by the political moment. If we continue down this road, there
will be more e-mails such as this on both sides of the aisle and it
will be a disaster for the Constitution.
There are men and women serving in Iraq. There are people putting
their lives at stake for this country. God bless them. We all did take
an oath. They have their opinion and I have my opinion about what the
oath means. But it will not withstand the filibustering of these
nominees. It would be irresponsible on my part, given what I believe my
oath is, to just let this go and make like it is no big deal because I
think this is a huge deal.
I yield to the Senator from Minnesota.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. COLEMAN. Mr. President, following up on the comments of my friend
and colleague from South Carolina, you have to ask yourself, 214 years
and the Senate has not done this,
[[Page 28804]]
has not stopped a judicial circuit court nominee by filibuster. That is
a fact. My colleagues on the other side can argue with charts but that
is the reality.
You have to ask yourself, for 214 years was the Senate a rubberstamp
for the President? I don't think so. I don't think anyone could make
that argument. What you have is the reality that the Senate was
exercising its constitutional responsibility. And doing it in a
constitutionally responsible way.
That is what is important, doing it with respect for the
Constitution, respect for the authority of the President to set forth
the nominee, respect for the obligations upon the Senate to advise and
consent, by a majority vote. Again, the Constitution, article II, says
treaties need a supermajority, not a simple majority vote. What we have
here is the minority saying we are not living by majority votes when it
comes to judicial nominees regardless of what is in the Constitution.
That is unfortunate. It is more than unfortunate. It undermines the
principles upon which this democracy is based.
My colleague from Minnesota, the senior Senator from Minnesota,
talked about this not being unprecedented. We have done it before.
Here are the facts. This is a listing of judicial nominations subject
to cloture attempts from 1968 to 2003. I will go through every one of
them. The first one is Abe Fortas, Chief Justice. Cloture was rejected.
I will come back to whether that was even a filibuster. That was not a
partisan filibuster. In fact, it was a bipartisan effort because of
ethic complaints about Fortas but it was not a partisan filibuster.
A letter was sent to John Cornyn, chairman of the Subcommittee on the
Constitution from the former Senator from Michigan, a predecessor of my
colleague, Mr. Levin, who is sitting there, talking about the Fortas
nomination and basically saying that it was not a filibuster.
What happened, in a letter he says, while a few Senators might have
contemplated use of the filibuster, there was no Republican Party
position that it should be employed. Indeed, the Republican leader of
the Senate, Everett Dirksen, publicly expressed his support for the
Fortas nomination shortly after the President announced his choice. Our
position in 1968 to the Fortas nomination was not partisan. Some
Republicans supported Fortas; some Democrats opposed him.
Go through every listing on this chart. Outcome of cloture attempt,
may have been rejected, may have been invoked, may have been withdrawn,
but every nominee got a vote. That is what this is about. Vote them up
or vote them down but give a vote.
We have a minority for the first time in the history of this body
basically saying, regardless of what is in the Constitution, regardless
of the language of the Constitution that makes it clear that the advice
and consent is based on majority, they are changing the rules of the
game. The argument is that these candidates, these nominees are outside
the mainstream.
What is the mainstream? Who is the mainstream? Priscilla Owen
received 84 percent of the vote in the last election for the Texas
Supreme Court.
I have to tell you, I would love to see an 84 percent in any
election. Just about anybody in this body would love to see 84 percent.
They would tell you that is mainstream. That is mainstream. That is the
``wholestream.'' What is left is extreme. And that is what you have.
Bill Pryor, 59 percent in his last election for Alabama Attorney
General--59 percent.
Janice Rogers Brown received 76 percent in her last election to the
California Supreme Court.
I would note one of the Senators from California, Mrs. Boxer,
received 53 percent. Who represents the mainstream in California?
Seventy-six percent of the vote. The other Senator from California,
Mrs. Feinstein, by the way, former mayor of San Francisco--I am a
former mayor. I have great respect and appreciation for mayors. It is a
tough job. She is a great Senator. I do not always agree with her, but
she is a great Senator. She got 56 percent of the vote. Janice Rogers
Brown, who supposedly is the extreme, got 76 percent in her last
election for the California Supreme Court. That is mainstream, not
extreme.
Charles Pickering was confirmed to the Federal district court in 1990
by this body by unanimous consent. What that means is no one objected;
everybody agreed. And today he is described as extreme?
If I could go through some of the candidates, Priscilla Owen--a whole
bunch of these nominees are out of the mainstream? I am not sure what
they are talking about. She has served in the State of Texas on the
highest court. She has been given the support of 15 past presidents of
the State Bar of Texas, a bipartisan group. We are talking about the
folks who know them best.
Justice Owen was unanimously rated as well qualified by the American
Bar Association. Apparently, this unanimous rating of the American Bar
Association is out of the mainstream as well. I would submit, by the
way, the American Bar Association is not a conservative interest group.
I do not know who the members are, but I have to guess it is a
bipartisan group. I have to guess there are some Democrats in that
group.
It is clear the so-called mainstream being portrayed by some in this
body is not only an incorrect reflection of the average American but a
single-issue extreme which flows only in the direction of special
interest groups. That is really what this is about.
You have to go through the records of these folks. I went to law
school. Senator Graham went to law school. I went to the University of
Iowa, did fairly well, and served 17 years in the attorney general's
office, and solicitor general, chief prosecutor of the State of
Minnesota. But you would love to have the qualifications and
credentials of the folks here, the folks the President has nominated.
These are quality, quality, quality folks.
Then you read the statements of some of their supporters. Mary Sean
O'Reilly, lifetime member of the NAACP and a Democrat:
I met Justice Owen in January, 1995, while working with her
on the Supreme Court of Texas Gender Neutral Task Force. . .
. I worked with Justice Owen on Family Law 2000, an important
state-wide effort, initiated in great part by Justice Owen. .
. . In the almost eight years I have known Justice Owen, she
has always been refined, approachable, even tempered and
intellectually honest.
That is what you want from a judge. That is what you want from a
judge. You do not want fidelity on a single issue. What you want is the
judge to be tempered, to be intellectually honest, to apply their best
judgment, to interpret the Constitution.
Raul Gonzalez, former Democratic justice on the Supreme Court of
Texas. In Texas they elect their justices. In the elections, Democrats
run, Republicans run. Senator Cornyn, one of our colleagues, also
elected with us, is a former member of the Texas Supreme Court, former
attorney general.
Raul Gonzalez, former Democratic justice on the Supreme Court of
Texas:
I found her to be apolitical, extremely bright, diligent in
her work, and of the highest integrity. I recommend her for
confirmation without reservation.
John L. Hill, former Democratic chief justice on the Supreme Court of
Texas:
After years of closely observing Justice Owen's work, I can
assert with confidence that her approach to judicial
decision-making is restrained, that her opinions are fair and
well reasoned, and that her integrity is beyond reproach.
That is what it is about: integrity beyond approach, opinions that
are fair, well reasoned. That is what you look for in judges. You
cannot allow a minority of folks in this body to toss about the label
mainstream, fueled by folks with special interests. They are kind of
pounding the drum, and people follow that drum.
But you have to ask, who is in the mainstream? Folks who get
overwhelmingly elected by the people of their State, who receive
bipartisan support.
Another former Democratic justice on the Supreme Court of Texas, Jack
Hightower:
[[Page 28805]]
I am a Democrat and my political philosophy is Democratic,
but I have tried very hard not to let preconceived philosophy
influence my decision on matters before the court. I believe
that Justice Owen has done the same.
That is what you want. The reality is, judges are people. They have
heart and soul like everyone else. If you are a defendant in front of
them, you may worry about that. But they are people. They bring a life
experience. They bring a perspective. They bring a philosophy. You
cannot divorce that. You do not divorce that. Some may have been active
in politics. There is no question about that. They bring positions on
issues. They are not issue neutral. They have not been lobotomized.
They bring a life experience and perspective.
What we ask of them is to do what these folks--their colleagues, by
the way, are from a different political perspective--say they do. We
look to their ability to be well reasoned. We look to their ability to
have integrity. We look at their ability to put aside the preconceived
notions and simply say they will examine each case on the facts, and
apply the law, the law that is done by--yes, that is what we do. That
is what legislators do. That is what you are looking for.
Former law clerk of Justice Owen, Lori Plager:
During my time with her, I developed a deep and abiding
respect for her abilities, her work ethic, and, most
importantly, her character. Justice Owen is a woman of
integrity who has a profound respect for the rule of law and
our legal system.
That is what it is about: respect for the law and the legal system.
To be described as extreme, when you have this body of opinion of folks
who know you, who have worked with you, who have been your colleagues,
who sit side by side, who have watched you process and reason, and then
to render judgments, when they are willing to put aside their political
predisposition--and what we are asking for is our colleagues to put
aside the politicization of this process, put aside what we have done.
Do not go back on a history of 200 years. We have not allowed this to
happen on the floor of this Senate. We have not rejected judges on the
floor of this Senate by virtue of filibuster for 214 years.
Hector De Leon, past president of Legal Aid:
As the immediate past president of Legal Aid of Central
Texas, it is of particular significance to me that Justice
Owen has served as the liaison from the Texas Supreme Court
to statewide committees regarding legal services to the poor
and pro bono legal services. Undoubtedly, Justice Owen has an
understanding of and a commitment to the availability of
legal services to those who are disadvantaged and unable to
pay for such legal services. It is that type of insight and
empathy that Justice Owen will bring to the Fifth Circuit.
That is what you are looking for. You cannot do any better than that.
Do not allow folks to wave a flag and say ``extreme'' when you have
folks who in their own community, overwhelmingly--overwhelmingly--
voted, reelected her to the Supreme Court of Texas in overwhelming
numbers, and her colleagues coming forth and saying: Hey, this is a
woman who is right. This is a woman who is talented. This is a woman
who will not put the life experience she brings, perhaps preconceptions
about issues--you have folks saying she will do what judges need to do.
That is what it is about.
Before the night is over, we will talk about others. We will talk
about Bill Pryor. We will talk about Judge Kuhl. We will talk about
Miguel Estrada, who has withdrawn. We will talk about Judge Pickering.
But the common denominator in all of these, what the President has
done is he has exercised his authority under the Constitution to
nominate people who have integrity, who have the qualifications, who
have the support of those with whom they have worked, and who, in many
cases, when they have had to go before the people of their State, have
been overwhelmingly endorsed as being part of the mainstream, not the
extreme.
The PRESIDING OFFICER. The Senate majority's time has expired.
The Senator from Michigan.
Mr. LEVIN. Mr. President, how I wish we could take a week's worth of
time to debate the issues which are of some critical importance to the
people of my State; namely, the loss of manufacturing jobs and the
problems we have in Iraq. These issues, the economy in general, job
loss in particular, and loss of our troops abroad dominate the minds
and the hearts of my constituents.
But the majority has the power to take the Senate on a fruitless
cruise. That is what we are about: rehashing the merits and demerits of
4 of the 172 candidates who we have voted on in this Senate. I know
these numbers are numbers which are very troubling to the majority. I
can tell that by the fact they have attempted to come back with a whole
bunch of other numbers.
When this debate is over, when the dust is settled, what I think most
people will remember, at least in terms of the calls to my office, is,
Is this Senate being tied up, night after night, with complaints that 4
of 172 judges have not been confirmed.
Mr. President, 168 is a number now which is impressed on the minds of
people who have watched this debate and heard this debate. The number
four is a number which people now understand. Maybe the 98 percent
confirmation rate is not quite at the same level as these 2 numbers,
but those numbers--168 of President Bush's nominees confirmed by this
Senate, 4 have not been confirmed by this Senate--those 2 numbers are
very much emblazoned in the minds of people across this country.
In rejecting these four, the Senate has exercised its advise and
consent function according to our rules. It has carried out the checks
and balances role according to the Constitution that gives us a check
and a balance, according to the rules of the Senate.
I want to go back a little bit in history. We have heard quite a bit
tonight that this is the first time a filibuster has been used against
a judge on the floor of the Senate. I will get into this in a little
more detail. I hope to have a little time to talk about the economy and
manufacturing job loss, and other things which are very much on the
minds of my constituents.
But since the majority has decided to set aside this time, mainly to
debate the fact that only 98 percent of the judges who have come before
us have been confirmed, and have now suggested, over and over and over
again, that filibusters have never been used relative to judges, this
is the New York Times headline of September 25, 1968 relative to Abe
Fortas: ``Critics Of Fortas Begin Filibuster. . . .'' This is what the
Senate Web site says about that filibuster. This is not a Democratic
Web site. This is the Senate Web site for the date October 1, 1968:
``Filibuster Derails Supreme Court Appointment.'' That is a Senate Web
site.
Folks on the other side, our colleagues on the other side, are
saying: Well, what about circuit court nominees? We sometimes hear
those words put in there when the statement is made that filibusters
have not been used to derail judicial nominees. Sometimes the words
``circuit court nominees'' are put in there instead of ``judicial
nominees,'' sometimes the words ``circuit court'' are left out,
sometimes they are included.
If circuit court nominees have not been derailed by filibuster, it is
not for a lack of trying. The complaint of our colleagues on the
Republican side, it seems to me, more accurately would be: Well, we
have tried filibusters many times, but we have not succeeded. You folks
are succeeding.
That is the complaint when you strip away the rhetoric and look at
the reality. If filibusters have not succeeded in derailing circuit
court nominees of Democratic Presidents by Republican Senators, it is
not for lack of trying. Because the effort was made over and over and
over again with Clinton circuit court nominees. The difference is, the
filibuster effort did not succeed because the supermajority, which was
required during those filibusters, was achieved for those circuit court
nominees. That is the difference.
This is not at all unprecedented. This use of extended debate
requiring a cloture vote on judicial nominees has been used repeatedly.
It has not succeeded repeatedly, but it has been used repeatedly.
One of our Republican colleagues, during a debate on a nominee--this
is
[[Page 28806]]
not a judicial nominee, but this is a nominee which is subject to this
exact same language of the Constitution about advise and consent as our
judicial nominees are--when a Clinton nominee to be Ambassador was
before us, and there was a filibuster underway and that nomination was
blocked, this is what one of our colleagues said. Now this was in 1994,
and the Senate was controlled by Democrats. The White House was
controlled by Democrats. The House of Representatives was still
controlled by Democrats. Our Republican colleague here in the Senate
was pointing out the only power that was left to Republicans was the
use of a filibuster and forcing a cloture vote. And I emphasize, this
is on a nominee who had exactly the same rights or lack thereof to an
up-or-down vote as a judicial nominee because the nomination is
governed by the same advise and consent clause of the Constitution as
our judicial nominees. Here is what our colleague said:
In considering the nomination of Mr. Samuel Brown to be
Ambassador . . . I have reflected on the latitude which ought
to be accorded the President in making this decision for the
Ambassadorship, reflecting as well on the constitutional
responsibility of the Senate for advice and consent as a
check. I am troubled by a situation where the only pressure
point Republicans have in the U.S. Government is on cloture.
Once cloture is obtained, there are more than enough votes on
the other side of the aisle to cover the day. While the House
is not involved in this matter, the House is overwhelmingly
Democratic. There is a Democrat in the White House. The only
place that Republicans can assert any effective, decisive
action is by stopping somebody from coming up. We have 44
votes and we have more than enough, if there is unity among
the Republicans, to do that. I think Mr. Brown's nomination
and the responsibilities of the Conference on Security and
Cooperation in Europe are sufficiently important to preclude
his nomination.
That is what our Republican colleague said in 1994:
The only place that Republicans can assert any effective,
decisive action is by stopping somebody from coming up. We
have 44 votes.
That has been the case not just with ambassadorial nominations but
with other nominations subject to the advice and consent clause. The
only difference with the circuit court nominees of President Clinton,
for instance, who were filibustered is that there was not a
supermajority to stop the confirmation of the judges. That is not a
distinction which I would think the Republicans in this debate would
want to emphasize, but it is a distinction in fact.
Mr. President, 168 of this President's nominees have passed the test;
4 have not. When the filibuster has been used relative to those four,
the rules of the Senate which provide for that to occur, and there was
not a supermajority, then those nominees have not been confirmed.
What is at stake here is the functioning of the Senate as a check and
a balance on executive power. Our Republican colleague who spoke that
way in 1994 was exactly right. He was using the rules of the Senate in
a totally appropriate way and saying that the only way we can stop
this, the only way the minority has a voice, if we feel so deeply that
there are 41 or more of us who wish to stop this nominee from being
confirmed, we must use the filibuster, and we must force a cloture
vote. Checks and balances are what are at stake here. The historic role
of the Senate is what is at stake here.
Then-Senator Lyndon Johnson, in March of 1949, said the following
relative to these checks and balances:
A man elevated to the Office of the President has virtually
unlimited powers of influence over his country. His own
personality is a force of great impact upon all the people of
the Nation and, in fact, upon the people of the world. Add to
those powers directly all those less conspicuous powers of
his aides, his administrative agencies and the multitude of
channels which feel his influence, and you have a force no
other representative government has even trusted for long to
one man.
If on occasion you grant to this titular head of government
the further intoxicant of an overwhelming majority of loyal
supporters in the legislative branch, then you have a force
well nigh irresistible. The distinctions between legislative
and executive are difficult to preserve under such
circumstances. Mere memorandums become laws and laws become
mere memorandums. In such a situation, which happily is more
hypothetical than historical, the entire theory of our
Government system of checks and balances dissolves and
evaporates. The right to check and balance was not granted to
the majority because a majority rarely seeks control over
itself. Those rights were conceived and installed in the
Constitution solely as safeguards for the minority.
He said:
I am no historian, but as I have studied the history of
governments gone before us, I have been impressed by the fact
that the freedom of unlimited debate in legislative chambers
has been given up many times by members themselves who are
irritated or frustrated by a minority. But so far as I have
found, once that freedom was yielded, it has never been
returned. If we now give up this freedom in the Senate, I,
for one, do not expect to live to see its return.
Much has been stated here about filibusters on the floor of the
Senate. Too little has been said about stealth filibusters which occur
in committee. Political scientist Sheldon Goldman of the University of
Massachusetts, who is a neutral observer of the process, said the
following in a Los Angeles Times article on November 6:
The Bush administration has been spectacularly successful
in getting the overwhelming proportion of its judicial
nominations confirmed. There are only a relative handful
being filibustered and held up, and this contrasts with the
dozens of Clinton nominees who were held up by the
Republicans in the last 6 years of the Clinton
administration.
Professor Goldman expressed it this way:
The Republicans obstructed quietly in the committee. If
they didn't want to approve you, you just didn't get a
hearing.
Here is one example. Kent Markus was nominated by President
Clinton for a seat on the Sixth Circuit. He testified to the
Senate Judiciary Committee on May 9, 2002, as follows. To
their credit, Republican Senators told him two things.
There will be no more confirmations to the Sixth Circuit
for the Clinton administration.
Two:
This has nothing to do with you. Don't take it personally.
It doesn't matter who the nominee is, what credentials they
may have, or what support they may have.
Mr. Markus went on to testify that one Republican Senator told him
the following:
This is bigger than you, and this is bigger than me.
Senator Kohl, who kindly championed his nomination in the Judiciary
Committee, encountered a brick wall. The fact was a decision had been
made to hold the vacancies and see who won the Presidential election.
With a Bush win, all those seats could go to Bush, rather than Clinton
nominees.
That is what happened. That is exactly what happened to Kent Markus
and his nomination. A hearing was denied to him. A vote was denied to
him. And if there is some constitutional right which is being created
here on the floor, I assume Kent Markus was denied his constitutional
right to a vote, as were the dozens of other nominees of President
Clinton who never got a hearing, much less a vote.
I can't believe for one minute that any court, even if it reaches the
merits of this case that is going to be brought, would say there is a
constitutional right to have your nomination voted on when there are so
many ways of blocking a nomination from getting a vote, starting with
not having a hearing, starting with not having a markup, starting with
not reporting a nomination to the floor, starting on the floor not
reaching a vote up or down.
When the Republican Senate denied committee hearings and votes for 63
judicial nominees and more than 200 executive branch nominees, they
blocked a vote on those nominations. That was their right. They may
have done the wrong thing in doing so, but they had a right to do so. I
wish they hadn't. I wish they had allowed those to come to hearings. At
least have a cloture vote, if nothing else, on the floor, but that was
not to be.
There are a lot of ways you can have a vote on this floor. One of
them is a cloture vote and one of them is a vote up or down. But these
63 judicial nominees never even got to a cloture vote, never even got
to see if there could be a supermajority put together for them under
our rules on the Senate floor.
It is remarkable to me that our colleagues on the other side of the
aisle make the claim that blocking nominees from having an up-or-down
vote
[[Page 28807]]
on the Senate floor is unprecedented, given the actions during the last
administration.
Republicans filibustered several Clinton nominees on the floor of the
Senate, including Richard Paez, Marsha Berzon, Rosemary Barkett, and H.
Lee Sarokin. Cloture votes requiring supermajorities were required to
be produced for each of them.
Our colleagues say these nominees were not blocked by a filibuster,
which is an artful way of saying that the effort at the filibuster
failed. That is very different from saying that the filibuster was not
tried. It was. Cloture votes were required but supermajorities were
obtained. That is the difference between those Clinton nominees and
these four nominees. Here supermajorities have not been obtained.
Therein lies the difference. Same cloture votes, same type of cloture
votes required, but cloture was invoked for Berzon, Barkett, Paez, and
Sarokin. Supermajorities supported those nominations, and the
opposition had a right to force those votes. That required a
supermajority. They had a right to filibuster, and, in fact, did so.
Two of President Clinton's nominees, not judicial but nominees, still
governed by that same advice and consent clause in the Constitution,
were defeated by filibusters. One was Henry Foster nominated to be
Surgeon General, and the other one was Sam Brown nominated to be
ambassador. The argument relative to that nomination was quoted by me
at some length a few moments ago where a Republican colleague within
his rights using the rules said: We have only to put together 41
Republican Senators and we can block this nomination. It is the only
way to block a nomination with which we fervently disagree.
Given the fact that the Democrats didn't control the White House, the
Democrats controlled the Senate, our Republican colleague pointed out
accurately that the only way to block that nominee was by use of the
filibuster. Were his constitutional rights violated? I don't think so.
I think he was given consideration by the Senate in the way that the
Senate decides to consider nominees, and it can consider nominees in
many ways.
It can decide never even to give a nominee a hearing should it
choose. I don't think that is a wise course, in most cases, but should
the Senate choose not to give a nominee of the President a hearing,
that is the Senate's decision. Or after a hearing, if it decides not to
have a markup to vote that nominee either out of committee or to defeat
that nominee, that is the Senate's decision. Should a chairman, acting
alone, decide not to put a name on a markup, that may be that
chairman's power.
So the suggestion that requiring a supermajority vote by filibuster
is new to the Senate is just simply wrong. We can argue--legitimately
argue--and disagree over whether or not the Senate should give up this
important check and balance on Presidential power, but we cannot argue,
it seems to me, that it is unprecedented in its exercise.
Here are the words of one more of our colleagues during a filibuster
of a Clinton nominee on March 3, 2000. During the filibuster of the
nomination of Judge Richard Paez to the Ninth Circuit, this is what our
colleague said:
I say to the American people who may be listening right
now, judges impact our lives big time in the decisions they
make. Citizens complain about violence and the criminals
getting out. There are bad judges making bad decisions that
cost Americans their liberties, cost them their lives
sometimes. That is wrong. We have an obligation in the Senate
to take a good hard look at a lifetime appointment to the
circuit. The members are there forever, even when they get
real old. It is pretty hard to get rid of them. This is a
lifetime appointment. We have a responsibility to make darn
sure these judges are going to represent the views of a
majority of the American people in terms of the law. I intend
to do that as long as I can stand here to do it.
He didn't have 39 others or 40 others to stand with him. As a result
of that, there was a supermajority for that judge, but it was despite
the filibuster. It wasn't that there was no filibuster. It was despite
the filibuster which the Republicans had a right to stage and did
stage. But most Republicans decided, or at least enough Republicans
decided not to continue that filibuster but, rather, to invoke cloture.
To suggest the filibuster has never been used flies right in the face
of history and recent history, as well as the history of Abe Fortas.
Historian Robert Caro wrote the Rules Committee of this Senate as
follows:
In short, two centuries of history rebut any suggestion
that either the language or the intent of the Constitution
prohibits or counsels against the use of extended debate to
resist Presidential authority. To the contrary, the Nation's
Founders depended on the Senate's members to stand up to a
popular and powerful President. In the case of judicial
appointments, the Founders specifically mandated the Senate
to play an active role, providing both advice and consent to
the President. That shared authority was basic to the balance
of powers among the branches.
He continued:
Surrendering such authority is not something which should
be done just because of a Senator's point of view on the
particular issue of the moment--because much more than the
particular issue is involved. What if a Senator--let us say a
Senator from a small population state without any other means
of defense votes to support a new limitation on debate today.
What will he [or she] do in some future year when he is
trying to stop a bill or a nomination that a bare majority of
the Senate supports, but that he and 40 colleagues believe
would be terribly detrimental to their states or to the
nation. . . . What will he feel when he suddenly realizes
that his right to hold the Senate floor against that action
has been so greatly reduced that the bare majority can
silence him before he is finished making his case? What will
he do when he realizes that, without the right of extended
debate his cause is ultimately helpless?
Finally, I ask unanimous consent that the letter from Senator
Corzine, which has been referred to, apparently a fundraising letter,
be printed in the Record in full because I think the words which were
quoted by my friend on the other side had some very critical dots in
there, and I think the dots should not have been there. The two
sentences should not have been pushed together as though they were one.
The document of Senator Corzine says the following:
Senate Democrats have launched an unprecedented effort to
protect the rights of all Americans by keeping our courts
fair and impartial.
That is the unprecedented effort. The next sentence is:
By mounting filibusters against the Bush Administration's
most radical nominees, Senate Democrats have led the effort
to save our courts.
The suggestion that the words read ``an unprecedented effort to mount
filibusters'' is not an accurate reflection of that letter. The dots
which were in the chart, it seems to me, take the place of some very
critical words making two sentences look as though it is one sentence.
I ask unanimous consent, just so we can have full disclosure of this
letter, that this letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Despite the administration's desire to ignore the
Constitution's rule of ADVICE and CONSENT, Senate Democrats
are holding Republicans accountable.
Why must the Democrats continue their fight against Charles
Pickering?
While in law school, Mr. Pickering wrote an article
suggesting ways the state of Mississippi could better enforce
its ban on inter-racial marriage.
As a state senator in the 1970's, Mr. Pickering worked to
repeal important provisions of the Voter Rights Act.
In 1994, he went out of his way to seek a more lenient
sentence for a convicted cross-burner.
Once defeated when Democrats had a majority in the Senate,
President Bush nominated Charles Pickering for a second time
after the 2002 elections and now two successful filibusters
launched by Senate Democrats have kept him off the bench!
The Bush Administration is devoted to using the courts to
its political advantage. Time and again, this administration
has nominated ultra-conservative candidates who are zealously
devoted to advancing corporate interests, taking away
reproductive freedom, smashing the wall of separation between
church and state, and dismantling equal opportunity.
But the Administration has got a big problem: Senate
Democrats. Senate Democrats
[[Page 28808]]
have launched an unprecedented effort to protect the rights
of all Americans by keeping our courts fair and impartial. By
mounting filibusters against the Bush Administration's most
radical nominees, Senate Democrats have led the effort to
save our courts.
Help the Senate Democrats keep fighting. Support the DSCC
efforts to help elect more Democrats to the Senate--and keep
the proven leaders we have. Help the DSCC send a message to
the Bush Administration--Senate Democrats will NOT rubber
stamp extremist judicial candidates. Help us fight to
maintain judicial integrity by sending more Democrats to the
United States Senate in 2004.
Contribute Now!
Sincerely,
Senator Jon Corzine.
Mr. LEVIN. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER (Mr. Allard). Forty seconds.
Mr. LEVIN. I thank the Chair and thank my colleagues. I am happy to
share with them the feeling that somehow or another hopefully we can
find a way some day to get over the place we are at, not just on judges
but on all of these nominees.
I look forward to that Supreme Court case which my friends are going
to file. I think it would be just fine to have the Supreme Court rule
on this issue to clear the air on it. I have great confidence that they
will support the right of the Senate.
The PRESIDING OFFICER. The minority's time has expired.
Mr. LEVIN. I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. COLEMAN. Mr. President, I have the greatest respect for my
colleague, the Senator from Michigan. He serves as the ranking member
on the Subcommittee on Investigations, which I chair, and serves this
body as ranking member of Armed Services. He is a credit to this
institution.
I disagree with him, however, in his interpretation of the reality of
the history of this body. It is very clear that this body has not
successfully filibustered a circuit court nominee in its history. The
one case that is mentioned again is Abe Fortas.
As I indicated earlier, this was a bipartisan effort. It was not a
partisan filibuster. So what we have here on the floor today is the
first partisan filibuster, and the purpose is clear. My colleague has
said this is the only tool that the minority thinks they have to stop
the President from exercising his authority, but I think that he is
right when he says the historic role of the Senate is what is at stake
here.
I say that because we have to reflect upon how our colleagues who
preceded us--by the way, some of them are still here in some of the
cases he talked about--what was going through their minds when they
were faced with the same circumstances we are faced with today; that
is, a group of folks in the majority in many cases who objected to a
particular nominee.
We can use the Clinton years as an example. There was a Republican
majority for 6 years of President Clinton's term. No judicial nominee,
not one judicial nominee, was ever deprived of a vote on the floor of
the Senate. That is what we are talking about, a vote on the floor--not
one.
My colleague and friend from Michigan made reference to the cases of
Marsha Berzon and Richard Paez in the year 2000, Ninth Circuit.
Although most Republicans opposed their confirmation--and we heard some
of my colleagues earlier tonight. Senator Sessions talked about that
case. Senator Lott talked about that case. He was majority leader at
the time. They also opposed any effort to prevent the full Senate from
voting on their nominations. They did so and they told you it was
because of their reverence and respect for the historic role of the
Senate. That is what is at stake. That is the principle that has guided
us for 214 years before today, before this 108th Congress.
Colleagues had the opportunity to invoke cloture only if the
Republican majority said we were to go along, and it was not because,
as my colleague from Michigan somehow inferred, that they could not
kind of put together the necessary votes to block it. No. What happened
is that they were not willing to ignore the history and the tradition,
and I think most importantly what the Constitution says, and that is
that supermajorities are not required to confirm nominees for circuit
courts.
Debate on each of these nominations, Berzon and Paez, lasted only 1
day and a majority of Republicans joined all Democrats in supporting
cloture motions for debate on each nomination, including over 20
Republicans who would eventually vote against confirmation and a
majority of the Republican members of the Judiciary Committee. Senator
Hatch talked about that.
So our colleagues at that time faced two candidates in the Ninth
Circuit. By the way, that is the same circuit that ruled the phrase
``under God'' unconstitutional. That is the same circuit that initially
was going to prevent the California recall from taking place until
finally en banc the entire circuit had to come together and change
that.
In neither case did Republicans mount a party-line filibuster effort
to prevent voting on a nominee. In fact, Majority Leader Lott filed the
cloture motions for the above debates. So what we have is not what my
friend and colleague from Michigan would infer, that somehow before
there was simply an ability--yes, there were cloture motions and either
they were invoked or they were rejected, and that somehow they were
invoked and that is why you were able to vote on it. No. Here you had
the Republican majority leader file the cloture motions for Berzon, for
Paez. My colleague, Senator Sessions, said: I opposed them. I voted to
support cloture. I voted against the nomination, and that is what we
are asking for.
Follow the history. That is what is at stake, as Senator Levin said,
the historical role of the Senate. If it has changed it, it has changed
it at great risk.
The situation was similar in 1994 when some Republicans voiced
objections to President Clinton's nomination of H. Sarokin to the
United States Court of Appeals of the Third Circuit. A majority of
Republicans supported a cloture motion after a relatively brief period
of debate and cloture was invoked by a vote of 85 to 12. Judge Sarokin
was then confirmed by a vote of only 65 to 35. Twenty-three then of my
colleagues supported cloture. The majority supported cloture. Yet at
the same time they voted against the candidate. That is the history of
this body. That is what the Constitution requires.
I am told that the only judge nominated by President Clinton who
faced a partisan filibuster was that of Brian Theodore Stewart, a
nominee to the Federal district court in Utah. However, it was Senate
Democrats who filibustered the nominee in protest over purported delays
in bringing other judicial nominees to the floor. A cloture motion was
voted upon on September 21, 1999, and failed, falling short of the 60
votes by a vote of 55 to 44, with all Democrats except Senator Moynihan
opposing cloture.
Once again, Democrats' objection was not to Judge Stewart himself and
on October 5, 1999, the Senate confirmed him by a vote of 93 to 5. So
for all the handwringing that we heard about the treatment of President
Clinton's nominees, one is very clear: Every single one of them got a
vote.
The fact is that what happened here is that my colleagues followed
the history and tradition of this body and said they would make sure
they got a vote because that is what the Senate is called upon to do,
advise and consent. There is a principle of majority rule, a principle,
again, espoused in this document, in this Constitution, of the United
States.
My colleague also implied that it is just fine to prevent an up-or-
down vote on at least 4 of these nominees because we blocked 60 of
President Clinton's nominees. I have two observations about that, and I
know this is what frustrates me and my colleague Senator Graham. The
fact is that there is and has been a tradition in this body, shortly
before the end of the President's term. What happens is that folks kind
of say, well, let's see who the new guy is, see what happens, and they
slow it up.
The numbers are even more stark, by the way, if we compare the number
of nominees left hanging at the end of the
[[Page 28809]]
first Bush administration by Senate Democrats with the number of
Clinton nominees awaiting confirmation at the end of the Clinton
administration. The Democrat-controlled Senate left 54 of the first
President Bush nominees unconfirmed at the end of 1992. In contrast, at
the end of the Clinton administration, 41 nominees remained
unconfirmed.
Let's stop that practice, unless a game is being played, unless these
are clearly unqualified nominees, unless there is some reason to
suspect we are not having qualified folks coming before us and we are
playing politics.
On the other hand, well, they did it to us and we are going to do it
to them. It is like the Hatfields and McCoys, like Montague and
Capulet. It is like a family feud. It is futile and it needs to stop.
It needs to change.
I appreciate the comments of my friend Senator Levin at the end
saying maybe we can get beyond this. I hope we can get beyond this. I
hope we can do what Senator Graham talked about when we started this
conversation a little over 3 hours ago and he said let's look to the
future.
The future is only going to be a bright future if we, one, follow the
dictates of the Constitution, understand that there is this concept of
majority rule, that the Constitution dictates that these nominations be
dealt with on a majority basis, and that this body respect the history
and tradition. That is what we have.
Then, of course, it is the responsibility of the President to bring
forth qualified nominees and get past the rhetoric of extreme. I dealt
with Priscilla Owen. Let me talk about Bill Pryor, for example. Alabama
Attorney General Bill Pryor, nominee to the Eleventh Circuit, has
earned a reputation as one of America's most experienced and esteemed
State attorneys general. His nomination has received overwhelming
support from across the ideological and political spectrum. Mr. Pryor
was appointed attorney general of Alabama in 1997 and was
overwhelmingly reelected; outstanding credentials. He was a law clerk
for civil rights legend, the late Judge John Minor Wisdom.
Senator Lamar Alexander, also one of our newer brethren, fraternity
of those who just got elected this year, had an opportunity to work
with Judge Wisdom, who is, by the way, one of the great civil rights
legends. Attorney General Pryor worked for him. Pryor graduated magna
cum laude in 1987 from Tulane University School of Law and was then
chief of the Law Review. What is interesting is that Attorney General
Pryor is being attacked as being extreme. He is a man, by the way, who
does have very strong beliefs. He is human. He has strong beliefs. That
is not a bad thing. That is a good thing.
He is a person who has shown that he is willing to put his beliefs to
the side to look at the law and to interpret the law, and that is what
we expect a judge to do.
My friend Senator Graham and I have talked about this. We talked
about Bill Pryor. There is the chief judge in Alabama, who was involved
with the case about the Ten Commandments in court. The courts have said
that is unconstitutional.
Now, I suspect General Pryor believes that is probably a good thing,
but General Pryor then leads the effort to challenge--in effect, to
prosecute--the chief justice saying the law has to be enforced. That is
what it is about.
Bill Pryor has also been a moderate voice in the partial-birth
abortion debate. By the way, that is a mainstream position, but a court
decision came down and challenged the Alabama law. General Pryor, in
accordance with his duty to defend the statute, that is what he did. He
then exercised that authority putting aside what I am sure are personal
opinions to enforce the law. That is not extreme. That is mainstream.
That is what we want on a court.
Yes, we have people of character, principle, and strong beliefs. What
the other side has done is they take folks who have these strong
beliefs, who then espouse them. Along the way they may give a speech,
they may give a writing, and then they wave that around to see how
extreme they are, but we have to judge people by their actions. We have
an attorney general who puts aside his personal beliefs to say he will
enforce the law. That is what you do.
My distinguished colleague who will take the floor after me, Senator
Pryor, was a former attorney general. I know he operated in the same
way. That is what he would expect of his colleagues, put aside personal
beliefs to enforce the law. That is what makes a good judge. Vote them
up, vote them down. Give them a vote.
I yield the floor to my colleague, Senator Graham.
Mr. GRAHAM of South Carolina. I thank the Senator for yielding. I
think he did a very good job of trying to explain the best we can that
this has never been done before, that this is truly a new era for the
Senate. We are filibustering judges who have been reported out of the
Judiciary Committee for the first time in the history of the country.
That fact will never go away. It has never happened before. Abe Fortas
was not a partisan filibuster. Republicans and Democrats thought the
man was not qualified to be chief judge because of some ethics
complaints, and the President withdrew it. But you had Republicans and
Democrats banding together trying to send a message to the President
that they did not think this person was promotable. They had 4 days of
debate. It was not a filibuster. It wound up being a bipartisan effort
to come together to send a message to the President.
There is nothing bipartisan about this other than the fact that every
nominee who is being filibustered has Republican and Democratic support
to sit on the bench in a majority fashion. That is the problem here,
that if all of these people who are being filibustered had their day on
the floor, an up-or-down vote, they would be judges and they would have
Democratic votes. One of them has 55, we believe, because 55 people
have voted to allow a vote on the floor. That is important.
These people would be judges, just like the two Senator Lott
intervened on. The two Democrats who were being opposed by some Members
of the Republican Party, Senator Lott stepped in and stopped it. He
filed a cloture motion and it passed overwhelmingly to end debate, and
they are sitting on the bench today. Good for him. I am glad he did it.
I want to be fair, too, to Senator Corzine. There is nothing wrong
with people talking about issues before the Senate in trying to get
money sent to the parties. Both parties do that. I have never suggested
that Senator Corzine has done anything wrong. I am just trying to put
in perspective what this debate truly is all about, because when you
are out there talking to your base about what you are doing that can be
a pretty good evidence of what is in your heart and what you mean to
do.
Now I have the whole document. This chart is an excerpt from a
November 3 fundraising e-mail sent out by Senator Corzine, the head of
the Democratic Senatorial Campaign Committee. It says:
Senate Democrats have launched an unprecedented effort . .
. By mounting filibusters against the Bush administration's
most radical nominees, Senate Democrats have led the effort
to save our courts.
I have been saying for days now that this e-mail indicates that they
view this to be an unprecedented effort by Democratic colleagues and
the unprecedented effort is mounting filibusters. But this dot, dot,
dot, now I have the whole e-mail and I do want to be fair. I do not
think it has changed a thing. Having looked at the e-mail, I think it
reinforces my point.
This is what the actual paragraph says in full:
Senate Democrats have launched an unprecedented effort to
protect the rights of all Americans by keeping our courts
fair and impartial. By mounting filibusters . . .
I think a fair reading, a fair interpretation of the English
language, is that the unprecedented effort refers to the filibusters.
They are throwing in some nice language about being fair in there.
Nothing has changed.
This was an e-mail sent out to try to tell Democrats that we are up
here
[[Page 28810]]
fighting Bush in an unprecedented way by filibustering his judges
because we think they are radical. This e-mail is about a particular
judge, and I am going to read the whole thing. This is the way it is
entitled:
Senate Democrats protect our courts again. Dear Erin,
Senate Democrats have stopped another judicial extremist who
wants nothing more than to turn back the clock on fifty years
of progress on civil liberties. Reproductive freedom, equal
opportunity, and corporate accountability again.
What a lousy person that is--that is me stating.
After being defeated under a Democratic controlled Senate,
controversial judicial nominee Charles Pickering was defeated
again on Thursday by Democrats in the Senate.
For the first time in history, a President of the United
States re-nominated a judicial nominee that the committee had
already voted down but the Senate Democrats stopped the Bush
Administration in its tracks.
That is true. When the Democrats had control of the Senate, Judge
Pickering was voted down on a party-line vote. The President has a
right to resubmit the nominee. I am very glad he did because this time
he came out of committee on a party-line vote.
We just have a different view of whether or not this man is a racist,
because there is no other way to interpret what this e-mail is saying
about this man.
Continuing:
Despite the administration's desire to ignore the
Constitution's rule of advice and consent, Senate Democrats
are holding Republicans accountable.
Why must the Democrats continue their fight against Charles
Pickering?
While in law school, Mr. Pickering wrote an article
suggesting ways the State of Mississippi could better enforce
its ban on interracial marriage.
As a State senator in the 1970's, Mr. Pickering worked to
repeal important provisions of the Voter Rights Act.
In 1994, he went out of his way to seek a more lenient
sentence for a convicted cross-burner.
They have described somebody who is not what you would want to have
on the bench. There is no other way to say it other than this e-mail is
directly and indirectly suggesting Charles Pickering is racially
motivated. What a horrible thing to say about somebody if it is not
true.
Once defeated when Democrats had a majority in the Senate,
President Bush nominated Charles Pickering for a second time
after the 2002 elections and now two successful filibusters
launched by Senate Democrats have kept him off the bench!
The Bush Administration is devoted to using the courts to
its political advantage. Time and again, this administration
has nominated ultra-conservative candidates who are zealously
devoted to advancing corporate interests, taking away
reproductive freedom, smashing the wall of separation between
church and state, and dismantling equal opportunity.
But the Administration has got a big problem: Senate
Democrats. Senate Democrats have launched an unprecedented
effort to protect the rights of all Americans by keeping our
courts fair and impartial. By mounting filibusters against
the Bush Administration's most radical nominees, Senate
Democrats have led the effort to save our courts.
Help the Senate Democrats keep fighting. Support the DSCC
efforts to help elect more Democrats to the Senate--and keep
the proven leaders we have. Help the DSCC send a message to
the Bush Administration--Senate Democrats will NOT rubber
stamp extremist judicial candidates. Help us fight to
maintain judicial integrity by sending more Democrats to the
United States Senate in 2004.
That is the e-mail in its entirety. Now the accusations in that e-
mail are strong, they are direct, and I think vicious. Judge Pickering,
according to this e-mail, is someone who wanted to keep the interracial
marriage statute alive when he was in law school by writing law school
papers in support of this. He went out of his way in 1994 to make a
sentence more lenient for a convicted cross burner.
The only thing a rational person would receive from that litany is
Judge Pickering is friendly to a cross burner. If that is true, he
should never have been a judge for 30 seconds. If the other things are
true, it was a huge mistake to ever advance this man forward.
But here is the problem I have with believing what is in this e-mail.
Number one, I have met the man. I have talked to him. I served in the
House with his son, Chip, who is one of the nicest, brightest young men
I have ever met. This e-mail describes him as a very intolerant,
racially insensitive person. But I can tell you without a doubt from
personal experience he did a great job as a father because his son is
anything but racially intolerant. His son is a wonderful young man.
If that e-mail is true, then you explain to me how the American Bar
Association could give him the highest rating possible, well qualified.
Did they miss this racial past? Or do they condone it? How about this,
maybe this is a cut-and-paste job and they didn't buy it. He graduated
first in his class; 99.5 percent of the cases were affirmed or not
appealed. His reversal rate is below the national average, two times
lower than the average district judge in the Fifth Circuit Court of
Appeals. He has never had a voting rights case appealed or reversed. He
has never had a formal discrimination case reversed in 170 cases and is
endorsed by the current president and 17 past presidents of the
Mississippi State bar. Maybe they are all racist, too. He is endorsed
by all major newspapers in Mississippi. He is endorsed by all statewide
elected Democrats and the chairman of the Mississippi legislative black
caucus. He was endorsed by former Democratic Governor William Winter,
Bill Waller, former Democratic lieutenant governor, and the list goes
on and on and on.
Other people object, but I assure my colleagues this e-mail is a
distortion of this man. Here is the Judge Pickering I have come to
know. In 1967 when Mississippi was red hot and racial tensions were
very high in the South, particularly in Mississippi, he served as an
elected county prosecutor. He was asked to testify against the Imperial
Wizard of the Ku Klux Klan of Mississippi. He took the stand against
the Imperial Wizard successfully but lost his job. He was not in the
mainstream; he was swimming upstream.
In 1967, when schools were integrated in Mississippi--and I have told
the story about integration in South Carolina--he chose to keep his
children in public schools at a time when White flight was the dominant
way of dealing with the problem in that part of Mississippi. You will
see class photos in that era of a lot of African-American children and
a smattering of White kids. Among those White families, White kids,
were Judge Pickering's kids.
He chose at a time, when others did not in large numbers, to try to
make Mississippi better. He has been head of the Mississippi Baptist
Association. He has been on the Federal bench for a dozen years, rated
well qualified by the American Bar Association.
Of all the events that have occurred in the Senate since I have been
here, this one bothers me the most because southern White males are
very open to the accusation that we are racially insensitive, due
mostly to the way the South has conducted itself.
When I grew up, my family had a restaurant and African Americans came
to get their food and to buy a beer and they had to leave because there
was no mixing of the races until I was in high school. That is not
something to be proud of. Judge Pickering was part of the solution.
What they are trying to cast this man as being is unfair to him; it
is unfair to his family. If you believe it to be so, you can vote
against him. But he is the best example of how sick the Senate has
become.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. COLEMAN. I ask unanimous consent we use 5 more minutes of the
majority's time and we subtract it from the next hour.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COLEMAN. Mr. President, I will continue the Pickering story
because I think it is important.
My colleague, Senator Graham, has done a tremendous job of laying it
out. I don't know Judge Pickering's son as well as Senator Graham does,
but I have met him. I have to go beyond that.
Senator Graham mentioned when he was in law school that he wrote an
article on interracial marriage. That was in 1959. He was assigned to
write an article. It was required, not voluntary. It
[[Page 28811]]
was an academic exercise. The article evaluated various State laws on
interracial marriage. He took no position on the moral nature of these
laws nor did he advocate or condone the ban on interracial marriage. He
was given an assignment and required to do it.
In the case of the cross burning--and I am a former prosecutor and I
have seen this happen--he simply sought precaution in sentencing. There
was a bad investigation done by the Clinton Justice Department. They
recommended a plea bargain to the guy in the cross burning who was the
ring leader. So he gets off. There is a trial then for the other guy.
Judge Pickering is there and he sees it is simply not proportioned. He
told the guy he tried, who was not the ring leader--but the other got
was off the hook. He said what he had done was heinous and dastardly
and would not be tolerated and someone would have to spend time in the
penitentiary for his act and ruled according to the sentencing
guidelines. On and on.
This is an individual who, again, sent his kids to interracial
schools in the 1970s. This is a guy who testified against the KKK. This
was a death sentence.
In 1985, he was president of the Mississippi Baptist Association, and
he presided over the first convention addressed by an African-American
pastor.
I could go on and on and on. Again, what we have here is mainstream,
not extreme. This is a person who was supported by the folks who know
him best. Many African-American judges have written in support of Judge
Pickering, including Justice David Keith, the first African-American
Federal judge in Mississippi, Henry Wingate, the first African-American
Supreme Court judge in Mississippi, Rubin Anderson, and Mississippi
court judge Johnny Williams.
What we have is a case where the people who know him best see this is
a decent man. This is a man without prejudice. We have special interest
groups with their own agenda from outside looking to shoot him down. In
doing so, what we have is this Senate undermining the Constitution and
our obligation. They are doing something that has not been done before,
without legitimate base. Vote them up, vote them down, give them a
vote.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. PRYOR. As I understand what just transpired, his additional 5
minutes or so will be applied to the next hour so I still have 30
minutes.
The PRESIDING OFFICER. That is correct.
Mr. PRYOR. Mr. President, I thank my colleagues on both sides of the
aisle for their zealousness on the issues that are present here with
regard to these judicial nominations. I know my colleagues on the
Republican side have very strongly held opinions and viewpoints they
are very sincere about holding. I may differ with them on some of the
particulars and some of the conclusions, but I respect their opinions
and I respect their zealousness and their commitment to their cause.
Likewise, on the Democratic side, I have a number of colleagues over
here who have done a very good job of poignantly discussing these
issues and trying to present the other side of the story. I think they
are equally passionate.
In some of the finest traditions of the Senate, this august body,
this Chamber, is like an arena where maybe two great competitors come
in, hash it out and fight it out. That is how the Senate is designed.
It is almost like in the Bible, the Book of Proverbs, as iron sharpens
iron, one man sharpens another. I just hope that is the process we are
going through, that we are sharpening the other, that we are making
this engine better and we are progressing as a people and as a nation.
I appreciate the Presiding Officer being here. It is the second night
in a row the Senator has had the graveyard shift. Someone with your
seniority, I am surprised to see down here two nights in a row. I know
you are doing your duty for your colleagues and for your Nation.
Certainly there are untold numbers of staff people who work for the
various Senators, who work for the Senate itself, the Capitol Police,
the C-SPAN team. I have been watching some of this at home or in my
office and C-SPAN has done a great job. Periodically when a term will
come up that may be unfamiliar to the viewers around the country, they
will flash up a definition of that term, such as what a filibuster is,
what a hold is, whatever the case may be. They have been taking this
opportunity to use this as an instructional time for viewers back home
to help understand their Government and help understand their Congress.
I thank the cloakroom staff on both sides. I could go down the long
list. The stenographers are doing double duty. There are so many people
who should be thanked for allowing this marathon to go on. It has put
strains on people. I am very sensitive to the fact they have families
they need to get home to and they have lives outside of what goes on
here on Capitol Hill. I express a deep and sincere debt of gratitude to
those people.
Let me talk about the judicial nomination process. Both my colleagues
across the Chamber know I signed on to a letter with them this spring
about trying to make this process work better. One thing I was
concerned about in signing that letter is we might come to this point
today where we would lock horns and have some gridlock on a few
nominees. I hope we do not get to the point of gridlock overall in this
process.
As to the numbers, since we have been here this Congress, I believe
we have confirmed 68 of President Bush's nominees and 4 have been
blocked. Last Congress, there were an additional 100, so I believe the
grand total is 168.
We have seen a lot of charts with numbers and percentages, but I hope
the whole process does not bog down. So the people around the country
understand, we are talking only about a select few of the nominations,
not the overall nomination process.
One thing I was concerned about and one reason we wrote that letter
several months ago was because we wanted to try to make the nomination
process better.
We want to try to make it more constructive and more productive. To
me, a lot of that responsibility rests with the White House. We talked
about that very briefly in that letter. I feel strongly that since the
President, under the terms of the Constitution, is the one who begins
the process of nominating, he and the White House staff need to try to
get the Democratic and Republican leaders involved and sit down to try
to work through some of these controversial nominations and try to
figure out how we can do this better as we move forward.
One thing I am concerned about is we, around here in the Congress,
particularly in the Senate, probably more than the House, are so
focused on tradition and history and how things have been done in the
past that it is human nature, I guess, that we oftentimes cannot put
aside the things that happened in the past. Sometimes those things are
perceived to have been ill-willed or for whatever reason perceived to
have been unfair, unjust, whatever the case may be. Of course, I have
said many times that I have a concern that in this judicial nomination
process there is sort of partisanship and gamesmanship, and it is just
counterproductive for the people.
So, again, I hope we can move forward. I want to try to continue to
work with President Bush on his nominations. I believe I voted for 66
of his nominations of judges. In fact, I was talking to my staff the
other day, and I said: Well, the people who are calling in about some
of these controversial judgeships, what are they saying to you? They
say they want Senator Pryor to vote for candidate X, whoever that may
be. The staffer will say: We appreciate your call. But we also want you
to know he voted for 66 or 67 of President Bush's nominees. Invariably,
the person on the other end of the line says: No, he hasn't. Because
they are not hearing the other side of the story, that, again, we are
only talking about a small percentage of the nominees who are not
getting through.
[[Page 28812]]
If you look at the numbers and the percentages that President Bush
has accomplished since he has been President, they are historically
high numbers.
So I want to continue to work with the President and find that common
ground. I believe we all have the constitutional responsibility to
advise and consent on judicial nominations. Mostly what I am hearing on
the other side--mostly--people believe the Senate should not be a
rubberstamp. I think the vast majority of Senators believe the Senate
should not be a rubberstamp and an automatic approval process for the
President.
I think we have a responsibility to the Nation to look at these--
again, the concept of iron sharpens iron, the President and the Senate
sharpening each other, because he knows we will review and look very
carefully at the nominations he puts forward. He puts forward a higher
quality nomination than if it was just a rubberstamp. That
accountability is a positive thing for the people and for the
Government. I take this responsibility seriously. I know all Members of
the Senate do take their responsibility very seriously.
Another thing I wish to say is that when I look at judges I kind of
have a criteria. I have kind of broken it down into four parts. We try
to be consistent in our office when we look at these four factors.
One is just a starting point: Is the nominee qualified? Most of the
people who make it through the committee are qualified. I think, again,
there is a weeding out process there, but I start with the presumption
that if they get to this stage in the process they are qualified.
The second thing I ask myself is, can they be fair and impartial? I
think that is an extremely important criteria. Admittedly, it is
somewhat subjective. Reasonable minds can differ about if someone can
be fair and impartial, and reasonable minds do differ.
Again, that is one thing we get back to in the Senate. Someone like
either of my two colleagues, who have spoken here in the last few
minutes, who are so articulate and so good, they look at some of those
nominees and there is no doubt in their minds, they are going to be
fair and impartial. I look at them and I have some doubts. Again, that
is how the process works. I am proud that their two States have sent
them to the Senate. They are here to do their duty as God gives them
the right to do it. I feel like I am here to do the same.
So reasonable minds can differ about being fair and impartial. But
regardless of how you come out on the conclusion, that is one of the
criteria I use. I think it is extremely important for a judge.
There is another, a third, element I look at; that is, has the
nominee demonstrated an ability to exercise and to show the proper
judicial temperament? For all the lawyers out there, and all the
parties out there, if you have been in court before, you understand how
important the judicial temperament can be in cases. Literally these
judges oftentimes hold life or death in their hands for a criminal
defendant. Or they may hold a business's solvency or whatever the case
may be. It is very important. Their temperament oftentimes is
determinative in how the case will come out. So again it is subjective,
but I try to look at their judicial temperament.
Then the fourth criteria is sort of the elastic clause. The
Constitution has an elastic clause, so part of my criteria is kind of
an elastic standard--and I don't say standard but elastic
consideration--and that is, are there other factors or other
circumstances, when you look at these nominees, that should be
considered? And, boy, that is just open-ended.
But I think, as Senators, we should consider the totality of the
circumstances. We should look at these nominees in a historical
context; it may be a social context; it may be something unique to that
region or that State or that person. I think it is incumbent on us to
look at those carefully.
Here again, it is subjective. Is that something you can really write
down as criteria of how it is going to work in every single case? No.
Maybe it should not be. Maybe it should be left elastic so it can be
changed and be looked at from different perspectives with each
particular nominee.
But regardless of that, I do take my role and my duties as a Senator
very seriously. One of those roles that I believe very strongly about
is the people of Arkansas sent me here to work with everybody else who
is up here. If the people of this country want to elect George Bush as
President, I am here to work with President Bush. Mississippi sends
their set of Senators and Texas sends their set of Senators, and
Massachusetts and California, and I believe my responsibility, as a
Senator for Arkansas, is to work with who is here. That is what I have
tried to do, and I will continue to try to do that.
One thing also we need to keep in mind is that these judicial
nominations we are talking about today and that we always have under
consideration here in the Senate are lifetime appointments. Only under
extreme circumstances will these people be removed from office. It is
very rare that happens in American history, but it can happen. But
these are lifetime appointments.
I think it is critical that our judiciary is independent. I think
that is the way our Founding Fathers set it up. We better get these
nominees right on the front end because these people will serve for
life.
Like I say, they hold justice in their hands. Their application of
the law will be determinative for so many things during the course of
their careers.
I think, simply put, people are entitled to know what nominees think.
I think people are entitled to know about the qualifications. They need
to have the assurance that these nominees under consideration by the
Senate--the people need to have an assurance that if these people do
put on the robe, do serve on the bench, that the integrity of the
system will be there and that these people will do justice, as their
responsibility requires.
I personally believe the people of America want a moderate and
balanced approach. Personally, I think most Americans do not want to
see the courts packed with judges with a conservative agenda or judges
with a liberal agenda. I think most Americans want to see moderate,
fairminded people on the bench. Because people understand that if you
go into this with an agenda, then the courts will not be balanced and
that judge and the court will have one dominant point of view. That is
not good for our justice system.
I do think there has been a lot of discussion about some of these
judges' records. Again, I think those are subject to interpretation. I
am not going to try to get into all the particulars of those. We do not
have time tonight, plus my colleagues, for the last several hours, the
last 30-plus hours, have tried to do that. Many of them have done a
very good job.
What I would like to do, if I can, is talk about one thing that does
bother me, and that is the fact we are getting toward the end of our
calendar year in the Senate and this is crunch time for the Congress to
get its work done. In fact, right now our colleagues in the House, down
the hall, basically are only meeting about 1 day a week, maybe 2, for
votes because they have taken care of a lot of their legislative
business--not all. They still have some things pending. But they have
gotten theirs down to the point where they do not have to be in very
many legislative days. In fact, a lot of what they are doing is waiting
on us to accomplish and to finish our business.
Well, here we are spending 30-plus hours in a talkathon about these
four judicial nominations that have been blocked. I think we need to
keep it in perspective. Some of the Democrats have talked about 3
million jobs that have been lost in the last 3 years and what we are
arguing about here are four judicial jobs. Well, that may be fair; that
may not be. But I think there is some merit to that.
To keep it in perspective, 98 percent of President Bush's nominees
have been confirmed. That is a pretty good percentage. You try to find
another percentage like that in history, I am not sure you will find
it. Also, when
[[Page 28813]]
you look at Government and we look at anything involving human events,
98 percent is a pretty high percentage.
So again, I would encourage all of us to try to keep this in
perspective. I heard one of my colleagues last night talk about 98
percent of this and 98 percent of that. In fact, it was Senator
Chambliss of Georgia. He had a very humorous monologue about that. But
the truth is, 98 percent in politics and in Government is a pretty
doggone good success rate. In fact, I would go so far as to say I am
not sure anybody in Washington ever gets 100 percent of what they want.
Most people are happy to get 50 percent of what they want, if they can
just get that done.
But regardless of that, I think most people I talk to back home
understand that judges are important, and they understand that it is
important that we have an independent judiciary, but they also perceive
that these four nominations are not urgent to the welfare of our
Nation. So that causes me to question why we are doing this right now.
If this is a big issue, can't we put it off until another time? But
regardless, we find ourselves here. That is just where we are right
now.
I want to talk about one other thing that is a concern to people all
over the Nation; that is, losing jobs in the manufacturing sector of
our economy. It was announced the other day that one of the great
companies in the world, I guess--Michigan-based Whirlpool--plans to
move some of its refrigerator production, which is made in Fort Smith,
AR--they plan to move those jobs from Fort Smith down to Mexico. Very
sad news.
Jim Pickens, who was, until very recently, Arkansas' economic
development director, said that it is clear that some of the 4,500
Whirlpool jobs in Fort Smith will go.
The problem with this is it is not an isolated incident. It is a
trend. It is something to which we in the Senate should be devoting our
time. It is something that folks back home are very concerned about,
losing these manufacturing jobs.
One thing that is of particular concern in the Whirlpool case is it
was just a few months ago--about a year ago--when Whirlpool made an
announcement they were going to actually add 700 jobs in Fort Smith. Of
course, there was a lot of excitement about that announcement. Now
there is a lot of disappointment about what Whirlpool has decided to
do. I am not saying this to be critical of Whirlpool, but I am saying
to my colleagues instead of spending this much time on these four
judicial positions, let's spend this much legislative time in trying to
figure out how to save our manufacturing sector. Because I think long
term when you look at what is good for technology and good for this
Government, good for this country, saving those manufacturing jobs is
probably more important than these four judgeships we are talking
about.
Another thing that I must tell you I experienced today is I went to
Walter Reed Hospital, the Army hospital here in the DC area, and talked
to men and women who had come out of Iraq and Afghanistan. Very
sobering, very serious. These are patriots of the first order. Some of
them will have lifelong injuries due to their service to this country.
One thing that was emphasized with us over and over is that Iraq is a
very dangerous place right now. There again, I hope, and I sincerely
hope, the Senate will spend this much time in deliberation and in
consideration of how we should move forward in Iraq and what that
future looks like for Iraq.
Mr. President, it does not bother me to work late. This is the second
night in a row that I have had a late night slot. But it does bother me
a little bit that we may have lost some perspective in that we need to
keep these other important issues in perspective. No question that our
judiciary is important. That is our third branch of Government. But we
also need to keep it in perspective.
Mr. President, may I inquire, how much time do I have remaining?
The PRESIDING OFFICER. Four and a half minutes.
Mr. PRYOR. How much time?
The PRESIDING OFFICER. Four and a half minutes.
Mr. PRYOR. Let me read part of a letter from Robert Caro. He is the
man who wrote the Pulitzer Prize winning book, ``Master of the
Senate.''
``Master of the Senate'' is the story of Lyndon Johnson when he was a
Senator. In June of this year, Robert Caro wrote a letter, not to me,
but to Trent Lott and Chris Dodd, the two leaders of the Rules
Committee.
Mr. President, I ask unanimous consent to print this letter in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Robert A. Caro,
June 3, 2003.
Hon. Trent Lott, Chairman,
Hon. Christopher J. Dodd, Ranking Member,
Senate Committee on Rules and Administration, Russell Senate
Office Building, Washington, DC.
Dear Senators Lott and Dodd: Several members of the Senate
have asked me whether my research on the history of the
Senate sheds light on the current debate over the role of the
Senate with respect to President Bush's judicial nominations.
Defining the right of extended debate is always tricky. If
it is being used against you, it is a vicious weapon of
obstruction, whose use in a democracy is unconscionable. If
it is you who is using that weapon, it is a great one to have
in your arsenal.
Many times in America's history, the right of extended
debate has been used to defend causes with which I profoundly
disagree. In Master of the Senate, I tried to show how it was
a last-resort, but very effective, barrier thrown up in the
most ignoble of causes: the continuation of racial
segregation.
Nonetheless, great care should be taken in placing new
restrictions on that right. Senators who are considering
doing so should understand that they will be taking a step
that has significant implications for the balance of powers
created under the Constitution, and also for another very
fundamental concern in a democracy: the balance between
majority and minority rights.
The writings of the framers of the Constitution make clear
that Senators, whether acting alone or in concert with like-
minded colleagues, are entitled to use whatever means the
Senate rules provide to vigorously contest a President's
assertion of authority with which they strongly disagree. One
could say, in fact, that under the fundamental concept of the
Senate as envisioned by the founding fathers, it is not
merely the right, but the duty of Senators to do that, no
matter how popular the President or how strongly the public
opinion polls of the moments support the President's stand on
the issue involved.
I said in Chapter 1 of Master of the Senate that ``. . . in
creating the new nation, its Founding Fathers, the Framers of
its Constitution, gave its legislature . . . not only its own
powers, specified and sweeping . . . but also powers designed
to make the Congress independent of the President and to
restrain and act as a check on his authority, [including]
power to approve his appointments, even the appointments he
made within his own Administration. . . . And the most potent
of these restraining powers the Framers gave to the Senate. .
. . The power to approve Presidential appointments was given
to the Senate alone; a President could nominate and appoint
ambassadors, Supreme Court Justices, and other officers of
the United States, but only `with the Advice and Consent of
the Senate.'''
I also pointed out that ``the Framers wanted to check and
restrain not only the people's rulers,'' but also the
possibility that the majority will would be used, in
Madison's words, ``to oppress the minority.'' The Framers, he
said, established the Senate as the body ``first to protect
the people against their rulers; secondly to protect the
people against the transient impressions into which they
themselves might be led. . . . The use of the Senate is to
consist in its proceeding with more coolness, with more
system, and with more wisdom, than the popular branch.'' The
Constitutional Convention adopted the two-House Congress with
almost no dissent.
To give the Senate strong protections from transient public
passions or executive pressure, the Convention kept the
Senate small so that it would have, again in Madison's words,
less propensity ``to yield to the impulse of sudden and
violent passions, and to be seduced by factious leaders into
intemperate and pernicious resolutions.'' To make the Senate
more stable, to keep it ``firm,'' and ``to insure their
independency'' [Edmund Randolph], the Framers gave Senators
terms three times as long as House members and half again as
long as the President's. As a final layer of armor, only one-
third of the Senate would be elected every two years, so that
the Senate would change only gradually over time.
As I wrote, since the power of the President and the power
of the people would be very strong under the Constitution,
``to enable the Senate to stand against these powers--to
stand against them for centuries to
[[Page 28814]]
come--the Framers of the Constitution made the Senate very
strong.''
I have pointed out that one of the first acts of the Senate
was to write the 1789 statute setting up the federal
judiciary system. Sixteen years later, the Senate was called
upon to preserve and protect the independence of that system
by standing up to Thomas Jefferson, a popular President with
a majority in both Houses. Jefferson wanted the Senate to
help him tilt the Supreme Court in his own direction, by
convicting Justice Samuel Chase after the House had impeached
him on a party-line vote. Jefferson had more than enough of
his own party members in the Senate to convict Chase, but
enough Senators from both parties voted against the President
to sustain the independence of the Judiciary from the
Executive. As your colleague Senator Byrd said some two
centuries later, ``The Senate exercised in that fine moment
of drama the kind of independence, impartiality, fairness and
courage that, from time to time over the years, it has
brought to bear on the great issues of the country.'' The
independent Senate had vindicated the Framers' hope that it
would stand against the tyranny of presidential power and the
tides of public opinion.
The Founders, in their wisdom, also gave the Senate the
power to establish for itself the rules governing exercise of
its powers. Unlike the unwieldy House, which had to adopt
rules that inhibited debate, the Senate became the true
deliberative body that the Framers had envisioned by
maintaining the ability of its members to debate as long as
necessary to reach a just result. For more than a century,
the Senate required unanimous agreement to close off debate.
The adoption of Rule XXII in 1917 allowed a two-thirds
cloture vote on ``measures,'' but nominations were not
brought under the rule until 1949.
In short, two centuries of history rebut any suggestion
that either the language or the intent of the Constitution
prohibits or counsels against the use of extended debate to
resist Presidential authority. To the contrary, the nation's
Founders depended on the Senate's members to stand up to a
popular and powerful president. In the case of judicial
appointments, the Founders specifically mandated the Senate
to play an active role, providing both advice and consent to
the President. That shared authority was basic to the balance
of powers among the branches.
Surrendering such authority is not something which should
be done just because of a Senator's point of view on the
particular issue of the moment--because much more than the
particular issue is involved. What is a Senator--let us say a
senator from small-population state without any other means
of defense--votes to support an new limitation on debate
today? What will he do in some future year when he is trying
to stop a bill or a nomination that a bare majority of the
Senate supports, but that he and 40 colleagues believe will
be terribly detrimental to their states or to the nation--an
action that he feels a few members of the senate may change
their view about if only he has enough time to explain the
full consequences to them and to the public? What will he
feel when he suddenly realizes that his right to hold the
senate floor against that action has been so greatly reduced
that the bare majority can silence him before he is finished
making his case? What will he do when he realizes that,
without the right of extended debate, his cause is ultimately
helpless?
I am not attempting to say that the right of extended
debate should not be modified. I am, however, attempting to
say as strongly as I can, that in considering any
modification Senators should realize that they are dealing
not with the particular dispute of the moment, but with the
fundamental character of the Senate of the United States, and
with the deeper issue of the balance between majority and
minority rights.
As I told a group of Senators last month, you need only
look at what happened when the Senate gradually surrendered
more and more its power over international affairs to learn
the lesson that once you surrender power, you never get it
back.
Respectfully,
Robert A. Caro.
Mr. PRYOR. Mr. President, basically what Robert Caro points out in
this letter is:
Several members of the Senate have asked me whether my
research on the history of the Senate sheds light on the
current debate over the role of the Senate with respect to
President Bush's judicial nominations.
Defining the right of extended debate is always tricky. If
it is being used against you, it is a vicious weapon of
obstruction whose use in a democracy is unconscionable. If it
is you who is using that weapon, it is a great one to have in
your arsenal.
I think right there we see the tension Mr. Caro captured so well in
his book, but here again he has captured it and framed up the issue
very well for us. The right of the filibuster or unlimited debate is
something that is viewed very differently, depending which side of the
filibuster you are on.
It has historically in this country been used time and time again for
almost everything under the Sun--sometimes successfully, sometimes not
successfully. One thing he talks about is:
Nonetheless, great care should be taken in placing new
restrictions on that right. Senators who are considering
doing so should understand that they will be taking a step
that has significant implications for the balance of powers
created under the Constitution, and also for another very
fundamental concern in a democracy: the balance between
majority and minority rights.
I have no doubt some of my colleagues on the Republican side
genuinely feel the Democrats are out of line in using the filibuster in
this context. Also, I have no doubt many of my colleagues on the
Democratic side feel we are perfectly within our rights to use the
filibuster. Here again, I encourage my colleagues to look at this
letter from Robert Caro dated June 3, 2003, which brings a historical--
not a political, not a partisan, but a historical--perspective to what
we are talking about tonight and what we will be voting on in the
morning.
Again, I thank all my colleagues for being here. It is late-night
duty. It is not easy. The staff has just done a fantastic job. My
legislative director, Walter Pryor, has been with me every step of the
way. I know he would like to get some normalcy back in his life, as do
so many of us.
Has my time expired, Mr. President?
The PRESIDING OFFICER. The Senator has 40 seconds.
Mr. PRYOR. Mr. President, again, I thank you and thank my colleagues
on both sides of the aisle for all their hard work in bringing these
issues to the forefront. I see my colleague from Rhode Island, Senator
Reed, walk in. We went to Walter Reed Hospital today. I know he has had
a long day. I look forward to listening to his remarks.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM of South Carolina. Mr. President, I wish to acknowledge
Senator Pryor's commitment to moving this process forward. He did write
a letter a while back trying to find a way to better handle the
problems we are having with judges. I think he has a very good heart
about this. I respect him as a person. He has truly become a friend.
With that kind of attitude, maybe we will find a way out of this down
the road. Right now, unfortunately, we are stuck in the quicksand, not
mud. The more we fight each other, the deeper into it we get. The
atmosphere in the Senate right now about judges I think has taken a
turn for the worse.
There are probably many things one can point to in the past on the
Republican side. I am not here to defend the past. I am here to talk
about the future, and we have to deal with the present. Here is what
about the present bothers me the most.
There is an effort to filibuster judges in a way that has never
occurred before in the history of the country. I think it is very
unhealthy and constitutionally impermissible and will only be answered
in kind. We are going to set the future course of the Senate down a
road where it will be hard to get good men and women to apply. Let me
tell you why I think they will not apply.
I read a fundraising e-mail that concerned Charles Pickering. As one
can tell when I spoke, it bothered me greatly what they are trying to
do to Judge Pickering because I come from the South. I know how easy it
is to be associated with the sins of the past, to be, for lack of a
better word, sometimes stereotyped. Here are the accusations in the e-
mail:
Why must the Democrats continue their fight against Charles
Pickering? While in law school, Mr. Pickering wrote an
article suggesting ways Mississippi can better enforce its
ban on interracial marriage.
That statement clearly tries to make the reader believe this is a
person who has supported interracial marriage bans and is racially
insensitive. I ask the country to look at it in these terms. He was
unanimously confirmed by this body 12 years ago. Not one person
objected. I can't believe the whole body was asleep at the switch and
this law school article was not known. He didn't advocate the ban on
interracial marriage. It was under attack, and he wrote a scholarly
dissertation about it.
[[Page 28815]]
If you believe what the statement says, the entire Senate either
didn't know about this or ignored it because the entire Senate
unanimously approved Judge Pickering 12 years ago, long after he got
out of law school, to sit on the Federal bench as a district court
judge.
The second point:
As a State senator in the 1970s, Mr. Pickering worked to
repeal important provisions of the Voter Rights Act.
The reader of this e-mail who is being asked to give money to help
Democrats fight President Bush's nominees--what is the message you are
trying to convey to the reader of this e-mail? That yet again in the
1970s this same person, while holding public office in Mississippi was
working to undermine laws that protected African Americans in the State
of Mississippi. There is no other fair interpretation of why that is in
this e-mail and trying to cast him in that light.
Again, it is beyond my understanding and real belief, if that were
true, if this man used his office in Mississippi in 1960 to undermine
the Voting Rights Act, that this body 12 years ago would have
unanimously approved him to be a district court judge.
I believe these two statements were designed to emotionally charge
the reader and to unfairly label Judge Pickering in a way that is not
deserved and flies in the face of the fact that the Senate confirmed
him unanimously 12 years ago.
The last point:
In 1994, he went out of his way to seek a more lenient
sentence for a convicted cross burner.
My colleague from Minnesota very eloquently spoke about that case. I
am on the Judiciary Committee. When I heard that accusation, it really
did pique my interest. I wondered what was going on because none of us
want a judge who is going to be sympathetic to such a horrible crime.
Here is what actually happened. There were three defendants, not
two--three defendants. The ringleader and the second oldest man, I
believe, received a probationary sentence. The youngest of the three
was charged with a crime of arson.
What this judge did is he looked at the way the prosecutor handled
three defendants, and he said: That is not fair. You are letting two of
the worst guys go and impounding the youngest guy.
That is what I want a judge to do. I want a judge to make sure the
people who come before his court are treated in an apportioned manner.
The third person, the youngest one, was given a speech and a lecture
by Judge Pickering about the act of cross burning that should make us
all very proud. The youngest defendant went to jail, but his sentence
was adjusted in light of what happened to the other two people who
basically got away with it because the prosecutor did a deal I don't
understand myself.
I do understand why Judge Pickering wanted to adjust the sentence,
but if you listened to the words and read the transcript, he didn't go
out of his way to do anything other than to make the sentences
apportioned. He went out of his way to let the defendant know what a
sleazy person he was by engaging in this activity, but he brought
balance to the people before him.
The reason I keep talking about this situation and Justice Brown is I
am trying to let the record reflect for future review that I believe
very sincerely these judicial nominees are having a tremendous hatchet
job done on their lives. They are trying to make up reasons to justify
a filibuster, and there is no good reason to have a filibuster.
Senator Pryor is a very fairminded person. If he disagrees with me
about Judge Pickering or anybody else, that is just life; he is right.
All I am asking him and other Senators to do is to follow the
Constitution, and the advice and consent clause for the entire history
of the country when it comes to judges has been interpreted in a manner
that the majority of the Senate will advise and consent, not a
minority.
What is happening to these four people--and we will talk more about
the others--is very unhealthy for the country. The reason I say that is
they are taking statements and articles, speeches, and letters to their
church out of context, and liberal special interest groups are trying
to oppose conservatives coming on the bench in an unfair way.
These four individuals' lives have been distorted. That is what
bothers me the most. If you don't like their philosophy, vote them up,
vote them down, just vote, is the saying. If we continue what we are
doing today into the future, no reasonable person is going to feel good
about wanting to go on to the Federal bench given what is happening to
these people, and that will be a huge loss to the country.
The process we are engaged in today has no upside; it only has
downsides, and the downsides I think are extremely dire for the
country. Not only are you going to drive good people away because
nobody is going to want to go through this--and I assure you it will be
answered in kind, and that is sad because I know politics.
The other downside is special interest groups, liberal or
conservative, are going to have more power than they deserve over
individual lives because all they need to do is get 41 votes.
Special interest politics is part of our political landscape. The
Constitution has checks and balances against each branch. One of the
checks and balances I like the most about the way the judicial
nominating process works is if a majority of us feel a person is
qualified, they get to sit on the bench.
Please, let's not as a group empower special interest groups to the
point that 41 of us can stop somebody from sitting on the bench because
we will have rewritten the Constitution, not only in its letter but its
spirit.
I end with this. Federalist Paper No. 66 has the following comment:
It will be the Office of the President to nominate and,
with the advice and consent of the Senate, to appoint. There
will, of course, be no exertion of choice on the part of the
Senate. They may defeat one choice of the executive and
oblige him to make another, but they cannot themselves
choose. They can only gratify or reject the choice of the
President.
For the sake of the future of law in this country, for the sake of
the future of the Senate, let's not let a small group make it
impossible for good people to serve.
I yield the rest of the time to my good friend from Kansas, whom I
have known since I have been in politics at the Federal level, Senator
Brownback.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. Mr. President, I appreciate my colleague from South
Carolina carrying the comments and the load for several hours in the
early morning as we approach 4:15 in the morning. We are talking about
something of great importance. He has real wisdom in his words, too,
about the point that the process on which we are embarked has no upside
to it. When you have good people, qualified people blocked from the
Federal bench not by majority vote but by filibuster, you are headed
down a bad path. This bad path doesn't have a good ending.
We will continue to have division in this body. I don't doubt we can
be blocked on these for some time, but that is certainly going to carry
over into the next election cycle, and this doesn't have an upside to
it. Plus, we have good people waiting. We have people who are qualified
and are not going to be serving on the Federal bench.
We have a lot of hurt feelings. We have a lot of accusations made
without truth. We have harsh words, harsh comments, and that all leads
to a downward cycle. There isn't an up cycle here.
I wish to take a few minutes to describe why I think we got to this
point. We didn't used to be here. We have approved people of strong
judicial opinions in recent times. They have generally been from the
left, and those have been approved during the Clinton years.
Lord knows we are talking about circuit court nominees now. What if
we got a Supreme Court nominee? Does the body get tied up for 2 years?
We have actually had one Supreme Court Justice who has been
filibustered in the past.
[[Page 28816]]
Why did we get to this point? It used to be if people had a litmus
test on candidates, that was seen as a terrible thing and they were
castigated. I don't know if the Presiding Officer or others remember
when Ronald Reagan was accused of having a litmus test. That was just a
horrible thing. His administration denied it. They didn't put forward
people under a litmus test, and we were moving forward.
Now people are being subject to a litmus test. They are being
blocked. They are qualified, and they are being stopped. How did we get
to this point? I want to take a shot at that and develop it from the
standpoint of a case that is currently before the Supreme Court. It is
the case of Michael A. Newdow v. The U.S. Congress, United States of
America, George W. Bush, President of the United States, State of
California, Elk Grove Unified School District. That would be the
operative group in the Newdow case, the flag suit case. It is the case
most people are familiar with where the Ninth Circuit Court of Appeals
determined it was unconstitutional for our children in school to say
the Pledge of Allegiance. The reason it is unconstitutional is because
of something Dwight Eisenhower signed into law when he was President of
the United States in 1954, and that is where the Congress of the United
States added the phrase: ``One Nation under God.''
That phrase was so offensive to Mr. Newdow or his child who was in
the school that he said: I can't stand this any longer. He was joined
by some other people and took this case to the Court.
The Ninth Circuit said you are right. You should not have to. This is
not right for our children to say one nation under God. That evoked
quite a comment across the country. It evoked quite a comment by this
body. I believe this body voted 99 to 0 to say that the flag salute is
right; we should say this; it should be allowed by our children.
There were a lot of protestations and the people commented that it
was terrible that the Ninth Circuit would be so out of whack, so
lacking of mainstream thought, so out of context and touch with the
American public that they would rule against something that 98 percent
of the American public is for, the flag salute.
The problem with the public outpouring on Newdow and the problem
facing the Supreme Court now on this Newdow case is that they were
following precedence being developed over a period of 40 years, that
the Supreme Court, circuit courts, and others had been working for a
period of 40 years to remove the recognition of a higher moral
authority from the public square. They were saying this is something we
do not want in the public square.
It started in 1962 that these series of cases is built upon. In 1962,
Engel v. Vitale was the case that really started this whole string
going. That was when our children were allowed to say a prayer at the
beginning of the schoolday, and Engel v. Vitale said that was
unconstitutional. It was followed by School District of Abington
Township v. Schempp. There the Court held that the Bible readings in
public school also violated the first amendment. It was followed, in
1992, by Lee v. Weisman, a case about prayer that was being held at a
graduation exercise. The Court held that was unconstitutional. It was
followed, in 2000, by Santa Fe Independent School District v. Doe where
prayer was being removed from being said at a football game. That is
followed by the Newdow case now before the Court. I predict it will be
followed by a case that will call for this body to remove ``In God we
trust'' off the mantle that is here. I predict it will be followed by a
case that will call on us to remove off of our money any reference to a
higher moral authority, ``In God we trust'' being taken off of the back
of the one dollar bill. It will follow, follow, follow.
Well, people do not agree with that. Massive amounts of people in
this country do not agree with that. People have mounted up now.
Actually, some people do agree. Some people say, yes, we should remove
the recognition of some higher moral authority, of God, from the public
square. So we are engaged in this great ideological fight.
I contend that this battle, this fight, of blocking these justices
started about 40 years ago. Some of us participating in this form of
debate feel as if the last couple of days have been along that 40-year
line. What we are seeing is the courts injecting itself here into a
societal issue that many people feel deeply about and immersing itself
in this. Then both sides get fired up and we get good people such as
Charles Pickering and Priscilla Owen and others--particularly a guy
like Charles Pickering. He is probably the most instructive of the
cases here.
We have gone through ad nauseam his qualifications, but I want to
make this point of him: First in his law school class, highest rating
by Martindale Hubbell, unanimously approved by the Senate for a
district court judge in 1990, affirmed on appeals 99.5 percent of the
time, reversed only 26 times out of approximately 5,300 cases, received
the ABA, the American Bar Association, highest rating, well qualified.
So what is the problem with this picture? Mr. Pickering was president
of the Southern Baptist Convention for Mississippi, so he is a man of
faith. As such, when we have these 40 years of cases coming up that say
we have to remove God from the public square and run into a guy such as
Charles Pickering who says, I will uphold the law--and he has upheld
the law because, if he had not, he would have been overturned many more
times--he says I will uphold the law but I really think this line of
cases and some of these discovered rights the court has done in just
these last 40 years, I think they are wrong personally. I disagree with
these. I will uphold the cases. But they run into people who are saying
we are trying to remove God from the public square and we are going to
try to remove people who believe in God from serving in the public
square.
You run into this clash, and you get this great clash in the
civilization and you get this great clash in the culture. Now you have
the courts injecting themselves in a great culture conflict that we are
involved in in this country today. One of the key division issues in
our country today is issues of culture. People ask what is that?
Culture, it is difficult to say what that is, but people are
concerned about it. There is not a company in this country that is not
deeply concerned about its corporate culture. There is not a family in
this country who is not concerned about its family's culture. There is
now in the country itself concern about what its culture is going to
be.
The central issue is, are you going to recognize a higher moral
authority or not? Is the motto ``in God we trust'' true or not? You get
a guy qualified such as this who would say, yes, that motto is true. I
believe it to be true. I will uphold the laws as ruled to date, but I
do believe this motto is true. And it runs right smack into this series
of cases and we are going to see it front and center again in Newdow.
We will see it again and again.
That is the problem actually with this, because it divides us on
something that should not. It divides us on something that should unite
us. It divides us in a way that I do not think is healthy for the
country. I do not think this is good at all. I think it divides us on
something that as a policy matter is not good and that is why I think
it is also bad politics when this happens. I think bad policy is bad
politics. That is why we have this level of fighting today. That is why
I am speaking on the floor of the Senate at about 4:30 in the morning.
We are going to continue to have this fight. Regardless of the vote
that we take later this morning, how it takes place, probably really
regardless of the dispensation of these four and future ones coming on,
this is the cultural clash that we have. It is not healthy but it is
going to continue.
Mr. SANTORUM. Would the Senator from Kansas yield for a question?
Mr. BROWNBACK. I would be happy to yield for a question.
Mr. SANTORUM. Mr. President, the Senator from Kansas points out that
Judge Pickering, who is a sitting Federal court judge right now, was
affirmed in 99.5 percent of his cases.
[[Page 28817]]
What I have heard from the other side is that we do not want these
judges out of the mainstream being nominated.
Now, would the Senator from Kansas say that someone who has been
affirmed or not appealed in 99.5 percent of the cases since he has been
on the Federal court is someone out of the mainstream?
Mr. BROWNBACK. Mr. President, the number speaks for itself.
Absolutely, this is a mainstream judge. When you get approved on that
percentage of your cases that you have ruled on--remember, this is at
the district court level, so he is both finding fact and applying law.
You have to be a really good judge, if you are going to be upheld by
people reviewing you 99.5 percent of the time on both facts, that means
there is wisdom there, and law, which means he is applying it
correctly.
Mr. SANTORUM. I would ask the Senator from Kansas if he would look at
maybe what the Senator from New York, Mr. Schumer, said yesterday he
considers a mainstream judge. He referenced the Ninth Circuit and some
of the judges that President Clinton nominated and were unanimously
supported by Members on the other side of the aisle, a judge such as
Richard Paez who was involved in the case the Senator just spoke of,
the ``under God'' case in the pledge, who went in and tried to hold up
the California election, ruled unconstitutional the California three
strikes and you are out. This is a man that has been overturned--in
fact the Ninth Circuit, with a majority of Democrat nominees, has been
overturned more than any other circuit.
Is that group of judges mainstream in the Senator's opinion?
Mr. BROWNBACK. It is not mainstream.
The PRESIDING OFFICER. The majority's time has expired.
The Senator from Rhode Island.
Mr. REED. Mr. President. Once again, we are engaged in the early
hours of the morning in a discussion about judges and the role of the
Senate, and our role is stark. We have the responsibility under the
U.S. Constitution to give advice and consent to the nominations of the
President of the United States, not advice and approval, not just
advice, but advice and consent. That requires the Senate to take a very
active role in reviewing the qualifications of nominees who come before
us and making judgments about their ability to serve as members of the
Federal judiciary.
We take that seriously. I think that responsibility implies that at
times we have to disagree with the President. It is not unusual that
such disagreements take place. This whole debate, I believe, might
begin and end with a very simple statement of fact, 168 to 4. One
hundred sixty-eight of President Bush's nominees have been reviewed by
this Senate and have been confirmed. Four have not. It suggests to me
that the Senate is properly discharging its responsibilities to advise
and consent with respect to the nominees of the President to the
Federal judiciary.
In fact, of those 168 individuals, they represent, I would suspect,
jurists who have a conservative outlook, probably a different outlook
than I have, on certain issues. Yet they represent both in terms of
their conduct personally, but just as importantly their judicial
temperament and their judicial philosophy, individuals who uphold the
tradition of the Federal judiciary at the level of the district and
circuit court individuals who follow law, not try to make it, who do
not impose their views on the case before them but, in fact, follow
precedence, who follow the guidance of the Constitution and the
Congress in establishing the law.
It is in those cases and the very few cases, 4 out of 168, where
there seems to be a record of ideological commitment rather than legal
scholarship, of political--with a small p--interest, rather than a
judicial temperament that is fair and balanced, that the President's
nominees have not passed the test.
An example of this is the comment I made in May of 2003 when I
contrasted the nomination of Judge Edward Prado to the pending
nomination of the Texas Justice Priscilla Owen. Judge Prado served 19
years on the United States district court. He is someone who has a
record of fairness and evenhandedness. I would suspect, since he is a
nominee of President Bush, that he has a conservative outlook in his
approach to cases. But he is an appropriate judge. He follows
precedence. He does not insert his particular philosophy, his
particular ideology, into the cases before him. As a result, he was
confirmed, an example of the 168 judges who have been confirmed by this
Senate on behalf of President Bush.
The four who did not pass the test were those whose record suggested
that they were not evenhanded, they were not balanced; that indeed they
inserted political or ideological bias in the conduct of their
decisions. In that case, I think it is not only appropriate but it is
our responsibility, as the constitutional body entrusted with advice
and consent, to register our consent and to register our protest. And
we have.
This is not an unusual circumstance in the history of this Senate and
of this country. There have been instances several times when
Republicans have used the device of cloture votes and filibusters to
express their concern about the qualifications or quality of a judicial
nominee. It goes back many years, and it certainly continued into the
administration of President Clinton. Abe Fortas, whose nomination as
Chief Justice of the Supreme Court of the United States was subject to
cloture votes, was subject to attempted filibusters by the Republicans.
So were Rosemary Barkett and Stephen Breyer as a judicial nominee for
the circuit court. Justice Breyer is now a member of the U.S. Supreme
Court. In fact, I was here yesterday morning and listened to my
colleague, the junior Senator from Missouri, talk about how Justice
Breyer was at a conference he was attending and how he was articulate
and appropriate, and might not be someone he philosophically agreed
with but that he was a good judge--but Justice Breyer was the subject
of cloture motions and a filibuster.
Mr. SANTORUM. Would the Senator from Rhode Island yield for a
question on that?
Mr. REED. Could I just continue?
Mr. SANTORUM. Certainly.
Mr. REED. He was subject to a filibuster and subject to cloture votes
before he was ultimately confirmed, and then ultimately went on to the
U.S. Supreme Court.
So this is not a procedure or a device that has not been used by the
Republicans, because, in fact, it is part--indeed, a significant part--
of the procedural devices of the Senate, something that is appropriate.
As I pointed out yesterday, what I find disconcerting and indeed
somewhat contradictory to the argument of the Republicans today is that
they were quite adept during the Clinton administration of using delay
and denial of hearings to frustrate the nominations of so many
individuals, so many potential judges, because many of these
individuals never even reached the floor of the Senate for a vote. It
was, in my words, a pocket veto.
We are all familiar with the notion of a pocket veto. The President
of the United States, in the last 10 days of a session, can simply put
the bill in his pocket, not sign it, not comment on it, and it
essentially dies as legislation. Well, that was done all too often in
the Clinton administration.
The most significant case is the one I mentioned before. In fact, the
Senator from Pennsylvania and I yesterday had a bit of a colloquy about
this. That is a nominee, Elena Kagan, who was nominated in 1999, spent
18 months waiting for approval, no action was taken, and her nomination
expired. Fortunately for Ms. Kagan, she has found other employment. She
is now the dean of Harvard Law School, which might suggest that she
certainly had some legal abilities that could have been used on the
Federal bench. But that is an example of a pocket veto.
Again, we are engaged in this discussion, this debate. It is a
serious one, but it is taking place at a time when there are other very
serious issues pressing this country. As my colleague from Nevada,
Senator Harry Reid, pointed out in his long floor statement preceding
this debate, that as we worry about four individuals who have not
[[Page 28818]]
yet been confirmed, other Americans are seeing their jobs undercut. We
are looking at unemployment rates of about 6.0 percent. They are
hovering there. They seem to be persistent. Long-term unemployment is
growing. It is becoming increasingly difficult for people to maintain
their employment with good, solid jobs. We see the poverty rate going
up. Meanwhile, the vacancies on the Federal courts have diminished
significantly. We are at almost record levels of Federal judicial
employment. But as we look at the people throughout this country, the
poverty rate is growing. It is affecting children particularly. The
rate of the uninsured, or people lacking health insurance, is
increasing. Our budget deficit is soaring. The national debt is
soaring. These are difficult issues, and yet we are here today talking
about 4 individuals, out of 172, who have not been confirmed as judges
and not been confirmed based, I think, on sound analysis and sound
review of their records.
So I think, again, to place this in context, we are performing our
historic responsibilities that have been used and deployed by countless
other Senates, both by Republicans and Democrats, throughout the course
of this country's history. And indeed I think that is our
responsibility and we are doing it.
What I regret, and I hope after the conclusion of the votes this
morning we can get back to, is critical business such as how do we
expand economic opportunity in this country? How do we reinvigorate our
manufacturing base, which is eroding dramatically? How do we give
working families additional resources by raising the minimum wage? That
would be something that would be very beneficial to millions of
Americans. Can we pass good legislation that allows us to continue to
invest in our infrastructure, in our highways, in our roads? And then
in international affairs, how do we come to grips with the increasing
crisis overseas in Iraq, a crisis that sees our soldiers, marines,
airmen, and sailors each day engaged in conflict over there in a very
difficult insurgency?
As Senator Pryor mentioned, yesterday several of us had the
opportunity to go up to Walter Reed Army Hospital. I have been there a
few times over the last several months and have seen a Rhode Island
military police unit, National Guard, assigned to Baghdad. They have
suffered, unfortunately, casualties. To go there and see these young
men, to see them having suffered, having served so magnificently, it
makes you wonder why we are spending so much time on this debate, and
not more time talking about the way ahead in Iraq, not talking about
other situations of international concern.
I find it startling just a few days ago the Central Intelligence
Agency released a report concluding the North Koreans likely have
several nuclear devices and likely will be able to deploy those devices
without testing. That they have apparently mastered a technological
means to circumvent testing is startling, in fact, horrific
information, but this is being lost in the shuffle with the Iraq
situation. This is a fact that is startling and is pressing on our
national security and our future security.
But there is no extended debate on North Korean policy. There is no
extended debate on the way ahead in Iraq. We have committed ourselves
as a nation to a course of conduct that requires sacrifice, and yet we
are not fully coming to grips with the nature of that sacrifice and
what we should do.
For many of these reasons, although this debate is certainly
appropriate--that is one of the great things about the Senate, you can
talk of the issues of the moment, the issues of the time, but certainly
there are so many more pressing issues, so many more critical issues to
the future of this country and to the future of America's families the
continued obsession with this topic does disservice.
Mr. SANTORUM. We have had debates in the past and I would like to ask
the Senator from Rhode Island this question, and I am posing a
hypothetical. Assume that, and I am sure some in this country would
like to see this happen, in the next election President Bush is
overwhelmingly defeated at the polls, after his defeat at the polls in
November, President Bush nominates a judge to a circuit court after the
election, and that the Senate happens to be in a lame-duck session
after the election. He would nominate a judge to the circuit court.
Let's also assume when President Bush gets defeated, not only does he
get defeated but the Republicans lose control of the Senate. It is a
huge win by the Democrats. Assume all that happens.
President Bush, in the face of that, comes out after the election,
nominates a judge to the circuit court and the Republicans jam that
person through committee, get him to the floor and try to move a vote
on that nomination to confirm him prior to the end when the Republicans
would lose control and a new Democrat President is in place. Does the
Senator believe your side of the aisle would confirm that nominee like
that?
Mr. REED. Reclaiming my time, I like your hypothetical. I like the
context.
Mr. SANTORUM. I thought this would be an interesting example.
Mr. REED. I think you are being overly generous. I like to believe if
the nominee was of the quality to serve on the Federal bench as a
circuit judge, he or she would be approved, which is the rule that
applies so far to 168 of the nominees of President Bush.
I do say quite sincerely that, indeed, if someone was nominated by a
President who did not measure up to those standards, the 168 judges who
have been affirmed, they would not be voted in because they lack
ability, skill, or judicial temperament, or the other criteria, and
they would be opposed.
Again, the record suggests that in dealing with President Bush's
nominees, 168 have been confirmed. I suspect all of them are more
conservative than any nominee suggested by President Clinton. All of
them are individuals who, had a Democratic President been in office,
would not have been nominated. That is the nature of the nomination
process. Nonetheless, they were confirmed.
Now, the last 2 days of a legislative session, with a change of
power, et cetera, that introduces a unique aspect.
Mr. SANTORUM. Do you believe anyone on your side of the aisle would
try to block or attempt to filibuster given the unique nature of that
circumstance?
Mr. REED. There might be an attempt to do that, but your question to
me is, what do I believe. Maybe this is an expression of my beliefs. I
would like to think that, as in the case of 98 percent of President
Bush's nominees, they would receive not only careful review but
ultimately confirmation.
Mr. SANTORUM. I ask the Senator two more points quickly. A nominee in
November, to be confirmed within 3 or 4 weeks, the Senator would agree
a careful review would be very difficult during that period.
Mr. REED. I think the Senator is trying to refer to the more
philosophical than pragmatic logistics. The reality is if someone,
either someone who is a sitting judge or otherwise, was nominated----
Mr. SANTORUM. Even assuming it was not a sitting judge.
Mr. REED. Nominated in November, simply the FBI, background checks,
the questionnaires, reviews, all those things, take time. In fact, the
reaction, frankly, if any President did that, President Bush or
President X or President Y did that, the public reaction would be very
adverse, regardless of the Senate. I would like to move on.
Mr. SANTORUM. The final point is, Justice Pryor, 1980, nominated by
Jimmy Carter after the November election in 1980. The President's party
lost the election, the Democrats lost the Senate, he was nominated
after the election and was brought to the floor with no judicial
experience, and the Republicans, who then took control of the Senate in
1980, were asked to confirm him.
What did the Republicans do? There were some on our side, I think the
Senator can understand in response to the question, who said we should
filibuster because we do not have the time to
[[Page 28819]]
read his record, he has no judicial experience, but the Republican
leader who was going to be the majority leader pushed his side not to
filibuster, and moved him through. It was Justice Breyer.
Mr. REED. My point was Justice Breyer was subject to a cloture vote,
subject to a procedure that is being used here.
Mr. SANTORUM. Under extraordinary circumstance, I think the Senator
from Rhode Island would admit.
Mr. REED. Let me reclaim my time. The circumstances might have been
extraordinary but, again, this was an example of Republicans using the
device of cloture votes, of threatened filibuster, of extended debate,
to make a point that they felt uncomfortable with a judicial
nomination. That is the principle.
There is no special rule for the last 20 days of a session. There is
no special rule that says that is when the filibuster is OK. There were
sincere, well-meaning Senators, Republican Senators, who felt that
because they did not have a chance to evaluate his record or because
they felt his record was too liberal, they needed to do what they did.
Justice Breyer, in fact, was well known to every person in this body.
He had been the counsel to the Senate Judiciary Committee, and worked
for Senator Kennedy on the deregulation of the airline industry. He was
someone who had personal knowledge of every Senator in this body at the
time.
So this was not a question of who is this person. This was a question
of some people expressing their sincere belief that because of his
judicial philosophy, because of his temperament, because of the way he
conducted himself, the Senate should not go forward in this automatic
fashion.
The point remains the same. This notion of the unprecedented,
unconstitutional, un-American use of cloture votes and filibuster is
quite wrong. It has been used before by both sides.
The question must be back to the original hypothetical posed by the
Senator from Pennsylvania, What is the criteria we are using. I urge
that criteria has to be based upon a careful review of the conduct and
temperament of the nominee. That is a better construct of the
individual. Is this person someone who recognizes the careful balancing
a judge must perform daily? Is this someone who, although he has very
strong beliefs, strong ideas about the way the law should be
interpreted, respects the fact that as a circuit judge or a district
judge he or she has to follow precedent? Is this someone who does not
try to impose their views on the law but tries to faithfully judge
based on the law? That is the issue. That is the issue of all of these
nominees, and 168 of President Bush's nominees have passed that test
with flying colors. Four have not. That, I believe, is what we have to
focus on.
Once again, as we move forward--and this is an appropriate debate,
this is one of the virtues, the glories of the Senate. We can stand
here at 4:50 in the morning and talk about great issues that affect
this great country. However, this is not the only issue. I would say
there are so many more pressing issues. We will conclude this extended
debate this morning. We will vote, and then we have the responsibility
of getting back to some very critical business the business of this
economy, of this country, both here and across the globe.
There is one issue among many issues we have to be particularly
concerned about and that is the issue of our long-term economic
vitality. We have a situation in the country where we are losing jobs
left and right. We are particularly vulnerable to the loss of
manufacturing jobs. Under the Clinton administration, in a huge jobs
growth of the late 1990s, we saw an increase of 257,000 manufacturing
jobs. Now we are seeing a contraction of employment generally, and
particularly in manufacturing. We have lost about 2.45 million jobs in
manufacturing. We have to do something. I hope we can.
So far we have not taken action aggressively or as aggressively as we
should. What we have seen in many respects is our manufacturing sector
are jobs being lured overseas by lower wages, poor environmental
quality standards, very little in the way of labor rights. It is
attractive to employment. We have to do something about it. We operate
in a context of international trade rules where we cannot simply put up
a wall of tariffs around our country, so we have to be more creative
and innovative. One of the problems that inhibits our creativity and
our innovation is the fact that to help manufacturing concerns we have
to provide some resources, in terms of manufacturing tax credits, in
terms of a solution or at least progress when it comes to the issue of
health care costs to companies throughout this country, which is
probably one of the key problems facing every business enterprise in
this Nation. That does not come cheap. When you look as it as we are,
not only erosion of jobs but an erosion of the Federal budget moving in
this administration from a surplus projected to be in the trillions of
dollars over a decade, to deficits which are equally now being
projected into the trillions of dollars, it constrains our ability to
respond to these issues, to provide some type of benefits to alleviate
the cost of health care for the manufacturing sector, to provide
incentives for manufacturing, to provide tax credits and other programs
so we can help manufacturing companies particularly deal with
environmental concerns.
One of the consistent complaints I get in Rhode Island is it is not
fair, Senator, I have to abide by very strenuous rules on environmental
emissions, yet I see competitors in China and other countries spewing
smoke out of their smokestacks and pouring solids into the wastewater
streams. I cannot do that.
In fact, up my way, the manufacturers have been zealous in protecting
the environment. But they are in a terrible dilemma. How do we help
them? We could provide tax credits for environmental improvements. But
again that costs money. It costs something else, too. It costs the time
and attention of this Senate on this issue. It costs the same time we
are spending to talk about judges to invest in the future of our
economy and the future of this Nation. I hope we can spend the time.
We have seen over the course of the last several years an economy
that is beginning to at least show some signs of life, but we are not
back yet by a long shot. There is a real fear we are leaving millions
behind, a real fear in parts of this country that those jobs that were
there 3 years ago, particularly in manufacturing, have not only been
lost temporarily but have been lost forever. That goes not just to the
individual families that have been affected, it goes to the fabric of
the lives of those families.
When a manufacturing plants closes, it is not just a sad day in the
lives of the workers, it is a community feeling a loss. We are seeing
too much of that.
We have not only this challenge, we have the challenge of the
tumultuous world. Again, when we look at the requirements and demands
on our economy, and the requirements and demands of protecting
ourselves internationally, we have to ask ourselves where are we going
to get the resources, given the budget, to fund our military? To
provide the resources to conduct a very expansive and aggressive
foreign policy?
Just a few days ago this body voted $87 billion for reconstruction of
Iraq. That is $87 billion in the context of a deficit in which we are
spending money literally we do not have. I am sure that will not be the
last time we consider additional resources for Iraq, Afghanistan, and
other countries. Yet we are not doing those things we need to do to
ensure fully that our nation is entirely protected.
So we have serious challenges before us. I hope again at the
conclusion of this very extensive debate and at the conclusion of these
votes this morning, we can get back to that critical business.
Interestingly enough, we interrupted Senate proceedings at a juncture
where we were ready to pass the HUD-VA appropriations bill to get on to
the discussion of these judges. At that point, we were considering how
we could strengthen further, increase further, the resources going to
our Veterans Administration. That is another
[[Page 28820]]
area of concern I have and I am sure we all have. We have to make sure
those young Americans who are today struggling--and the fact those
young Americans I visited yesterday who are being sent literally from
Walter Reed Army Hospital to a VA facility, many of them amputees
because of the nature of the conflict in Iraq that 5 years, 10 years
from now they have the same quality of services they are getting today.
That is a challenge. And it is a challenge we cannot meet unless we
focus our attention and our time and our effort on this bill. That was
the very bill we left to come on to this discussion of judges.
How much time remains?
The PRESIDING OFFICER. The Senator's time has expired.
Mr. REED. I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, before I resume debate on the judicial
nominations, all this talk about not having done work on the economy
ignores the fact this Senate early this year passed a jobs and growth
package that is working--7.2 percent growth in the last quarter. A lot
of people, maybe some, may be upset we are having great economic growth
and 300,000 jobs have been created.
As this chart shows, we are now in the most jobs in the history of
America, 138 million people. See the signs of doom and gloom and 6
percent unemployment that 10 years ago would have been full employment,
we are at that level now. The idea we are going to hell in a hand
basket with the economy, some may wish that to be the case for
political purposes, but it just is not. It is not a fact.
The facts are this economy is growing. Sure, we have more to do. That
is why we have the jobs and growth package we are trying to push
through having to do with litigation reform, which is being blocked by
the other side of the aisle. On several fronts, whether it is medical
lawsuit abuse, whether it is class action reform--which we lost on the
floor of the Senate by one single vote--whether it is asbestos
legislation--talk about manufacturing jobs. Asbestos litigation is
killing us. What is happening? The other side of the aisle is blocking
it because their trial lawyer friends in the Democrat Party, who
support the Democratic Party more than any group, they are blocking
productivity, they are blocking job creation.
They come to the floor and complain that there are no jobs available.
The fact is, the policies of this administration are working, and it is
just driving the other side crazy. They want to complain about the
past.
Look to the future. Things are looking great, except when it comes to
the third branch of Government.
The third branch of Government, the judicial branch of Government, is
one of the most important branches of Government because it interprets
our Constitution. It says what our rights and responsibilities are
according to that Constitution.
You have to wonder because I get this question all the time: Senator,
why are you spending all this time on judicial nominations? What is so
important? How does it affect me? I get reporters' questions all the
time. Reporters sometimes can be insightful and sometimes they can ask
the most basic of questions. And you wonder why. But in this case the
basic question is a good question: Why should we care about this?
Now, if you would listen to some on the other side, they would tell
you, you should not care about this. Turn your televisions off. Nobody
is paying attention. The sign from the Senator from Iowa: I am going to
be watching ``The Bachelor'' tonight. That, to me, was one of the most
telling things. It was a joke. Oh, but you know humor. Humor is one of
the great things in our society, every society, because for humor to be
really effective, there has to be a little bit of truth in it. The
little bit of truth in that--I am going to be watching ``The
Bachelor''--is don't pay attention. Please, don't pay attention to
this. Go do something else. We would rather have you not know what is
going on. We would rather have you, at 5 o'clock in the morning, be
safely snuggled asleep in your bed knowing that, trust me, we have
taken care of all of your concerns and needs. So go watch ``The
Bachelor,'' something really important, something really significant,
something that is going to elevate your life. Don't pay attention to
one of the most important debates this Senate has ever had. Go watch
``The Bachelor.'' Go watch the continued debasement of our society.
That is what you should be doing.
Now, I know that people are going to say: Oh, well, you can't take a
joke. But in humor is truth; otherwise, the humor does not work, does
it? Go watch the debasement of our society. I would argue, if you want
to watch the debasement of our society, you should turn on to C-SPAN
right now because what is happening on the floor of the Senate is an
attempt by a minority to circumvent the Constitution.
Why? Circumvent the Constitution by requiring a higher standard for
the confirmation of judges than has ever been held before. Well, they
say there have been filibusters before. There has never been a case
where there has been an organized attempt to block a nomination by
requiring a supermajority. There have been cloture votes filed here.
In the case of Stephen Breyer, Justice Breyer, nominated after the
1980 election, after Jimmy Carter lost, after the Democrats lost
control of the Senate in a landslide election--can you imagine if
President Bush had the gall to nominate someone to a circuit court
after getting swamped in an election? There would be audible laughter
on the other side of the aisle that we would consider a nomination at
that point. Filibuster? My goodness, they would be screaming how dare
you have the gall to do something like that?
I know the Senator from Rhode Island said: Well, I would hope we
would consider this. Oh, please. Please. Look at the nominations they
are blocking now, ``out of the mainstream'' nominations they are
blocking now.
Janice Rogers Brown: 76 percent of the vote in California. Out of the
mainstream?
Priscilla Owen: 84 percent of the vote in Texas. Out of the
mainstream?
Oh, I would hope we would consider these nominations in due course?
Really? Really not. No. What the Senate Republicans did in 1980, by
confirming someone to an appellate court, shows what the Senate was
like years ago. But it has fundamentally changed. Why? Well, back then
we had leaders. You had Howard Baker. You had people here on this side
of the aisle who put the institution first, who said, as a leader: We
are not going to filibuster. In fact, they moved the cloture vote to
move the judge. Why? Because we only had a week or so left when the
nomination came up.
Here in the Senate just to move anything takes weeks. At the end of a
session, one Senator has enormous power because they can make you go
through the procedures in the Senate to get to a vote, which takes
weeks if there is not consent. So just one Senator, at the end of a
session--we all know it. We all use this leverage. It is the beauty of
this place. It is why one Senator is so much more powerful than dozens
and dozens of House Members. It is because of the rules here.
But the Senate minority leader, soon-to-be majority leader said: We
are not going to do that. We are not going to filibuster. If there is a
hold on soon-to-be Judge Breyer, we will work with the soon-to-be
minority that was swept out of the election--huge losses;
hemorrhaging--we will work with you to confirm someone who, by the way,
is now on the United States Supreme Court and is writing opinions that
make me throw up.
But we did it because the Senate was a different place then than it
is now. We did it because the leaders were different then. Leaders did
not respond to the latest pro-choice Web site. They were not
manipulated by organizations far from this place, who fund their
campaigns and support their grassroots activity, narrow special
interests, who seep into this Chamber like hidden gases underneath the
door panel. That is what is poisoning this atmosphere.
[[Page 28821]]
That is what is poisoning this atmosphere. It is narrow zealous special
interests. That is what has changed in this place.
But it is not just them. They cannot do it without us because there
have been the NARALs and the ACLUs, and People for the American Way,
and the trial lawyers association and all--labor unions--they have been
out there before. But people in the Senate always stood up for the
Senate against the passions of the moment, the special interests of the
moment, the needs and wants of your supporters at the moment.
They felt a responsibility. They felt a responsibility for their
leadership in the Senate.
It is amazing to stand here. The Chamber is basically empty. No
offense to my colleagues from Kansas and South Dakota, but it is 5:10
in the morning, as my voice echoes, resonates without very many people
here. But you still look around this place, and you look at the empty
chairs and you close your eyes and you can just feel the presence of
the greats who have been here in the past, of the people who have sat
in these chairs--these very chairs at these very desks in this very
place, this beacon of deliberation, this beacon of sometimes delay and
sometimes not particularly pretty debates in the Senate, but yet the
essence of democracy here. And for 214 years--214 years--the leaders in
this Chamber, not necessarily all the Members--we are a society of
saints and sinners and everything in between, but the leaders in this
Chamber always took the responsibility of leadership of this august
body as a sacred trust because what we do here sets precedent for what
will happen.
The Senator from West Virginia changed the filibuster rule. I know
with his sense of history he knew the consequence of his action. When
he changed the rules postcloture for the recognition of a quorum, the
Senator from West Virginia knew what the consequences of that would be.
When we change any procedural thing in this Senate, we know because
history has taught us that there are profound consequences.
So when Senator Daschle, Senator Reid, Senator Kennedy, Senator
Leahy, Senator Durbin, Senator Clinton, and Senator Schumer--the
leaders of this new strategy--decided they were going to enlist their
colleagues on a new course, they could not help but know. You cannot
help but know, if you spend any time in this place. If you are a page,
who comes in 15, 16, 17 years old, and comes in and just sits in this
place for any period of time, you know that what you do here over the
years remains in some way because you set precedent.
You all know, just by looking at these sometimes not particularly
attractive, sort of stodgy-looking leather chairs that this place is a
place of tradition. It is a place of precedent. These are old wooden
desks. We have little ink wells. Look at this little sand that comes
out of these things that were used for people who signed documents with
feathered pens. Come on. You cannot be here and not know that this is a
place of tradition and precedent. It reeks of it.
So when you change something here, you have to realize that it has a
huge impact on our society. So I ask, what is the great issue of the
day--issues of the day--that are so urgent, that are so powerful, that
are so necessary for this precedent of the Senate, for a leader never
to involve his party in a partisan attempt to block a nominee by
requiring an unconstitutional supermajority to confirm the nominee.
Never has been in history. Mr. President, 2,730 nominees since the
filibuster rule was put in place in the last century. No nominee--
never, never with a nominee in the history of the country did a
minority leader ever enjoin his forces to block by using the
filibuster. Never before. Now that is a precedent-setter, folks.
Why? Why? Why is it so important? What has changed that would not
lead George Mitchell to do that? That would not lead Howard Baker to do
that? That would not lead Mike Mansfield to do that? That would not
lead Everett Dirksen to do that? That would not lead Senator Taft or
Senator Vandenberg or Senator Johnson to do that?
Let's go on back through history. All of these men--the giants of the
Senate--the giants of the Senate never once employed this tactic. Do
you think that Lyndon Johnson, as majority leader, ever had a nominee
he did not want? I assure you, having read some of the history of
Lyndon Johnson, and Caro's book--the Senator from Arkansas talked about
it--there were people the Senator from Texas did not like. There were
people the Senator from Ohio, Mr. Taft, did not like.
You could go on throughout history, but did they ever apply a higher
standard? Did they ever do that? The answer through history is no.
Could they have? Well, obviously from what is happening right now, the
answer is, yes, they could have. But did they do it? No.
Were there issues of great importance during those times? Well, I
would suggest if you were living through those times of war and
depression and communism and segregation, and in prior centuries,
slavery, reconstruction, and trust busting, and human rights, I would
argue those are pretty big issues. Never before used.
So I am going to go back to what the Senator from Kansas was talking
about in the last hour. What are the issues--or what is the issue--that
is so important that the Senator from South Dakota and the leadership
of the Democratic Party would seek to change the way the Senate does
business, would seek to change the precedent of the Senate and
potentially forever change the judiciary of this country?
Let's make no mistake about it, you are going to dramatically affect
who is going to be applying for these judges, who is going to be
confirmed, and what their point of view is going to be--I would argue
what their competence is. The issue is clear, it all centers around
this issue called the right to privacy--the right to privacy.
Now, here is a copy of the U.S. Constitution. I am holding it up in
my hand. I challenge any person in this country, in the world, to find
the words ``right to privacy'' in this document. It does not exist. It
does not exist. Wait a minute. I always thought--I ask students all the
time: What section of the Constitution is the right to privacy? Will
you please read the section that the Founders, or through
constitutional amendment, established the right to privacy? Can you
please find that for me?
Well, oh, yes, it is in the--let me see. Is it in the 14th amendment?
Is that where it is? No. I am sitting here reading: ``All persons born
in the United States subject to jurisdiction . . .''--no, no, I don't
see the words ``right to privacy'' in there. Maybe I was wrong. Maybe
it is the 10th amendment: ``No powers delegated to the United States
Constitution prohibit the States or reserve the States with respect to
. . .''--no. Oh, it has to be the first amendment. Good: ``Congress
shall make no law respecting the establishment of religion, prohibiting
free speech or the exercise thereof, or abridging the freedom of speech
or the right to peaceably assemble . . .'' --no, it is not there.
Where is this right to privacy? Well, it was created by whom? It was
created by judges. Was it amended because there is a provision in the
Constitution, we can find that, that says how you amend this document.
Is that the way it happened? No, it did not happen that way.
We amended the Constitution because we put in place a power of
authority, people on the highest court of the land who decided it was
their responsibility to change the Constitution, that it was their
responsibility to find new meaning in these words that have been around
for a couple of centuries.
I have always thought we were a government of laws and not of men,
but that is not the case anymore. That is fundamentally what this
debate is about because, you see, the written words of the Constitution
that says a majority vote is necessary do not mean anything anymore
because the Constitution is a dusty old document we can manipulate and
change for whatever purpose because we have advances
[[Page 28822]]
in society; we know more than they did then; we are enlightened. Come
on, folks, 240 years ago, they didn't have the level of sophistication
and knowledge of our culture today, and so these dusty old documents
need to be revised; it is so complicated to go through the amendment
process of the Constitution; it is so cumbersome; we, the enlightened,
will change it as, of course, the culture demands us to do, to free us
from the bonds and shackles of these now long departed Founders of our
country who couldn't possibly understand the complexity of the world
today and the advancements today that have made this document so
unnecessary. So we don't need to find anything in this piece of paper.
In fact, if we can't find it, that is fine; we will simply create it.
Who does this creating? It is the very judges we are debating today.
The Senator from Kansas talked at length in the last hour about the
line of cases that is taking an eraser to the word ``God,'' religion,
erasing it from our public consciousness. It is as if the first
amendment was never written:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof. . . .
``Free exercise thereof.'' I asked a group of students yesterday what
were the first words in the Constitution, separation of church and
state or exercise of free religion. Half said separation of church and
state. Of course, if you listened to the judges and what popular
culture says, you would believe that.
Can you imagine, half the people I talked with yesterday did not
think free exercise of religion was in the Constitution? Can you
imagine? Why would they think that? Because in practice that is the
message the culture sends about the Constitution. It is not about
freedom of religion. If it were about freedom of religion, we wouldn't
be erasing God from everything that is public in our culture.
Who is doing the erasing? Is it Congress? Did Congress pass a law
that says you can't have prayer before a football game? Did Congress
pass a law that says we will scrap ``under God'' from the Pledge of
Allegiance? Did the people speak out and say, We don't want the mention
of any faith in the public square? Is that what Congress did? No.
So people ask: What are the consequences of what we are doing here
today? The consequences are clear. We have elected people who are
erasing from the public consciousness some of the most important and
fundamental rights and, I would argue, some of the most important and
fundamental principles that keep our country moral, safe, free, and
prosperous.
Mr. BROWNBACK. Mr. President, will the Senator from Pennsylvania
yield for a question?
Mr. SANTORUM. I will be happy to yield to the Senator from Kansas.
Mr. BROWNBACK. Mr. President, I have been listening, and I think the
Senator from Pennsylvania puts forward a brilliant and eloquent
argument, and it gets to the nub of what we are talking about instead
of the areas. It is in this last 4-year time period that a
constitutional right to privacy has been discovered and which has
spawned a series of cases. This is done by the Court. The Court has
discovered this, and the Court has done this.
Let me ask a simple question: Has the U.S. Supreme Court ever been
wrong?
Mr. SANTORUM. You would think from the debate here that this right to
privacy, that has now been established as this incredibly well thought
out and documented thing, is wholly supported within this document. I
have folks on my side of the aisle--I always think of the former
Senator from Washington, Slade Gorton, who is for abortion rights who
thought Roe v. Wade was one of the worst legal decisions he had ever
seen. So many people who are for abortion rights, who would have voted
as a legislator to allow the legalization of abortion, saw this
judicial construction or deconstruction of the Constitution as an
abomination to our legal system.
Has that ever happened before? Obviously, the Senator from Kansas is
referring to some of the cases such as Plessy v. Ferguson where the
Court looked at this Constitution and said: You know, equality really
doesn't mean equality. The words here aren't exactly what we think they
are, and you can be separate and equal. Or we can go back to Dred
Scott. They looked at this Constitution and said: You know, equal
doesn't mean equal. This rash of cases we have seen where the courts
have just decided to take these hallowed words and twist them into the
culture of the day, this is not a new thing in America; unfortunately,
it is a very old thing in America.
The Court in Dred Scott said: Yes, people have rights and people
should be treated equally, but--I think of ``Animal Farm''--some people
are more equal than others. Some people have more rights than others.
In the case of the slave, they really don't have much in the way of
rights at all.
We look back at those cases now with disgust, but judges found in
this incredible document the right to do incredible harm to this
country--incredible harm--and, in many cases, with complicity from the
Senate, for it is we who are the guardians of this document because we
put these judges in these places. So it is an important responsibility.
That is why this debate is so important. That is why we shouldn't be
watching ``The Bachelor.'' We should be watching out for the future of
this country.
In my next block of time in the next hour, the Senator from Kansas
and I are going to talk about this right to privacy, this line of cases
that has tried to erase God from the public memory and consciousness,
all instigated by judges who would find wide praise and admiration on
the other side of the aisle, who would be called mainstream judges--
mainstream judges who are striking at the heart of this document.
What is a mainstream judge? Let's understand it. A mainstream judge
says God has no place in the public square. That is a mainstream judge.
A mainstream judge says you have the right as an individual to have
dominion over somebody else and terminate their life if you want to.
That is a mainstream judge.
A mainstream judge says we are going to take the institution of
marriage and corrupt it, deconstruct it, tear it apart, put it back
together to mean nothing. It means any two people for any reason who
want to get together should be recognized as married, irrespective of
who they are. It has nothing to do with fathers and mothers and having
children. What does that have to do with marriage? That is a mainstream
judge.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. SANTORUM. It is an extreme judge, not a mainstream judge.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. JOHNSON. Mr. President, reference has been made at this early
hour this morning about debasing the values of this institution and
this country. If any American sadly wants to see debasing of the
institution, they have only to look at the strategy that has been
foisted upon this body and on the American people by the Republican
leadership of this Senate with their fabrication of a ``crisis''
relative to the nomination and approval of Federal judges.
There is no crisis. The fabricated crisis the media has talked about
is a polite way of saying the phony crisis, the fake crisis.
The reality of the situation is that this Senate has approved 168
Federal judges nominated by President Bush. The Senate has blocked the
approval of 4 Federal judges, a remarkable 98 percent success rate.
The ratio of unfilled judgeships is now at its lowest point in some
13 years. The pace of approval of judges is at a higher rate than that
of past Presidents of either political party, and I think it is fair to
say that of these 168 judges, most of whom I voted for, virtually all,
if not all, were conservative Republican judges. That is to be
anticipated. They were all nominated by President Bush.
The question is not whether we should approve conservative Republican
judges. We have, overwhelmingly.
[[Page 28823]]
The question is, Should there be some shred of moderation, some shred
of bipartisanship in this institution relative to these judges who will
serve life terms on the bench? These are not Cabinet officers. These
are not people who come and go with whatever President happens to be in
office. These are people who will serve virtually their entire lives on
the Federal bench. So this body has a constitutional obligation of
advice and consent.
Apparently, the other side believes unless there is 100 percent
approval of Federal judges, that somehow we haven't done our job. I
would say the opposite, that if all we do is rubberstamp the
nominations of any President, Republican or Democrat, this body has
fallen down in its obligations, constitutionally and ethically.
One of the great things about the Senate and the great traditions of
the Senate--and there are great traditions in this body--is that unlike
the House--I served in the other body, as did many of my colleagues--
unlike the House of Representatives with its majoritarian philosophy,
set up that way by the Founders, where if you have a majority of one
vote, that is sufficient to ram through almost anything, the Senate was
devised by the Founders of our Republic to be a moderating, cooling
institution. That is why we have 6-year terms--because Senators are
invited to take a longer term view of what is good for our Nation and
what is not.
The Senate is designed to be a body that doesn't jump every time a
whim is expressed by the public or in the political whims of the day.
Our role is to take a longer term view and to moderate what is
oftentimes the hot politics of the House of Representatives.
It is very difficult, because of the rules of this body, to jam
through legislation for the approval of virtually anything of any
controversy without some bipartisanship. That is the course of action
we are seeing here today.
While we have approved 168 of President Bush's judicial nominations,
the minority party, a 51-to-49 minority, has said these are such
important positions, let's make sure there is a general consensus about
the support of these nominees. That is what the 60-vote rule requires.
The other side is very frustrated because they like to jam things
through the Senate with 51 votes, but that is not the way the Senate
works on this or many other issues.
I have to say President Bush's nominees have received prompt hearings
compared to virtually any other standard. That contrasts greatly with
President Clinton's experience. President Clinton was told: Don't bring
us a nominee who is liberal; they will not receive a hearing. And,
indeed, they did not.
We had people nominated, closed up their law practices and put their
family on hold for years upon years, and could not get a hearing under
the Republican leadership during the Clinton years.
That doesn't happen anymore. Now people who are nominated do receive
timely consideration. They do get votes. They get votes on the floor of
the Senate. But the Senate has chosen to use its prerogative to require
bipartisanship on some of the judges who many in this body believe fall
outside the mainstream of conservative thought in terms of their
politics, in terms of their legal interpretations.
There is no crisis in terms of judges. For over a decade, we have not
had the ratio of judgeships filled as we have today. President Bush has
an enormous winning record in terms of the nominations that have been
approved. Again, virtually all of them are conservative Republican
judges. That is his prerogative. The Senate has gone along with that.
There is no problem there. This is not as though somehow the President
is getting jammed.
What is happening here, I think, is that there has been a strategy
concocted by the leadership of the other side to try to gin up
political support among a faction of their supporters. What we have
here is politics, an effort to play to the radical right. It is costing
$100,000 or more of the taxpayers' money for this debate, and yet what
we have here is a phony, fake, fabricated crisis. This is no crisis.
The Senate is dealing with judges in a timely and responsible fashion.
President Bush, obviously, could have the approval not of 98 percent
but 100 percent of his nominees if he were to send to us mainstream
conservative Republican judges, as he largely has done. Clearly, it is
part of the political strategy to look around the country and find a
handful who fall far outside the mainstream of Republican or Democrat
judicial thinking and nominate them, knowing there will be resistance
to these individuals.
The thought is that by nominating these individuals, they can
energize the radical right-wing political faction within the Republican
Party. They will contribute money then if they see all this going on.
It is a very cynical strategy. This has nothing to do with the
interpretation of the Constitution. We are approving conservative
Republican judges. It does have to do with able people who are in the
mainstream, broadly thought.
I think it is regrettable that we find this Senate and our work
hijacked by those who want to push aside timely consideration in the
Senate of issues pertaining to jobs, education, health care, energy,
environment, our veterans and our military--all the issues with which
this body ought to be dealing.
The Federal fiscal year began October 1. Yet the Federal budget is
not concluded. So there is so much that needs to be done, that we are
being prevented from doing as we spend these many hours around the
clock on a fabricated, phony crisis that does not exist. All of this to
play to a very small faction politically in America. It has to do with
political fundraising. It does not have anything to do with the quality
of the court.
I note that 95 percent of the Federal judicial seats are now filled.
That is the lowest vacancy rate in 13 years. Last year, this Senate,
led by my colleague Senator Daschle, confirmed the largest number of
judicial nominees in a single year since 1994. There ought to be
celebrations on the part of the other side in this body over the
remarkable, timely, aggressive approval of Federal judges, the highest
number of judicial nominees approved in a single year since 1994. The
highest level of judicial seats filled, ratio of seats filled, in 13
years. That ought to be cause for celebration. That is a remarkable
level of progress, and it was done in a bipartisan fashion.
Part of that time, the Democrats controlled the Judiciary Committee
with Senator Leahy as chairman. Part of that time the Republicans
controlled the Judiciary Committee. So the track record is truly
extraordinary. What an irony that in the face of that reality, we find
ourselves through the wee hours of the night, through the day
yesterday, through the day today, being prevented from dealing with the
real legislative issues while we talk about this political gamut that
we have before us.
Some say, well, what about the appellate court judges? That is the
highest Federal court next to the Supreme Court itself, and one that
truly does write law. Well, even there the Senate has confirmed 29 of
President Bush's appellate court nominees to date, more Bush circuit
court nominees than--get this, President Bush has had more of his
appellate court nominees approved by this Senate than President
Clinton, President Reagan, or President George Herbert Walker Bush had
by this point in their administrations. Yet here we are, the other side
posing as though there is some sort of terrible crisis going on when,
in fact, it is just the opposite. Conservative Republican judges are
being approved at a record pace by this body.
What the other side seems to find unacceptable is that the Democratic
Party is insisting that one should not go to a lifetime Federal bench
unless there is a generally broad consensus, bipartisan consensus, not
unanimous but a broad consensus, of at least 60 votes that that person
deserves to sit on the bench dealing with legal issues that are of
monumental importance to every American citizen for the rest of their
lives. I think that is one of the great strengths of this body. That is
[[Page 28824]]
one of the great strengths of the United States Senate, that we cannot
be stampeded into the radical actions of a few but that we take a
longer term view of what is good for America, what is consistent with
American values, what is consistent with American priorities, for all
of our people. That is what is happening in this body this year, and
that is why a few on the other side are objecting so strenuously.
Now, other judges have been filibustered; cloture votes have been
held. Other judges have been held up in committee, which has been the
favorite mechanism of keeping people from having a vote at all. That is
to be said even for these four. They have been allowed votes in
committee and cloture votes on the floor. They cannot get the 60-vote
requirement and so they are not going to the Federal bench because they
do not have that broad-based consensus of support in this body.
That is what this body is all about. It is not just judges. This same
60-vote rule prevails on virtually everything we do in the Senate, from
the passage of health care, to education, to appropriations
legislation. Virtually everything is subject to that consensus
requirement. I think it reflects the best of our values in America and,
in fact, it represents America coming together in this body to try to
produce legislation that is good for us all. It is not ideologically
driven. It is not the product of the far left or the far right. The
product of the far left or the far right does not do well in this body
because of the nature of the rules that have been the rules since our
Republic began. It is one of the geniuses of the Founders of this
Nation, that that is the profoundly important role of the Senate to
moderate the radical winds that occasionally blow politically through
this country and through Washington, DC.
So it is a bulwark of individual freedom and of American values and
priorities that we have a body like this that mandates that there be
greater thoughtfulness, greater moderation, greater reflection than
would otherwise be the case.
There are other issues that we rightfully ought to be moving on to.
Recently--yesterday, in fact--I visited the Walter Reed Army Hospital
in Washington, DC. One of my constituents, a soldier injured in Iraq,
was there. Senator Daschle and I and a contingent of other Senators
visited our troops. We can take great pride in the quality of these
young men and women and what they have done for America, what they are
doing for America. They are extraordinary people with great courage,
and they are getting on with their lives as best as they can.
It was heartbreaking to go from room to room at Walter Reed and see
our Iraq military veterans. In one room, a soldier has lost an arm. The
next room, a 20-year-old young man has lost both arms. In the next
room, a young man has lost his leg all the way to the hip. In another
room, there was a young man with brain damage. In another room, a man
has lost his feet. Another room, a man has lost his hand. In another
room, an individual has lost his arm again. It goes on and on.
There has been a lot of reference to those who have lost their lives
and made the ultimate sacrifice in Iraq. Our hearts and prayers go out
to them and their families, but we should not forget those as well who
are alive and with us but whose bodies are shattered, whose lives are
forever changed because of what they were willing to do for the United
States of America in their military service.
Their families were there. Young wives were there yesterday, many of
them with very small babies, some pregnant. Now they have a husband who
has no arms, who has no legs, who has brain damage. We need to give
some thought to these families as well, think about the enormous
sacrifices they are making for America.
One of the great ironies and sad ironies of this debate that is going
on is that the legislation that was taken off the floor in order for us
to have this debate was the VA-HUD appropriations bill, the very bill
where we will make determinations about whether these young men and
young women, once they conclude their military service, will have the
health care, the job training, and the therapy they need to get on with
their lives. That was pushed aside. We do not have time for that debate
apparently because we need to spend 2 days or more of the Senate's time
on this phony crisis because 4 out of 172 judges have not been approved
by this body. What a sad commentary about the priorities of the
Republican leadership in this body.
I do not ordinarily make partisan references lightly. I am a
Democrat. I am elected in a State that is overwhelmingly Republican,
and I am proud of the Republican support that has been extended to me
for many years. They are good, wonderful, thoughtful, patriotic,
religious people on both sides, no question about that. But I am
profoundly disappointed, to the point of contempt, for what has
happened in this body the last day or so with the hijacking of the
Senate's agenda already behind schedule on these important issues that
we ought to be talking about in order to take up this question of 168
to 4.
I suggest that if it was 172 to 0, that would be good evidence that
the Senate is not doing its job of advice and consent. This body is not
meant to be a rubber stamp. That is not what the Founders of this
Nation thought that they were doing when they wrote our Constitution
and devised the rules of the Senate.
Mr. President, in 1968 New York Senator Robert Kennedy launched a
Presidential campaign at a time of great unrest and dissent in our
nation. He ran a campaign that lasted 85 days to empower those who did
not have the power, to bring justice to those who did not have justice,
and the protest the direction of our great nation. At the beginning of
that campaign, he addressed criticism of anti-war protesters by saying:
There are millions of Americans living in hidden places, whose faces
and names were never know. But I have seen children starving in
Mississippi, idling their lives away in the ghetto, living without hope
or future amid the despair on Indian reservations, with no jobs and
little hope. I have seen proud men in the hills of Appalachia, who wish
only to work in dignity--but the mines are closed, and the jobs are
gone, and no one, neither industry or labor or government, has cared
enough to help. Those conditions will change, those children will live,
only if we dissent.
So I dissent, and I know you do, too.
Mr. President, I rise today to dissent. I dissent to the majority of
this body's unwillingness to focus and deliver on healthcare and
education. I dissent to this body's inability to provide for our
veterans. I dissent to the President's blatant disregard for treaty and
trust responsibilities to Indians. And most of all, I dissent this
political charade.
Instead of talking about judges, as a body, we should be addressing
the unmet needs across this country.
Our Veterans made tremendous sacrifices in service to our Nation.
They have answered the call to defend our freedom and served our
country at the time of its greatest need. We are trying to provide our
veterans with the full benefits they have earned. While the White House
can find money for tax cuts for America's wealthiest families and a $20
billion lavish grant for Iraq, too often poverty is pled when it comes
time to providing our veterans the benefits they deserve. Right now
60,000 veterans are waiting 6 months or longer for an appointment at VA
hospitals. I think it is important to fully fund VA health care so that
veterans of Operation Iraqi Freedom can get the care they need when
they return home.
My own son served with the 101st Airborne in Iraq. He is home now. He
is safe. He did not suffer one of these horrific injuries. We are
grateful for that, but we are very mindful that tens of thousands of
others are still there, have suffered horribly, have lost their lives,
and their families have gone through enormous painful stress.
In contrast, the Republican leadership in the Senate has broken their
promise to provide an additional $1.8 billion for veterans health care
this year and even proposed an increase in prescription drug copayments
that impose a $250 annual membership fee for
[[Page 28825]]
veterans seeking health care. Should we not be talking about these kind
of priorities? It is astonishing to me that the Republican leadership
of the Senate has set a target adjournment date only days from now,
November 21, and has scheduled 39 straight hours of executive session
to discuss this phony issue; not 39 straight hours to discuss critical
legislation such as lack of prescription drug coverage facing millions
of American beneficiaries in this country. Do not the 40 million
Medicare beneficiaries deserve as much attention as this phony issue is
receiving?
We are at an impasse. We do not have a final Medicare bill. At this
rate, spending hours and hours discussing nominations which have
overwhelmingly been approved, instead of debating important Medicare
legislation, makes me wonder about the priorities of the majority party
in this body. They are dedicating nearly 10 hours each of discussion
for four individual judges, but we cannot spend 1 hour each for every
million individuals on Medicare. What is wrong with that picture? High
drug spending is placing a heavy burden on American families, and many
businesses are responding to rising drug spending by increasing the
amount that employees must pay for prescription drugs. The public
programs such as Medicaid and the Veterans Health Administration are
also struggling to respond to soaring drug spending. Finding a solution
to the prescription drug crisis in this country is a priority for me,
for many in this body. It should be a priority for the entire body.
States and local communities are struggling with the worst budget
shortfalls since World War II and many have cut back on education
funding, on instruction time, have laid off quality teachers and school
staff. School district after school district in my home State of South
Dakota are having opt-out votes, trying to do something to try to make
sure that children in our communities have the resources they need to
learn. Parents and students are holding bake sales and auctions to save
teaching jobs, music, art, other student activities. It would be
impossible for our public schools to meet the strict demands of the new
Federal education law if vital school services continue to be cut all
across our Nation.
I believe that fighting to bridge this gap by increasing Federal aid
to the States and raising public awareness of the school public crisis
is essential. I think it is important to recognize that money alone is
not the solution to improving our schools, but we need also to be
cognizant of the fact that public schools need the financial resources
necessary to successfully implement No Child Left Behind. The National
Education Association's State-by-State report on layoffs and cuts
affecting public schools and the responses of students, parents, and
communities, NEA collected anecdotal data from 2003 through the end of
September and finds the school district stress all across this country.
In my home State of South Dakota, our Native-American community is
struggling badly--high unemployment, lack of health care, high infant
mortality, lack of jobs. Again, that is another area that deserves the
attention of this body.
These are the real crises that face America, not a 98-percent
approval of conservative Republican judges, which this body has done.
This President has been served very well by the Senate on the timely
approval of 98 percent of these judicial nominations. I submit that the
four who have been rejected were selected with the thought in mind that
they would be rejected because what the other side of the body wants,
and I think what the President wants, is a fight. They know that a
fight will energize the radical right wing of the Republican Party and
will energize political contributions. Sadly, that is what this debate
is all about. That is why the taxpayers are having to fund $100,000 or
more for the cost of this. That is why we are not able to get on to the
other issues that truly we ought to be addressing right now.
One hundred sixty-eight conservative Republican judges have already
been approved, most with my support. That is not the question. The
Federal bench has a higher ratio of judges seated now than we have had
in 13 years. The appellate judges are being approved at a faster rate
than Clinton, Reagan, or George Bush, Sr.
So the record of this body, Republican and Democrat on the Judiciary
Committee, has been one of accelerated consideration of judges in a way
that has not been seen in many years. I think that reflects well on the
body. What does not reflect well on this Senate is this hijacking that
has taken place of our agenda, where we are being prevented from
talking about the real issues, the real crises having to do with our
children, having to do with our schools, having to do with our seniors,
having to do with our veterans, having to do with health care costs.
That has been hijacked by a body that wants to talk about these four
judges who were selected, I think, by a process where the President and
the leadership of the other side knew very well that these would be
lightening rod candidates, that they do not fall within the same
mainstream body as the other 168 conservative Republican judges.
That has led to this dispute, and the dispute, I think, is not about
principle. It is about energizing politics. It is about raising money.
That is a sad commentary. That is contrary to the values of this body
and of the American people, Republican and Democrat. The American
people deserve better than what has gone on on the floor of this Senate
over these last many hours. We are going to see the rest of today
wasted as well.
Mr. President, our roads, schools, and infrastructure are crumbling
as Nero fiddles here in the Senate. Yet our friends in the majority
complain about a 98 percent approval rate for President Bush's judicial
nominees. In baseball, that would equate to roughly a batting average
of .980. A power hitter is someone with a batting average in the range
of .330. That means if the Bush Administration's judicial approval rate
in the Senate were considered in baseball terms, we would be batting
nearly triple what any major league manager would love to have.
And consider a baseball team that would have a .980 winning
percentage. A winning percentage like that would far surpass any record
set by any team in major league baseball; and would certainly beat the
losing seasons of the Texas Rangers when President Bush was their
managing general partner.
In fact, the quality of some of the judicial appointments sent up
here by President Bush shows the same judgment he used when he traded
Sammy Sosa, a perennial home run leader, to the Chicago Cubs.
The PRESIDING OFFICER (Mr. Coleman). The Senator's time has expired.
Mr. JOHNSON. Mr. President, I yield the floor. I am sure it is a
great place. I have not been there. I am sure it is wonderful. He used
the whole day to talk about that, while we hear endlessly, Why are we
not talking about veterans benefits or unemployment when all Monday was
used by the Democratic side to talk about Searchlight, NV.
It is a wonderful place, I am sure, but I don't know of any
legislation pending about Searchlight, NV. Why weren't we talking on
Monday about these things and not addressing the great issues of the
day or addressing what we need to be doing about the war in Iraq?
Instead, we are talking about Searchlight, NV. Where was the protest?
Where was the anger? Where was the outrage. How about rabbits eating
cactus? Again, I am sure it is a great place. No offense to anyone from
Searchlight, NV.
A week ago Friday, a week ago today, the other side ate a whole day
up and we got no votes done on appropriations bills because they were
chewing it up on filibustering at that point. Where was the outrage? We
were not dealing with the great issues of the day. I guess it did not
matter at that point in time.
I find it interesting that this is all about fundraising. It seems
the people fundraising are the left. This is NARAL, National Abortion
Rights Action League, their Web site, going to
[[Page 28826]]
task on Charles Pickering; others on the left, pushing this hard for
fundraising and organizational purposes. I don't think that is at the
root of what we are talking about and why we are spending this time and
why we are being tied up on something that has been without precedent,
a blockage of Federal judges. This is really about a big issue, and
that is why we are here at 6 in the morning on Friday, because we are
talking about a big issue and we need to talk about other issues as
well--which I agree with; we need to talk about other items, but we
need to talk about this one, too.
When you get a judiciary that is blocked, you need to talk about it.
Why would these folks be blocked? These are highly qualified. They get
painted different ways, but we have been through ad nauseam the
qualifications. They are highly qualified judges in mainstream
positions in their States on the highest courts in Texas and
California--I guess Texas and California are mainstream--they are on
the highest courts. One is on the Federal bench in Mississippi,
approved by this body previously.
What this comes back to--and the Senator from Pennsylvania was
hitting it when we last had the floor--was a discovered right by the
Supreme Court, the right to privacy. If we blow away the smoke and we
are stating why we are here at this point in time and why would such
qualified judges be blocked, it is because of the court that has been
writing laws and about the right of privacy, or this constitutional
right, discovery. It is not in this document, as the Senator from
Pennsylvania pointed out, the right to privacy.
I find it interesting that others have mentioned that the appellate
court writes laws and that is why the judges are important. The lower
court, the Federal district trial court, does not write laws, but the
appellate court does. There is the issue and the problem. The appellate
court does not write laws. The Supreme Court does not write laws. They
interpret the laws. They interpret the Constitution. They do not write
it.
Unfortunately, people in this body look at it differently. Some are
saying, yes, the court can write laws at the appellate and the Supreme
Court. If that is the case, we have a second legislative body in
Washington: We have three units of government, but two happen to be
legislative and one executive. Yes, one legislative also has a court
and judicial judges as well, but we have a second legislative body. And
we are seeing this stream develop further with some people on the other
side of the aisle saying we should examine the political opinions of
people we are appointing to the bench.
If they are going to be a judge and they are going to interpret the
law, why should a political opinion be of significance in the
consideration? That is not their role. They are not a legislature. I am
a legislator; you are a legislator; people in this body are
legislators, but those on the Supreme Court or court of appeals are not
legislators.
Some say, OK, we need to examine the political ideology of the people
coming forward for the bench even though they are saying we will follow
the law and that leads to writing laws on the bench. I hold to the
opinion--most people on this side do--what you want in a judge is
someone who interprets the law and interprets the Constitution and does
not write it. There would be times I would have actually liked a judge
to interpret something to the right and write it more conservatively. I
would think that would be appealing to me, but I don't want a judge
like that. I don't want a judge to do that. That is my job. That is not
his or her job.
I am asking for one to stay within the document and not to discover
or write amendments to this document. I want them to interpret the law.
This is what we are seeing seep into this. These are not legislators.
These are not legislators-to-be, going on the bench, who write laws.
They interpret the laws.
What we have seen taking place is one of the biggest laws written by
the bench over the last 4 years, the right to privacy, or as is more
common vernacular today, this is about abortion and the Supreme Court's
discovering this right. That is why all the judges are always quizzed
ad infinitum about their views, because if the court can write that
law, the court can repeal that law, so they do not want someone to go
on with a political philosophy contrary to this, who might write the
law differently.
Now, we have a bad premise here. The court should not be writing law.
The court should be interpreting laws. So stick within the documents.
We also have a bad premise in the second step, looking at the
political philosophy of someone being appointed. No, look at the
qualifications and their willingness to uphold the Constitution. We are
down a bad road a couple of steps already. That is why we are here at
this time of day, because these four appellate court judges would be
not questioned to any degree if it was not about political philosophy.
That is the issue, and it is a big issue, and it is worthy of this
discussion. And it is sad we are at this point because I have some of
my colleagues here who want to speak and I do not want to dominate this
half hour.
Mr. SANTORUM. I would like to ask the Senator a question. You may
have answered the question I posed earlier: Why, throughout the history
of the United States, have we not had a leader of the Senate, minority
or majority, join in blocking of a nominee to require a supermajority?
Why has it never happened prior to this session?
I think the Senator landed on it when the Senator said for the first
time we are seeing people come to the court not to be judges but to be
legislators, to make law instead of decide constitutional
interpretation and to settle disputes. So we have entered into a time
when political considerations now become much more important than the
quality of the judge, the temperament of the judge, the qualifications
of the judge, the experience. Those are now important, but they are
almost secondary issues to the political philosophy of the judge
because the courts now are fundamentally different than they were 50
years ago or 60 years ago.
Is that what the Senator from Kansas is saying?
Mr. BROWNBACK. It is what I am saying. And it is bad that we are
seeing this route taking place. This is going to lead us down a bad
road. We are already started down the road.
Now we appoint legislators for life with superpowers, and we are
unable to pull them out other than maybe for moral turpitude. You have
people who become--in essence, they can almost be dictatorial or
tyrannical, and they are appointed for life. That is why so many people
are so passionate about what takes place on the bench today, because
now you have a superlegislator who does not answer to the public. It
starts to get irritating to a lot of people.
This is not the way we should be going. We should be backing up and
saying these are three coequal branches of government with different
jobs--not legislators each, but a legislative and executive and a
judicial branch. This is the problem.
If we keep going down this trail, and you have to examine political
philosophy because judges can write laws or you can discover rights,
including rights of privacy in the Constitution, and what other rights
can you discover in the Constitution, and it will be important to know
the political philosophy. Say we get one or two Supreme Court nominees
to come up. Now we have somebody such that we are looking at a
superlegislator for life in the highest court of the land who can, with
a couple of other people, rewrite this document--not just legislate but
rewrite the constitutional document. That is why we have the huge
fights on this floor.
We used to say in the past--thanks to the question my colleague
raised, we say, I disagree with the philosophy of Ruth Bader Ginsburg,
I disagree with the philosophy of someone else, but they said they
would uphold the law. They are confined, as I am as a legislator, with
a set of power and authority. I do not agree philosophically, but they
are qualified and will do a good
[[Page 28827]]
job and I don't have a good reason to vote against them.
Mr. SANTORUM. This gets to the heart of this 168-to-4 number. The
vast majority of the 168 are at the district court level, trial court
level.
What the Senator from Kansas is saying--and I want to make it clear--
the district court judges, by and large, do not make law. They are
trying cases. Appellate court judges, we have seen now in recent years,
have begun to take on the mantle of legislator in making law, and
therefore all of the nominees who are being blocked on that side are
these quasi-legislative-type judges.
The Senator is suggesting the superlegislator is the Supreme Court.
So if we are in for filibusters for appellate courts, can anyone
imagine what a Supreme Court nominee fight will look like in the Senate
now versus 20 or 30 years ago?
Mr. BROWNBACK. Absolutely. That is the point. We will be in such a
mammoth fight and engaging the entire country with this, how will you
ever get that person through?
It does go to this constitutional case that is being considered by
the Supreme Court now on the flag salute, ``One Nation under God.''
Here was a continuation of the discovered set of laws that somehow
discovered that our kids cannot say our flag salute, ``One Nation Under
God.'' Ninety percent plus of the public is for the flag salute. I am
confident that percentage is ahead of that. In this body, there is
outrage. And the Ninth Circuit, in a consistent opinion with 40 years
of discovery law, says: No, you cannot do that.
So now you put somebody in a legislative role--circuit court,
lifetime appointment, cannot remove them--and the Ninth Circuit, which
gets overturned all the time--as a group of legislators they get
overturned all the time by the Supreme Court. Now, say you get a
Supreme Court position that opens. They are not going to get overturned
by anyone. And you get people fearful of the tyranny of the judiciary
which the Founding Fathers were fearful of themselves. They wanted the
judiciary to be the most limited because they have the lifetime
appointments. They have a pretty big set of powers. They feared tyranny
could become an issue because it was a lifetime appointment and was not
subject to the checks and balances of the people.
People check and balance everyone in this body. But do they check and
balance the judiciary? Where is the populace's ability to check and
balance? That is why this is an important debate and why so many are
concerned.
What we should be doing is backing up and saying, no, this is about
the strict construction of the documents that pass through the
legislative bodies that are in the Constitution that go through an
extraordinary process. Where, as the Senator from Pennsylvania pointed
out, the Supreme Court discovers a new right in this Constitution, if
we had written that in there, it would have taken a vote of two-thirds
of this body, three-fourths of the States, to become law. This is a
big, lengthy process and, as such, we have a limited number of
constitutional amendments, as it should be. It is a strong document,
standing over two centuries, and yet a court can discover this.
We should back up and stand on the issue of, this should be about
strict construction of what is taking place. This is a very important
key fight to have.
With that, I yield the floor. There are several other Members who
seek to speak.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. I take a step back here and go through what we are
doing. What is going on? What is going on in the Senate that has
brought about this debate which has been so important? Can we agree on
what is going on? I think we can. Let me use the words, and I would
agree with these words written by Jon Corzine, the Senator from New
Jersey, who happens to be the chairman of the Democratic Senatorial
Committee.
The Senator from South Carolina was here and the Senator from
Minnesota was here talking about this throughout the night. We can
agree on what is going on.
Senate Democrats have launched an unprecedented effort. By
mounting filibusters against the Bush Administration's most
radical nominees. . . .
Unprecedented. And what does ``unprecedented'' mean, according to the
dictionary? Having no precedent. What is precedent? An earlier
occurrence.
So, having no earlier occurrence. What does that mean? It has never
happened before. That is not me. It is not Republicans saying this. You
have protestations on the other side. This happens all the time. Come
on, no big deal. The Senator from Illinois will show a chart, look at
all these filibusters. Come on, no big deal. We do this all the time.
Unprecedented. Their words, not mine.
To whom? To their people? Guys, this is what we are really doing. We
are not going to say this on the floor of the Senate, but this is what
we are really doing. It is unprecedented.
So what is going on? An unprecedented filibuster to raise the bar for
certain nominees. That is what is going on. Not my words, the words of
the Senator from New Jersey to the people he relies upon to support
their party.
Let's look at the facts. Is it unprecedented? Since the filibuster
rule was put in place, 2,372 nominees came to the floor of the Senate.
Has anyone been blocked by filibuster? No. So you see, 168 to 4--stack
that percentage against 2,372 to zero. Four? Let me ask if it is four.
Unanimous Consent Request
I ask unanimous consent that the Senate now proceed to the
consideration of Calendar No. 169, the nomination of Carolyn Kuhl to be
a United States Circuit Judge for the Ninth Circuit; and further
provided there be 100 hours of debate equally divided for the
consideration of the nomination; and provided further the Senate
proceed to a vote on the confirmation of the nominee, with no
intervening action or debate.
Mr. DURBIN. I object.
Mr. SANTORUM. Now it is 168 to 5. So that chart is now outdated that
the Senator from Illinois will show.
Unanimous Consent Request
Mr. SANTORUM. I ask unanimous consent that the Senate now proceed to
the consideration of Calendar No. 455, the nomination of Janice Rogers
Brown to be United States Circuit Judge for the DC District Court;
provided further that there be 200 hours of debate equally divided for
the consideration of the nomination; provided further that following
the debate, the Senate proceed to a vote on the nomination of Janice
Rogers Brown, with no further intervening action or debate.
Mr. DURBIN. Mr. President, I ask unanimous consent that that
unanimous consent request be amended and that we move to legislative
session immediately to consider an increase in the minimum wage and
additional unemployment benefits for the 3 million Americans who have
lost their jobs under President Bush's administration.
Mr. SANTORUM. I want to make it clear that you are asking, in
addition to this unanimous consent, that we would do this unanimous
consent in addition to this?
Mr. DURBIN. I ask unanimous consent that before we consider any
unanimous consent request by the gentleman from Pennsylvania, that we
first----
Mr. SANTORUM. I would object. I object.
Mr. DURBIN. Mr. President, reserving the right to object.
The PRESIDING OFFICER. Objection is heard.
Mr. DURBIN. Mr. President, I reserve the right to object.
Mr. SANTORUM. Mr. President, I have the floor.
The PRESIDING OFFICER. The Senator--
Mr. SANTORUM. Thank you.
Mr. President, I renew my unanimous consent request.
The PRESIDING OFFICER. The Senator may object or not object.
Mr. DURBIN. Mr. President, parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state his inquiry.
[[Page 28828]]
Mr. DURBIN. Will the Presiding Officer tell us what the pending
business of the Senate is at this moment?
The PRESIDING OFFICER. The nomination of Janice R. Brown, of
California, to be United States Circuit judge for the District of
Columbia Circuit.
Mr. SANTORUM. I renew my unanimous consent request.
The PRESIDING OFFICER. Is there objection?
Mr. DURBIN. Mr. President, I object. If the Senator is not going to
consider the----
The PRESIDING OFFICER. Objection is heard.
Mr. SANTORUM. Mr. President, I have the floor.
Now that chart the Senator from Illinois is going to show is 168 to
6. And I would project that 168 to 6 will soon be 168 to 7 and then 8
and then 9 and then 10; and that this number is going to actually,
looking forward into the future of the Senate, be a good percentage. I
might agree with him looking forward because we will have set a
precedent tonight. We will have set a precedent in this session of
Congress that will go to haunt both sides forever. If we maintain it,
it will. I guarantee it.
What we are doing here is playing with real bullets. I tell you there
are folks on our side of the aisle who are loving what you are doing.
They are loving what you are doing, man. They just think, go, baby, go.
Do this because we can't wait to get our arms around the next
Democratic President who wants to stack the court with a bunch of
people who believe God does not belong in the Pledge of Allegiance. We
can't wait--who, by the way, got confirmed by the Clinton
administration and by this Senate. We can't wait to get our arms around
people who find in this Constitution things that are not in it, who
believe it is their job to be the super Senator, the super legislator,
the super President. We can't wait to block those nominees because, do
you know what. You did it first. You did it first. You can say, oh, no,
we didn't do it first. You did it first. You crossed the line. Oh, it
has been threatened. It has been talked about around here. I will not
deny that. I talked about it.
Richard Paez, by the way, who tried to stop the California election a
few days before the election, found somehow or other that ``you can't
hold this election,'' that, to the people wanting to recall the
Governor, ``you can't do that because, of course, I know more than the
people.'' Richard Paez, Ninth Circuit, overturned more than any other
circuit in the history of the United States. Clinton nominees, liberal,
activist judges, out of step with the mainstream, the Senator from New
York and maybe other Senators call mainstream, who says ``under God''
does not belong in the Pledge of Allegiance, who said ``three strikes
and you're out,'' that the people of California voted for, is
unconstitutional. The Supreme Court overturned that.
That is the mainstream. Can't wait to get at the next Richard Paez.
Can't wait to get at the next Marsha Berzon. Go on down the list of
folks. Did I want to filibuster them? Did I want to filibuster Richard
Paez because he was a district court judge? And he was awful. He
expressed values and views that were so out of step with America and
with my constituents in Pennsylvania, I just could not stand it. I
said, come on. How can we continue to let these judges, who think they
are God, who think they are Senators, who write laws that do not exist,
who take the laws we do write and turn them into what they think, not
what the Senate believed and what the President believed--how do we let
these people keep coming at us and not do anything?
My leader, Trent Lott, and my chairman of the Judiciary Committee,
Orrin Hatch, said that is not the way we do things in the Senate. This
is the passion of the day. But in the Senate, one of the great things--
and you hear it on both sides all the time--one of the great things
about the Senate is we do not get caught up in the passion of the day.
We understand the long term. We understand the greatness of America. We
hear we are the cooling off. We do not get caught up with the passion
of the day. We are the deliberative body. Therefore--and therefore--we
have a higher calling than to respond to the NARAL ads or the People
for the American Way ads. We have a higher calling. We are Senators. We
look out for the long-term interests.
How do you preserve the long-term interests? You do it by following
the laws and the precedent. You do it by using what has been
established over 214 years to protect rights, and we are throwing it
away. We are throwing it away, and understand the stakes of what we are
doing here. Understand the precedent we are turning over and what we
are going to unleash on the floor of this Senate. Do you know what.
Maybe it is a good thing. I have sat here now--I will not argue against
my colleagues, but I have sat here now, and I listened to the Senator
from Kansas.
I would ask the Senator from South Carolina: Do you believe there are
some on our side who, after listening to the Senator from Kansas and
listening to the judges who have been put through--because we have been
good stewards. We have allowed the Richard Paezs of this world to come
and undermine our Constitution. We have allowed the left to seed into
the court system those who would destroy this Constitution.
Are there not Members of our side, I ask the Senator from South
Carolina, who would say, thank you, we never had the courage--we never
had the courage--to change the way the rules are here in the Senate to
make sure that we could protect--as I think the Senator from New Jersey
said--``protect our courts?'' We did not have the courage--as the
Senator from New Jersey said--``to stop judicial extremists.''
So maybe what we should be doing, I ask the Senator, is thanking the
Senator from Illinois--and the Senator from North Dakota is here--and
the Senator from South Dakota, Senator Daschle. Maybe what we should do
is instead of protesting this is to thank them for giving us a tool,
for giving us a tool to protect this document.
I assure them--maybe I should not assure them--maybe I will ask the
Senator from South Carolina, what do you think will happen now?
Mr. GRAHAM of South Carolina. Well, to the best I can, to the Senator
from Pennsylvania, for the last year--this is my first year--I have
seen a trend that seems to be getting worse and worse. I can assure
you, as the Senator from Pennsylvania has indicated, that for every
liberal special interest group there is a conservative special interest
group that feels just as passionately as the People for the American
Way.
The Senator is absolutely right. I have been trying to say this all
night. We are in political quicksand. You have put us in a place we
have never gone before, and the more we fight and the more we fuss, the
quicksand takes you deeper and deeper, quicker and quicker.
The truth is, the Senate will never be the same if this stands
because the Senator from Pennsylvania is exactly right. There will be
so much pressure on people on our side to stand up against anybody who
is perceived to be liberal--not just whether or not they can follow the
law, but they may have written an article when they were in law school.
They maybe made a speech somewhere about the philosophy of life. And it
will be seized upon, it will be touted, and it will be shouted, and 41
of us may buy into that.
The advise and consent clause has stood the test of time. But the
formula that you are imposing upon the Senate is a formula for
disaster, and a big loser. Who loses? It is average, everyday people
who will be shut out because of special interest politics on the left
and the right. The real big loser is somebody who loves the law who
wants to be a judge but has said: I am not going to put myself and my
family through that.
So Senator Santorum is exactly right.
The PRESIDING OFFICER (Mr. Bond). The Senator's time has expired.
Mr. GRAHAM of South Carolina. There will be no turning back, and this
will destroy us over time in terms of the rule of law.
The PRESIDING OFFICER. The Senator from Illinois.
[[Page 28829]]
Mr. DURBIN. Thank you, Mr. President.
Let's not forget what this is all about. Mr. President, 168 of
President Bush's nominees have been approved by the Senate; 4 have
not--168 to 4. That is the score. This President has 98 percent of his
nominees approved. We have now consumed 36 hours of the time of the
Senate railing about the four who were held back.
Those on the other side of the aisle believe the advise and consent
clause of the Constitution is meaningless. They believe their
President, their Republican President, should have every nominee, every
judge. They really argue with the premise that these judges should be
asked hard questions. They do not believe that a judge seeking a
lifetime appointment to the bench should be asked, What do you believe?
What values will motivate you if you were in a position of power, a
position to decide cases and basically the position to decide the
outcome of people's lives?
They do not believe in that. Frankly, they are arguing that this
Constitution, that they have sworn to uphold, which provides for the
advice and consent of the Senate before a Presidential nominee is
appointed to the bench, should be tossed out.
Those of us on the Democratic side disagree. I think, frankly, in
their heart of hearts a lot of the more moderate Republicans disagree.
They understand that no President gets everything he wants 100 percent.
No President should, Democrat or Republican. But they are loyalist, and
their partisan loyalty is showing. It has shown for 36 hours.
Let me show you the judicial confirmation scorecard so you will
understand what has happened to nominees sent by Presidents to the
Senate.
President Clinton's nominees: 248 confirmed, 63 blocked. So 20
percent of the nominees, one out of five sent to the Senate by
President Clinton, were blocked by the Republicans, Senator Orrin
Hatch, and the Senate Judiciary Committee.
President Bush's nominees: 2 percent have been blocked.
I listened to the Senator from Pennsylvania tell us, warning us that,
frankly, stopping four judges will be remembered, and they will revisit
this if the Democrats ever take control of the White House again.
Well, let me remind my colleague from Pennsylvania, those 63 Clinton
nominees who were blocked, most of them were never even given the
courtesy of a hearing. I know this personally. Three judges from
Illinois, three good people seeking Federal appointments, were stopped
because one Republican Senator--in the case of one of my nominees,
former Republican Senator John Ashcroft of Missouri--personally stopped
this nominee. This nominee, a good person, who would have been an
excellent judge, was stopped because Senator Ashcroft objected to him.
In objecting to him, he never got a hearing.
So for the Senator from Pennsylvania to come and warn us that if
there is ever a Democratic President, you can count on nominees being
stopped, we learned that lesson. We learned it when President Clinton
offered nominees who were quality people, moderate people, and stopped
because of some perceived slight, stopped because of some perceived
position on issues that the right wing did not agree with.
Let me show you some of the photographs of some of these nominees.
You can see that even this small gathering of nominees here represent a
rich diversity of people across America. The Republicans would have us
believe these people sent to the Senate Judiciary Committee by
President Clinton were somehow radical people, people who did not share
the views and opinions of America.
You can count on this: Within those people are excellent judges,
people with the highest ratings from the American Bar Association,
people who were rejected. It gets back to this, as shown on the next
chart: The final score here is 168 to 4. So 168 of President Bush's
nominees have been approved; only 4 have been held back. Ninety-eight
percent have been approved.
I listened to the speech just given by the Senator from Kansas. I
hope that those who are following this debate, even though I cannot
imagine at 3 o'clock in the morning on the west coast a lot of people
are tuned in, but if those who are following this debate heard what the
Senator from Kansas said, I think it was chilling and troubling, if not
alarming. It is a clear indication of what is at stake here in this
debate. The Senator from Pennsylvania joined in the chorus because the
Senator from Kansas said they were opposed to judges who were
``discovering the right of privacy in the Constitution.'' Those were
his words, ``discovering the right of privacy in the Constitution.''
Well, the Senator from Kansas is correct. The word ``privacy'' does
not appear in the Constitution of the United States. But those who have
interpreted this document have come to the conclusion that Americans
have a basic right of privacy. I suppose from what the Senator from
Kansas said, that is judicial activism in his eyes.
But let's remember how that right of privacy first came to the
Supreme Court and the decision made, the landmark decision of Griswold
v. Connecticut, a Connecticut statute which said they would prohibit
the right of married couples to buy birth control devices,
contraception, an archaic statute from the 19th century that said that
married couples could not buy birth control devices. We are talking
about the ones most commonly known.
The Supreme Court said that is wrong. We believe that the people of
Connecticut, the people of America, have the basic right of privacy and
that married couples should be allowed to make that decision, and no
State government should prohibit them from making that decision.
So in this case, the Supreme Court ``discovered'' the right of
privacy in the Constitution. The Senator from Kansas believes, I
suppose, that this is judicial activism, that the court went too far.
How many people in America believe that? How many people in America
believe that States or the Federal Government should prohibit the right
of couples or even individuals to buy birth control devices, to buy
birth control pills? Is that this discovered right of privacy at work?
The same right of privacy, I might add, that was at the core of the Roe
v. Wade decision.
So there we have it. They are looking for judges who even question
the right of privacy in the Constitution. You wonder why we would even
stop four judges because given free rein, I am afraid that my
Republican friends would turn the clock back, turn the calendar back to
the 19th century, questioning the right of privacy of Americans.
I thought conservatives, by their nature, were opposed to the
overreach of government. But what we hear this morning from the most
conservative members of the Republican caucus is that we have to
question the right of privacy. That is hard to believe.
They also went on to say, the Senator from Kansas agreed with the
Senator from Pennsylvania that we need a check and balance on the
courts. Think about that for a moment. Oh, it is a nice-sounding
phrase. But think about the check and balance on the courts, and then
think about the principle of an independent judiciary. Those two are
inconsistent.
The check and balance on courts comes in the process when the
President nominates a judge, and when we review that judge's
credentials and decide whether that judge receives a lifetime
appointment. Then there is the correct belief that short of
impeachment, judges in America are independent to make decisions. It is
one of the bedrocks of our democracy. That has been challenged on the
floor of the Senate today by the most conservative members of the
Republican caucus.
You wonder why we are here for 36 hours? You wonder why we are taking
all this time. It is because of the views just expressed this morning
by two members of the Republican caucus which indicate the extreme
position they are prepared to take, indicate why 168 of President
Bush's nominees being approved and 4 being stopped is unacceptable, and
indicate that they want
[[Page 28830]]
to change the profile and complexion of the judiciary across America in
profound ways.
The Senator from Pennsylvania has political amnesia. He comes to the
floor this morning and forgets that 63 of President Clinton's nominees
never even received a hearing, not even the dignity of a hearing. And
he warns us in a booming voice: We will remember this if there is ever
a Democratic President.
I say to the Senator from Pennsylvania, he is suffering from
political amnesia. He has failed to acknowledge that 63 of President
Clinton's nominees were never even given the dignity of a hearing. That
was a sad outcome for those nominees and their families. To think we
are not going to stop this process at this point in time, that we are
going to continue on for another 3 hours is, frankly, I think,
unfortunate.
Yesterday, I went with a group of Senators out to Walter Reed
Hospital to visit with some of our injured soldiers. Senator Tim
Johnson from South Dakota was in that group, as well as Senator Byron
Dorgan of North Dakota. There were about a dozen of us who went out and
visited with these soldiers. It is something I am not going to forget.
These are some of the best we have who have given the most. They have
been subject to injuries which are truly sad and tragic in a way, but
their courage and their determination are going to stick with me.
Why aren't we talking about Iraq? Why aren't we talking about the
veterans? Why aren't we talking about the need for this country's
national security or its economy? Really, because there is another
agenda in play here. We are involved in a made-for-TV filibuster. That
is what this is all about. This isn't for real. Those cots were props
on a stage. I walked around the Senate. Most of those cots are still
cold as ice. They have never been warmed by a Senator's body. They were
brought in here so Fox TV News and all the right wing talk shows could
say: My goodness, we are staying up all night. There is a handful of
Senators who have given a lot of hours here, no don't about it. This is
a made-for-TV filibuster. Sadly, we are ignoring the agenda of this
country.
My colleague from North Dakota is here, and I yield the floor to him.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, I appreciate the comments of my colleague
from Illinois. This is, in many ways, an interesting debate and
certainly an important debate largely because it is alleged that we
have embarked on something unusual, something unique. Of course, that
is not the case.
The issue of filibusters is not a unique issue in the Senate. Let me
talk just for a moment about something I listened to on the radio on
the way in. C-SPAN is covering this by radio. I heard my colleagues, as
my colleague from Illinois indicated, on the other side of the aisle
talk about this issue of right to privacy. There is no right to
privacy, they say. What is this right to privacy that somehow has been
manufactured? They don't agree with the right to privacy. The American
people don't have a right to privacy, they say; that is not in the U.S.
Constitution.
Let me give an example of right to privacy issues that relate
directly to the issue of judgeships. We have a nominee before us named
Carolyn Kuhl who is a State judge. Carolyn Kuhl was involved in a case
and dismissed a claim and then was overturned in her dismissal. Let me
describe the claim. It was an egregious invasion of privacy.
An oncologist was giving a breast exam--in fact, a full examine,
including a breast exam--to a woman in his examination room. Another
person was in the room with a white coat, another male. That male
turned out to be a pharmaceutical salesman. No, not a doctor, a
pharmaceutical salesman observing the full physical, including the
breast exam of this patient.
The patient sued. Judge Kuhl dismissed it, just threw it out. This
woman had no right to privacy, no right to expect privacy. That is what
the judge said.
That judge was overturned on appeal, and the court that unanimously
overturned that said: The conduct was highly offensive--that is,
allowing another male in the room to observe, and not even a doctor but
a pharmaceutical salesman--that conduct was highly offensive and the
patient had an ``objectively reasonable expectation of privacy.''
My colleagues suggest this is a manufacturing of some right that
doesn't exist. This woman has no right no privacy in the Constitution.
Judge Kuhl would have it right, they would say.
Judge Kuhl didn't have it right. This happens to be one of the judges
who has been held up by the Senate--one of the 4; 168 approved, 4 not
approved. This particular judge we decided does not merit approval by
the Senate. The other side says there is no right to privacy, so don't
be critical of this judge; there is no right to privacy for the
American people.
I don't understand that argument. I hear it, but I don't understand
it. That is rooted somewhere in the 1930s or the 1920s or perhaps the
1880s. It is certainly not what the American people would expect
someone in the Senate to be asserting in the year 2003, that the
American people have no right to privacy, or that Judge Kuhl's decision
is the right decision, and that has already been determined. That was
thrown out on appeal--unanimously, I might say. So Judge Kuhl is not
advancing in the Senate. We make no apologies for that. This is someone
far outside the mainstream whose record of decisions indicates to us we
don't want to elevate this person to a lifetime on the Federal bench.
Let me just say with respect to the 168 approved, 4 not, 2 of those
are North Dakota Federal judges, judges from my State. Both are
Republican and both nominations I was proud to support. They are both
now on the Federal bench in North Dakota. I played a role in getting
them there, and I am pleased I did. I think they will be great Federal
judges.
That happened the right way. The administration visited with Senator
Conrad and myself and selected from among some good candidates two
judge candidates we supported who we think will do well on the Federal
bench.
There are other approaches to this. One is, for example, saying to
the two California Senators: It doesn't matter what you think, we are
going to pick an ultraconservative in California whose record doesn't
merit support by the Senate, and we are going to try to shove it down
your throat because we believe we have a right to do that. That is the
attitude. There is a kind of arrogance there, in my judgment.
When they wrote the U.S. Constitution, the Framers decided they were
going to have a couple of steps to this process. I am glad they did. In
fact, they almost decided the President should not be involved in the
process. That was part of the discussion because they didn't want to
give that much power to one person in this country, but they finally
made a compromise with respect to judges. They said the President will
nominate and the Congress will have a role of advising and consenting.
That is, the President will nominate and the Congress will say yes or
no.
We have been extraordinarily cooperative with respect to this
President. In almost all cases, we have said yes. In four, we have said
no. For that, we now have a 30- or 39-hour extravaganza in which, when
I was driving in this morning, I heard my colleagues talk about
corruption and all the code words they have developed especially for
this debate, especially for their political friends so the word will
mean something and it becomes much more than actually exists. This is
all a manufactured debate.
They say there has never been a filibuster. That is not true. But if
you say it eight times an hour for 39 hours, maybe some people will
believe it. I don't know.
This is the oft-repeated old story about the man who comes home at 2
o'clock in the morning, having been drinking and with lipstick on his
collar. And his spouse angrily confronts him and says: Where have you
been?
He says: Riding my bicycle.
She says: That can't be true, I took your bicycle to the shop
yesterday.
[[Page 28831]]
He says: That's my story, and I'm going to stick to it.
That is what is happening here: It is my story, patently untrue,
obviously false, but they stick to it. They say there has never been a
filibuster. The fact is, when the Republicans were in the minority,
they filibustered 16 nominations in 1 Congress alone. So if they say it
eight times the next half hour, just understand, it is not true. They
can say it, say it, and say it, but it is not true.
I guess debate is an opportunity to exchange views. It does not
require someone to tell you the facts. The facts are, as my colleague
from Illinois indicated, many of the nominees in the previous
administration never even got a hearing--not even a hearing. But in
addition to that, there have been numerous filibusters, and some of my
colleagues, in fact, who are here this morning voted against cloture to
sustain a filibuster, some of the same ones who are making this claim.
I don't understand, I guess, how they think it sticks just to stand
up here and say something they believe to be the case when they know it
is simply not true.
Let me, in the couple of minutes I have remaining, talk about some of
the issues I wish they had passion to address. This, in many ways,
relates to the right to privacy.
The President and my colleagues on the other side of the aisle have
decided in recent days that this young lady--her name is Joni Scott,
who went to Cuba to distribute free Bibles--will be fined $10,000 by
the U.S. Department of the Treasury. Why? Because she exercised her
right to travel and distributed free Bibles to the poor people of Cuba.
She now is subject to a $10,000 fine. I tried to change that the
other night. I couldn't do it. The majority in this Congress and the
President said: Absolutely not, we are going to maintain these travel
restrictions that restrict the right of the American people to travel.
By the way, this woman is going to get no relief. A $10,000 fine for
an American citizen who distributes free Bibles in Cuba--maybe we could
be talking about that this morning and see if we can agree that it is a
perversion to do this. It seems to me this woman has some rights. Yes,
the right to travel, perhaps the right to privacy, the right to
distribute free Bibles. But the majority party says: No, she has no
such right, none at all.
Let me ask if we might not want to talk about another subject during
these 39 hours. We have lost 3 million jobs in the last couple of years
with a failed economic policy.
This is a picture of a Huffy bicycle. They used to be made in the
United States. In fact, right here under the handlebar they used to
have a decal that was the American flag decal. Mr. President, 850
workers in Ohio were fired because they were making $11 an hour, and
they moved this bicycle manufacturing plant to China where they can pay
33 cents an hour, and they took this flag decal off the handlebar and
put on a decal of the globe. Not an American flag, a globe. Why?
Because they decided $11 an hour is an egregious wage, outrageous
amount of money to pay people when you can make it for 33 cents an hour
in China, working 16 hours a day, 7 days a week. So we lost 850 jobs.
These 850 people went home and had to tell their families: I lost my
job. I am a good worker. I tried hard, but I couldn't compete with 33
cents an hour.
I wonder if maybe we wouldn't have the same passion on this floor to
talk about jobs that Americans had but don't have any longer. Could we
have a few of our friends stand up and join us to have a 39-hour debate
about jobs the American people need, want, and deserve but don't have
because these jobs are moved to parts of the world where people are
paid 33 cents an hour.
I could hold up another chart to show you 12-year-old kids working 12
hours a day, being paid 12 cents an hour, and they get the jobs and
those jobs leave this country. Is there a passion on this floor to talk
about that? Oh, no, we don't have time. This isn't a big issue.
The passion is to stand up here and say with respect to the four
nominees to the court who have not advanced that we are engaged in a
filibuster that has never before been done. That is absolutely,
patently false, and the people who make that charge know it.
My hope is we can stop some of this and get on to the things that
really matter to the American people and the economy and the future of
this country.
My colleague from Illinois I know has additional comments.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I thank my colleague from North Dakota for
reminding us that there are issues out there about which the American
people really care. I dare say if you go to Missouri, Illinois, North
Dakota, South Carolina, Georgia, or Minnesota and take the average
person on the street and ask them: ``Where in the list of priorities in
your life is the fact that 4 judges out of 172 nominated by President
Bush have not been approved,'' my guess is they are going to say: I
didn't even know that. Is that a big problem?
In fact, this morning's Washington Post has an interesting story
about what we are doing here, this made-for-TV filibuster. They say:
The greatest deliberative body shows what it does best--
talk itself silly.
That is the Washington Post this morning. They refer to filibuster
buttons--we have them on both sides of the aisle--filibuster T-shirts,
and filibuster bingo games.
I am glad they didn't disclose the identity of this man, but they
went out and asked one of our Capitol Police officers what he thought
about this marathon debate. He probably would lose his job if his name
were disclosed because of the Republican majority. Here is what this
man said, a Capitol policeman who has been standing guard over the
Capitol through the wee hours of the morning while we gassed on here on
the floor about our favorite political issue: the lack of confirmation
of four judges.
Incidentally, for those who are keeping score, I believe it cost us
about a quarter of a million dollars in taxpayer money for additional
pages to be printed in the Congressional Record and for additional
Capitol Hill Police overtime protection because of this 39-hour
marathon--a quarter of a million dollars.
Let me get to the quote from this Capitol policeman. They asked about
the made-for-TV filibuster. He said:
I can see it if it was something important, like the budget
or Iraq, but who cares about judicial appointments. They
should get a life.
There is a lot of wisdom out there standing in the hallways and in
the streets in the cold wondering what in the world we are doing here.
The Senator from North Dakota knows full well, if you go to his State
or my State and talk about 3 million jobs lost under the Bush
administration, those are the numbers they care about, not 168 to 4.
The Republican majority is out of touch. They just don't get it. They
don't understand what real families and real businesses across America
care about.
The cost of health insurance--for goodness' sake, how much time have
we spent in the Senate talking about the cost of health insurance this
year? Nada, zero, rien, not at all. No time to discuss the cost of
health insurance, the biggest single issue facing families and
businesses across America, but, boy, for four judges we are prepared to
stand on this floor for 36 hours and grind red meat for Fox TV News and
the right-wing radio boys. We will spend night and day. We will bring
in our props such as cots and suitcases, and we will pretend this is a
really serious filibuster and ignore the really serious issues that
America really cares about.
You wonder why fewer and fewer people take the Senate seriously? You
wonder why fewer and fewer people vote? It is because of this kind of
charade.
Mr. DORGAN. Mr. President, will the Senator from Illinois yield?
Mr. DURBIN. I yield for a question.
Mr. DORGAN. In the previous administration, over 50 nominations were
[[Page 28832]]
sent to the Congress in which there wasn't even 1 day of hearing--not
even the courtesy of allowing someone to come to the Capitol for a
hearing. Were any of the folks who are now on the floor of the Senate
complaining about our holding up four judges who did get a hearing but
we decided not to confirm--were any of the folks complaining back then
that those 50 nominees never got a hearing?
Mr. DURBIN. I say to the Senator from North Dakota, their passion for
justice did not apply to a Democratic justice. Their passion for
justice did not apply to 63 nominees who were not given a chance to
come to the Senate floor. Their passion for judges did not apply to
those men and women whose lives were changed forever. But when it comes
to these four, we take up the time of the Senate, take up the money of
the taxpayers to divert us from issues that people really care about.
It tells us what it is all about.
When the Senators from Kansas and Pennsylvania come to the floor and
say, We want judges who don't discover the right of privacy in the
Constitution, is that a conservative value, is that a family value--to
reject the right of privacy? That is what they said, and I don't get
it. If that is what they are for, they are clearly out of the
mainstream, and we ought to take a closer look at every job.
I even think Robert Bork, when he was trying to get on the Supreme
Court, said he agreed with Griswold v. Connecticut, a right to privacy
case. What we heard this morning from the most extreme members of the
Republican caucus is they will not even acknowledge a right of privacy
for individuals and families across America. That is a sad outcome and
one I think, frankly, should be challenged because if that is really
the standard we are going to play to, I am going to look a lot harder
on the Senate Judiciary Committee to make sure we don't have nominees
given lifetime appointments to the bench who would have our Government
raiding the bedrooms and private lives of Americans. That is what it is
all about. It should not be allowable.
I see the majority leader on the floor and I respect him very much,
but this is wrong. What we are doing is wrong. This made-for-TV
filibuster over 4 judges after the President had 168 approved--why
aren't we talking about issues people really care about, such as the
cost of health care, the loss of jobs, the poor soldiers coming back
injured who need help in veterans hospitals?
The Presiding Officer is chairman of the Veterans' Administration and
HUD subcommittee on the Appropriations Committee. We had to pull his
bill from the floor the other day. We did not have time to finish the
bill, the 2 hours it would take to finish that bill--$62 billion, if I
am not mistaken, or $68 billion for the Veterans' Administration--
because we had to hurry on to this made-for-TV filibuster. That is sad.
We should do the people's business. We should focus on things that
Americans really care about.
I yield the floor.
The PRESIDING OFFICER (Mr. Coleman). The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, to be referred to as an extreme Member
of the other side of the aisle, I would like to suggest that this
extreme Member on the other side of the aisle never voted against
cloture on a judicial nomination. How extreme is this Member versus the
Member who just spoke, who has voted repeatedly and repeatedly and
repeatedly and repeatedly and repeatedly against cloture? Who is the
extremist?
I will posit that to the American people. Who is the extremist? The
Senator from Pennsylvania, who never in his career voted, ever, against
a cloture petition for a judicial nomination or the Senator from
Illinois, who has led the effort, organized the posse, to filibuster,
for the first time in American history, nominations for the court?
This is only 168 to 4. When the rules are changed, upon changing the
rules you have to start with one. Then you do two. Then you do three.
Then you do four. And today we do five. Today we do six. Next month it
will be seven. Then it will be eight. Years from now, it will be 127,
and then 3,455. It starts with one. It starts with the change.
There have been 2,372 nominations since the filibuster rule was put
in place; zero blocked on the Senate floor. It has never been done in
history.
Oh, it is only four, just a few. We are doing great. ``We just
started,'' is what they are not saying--we have only just begun. We
just started this, folks. Not the Senator from Pennsylvania, not the
Senator from South Carolina, not the Senator from Missouri. The Senator
from Missouri opposed a judge. He said, look, have an up-or-down vote
and then I will vote no. That has been the way it has been done here.
This idea that we have filibustered nominations by folks not getting a
vote in committee, let us look at the record.
Fifty-four Bush nominees under the Democratic Senate got no hearing,
did not get confirmed. Have we complained that they were filibustered?
No, because they were not. Every President at the end of his term has
judicial nominations in committee who have not gotten through, for a
variety of reasons. It is just the flow of the Senate. In this case, 54
Bush nominations. How many Clinton nominations, after 8 years? Forty-
one.
Let me repeat this again because we are saying this is different;
Clinton was treated so unfairly. There were 377 nominations, 1 defeated
on the floor, up-or-down vote. No filibuster.
I remember--the Senator from Missouri, I am sure, can remember this--
Richard Paez. I do not know if the Senator from Missouri voted against
him or not, but I sure did. I did not vote against cloture because the
Senator from Mississippi, Mr. Lott, and the chairman, Senator Hatch,
said: Do not set this precedent. Do not change the rules. It is going
to come back and bite us. We cannot do this. It is too important to the
future of the Senate. It is going to undermine the judiciary. The Ruth
Bader Ginsburgs of this world, the Antonin Scalias of this world will
not have a prayer getting through this place. The best and the
brightest are going to get knocked away or scared away if we raise this
bar, if we allow the extreme elements of either party to start to run
the Senate. We cannot let this happen.
As much as we may want to, as much as we did not want Richard Paez to
be a Ninth Circuit Court judge, you have to hold back. You cannot let
the passion of the moment completely destroy the precedent that has
served this body and this country so well. Do not succumb to the
special interest groups who are pleading with you. Come on.
The Senator from South Carolina said just in the last hour that for
every one liberal special interest group there is one conservative one.
Guess what. When the shoe is on the other foot, do you think we are
going to say, oh, well, we are going to go back to the way it was; we
are going to let you have all of your liberal judges; we are only going
to require 51 votes? Fat chance. Fat chance.
Mr. GRAHAM of South Carolina. Will the Senator yield for a question?
Mr. SANTORUM. I will yield the floor to the Senator from South
Carolina.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM of South Carolina. For something that is a waste of time,
it has been hard as heck to get to say anything around here because
everybody is so fired up about talking, which I think is good. We have
been in almost 39 hours, and if Senators get 15 minutes to express
themselves they are lucky, which I think is a testament to how
important this is to people.
I am very proud of what the Senator from Pennsylvania has tried to
tell the body about what the future will be like. The Senator from
Minnesota and the Senator from Georgia, my two good friends, my
classmates, we were not here during a lot of these problems of the
past. We are worried about the future.
I want to very quickly respond to my good friend from Illinois. Here
is what I am willing to do--and I do not know who the Capitol Hill
policeman was, God bless him for serving--I am willing to stand by a
poll of all the cops in America and see whether they think
[[Page 28833]]
appointing a judge is a big deal. It is my belief that most cops in
America have had experiences in court that they really would like us to
pick judges wisely. As a prosecutor, I can assure my colleagues who the
judge is matters. I can assure my colleagues that most police officers
do watch how the court operates, and they are concerned about the
quality of judges because many of them have made cases risking their
lives only to see it bounced.
So I totally disagree that this police officer is speaking for the
mainstream of cops. Cops care about judges.
The Washington Post--I am not a great fan of the editorial page, but
I read the Washington Post about what they think is going on here
today. On February 5, 2003, the Washington Post said this filibustering
of judges--Miguel Estrada--is really not a good thing. A world in which
filibusters serve as an active instrument of nomination politics is not
one either party should want.
Well, the extreme Senator from Pennsylvania shares the same views as
the Washington Post, which begins to bother me a little bit. Maybe he
should be a little more extreme. But what he is saying is what the Post
said back in February. You do not have to be a rocket scientist to
figure this out because I figured it out. I am not a rocket scientist.
This is about manufactured controversies. Judge Pickering, oh, this
is no big deal. Why are the Senate Democrats sending out urgent e-mails
saying send us money, my God, the country is about to blow up because
the Bush administration is devoted to using the courts to its political
advantage? If that does not get your blood boiling, what would? It
would scare me if I got a memo from somebody who is a responsible
member of the Senate Democratic leadership saying, send money quickly.
The Bush people are taking over the courts, and they are going to put a
guy on the court named Charles Pickering. While he was in law school,
he wrote an article about making sure the ban on interracial marriage
in Mississippi was not stricken down.
As a State senator in the 1970s, Pickering worked to repeal the
important provisions of the Voter Rights Act. That ought to scare you
to death if you believe in racial harmony and justice.
This e-mail is totally in contradiction of what has been said on the
Senate floor. The e-mail says that Senate Democrats have launched an
unprecedented effort. If you have listened to everybody for the last 33
hours, this is just business as usual. The e-mail is the best evidence
of what is going on over there. They have picked a few judges, for
whatever reason. They have manufactured controversies about who these
people are, and they are ruining their lives.
Judge Pickering was approved by this body 12 years ago. I would
daresay this body would not have unanimously put him on the district
court as a Federal judge if they believed he was writing articles
supporting interracial marriage bans and that while he was a State
senator he actively undermined the rights of African Americans in
Mississippi. That makes no sense. That means this place is totally
asleep and worthless when it comes to screening, or they are
manufacturing controversies about this judge.
Judge Pickering was voted well qualified, the highest rating one can
get from the American Bar Association. I am convinced that the ABA is
not putting people on the bench well qualified if they believe they are
a bunch of racists. It goes on and on with all four of these people,
and it soon will become 12. That is why I am so upset.
Special interest groups who do not live in Mississippi have declared
war on the basic essence of who Charles Pickering is, defying all of
the evidence out there by people who know him the best and what he has
done with his life. That is a sad state. That will lead to chaos, and
the Senator from Pennsylvania is absolutely right. You are going to
have people applying for these jobs in the future who will have never
uttered a word about anything because if they say anything that may get
a liberal or a conservative special interest group mad at them, they
will come and knock their head off. That is why we are here at 10
minutes after 7 and you have to really watch it to make sure you do not
deny your colleagues a chance to speak because contrary to what they
say over there, this is a big deal to everybody, and, my God, it ought
to be. If it gets to be where it is not a big deal to how a judge is
appointed and nominated, and whether you follow the Constitution, our
problems with the economy pale in comparison with our problems as a
nation. When politics enters the judicial arena and the judicial arena
just becomes another form of politics, then we have drifted far astray
from where our forefathers wanted us to be.
I will yield to my colleague from Missouri.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, I could not agree more with my colleague
from South Carolina. When I hear asked on this Senate floor, who cares
about judicial appointments, who cares about the important judiciary
that makes decisions that affect our everyday lives, I would join with
him in saying that the people in Missouri care.
I have found all of the problems--and there are many problems, there
are lots of concerns. People are concerned about Iraq. They want to see
the President carry on the war against terrorism. They are concerned
about jobs. They are very grateful, I might add, that the Republican
Congress has given the economy such a boost with its good fiscal policy
and gotten the economy growing, an economy that President Bush
inherited that was in the tank, but it is starting to grow, and we want
it to grow faster. They ask me more about this unprecedented filibuster
of judges than anything else.
No matter where I go, in the rural areas, in the big cities, in the
suburbs--my colleagues on the other side ask, who cares? Well, people
in my State understand. They know how important the judiciary is. They
know that appellate courts, the courts that oversee district courts
usually in many States, make decisions that affect our everyday lives.
The Senator from South Carolina was right. The police officers, the
sheriffs, these are the folks who go out and risk their lives and then
they see appellate judges, people on appeals courts, making decisions
that turn these criminals loose. And they say what is this all about? I
am risking my life, I am out there getting shot at, trying to bring
somebody in, and an appellate court judge misuses the law to set him
free. Our police officers, our law enforcement officers today
understand the constitutional rights. They know. They have to abide by
the standard. They have to respect the rights of all citizens. But when
they do that, when they go through all of the steps and do it right and
then a criminal is turned loose, they, who have risked their lives,
know how important these judges are.
My Democratic colleagues complain that we are taking time. Well, I
have been waiting to get on the floor because this is something we need
to talk about. We have listened to them all year long delay,
filibuster. They bragged about they finally passed the Healthy Forests
bill to stop the wildfires that have burned in California and threaten
many States, and do my colleagues know what they are doing? They are
filibustering the ability to take that bill to the conference so we can
get it passed. They are filibustering that.
My colleague from Illinois was talking about how long it took us to
get to the VA-HUD bill, a bill I am responsible for. Well, something
may have interfered with taking up that bill when the minority whip
spent 8\1/2\ hours on the Senate floor on Monday complaining about
filibusters. Excuse me, but what is that when he will not release the
floor beginning at 1:30? I gave up. I heard he went 8\1/2\ hours, maybe
it was 9\1/2\ hours. I decided to turn on the ball game about then. But
we were blocked from doing anything. We were blocked by the same
Democrats who complained, after they filibustered all year long, that
we are talking too much.
There is a lot to be said, but the most important thing I can say is
that the
[[Page 28834]]
President has nominated 46 people to serve on the Federal circuit
court, and the Senate has confirmed only 63 percent. This is what we
are talking about, unprecedented. The President has made four
nominations to the Court of Appeals for the DC Circuit, the second
highest court in the land, and only one has been confirmed.
Despite the self-congratulations of the Democrats who say they have
confirmed 168, they have not confirmed 37 percent of the circuit
judges. What nominee has withdrawn his name? One of the most qualified
people ever nominated for the judiciary. Three remain filibustered.
Three more are being threatened with that fate. Numerous others are
being blocked or delayed by the minority. The reason most cited is that
these nominees are out of the mainstream.
The mainstream, it appears, is defined by a few of my colleagues and
some of the most liberal interest groups in the country. I know the
liberal interest groups, the Hollywood group, put in a lot of money,
and they have strange ideas of what the mainstream is. When you talk
about some of their mainstream Hollywood people or People for the
American Way ideas, I tell my colleagues, that dog does not hunt in
Missouri. I imagine it does not hunt in South Carolina, Georgia, and
Pennsylvania either.
If that is the litmus test, let us talk about who is in the
mainstream. For the Ninth Circuit, Judge Carolyn Kuhl, the American Bar
Association says she is well qualified for the position. Oh, earlier
on, that was going to be the gold standard. The Democrats said: We
cannot appoint anybody who is not rated at least qualified by the
American Bar Association.
She is rated well qualified, a distinguished career as an attorney
with the Department of Justice, U.S. Solicitor General, a clerk for the
United States Supreme Court. Twenty-three women judges on the Superior
Court of Los Angeles, and nearly 100 judges who serve with her have
spoken out on her outstanding abilities and professionalism. The
litigation section of the L.A. County bar has also. Are those people
out of the mainstream? Are they somehow different? Are they somehow
unworthy?
Then Judge Janice Rogers Brown, she is the first African-American
woman to serve on the State's highest court. She was retained by the
support of 76 percent of the voters in her last election. That is in
California. Is 76 percent of the California voters out of the
mainstream? Academics from colleges across the State have written in to
speak about her professionalism and evenhandedness. Sounds like
mainstream to me.
They like to think that the panel of the Ninth Circuit, which is the
most liberal, most overruled, most out of touch circuit court in the
Nation, is mainstream, but this panel of Ninth Circuit judges tried to
stay the recall election in California. The Ninth Circuit judges
declared that the words ``under God'' in the Pledge of Allegiance are
unconstitutional. Is that the mainstream? Two Democrats appointed to
the Ninth Circuit ruled that convicted felons serving a life sentence
have a fundamental right to procreate by artificial insemination. Are
they in the mainstream? Where is that in the Constitution?
Mr. President, I have many colleagues who need to speak. I have a
whole lot more to say. I will be sharing it with you. But most of all,
I am hearing from the people in Missouri who know their lives could be
affected by what the nominees of the appellate courts in the Nation can
provide.
After 9/11, a Jordanian named Osama Awadallah was apprehended after
material linking him to some of the hijackers was found in a car parked
at Dulles by one of the hijackers. It was established that Awadallah
knew two of the hijackers and had met with one of them up to forty
times. But Clinton appointee Judge Shira Scheindlin dismissed his
charges and in the process struck down a federal material witness
statute long used by the Department of Justice to detain witnesses who
are a flight risk. The fact that this was well-settled law used by the
prosecution was no deterrent to the judge. Fortunately, she was
overruled by the court of appeals.
Yesterday, we also heard about Clinton appointee Judge Jed Rakoff,
who ruled that the federal death penalty is unconstitutional, again
disregarding well established precedent. In his opinion, the judge
likened the statute to murder. The judge seemed to have total disregard
for the fact that the arguments he made were those that should be made
in a legislative body, but that would require one to be responsive to
the will of the voters--what an old fashioned notion! Even the
Washington Post--which opposes the death penalty--condemned this
blatant overreaching decision as entirely inappropriate for a judge.
Another recent Clinton appointee has ruled it necessary for the
government to permit criminal illegal immigrants bail, rather than
holding them for deportation--A very useful tool for our immigration
services to ensure that criminal aliens are sent back to their native
countries.
President Clinton nominated a New Jersey federal judge to the court
of appeals who once ruled that a homeless man, despite the disturbance
he was causing the patrons, had a right not to be removed from a public
library. Of course, he was supported unanimously by the Democrats. On
the circuit court, he went on to rule that prisoners had a
constitutional right protecting their mail from searches and argued
that the government could not go after the proceeds of drug
forfeitures--fortunately for the war on drugs, he was unsuccessful.
Speaking of prisoner cases, one of the decisions issued by Judge
Pickering that the Democrats have been critical of was a prisoner's
rights case. A prisoner was dissatisfied with the prison issue
typewriter because it was lacking a memory system--Judge Pickering
ruled that this prisoner's typewriter was adequate and he did not have
the right to one with memory. What a cruel decision. Is that what this
debate has come down too? This hardly puts Judge Pickering out of the
mainstream, in fact I would bet just about everyone listening to this
debate would agree this decision is mainstream--It makes common sense.
I could stand here all morning reading decision after decision handed
down by Democrat appointed judges that simply defy reason and bear no
resemblance to what most people in this chamber or in their states
would consider to be the ``mainstream''. Yet a few of our colleagues
have taken it upon themselves to make this critical determination. By
their history, they have no credibility on this question. In fact, all
the nominees who have been labeled as such actually enjoy the majority
support in this body and have the support of Republicans and Democrats
alike.
Mr. President, it is time to give these extremely well-qualified,
high-respected individuals an up or down vote. It is time for the
minority to quit hiding behind this flimsy argument about being in the
mainstream.
It is too late for Miguel Estrada, his nomination was withdrawn after
848 days and 7 cloture votes, unanimous rating of well qualified by the
ABA, but it is time to give Justice Priscilla Owen a vote, her
nomination has been pending for 917 days and there has been three
cloture votes, unanimous rating of well qualified by the ABA, it is
time to give Judge Charles Pickering a vote, his nomination has been
pending for 901 days and he has an ABA rating of well qualified, it is
time to give Attorney General William Pryor a vote, his nomination has
been pending for 217 days and he received a qualified rating, it is
time to give Judge Carolyn Kuhl a vote, her nomination has been pending
for 873 days and the ABA has give her a well qualified rating, it is
time to give Justice Janice Brown a vote, her nomination has been
pending for 110 days, and it is time to give Judge Henry Saad a vote,
his nomination has been pending for 743 days.
Mr. President, it is time for the body to give these candidates an
up-or-down vote.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Just like the Senator from Missouri, I want to talk
for
[[Page 28835]]
just a second about who cares about these judicial nominations because
obviously the folks on the other side of the aisle who have been
obstructionists in not allowing circuit court judges to come to a vote
think the American public does not care about our Federal judicial
system. Sure, our supporters understands it and they care. Sure, every
Rotary Club I go to understands it and they care because they ask me
about it. Every church where I go to speak, they care, they understand
it, because they ask me about it. I have been walking down the street
in my hometown and some stranger will come up to me. He understands it
and he cares.
Obviously, the Senator from Illinois is totally insensitive to these
kinds of people.
Let me tell you who else cares. That criminal defendant who is
sitting in jail and who is having to wait longer than he ought to wait
because we do not have Federal judges on the bench, he or she cares.
That plaintiff or defendant in a civil lawsuit who is having to sit and
wait and wait for justice, whatever that justice may be, on either side
of the appellate case, he cares because he is not getting his case
served.
Obviously, the folks on the other side of the aisle who are
complaining about and conducting this filibuster think those people are
OK and they do not care. They care.
I guess one of the major other differences between the Senator from
Illinois and this Senator is that I don't go to the Washington Post to
get my anecdotes. I don't go to any conservative newspaper to get my
anecdotes.
Yesterday I drove to my office over in the Russell Senate Office
Building, and as I pulled my car up to the gate, just like all of us--
we stop, the Capitol Police have to come around and run the mirror
under your car--the Capitol policeman came over to me and he knew I had
been up except for an hour the night before, and I could tell he was
dead tired, and he looked at me and he said: Senator how are you doing?
And I said: I am tired. He said: Senator, you guys are doing the right
thing. Make your point.
You know that guy cares because he is like every other law
enforcement officer in America. They depend on us to make sure we
provide them with good judges to take the bad guys off the street which
makes their job easier.
There is one other point I want to make because I have heard this
comment off and on for the last 38 hours. And that is, the fact that
the score of 98 percent is a pretty good score. I don't care whether it
is a math, English, or a reading test. They keep bringing this point up
that we have confirmed 98 percent of the President's judicial nominees.
First of all, the numbers are not right, but I will not get into
that. I want to talk about the 98 percent. On its face, that might
sound fine. When you come to messing with the Constitution of the
United States, when it comes to the confirmation of judges, 98 percent
is not good enough. The reason is that every other President in the
history of the United States of America--and we have had 43 of them
now--every single one of the other 42 Presidents of the United States
has had a score of 100 percent when it comes to the issue of not having
their judges filibustered.
For these folks to stand up on the other side of the aisle and say 98
percent is pretty good, they don't care about the fact that they are
the first in the history of the United States of America to filibuster
a judge.
I repeat, if 98 percent is OK and they are smiling and happy about
it, I would like to hear how many of them go home this afternoon and
think they would get a good reception from their spouse if they said:
You know, honey, I have been faithful to you 98 percent of the time. Or
I wonder how many of them would feel good as they get on an airplane
this afternoon and head home smiling and thinking, boy, we have done
great work defending our judges and defending our filibuster of these
judges but that airplane had a safety record of landing 98 percent of
the time.
There is a difference. We live under this document that has served us
so well for so many years and 100 percent of the judges who are
nominated have been confirmed by every other Senate for every other
President prior to this one as per the language of this great document.
I close by reading some comments out of a book written by a man of
which I am a big fan. The Democrats in this Senate are not particularly
a fan of his right now, but let me tell you, he is a great American. He
is a great American who speaks the truth, and he is speaking the truth
about what is going on in this body right now. ``The National Party No
More, the Conscience of a Conservative Democrat.'' It is written by my
colleague, my good friend from the State of Georgia, Senator Zell
Miller.
I ask unanimous consent that the entire chapter, chapter 8, entitled
``41 Beats 59--That Strange Senate Math,'' be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
41 Beats 59--That Strange Senate Math
The United States Senate is the only place on the planet
where 59 votes out of 100 cannot pass anything because 41
votes out of 100 can defeat it. Try explaining that at your
local Rotary Club or to someone in the Wal-Mart parking lot
or, for that matter, to the college freshman in Political
Science 101. You can't, because this strange Senate math
stands democracy on its head.
By name, this incongruous, obstructionist procedure is
known as a filibuster. The word filibuster comes from a
Spanish word for ``pirate,'' and that is exactly what this
procedure does. It hijacks the democratic process.
Filibusters first caught the fancy of the nation after James
Stewart, in Frank Capra's classic movie Mr. Smith Goes to
Washington, made Mr. Smith a hero standing up to the Senate
bosses on behalf of the people. But now, however, most
Americans understand vaguely that in the Senate any member
can stand up and talk endless drivel for hours in order to
prevent legislation he or she opposes from coming to a vote.
The process is so ridiculous that the filibuster, like that
old comics-page blowhard Senator Claghorn, has unfortunately
become, in the minds of many, just another caricature of the
Senate, just another thing to laugh at, just more hot air
from the Cave of the Winds.
Realizing that with the scrutiny of television, the people
would not stand for such nonsense, the ``Old Bulls'' of the
Senate fuzzed it up. They made it subtler. These verbal
gunslingers can now be forced to shut up, and the process and
the Senate move along toward a vote if sixty members remove
the cotton from their ears and vote for cloture. A cloture
shuts off what is called a debate but isn't because it takes
two sides talking to constitute a debate. If this sounds
confusing, it is meant to be. That is precisely the
objective.
The short version of this debacle is that the way
filibuster is being used in the Senate gives the minority an
absolute veto on just about everything. In fact, the U.S.
Senate has become similar to the Security Council of the
United Nations where one country can veto the will of a clear
majority and castrate the entire process.
Winston Churchill once said, ``Democracy is based on reason
and fair play.'' Well, there's nothing reasonable or fair
about what's been happening in this august body. It's not
just that it's an expensive waste of time and taxpayer money,
but it's also a flagrant abuse or majority rule, the
principle that democracy operates on everywhere. Everywhere,
that is, except in the U.S. Senate.
Rule XXII of the Senate is the reason for all this. It was
adopted in 1917 and was meant to move things along. President
Woodrow Wilson had lashed out at what he called a ``little
group of willful men'' who had blocked his proposal to arm
our merchant ships against German submarines. Sixteen
senators could file a petition against a bill or an amendment
and if two-thirds approved it within two days, debate was to
be limited to one hour per member or one hundred hours. Later
it was modified to sixty votes, not two-thirds, necessary to
halt a filibuster. And in 2003, for the first time, it was
used to prevent a vote on the presidential judicial nominees.
The longest filibuster in congressional history was waged
against the Civil Rights Act in August 1957 by Senator Strom
Thurmond of South Carolina, when he held the floor for
twenty-four hours and eighteen minutes. Wayne Morse of Oregon
comes in a close second with twenty-two hours and twenty-six
minutes. Probably the most entertaining was the Kingfish,
Huey P. Long of Louisiana, who in 1935 only went on for
fifteen hours, thirty minutes against one of President
Roosevelt's New Deal proposals. When asked how he kept from
answering the call of nature for that long he answered, ``Why
do you think I wore a navy blue suit?'' Strom Thurmond had
dehydrated himself in a sauna before taking the floor for his
record-setter and didn't worry about that problem.
[[Page 28836]]
James Madison, the Father of the Constitution, feared some
future political leaders would pervert the legislative
process in just this way. He warned in Federalist Paper #58
that when it happened, ``The Fundamental principle of free
government would be reversed. It would be no longer the
majority that would rule. The power would be transformed to
the minority.'' I'm sure the man who wrote the Constitution
is spinning in his grave.
Alexander Hamilton may be taking a couple of revolutions as
well, because he agreed with Madison. He pointed out in his
Federalist Paper #68 that the vice president was given a tie-
breaking vote for ``securing at all times the possibility of
a definite resolution of that body.'' A ``definite
resolution''; how well put. But no one has said it better
than Senator Henry Cabot Lodge in 1893, when obstructionism
was not nearly as bad as it is today: ``To vote without
debating is perilous, but to debate and never vote is
imbecile.''
Years ago, when I was teaching freshman political science
at Young Harris College, I always repeated the old story
about the origin of the Senate. Thomas Jefferson was in
France when the Constitutional Convention was being held.
Later, he asked his friend George Washington, who presided
over the convention, about the purpose of this upper chamber,
the Senate. Washington, so the anecdote goes, then asked
Jefferson, ``Why do you pour coffee into your saucer?'' To
cool it,'' Jefferson replied. Washington responded, ``Even
so, we pour legislation into the senatorial saucer to cool
it.''
Cool it, yes. but not freeze it into an ice cube. Truth is,
there is nothing at all said in the Constitution about
protecting Senate minorities. Our Founding Fathers, I
believe, thought the smaller size, longer and staggered
terms, as well as state legislation on the selection of
senators, would provide more wisdom.
Some constitutional lawyers have argued that any kind of
super-majority vote is unconstitutional, other than for the
five areas specified in the Constitution: treaty
ratification, impeachment, override of a presidential vote,
constitutional amendments, and expelling a member of
Congress. As I write this, Judicial Watch is doing just that.
They have filed a lawsuit arguing that confirmation of judges
is not specified in the Constitution and, hence, does not
require a super majority.
That's one possible remedy. There are others. We could
abolish Rule XXII that protects this travesty and let the
U.S. Senate operate under rules like every other democratic
legislative body in the world where a simple majority rules.
That's about as likely as a day dawning in Washington without
ten fund-raisers.
Or we could modify what I call the ``two-track trick'' or
filibuster by stealth adopted a few years ago, where another
piece of legislation is considered at the same time a
filibuster goes its windy way. I call it ``filibuster-lite.''
It's a way to avoid the inconvenience and pain of a real
filibuster as if we are using powder-puff, 16-ounce gloves
instead of bare knuckles. I'd much rather just duke it out in
a real debate and get it over than try to deceive the public
that no blood is being spilled. Many veterans of the senate--
not a newcomer like myself--have expressed dismay wit the
process. Henry Clay, generally recognized as one of our
greatest senators, condemned the first organized filibuster
when it occurred in 1837. Even back then, he though there
needed to be some workable limitation for endless debate. If
only he could see what happened late in the twentieth
century, Clay would be another grave-spinner. In the
nineteenth century, there were twenty-there filibusters. In
the last thirty years of the twentieth century, there were
more than two hundred.
Two pieces of crucial legislation that filibusters have
stymied over the years include the anti-lynching bill of the
1920s and abolishing the poll tax that was held up for
twenty-two years from 1942-1964. The Civil Rights Act of 1964
was filibustered for ninety-three calendar days.
With Georgia's Senator Richard Russell as their leader and
unlimited debate as their weapon of choice, a small band of
Southern senators for years had managed to defeat or
drastically weaken any civil rights legislation that came
before the Senate. But it was different in 1964. The Senate
membership had changed and President Johnson was pushing it
with all his considerable power. He told the nation that
passing the legislation would be the most fitting memorial
that recently assassinated John F. Kennedy could be given. He
also managed to peel off Minority Leader Everett Dirksen who
often sided with Russell. In the end cloture was invoked 71-
29 and the bill went on to pass by an overwhelming margin.
Obviously, both parties have used filibusters time and time
again, one just as guilty at the other. In 1996, Democrats
blocked a vote on a constitutional amendment on term limits
and the Republicans blocked a vote to reform campaign
finance. Many conservatives would disagree with me, but I
happen to think the political process would have been
improved if both those measures had passed. Certainly, it
would have greatly weakened the current death-grip of the
well-heeled special interest groups because electing their
pet incumbents over and over with little or no opposition is
what gives both the tremendous power they have. I call it
``the dance,'' and it's nothing like that Garth Brooks song
by the same name. After the music of election year stops,
it's the public that gets screwed.
In the mid-1990s there was a bipartisan group of
distinguished citizens called ``Action, Not Gridlock'' that
came together with great ballyhoo, intent on reform and
majority rule. Republican Barry Goldwater was among them.
Then in 1995, Democratic Senators Tom Harkin and Joe
Lieberman introduced a rule change that I believe is the best
that's been proposed.
Two years earlier, Harkin had let a committee hearing have
it with both barrels: ``There comes a time when tradition has
to meet the realities of the modern age. The minority's
rights must be protected. The majority should not be able to
run roughshod over them, but neither should a vexatious
minority be able to thwart the will of the majority and not
even permit legislation to come up for a meaningful vote.''
The Harkin-Lieberman plan called for a four-step process
that kept sixty votes on the initial cloture vote, but
decreased it by three votes with each of the next three
cloture attempts until finally it got down to the majority of
fifty-one. They argued, logically, that this would preserve
the Senate tradition while giving the minority plenty of time
to plead its case without blocking the majority forever. I
liked this idea so well that in March 2003, I introduced an
identical bill. In May I joined with Majority Leader Bill
Frist in a modified version applying the process only to
judicial nominees. That seems to have the best chance for any
kind of change and I'm afraid that's not much. Both Harkin
and Lieberman now oppose what they so eloquently promoted a
few years earlier.
As far as the fate of the Harkin-Lieberman rule change, the
New York Times celebrated New Year's Day 1995 with a lengthy
editorial beginning, ``The U.S. Senate likes to call itself
the world's greatest deliberative body. The greatest
obstructive body is more like it.'' The article continued,
``Once a rarely-used tactic reserved for issues on which
senators help passionate convictions, the filibuster has
become the tool of the sore loser, dooming any measure that
cannot command the sixty required votes.''
All of this came to naught, however, after the Republicans
solidly opposed the amendment and Democratic Senator Robert
Byrd who, like that mythical, hell-guarding, ferocious three-
headed dog Cerberus, punctuated his opposition with the story
of how Cato the Younger, in 60 BC, got the floor in the Roman
Senate at midday and valiantly spoke until sundown, the time
of adjournment, in order to thwart one of Julius Caesar's
proposals. That story marked the end of the Harkin-Lieberman
filibuster reform bill. Never mind that Byrd didn't tell the
rest of the story, that Caesar was not thwarted and fourteen
years later Cato committed suicide while Caesar was at the
height of his power and still going strong.
Now, I must admit I greatly admire and respect this man,
Cato the Younger. He was one of Rome's greatest statesmen,
not at all like his great grandfather Cato the Elder, who
exemplified the corruption and hypocrisy that later
undermined the traditions of republican liberty. Cato the
Younger was different. He was a moral man and a great
defender of the Constitution and the dominant role of the
Senate. That was his role and he always played it to the
hilt. His reputation was such that our Founding Fathers
admired him as a symbol of opposition to tyranny. In fact,
George Washington ordered a play about Cato performed to
inspire his soldiers at Valley Forge.
But, truth be told, Cato met an ignoble end. His reputation
was greater than his ability. After he was defeated by Caesar
at the Battle of Thapsus, rather than accept the generous
offer of clemency from his old antagonist, he committed
suicide. And he botched that; he didn't fall directly on his
sword and it didn't kill him swiftly so he tore out his own
intestines with his bare hands. It gave ``spilling your
guts'' a new meaning and was a messy end for the First
Filibusterer. While today we can find many good books on
Caesar, I have yet to find one on Cato. So, you lovers of the
filibuster, I say that is a history lesson worth thinking
about.
For all the good stories that have come down through the
centuries inspired by the filibuster, in the end, it has
nothing to do with ancient history.
The filibuster has nothing to do with the British
Parliament.
The filibuster has nothing to do with coffee cooling in a
saucer.
The filibuster has nothing to do with freedom of speech.
The filibuster has nothing to do with tradition.
The filibuster has nothing to do with the Constitution.
The filibuster has nothing to do with protecting minority
rights.
The filibuster has everything to do with personal political
power. It's about Alpha dogs defending their turf in that
great big kennel under the dome.
[[Page 28837]]
Mr. CHAMBLISS. Here is what he says:
The United States Senate is the only place on the planet
where 59 votes out of 100 cannot pass anything because 41
votes out of 100 can defeat it. Try explaining that at your
local Rotary Club or to someone in the Wal-Mart parking lot
or, for that matter, to the college freshman in Political
Science 101. You can't, because the strange Senate math
stands democracy on its head.
He then talks about ``Mr. Smith Goes To Washington'' and the
perception about a filibuster. And he continues:
Realizing that with the scrutiny of television, the people
would not stand for such nonsense, the ``Old Bulls'' of the
Senate fuzzed it up. They made it subtler. These verbal
gunslingers can now be forced to shut up, and the process and
the Senate move along toward a vote if sixty members remove
the cotton from their ears and vote for cloture. A cloture
shuts off what is called a debate but isn't because it takes
two sides talking to constitute a debate. If this sounds
confusing, it is meant to be. That is precisely the
objective.
The short version of this debacle is that the way
filibuster is being used in the Senate gives the minority an
absolute veto on just about everything. In fact, the U.S.
Senate has become similar to the Security Council of the
United Nations where one country can veto the will of a clear
majority and castrate the entire process.
He goes on and gives several anecdotes about the Constitution and
what a great document it has been and cites Jefferson's comment to
Washington about the function of the Senate and Washington's statement
that has been mentioned several times about the function of the upper
Chamber, the Senate. The story is told with Washington asking: Why do
you pour coffee into your saucer? To cool it, Jefferson replied. And
Washington said: Even as we pour legislation into the senatorial cup to
cool it.
Here is what Senator Miller says about that: Cool it, yes. But not
freeze it into an ice cube.
There is a significant difference.
Again, he goes on talking about the history of the filibuster. In the
history of Democratic Senators, Democratic Senators who are serving in
this body today who in recent years have asked that this filibuster
rule be changed so that we would not go through the process that we are
experiencing today. All of a sudden those Democratic Senators have
amnesia and are voting not to invoke cloture.
This is the way Senator Miller winds up:
For all the good stories that have come down through the
centuries inspired by the filibuster, in the end, it has
nothing to do with ancient history.
The filibuster has nothing to do with the British
Parliament.
The filibuster has nothing to do with coffee cooling in a
saucer.
The filibuster has nothing to do with freedom of speech.
The filibuster has nothing to do with tradition.
The filibuster has nothing to do with the Constitution.
The filibuster has nothing to do with protecting minority
rights.
The filibuster has everything to do with personal political
power. It's about Alpha dogs defending their turf in that
great big kennel under the dome.
I agree with Senator Miller.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Louisiana.
Mr. BREAUX. Good morning, Mr. President and colleagues.
I was very interested in listening to the distinguished Senator from
Georgia and the Senator from Pennsylvania. I am trying to keep track of
what he was quoting from. We decided he was quoting from Miller,
chapter 1, verses 6 through 12. I am sure it is considered a holy
document. And of course, as most documents, there are two sides to
every story. Indeed, on that I imagine you have at least two sides to
Miller, chapter 1, verses 6 through 12.
I arrived in this institution over 30 years ago and remember quite
well driving up from Washington 35 years ago in a U-Haul with two small
children and my wife. I was in absolute awe of the Capitol. In fact,
the first time I had ever had an opportunity to visit Washington was
when I came here to work as a very young aide to a then-sitting Member
of Congress on the House side.
Over those 35 years, I have come to love and respect and appreciate
all of the good things that this institution, including the other body,
as well as the Senate, stands for. It is a wonderful opportunity to
engage in serious debate about the important issues of the day and to
address the important issues and problems facing the people of this
Nation. That is what this institution does best.
Unfortunately, every now and then the institution tends to break down
and we spend an inordinate amount of time doing things that do not
address the great issues of the day or contribute anything to solving
the great problems of the day. This is one of those times. I have not
lost my respect for this institution, and particularly the Senate, even
though as in most things in the real world, sometimes things did not
run quite as they should. We have now engaged in a couple of days of
exhibiting how this institution does not work very well, although on
very rare occasions. I still have the utmost respect for this
institution and will continue to have that respect for as long as I
live despite the fact that every now and then it breaks down.
The issue it has broken down on--I imagine most people in this
country are probably watching the morning news show; some are probably
watching cartoons with their children. I doubt very well most are
watching what some would consider a cartoon-type of atmosphere in this
debate which has been on longer than it should. The issue is quite
simple: Are Democrats stopping Republicans from getting their judges
approved? And are we doing it in a way that is somehow unconstitutional
or outside the rules of the Senate?
If you look at the record of the judges, our side has pointed out we
have approved 168 judges while only 4 have stopped. I was trying to
say, how does that relate to the average American? If the Washington
Redskins had a 98 percent win-loss record, people would think that is
absolutely astounding, and Spurrier would be given a big raise if they
had 98 percent win-loss. If Tiger Woods won 98 percent of the
tournaments he entered, people would be writing in amazement about that
incredible person capable of winning 98 percent of the time. I happen
to play tennis, and if Andre Agassi won 98 percent of his matches, I
would imagine people would say this is truly incredible, someone would
be capable of winning 98 percent of the time. I guess I should throw in
the New Orleans Saints because if they won 98 percent of the time, I
cannot imagine what the State of Louisiana would do.
But that is, in fact, the record the President of the United States,
President Bush, has established with regard to the judges he has
submitted for confirmation. It is truly a remarkable record of having
almost every person he has submitted to the Congress be considered by
appropriate committees and considered on the floor and approved. A 98
percent record is truly a remarkable achievement by any measure,
whether it is a sports metaphor or whether it is any other type of
metaphor we can imagine.
I will bring it closer to home. Imagine any Member of this body
getting 98 percent of the vote. Maybe the distinguished Senator from
Georgia who is in the Chamber is capable of that, but I don't know if
any of us would ever get 98 percent of the vote. Some have been
fortunate to get over 50 percent every now and then, but no one ever
gets 98 percent of the vote. Teams do not win 98 percent of their
games, golfers do not win 98 percent of the tournaments, and neither do
tennis players. It is unheard of.
If the average person starts looking at a record where 98 percent of
the nominees have, in fact, been approved and are sitting on the bench
and doing their duty, by any measure of any standard of operation in
this country, people would say that is a pretty outstanding record. Yet
the Senate has spent the last several days complaining about a 98
percent achievement record by the President of the United States,
saying somehow that is not enough; somehow it should be 100 percent
every time with every nominee.
Most American people would say: What are they talking about? Why are
they spending so much time saying 98 percent achievement is not enough?
[[Page 28838]]
That is where we are. That is what we are talking about.
Enough said about that. After 2 days of talking 24 hours a day, we
have heard enough about the 98 percent record. Some I voted for cloture
and some I decided not. But the record speaks for itself. It is an
outstanding record.
Let me talk about one of the things we ought to be doing if we are
going to be the greatest deliberative body in the history of the world,
which I think the Senate truly is, something I have been working on for
over 5 years as former chairman of the National Commission on Medicare
Reform and now a member of the Senate Finance Committee working with
our colleagues, trying, in a bipartisan fashion, to address one of the
really important issues of this Nation.
We are at a health care crisis in America. We have literally millions
and millions of Americans with no health insurance at all. They have to
go to emergency rooms. They are in the poorhouse and get services under
the State Medicaid Program. Many of these people work hard every day.
Yet the companies they work for no longer provide health insurance. It
is truly a national problem of monumental proportions, yet we are not
talking about that in the Senate today.
Another issue is the fact that we have something over 40 million
American citizens who have a health insurance plan that is inadequate,
outdated, and in desperate need of reform in terms of how much money we
spend on the program. The current program we have for seniors is
unsustainable in terms of the money we spend and where it will come
from.
All of the Members in this Chamber and all of our employees have
health insurance that is significantly better than every single one of
the 40 million Americans who do not have health insurance. Our health
insurance covers hospitalization, our health insurance covers doctors,
our health insurance covers emergencies, and our health insurance
covers prescription drugs. Yet we have not been able to do for seniors
what we have done for ourselves. That is something that challenges this
institution and something to which this institution has to pay
attention.
The simple fact is that Medicare today does not cover 47 percent of
an average senior's health care costs. It is embarrassing that we,
arguably the strongest Nation in the history of the world, have a
system where the seniors of this country who have worked, earned, and
paid into a fund to provide health insurance when they are old, now are
covered by a policy that only covers 53 percent of the average senior's
medical costs, and leaving 47 percent somewhere else.
We have been working very hard for a long period of time to reform
Medicare. The groups that have been working together have reached an
agreement that is a tentative agreement, and no one is bound by it
until we see the final product, and that includes me.
The interesting thing about this is that if anything should not be
political, it is health care. But I can think of no subject that has
become more political than health care, and no subject that has become
more political in health care than how we treat the Nation's seniors.
Republicans continue to talk about why Democrats will not do what is
needed and necessary to pass a reform bill. And Democrats continue to
say Republicans want to privatize it and end Medicare as we know it.
There are Republican political pundits in this city who have said we
should pass a Republican-only bill in the House of Representatives and
send it to the Senate so the Senate Democrats can kill it; it will be a
terrific political issue for us. On the other hand, there are
Democratic political pundits in this city who will say there is no way
we can support and pass a Medicare bill. Why? Because it would give
President Bush an opportunity to sign a bill in the Rose Garden and he
might get credit doing so.
So we continue to play what I would call the political blame game. We
are more concerned about ourselves and our political parties than we
are about the 40 million seniors who desperately need the help in order
to get prescription drugs under a reformed Medicare plan.
If we go along those lines, what we will have done is to say, once
again: It is their fault it did not get done. And they will say: No, it
is your fault it did not get done. But once again what we will give to
America's seniors is a basket of excuses. And I have suggested many
times that seniors cannot take an excuse to the drugstore and get their
prescriptions filled. It is not possible.
What they need is both sides to act like grownups and both parties
not just to look at their political base but to look at what is good
for America, and join forces and say: Yes, it is going to be a
compromise. No, it is not going to be everything I would like if I had
an opportunity to write the bill, but we do not. Each of us is part of
a larger body, and each of us is part of a body that is almost evenly
politically divided.
So that is a challenge that is facing us. What we have tentatively
agreed to is an insurance program under Medicare, for the first time
since 1965, which will cover prescription drugs for America's seniors.
They will pay a premium and have a small deductible and have some
copayments, but every Member of the Senate has that type of a drug
plan. The Federal Government will pay 75 percent of it, and the senior
beneficiary will pay 25 percent.
We will spend $400 billion over the next 10 years trying to make that
happen. We see seniors every day going to Mexico and going to Canada to
buy drugs from foreign countries. Why? Because they do not have
insurance that covers it. Hospitalization in Canada is cheaper than it
is here. Doctor treatments and doctor visits are cheaper in Canada than
they are here. Why do seniors not complain about that and say: ``I am
going to have my doctor visit in Canada. I am going to go to a hospital
in Canada''? It is a very simple reason. Because they have an insurance
policy in this country that covers doctors, and it covers
hospitalization. But it does not cover prescription drugs. There is no
insurance. So they have to bear the burden of 100 percent of the costs
of prescription drugs.
This legislation will be designed to say: All right, we are going to
solve that problem. We are going to give you a prescription drug plan.
We are going to take seniors who are now under the Medicaid Program for
the poor and put all of them into the Medicare Program for all 40
million American seniors. I think that is good, solid, public policy.
We are going to make sure all low-income seniors get a special rate by
reduced premiums or no premiums at all to make sure we take care of the
most vulnerable among us as far as the senior population is concerned.
It is important, as I conclude, when we look back on this session,
that we will be able to say we have done more than create more excuses.
The seniors can no longer live on political excuses coming out of
Washington as to why we have not completed the job. There will be
things in this bill that both sides will be able to pick and find and
say, I can't be for it because of this. But I would just ask my
colleagues to look at the broader picture, to look at the total package
and say: When we have an opportunity, perhaps once in several decades,
or once in a lifetime, to truly get something done to put in place a
system that can be improved upon in the future, we will seize that
unique opportunity and come together in a bipartisan fashion. And the
American people will be able to say: Yes, they did it, and they did a
good job.
I think that is what this body should be dealing with. That is one of
the critical, important issues of this day. And I would suggest we get
on to it just as soon as we possibly can.
With that, Mr. President, I yield to the distinguished Senator from
New Mexico.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. BINGAMAN. Thank you very much, Mr. President.
Let me, first of all, commend my colleague from Louisiana, Senator
Breaux, for the hard work he has been doing to try to get us to a
prescription drug bill for Medicare beneficiaries
[[Page 28839]]
that will, in fact, preserve the Medicare system but will also meet
this very real need that most seniors and all of us have, to be able to
afford prescription drugs.
Let me say a few words about the issue of judicial appointments
before I then talk about a couple of other issues I want to briefly
visit as well.
As I approach this whole question about judicial nominations, I guess
my starting point is to ask, how is the system supposed to work? How is
this system of choosing and nominating and confirming of judges
supposed to work when it involves Federal judges?
I think it is supposed to work the way it generally has worked with
this President; and that is, it is supposed to work the way it has
worked with regard to these 168 judges who have been confirmed. The
truth is, these judges who were confirmed, they were nominated by the
President, were confirmed by the Senate These are judges who are
conservative in their political philosophy, in their legal philosophy.
That is sort of a given with this President. We understand that.
Everyone understands that. Democrats understand it. Republicans
understand it. I have no problem with that.
This President was elected as our President. He has the right to
choose judges who have a conservative perspective, and clearly that is
what he has done, and clearly that is the way the system is supposed to
work. But as I think about how the process should work, it seems to me
the very first step the President should take--and the President and
his assistants, his general counsel have taken with regard to most of
those 168 judges, maybe all of them, at least the ones I am familiar
with--the first step is to go to the Senators from the State involved
and ask those Senators if these are acceptable persons to be nominated.
That is exactly what has a happened in the case of judicial
nominations from my home State of New Mexico. And I am very
appreciative of the President and his counsel for including me in that
discussion and in that decisionmaking. Essentially, what has happened
is that my colleague, Senator Domenici, and the White House have
identified a person--in the case of each vacancy we have had in New
Mexico--they have identified a person who they thought should be
nominated for that position, and they have asked me to talk to that
person and give them a response as to whether that was someone I would
support as well.
In each case, I had been very pleased to support those nominees. In
each case, I have had the chance to sit with those people, talk to
them, acquaint myself with their qualifications. And, as I say, I have
been very pleased to support those nominations.
That is the way the system, in my opinion, is supposed to work. But
once the President has determined that the Senators from a particular
State--at least one of the Senators, but preferably both Senators from
a particular State--will support the nomination of a judge or judicial
candidate from that State, then, of course, it is much easier to get
the full Senate to go along with that. Frankly, that is the way the
system ought to work.
I have had circumstances where individual Senators have come to me,
Democratic Senators have come to me and asked: Are you sure you want us
to support this nominee for a judicial position in your State? because
my staff tells me there are questions--and this and that. I am pleased
at that point to be able to respond, yes, that I have checked out these
nominees, I have determined that they are people I support, and I urge
that the full Senate support them.
Now, we have two judicial nominations coming before us today that are
coming up for a vote on cloture that have not come up before, but in
both cases my understanding is they are being presented as nominees
over the strenuous objection of both Senators from the State from which
the judges come.
I have difficulty understanding why I should want to support a
judicial nominee from a State if the Senators from that State oppose
that nominee. I try to think of how I would feel if I were opposed to a
nomination from my State and the President and a majority here in the
Senate were trying to confirm that nomination over my strenuous
objection.
I think we have some obligation to our colleagues to defer to their
own understanding and their own knowledge and their own opinion on
these issues, particularly as it affects their State. Now, not
exclusively; we do not have to defer. But I am just saying that as a
precondition for going forward and considering a judicial nominee, we
ought to begin by asking: Do the Senators from the State the judge
comes from support the nomination? That seems to me to be a threshold
question.
In the case of Carolyn Kuhl, on whom we are having a cloture vote
later today, as I understand it, and in the case of Janice Rogers
Brown, about whom we are also having a cloture vote later today, I am
informed that the Senators from California have determined they do not
support these nominations. They are urging that the Senate not go
forward with these nominations. They urge that the Judiciary Committee
not report these nominations. And in spite of all of that, the
President says we are going to do it any way.
We are doing this over the objection of the Senators from California.
That, to me, is a cause for concern. We are talking about a breakdown
in the traditions and a breakdown in the system that is supposed to be
functioning. To me, that is a clear breakdown in the system for
choosing and nominating and confirming Federal judges.
So I hope we can get back to a policy with regard to all the
nominations that come from the White House and this President that is
consistent with the experience I have had in my home State of New
Mexico; and that is, that before a nomination is sent to the Senate for
confirmation, Senators will be asked to give their opinion as to the
appropriateness of the nominee.
One good thing about this country--it is certainly true in my State;
I am sure it is true in every State in this country--we have a wealth
of very capable, honest, hard-working members of the bar who would love
to serve on the Federal courts. There is no shortage of good people for
these positions. Accordingly, it is not difficult to find a person to
serve in these key positions who has the strong support of Senators,
Congressmen, and public officials in these States.
The list of organizations and public officials, and both California
organizations and national organizations, that oppose the two nominees
I have referred to here is extensive, and I have been given that list.
Twenty-two members of the California congressional delegation have
indicated their opposition to our going forward with the nomination of
Janice Rogers Brown. We have members of the Judiciary Committee of the
California Assembly who have come out in opposition to our going
forward with Carolyn Kuhl's nomination to the Ninth Circuit Court of
Appeals. There is a very long list of individuals and organizations.
I know neither of these nominees personally myself, but, clearly, I
have to give deference and some consideration to the opinions of those
who have worked with them.
Mr. LEAHY. Will the Senator yield for a question?
Mr. BINGAMAN. I am very pleased to yield to my colleague.
Mr. LEAHY. Mr. President, the distinguished Senator from New Mexico
had an exemplary career as attorney general of New Mexico and,
obviously, is in a position probably to know more about the bar of New
Mexico than anyone else in his State; and his service replicates that
of other Senators on both sides of the aisle from their representing
their States.
My question is this: The traditions of the Senate mean so much, and
most of them are there for a reason. The tradition of having to get
clearance from home State Senators--and, of course, every State is
equal in the Senate. But Federal judges have an enormous impact on the
States. The tradition has always been that the home State Senators have
the best idea who the Federal judge is who is going to be making
decisions that affect the men and
[[Page 28840]]
women of that State. This has not always been perfect, but has it been
the experience--I ask this of my friend and former attorney general of
his State, a Senator of great respect and competence--has it been his
experience that in the main, very much in the main, this has worked
extremely well?
Mr. BINGAMAN. Mr. President, in response to the question, I certainly
would say it has been my experience that this does work. In fact, when
the name of someone is being considered for appointment to a Federal
judgeship in my State of New Mexico, I have been getting calls. I get
calls from lawyers who have worked with these individuals. I get calls
from people who have tried cases against these individuals. Some of
them, frankly, are favorable and some may not be as favorable.
I get a great deal of feedback on these individuals who are being
considered by us for nomination. And, of course, I have the ability, as
a Senator from New Mexico, to call people whose opinions I respect and
to say: You have spent your lifetime practicing law in the courts in
New Mexico. What do you think about the qualifications and the
temperament and the appropriateness of this person for this kind of a
judicial position? Based on that kind of feedback, then I am in a
position to advise the President, advise my colleagues, advise anyone
in the Senate that, in my opinion, this person would be well qualified.
I am sure that same process occurs with every Senator in every State,
and it should. I think that is exactly what the Framers of the
Constitution had in mind when they talked about advice and consent. I
think they were talking about Senators being able to give their advice
before the President made a final determination as to who would be
elevated to a judicial position, and Senators being able to either give
their consent or withhold their consent.
It is far preferable, in my view, if that advice and consent is
requested and provided at an early stage in the process, not once the
nominee has been sent up here, not once the President has had a press
conference at the White House with the nominee in attendance. I think
it is in many ways unfair to the people being nominated to have them
pushed to that stage without the necessary advice and consent having
been sought from the Senators in question.
I think that is the unfortunate circumstance we find ourselves in
this morning, that there are individuals being pushed upon us as
appropriate members to be elevated to court of appeals positions, and
the nominations are being strongly opposed by the Senators from the
States from which those individuals come.
So I think it would be unfortunate in the extreme if the Senate were
to disregard the views of the Senators from those States and say:
Regardless of their views, we are going to go forward here, regardless
of the feedback they have provided; regardless of the numerous groups
and individuals who have come forward to state objections here, we are
going to push this nomination through the Senate.
I do think there is a very valuable purpose the Senate serves; and
that is, to slow things down. That is what we have done here as to some
of these nominees. These are nominees who, in my view, should have been
better vetted with the Senators from the States involved.
If those Senators had been given an opportunity to make their case to
the President and to his counsel at an early stage, perhaps we could
have avoided some of the votes we are going to have to cast this
morning. I think that would certainly be preferable.
Has my time expired, Mr. President?
The PRESIDING OFFICER. The Senator has 4 seconds.
Mr. BINGAMAN. I will yield back my time, Mr. President.
The PRESIDING OFFICER (Mr. Chambliss). The Senator from Minnesota.
Mr. COLEMAN. Mr. President, I have great respect for the Senator from
New Mexico and the principles he just talked about: his deep concern of
the breakdown of the system, of the tradition of the Senate. It is
important. This is a very special place. This is the greatest
deliberative body in the world. I believe that. That is really what we
are talking about today--the tradition of the Senate. That is part of
why this debate is important.
This is not a game. This is not a charade. This is important. The
past 11 Presidents' judicial nominees confirmed v. filibustered: 2,372
confirmed, 0 successfully filibustered until now--the traditions of the
Senate, the traditions of this great institution.
We have been up all night. We have had a lot of conversation, a lot
of debate. My colleagues across the aisle said it is absolutely,
patently false to say we haven't successfully filibustered circuit
court nominees. Read my charts. They are real. Here is the list.
Judicial nominees subjected to cloture attempts 1968 to 2003 time after
time: No. 1, Abe Fortas, rejected. The Senator from Michigan, who was
part of that process had a letter saying, by the way, that was a
bipartisan effort. The Republican leader supported cloture on that. Of
all these, not a single partisan effort where the nomination was
successfully blocked.
The folks involved in making those decisions who predated me reflect
what the Senator from New Mexico talked about--a reverence for the
tradition of this body, a tradition I believe that is reflected in the
Constitution that says decisions about judges are done essentially by a
majority--two-thirds for treaties.
As I listened, I understood what was happening here. Part of this
tradition is any single Senator can stand up and say: I object. That is
who we are. That is a great power for an individual Senator.
We talk about advice and consent. I think perhaps the concept now in
people's minds is that we all should be part of this advice and consent
process; we all should be heard. But the reality is, in the end, and
again according to the Constitution, the decision is going to be made
by a majority. It is not about the President being successful 98
percent of the time. It is about 100 percent of the time giving an
opportunity for an up-or-down vote. That is what this is about, 100
percent of the time giving an up-or-down vote and then let the vote be
what it may.
In fact, nominees may be rejected. It is not about guaranteeing the
outcome, but it is following the Constitution to give people a right to
a vote. That is the process, that is the tradition, and that is the
history. We run such a terrible risk when we cast that aside.
This has been a very sharp debate. There has been a lot of discussion
about all sorts of other issues about which we should be talking. I
reiterate again, I am deeply concerned about jobs. I am deeply
concerned about the economy. Some folks say it is hard, but we can
actually multitask around here. We can absolutely uphold our
constitutional responsibility to advise and consent and give a vote and
do other business.
We passed the third largest tax cut in the history of the country,
and we are seeing the impact of that now. The economy is moving
forward. GDP is up 7.2 percent in the last report. There are over
250,000 jobs over the last couple of months. There is more to be done,
but we can do more than one thing.
For those of my colleagues who protest, oh, we are spending all this
time, we spent 10 or 11 hours on Monday talking about Searchlight, NV,
talking about rabbits eating cactus and rocks. That is part of the
process. People get frustrated. I understand that.
The bottom line is, we stand here after 30 hours of debate, now
almost 38 hours, and what do we get out of that? What do we understand?
We understand that the history of the Senate is one in which this body
up to now has not used a partisan filibuster to block judicial
nominees. We see that happening today. We see the record of that.
They talk about 168 to 4 and talk about all the judges. Clearly, when
we talk about appellate judges, we have 29 confirmed and 6 who have
been blocked and 6 who are threatened to be blocked. Now we are talking
about 29 and 12. That is 30 percent. Not only is that nothing to be
proud of, but it is in contravention to the constitutional direction
the Framers and the Founders gave us.
[[Page 28841]]
The consequences of this are ones about which we should all be
concerned. We are talking about our judicial system. This is not a
game. This is one of the fundamental underpinnings of this
constitutional democracy, and we have a solemn obligation and
responsibility to choose men and women of good judgment and good
character who bring a willingness to apply the law to the table and to
make judgments.
The reality is that those candidates before us are folks their own
peers have said are of the highest quality. The American Bar
Association, the gold standard that my colleagues on the other side
talked about so many times, say they are highly qualified. In some
cases, the voters, those who have run for office--Priscilla Owen,
Janice Rogers Brown--have received overwhelming shows of support. That
tells you something about the mainstream, the bipartisan nature of the
support.
Judge Carolyn Kuhl: A bipartisan group of nearly 100 of her
colleagues said:
We believe her elevation to the Ninth Circuit Court of
Appeals will bring credit to all of us and the Senate that
confirms her. As appellate judge, she will serve the people
of our country with distinction, as she has done as a trial
judge.
A bipartisan group of 23 women judges of the superior court who
served with Judge Kuhl wrote:
As sitting judges, we, more than anyone, appreciate the
importance of an independent, fairminded, and principled
judiciary. We believe Carolyn Kuhl represents the best values
of such a judiciary.
The fact is, these judges hold strong opinions, there is no question
about that, but to a person they said they will do what a judge needs
to do and put those personal opinions aside and apply the law. Their
colleagues who know them have raised their hands and said: Yes, that is
what they have done; that is what they will do. The voters who know
them reaffirmed their positions by reelecting them by overwhelming
majorities. That is what we should be looking at. That is mainstream.
That is not extreme.
In the end, we are grasping for something simple: for every Senator
on this floor to do what every Senator has the right to do--to be
heard, to give your advice to the President of the United States, and
if you don't agree with his nominees, do what has been done through the
entire history of this country, for 214 years: Give your advice, give a
vote; vote them up, vote them down, but give them a vote. It is what
the Constitution requires. It is what I believe the future of this
institution requires.
Let's get beyond the partisan politics. Let's put it aside. Let's do
the right thing. Let's come together. Let's focus on getting things
done. That is our opportunity, and I hope we don't squander it.
I yield to my colleague from South Carolina.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM of South Carolina. Mr. President, I thank the Senator for
yielding. It has been a real pleasure to talk with him throughout the
night. It has been a great debate. For something considered a waste of
time, so many Senators have participated. It has not been a waste of
your time or the country's time. We have a good record the people can
look upon and make a decision about what we are doing here in this
Senate.
If I had to boil it down to what all this means to me, which I have
to do between now and a quarter after, here is what I think is the down
side of what we are doing in the Senate: Special interest politics is
being given a green light to go after people they may disagree with
because they think the nominee doesn't share their philosophy or
political persuasion.
You are giving them a green light to manufacture controversies, to go
after people in a personal way, and we are going to rue the day we did
that. The left is doing it today. The right will do it tomorrow. We are
unleashing special interest forces. We should be deterring them. Right
now we are emboldening them, and the country will be worse for the
wear.
There are people at the end of the process. We are talking about
individuals. Miguel Estrada has claimed to be outside the mainstream.
All I can tell you is that the Washington Post on February 5, 2003, not
exactly a right-wing rag, said:
Estrada is well qualified for the bench. This should not be
a tough case for confirmation. Democrats who disagree should
vote against him.
I think that pretty well sums up the idea that he can't be that far
out of the mainstream or the Washington Post would not have said that
about him.
If you disagree with me and think he is out of the mainstream, vote
against him. Please don't continue the process of filibustering people
because we are going to change the Senate forever, for the worst, and
the future nominees to come, whatever they said in law school, whatever
letter they may have written to their wife, whatever decision they made
about going on a trip, if they said something that offends the left or
offends the right, people are going to come after them like
gangbusters, knock their heads off, and you are going to keep good men
and women from wanting to serve. That is going to happen, sure as I am
standing here. It will be a great tragedy. Please let's turn this
around.
Judge Brown will be No. 5. She sits on the Supreme Court of
California. She is objected to. She is out of the mainstream allegedly.
I would argue that 76 percent of the voters in California are not
right-wing zealots, and that anybody who can get 76 percent of the vote
in California has to have some sort of moderation about them. She has
written the majority of the court's opinions. She is respected by her
peers. You wouldn't get 76 percent of the vote in California if you
were out of the mainstream in any real way.
Justice Owen from Texas, No. 1 in everything. She serves on the State
supreme court. She received 84 percent of the vote. The only people
left who didn't vote for her are probably the extreme people. I would
argue that 84 percent of the people who chose to vote in Texas is
probably our best evidence about who she is and the way she conducts
herself.
Pryor: If you read in the paper today, the attorney general of
Alabama has just successfully removed the chief justice of Alabama. It
was his job to bring the case to the grievance committee in the State
of Alabama, and the reason the chief justice was removed was that he
defied a Federal court order to remove the Ten Commandments out of a
courtroom in Alabama.
Whatever you want to say about Attorney General Pryor being out of
the mainstream, let me tell you that the Ten Commandments are popular
in Alabama. He chose the less traveled route for a politician. He chose
to enforce the law against a rogue judge who is pandering to the
political moment. He followed his constitutional duty, and I bet you he
agrees the Ten Commandments have a right to be displayed, but he said:
It is not about me; it is about the law.
Mr. SESSIONS. Mr. President, will the Senator yield?
Mr. GRAHAM of South Carolina. Yes.
Mr. SESSIONS. With regard to that matter, Attorney General Pryor did
file a brief on behalf of Judge Moore and argued that the Ten
Commandments were legitimate because there are three depictions of the
Ten Commandments in the Supreme Court. And right on this wall are the
words ``In God We Trust.'' He defended that.
When the case was lost, the judicial inquiry commission brought a
charge against the chief justice because he did not comply with the
court order, and it was the duty of the attorney general to bring that
case under Alabama law. So he was required to present the case that had
been brought by something akin to a grand jury.
Mr. SANTORUM. Will the Senator from Alabama say that is following the
law?
Mr. SESSIONS. It is absolutely following the law. There are a host of
other examples to a degree I have never seen before in America. Bill
Pryor always does what he believes the law compels him to do. Many
times it is something he does not personally like to do.
Mr. GRAHAM of South Carolina. Senator Leahy said in 1998:
[[Page 28842]]
[I]f we don't like somebody the President nominates, vote
him or her down or up.
He was right then. I am very afraid that we are opening the darkest
chapter in the history of the Senate when it comes to judges. I don't
want to be a part of it. I reject the past. I embrace a better future.
Please, for God's sake, let's not continue to do this because we will
all regret it.
The PRESIDING OFFICER. The majority has 30 seconds remaining.
Mr. SANTORUM. Maybe what we are finding out here is the minority
doesn't want someone who is going to follow the law. I think what they
really want is someone who is going to make the law, make the law
politically, exactly maybe as the Senator from Vermont would like it to
be made. Maybe there are things he or other Members on his side can't
accomplish in the legislative chamber, so they want judges who will
make the law they want. That is why the litmus test. They want activist
judges on the court not to follow the law but to make it the way they
really want it. That is what is at issue here.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Vermont.
Mr. LEAHY. Mr. President, I am glad to see my friend from South
Carolina used a tiny part of a quote of mine. I am always glad when
somebody quotes me, even when they don't do it accurately.
What I was referring to, if you look at the quote, was the one-person
filibusters of 63 of President Clinton's nominees, where one person,
one Republican, usually anonymously, would object to President
Clinton's nominees and then those nominees would never get a vote at
all. Those were filibusters by one person done anonymously, not in the
open.
Here, of course, unlike what was done to President Clinton, the
Democrats have cooperated to make sure that 168 of President Bush's
nominees to the Federal judiciary have gone through and only 4 have
not. We can see only 4 have been blocked. We have confirmed 168 and
only blocked 4. That contrasts to the 63 anonymous filibusters done by
the Republicans--63 done by the Republicans when they were in charge.
As I walked over this morning, I thought: Finally, the Republican
leadership is bringing to a conclusion three really ``Alice in
Wonderland'' kind of days, really wasted days in the history of the
Senate. During those days, as much as the Republican leadership wanted
to waste the Senate's time, at a cost of hundreds of thousands of tax
dollars, I am proud of our Democratic Senators who had to endure
endless criticism for objecting to a handful of the President's most
extreme, controversial, and divisive nominees.
What they have tried to do is get the Senate's attention back on the
unfinished legislative business of this session that is of such concern
to the lives of so many Americans. As I said, we have cooperated in the
confirmation of 168 of this President's judicial nominees. We confirmed
100 in the 17 months I was chairman and confirmed another 68 in the 17
months my distinguished colleague from Utah was chairman. I am not
going to criticize him that he didn't get as many confirmed as I did,
but there are the numbers, 168 to 4. That is more judges than President
Reagan, the ``all-time champ,'' appointed his entire first term in
office when he had a Republican majority. So in less than three years,
we have already eclipsed President Reagan's four year total.
Among the 168 confirmations are more circuit court confirmations than
for any of the last three Presidents at this stage in their first
terms. The scorecard is 168 to 4.
After this week, the total of those blocked could increase by two,
but the number of confirmations will not have been increased. Rather
than work with all Senators to confirm those nominees who can be
confirmed after a vote or who may be confirmed after a reasonable
debate and a vote, the Republican leadership has remained fixated on
the most controversial and most divisive nominees.
During this 40-hour talkathon, the Republican leadership of the
Senate has taken what could have been productive days at the end of
this year's legislative session and decided to abandon work on the real
priorities of the American people. I understand that the reason they
have been spending so much of the taxpayers' dollars in doing this
talkathon is that some of the Republican campaign committees have tried
to use this to raise money. If they are, instead of charging the
taxpayers for this, I wish they would do it themselves.
But what we have are our friends on the other side engaging in
repetitive speeches about promoting a small handful of controversial
nominees to lifetime positions as Federal judges. These are people who
already have good well-paying jobs. They do not want to talk about the
legislation that might help the more than 3 million Americans who have
lost their jobs since President Bush assumed office.
Unlike President Clinton's term, where a million new jobs were
created every year, in the 3 years of President Bush's term, 3 million
jobs have been lost, but they do not want to talk about that.
The Republican leadership has already overshot the Senate's
adjournment date by more than a month. We have already had to enact
three continuing resolutions just to keep the Federal Government going
because we have not passed our appropriations bills. The law says we
have to enact our 13 appropriations bills by the end of September. The
Republican Congress has enacted only 5 of the total 13. They ignore the
law on that, but then they waste this time and hundreds of thousands of
taxpayer dollars to have a campaign talkathon.
They do not want to vote on the appropriations bills and, instead,
they want to waste time on this? They want to waste time giving
lifetime jobs to three or four people but they do not want to do
anything about the 3 million Americans who are out of jobs.
Here is what they are not talking about, here are the issues that are
not being voted on, here are the bills that the Republican leadership
will not bring up: Funds that go to improve our schools. Funds that NIH
uses to advance our medical knowledge in fighting disease and illness.
The resources used by EPA to enforce our clean air and water laws. They
do not want to bring up appropriations for our veterans and for law
enforcement. These are things that all people should be able to agree
on, Republicans and Democrats, but we are told there is no time to
bring up money for our law enforcement or for our veterans.
In fact, during the first evening of this exercise in the wind
chambers, the senior Senator from West Virginia was trying to get the
Senate to do its work. Senator Byrd, as the ranking Democrat on the
Appropriations Committee, urged the Senate to complete its work on the
appropriations bills that fund services for our military veterans. He
said, Why do we not finish this? This administration has cut money for
veterans benefits. It has cut money for veterans hospitals. It has cut
money for disabled veterans. He said, Can we not at least take a couple
of hours more--if you are going to spend 40 or so hours talking about
four judges, can we do something, can we take 2 more hours to finish
the bill that will affect millions of America's veterans?
He said we could do it in 2 hours. The Republican leadership
objected. Those few minutes at the beginning of this debate may be the
most telling of this entire so-called debate. Republicans chose to
sacrifice the work of the Senate, the priorities of the American people
and the interests of American veterans so they could pull a partisan
political stunt.
In one of their many press conferences on this diversion, on November
6, the Republican leader committed to ``complete the appropriations
process'' before beginning this charade. Even the junior Senator from
Pennsylvania agreed with him and said: ``The leader's right. What we
are about to embark in next week, after the appropriations process has
run its course, is to enter into a debate. . . .'' Well, when given the
chance to honor that commitment, the Republican caucus chose partisan
theater over the work of the Senate.
[[Page 28843]]
We said can you not take 2 hours out of these 40 hours to at least do
the appropriations bill for our veterans? I mean, you are not going to
do the appropriations bills for our law enforcement. You are not going
to do it for medical research. You are not going to do it for anything
else. If you could just take 2 hours out of this, at a time when we are
creating a lot more veterans, many of them horribly disabled and
disfigured from the war in Iraq, we are told, no. We do not have 2
hours for that.
There is the unfinished business of the Nation's unemployment and
lack of job opportunities that confound so many American families. With
millions of Americans having lost their jobs in the last three years,
the Republican Senate has, instead, insisting on spending these final
days of this session on a handful of highly controversial judicial
nominations that divide the Senate and the American people and ignoring
the needs of the almost 10 million Americans who are out of work,
including those more than three million Americans who have lost their
jobs since President Bush took office.
Instead of working together on such important matters, we are being
forced to repeat another cloture vote on the nomination of Priscilla
Owen. The Senate has voted three times on this nomination, and three
times, the Senate has decided against granting consent. Her nomination
had been fairly and thoroughly considered by the Judiciary Committee
last year, and her nomination was rejected on the merits. Never before
has a President renominated a judicial nominee who was rejected on the
merits by the Judiciary Committee.
She has shown herself to be a judicial activist and an extremist even
on the very conservative Texas Supreme Court where her conservative
colleagues have criticized her judging. All that has occurred since the
cloture votes during the spring and summer is that Republican partisans
have ratcheted up their name calling and Justice Owen has been made to
serve as a political prop for the White House.
In fact, I commend to my colleagues an insightful article by David
Margolick that appeared recently in Vanity Fair magazine entitled
``Bush Scored Advantage.''
The second in this series of votes is to be on Judge Carolyn Kuhl.
This nomination to the 9th Circuit has been opposed by both the home-
state Senators from California and for good reason. From her days
seeking to change federal policy and provide tax breaks to Bob Jones
University, to her efforts to overturn Roe v. Wade, to her recent
decisions seeking to excuse the invasions of the privacy of Ms.
Sanchez-Scott, a breast cancer survivor, Carolyn Kuhl has been extreme.
Finally, the Senate will be required to vote in relation to a
nomination that has been whisked through the Judiciary Committee in the
last several days, that of Janice R. Brown. This controversial
nomination is opposed by the Congressional Black Caucus, the National
Bar Association, the California Association of Black Lawyers and a long
list of African-American and civil rights leaders and organizations.
Former Senator and former ambassador Carol Moseley Braun has recently
written to us opposing this nomination. I ask that her November 12
letter be made part of the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Women's Organizations Opposing Nomination of Priscilla Owen
National Organization for Women
National Organization for Women, Texas Chapter
NOW Legal Defense & Education Fund
Religious Coalition for Reproductive Rights
National Abortion Federation
National Women's Law Center
NARAL Pro-Choice America
National Council of Jewish Women
National Council of Jewish Women, Texas
American Association of University Women
American Association of University Women of Texas
National Family Planning and Reproductive Health Association
National Women's Political Caucus
Texas Women's Political Caucus
Texas Freedom Network
Women's Issues Network--Dallas
Women's Health and Family Planning Association of Texas
Republican Pro-Choice Coalition
Gender Justice Action Group
Feminist Majority
National Partnership for Women & Families
Greater Dallas Coalition for Reproductive Freedom
Texas Abortion and Reproductive Rights Action League
Planned Parenthood Federation of America
Planned Parenthood Association of Hidalgo County
Planned Parenthood Association of Lubbock
Planned Parenthood of Cameron and Willacy Counties
Planned Parenthood of Houston and Southeast Texas
Planned Parenthood of North Texas
Planned Parenthood of San Antonio & South Central Texas
Planned Parenthood of South Texas
Planned Parenthood of the Texas Capital Region
Planned Parenthood of West Texas
____
Women's Organizations Opposing Nomination of Janice Rodgers Brown
National Organization for Women
California National Organization for Women
NOW Legal Defense & Education Fund
Religious Coalition for Reproductive Rights
National Abortion Federation
National Women's Law Center
NARAL Pro-Choice America
National Council of Jewish Women
National Council of Jewish Women, California
National Council of Jewish Women, Los Angeles
American Association of University Women
National Family Planning and Reproductive Health Association
National Partnership for Women and Families
Feminist Majority
Planned Parenthood Federation of America
Planned Parenthood of Golden Gate
Planned Parenthood of Los Angeles
Women Lawyers Association of Los Angeles
Women's Reproductive Rights Assistance Project
Pacifica Institute for Women's Health
Black Women Lawyers of Los Angeles
California Abortion and Reproductive Rights Action League
California Women's Law Center
____
Women's Organizations Opposing Nomination of Carolyn Kuhl
American Association of University Women
Breast Cancer Action
Breast Cancer Fund
California Abortion and Reproductive Rights Action League
California National Organization for Women
California Women Lawyers
California Women's Law Center
Center for Reproductive Law and Policy
Coalition of Labor Union Women (CLUW)
Feminist Majority
Los Angeles African-American Women's Political Action
Committee
NARAL Pro-Choice America
National Abortion Federation
National Council of Jewish Women
National Organization for Women
National Partnership for Women and Families
National Women's Law Center
National Women's Political Caucus--California
Pacific Institute for Women's Health
Planned Parenthood Federation of America
Planned Parenthood Affiliates of California
San Diego County National Organization for Women
Women's Committee, Labor Committee for Latin American
Advancement
Women's Leadership Alliance Women's Political Committee
Women's International League for Peace and Freedom
Women's Reproductive Rights Assistance Project.
____
November 12, 2003.
Hon. Bill Frist,
Majority Leader, U.S. Senate, Russell Senate Office Building,
Washington, DC.
Hon. Tom Daschle,
Minority Leader, U.S. Senate, Hart Senate Office Building,
Washington, DC.
Gentlemen: Respect for the rule of law, and the
impartiality of the judiciary are almost synonymous concepts.
It is out of concern for both that I want to convey my most
serious concern about the State's consideration of the
nomination of Justice Janice Rogers Brown for the United
States Court of Appeals for the District of Columbia Circuit.
Justice Brown has not demonstrated the balance and judicial
temperament and prudence that are central to a respected
judiciary. Indeed, she has spoken to an organization of my
own alma mater, the University of Chicago Federalist Society,
in terms so radical as to bring into question her own regard
for the position she currently occupies. The extremism of her
views has been publicly demonstrated time and time again,
particularly concerning matters of settled law regarding the
national government's responsibility to protect civil and
political rights of women and minorities. Such extremism
undermines the confidence any citizen might have in the
capacity of this nominee to fairly interpret and administer
the law.
[[Page 28844]]
I am the only African American woman to have served in the
United States Senate, or on its Judiciary committee. As such
I have not only an appreciation for the gravity of the
Senate's role and responsibility in regards to the
appointment process, but I also have a keen appreciation for
the diversity of opinion among African Americans. Not all
black people think alike, and I have no doubt that there is a
constituency that would be happy to see an African American
of any political persuasion confirmed for such an important
position as the D.C. Circuit Court of Appeals. However, it
does both the black community as well as the courts a great
disservice to confirm to such a position an individual who
has so clearly demonstrated a disregard for the balance and
impartiality required of the members of the bench.
I appeal to our President to exercise greater respect for
the traditions of the judiciary in making future nominations.
Justice Brown should be given an opportunity to mature in her
demeanor and her judicial conduct, but not as a member of the
Circuit Court. As such, I urge the members of the Committee
to reject this nomination.
Sincerely,
Carol Moseley-Braun.
Mr. LEAHY. The San Francisco Chronicle and the Washington Post
editorialize against her as an example of the Bush Administration's
efforts to pack the circuit courts with ideologues. In her decisions
and her writings and speeches she has shown herself to be a consummate
judicial activist who will disregard precedent when convenient to her
ends. Her view of government is not consistent with the work of the
D.C. Circuit in reviewing the environmental protections, workplace
protections, consumer protections and other government regulations
authorized by Congress to protect all Americans.
The obvious intent of these stacked votes is a partisan effort to
paint opposition Senators as anti-woman. Women know better. Women
leaders, women's rights organizations have opposed these nominations. I
know the Republican partisan public relations machine will be cranking
overtime to say we are anti-woman. Given that we are being led by
Senator Barbara Mikulski, Senator Dianne Feinstein, Senator Barbara
Boxer, Senator Patty Murray, Senator Mary Landrieu, Senator Blanche
Lincoln, Senator Maria Cantwell, Senator Hillary Clinton, and Senator
Debbie Stabenow, it is hard to see how Democrats can be subjected to
such allegations with a straight face. I mean, tell them that they are
anti-woman. These are all women who have the finest records of
defending, upholding, and advancing women's rights. It is crazy.
When we were in charge, the Senate confirmed 100 of President Bush's
judicial nominees, including 21 women, in just 17 months. They included
4 women to our Courts of Appeal. During the 107th Congress, President
Bush nominated only 18 women to district court seats out of 98 district
court nominees, or 18 percent, and only 8 women to circuit courts out
of 32 circuit court nominees, or 25 percent. Well, this year, Democrats
have supported the confirmation of 12 additional women nominated to the
Federal bench, including 3 more to our Courts of Appeal. The thirty-
three women judges confirmed represent 20 percent of the 168 judges
confirmed so far.
Perhaps, though, they are a little bit nervous about this. President
Bush has nominated far fewer women to the Federal bench than President
Clinton did. This President's nominees have included only one woman in
each five judicial nominees. By contrast, nearly one of every three of
President Clinton's judges are women. Of course, the Republicans who
controlled the Senate and the Judiciary Committee during the Clinton
administration also blocked 18 women nominated to Federal judgeships by
President Clinton. They did it by their one-person anonymous
filibuster. Do not give me this baloney that, oh, it is so terrible
that we are standing out here in open session blocking four judges.
They blocked 63 by anonymous filibuster, 18 of them women. The women
who were blocked from getting Senate action on their judicial
nominations by the Republicans include Kathleen McCree Lewis, Elena
Kagan, Elizabeth Gibson, Helene White, Christine Arguello, Bonnie
Campbell--all of whom were nominated to the circuit courts. Now, these
six outstanding women lawyers and judges were not extreme or
ideologues. They were blocked anonymously by Republican Senators. This
was done without any explanation. This was done without a vote of any
kind. We never had a debate on them.
These other judges, the 4 out of 168 of President Bush's who have
been confirmed, at least there was a debate on them. We discussed the
merits of their nominations. The 63 of President Clinton's nominees who
were blocked by the Republican majority would have liked to have at
least had a hearing or debate on the merits of their nominations. There
was no debate. Nobody wanted to come to the floor and talk about them,
not when they could do a one-person filibuster, and do it anonymously
so the press in their hometown would never know who was holding them
up, including some of the Senators from the States where they were
nominated. They could do this anonymously, and they could do it in a
way that they would never have their fingerprints on it.
Now, I have heard more crocodile tears shed on this Senate floor this
week than I have heard in my 29 years. Why? Because 4 judges of
President Bush's were stopped, out of 168 who were confirmed. He has
had less nominees stopped than any President I can remember since I
have served in the Senate.
I yield the floor.
(At the request of Mr. Dashle, the following statement was ordered to
be printed in the Record.)
Mr. EDWARDS. Mr. President, my Republican colleagues are
calling this 30-plus-hour marathon ``Justice for Judges.'' Now, I'm all
for justice for judges. And that's exactly what every single one of
President Bush's judicial nominees has gotten.
But I ask my colleagues, where is Justice for the American people?
They seem more concerned about Justice for a handful of judges--the 2
percent of those Bush's nominee who haven't been confirmed--than
justice, fair play and opportunity for the American people.
The Republican majority claims that we're facing a vacancy crisis in
our Federal courts. Ninety eight percent of Bush's judges have been
confirmed and this is a crisis? Two percent of Bush's judges have not
been given lifetime appointments and we're in a crisis?
Under George W. Bush, the unemployment has risen to 6 percent the
poverty rate has increased to 12.1 percent the percentage of Americans
with no health insurance has gone up to 15.2 percent. And, during this
time, the vacancy rate on the Federal courts has gone down to 4.5
percent its lowest point in over 13 years. In fact, there are more
full-time Federal judges on the bench today than at any other time in
U.S. history. The vacancy rate is now below the number that Senator
Hatch called ``full-employment'' in the Federal judiciary during the
Clinton administration.
Where is the concern for the 6 percent of the American people who
can't find jobs? The same people who claim that 4.5 percent vacancy is
a crisis think that 6 percent unemployment is great news, that a
``jobless recovery'' is a good thing. Why aren't they at least as
concerned about Justice for the Jobless, Justice for Working People,
Justice for the Poor, Justice for Families?
So, what does this marathon debate tell us about the priorities of
the Republican majority? What does it tell us when they are more
concerned about securing lifetime jobs for three sitting judges and a
State attorney general than in securing jobs for the 9 million
Americans who are out of work?
Why are they more interested in fighting for three judges and an
attorney general--all of whom have received full and fair
consideration--than fighting to bring hope back to the American people?
Why aren't we spending 30 hours debating how to help the 9 million
Americans who no longer have the dignity and self-respect that comes
from completing a hard day's work? Why doesn't the Republican majority
schedule 30 hours of debate to figure out how to provide health care to
the American people and prescription drug benefits to the elderly?
We should be figuring out how to bring back the 3 million jobs we've
lost
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on George Bush's watch--two jobs lost for every minute he has been in
office.
We should be addressing the anxiety of families who fear that by
sundown they will be without a safe home. We should be working to find
a way to lift the tax burdens on working families and provide real
economic opportunities so they can provide food, clothing, and shelter
for their families.
We should be debating about the best way to close the education gap
and support and fund our public schools.
We should be working together to lift Americans out of poverty.
And we should be coming together, not to fight for justice for judges
but to fight to end the injustice that still tugs on the soul of
America.
In other words, we should be fighting for Justice for the American
People.
But instead, my Republican colleagues have virtually shut down the
Senate to force lifetime appointments for three judges and an attorney
general.
This political stunt is getting lots of coverage, but it's not doing
a thing to improve the life of one single American--except three
sitting judges and an attorney general.
We have confirmed 168 of President Bush's nominees. I voted for the
vast majority of these judges, even though many of these judges have
held conservative views with which I strongly differ, because I
believed they would ultimately enforce the Constitution and the law.
But I cannot and will not vote for these four nominees, for good
reason. These nominees not only do not represent the mainstream, but
they have demonstrated an unwillingness to set aside their personal
views to uphold the law and protect civil rights. We have good reason
to oppose these nominees. And we not only have the right, we have a
constitutional obligation to stand up to the President when he makes
unacceptable nominations to the bench.
Our Founding Fathers did not give the President unilateral or
unfettered power to select Article III judges. They wanted to ensure
that the people--through their elected representatives--have a say in
who will be appointed to the Federal bench.
Every President--whether Republican or Democrat--must consult in a
meaningful way with the Senate to appoint highly qualified judges to
the Federal bench.
Meaningful consultation does not mean that the White House just sends
us who they want and we rubberstamp them, without careful examination
and consideration. Meaningful consultation often involves compromise
and consensus.
This approach has worked reasonably well--with some exceptions--over
the years. But now we find ourselves dealing with a White House that
disdains this longstanding principle of advice and consent. Instead,
the President is appointing judges who are far out of the mainstream.
Judges who are hostile to civil rights and equal justice. Judges who
are not only willing but eager to put their personal views above the
law. Judges he certainly knows are unacceptable to us and our
constituents. We have tried to work with the White House to find common
ground, but most of our attempts to reach consensus with the
administration have been dismissed. In some instances, our commitment
to fairness and diversity has been attacked. This is not the way this
process should work. It is wrong. It would be wrong, regardless what
party the President belongs to.
Previous administrations of both parties attempted in good faith to
work with the Senate in its appointments process. President Clinton put
up numerous highly qualified mainstream nominees for Federal
judgeships, only to have them blocked, denied hearings and denied votes
by a Republican Senate. Twenty percent of Bill Clinton's judges were
blocked by a Republican Senate. We heard nothing about justice for
judges then.
This had a particular impact on my home State of North Carolina,
which is part of the Fourth Circuit. North Carolina--the largest State
in the circuit--until this year had not been represented on the court
since 1994. President Clinton tried four times to put a North
Carolinian on the court, only to have his nominees blocked for reasons
other than their qualifications. In fact, during his last 6 years in
office, President Clinton had eight nominees--four of them African
American--blocked in the Fourth Circuit alone. These were well-
qualified men and women, none of whom could be labeled ideologues,
whose views were well within the mainstream of legal thought and
practice. Nevertheless, they were blocked.
We've seen what happens when the President meets us halfway. He's
done it before--rarely, but he's done it. He reached out to us on
Allyson Duncan, an outstanding North Carolinian who just last month was
formally installed as a judge on the Fourth Circuit Court of Appeals,
breaking a logjam that had held our State back for a decade.
In that case, President Bush did more than just pay lipservice to our
constitutional obligation to a advise and consent. He reached out to us
before he made his decision--he consulted with us--he sought our
advice. And in making his decision, the President selected a nominee
who represents the mainstream of our State.
Throughout Judge Duncan's confirmation process, I commended the
President for consulting with us and making an excellent nomination.
And I told him that if he takes this approach to future judicial
nominations we have a real opportunity to find common ground in the
search for excellence on the Federal bench. When we work together, we
find outstanding nominees like Allyson Duncan, who represents the best
of North Carolina and America.
That's one of the reasons puzzled and troubled that Republicans are
calling us anti-black, anti-Hispanic, anti-Southern, anti-Catholic.
They're running attack ads against us that represent the worst forms of
religious and racial McCarthyism. They're doing this even though the
record shows that Democrats have voted to confirm 13 of President
Bush's African-American nominees while Republicans blocked 12 of
Clinton's African-American nominees. We have confirmed 33 of Bush's
woman nominees. Nearly 40 percent of the Bush judges confirmed have
been from southern States. These accusations of bias flat-out wrong and
they are outrageous and I must speak out against such demagoguery and
race baiting.
We have gone the extra mile. We have demonstrated that we are willing
to work with the White House to move forward on nominees who provide
balance to the courts. We have confirmed 168 of President Bush's
judicial nominees--98 percent. We have been more than cooperative.
It's really a shame that the Senate doesn't spend a fraction of the
time they've spent on the full employment program for judges on finding
ways to improve the lives of the American people.
The American people deserve better than this. We owe it to them to
call a halt to this marathon madness and get down to work to address
the problems they sent us here to solve. It is time to fight for
justice, jobs and opportunity for the American people.
Mr. DODD. Mr. President, the majority has indicated that as part of
this debate to invoke cloture on these three nominees to the Federal
judiciary, they may move to consider S. Res. 138, a resolution
introduced by the majority leader, Senator Frist, which would amend the
Senate rules to treat debate on Executive Calendar items differently
than matters on the Legislative Calendar.
Nothing is more fundamental to the ability of the Senate to fully
exercise its constitutional responsibility to provide advice and
consent to the President's executive nominees than to subject such
nominees to full and deliberative debate. And any move to amend the
Senate rules to place additional limitations on that debate is
tantamount to a ceding of legislative branch powers to the executive. I
appreciate the opportunity to speak on the issue of proposed changes to
Senate rule XXII.
The filibuster is widely viewed as one of the Senate's most
characteristic procedural rules. I believe we can all
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agree that the best way to consider a change to Senate rules is to do
so in accordance with existing Senate rules. I believe this 30-hour
debate will follow Senate rules and precedent.
Any attempt to change Senate rules, particularly cloture rule XXII,
should be in keeping with the deliberative rules, precedents and
practices that have been the hallmark of this institution since it was
conceived during a steamy summer in Philadelphia over 217 years ago.
Senate rules have endured the age-old test of time, people, places,
and events. Senate rules delineate the constitutional responsibilities
of the body and define the character of the institution. Making changes
to the rules and the precedent of the Senate is not an action that
should be taken lightly or for partisan purposes.
In the history of the institution, the rules of the Senate have been
through general revision just seven times: 1806, 1820, 1828, 1868,
1877, 1884, and 1979. The architecture of our Senate rules and
precedents is built on the foundation of the right to debate and amend,
the two basic principles that make the Senate the upper House in all of
the legislative bodies of the world. If you chip and change this
keystone, then you chip and change the Senate as an institution.
Herein lies the central paradox and towering majesty of the Senate.
What makes this institution so revered and unique is what can
simultaneously gall us the most: the practice of extended debate.
But the Founders insulated the Senate from sanction for debate and
explicitly left it to ``determine the rules of its proceedings.''
The rules of the Senate reflect the intent of the Framers that the
Senate be the ``saucer into which the nation's passions may be poured
to cool.'' The ability to fully examine and debate any matter of
national importance is the hallmark of the Senate. Nowhere more than in
the advice and consent responsibility of the Senate do we see the
Framer's intent to balance the fear of a resulting tyranny of a
majority against the principle of majority rule.
As Alexis de Tocqueville observed: ``. . . the main evil of the
present democratic institutions of the United States . . . [arises
from] the very inadequate securities against tyranny . . . if ever the
free institutions of America are destroyed, that event may be
attributed to the unlimited authority of the majorities, which at some
future time may urge the minorities to desperation. . . .''
The President nominates, but his power is balanced, and checked, by
the power of the Senate to provide advice and consent. Neither can act
alone. And in the case of the judiciary, the creation of the third,
separate and equal, branch of Government, the powers are deliberately
counterposed.
This is not the first controversy over Senate rules, precedents and
practices of the right to extended debate. Through our history, the
right of extended debate has never been seriously questioned as other
than a vital foundation of our Republic. This right has been a catalyst
for achieving the most remarkable feature of our civilization: the
degree to which we have been able to provide our citizens with, at one
and the same time, both great freedom and great stability.
As Robert Caro, author of ``The Master of the Senate,'' for which he
was awarded his second Pulitzer prize, has observed, and I quote him,
``in creating the new nation, its founding fathers, the framers of its
constitution, gave its legislature not only its own powers specified
and sweeping, but also powers designed to make the Congress independent
of the President, and to restrain and to act as a check on his
authority, including power to approve his appointments, even the
appointments he made within his own administration. And the most potent
of these restraining powers the framers gave to the Senate.''
The power to approve Presidential appointments was given to the
Senate alone. A President could nominate and appoint Ambassadors,
Supreme Court justices, and other officers of the United States, but
only with the advice and consent of the United States Senate. This is
the American way and it must remain the American way. While the
Founding Fathers recognized the inherent dangers in granting a minority
of Senators a veto over the will of the majority, the Constitution did
just that.
But proposals to limit debate would change that.
S. Res. 138, a proposal by Majority Leader Frist, would amend Senate
rule XXII to provide for a declining number of votes required to invoke
cloture on Executive Calendar items, such as judicial nominations.
I have deep reservations about Majority Leader Frist's resolution to
amend Senate rule XXII. I fully appreciate the majority leader's desire
to expedite the business of the Senate. I fully understand the
frustration with respect to the deep desire to invoke cloture on
Executive Calendar items, including executive nominations such as
judicial nominations.
But there is simply no crisis facing our judiciary today that
necessitates the damage to the very fiber of this institution that such
a rules change would render. The vacancy for the Federal judiciary is
at its lowest level in 13 years.
Since President Bush came into office, the Senate has confirmed 168
of his nominees and has decided not to proceed with only 4. That is a
98 percent success rate for the President. In my view, this is a great
success rate.
The Senate must not act to change its rules. To do so now would
amount to a ``hijacking'' of the Senate's constitutional duty to
provide advice and consent to the President's nomination authority. The
supermajority requirement is consistent with the intent, spirit and
language of the Constitution.
S. Res. 138 presents the question of whether rule XXII should be
revised to accommodate a targeted remedy for filibusters of judicial
nominations. The real question should be whether S. Res. 138 strikes
the most appropriate balance between existing Senate rules and the
advice and consent duties of the Senate. In the view of this Senator,
it does not.
The cloture rule exists by virtue of the longstanding rules of the
Senate enacted pursuant to authority under the Constitution, article I,
section 5.
The Constitution expressly authorizes such procedural rules and sets
no standard to limit the Senate's discretion in formulating such rules.
Further, the Constitution does not compel the Senate to take any
action, much less a final vote, on any matter, legislative or
executive.
There is no argument to the fact that the Senate has plenary
authority to devise its own rules. Nor is there any argument to the
fact that there is no right to mandatory majority rule. Most
importantly, the Senate tradition on filibuster offends no
constitutional edict. In the words of Chief Justice Burger, ``there is
nothing in the language of the Constitution or history or our cases
that require a majority always prevail on every issue.''
At its most fundamental core, the Senate is a testament to the
coexisting rights of the majority and the minority. Small states have
an equal say in the Senate's tradition, and rules protect debate no
matter whether it is a principled stand of one Senator or a chorus of
the convinced. The Senate rules balance majority rule with minority
right.
As a Senator in this body, I recall watching the Senate as a very
determined minority insisted on their right to be heard on the issue of
civil rights. Their position on civil rights was unfair, unpopular, and
illegal. Yet the majority of Senators did not question the right of the
minority Senators to assert their right under Senate rules and
precedent to debate, delay, diminish or defeat civil rights
legislation. And, the minority did so for years.
Ultimately, both the noble principles of racial equality and extended
debate prevailed in the Senate. But the Senate rule that had been long
thwarted was left essentially unchanged.
Prior to 1917, there was only a century old rule that required
unanimous consent to cut off debate. This means that for 111 years, the
Senate practice of extended debate was absolute in its
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scope. All Senators had to consent in order to bring consideration of a
matter to a close. For the subsequent period of 58 years, two-thirds of
the Senate were required to end debate. Currently, three-fifths are
required. Until 1949, there was no procedure for limiting debate on
nominations in the Senate. For the past 212 years, there has never been
a Senate rule that permits a simple majority to force a vote on any
matter up for consideration, including judicial nominations.
In this historical context, S. Res. 138 would be without precedent to
require a simple majority to invoke cloture, in my view. S. Res. 138
would reduce to a majority vote that Senate procedural rule which girds
the independence of the coequal judicial branch.
There is an irony to S. Res. 138 that cannot go unstated or
unexamined. It would reform the cloture process only for nominations
and leave cloture for the remainder of the Senate debate as it is.
Arguably, it is precisely in the area of nominations, particularly
judicial nominations, that the Framers intended these powers to be
utilized.
S. Res. 138 would fundamentally alter the nature of the Senate and
the balance of powers created by the Framers of the Constitution. It
would undermine the Senate's role in our constitutional democracy, cede
enormous power to the Executive and upset the deliberate system of
checks and balances intended by the Framers.
S. Res. 138 would fundamentally diminish the Senate's power in
relation to that of the Executive. And if the Senate cedes such power
to the Executive, then I do not think the Senate will ever get that
power back. Of all the issues that the Senate faces now and in future
Congresses--such as war, the economy, health, education, election
reform, jobs--none is more important than this one on Senate rule
changes. Why? Because how we resolve this issue will, in many respects,
determine how we resolve all others.
S. Res. 138 proffers change that is historically significant.
However, S. Res. 138 does not proffer filibuster reform that will
permit ample debate while rejecting delay in perpetuity. Nor does S.
Res. 138 fit squarely within Senate tradition of balancing the right to
debate with the responsibility to conclude the people's business.
Instead, S. Res. 138 would shift the balance of power on advise and
consent to the executive branch. To accommodate this proposal means a
profound change in the Senate as an institution and the character of
the Senate as a body itself.
It reduces the constitutional advice and consent authority, indeed
duty, to a mere rubber stamp of the President's prerogatives. We must
always attempt to find the right checks and balances between a rubber
stamp and a deliberative body on both legislation and nominations. This
is what makes the Senate, as an institution, so powerful, so special,
so unique.
We must remember that during the Constitutional Convention, only
after lengthy debate, was the power to appoint judges committed to the
President as well as to the Senate. Why? John Rutledge of South
Carolina said it best: ``the people will think we are leaning too much
toward monarchy'' if the President is given free rein to appoint
judges.
The final compromise was characterized by Governor Morris of
Pennsylvania as giving the Senate the power to appoint judges nominated
to them by the President. In Federalist 76, Hamilton explained, ``the
Senate's review would prevent the President from appointing justices to
be the obsequious instruments of his pleasure.''
Against this backdrop, I find it quite troubling that Majority Leader
Frist now suggests that we narrow deliberation, debate, and the rights
of the minority with respect to the nomination process and thereby
enhance the ability of the majority to turn the Senate into a rubber
stamp of a President's nominee.
What is at stake in this debate is nothing less than the integrity of
the Senate and the independence of the judicial branch--the deliberate
intention of the Framers to ensure against the excess of the Executive.
In describing the role of the Senate to provide advice and consent to
executive nominations, Roger Sherman noted: ``the Convention, who
formed this Constitution, thought it would tend to secure the liberties
of the people, if they prohibited the President from the sole
appointment of all officers. They knew that the crown of Great Britain,
by having that prerogative has been enabled to swallow up the whole
administration . . . but this government is different, and intended by
the people to be different.''
The real problem here is not constitutional, but rather it is
institutional. Senators must think of themselves as part of an
institution, held together by a common respect for its rules and
traditions. We have a responsibility to the President, the people, and
to the institution.
This is a moment for Senators, as Senators, to stand up for the
Senate.
Those of us fortunate to serve in this body are but its temporary
custodians. We are stewards of an institution governed by rules and
practices that have withstood the test of more than two centuries of
time. Now is not the time to retool the rules to achieve goals that
are, in essence, transient and partisan in nature, no matter how deeply
felt.
When in history has the will of a minority--through extended debate
been able to stop anything that this Nation desired or that had the
broad support of its people? The Senate works its will, extended debate
and all, as it was intended to work--in the words of James Madison--``
. . . to consist in its proceedings with more coolness, with more
system, and with more wisdom, than the popular branch.''
The disagreements that we have over judicial appointments, and over
some legislation, will likely be long forgotten, and of limited
consequence, in years to come. But to change the rules and practices of
the U.S. Senate in the manner that is here proposed, in my view, would
do permanent and lasting damage, not only to this institution but to
our democracy that has served us so long and so well.
I hope that cooler heads will prevail and that the majority leader
will not bring up S. Res. 138 to amend the rules of the Senate.
But if that happens, I urge my colleagues, as Senators, to uphold the
unique authority of the Senate to give equal voice to all States,
indeed to all people, and to forego the political expedience of the
moment in order to ensure the integrity of the Senate, and the
functioning of this Republic, for generations to come.
Mr. LIEBERMAN. Mr. President, in the course of this debate, I have
been deeply disturbed to hear the characterization my Republican
colleagues have given to a filibuster reform proposal Senator Harkin
and I offered nearly a decade ago. They have referred to our proposal,
and our statements in support of it, as precedent for their efforts
here today. As I have said in the past, I believe that is deeply wrong.
To make clear both what our proposal did, and why my Republican
colleagues' characterizations of it are wrong, I thought it would be
worthwhile to make sure the record included testimony I offered to the
Senate Rules Committee this past June. I ask unanimous consent that the
full text of that testimony be reprinted in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement of Senator Joe Lieberman, Senate Rules and Administration
Committee, June 5, 2003
Chairman Lott, Senator Dodd and Members of the Committee. I
greatly appreciate the opportunity to submit this statement
for your hearing record, so that I can share with the
Committee my thoughts on filibuster reform and my previous
efforts on the topic.
In late 1994, I joined Senator Harkin in launching an
effort to encourage Senate discussion of reforming the
Senate's cloture rule. Like Senator Harkin, I had become
increasingly frustrated at the way the Senate's cloture rule
repeatedly allowed a minority of Members to prevent the
Senate's majority from enacting legislation. I felt--and
continue to feel--that the Senate rules should be changed to
prevent a small minority of Senators from bringing
legislation to a halt simply by saying that they will never
end debate. Senator Harkin and I therefore offered a proposal
under which an initial cloture
[[Page 28848]]
vote would require 60 votes, but the requisite number to
reach cloture would decline by three with each of the next
three cloture attempts on the same matter. As of the fourth
cloture vote, 51 votes--a simple majority--would suffice to
invoke cloture.
This was not a partisan effort on our part. Indeed, Senator
Harkin and I offered our proposal after the Democrats lost
their majority status and at a time we therefore fully
understood that our proposal would more often than not--in
the short term, at least--inure to our party's detriment. Let
me say that again: our proposal was not an effort to push
through our own agenda or help our own party. Nor was it a
proposal aimed at carving out special rules for one type of
legislation or Senate action in order to ease enactment or
Senate approval of one particular agenda.
In early January 1995, we offered our proposal on the
Senate floor. After a good debate, the Senate voted on it
and, unfortunately, we lost by a landslide. 76-19. Among
those voting against our proposal were every Member of this
Committee who was in the Senate at the time, including the
current Majority Leader, whose proposal the Committee is
considering today. I considered that an unfortunate result
then, and I continue to consider it so today. Despite the
often troubling ways in which the current Majority has sought
to run the Senate, I still believe the filibuster rule should
be changed so that once Members have had an opportunity to
fully debate and seek to amend measures, the majority can
have its say.
But that is unfortunately not what the Majority Leader's
proposal seeks to do. Indeed, although I expect some will
seek to characterize the proposal the Committee is
considering as akin to the Harkin-Lieberman one, it most
assuredly is not. Our proposal applied across the board--to
legislation and nominations alike. As I already mentioned, it
was the legislative gridlock that motivated us back then, and
that continues to be the real problem caused by the cloture
rules. But my Republican colleagues don't want an across-the-
board reform. As they would have no choice but to
acknowledge, they don't want to give up their own ability to
filibuster legislation, even while they are in the Majority.
That's because, whether it's the patients' bill of rights,
campaign finance reform or a plethora of other issues, they
have launched their own filibusters while in the Majority,
and they just don't want to give up their ability to continue
to do so. Majority rule apparently should only go so far in
their view.
What the Majority Leader's proposal amounts to is a demand
for unilateral disarmament. It is an effort to force the
current minority party to swallow a rules change that allows
this President and his party to carve an exception from the
Senate rules for their out-of-the-mainstream judicial
nominees, while keeping the parts of the cloture rule that
they want to continue taking advantage of. But the issue of
how the Senate operates should not be subjected to such one-
sided demands. We all must work with the rules we have and
seek to apply them fairly and impartially. That's why, as I
said at the time I first made this proposal with Senator
Harkin, even though I support filibuster reform, as long as
the rules are what they are, I'm not going to be the only one
to abandon them. I will continue, as a representative of the
interests of the voters of my state, to live within them and
support filibusters where I think it appropriate.
In short, in contrast to the serious reform effort we made,
this proposal amounts to one party's effort to turn a Senate
rule into a partisan tool--to cherry pick its favored issue
in the name of democracy, while leaving themselves free to
filibuster away on legislative proposals they don't like. I
would welcome more company in the effort to engage in serious
reform of the cloture rules so that we all--Republicans,
Democrats and Independents alike--can make the Senate work
better for the American people. But this unfortunately is not
that effort.
Mr. SANTORUM. Mr. President, this is a very historic time for our
country. Until this Congress there had never been a filibuster of a
circuit court nominee in the history of this country. Thus far we have
had four filibusters of highly qualified judicial nominees this year
and may have two more by the end of this week. It is not the intent of
the Constitution to confirm a nominee with 60 votes but to confirm with
a simple majority. Whether we vote a nominee up or we vote them down,
it is our duty to bring them for a vote and to represent the will of
the majority in the advice and consent role of the Senate in relation
to the President's nominees. If the minority would like to create a 60-
vote requirement, then they should respect the Constitution and
introduce a constitutional amendment to do so--and build the necessary
support for it around the Nation--rather than through this backdoor
assault. The precedent that is being set through this abuse of the
filibuster is a dangerous and destructive one for future Presidents,
future nominees, and most importantly the future of the Judiciary.
As we look at the nominees that have faced obstruction, I ask what
makes these nominees ripe for such unprecedented obstruction in our
country's history? The most recent judicial nominee to experience this
assault is California Supreme Court Justice Janice Rogers Brown. I
spoke on the floor a few weeks ago of the cruel treatment that Justice
Brown has had to endure. Ms. Brown was recently degraded by a
stereotypical cartoon on blackcommentator.com. The cartoon has
President Bush and Justice Brown walking into a room and the President
saying, ``Welcome to the Federal bench, Ms. Clarence--I mean Ms. Rogers
Brown, you'll fit right in.'' In the background are Justice Thomas,
Colin Powell, and Condoleeza Rice. The bottom says, ``News item: Bush
nominates Clarence-like conservative to the bench.'' Left oriented
groups opposing the President's nominees did not condemn this
distortion.
In Justice Brown's Judiciary Committee hearing, she responded to this
cartoon saying, ``But while I've been having those meetings, people
have said to me: `Well, you know, it's not personal, it's just
politics, it's not personal.' And I just want to say to you that it is
personal, it's very personal--to the nominees, and to the people who
care about them.'' It doesn't get more personal than this. Brown is a
very intelligent woman who is a Supreme Court Justice in our Nation's
largest State, was re-elected to her seat with 76 percent of the public
vote, possesses a stellar educational record and has a great judicial
reputation. However, in order to fulfill her dream and the President's
wishes, she must subject herself to unfair personal attacks and
embarrassing degradation.
Carolyn Kuhl, another female judicial nominee, also faces harsh and
unwarranted criticism in her nomination for the Ninth Circuit Court of
Appeals, a circuit court that even Senator Schumer admits is way too
liberal and is the most overturned circuit of the 13 circuits. The
Judicial Conference of the United States has declared this vacant seat
a ``judicial emergency.'' But this is not even the main crisis for this
court. This court gave us the notorious Pledge of Allegiance decision
that Democrats joined Republicans in disavowing. Our friends on the
other side of the aisle stress the importance of appropriate balance on
the court. This court has 17 judges appointed by a Democratic President
and 8 appointed by a Republican President. It seems apparent that Judge
Kuhl would be a perfect candidate to better balance a court tipped
extremely to the left. Judge Kuhl, like the overwhelming majority of
President Bush's nominees, has received a ``Well Qualified'' rating
from the ABA, the ``Gold Standard,'' previously deferred to by
Democrats in the Judiciary Committee. However, Judge Kuhl has been
receiving unfair treatment from leftist special interest groups seeking
to control the nominations process through the historically
unprecedented misuse of the filibuster. They criticize Kuhl's role in a
1986 case in which the Government filed a brief stating President
Reagan's position that Roe v. Wade was wrongly decided.
Rather than be criticized, Judge Kuhl should be praised for
fulfilling her ethical duty to her client. Her job was to represent the
President's position before the Supreme Court. Rule 1.2b of the Model
Rules of Professional Conduct state that ``[a] lawyer's representation
of a client, including representation by appointment does not
constitute an endorsement of the political, social, or moral views or
activities.'' The hypocrisy of those opposing her nomination lies in
the fact that they have not objected to past nominees who were
attorneys on the same government brief. Furthermore, Judge Kuhl is
supported by a wide range of pro-choice supporters who strongly believe
that she will uphold the law. So, as I have asked before, what makes
Judge Kuhl so special that warrants obstruction as a judicial
appointee?
Then, there is Priscilla Owen. Justice Owen was nominated for the
Fifth Circuit Court of Appeals by President Bush in May of 2001.
Justice Owen was
[[Page 28849]]
elected by 84 percent of the voters of Texas to the Texas Supreme
Court. This vacancy has been declared a ``judicial emergency'' by the
Judicial Conference of the United States. She has yet to have an up-or-
down vote. She has significant bipartisan support, including from three
former Democrat judges on the Texas Supreme Court and a bipartisan
group of 15 past Presidents of the State Bar of Texas. Owen is yet
another nominee who has received a unanimous ``Well Qualified Rating''
from the ABA. Critics argue that she has strong views on abortion, but
she has always interpreted the law faithfully by applying statutes
enacted by the Texas Legislature.
Abortion-rights activists claim that Owen's decision to uphold a new
statute that requires girls under the age of 18 to notify their parents
of an abortion is an example of judicial activism. Never mentioned by
these organizations is that not only was Owen upholding a statute
enacted by the Texas Legislature, the U.S. Supreme Court has long held
that parental notification is permissible under the constitutional
right of abortion as dictated by Roe v. Wade. The claims that Owen is a
judge who has and will continue to practice judicial activism are not
true and unwarranted. As of today it will be 917 days since President
Bush nominated Justice Owen. You will not find a more qualified
candidate.
Another nominee who has been waiting more than two years is Charles
Pickering. A nominee for the Fifth Circuit of Appeals, another vacant
seat declared a ``judicial emergency,'' Judge Pickering has been
labeled by some of those across the aisle as ``racially insensitive'',
and that his ``poor'' judicial record reflects this. How is it then
that Pickering has received a ``Well Qualified'' rating by the ABA, the
``Gold Standard'' according to Democrats on the Judiciary Committee, to
serve on the Fifth Circuit Court of Appeals? Many of Pickering's
colleagues, civil rights leaders, and Democratic leaders from his own
State attest to Pickering's remarkable record on race. James Charles
Evers, brother of slain civil rights leader Medgar Evers, has endorsed
Pickering by saying ``As someone who has spent all my adult life
fighting for equal treatment of African Americans, I can tell you with
certainty that Charles Pickering has an admirable record on civil
rights issues. He has taken tough stands at tough times in the past,
and the treatment he and his record are receiving at the hands of
certain interest groups is shameful.'' Along with the false accusations
of racial insensitivity, activists also accuse Pickering as not being
fit to hear abortion cases. Pickering has testified that he is
committed to following Supreme Court Precedent in Roe v. Wade and
Planned Parenthood v. Casey.
Abortion rights activists in their assault on some of the President's
nominees have especially focused their attacks on Alabama Attorney
General William Pryor, nominee for the 11th Circuit Court of Appeals.
General Pryor has been criticized by these organizations as well as
from colleagues across the aisle for what they term ``deeply held
beliefs.'' Earlier this year, I spoke on the floor about General
Pryor's ``deeply held beliefs.'' Criticism of Pryor's beliefs stem from
his views on abortion. These views are, in large part, due to his
background as a devoted Catholic. Being a devoted Catholic requires one
to oppose the practice of abortion, and General Pryor is indeed a
devoted Catholic. As a practicing Catholic myself, I am disturbed at
what is being conceived here. If the Catholic philosophy of having no
leeway on the concept of abortion is preventing General Pryor from an
up or down vote, then we have a constitutional crisis on our hands
which would eliminate tens of millions of Americans from being
considered for Federal judgeships. General Pryor's record speaks for
itself. Though he has criticized the Supreme Court's decisions on
abortion, which is well within his rights as an American citizen, he
has demonstrated a commitment over the years to enforce and uphold the
law as one of the longest serving attorneys general in the Nation.
I fear for the future of the judicial nomination process. Good,
decent people who have outstanding records of upholding the law are
being put through unfair, unjust and unnecessary attacks by people do
not agree with their conservative values. One must ask my colleagues,
why they think the politicization of the Judiciary is in anyone's
interests. At what price do we continue this unfair degradation of
judicial nominees?
We all know the sad ending of Miguel Estrada's nomination. His
qualifications remain outstanding. He came to the United States at age
17 after being born and raised in Honduras. He graduated magna cum
laude from Harvard Law School where he was editor of Harvard Law
Review. He is a former assistant to the Solicitor General and argued 15
cases before the U.S. Supreme Court. He clerked for Supreme Court
Justice Anthony Kennedy, a Justice who does not share Estrada's
conservative philosophies. He received strong support from prominent
members of the Clinton administration whom he worked for.
Are we to believe that documents the administration is unwilling to
share from the Solicitor General's Office are what blocked his
nomination, when all previous living Solicitors General, Republican and
Democrat, signed a letter saying such work products should not be
required to be provided? To do so would only undermine the ability of
the office to represent the Federal Government and the President and
would negatively impact the ability to attract quality lawyers to the
office. We have also discussed time and again the appropriateness of
Estrada's reluctance to prejudge cases at committee hearings. Opponents
knew that they had no basis to oppose his nomination so they chose to
place the burden on the nominee to prove a negative or else to have the
Office of the Solicitor General undermine its independence and
effectiveness.
So what is the answer to why these nominees are receiving
unprecedented unfair treatment? Why are we spending time here arguing
for these candidates that are so well qualified for judgeships? I have
voted for dozens of judicial nominees whose philosophies I do not share
in deference to the President and to the Constitution. I fear the
answer is the belief by a minority of Senators that there is short-term
political gain in filibustering these nominees because some special
interest groups are demanding this. But the long-term cost of this
short-term thinking is tremendous. This unfair obstruction is setting a
dangerous precedent and direction for the future of the Judiciary. The
Constitution has given the Senate the responsibility to defend the
judiciary there is no one else.
Mr. INOUYE. Mr. President, it is most unfortunate that we in the
Senate found ourselves embroiled in a lengthy and costly debate over
four of President George W. Bush's judicial nominations--and make no
mistake: this debate will cost more than is readily apparent.
On a simple level, the preparation for 30 hours of debate on the
Senate floor will translate into hundreds--possibly thousands of man
hours of preparation. My fellow Senators, their staffs, and the myriad
interested civic groups will toil ceaselessly to ensure that both
Democrats and Republicans will be able to get their messages across to
the American people. The media coverage and analysis are likely to be
comprehensive and focused intensely down to the most minute details.
Like a ravenous beast, this spectacle will devour our time, attention,
and energy, until eventually, it consumes itself.
My Democratic colleagues and I are acutely aware of another cost of
this debate: the cost of opportunities lost to the Senate and to the
Nation. Thirty hours of sustained attention could have addressed the
needs of the 3 million citizens who have lost their jobs since the
President took the oath of office. Thirty hours of continuous inquiry
could have finished our constitutionally mandated duty of providing
funds for the Federal Government. Thirty hours of debate could have
broken the logjam on Medicare and Medicaid reform. Any of these goals
would have been worthy of America's time,
[[Page 28850]]
but regrettably, our 30 hours of debate will purchase for us none of
these noble ends.
Instead, our colleagues from across the aisle will have spent this
time on four men and women--four men and women who have jobs. Four men
and women who collectively make a million dollars every year. Four men
and women who have already been the subject of countless hours of
debate in the Senate, and whose records have already been displayed
amply before the American people. Four prosperous men and women against
the millions of American citizens who are unemployed.
By far the highest price of these 30 hours of debate, however, will
be its contribution to the growing rift between people of different
ideological bents. The Senate has always been a place where Senators--a
group as diverse and varied as the people they represent--have been
able to put aside their differences and work for the good of the
country as a whole. As one Senator who has had the privilege of
participating in the life of this institution for over 40 years, I
cannot understand why the majority leadership has brought us to this
point.
My grave concern is tempered only by my hope and confidence that we
will rise above the divisive spirit that provoked today's debate, and
begin to do the work of the Nation and its people.
The PRESIDING OFFICER. Under the previous order, the hour of 8:30
a.m. having arrived, the Senate will begin an hour of debate equally
divided prior to the first cloture vote. Under the previous order, the
last 20 minutes will be equally divided with the first 10 minutes under
the control of the Democratic leader or his designee, and the last 10
minutes under the control of the majority leader or his designee.
Who seeks time?
The Senator from Utah.
Mr. HATCH. Mr. President, let me personally express gratitude and
thanks to Senator Santorum of Pennsylvania, Senator Norman Coleman of
Minnesota, Senator Lindsey Graham of South Carolina, and Senator Jeff
Sessions of Alabama, all of whom stayed here all night last night to
make the points they have made. I personally appreciate it.
Senator Graham asked me to take time to read the full quote of
Senator Leahy that he was not given the benefit of. Senator Leahy said
he was misquoted, so I will read the full quote: This is Senator Leahy
in the Congressional Record of June 18, 1998, regarding delays in
Senate action on judicial nominations:
I have stated over and over again on this floor that I
would refuse to put an anonymous hold on any judge; that I
would object and fight against any filibuster on a judge,
whether it is somebody I opposed or supported; that I felt
the Senate should do its duty. If we don't like somebody the
President nominates, vote him or her down.
Now, that is the correct full statement by the distinguished ranking
member of the committee. Senator Graham wanted me to make sure that the
full statement was put in.
What is involved here is whether or not we are going to abide by the
Constitution because the Constitution is pretty clear on this subject
of advice and consent. This little book right here contains the
Constitution of the United States. In article II, section 2, clause 2,
speaking of the President, it says this:
He shall have Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two thirds of the
Senators present concur, and he shall nominate, and by and
with the Advice and Consent of the Senate--
It goes on to say appoint judges. Now, that is what the Constitution
says. The Founding Fathers knew what a supermajority vote was. They put
that requirement in here, where it was necessary for treaties. It is
very clear to anybody who reads it, and I think any constitutional
scholar, that advice and consent means a vote up or down, a majority
vote up or down.
During the Clinton years, when Democrats were afraid the Republicans
were going to filibuster their nominees, Democrat after Democrat got up
and said we should not filibuster, vote up or down one way or another.
If my colleagues do not like a judge, vote against him or her. A lot of
those quotes have been put in the record during this 40-hour debate.
The fact is, when push comes to shove, when it becomes to their
political advantage to stop people on the floor of the Senate, they
start filibustering.
This business of one-man filibusters, that is pure bunk. The fact is,
everybody who came to the floor got a vote up or down. Now, there were
a few on our side who wanted to filibuster some of those judges because
they were so liberal, but I personally stood up in our conference and
in our caucuses, as did Senator Lott, who was then the majority leader,
and said that is not going to happen because that is constitutionally
unsound. Plus, it is not right.
But it has happened, as our colleagues on the other side have not
been able to stop themselves from taking political advantage.
Why are they doing this against these six people? I get a kick out of
the use of 168 to 4. Today it is 6. What will it be tomorrow? I can
tell my colleagues the number is going to go up continuously because
they do not want anybody on these circuit courts of appeals who may be
pro-life. That is what this is all about. It is about abortion.
Otherwise, how could anyone find one fault with Priscilla Owen? I do
not even know what her position is on abortion. I know that question is
not asked by the White House or by us. I do not know what her position
is.
What fault can my colleagues find with a woman who was No. 1 on the
bar exam in that State and who broke through the glass ceiling for
women? Now, women are partners in law firms, where before they could
not get secretarial jobs half the time. It was terrible what women went
through. She was one of the people who broke through that problem. She
won 84 percent of the vote in Texas, which is not particularly a
Republican State, although it is fast becoming one looking at what is
going on up here, just like Alabama is becoming a Republican State when
they see the injustice and unfairness going on here.
Priscilla Owen won 84 percent of the vote; every newspaper in that
State ran editorials supporting her, and yet she is being treated like
dirt here. Why? Because in a dissent she would have upheld the rights
of a parent to have notification that those parents' child was about to
have an abortion. Eighty-two percent of the American people believe
that is the right thing to do. She was merely evaluating whether the
lower court finder of fact in that parental notification case had made
an error, and he hadn't, so she thought that the factfinding judge
ought to be upheld. What is wrong with that?
Going to Janice Rogers Brown, Janice Rogers Brown won 76 percent of
the vote in her reelection, more than the leading liberal then on the
California Supreme Court, Stanley Mosk. Mosk was a liberal voice on the
court. He got 68 percent. Janice Brown got 76 percent. Now, I know if
this was reversed and Mosk was the one who was nominated by a Democrat
President, the Democrats would be arguing that he got 68 percent of the
vote and that we should just confirm him. And we, as Republicans,
probably would if we concluded that he was competent, had a good
temperament, was intelligent enough to do the job, was honest and a
person of integrity, even though we disagree with him on many issues.
My contention is that the fact that a person may be pro-life is
irrelevant, or the fact that a person is pro-choice is irrelevant if
that person is otherwise qualified for these Federal judgeships. If we
get to the point where we stop people because of one litmus test issue,
Katie bar the door, it is going to politicize the Federal judiciary in
a way that never should happen.
Janice Rogers Brown is the justice who wrote a majority of the
majority opinions last year in the California Supreme Court. She also
joined in unanimous opinions, I think around 73 times. There is no
question she is in the mainstream. That just has become a bad
redefining of terms by our friends on the other side. Since they do not
have any real arguments against these people, they will say, well, they
are outside the mainstream of American jurisprudence. Well, that is
just pure bunk and everybody knows it.
What about Carolyn Kuhl? Carolyn Kuhl has 100 of her fellow judges on
the
[[Page 28851]]
California Superior Court, Democrats and Republicans, vociferously
supporting her as somebody who would make an excellent judge on the
Ninth Circuit Court of Appeals, which has a tremendous imbalance.
Senator Schumer is constantly talking about imbalance, that we should
balance up the courts, liberals and conservatives being equal. Well,
there are 17 Clinton and Carter nominees and judges on the ninth
Circuit Court of Appeals. I believe there may be eight judges on that
court nominated by Republican Presidents.
If that is the case, if they really want balance, why oppose even
voting on Carolyn Kuhl, one of the leading scholars in America? What do
they hold against her? When she was a 28-year-old, a junior lawyer in
the Department of Justice, doing the bidding of the then-President,
Ronald Reagan, she actually helped write some of the briefs which she
would do in the normal course of events--anyone would do, even if you
do not agree, because that is your job--on some issues that our friends
on the other side do not appreciate. Again, it comes down to abortion.
I was talking to one of the leading civil rights ministers who during
the 1960s was threatened every day. He was head of the ACLU in
Mississippi, a liberal Democrat who has been in some of the Democrats'
meetings, during which they've plotted their mistreatment of the
President's nominees. He said to me: Senator Hatch, you are absolutely
right--he is pro-choice, by the way, but he sees the injustice of this
as he came out in support of the judge. He said: Senator Hatch, you are
absolutely right, this is all about abortion.
We do not know where these nominees stand on abortion, at least I
don't. I have had discussions with all three of them and never asked
the question. Whether pro-choice or pro-life is irrelevant if they are
otherwise qualified to serve on the courts.
What is being done to these three women we are going to vote on
today? We are not voting on their right to be a judge, we are voting on
cloture, on the right to go forward and have a vote up and down on
these judges. For the first time in history, the absolute first time in
history, we now have filibusters against six incredibly qualified, well
qualified candidates.
During the 8 years of the Clinton administration, time after time,
the Democrats would say: We have a person who is qualified by the
American Bar Association. That is the gold standard, the American gold
standard. The imprimatur of the American Bar Association, that is all
it takes. 377 Clinton nominees got through; one was rejected by a
majority vote on the Senate floor. 377. Amazing how the statistics are
distorting. This talk about 168--that was a hard fought battle on most
of them. It was not at all simple to get them through. Democrats have
politicized everything around here with regard to the judiciary. I
would like to end that by having votes up and down on all judicial
nominees.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. How much time is available to the Senator from Vermont?
The PRESIDING OFFICER. The Senator from Vermont has 30 minutes, and
that includes time for the Democratic leader.
Mr. LEAHY. I obviously will not take that time.
Again, in 29 years here, I have been accustomed to some hyperbole and
some interesting changes of statistics and even quotes. I have great
respect for my dear friend from Utah, but, man, he has hit the trifecta
of the hyperbole in the out-of-context quotes.
Of course, what he does not point out, when I spoke of filibusters on
this floor, I was talking about the one-person anonymous hold
filibuster on Sonia Sotomayor. It was only after a public outcry that
she was allowed a vote and she had overwhelming support in this body--
not somebody who was almost 50-50 or 52-48, she had overwhelming
support. But she was not allowed to get a vote. And even that took 2
years of putting her life on hold. Editorial writers from the right to
the left said: Give this woman a vote. This was a consensus candidate.
We hear about all the ones who got votes. For some reason, there
seems to be a reluctance by my friends on the other side to talk about
the 63 who were never allowed votes. They were blocked because one
Republican would anonymously say no.
I don't find the record of cooperation during the Clinton years to be
anything to brag about. Sixty-three fine men and women were blocked and
never given a vote. In fact, when President Bush took office, there was
an unprecedented number of vacancies in a lot of the circuits. Why? As
testimony before our committee showed, because the nominees were told
by Republican Senators: We think you are great. We think you would make
a good judge. But we have been told we are not allowed to move you
forward, we are not allowed to give you a vote. We are not allowed to
give you a hearing because someday there will be a Republican President
and he will want to fill those vacancies.
Notwithstanding that, when I was chairman, even though it pained me
to do it, I allowed those vacancies to be filled by President Reagan's
nominees, by President Bush's nominees, even though in testimony before
our committee the nominees said they were told by Republicans they
would never be allowed to have a vote.
I don't hear the other side talk about the 63 who were given a one-
person filibuster, anonymously, whether they were judges from
Pennsylvania, Ohio, Missouri, Michigan, or elsewhere. They were blocked
by these one-person anonymous holds. Sometimes it was not too difficult
to realize who the hold was because it was usually from their own
State.
Of course, there were many others. As the distinguished Senator from
Utah has said in his own writings, the Democratic President would
consult with him on different people and he would tell them no, do not
even send this one up, they will not get a vote. So they never came
forward. I guess on inaugural day that consultation stopped.
We have confirmed 168 and held back 4. Is anyone going to tell me
with a straight face that in the Bush administration, with all the
promises they have made to the far right, there are not a whole lot of
pro-life judges in here? Of course there are. Many have been very
clear, saying they were pro-life, but I voted for them because I
believed they could be fair, they would be judicious, they would follow
the law, they would follow the precedence and not their personal
inclinations.
When I hear of the crocodile tears about Ms. Kuhl, saying she was a
young person writing a memo for the Reagan administration, do not hold
that against her--come on. She was not only writing a memo, she was a
spear carrier for Bob Jones University.
Now I know Bob Jones University is kind of a pet of the other side,
but this is a university where the founder and philosophies are anti-
Catholic, anti-Mormon, anti-Black. Yet we are supposed to say, forget
the fact she was anti-Catholic, anti-Mormon, anti-Black in her support
of this, she was only doing her job. She was only doing her job.
A lawyer has a right to follow their conscience. If a lawyer has a
client and says: Go out there and take a position that really should
not be sustained--in this case, a position on Bob Jones University--you
ought to say: No, I quit. I quit. We have seen many instances of that
in the past.
Not counting the time for the leader, how much time remains to the
Senator from Vermont?
The PRESIDING OFFICER. Thirteen minutes.
Mr. LEAHY. I yield 10 minutes to the distinguished Senator from
California.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, I thank Senator Leahy for so many things.
He has been so strong on this whole issue of making sure we do not put
on the bench folks who are so outside the mainstream that they would
set us back. Because you have a very strong position as a top Democrat,
you have allowed to be approved 168 of George Bush's nominees.
He has talked to us in depth, as well as other Members of the
Judiciary
[[Page 28852]]
Committee, about the four, up to now, who the Senator believes are far
outside that mainstream. In order to protect the rights of our people,
this is not some argument about a football game, that you are beating
us 168 to 4. It is about protecting the people we represent, protecting
their rights, protecting their health, making sure they are treated
equally before the law. All the things that we as a great country, the
greatest in the world, have given to our citizenry, could be overturned
if we wind up having a court system that is radical and that moves away
from those freedoms.
So if nothing else, I hope people in America understand that the
Republicans in the Senate are complaining because they did not get all
of their President's nominees. So we have made the point over and over.
Today, we are going to add two more, I believe, to this list and it
will be 168 to 6, for a 97 percent success rate. Why are we doing that?
Why do we think we are going to stop two of these candidates today--
actually, we have stopped a third before and we will do that again.
Because they do not reflect the values of this country in their
decisions. I could go over them one by one; I don't have the time to do
that. And they would be dangerous.
Here is the interesting thing. We have sitting in the committee two
nominees who cleared the committee, Mark Filip and Gary Sharp, one from
Illinois, one from New York, and all you have to do is bring those out.
They have full support. You will be back up to 98 percent before the
day's end.
I say to my friends, I do not deserve to be a Senator if I do not
exercise the power our Founders gave us explicitly in the Constitution,
the power of advice and consent. It does not say sometimes advice and
consent. It does not say maybe advice and consent. It does not say if
you feel like it. It does not say if there is a Democrat in power or
Republican. It says the Senate has the power to advise and consent.
This does not mean rolling over for any Member.
That is the key point. Do the people of America want a rubberstamp
Senate or do they really want Senators who take their responsibility
seriously and look at each nominee seriously?
The power we were given is a very important power. I will explain
that to the people of my State. If they want a Senator who will be a
rubberstamp for a President of either party, they need to think long
and hard about Senator Boxer because I am not their girl. I am not
going to do that. That is not why I am here.
So anyone reading the Constitution knows that Senator Leahy and
members of the Judiciary Committee--and I see the Senator from Illinois
here--they are just doing their job.
The Republicans have spoken almost 40 hours. I lost track after 30
hours. They are telling us essentially: Don't do your job; be a
rubberstamp. We are not going down that path.
I am happy to yield.
Mr. DURBIN. I know we are coming to the breathless close of this
wonderful marathon, this made-for-TV filibuster.
I ask the Senator through the Chair the following question: Is the
Senator aware in the early hours this morning Republican Senators from
Kansas and Pennsylvania came before the Senate and raised the question
of whether the Constitution includes the right to privacy? According to
the Senator from Kansas, he referred to it as the discovered right of
privacy in the Constitution.
I would like to ask through the Chair if the Senator from California
could reflect on the right to privacy, particularly as it relates to
one anomaly from her State, Carolyn Kuhl.
Mrs. BOXER. Absolutely. I will show the number of women's
organizations who oppose Carolyn Kuhl. I am glad the Senator raised
this question.
It is particularly interesting that today we have three women before
the Senate. I say to my colleagues from both sides of the aisle, as a
woman who has been in public life, actually elected to my first office
in 1976, making sure that women have an equal opportunity, making sure
that women move into positions of leadership has been one of the
hallmarks of my career.
Now we hear people on the other side saying anyone who votes against
these women is not in favor of women.
Let me state from the bottom of my heart--and I will get to that
issue of privacy--the worst thing that can happen to the women of this
country--to your daughters, to your nieces, to your aunts, to your
grandmothers, for that matter, to your moms--the worst thing is to have
a woman in power who rules against the interests of women. Carolyn Kuhl
is one such woman. Janice Brown is one such woman. And Priscilla Owen.
And those are the three who come before the Senate today in a package.
Each of them, if you look at their decisions, has been hostile to
women.
I will talk about the Carolyn Kuhl case. Before Carolyn Kuhl, as a
sitting State judge, comes a case in which a woman is explaining that
she went to a physician for a followup mastectomy examination, a very
humiliating, difficult, painful moment for that woman. That woman has
written us and her story is in the Record. I have placed it in the
Record.
The woman simply said to Judge Kuhl: My privacy was violated because
I went to my doctor and the doctor allowed in the room a drug salesman.
The doctor did not ask me, the doctor never told me.
This drug salesman was leaning over the table, was fanning this woman
with a fan, was involved in this intimate exam.
Every woman in this country knows that if that happened to them, they
would be humiliated beyond belief. This woman had the courage to sue.
Carolyn Kuhl ruled against the woman, and the excuse is, she allowed
the case against the doctor to go forward. Untrue. That particular case
never was before her. The issue was breach of privacy. She ruled
against the woman. Carolyn Kuhl had to write an apology to the
committee for misstating what actually had happened.
Mr. LEAHY. Will the Senator yield?
Mrs. BOXER. Yes.
Mr. LEAHY. In other words, under this ruling, if the doctor had
invited his auto mechanic because he might like to watch breast exams,
put him in a white coat, it would be the patient's fault for saying: By
the way, is this another doctor? Is this your auto mechanic?
Mrs. BOXER. My friend is right.
Mr. LEAHY. Frankly, I would hope I could say to my wife or my
daughters, there would be a right of privacy issue here. For those who
say there is no privacy in a case such as this, they have never been in
a doctor's office for an examination.
I yield back to the Senator from California.
Mrs. BOXER. Let me say that, fortunately, her decision was overruled
unanimously by the State appellate court. This is the State appellate
court. There are lots of Republicans on that court. They saw this was a
terrible decision.
Here is the list of women's groups against the nomination of Carolyn
Kuhl. It includes Breast Cancer Action, Breast Cancer Fund--on and on--
Women's Leadership Alliance. And the same list--actually a few
different names, for Janice Brown and for Priscilla Owen. These women
do not care about women advancing. They have not cared about the equal
rights of women.
Let's have some backbone here and stand up when we think these
nominees are good for the people and oppose them when we know they have
been bad for the people and they will do worse yet.
The PRESIDING OFFICER (Mr. Smith). The Senator's time has expired.
Who seeks time?
Mr. LEAHY. Mr. President, what is the time remaining?
The PRESIDING OFFICER. The Senator from Vermont has 2 minutes 13
seconds; the Senator from Utah has 8 minutes 12 seconds.
Mr. LEAHY. Well, and there is time reserved for the two leaders?
The PRESIDING OFFICER. There are 10 minutes each for the majority
leader and the minority leader.
Mr. LEAHY. Mr. President, over these past 24 hours, the American
public has heard a lot of what one could
[[Page 28853]]
generously describe as wishful thinking from the other side of the
aisle about the history of the Senate in considering nominations,
especially recent history of Republican obstruction when a Democrat was
in the White House. Their efforts to re-write American history and the
history of this Senate remind me of the old Soviet Union, re-writing
its history books to suit the ruling party and erasing photos that
would reveal inconvenient facts. Their misleading and wrong assertions
have been made over and over and over again, perhaps in the hope that
repetition would turn those falsehoods into fact. I think it is
important for posterity to set the record straight.
Last night, echoing Republican press conference, Republicans took to
the floor to claim that no judicial nominee had ever been filibustered
or blocked from getting a confirmation vote in the history of the
Senate. They made these assertions repeatedly while pointing to signs
with the number zero printed on them. They refused to acknowledge that
any judicial nominee has ever been filibustered, that any has ever been
denied a confirmation vote, that any nominee for even a short-term
position has ever been filibustered on the floor or filibustered in
Committee. The repeated the party line from GOPUSA that ``no federal
judicial nominee by the past 42 presidents has been filibustered in the
history of the U.S. Senate dating back to 1784.'' I ask unanimous
consent to place the following excerpt from the New York Times from
1968 into the Record about the filibuster in the Senate over the
nomination of Justice Abe Fortas to be Chief Justice of the Supreme
Court, a letter signed by more than 60 law professors from across the
country in support of the use of the filibuster of judicial nominees,
and an important and outstanding letter from Professor Michael Gerhardt
which thoroughly addresses the specious arguments being made about the
use of the filibuster under our Constitution. I hope that this evidence
would cause some of my colleagues to reconsider some of the false and
misleading statements made by my colleagues on the other side of the
aisle. One can always hope.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Sept. 25, 1968]
Precedent for Judicial Filibusters
Critics of Fortas Begin Filibuster, Citing ``Propriety''
Griffin Attack Lasts 3 Hours--Mansfield Backs Justice, but Scores
Lecture Fee.
____
May 16, 2003.
Hon. Bill Frist and Tom Daschle,
U.S. Capitol,
Washington, DC.
Dear Senators Frist and Daschle: As law professors, we
write to express our opinion that the Senate's use of the
filibuster with respect to both legislation and nominations
is constitutional. Both the text of the Constitution and
historical practices strongly support the constitutionality
of the filibuster. Article I, Section 5 expressly provides,
``Each House may determine the Rules of its Proceedings.''
Article I, Section 5 plainly authorizes the Senate to make
procedural rules. It empowers the Senate as well to delegate
what is sometimes final authority over the fate of
legislation and nominations to committees and their chairs.
The textual authority for the filibuster is precisely the
same as those for these other measures. If these measures are
constitutional, then so too is the filibuster.
The Supreme Court has repeatedly emphasized the relevance
of historical practices for determining constitutionality.
The filibuster, understood as protracted debate precluding
final Senate consideration of a legislative matter, began
early in the history of the Republic. It has been used
frequently by senators from both parties with respect to
nominations as well as legislation. In fact, it has been used
effectively to defeat presidential nominations, including the
nominations of Abe Fortas to be Chief Justice of the United
States in 1968, Sam Brown to be Ambassador in 1994, and Henry
Foster to be Surgeon General in 1995. This longstanding
historical practice weighs heavily in support of the
filibuster's constitutionality.
The filibuster reflects the Senate's longstanding respect
for minority views and underscores the unique role of the
Senate as a part of American democracy. It has the salutary
effect of giving an incentive to all sides to seek compromise
on issues where points of view are sharply divided. With
regard to nominations to an independent branch of government
such as the judiciary, the filibuster encourages the
President to find common ground with the Senate by nominating
individuals who can garner consensus.
For these and other reasons, we conclude the filibuster is
constitutional.
Very truly yours,
(Signed by 60 Law Professors).
____
University of North Carolina
School of Law,
November 10, 2003.
Hon. Patrick Leahy,
Dirksen Senate Office Building,
Washington, DC.
Dear Senator Leahy: I understand that this week the
Republican leadership will be coordinating thirty hours of
debate about the legitimacy of the recent filibusters against
three of President Bush's judicial nominees. To assist you
(and the Senate) in this debate, I have taken the liberty of
providing below a revised version of my testimony earlier
this summer on behalf of the filibuster. The revised
testimony reflects my thinking and research on the subject
since my testimony in May and June. My continued thinking and
research on the filibuster have clarified further the solid
constitutional foundations for filibustering judicial
nominations. My hope is that this revised testimony may help
to set the record straight on the Senate's longstanding
commitments to allowing the filibuster (against all kinds of
nominations) and to amending its rules in accordance with its
rules.
executive summary
The filibuster derives its authority from the Senate's
express power to design its own procedural rules to govern
its internal affairs and the Senate's consistent support for
its legitimacy. It is also one of many counter-majoritarian
features of the Senate, including the committee system and
unanimous consent requirements. If these practices are
constitutional, then so too is the filibuster.
While there have been many criticisms directed against the
filibuster in recent months, none has merit, in my opinion.
First, the most popular arguments against the filibuster are
circular, i.e., they simply assume their conclusion. The
arguments presume that some constitutional principle, such as
majority rule or anti-entrenchment, trumps the filibuster.
Then, operating from this premise, they set out to
demonstrate flaws in the arguments of the defenders of the
filibuster. Yet, exposing flaws in the other side's arguments
does not make an affirmative case for a constitutional
principle of majority rule or anti-entrenchment; it merely
shows imperfections in the defense of the filibuster. The
absence of support for the other side does not establish the
legitimacy of the case against the filibuster. Those
maintaining that the filibuster is illegitimate must show the
constitutional foundations for the principles on which they
are relying. Second, the arguments against the filibuster--
e.g., it violates majority rule--cannot be squared with the
constitutional structure as it was designed or has evolved.
Third, Article I of the Constitution contains no explicit or
implicit anti-entrenchment principle that would preclude the
Senate from adopting, for the sake of institutional stability
and order, certain procedural rules that carry over from one
session to the next and may only be altered with super-
majority approval. In fact, entrenchment is far more
consistent with our constitutional structure than anti-
entrenchment is. Entrenchment is much more the rule rather
than the exception in the legislative process. Even
legislative bodies such as the House that formally
reconstitute themselves as the outset of each new session
have pre-set agendas in place prior to any vote as to how
they should proceed to reconstitute themselves, what they
should do once they have formally reconstituted themselves,
the committees to which members need to be assigned, how
those assignments may take place, the jurisdictions of those
committees, and even the rules they may select under which to
operate. Moreover, given that only a third of the Senate is
up for re-election at any one time, there is no ``new''
majority that comes into power at the outset of a session who
can credibly claim any entitlement to vote on the rules under
which it would be operating throughout the session.
The filibuster is best understood as a classic example of a
non-reviewable, legislative constitutional judgment. It is a
practice that has the same claim to legitimacy as many
countermajoritarian practices within the Senate, including
the committee structure and unanimous consent requirements.
The Constitution permits all of these practices, but it does
not mandate any of them. These practices define the Senate's
uniqueness as a political institution, particularly its
historic commitments to various objectives--respecting the
equality of its membership and to minority viewpoints;
encouraging compromise on especially divisive matters; and
facilitating stability, order, and collegiality in the long
run. The principal checks on these practices, including the
filibuster, are political. They include the Senate Rules, the
need to maintain collegiality within the institution, and the
political accountability of senators for their support for,
or opposition to, filibusters.
[[Page 28854]]
I.
Neither the Constitution nor the Senate Rules expressly
mention, or mandate, the filibuster. Nevertheless, the best
starting place for understanding the authority for the
filibuster is Article I of the Constitution, which governs
and defines the powers of the Congress. In Article I, section
5, the Constitution provides, ``Each House [of the Congress]
may determine the Rules of its Proceedings.'' This section
plainly authorizes the Senate to make procedural rules,
including but not limited to the length of debate in the
Senate. This section further authorizes the Senate to
delegate official responsibility to smaller units (and even
individual members) within the Senate. Many of these
delegations allow committees and their Chairs to have what is
sometimes final say over the fates of legislation and
nominations. This same authority provides the support for
many informal senatorial practices such as senatorial
courtesy--in which individual senators may make
recommendations to the President on the people whom he should
nominate to federal offices in their respective states--as
well as the blue-slip process that has traditionally allowed
individual senators with the means by which to nullify
nominations to judgeships within their respective states. In
addition, a single senator may place a ``hold'' on
legislation or a nomination, postponing consideration to a
later date. The filibuster derives its legitimacy from the
same authority that allows for each of these other
legislative practices--Article I, Section 5, which empowers
the Senate to implement procedural rules, including the
specific rule governing the procedure for cloture, Rule XXII.
If these practices are constitutional, then so too is the
filibuster.
The other, possible authority for the filibuster is
historical practices. The filibuster has been employed, in
one form or another, as extended debate in the Senate
throughout the history of the Senate. In fact, ``the
strategic use of delay in debate is as old as the Senate
itself. The first recorded episode of dilatory debate
occurred in 1790, when senators from Virginia and South
Carolina filibustered to prevent the location of the first
Congress in Philadelphia.'' While the First Congress allowed
a so-called motion for the previous question which could not
be debated, its name was misleading. In practice, ``the
previous question motion was seldom used before the Senate
abolished it in 1806;'' and it rarely succeeded in silencing
those senators determined to continue the debate. Instead,
the motion tended, once made, to end debate by requiring the
removal of the matter being debated from the Senate agenda.
Thus, it did not force a vote but rather forced the Senate to
move onto other business. Moreover, the availability of this
motion did not prevent the Senate from continuing to permit
protracted debate to delay floor votes. The eminent
biographer Robert Caro explains the history of the filibuster
subsequent to the abolition of the previous question motion:
``For many years after 1806--for 111 years, to be precise--
the only way a senator could be made to stop talking so that
a vote could be taken on a proposed measure was if there were
unanimous consent that he do so, an obvious impossibility.
And there took place therefore so many `extended discussions'
of measures to keep them from coming to a vote that the
device got a name, `filibuster,' from the Dutch vrijbuiter,
which means `freebooter' or `pirate,' and which passed into
the Spanish as filibustero, because the sleek, swift ship
used by the Caribbean pirates was called filibote, and into
legislative parlance because the device was, after all, a
pirating, or highjacking, of the very heart of the
legislative process.''
In other words, the practice in the Senate from 1806 until
1917 allowed the smallest minority possible with the Senate--
a single senator--to bar a floor vote on any legislative
matter by engaging in an extended speech. During this period,
every floor vote required unanimous consent.
The Senate first, formally curbed the practice of endless
debate in 1917, after eleven senators had successfully
filibustered President Woodrow Wilson's proposal to arm
American merchantmen against German submarine attacks. At
President Wilson's urging, the Senate passed Rule XXII, which
allows debate upon a ``pending'' matter to be terminated
when, after a petition for such ``cloture'' was presented by
sixteen senators and approved by two-thirds of the senators
present and voting. In subsequent years, senators from both
parties have used the filibuster to block a floor vote on a
wide range of legislation. From 1917 until 2000, cloture was
invoked 193 times out of the 545 times it was attempted.
During the period from 1927 through 1962, the Senate did not
invoke cloture once. In this period, conservative senators
repeatedly used the filibuster to block civil rights
legislation, provoking liberal senators to denounce the
filibuster as illegitimate and conservative senators to
defend it. In the late 1960s and early 1970s, conservatives
and liberals switched positions on the filibuster: Liberal
senators used the filibuster to block centerpieces of
President Nixon's social and economic agenda while many
conservative senators questioned its legitimacy. After Bill
Clinton became president, a series of Republican filibusters
blocked by aspects of his legislative agenda, including a
comprehensive bill providing for national health care reform.
Nevertheless, the filibuster has endured, with the most
recent reform occurring in 985 when a super-majority within
the Senate approved an amendment to Rule XXII requiring only
three-fifths, rather than two-thirds, of the Senate as the
requisite number to invoke cloture.
Throughout the long history of its deployment in the
Senate, the filibuster has not been restricted to delaying
floor votes only on legislation. It has been often used to
thwart presidential nominations. The first, recorded instance
in which it was clearly and unambiguously employed to defeat
a judicial nomination occurred in 1881. At the time,
Republicans held a majority of the seats in the Senate but
were unable to end the filibuster, which had been employed
near the end of the legislative session, the preclude a floor
vote on President Rutherford B. Hayes' nomination of Stanley
Matthews to the Supreme Court. Though Matthews eventually
served as an Associate Justice, it was only because Hayes'
Republican successor, President James Garfield, re-nominated
Matthews in the next legislative session. (There were also
nine other occasions in the nineteenth century when the
Senate held no floor votes on Supreme Court nominations.) A
recent Congressional Research Service study shows that from
1949 through 2002, senators have employed the filibuster
against 35 presidential nominations, on 21 of which senators
had sought and invoked cloture. 17 of the 35 nominations
filibustered were to Article III courts. All 21 nominations
on which cloture was invoked were eventually confirmed. Of
the 14 nominations on which cloture was sought but not
invoked, 11 were eventually confirmed. For instance,
Republican senators filibustered President Clinton's
nominations of Walter Dellinger to head the Office of Legal
Counsel in the Justice Department and Janet Napolitano to be
U.S. Attorney for Arizona, but eventually the Senate
confirmed both nominees--Dellinger after Republican senators
relinquished their opposition to his nomination and
Napolitano after the Senate voted 72-26 on a cloture motion
to end the filibuster against her nomination. Four of the 35
filibustered nominations failed altogether--then-Associate
Justice Abe Fortas to be Chief Justice and Judge Homer
Thornberry to be an Associate Justice in 1968, Sam Brown to
be Ambassador in 1994, and Dr. Henry Foster to be Surgeon
General in 1995. Other nominations have failed without having
been formally filibustered, as Senator Jesse Helms' threat of
a filibuster nullified President Clinton's intention to
nominate then-Assistant Attorney General Walter Dellinger as
Solicitor General. Another dramatic use of the filibuster
occurred when Republican senators filibustered five of
President Clinton's nominations to the State Department in
order to gain leverage in a dispute over whether the State
Department adequately investigated allegations that a former
Clinton campaign worker who later served in the department
had improperly searched the records of 160 former political
appointees and publicly disclosed the contents of two of the
files. As John McGinnis and Michael Rappaport concluded in
their extended study of the Constitution's super-majority
voting requirements, ``the continuous use of filibusters
since the early Republic provides compelling support for
their constitutionality.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. LEAHY. I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I am highly offended, and I think anybody
who is fairminded would be highly offended by this one-sided, partisan
attack on Judge Kuhl, and bringing up that particular case because
everybody knows that case was settled by the woman's doctor, the one
who was at fault. And, frankly, that was hitting below the belt.
Carolyn Kuhl, she is a pioneer for women: cum laude graduate of
Princeton University; Duke University Law School: Order of the Coif;
law clerk to then-Judge Anthony Kennedy of the Ninth Circuit.
She worked at the Department of Justice: Special assistant to the
Attorney General; Deputy Assistant Attorney General; Deputy Solicitor
General.
She was 28 years old when she was asked to work on the Bob Jones
case. I think it is slanderous to say that Republicans support Bob
Jones University's attitudes about race. Give me a break. Nobody on
this side does, and neither did she. The case she worked on was a tax
issue, and she had an obligation to work with her senior people in the
Department. She was very junior at the time. And, frankly, they had a
reasonable argument about a certain IRS tax exemption relevant to
private universities.
[[Page 28855]]
She was a partner in the Los Angeles firm of Munger, Tolles & Olson,
one of the best law firms in the country. She is the first female
supervising judge of the Civil Department of the Los Angeles County
Superior Court.
This is a woman of tremendous abilities. They pick one case out of
the hundreds or thousands she has heard and tried, and then distort
that case. It drives you nuts around here.
``Both Democrats and Republicans . . . step up to the plate to
support [Judge] Kuhl.'' This is Vilma Martinez--not known for
conservative politics, by the way--who is one of the top leaders in the
Mexican American Legal Defense and Education Foundation, if I recall it
correctly. In the Daily Journal this is what Vilma Martinez had to say:
[Judge Kuhl] stepped up to the plate. She wrote letters,
made phone calls and exhorted her fellow Republicans to
confirm [Judge] Paez and other Clinton nominees.
Judge Paez was a very controversial nominee. I know. I had to work it
through to even give him a chance. But he got a vote up and down. And,
unfortunately, some of my colleagues who were against him were right.
He has become a very activist judge on the Ninth Circuit Court of
Appeals, just stepping right in and becoming a member of the leftist
majority on that court.
Vilma Martinez, this Hispanic-American leader, says:
[Judge Kuhl's efforts are] characteristic of her sense of
fairness and respect for an independent judiciary.
She goes on to say:
[M]any of the groups that support Judge Paez, ironically,
have turned their fire on Judge Kuhl, apparently to exact
payback against Senate Republicans.
If you listen to those arguments, it is easy to conclude that.
Then, in the bottom paragraph, Vilma Martinez says this--and Vilma
Martinez is a Democrat, not a Republican--she says:
This turnabout is not fair play. It is the continuation of
a vicious cycle that punishes worthy judicial candidates in a
misguided effort to use the judiciary to further narrow
political ends.
That is the type of stuff we are dealing with around here:
distortions, distortions of the facts, maligning absolutely qualified
people. Look at this. Carolyn Kuhl has the support of pro-choice women.
Anne Egerton, judge on the LA Superior Court:
I understand that some have raised concerns about Judge
Kuhl's commitment to gender equality and reproductive rights.
I do not share those concerns. . . . I have been a registered
Democrat for thirty years, and I have supported--financially
and otherwise--[Senator Feinstein], Senator Boxer, and other
Democratic legislators and candidates. I have no reservations
in recommending Judge Carolyn Kuhl . . . for appointment to
the Ninth Circuit Court of Appeals.
Take Gretchen Nelson, pro-choice Democrat, plaintiff's attorney. On
February 14 she had this to say:
I am opposed to the appointment of any judicial nominee who
is incapable of ruling based upon a considered and impartial
analysis of all of the facts and legal issues presented in
any manner. Judge Kuhl is not such a nominee and she is well-
deserving of appointment to the Ninth Circuit.
Let's quit slandering these people. Let's quit distorting the facts.
All because you think they might be pro-life.
My gosh, look at the women judges who support Judge Kuhl's
confirmation. A bipartisan group of 23 women judges at the Los Angeles
Superior Court, on February 22, said this:
Judge Kuhl approaches her job with respect for the law and
not a political agenda. Judge Kuhl has been a mentor to new
women judges. . . . She has helped promote the careers of
women, both Republican and Democrat. . . . As sitting Judges,
we more than anyone appreciate the importance of an
independent, fair-minded and principled judiciary. We believe
that Carolyn Kuhl represents the best values of such a
judiciary.
Let's get this out of this totally slanderous political debate and
start talking about the real facts.
Democrats on this Floor have tried to confuse the issue, to pretend
that what they are doing is no different than what happened to some of
President Clinton's nominees. But they are dead wrong. They are
comparing apples to oranges. They are different. We did not filibuster
a single Clinton nominee who had majority support. Once on the floor,
all of them received up or down votes. 377 confirmed for Clinton.
Despite the Democrats, not because of them, we have confirmed 168 Bush
nominees.
One Senator went so far as to call the four filibustered nominees, as
of yesterday, lemons, if you can believe it, when all of them have well
qualified ratings from the American Bar Association.
Look at the facts. President Bush has had 29 circuit court of appeals
nominees confirmed, but another 12 of them, at least, are facing
filibusters. I believe that number is really higher, about 17. It is an
amazing, unprecedented series of filibusters of appellate nominees,
what we are going through, and there are more to come.
Let me get the last chart up there. The real facts are that since we
have had the filibuster rule, since the administration of Franklin
Delano Roosevelt, we have had 2,372 judges confirmed and zero
filibustered--until now.
Now, it is one thing to filibuster, it is another thing to slander
these people. I have seen so much of that over the last 2 or 3 years
that I am just sick of it. I am just sick of it.
Let's give these people votes up and down. The reason they will not
is they know there are enough good-thinking people in this Senate on
both sides who would--for all of these six people who are being
filibustered--confirm them on a bipartisan majority.
So a tyrannical minority--which is in so many ways slandering these
people, these honest, decent, good people--is preventing votes up and
down on judicial nominees for the first time in the history of this
country.
Mr. President, how much time do I have left?
The PRESIDING OFFICER. The Senator has 1 minute 15 seconds.
Mr. HATCH. I yield it to the distinguished Senator from Pennsylvania.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I plead with the Members on the other
side of the aisle to stop this. I have folks on our side of the aisle
saying: Don't plead with them. Don't plead with them. Let them do it.
Because we will have our opportunity someday, and we will make sure
there is not another liberal judge ever, ever, to get on that--no more
Richard Paezes, no more Ruth Bader Ginsburgs--never, because what is
good for the goose is good for the gander. Let them up the ante. We
will take all those activist judges they send up and we will shoot them
down.
Is that what they want? Anybody who gives a political opinion in
America no longer will be eligible for the judiciary. We are going to
sanitize the judiciary? We are going to send it to ``Mediocrityville''?
Is that what we really want here?
Because let me assure you, as I live and breathe, that is what will
happen. If we keep this up--it is 4 today; it will be 6--in 2 hours it
will be 6. The Senator from Utah said pretty soon it will be 12. Why it
is only 4? Because you just started. You always start with 1.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. SANTORUM. Stop now. You have a chance to save this country and
this judiciary. Stop now.
The PRESIDING OFFICER. The Democrat leader is recognized.
Mr. DASCHLE. Mr. President, as I understand it, I have 10 minutes.
The PRESIDING OFFICER. The Senator is correct.
Mr. DASCHLE. I would ask the Presiding Officer if he could notify me
when I have used all but 3 minutes.
Mr. President, I find it remarkable that our colleagues can continue
to come to the floor these past 40 hours and lament the fact that we
have had votes on 172 judicial nominees and 4 of them have not been
confirmed because they have not attained cloture. With passion and with
emotion they scream out. Where is the fairness for those four nominees,
they ask. Where is the fairness?
I find it remarkable that some of the very people who lament not
getting a vote for those 4 nominees were participants in the effort to
deny even a hearing to 63 nominees for the bench during the Clinton
administration. Don't talk to me about the unfairness of a cloture
[[Page 28856]]
vote on the Senate floor. Don't talk to me about cloture. Don't talk to
me until you talk about those 63 who waited, in some cases 4 years, and
never got a hearing--or a committee vote.
Denying consideration of judicial nominees is an ongoing practice
that our Republican colleagues have been involved in for as long as
they have been in the Senate. So this extraordinary outcry, this
emotional fervor that we hear so often on the other side, with their
misleading charts, does not bear up to the facts.
You tell those 63 people who have not had even a chance for a vote,
who should have been confirmed, how it is right for them now not to
have the jobs for which they work were nominated--you tell them about
the fairness of those four votes.
We have done all we can to work with our colleagues to accommodate
all nominees. We have now spent 40 hours talking about this matter. And
we have actually spent over 20 days debating judicial nominations since
the Bush administration has come to office, 20 days debating and
largely confirming the nominees sent to us from the White House.
From the beginning of these last 40 hours, our message was really
very simple: We have confirmed 168 of the 172 nominees to date. We have
worked with our colleagues on the other side to do as much as we can to
ensure that they get a fair debate and ultimately an opportunity to be
voted on, whether it is a cloture vote or an up-or-down vote on this
Senate floor--unlike what they did on 63 occasions during the Clinton
administration.
What we have said over the course of these 40 hours, though, is that
it is very unfortunate that while we are debating these four jobs, we
are not debating what the American people care most about. We are not
debating the fact that 3 million people have lost their jobs, or what
to do about it. We are not debating the fact that we are not working on
the things the American people care most about.
Several times we spoke about the need to pass the highway bill, and
our Republican colleagues ignored our concerns. Several times we spoke
about the need to pass the manufacturing jobs credit bill; our
Republican colleagues ignored our concerns. These are bills that could
truly provide the opportunity for the unemployed in this country to
actually acquire a good job and be a little more confident that they
will have a brighter future.
Several times we have asked for an increase in the minimum wage by
unanimous consent so those who are working would get the pay they
deserve.
Republicans objected.
We could have been spending our time a lot more effectively, a lot
more in concert with the expectations of the American people, but that
has not been the case.
We will continue to work with our colleagues, and in those cases
where we can find agreement, we will continue to confirm most of the
Bush nominees. But that will not be the case this morning.
We are now debating three justices who continue to insist on putting
their own views above the law, to interpret law on their own and
without regard to judicial precedent.
As a result, virtually every single women's organization and every
single civil rights organization in the country has urged the Senate,
pleaded with all 100 Senators to reject these nominations.
I am very grateful for the effort made by our Democratic colleagues
on the Judiciary Committee who have put the time and effort they have
into analyzing the record of these nominees and have concluded, as I
have, that they do not warrant confirmation.
Mr. President, there will come a day, once again, when we can find
nominees for whom there can be agreement. But until that happens, until
we have the confidence that we can look upon them with an expectation
that they will uphold the law, interpret law and not write the law, we
have no other recourse but to oppose their nominations, as we will this
morning.
I yield such time as he may require to the distinguished Senator from
New York.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Thank you.
Mr. President, I thank my colleague from South Dakota for once again
being our leader in every way. We are grateful to him, and I think I
speak for every Member on this side of the aisle.
Mr. President, this debate ends as it began, with this one immutable
fact: 168 to 4; 168 judges confirmed, 4 rejected.
The other side has spent 39 hours trying to come up with other signs,
trying to come up with other ways. In reality, this debate has actually
helped our side because this fact stands out above all others.
Are we being obstructionist when we approve 168 and reject 4?
Everyone but the most extreme of Americans say absolutely not. Are we
violating what the Founding Fathers wanted when they talked about
advise and consent when we merely blocked 4, 2 percent of the 100
percent of the judges brought up? Every seventh grader who studies
constitutional law knows that 168 to 4 is not obstructionist.
The bottom line is the other side has spent hours on sophistry,
successful filibusters are wrong, but unsuccessful filibusters are OK
because they engaged in filibusters on judicial candidates in 2000 and
1994 and previously. Filibusters of judges are unconstitutional, but
filibusters of statutes, of laws, of bills are perfectly OK. What
sophistry.
The bottom line is that the other side comes up first with the result
and then tries to make the argument backward. I understand why. The
small hard-right minority has a scorched earth policy in America. They
have to get everything their way and then are pushing, pushing, pushing
the other side. They are saying: Do something. But, frankly, because of
the wisdom of the Founding Fathers, the Senate still is the cooling
saucer, and there is nothing they can do.
This debate has degenerated. To try and get this to be 172 to 0,
there is name-calling: anti-Hispanic, anti-Black, anti-Catholic. We
know what low and cheap shots those are. We are opposing judges based
on their being out of the mainstream, judges who would make law, not
interpret law. I don't like judges far left or far right who do that.
Then last night we got from my good friend from Utah, whom I love, he
says calling for rollcall votes was obstructionist. That is how absurd
and how frustrated and how piqued the other side has been. Calling for
rollcall votes on judges is obstructionist? I say to my colleagues, we
on this side would have rather spent the time debating how to bring
jobs back to America, how to bring health care to America, how to raise
the minimum wage.
But at the end of the day, this exercise, come up in the mind of a
few, has ended up benefiting us, and there is one solution, I say to my
good friend from Pennsylvania, who pleads earnestly----
The PRESIDING OFFICER. The Senator's time has expired.
Mr. SCHUMER. To stop this, and that is come talk to us, work with us
in a bipartisan way, nominate judges both sides can support. Don't say
my way or the highway and this will stop. But that is the only way to
stop it.
Thank you, Mr. President.
The PRESIDING OFFICER. The majority leader.
Mr. FRIST. Mr. President, over the past 2 days, the Senate has
sustained what has truly been an extraordinary, all-hours debate, a
debate on judicial confirmations and on the very nature of each
Senator's duty and right to give advice and consent on the nominations
sent to us by the President of the United States, just as the
Constitution requires.
We have placed our differences over the last 39 hours, to paraphrase
Justice Brandeis, in the disinfectant sunshine of public opinion. This
continuous debate has been framed by the bipartisan effort on a very
simple principle; and that is, give us an opportunity for an up vote or
a down vote, just give us that right to vote.
We have been focused on the Fifth Circuit Court nominee, Justice
Priscilla Owen of Texas, who has already
[[Page 28857]]
been denied that simple up-or-down vote on three previous occasions. It
has been focused on two new circuit court nominees from California,
Judge Carolyn Kuhl, nominated to the Ninth Circuit Court of Appeals,
and Janice Rogers Brown nominated to the DC Circuit Court of Appeals.
We also debated the bipartisan proposal cosponsored by Democrat
Senator Zell Miller of Georgia to limit the use of the filibuster as to
all nominations, a proposal that I believe will change the all too
rancorous way that Washington does business. Indeed, this proposal,
although more narrow, was based on one previously supported by Senators
Kennedy, Lieberman, Kerry, and other Democrats.
The minority has suggested again and again--we heard it just a few
minutes ago--that we should not have spent this time on this issue of
the Constitution of the United States of America; that we should not
have spent this time discussing the unfair treatment of the President's
nominees. They argue that we should not have spent this time on these
new judicial nominees that we will be voting on in cloture in just a
few minutes.
We simply don't believe that the Senate stewardship, our
responsibility, that stewardship for the third branch of Government is
the least of our duties, as is suggested that we should not be spending
time focused on these issues.
It is almost as if the other side of the aisle said these issues are
not important. On the contrary, the Senate stewardship of the
independent judiciary is perhaps the Senate's most important task. Why?
Because it is our responsibility. It is not the responsibility of the
House of Representatives.
George Washington understood this. He believed the judiciary was the
most important of the three branches because the courts would protect
our liberties. But America's courts do much more than that.
We heard a lot about the economy. We heard a lot about jobs. It is
our independent judiciary that provides the anchor for America's
economic strength. It is the stability, and it is the confidence that
our courts provide that make the United States of America the safest
location, the best location for domestic investment, for foreign
investment, whether in industry or commerce, and for the overall
economy. Why? Because the courts protect those liberties. That means,
what? More jobs. It means more prosperity for all Americans.
Our courts guard the rule of law, and to the extent they are free of
results-oriented politics and other forms of corruption, they are the
foundation stones that have allowed America's history to unfold
differently than our sister republics to the south.
In this past year, Americans have come to understand the influence of
the courts over our everyday lives, over our daily lives, over our
national culture in ways that our Founding Fathers would have never
imagined.
Of course, the Democrats' complaint that we are spending too much
time on these issues is a little bit strained in that it is they who
are filibustering, continuing to debate, denying that opportunity to
vote yes or no on these nominees. The filibuster rule, when not abused,
is intended to give the minority more time, to allow more time for
debate.
Despite the complaints and the charges back and forth, I do give my
Democratic colleagues real credit for collegially joining in this
debate over the last 39 hours. I am enormously proud of my Republican
colleagues. I believe that both sides should feel a certain degree of
satisfaction as to how this historic debate has been conducted.
In the past 2 days, we have debated three nominees who the American
Bar Association considers qualified to serve on the appellate court but
who a Democrat minority considers out of the American mainstream. How
many times have we heard that over the last 39 hours--``out of the
mainstream.''
I can tell you I don't think the minority has argued effectively or
persuasively how Justice Owen, who was elected to the Texas Supreme
Court by 83 percent of Texas voters, is out of the mainstream. Out of
the mainstream, Justice Brown. Out of the mainstream when she was
retained to serve by 76 percent of California voters? Is that out of
the mainstream?
They have certainly not convinced any fairminded person how it is
that Judge Carolyn Kuhl--who has the support of over 100 California
judges and labor unions across the political spectrum, and yes, even
trial lawyers--cannot serve on that Ninth Circuit, that really
worrisome Ninth Circuit Court that declared the Pledge of Allegiance
unconstitutional.
What we have seen, and the reason this debate is historic is that it
underscores and it lets the American people know, as well as restates
the importance of the issue, that over the past year, the minority has
used the filibuster to deny a bipartisan majority the opportunity to
vote up or down, to give advice and consent. Let me say that again.
A minority, for the first time in history--it happened this year--for
the first time in history, a minority in this body is using the
filibuster to deny a bipartisan majority the opportunity to vote yes or
no.
It has come up that while majorities have delayed judges in the past
through the majority's delegation to the Judiciary Committee, votes on
judges have never before been blocked by a minority. Of course, this
debate has been more than about Senate procedure. In effect, what we
have seen over the last year is the minority is, in effect, amending
the people's Constitution without the people's assent. The reason for
this is now well know.
Senate liberals have sought with increasing intensity to politicize
not just the confirmation process, but the courts themselves. In
pursuing this course, they are threatening the legitimacy of America's
courts. That legitimacy comes from much more than just black robes or a
high bench. It comes from the people's belief that judges will apply
the law or the Constitution without regard to personal politics.
Rather than seeking to determine the judiciousness of a nominee and
whether a nominee will be able to rule without bias, liberal Democrats
are out to guarantee that our judges are, in fact, biased against some
and in favor of others. In America, with that result, citizens will
have to worry about the personal politics of the judge before whom they
come for justice. I say judiciousness, why?
Like other Senators this year faced with the question of what is
required by the Constitution's mandate that the Senate give the
President advice and consent, I have turned for guidance to the
Founding Fathers and especially to the father of the independent
judiciary, John Adams, to find that correct standard by which we give
advice and consent on a judicial nominee.
President Adams, the father of our independent judiciary,
memorialized for us what the standards should be for confirming our
judges. He wrote that they should be ``men [and women] of experience on
the laws, of exemplary morals, invincible patience, unruffled calmness,
and indefatigable application who will be appointed for life and
subservient to none.''
President Adams understood well enough the challenge of being
judicious despite one's opinions and even in the face of unpopular
opinion. Few people remember it was John Adams who defended the British
soldiers who, on March 5, 1770, shot into a crowd on the streets of
Boston. Our children study this episode today as the Boston massacre.
It is a history lesson we can learn from in our work and on judicial
nominations.
John Adams defended the British soldiers before a Boston court with
angry mobs in the street.
I will close in a second. I will speak on leader time for the next
minute.
I have to wonder, Mr. President, if today John Adams would be
obstructed by filibuster because an out-of-touch minority, urged on by
special interest groups, questions John Adams' qualifications based on
his past advocacy simply for being a good lawyer defending a client,
however politically unpopular.
[[Page 28858]]
In a few minutes, the filibustering minority will have another
opportunity to stand in the light of the Senate floor and do the right
thing. I say to the minority: Give these nominees a vote. Vote them up
or vote them down, but just give them an honest up-or-down vote.
The PRESIDING OFFICER. The Democratic leader.
Mr. DASCHLE. Mr. President, I will use leader time first to engage in
a brief colloquy with the distinguished majority leader with regard to
the schedule for the remainder of the day. I wonder if he can inform us
as to what his intentions are with regard to schedule.
Mr. FRIST. Mr. President, I will be happy to talk during the votes
with the leadership on the other side. My intent would be to have these
three consecutive cloture votes and then after that have no other votes
today. Before saying that with definitiveness, I would like to have a
discussion with the minority leader, if there is other business he
would like to bring to the floor as well.
We likely will have other business following that. Again, I expect no
rollcall votes after these three votes.
Mr. DASCHLE. I thank the majority leader.
Mr. President, I also note at the end of this period of time, we have
been here now for about 40 hours. It is probably not accurate to say we
have all been here for 40 hours. Some of us had the luxury of coming
and going, but there have been a lot of staff on the Senate floor, in
our cloakrooms, in the Sergeant at Arms Office, our Capitol Police, all
of our clerks--the extraordinary effort that they have made in these
last 40 hours should be recognized.
I know I speak for all of our colleagues on both sides of the aisle
in expressing our heartfelt gratitude to all of them. Once again, they
have exceeded our expectations, and we are grateful for their
dedication and professionalism during these difficult days.
I yield the floor.
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