NUCLEAR OPTION; Congressional Record Vol. 151, No. 43
(Senate - April 13, 2005)

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[Pages S3510-S3512]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             NUCLEAR OPTION

  Mrs. MURRAY. Mr. President, I imagine that recently it has been 
pretty difficult to wake up every morning to read the newspaper if you 
are a Federal judge. Extremists in and out of Washington, DC, have 
nearly declared war on the judiciary, from demanding retribution for 
recent decisions that lawmakers disagree with to suggesting impeachment 
for judges who do not toe the party line. It is discouraging, it is 
disheartening, and it is downright wrong.
  But what is so concerning about this recent rhetorical assault is it 
is being backed by action that has nothing to do with judges and 
everything to do with increasing Republican power at the expense of our 
Constitution.
  I am deeply concerned that Republicans are trying to increase their 
power by ignoring rules dating to our country's founding. They want to 
push through radical judicial nominees who will serve a lifetime on the 
bench by eliminating a 200-year-old American rule allowing each Member 
in the Senate to speak out on behalf of our constituents and to fight 
for the ideals we hold dear.

  We had an election last year, and it is true, Republicans ended up 
with a majority in this body. But that does not mean half the country 
lost its voice. That does not mean tens of millions of Americans will 
have no say in our democracy. That does not mean Republicans have carte 
blanche to pack the courts and to ignore the rights of the minority.
  In reality, this is not about judges. This is not about a Senate 
procedural change. This is, plainly and simply, a power grab and an 
effort to dismantle the checks and balances our Founding Fathers 
created. Without that system, the Senate would simply become a 
rubberstamp for the President. It would allow whichever political party 
is in power, Republican or Democrat, to have the say over our Nation's 
courts. I will not stand for that.
  This is a basic argument about the future of the Senate. It is about 
how we are going to conduct our business. I believe in giving the 
people a voice, in standing up for those people who sent me here, and 
in protecting the rights of minorities everywhere.
  One of the first things every child is taught about American 
Government is the separation of the three branches. This separation and 
the checks and balances that come with it are fundamental to the 
greatest system of government ever created. This system is worth 
protecting. That is exactly what many of my colleagues and I intend to 
do.
  This is not a debate about judicial nominations. It is about 
increasing the amount of power that is wielded by the majority. We hear 
a lot about judges in the Senate, so let me put that discussion in 
context for a minute.
  The judges who serve on the Federal bench affect the lives and 
liberties of every American. These are lifetime appointments. This is 
not the nomination to a commission or nomination to an ambassadorship; 
this is a lifetime appointment for a Federal judge whose rulings over 
the next 30 or 40 or more years will have ramifications for every 
single American.
  As Senators, we are elected to serve our constituents. We are asked 
to confirm judges whose decisions can change U.S. history and shape the 
lives of American people for generations to come.
  When any citizen, Republican or Democrat, in a blue State or a red 
State, a man or a woman, no matter what race, color, or creed, comes 
before a judge, we have a responsibility to ensure they will get a fair 
shake. That citizen, no matter who or where they are, must know our 
system will work for them. They have to have confidence in that.
  How can we make those assurances to each and every Senator, 
Republican or Democrat, red or blue State, man or woman, no matter what 
race, color or creed, if Republicans alone are selecting, considering, 
and confirming them to the courts? I don't believe we can.
  In addition, we expect Federal judges to provide the proper check in 
our system of checks and balances outlined in our Constitution. Without 
it, our system does not function properly. We have to ensure each and 
every nominee for the courts has sufficient experience to sit in 
judgment of our fellow citizens. We have to ensure every nominee will 
be fair to everyone who comes before their court. We have to ensure 
every nominee will be evenhanded in administering justice, and we have 
to ensure every nominee will protect the rights and the liberties of 
each and every American.

[[Page S3511]]

  To determine if a nominee meets those standards, we have to explore 
their record, we have to ask them questions, we need to weigh their 
responses. That is a tremendous responsibility of each and every 
Senator. It is one I take very seriously.
  In the Senate we have made a lot of progress in confirming the judges 
President Bush has nominated. Look at the figures. The Senate has now 
confirmed 205 judicial nominees of President Bush. In 3 years we have 
stopped 10 of those whose records raised the highest questions about 
their abilities to meet the standard of fairness every American 
expects. Let me repeat that: We have confirmed 205 judicial nominees. 
That is a confirmation of 95 percent. We have confirmed 205 judges, the 
best confirmation rate since President Reagan. Today, 95 percent of 
Federal judicial seats are filled. This is the lowest number of 
vacancies in 13 years. There are now more Federal judges than ever 
before.
  I have to point out while the majority is complaining today about our 
confirmation rate, it was a different story during the Clinton 
administration. Back then, Republicans used many roadblocks to stop or 
block the confirmation of judges who were nominated by President 
Clinton. During Clinton's second term, 175 of his nominees were 
confirmed and 55 were blocked from getting votes. During those years, 
the majority used the committee process to ensure nominees they 
disagreed with never came to a vote in the Senate and 55 never received 
consideration.

  The Senate has an impressive record of confirming judges. That is 
clear in the 98-percent confirmation rate, the 95 percent of Federal 
judicial seats that are filled, and today the lowest number of 
vacancies in 13 years.
  I will talk about the process we have used in my home State of 
Washington to confirm judges. We have worked out a system to ensure 
that Washington judges are nominated and confirmed even when different 
political parties hold Senate seats or control the White House. For 
many years I worked with a Republican Senator and a Democratic 
President to nominate and confirm Federal judges from my State. Today, 
with a Republican President I am working with my colleague from 
Washington State on a bipartisan process to recommend judicial 
candidates. We developed a bipartisan commission process that forwards 
names to the White House. It has worked very well. Both sides had equal 
representation on the commission. The commission interviews and vets 
the candidates.
  It worked for Senator Gorton and me when we forwarded names to 
President Clinton and it is working well for Senator Maria Cantwell and 
me as we recommend names to President Bush. I am very proud that during 
President Bush's first term we worked together to confirm five 
excellent judges through this bipartisan commission.
  We, in fact, confirmed Ron Leighton, a distinguished trial lawyer in 
Tacoma who is now a U.S. district court judge for the western district 
of Washington in Tacoma.
  We confirmed Lonny Suko as a district court judge for the eastern 
district of my State. He is a distinguished lawyer and a U.S. 
magistrate judge who has earned the respect of many in his work on some 
of eastern Washington's most difficult cases.
  We also confirmed Judge Ricardo Martinez for a vacancy on the U.S. 
district court for the western district of Washington State. He, in 
fact, holds the distinction of becoming the first Latino district judge 
in the history of our State. For over 5 years he has served as 
magistrate judge for the U.S. District Court in the western district. 
Before that, he was a superior court judge for 8 years and a King 
County prosecutor for 10 years. I will never forget calling him from 
the Senate floor after we completed his vote on the confirmation. I 
could hear the cheers in the background from a truly overjoyed, 
deserving family.
  Also during the first term we confirmed Judges Richard Tallman and 
James Robart. Both of them are now serving lifetime appointments with 
dignity.
  In Washington State, we are making genuine bipartisan progress 
confirming judges. It is a process that serves the people of my home 
State well. Our record of bipartisanship makes this current Republican 
power grab all the more outrageous. The record proves it is not about 
judges at all. This procedure is about destroying the checks and 
balances our Founding Fathers created to prevent the abuse of 
Governmental power and to protect the rights and freedoms of all 
Americans. Now we are hearing the Republicans want to destroy the 
independence in Federal judges by rewriting the rules so they can ram 
through appointment of Federal judges, especially a Supreme Court 
Justice, who will overreach and roll back the rights of American 
people.
  Recent comments by advocates on the other side and even by some 
elected officials have left me very worried about the future of the 
independent judiciary. It seems many in this country are intent on 
running roughshod over the Constitution, bent on misusing their power 
to destroy fundamental principles of our great democracy. That is not 
how America works. It is not what our Founding Fathers intended. In our 
democracy, no single person and no single political party may impose 
extreme views on the Nation. The constitutional system of checks and 
balances was set up for a reason. It has worked for two centuries. 
There is no reason to destroy this fundamental principle now.
  My colleagues and I are standing up to these abuses. We are fighting 
to protect the historic power of this body to make sure it is not a 
rubberstamp for sectarian, partisan, special interests. We will 
continue to do so.
  I yield back the remainder of the time on this side and I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. Without objection, all time is yielded back.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. OBAMA. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Graham). Without objection, it is so 
ordered.
  Mr. OBAMA. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. OBAMA. Mr. President, I rise today to urge my colleagues to think 
about the implications of what has been called the nuclear option and 
what effect that might have on this Chamber and on this country. I urge 
all of us to think not just about winning every debate but about 
protecting free and democratic debate.
  During my Senate campaign, I had the privilege and opportunity to 
meet Americans from all walks of life and both ends of the political 
spectrum. They told me about their lives, about their hopes, about the 
issues that matter to them, and they also told me what they think about 
Washington.
  Because my colleagues have heard it themselves, I know it will not 
surprise many of them to learn that a lot of people do not think much 
gets done around here on issues about which they care the most. They 
think the atmosphere has become too partisan, the arguments have become 
too nasty, and the political agendas have become too petty.
  While I have not been here too long, I have noticed that partisan 
debate is sharp, and dissent is not always well received. Honest 
differences of opinion and principled compromise often seem to be the 
victim of a determination to score points against one's opponents.
  But the American people sent us here to be their voice. They 
understand that those voices can at times become loud and 
argumentative, but they also hope we can disagree without being 
disagreeable. At the end of the day, they expect both parties to work 
together to get the people's business done.
  What they do not expect is for one party, be it Republican or 
Democrat, to change the rules in the middle of the game so they can 
make all the decisions while the other party is told to sit down and 
keep quiet.
  The American people want less partisanship in this town, but everyone 
in this Chamber knows that if the majority chooses to end the 
filibuster, if they choose to change the rules and put an end to 
democratic debate, then the fighting, the bitterness, and the gridlock 
will only get worse.
  I understand that Republicans are getting a lot of pressure to do 
this from factions outside the Chamber, but we

[[Page S3512]]

need to rise above ``the ends justify the means'' mentality because we 
are here to answer to the people--all of the people, not just the ones 
who are wearing our particular party label.
  The fact is that both parties have worked together to confirm 95 
percent of this President's judicial nominees. The Senate has accepted 
205 of his 214 selections. In fact, we just confirmed another one of 
the President's judges this week by a vote of 95 to 0. Overall, this is 
a better record than any President has had in the last 25 years. For a 
President who received 51 percent of the vote and a Senate Chamber made 
up of 55 percent of the President's party, I would say that confirming 
95 percent of their judicial nominations is a record to be proud of.
  Again, I urge my Republican colleagues not to go through with 
changing these rules. In the long run, it is not a good result for 
either party. One day Democrats will be in the majority again, and this 
rule change will be no fairer to a Republican minority than it is to a 
Democratic minority.
  I sense that talk of the nuclear option is more about power than 
about fairness. I believe some of my colleagues propose this rule 
change because they can get away with it rather than because they know 
it is good for our democracy.
  Right now we are faced with rising gas prices, skyrocketing tuition 
costs, a record number of uninsured Americans, and some of the most 
serious national security threats we have ever had, while our bravest 
young men and women are risking their lives halfway around the world to 
keep us safe. These are challenges we all want to meet and problems we 
all want to solve, even if we do not always agree on how to do it. But 
if the right of free and open debate is taken away from the minority 
party and the millions of Americans who ask us to be their voice, I 
fear the partisan atmosphere in Washington will be poisoned to the 
point where no one will be able to agree on anything. That does not 
serve anybody's best interest, and it certainly is not what the 
patriots who founded this democracy had in mind. We owe the people who 
sent us here more than that. We owe them much more.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant journal clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, if I am not mistaken, the pending business 
is the Durbin amendment which I offered yesterday.
  The PRESIDING OFFICER. I have been informed the Senate has not laid 
down that measure yet.
  Mr. DURBIN. I ask unanimous consent to be recognized as in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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