JUDICIAL NOMINATIONS; Congressional Record Vol. 151, No. 53
(Senate - April 27, 2005)

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[Pages S4356-S4370]
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                          JUDICIAL NOMINATIONS

  Mrs. MURRAY. Mr. President, I come to the floor to talk about the 
Senate's deliberations on some of the administration's judicial 
nominees. It is clear this is a debate about basic American values. In 
drafting the Constitution, the Framers wanted the Senate to provide 
advice and consent on nominees who came before it to ensure that these 
very rights and values were protected. I believe, as a Senator, I have 
a responsibility to stand up for those values on behalf of my 
constituents in Washington State.
  Many activists today are complaining that certain Senators are 
attacking religious or conservative values. I must argue that it is 
others--not Democratic Senators exercising their rights--who are 
pursuing a nomination strategy that attacks basic values outlined in 
the Constitution.
  Our democracy values debate and dissension. Our democracy values the 
importance of checks and balances. Our democracy values an independent 
judiciary. But with the nuclear option and the rhetorical assault being 
launched at Democratic Senators by activists around the country, among 
others, we see those values under attack.
  The nuclear option is an assault on the American people and many of 
the things we hold dear. It is an attempt to impose on the country, 
through lifetime appointments, the extreme values held by a few at the 
cost of the many. It is the tyranny of the majority personified. 
Confirming these nominees by becoming a rubber stamp for the 
administration would be an affront to the 200-year-old system of checks 
and balances, and at the same time it would be an affront to the values 
I promised to defend when I came to the Senate.
  Building and maintaining a democracy is not easy, but our system and 
the rights and values it holds dear are the envy of the world. In fact, 
the entire world looks at us as the model for government. It is our 
values they want to look to. We must protect them not only for us but 
for those fledgling democracies.
  I just returned from a bipartisan trip to Israel, Iraq, Georgia, and 
the Ukraine, where we saw leaders who were trying to write 
constitutions, trying to write laws, trying to write policies. They 
were all working very hard to assure even those who did not vote in the 
majority that they would have a voice. The challenges were varied in 
each country. They faced everything from protecting against terrorists 
to charging people for the first time for electricity, to reforming 
wholly corrupt institutions. Making sure that democracy survives means 
having debates, bringing people to the table, and making tough 
decisions.
  In each case, the importance of not disenfranchising any group of 
people also rings true. So how we in this country accomplish the goal 
of sustaining a strong democracy and ensuring the participation of all 
people is very important.
  Elections are the foundation of our democracy. They determine the 
direction of our country. But an election loss does not mean you lose 
your voice or you lose your place at the table. That is what we must do 
to keep our democracy strong. That is why we are fighting so hard to 
keep our voice.
  Recently, we have heard a lot from the other side about attacks on 
faith and on values. In fact, some are trying to say our motive in this 
debate is somehow antifaith. I argue the opposite is true. We have 
faith in our values, in American values. We have faith that these 
values can and must be upheld. It is not an ideological battle between 
Republicans and Democrats. It is about keeping faith with the values 
and the ideals our country stands for. Having values and having faith 
in those values requires that we make sure those without a voice are 
represented. Speaking up for those in poverty to make sure they are fed 
is a faith-based value. Making sure there is equal opportunity and 
justice for the least among us is a faith-based value. Fighting for 
human rights and taking care of the environment are faith-based values. 
To now say those of us who stick up for minority rights are antifaith 
is frightening and it is wrong.

  I hope those who have decided to make this into a faith-antifaith 
debate will reconsider. This should be about democracy. It should be 
about the protection of an independent judiciary, and it should be 
about the rights of minorities.
  Mr. President, our system of government, of checks and balances, and 
our values are under attack by this transparent grab for power. They 
are, with their words and potential actions, attempting to dismantle 
this system despite the clear intent of the Framers and the weight of 
history and precedent. They think they know better. I think not.
  Mr. President, there is even news this morning that our friends on 
the other side are unwilling to come to the table to compromise to 
avoid this crisis. I want to take a second to praise our leader, 
Senator Reid, for his effort to find a reasonable conclusion before the 
nuclear bomb is dropped.
  Unfortunately for him, for all of us on this side of the aisle, and 
for this institution, that plea has been rejected.
  First, yesterday we saw that Karl Rove, one of the President's top 
advisers, said there would be no deal. Now, in this morning's papers, 
we read the leadership on the other side of the aisle is falling into 
line and saying, ``No deal.''
  By rejecting the deal, Republicans are now saying that three 
nominees--three total nominees--are so important that they must break 
with the more than 200 years of tradition and 200 years of precedent. 
We have heard day after day on the floor--even a few moments ago--that 
this is the most important issue facing this body today.
  Well, we have record-high gas prices and deficits, we have 45 million 
uninsured Americans, and we have far too many veterans without the 
health care they need and deserve. All the other side is talking about 
is doing away with the checks and balances so they can get radicals on 
the bench.
  If the other side wants to continue on this destructive course and 
ignore those real needs of the American people, they can. But this 
Senator and my colleagues will continue to fight this abuse of power 
and do the work the people sent us here to do.
  It is a sad day when one side refuses to come to the table to 
negotiate a way out of this impasse. It is even sadder that they refuse 
to accept our excellent confirmation record in blind pursuit of 
confirming the most radical of their choices.
  Although we have been able to confirm 205 nominees that President 
Bush sent forward, there are a few that are far outside some basic 
values.
  Let's start close to home with President Bush's nominee to the Ninth 
Circuit Court. To that court, which overseas appeals from my home State 
of Washington and five other States, President Bush has nominated 
William Myers. Mr. Myers is a lifelong lobbyist and anti-environmental 
activist. He is opposed by over 175 environmental, labor, civil, and 
women's disability rights organizations. He even drew opposition from 
Native American organizations and from the National Wildlife 
Federation. This is a man who has never tried a jury case, who has an 
anti-environmental record stretching back to his days as a Bush 
Interior Department official and industry lobbyist. He even received 
the lowest possible rating from the ABA.
  Mr. President, in the Pacific Northwest and in regions around this 
great country, we hold our environmental values dear. I am not willing 
to hand a lifetime appointment to such a vehement advocate against the 
people's interests. This is the perfect example of the check our 
Framers had in mind when they drafted our Constitution. We can, and we 
must, use it.

[[Page S4357]]

  That is just one example of a nominee looking to attack basic values. 
Bill Pryor, a nominee to the Eleventh Circuit, opposes basic individual 
liberties and freedoms. He called Roe v. Wade the ``worst abomination 
of constitutional law in history.''
  Janice Rogers Brown, nominated to the DC Circuit Court, called 1937--
that was the year this Government enacted many of the New Deal's 
programs to help lift our country out of the deep depression--``the 
triumph of our own socialist revolution.'' Mr. President, her disdain 
for worker and consumer protection values and principles is clear in 
decision after decision.
  Nominee Priscilla Owen's narrow constitutional view was so far 
outside the mainstream that then-Texas Supreme Court Judge and now 
Attorney General Alberto Gonzales said that to accept it would be ``an 
unconscionable act of judicial activism.''
  Mr. President, time and time again, these nominees have sided against 
the American people and the values we hold dear. They have taken 
extreme positions that run counter to mainstream values. Not one of 
these nominees has the experience or the temperament to administer 
justice in an impartial way to the citizens that they would serve.
  Today it is fashionable for some of my colleagues on the other side 
of the aisle to disparage what they call activist judges. But this 
power grab reveals their true motivation. They want activists on the 
bench to interpret the law in a way that undermines important American 
values. We will not let them.
  We have a responsibility to stand up and say no to these extreme 
nominees. But to know that, you don't need to listen to me; just look 
back at the great Founders of our democracy.
  The Framers, in those amazing years when our country was founded, 
took great care in creating our new democracy. They wrote into the 
Constitution the Senate's role in the nomination process. They wrote 
and they spoke about protecting the minority against the tyranny of the 
majority. Their words ring true today.
  James Madison, in his famous Federalist No. 10, warned against the 
superior force of an overbearing majority or, as he called it, a 
``dangerous vice.'' He said:

       The friend of popular governments never finds himself so 
     much alarmed for their character and fate as when he 
     contemplates their propensity to this dangerous vice.

  Years prior, John Adams wrote, in 1776, on the specific need for an 
independent judiciary and checks and balances. He said:

       The dignity and stability of government in all its 
     branches, the morals of the people and every blessing of 
     society, depends so much upon an upright and skillful 
     administration of justice, that the judicial power ought to 
     be distinct from both the legislative and executive, and 
     independent upon both, that so it may be a check upon both, 
     as both should be checked upon that. The judges, therefore, 
     should always be men of learning and experience in the laws, 
     of exemplary morals, great patience, calmness, coolness and 
     attention. Their minds should not be distracted with jarring 
     interests; they should not be dependent upon any man or body 
     of men.

  Mr. President, I shudder at the thought of what these great thinkers 
and Founders of our democracy would say to this attempted abuse of 
power in the Senate. I think one of the best interpretations of those 
thoughts was offered to this body by Robert Caro, the great Senate 
historian, in a letter in 2003. He talked about the need for the Senate 
to maintain its history and traditions, despite popular pressures of 
the day, and of the important role debate and dissension plays in any 
discussion of judicial nominees. In particular, he wrote of his concern 
for the preservation of Senate tradition in the face of attempted 
changes by a majority run wild.
  In part, he said:

       In short, two centuries of history rebut any suggestion 
     that either the language or 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.
       I am . . . attempting to say as strongly as I can that in 
     considering any modification, Senators should realize that 
     they are not dealing 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 
     of power between majority and minority rights.

  Mr. President, protection of minority rights has been a fundamental 
principle since the infancy of this democracy. It should not--in fact, 
it cannot--be laid to rest here in this Chamber.
  I know many people are out there wondering why we are spending so 
much time talking about Senate rules and judicial nominations. They are 
wondering why I am talking about nominees and being on the floor 
quoting Madison and Adams. They are wondering what this means to them.
  Let me make it clear. This debate is about whether we want a clean, 
healthy environment and the ability to enforce laws to protect it 
fairly. This debate is about whether we want to protect essential 
rights and liberties. This debate is about whether we want free and 
open Government. This debate is about preserving equal protection under 
the law. This debate is about whether we want to preserve the 
independent judiciary, whether we want to defend our Constitution, and 
whether we want to stand up for the values of the American public.
  Mr. President, these values are too precious to be abdicated. 
Trusting in them, we will not let the Republicans trample our rights 
and those of millions of Americans we are here to represent. We will 
stand and say, yes, to democracy; yes, to an independent judiciary; 
yes, to minority rights; and, no, to this unbelievable abuse of power.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Graham). The Senator from Delaware is 
recognized.
  Mr. BIDEN. Mr. President, I rise today to speak at some length, if 
time will permit me, about the same subject my friend from Washington 
State so eloquently addressed. My colleagues know that although when I 
speak, I sometimes get very passionate, I have not very often, in past 
years, risen to the floor for any extended period of time. I do that 
today because so much is at stake.
  For over 200 years, the Senate has embodied the brilliance of our 
Founding Fathers in creating an intricate system of checks and balances 
among the three branches of Government. This system has served two 
critical purposes, both allowing the Senate to act as an independent, 
restraining force on the excesses of the executive branch, and 
protecting minority rights within the Senate itself. The Framers used 
this dual system of checks and balances to underscore the independent 
nature of the Senate and its members.
  The Framers sought not to ensure simple majority rule, but to allow 
minority views--whether they are conservative, liberal, or moderate--to 
have an enduring role in the Senate in order to check the excesses of 
the majority. This system is now being tested in the extreme.
  I believe the proposed course of action we are hearing about these 
days is one that has the potential to do more damage to this system 
than anything that has occurred since I have become a Senator.
  History will judge us harshly, in my view, if we eliminate over 200 
years of precedent and procedure in this body and, I might add, doing 
it by breaking a second rule of the Senate, and that is changing the 
rules of the Senate by a mere majority vote.
  When examining the Senate's proper role in our system of Government 
generally and in the process of judicial nominations specifically, we 
should begin, in my view, but not end with our Founding Fathers. As any 
grade school student knows, our Government is one that was infused by 
the Framers with checks and balances.
  I should have said at the outset that I owe special thanks--and I 
will list them--to a group of constitutional scholars and law 
professors in some of our great universities and law schools for 
editing this speech for me and for helping me write this speech because 
I think it may be one of the most important speeches for historical 
purposes that I will have given in the 32 years since I have been in 
the Senate.
  When examining the Senate's proper role in our system of Government 
and in the process of judicial nominations, as I said, we have to look 
at what our

[[Page S4358]]

Founders thought about when they talked about checks and balances.
  The theoretical underpinning of this system can be found in 
Federalist 51 where the architect of our Constitution, James Madison, 
advanced his famous theory that the Constitution set up a system in 
which ``ambition must be made to counteract ambition.''
  ``Ambition must be made to counteract ambition.'' As Madison notes, 
this is because ``[The] great security against a gradual concentration 
of the several powers in the same department consists in giving those 
who administer each department the necessary constitutional means and 
personal motives to resist encroachments by the other.''
  Our Founders made the conscious decision to set up a system of 
government that was different from the English parliamentary system--
the system, by the way, with which they were the most familiar. The 
Founders reacted viscerally to the aggrandizement of power in any one 
branch or any person, even in a person or body elected by the majority 
of the citizens of this country.
  Under the system the Founders created, they made sure that no longer 
would any one person or one body be able to run roughshod over everyone 
else. They wanted to allow the sovereign people--not the sovereign 
Government, the sovereign people--to pursue a strategy of divide and 
conquer and, in the process, to protect the few against the excesses of 
the many which they would witness in the French Revolution.
  The independence of the judiciary was vital to the success of that 
venture. As Federalist 78 notes:

       The complete independence of the courts of justice is 
     peculiarly essential in a limited Constitution.

  Our Founders felt strongly that judges should exercise independent 
judgment and not be beholden to any one person or one body. John Adams, 
in 1776, stated:

       The dignity and stability of government in all its 
     branches, the morals of the people, and every blessing of 
     society, depend so much upon an upright and skillful 
     administration of justice, that the judicial power ought to 
     be distinct from both the legislative and executive, and 
     independent upon both, that so it may be a check upon both, 
     as both should be checks upon that.

  Adams continues:

       The judges, therefore, should always be men of learning and 
     experience in the laws, of exemplary morals, great patience, 
     calmness and attention; their minds should not be distracted 
     with jarring interests; they should not be dependent upon any 
     one man or any body of men.

  In order to ensure that judicial independence, the very independence 
of which Adams spoke, the Founders did not give the appointment power 
to any one person or body, although it is instructive for us, as we 
debate this issue in determining the respective authority of the Senate 
and the Executive, it is important to note that for much of the 
Constitutional Convention, the power of judicial appointment was 
solely--solely--vested in the hands of the legislature. For the 
numerous votes taken about how to resolve this issue, never did the 
Founders conclude that it should start with the Executive and be within 
the power of the Executive. James Madison, for instance, was ``not 
satisfied with referring the appointment to the Executive;'' instead, 
he was ``rather inclined to give it to the Senatorial branch'' which he 
envisioned as a group ``sufficiently stable and independent'' to 
provide ``deliberative judgments.''
  It was widely agreed that the Senate ``would be composed of men 
nearly equal to the Executive and would, of course, have on the whole 
more wisdom'' than the Executive. It is very important to point out 
that they felt ``it would be less easy for candidates''--referring to 
candidates to the bench--``to intrigue with [the Senators], more than 
with the Executive.''
  In fact, during the drafting of the Constitution, four separate 
attempts were made to include Presidential involvement in judicial 
appointments, but because of the widespread fear of Presidential power, 
they all failed. There continued to be proponents of Presidential 
involvement, however, and finally, at the eleventh hour, the 
appointment power was divided and shared, as a consequence of the 
Connecticut Compromise I will speak to in a minute, between the two 
institutions, the President and the Senate.
  In the end, the Founders set up a system in which the President 
nominates and the Senate has the power to give or withhold--or 
withhold--its ``advice and consent.'' The role of ``advice and 
consent'' was not understood to be purely formal. The Framers clearly 
contemplated a substantive role on the part of the Senate in checking 
the President.
  This bifurcation of roles makes a lot of sense, for how best can we 
ensure that an independent judiciary is beholden to no one man or no 
one group than by requiring two separate and wholly independent 
entities to sign off before a judge takes the bench?

  There is a Latin proverb which translates to ``Who will guard the 
guardians?'' Our judges guard our rights, and our Founders were smart 
enough to put both the President and the Senate, acting independently, 
in charge of guarding our judicial guardians. Who will guard the 
guardians?
  As a Senator, I regard this not as just a right but as a solemn duty 
and responsibility, one that transcends the partisan disputes of any 
day or any decade. The importance of multiple checks in determining who 
our judges would be was not lost on our Founders, even on those who 
were very much in favor of a strong Executive.
  For example, Alexander Hamilton, probably the strongest advocate for 
a stronger Executive, wrote:

       The possibility of rejection [by the Senate] would be a 
     strong motive to [take] care in proposing [nominations. The 
     President] . . . would be both ashamed and afraid to bring 
     forward . . . candidates who had no other merit, than that . 
     . . of being in some way or other personally allied to him, 
     or of possessing the necessary insignificance and pliancy to 
     render them the obsequious instrument of his pleasure.

  Hamilton also rebutted the argument that the Senate's rejection of 
nominees would give it an improper influence over the President, as 
some here have suggested, by stating:

       If by influencing the President be meant restraining him, 
     this is precisely what must have been intended. And it has 
     been shown that the restraint would be salutary.

  The end result of our Founders was a system in which both the 
President and the Senate had significant roles, a system in which the 
Senate was constitutionally required to exercise independent judgment, 
not simply to rubberstamp the President's desires.
  As Senator William Maclay said:

       [W]hoever attends strictly to the Constitution of the 
     United States will readily observe that the part assigned to 
     the Senate was an important one--no less that of being the 
     great check, the regulator and corrector, or, if I may so 
     speak, the balance of this government. . . .The approbation 
     of the Senate was certainly meant to guard against the 
     mistakes of the President in his appointments to office . . . 
     The depriving power should be the same as the appointing 
     power.

  The Founders gave us a system in which the Senate was to play a 
significant and substantive role in judicial nominations. They also 
provided us guidance on what type of legislative body they envisioned. 
In this new type of governance system they set up in 1789 where power 
would be separated and would check other power, the Founders envisioned 
a special unique role for the Senate that does not exist anywhere else 
in governance or in any parliamentary system.
  There is the oft-repeated discussion between two of our most 
distinguished Founding Fathers, Thomas Jefferson and George Washington. 
Reportedly, at a breakfast that Jefferson was having with Washington 
upon returning from Paris, because he was not here when the 
Constitution was written, Jefferson was somewhat upset that there was a 
bicameral legislative body, that a Senate was set up. He asked 
Washington: Why did you do this, set up a Senate? And Washington looked 
at Jefferson as they were having tea and said: Why did you pour that 
tea into your saucer? And Jefferson responded: To cool it.
  I might note parenthetically that was the purpose of a saucer 
originally. It was not to keep the tablecloth clean.
  Jefferson responded: To cool it, and Washington then sagely stated: 
Even so, we pour legislation into the senatorial saucer to cool it.
  The Senate was designed to play this independent and, I might 
emphasize, moderating--a word not heard here very often--moderating and 
reflective role in our Government. But what aspects of the Senate led 
it to become this saucer, cooling the passions of the

[[Page S4359]]

day for the betterment of America's long-term future? First, the 
Founders certainly did not envision the Senate as a body of 
unadulterated majoritarianism. In fact, James Madison and other 
Founders were amply concerned about the majority's ability, as they put 
it, ``to oppress the minority.'' It was in this vein the Senate was set 
up ``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.''
  Structurally, the Founders set up a ``different type of legislature'' 
by ensuring that each citizen--now here is an important point, and if 
anybody in this Chamber understands this, the Presiding Officer does--
the Founders set up this different type of legislative body by ensuring 
that each citizen did not have an equal say in the functioning of the 
Senate--that sounds outrageous, to ensure they did not have an equal 
say--but that each State did have an equal say. In fact, for over a 
century, Senators were not originally chosen by the people, as the 
Presiding Officer knows, and it was not until 1913 that they were 
elected by the people as opposed to selected by their State legislative 
bodies.
  Today, Mr. President, you and I do stand directly before the people 
of our State for election, but the Senate remains to this day a 
legislative body that does not reflect the simple popular majority 
because representation is by States.
  That means someone from Maine has over 25 times as much effective 
voting power in this body as the Senator from California. An 
interesting little fact, and I do not say this to say anything other 
than how the system works, there are more desks on that side of the 
aisle. That side has 55. Does that side of the aisle realize this side 
of the aisle, with 45 desks, represents more Americans than they do? If 
we add up all the people represented by the Republican Party in the 
Senate, they add up to fewer people than the Democratic Party 
represents in the Senate. We represent the majority of the American 
people, but in this Chamber it is irrelevant and it should be because 
this was never intended in any sense to be a majoritarian institution.
  This distinctive quality of the Senate was part of that Great 
Compromise without which we would not have a Constitution referred to 
as the Connecticut Compromise. Edmund Randolph, who served as the first 
Attorney General of the United States and would later be Secretary of 
State, represented Virginia at the Constitutional Convention, and in 
that context he argued for fully proportionate representation in the 
debates over the proper form of the legislative branch, but ultimately 
he agreed to the Connecticut Compromise. After reflection, that so 
seldom happens among our colleagues, myself included, he realized his 
first position was incorrect and he stated:

       The general object was to provide a cure for the evils 
     under which the United States labored; that in tracing these 
     evils to their origin every man--

  Referring to every man who agreed to the compromise--

     had found it in the turbulence and follies of democracy; that 
     some check therefore was to be sought against this tendency 
     of our Governments; and that a good Senate seemed most likely 
     to answer this purpose.

  So the Founders quite intentionally designed the Senate with these 
distinctive features.
  Specifically, article 1, section 5 of the Constitution states that 
each House may determine its own rules for its own proceedings. 
Precisely: ``Each House may determine the Rules of its Proceedings.'' 
The text contains no limitations or conditions. This clause plainly 
vests the Senate with plenary power to devise its internal rules as it 
sees fit, and the filibuster was just one of those procedural rules of 
the many rules that vest a minority within the Senate with the 
potential to have a final say over the Senate's business.
  It was clear from the start that the Senate would be a different type 
of legislative body; it would be a consensus body that respects the 
rights of minorities, even the extreme minority power of a single 
Senator because that single Senator can represent a single and whole 
State. The way it is played out in practice was through the right of 
unlimited debate.
  I find it fascinating, we are talking about the limitation of a right 
that has already limited the original right of the Founding Fathers. 
The fact was there was no way to cut off debate for the first decades 
of this Republic.
  Joseph Story, famous justice and probably one of the best known 
arbiters of the Constitution in American history, his remark about the 
importance of the right of debate was ``the next great and vital 
privilege is the freedom of speech and debate, without which all other 
privileges would be comparatively unimportant, or ineffectual.'' And 
that goes to the very heart of what made the Senate different.
  In the Senate, each individual Senator was more than a number to be 
counted on the way to a majority vote, something I think some of us 
have forgotten. Daniel Webster put it this way:

       This is a Senate of equals, of men of individual honor and 
     personal character, and of absolute independence. We know no 
     masters, we acknowledge no dictators. This is a hall for 
     mutual consultation and discussion; not an arena for the 
     exhibition of champions.

  Extended debate, the filibuster, was a means to reach a more modest 
and moderate result to achieve compromise and common ground to allow 
Senators, as Webster had put it, to be men--and now men and women--of 
absolute independence.
  Until 1917, there was no method to cut off debate in the Senate, to 
bring any measure to a vote, legislative or nomination--none, except 
unanimous consent. Unanimous consent was required up until 1917 to get 
a vote on a judge, on a bill, on anything on the Executive Calendar. 
The Senate was a place where minority rights flourished completely, 
totally unchecked, a place for unlimited rights of debate for each and 
every Senator.
  In part this can be understood as a recognition of our federal system 
of government in which we were not just a community of individuals but 
we were also a community of sovereign States. Through the Senate, each 
State, through their two Senators, had a right to extensive debate and 
full consideration of its views.
  For much of the Senate's history, until less than 100 years ago, to 
close off debate required not just two-thirds of the votes, but it 
required all of the votes. The Senate's history is replete with 
examples of situations in which a committed minority flexed its ``right 
to debate'' muscles. In fact, there was a filibuster over the location 
of the Capitol of the United States in the First Congress. But what 
about how this tradition of allowing unlimited debate and respect for 
minority rights played out in the nomination context, as opposed to the 
legislative process?
  First, the text of the Constitution makes no distinction whatsoever 
between nominations and legislation. Nonetheless, those who are pushing 
the nuclear option seem to suggest that while respect for minority 
rights has a long and respected tradition on the legislative side of 
our business, things were somehow completely different when it came to 
considering nominations. In fact, it is the exact opposite.
  The history of the Senate shows, and I will point to it now, that 
previous Senates certainly did not view that to be the case. While it 
is my personal belief that the Senate should be more judicious in the 
use of the filibuster, that is not how it has always been. For example, 
a number of President Monroe's nominations never reached the floor by 
the end of his administration and were defeated by delay, in spite of 
his popularity and his party's control of the Senate.

  Furthermore, President Adams had a number of judicial nominations 
blocked from getting to the floor. More than 1,300 appointments by 
President Taft were filibustered. President Wilson also suffered from 
the filibusters of his nominees.
  Not only does past practice show no distinction between legislation 
and judicial nominations in regards to the recognition of minority 
rights, the formal rules of the Senate have never recognized such a 
distinction, except for a 30-year stretch in the Senate history, 1917 
to 1949, when legislation was made subject to cloture but nominations 
were not. Do my colleagues hear this? All of those who think a judge is 
more entitled to a vote than legislation, in 1917 it was decided that 
absolute unlimited debate should be curtailed, and

[[Page S4360]]

there needs to be a two-thirds vote to cut off debate in order to bring 
legislation to the floor.
  But there was no change with regard to judicial nominees. There was a 
requirement of unanimous consent to get a nominee voted on. So much for 
the argument that the Constitution leans toward demanding a vote on 
nominations more than on legislation. It flies in the face of the 
facts, the history of America and the intent of our Framers. This fact 
in itself certainly undercuts the claim that there has been, by 
tradition, the insulating of judicial nominees from filibusters.
  In both its rules and its practices, the Senate has long recognized 
the exercise of minority rights with respect to nominations. And it 
should come as no surprise that in periods where the electorate is 
split very evenly, as it is now, the filibustering of nominations was 
used extensively. For example, my good friend Senator Hatch who is on 
the Senate floor--as my mother would say, God love him, because she 
likes him so much, and I like him, too--he may remember when I was 
chairman of the Judiciary Committee back in the bad old days when the 
Democrats controlled the Senate during President Clinton's first 2 
years in office, a time when the Democrats controlled both the 
Presidency and the Senate but nonetheless the country remained very 
divided, numerous filibusters resulted, even in cases not involving the 
judiciary.
  I remind my friends, for example, that the nomination of Dr. Henry 
Foster for Surgeon General, Sam Brown to be ambassador to the 
Conference on Cooperation and Security in Europe, Janet Napolitano to 
be U.S. attorney in the District of Arizona, and Ricki Tigert for the 
Federal Deposit Insurance Corporation head, were all filibustered. We 
controlled the Senate, the House, the Presidency, but the Nation was 
nonetheless divided.
  Some may counter that there should be a difference between how 
judicial nominees should be treated versus the treatment accorded 
executive branch nominees, the Cabinet, and the rest. Constitutional 
text, historical practice and principle all run contrary to that 
proposition.
  On the textual point, we only have one appointments clause. It is 
also instructive to look at a few historical examples. In 1881, 
Republican President Rutherford B. Hayes nominated Stanley Matthews to 
the Supreme Court. A filibuster was mounted, but the Republican 
majority in the Senate was unable to break the filibuster, and Stanley 
Matthews' Supreme Court nomination failed without getting a vote.
  In 1968, the filibuster to block both Justice Abe Fortas from 
becoming Chief Justice and Fifth Circuit Court Judge Homer Thornberry 
to occupy the seat that Justice Fortas was vacating was one where the 
Democrats controlled the Senate, and the Republicans filibustered. The 
leader of that successful filibuster effort against Justice Fortas was 
Republican Senator Robert Griffin from Michigan. In commenting on the 
Senate's rejection of President George Washington's nomination of John 
Rutledge to be Chief Justice of the Supreme Court, the Republican 
Senator who mounted a successful filibuster against Fortas on the 
floor--translated, Fortas never got a vote, even though he was a 
sitting Supreme Court Justice about to be elevated to Chief Justice--
what did the Senator from Michigan who led that fight say about the 
first fight in the Senate?

       That action in 1795 said to the President then in office 
     and to future Presidents: ``Don't expect the Senate to be a 
     rubberstamp. We have an independent coequal responsibility in 
     the appointing process; and we intend to exercise that 
     responsibility, as those who drafted the Constitution so 
     clearly intended.''

  There is also a very important difference between judicial and 
executive nominees that argued for greater Senate scrutiny of judicial 
nominees. It should be noted that legislation is not forever. Judicial 
appointments are for the life of the candidate.
  Of course, no President has unlimited authority, even related to his 
own Cabinet. But when you look at judges, they serve for life.
  An interesting fact that differentiates us from the 1800s, when these 
filibusters took place, and 1968, when they took place: The average 
time a Federal judge spends on the bench, if appointed in the last 10 
years from today, has increased from 15 years to 24 years. That means 
that on average, every judge we vote for will be on that bench for a 
quarter century. Since the impeachment clause is fortunately not often 
used, the only opportunity the Senate has to have its say is in this 
process.
  The nuclear option was so named because it would cause widespread 
bedlam and dysfunction throughout the Senate, as the minority party, my 
party, has pledged to render its vigorous protest. But I do not want to 
dwell on those immediate consequences which, I agree with my Senate 
Judiciary Committee chairman, would be dramatic. He said:

       If we come to the nuclear option the Senate will be in 
     turmoil and the Judiciary Committee will be in hell.

  However serious the immediate consequences may be, and however much 
such dysfunction would make both parties look juvenile and incompetent, 
the more important consequence is the long-term deterioration of the 
Senate. Put simply, the nuclear option threatens the fundamental 
bulwark of the constitutional design. Specifically, the nuclear option 
is a double-barreled assault on this institution. First, requiring only 
a bare majority of Senators to confirm a judicial nominee is completely 
contrary to the history and intent of the Senate. The nuclear option 
also upsets a tradition and history that says we are not going to 
change the rules of the Senate by a majority vote. It breaks the rule 
to change the rule. If we go down this path of the nuclear option, we 
will be left with a much different system from what our Founders 
intended and from how the Senate has functioned throughout its history.
  The Senate has always been a place where the structure and rules 
permit fast-moving partisan agendas to be slowed down; where hotheads 
could cool and where consensus was given a second chance, if not a 
third and a fourth.
  While 90 percent of the business is conducted by unanimous consent in 
this body, those items that do involve a difference of opinion, 
including judicial nominations, must at least gain the consent of 60 
percent of its Members in order to have that item become law. This is 
not a procedural quirk. It is not an accident of history. It is what 
differentiates the Senate from the House of Representatives and the 
English Parliament.
  President Lyndon Johnson, the ``Master of the Senate,'' put it this 
way:

     In this country, a majority may govern but it does not rule. 
     The genius of our constitutional and representative 
     government is the multitude of safeguards provided to protect 
     minority interests.

  And it is not just leaders from the Democratic Party who understand 
the importance of protecting minority rights. Former Senate Majority 
Leader Howard Baker wrote in 1993 that compromising the filibuster:

     would topple one of the pillars of American Democracy: the 
     protection of minority rights from majority rule. The Senate 
     is the only body in the federal government where these 
     minority rights are fully and specifically protected.

  Put simply, the ``nuclear option'' would eviscerate the Senate and 
turn it into the House of Representatives. It is not only a bad idea, 
it upsets the Constitutional design and it disserves the country. No 
longer would the Senate be that ``different kind of legislative body'' 
that the Founders intended. No longer would the Senate be the 
``saucer'' to cool the passions of the immediate majority.
  Without the filibuster, more than 40 Senators would lack the means by 
which to encourage compromise in the process of appointing judges. 
Without the filibuster, the majority would transform this body into 
nothing more than a rubber stamp for every judicial nomination.
  The Senate needs the threat of filibuster to force a President to 
appoint judges who will occupy the sensible center rather than those 
who cater to the whim of a temporary majority. And here is why--it is a 
yes or no vote; you can't amend a nomination.
  With legislation, you can tinker around the edges and modify a bill 
to make it more palatable. You can't do that with a judge. You either 
vote for all of him or her, or none. So only by the threat of 
filibuster can we obtain compromise when it comes to judges.

[[Page S4361]]

  We, as Senators, collectively need to remember that it is our 
institutional duty to check any Presidential attempt to take over the 
Judiciary. As the Congressional Research Service, the independent and 
non-partisan research arm of Congress, stated, the ``nuclear option'' 
would:

       . . . strengthen the executive branch's hand in the 
     selection of federal judges.

  This shouldn't be a partisan issue, but an institutional one. Will 
the Senate aid and abet in the erosion of its Article I power by 
conceding to another branch greater influence over our courts? As 
Senator Stennis once said to me in the face of an audacious claim by 
President Nixon:

       Are we the President's men or the Senate's?

  He resolved that in a caucus by speaking to us as only John Stennis 
could, saying:

       I am a Senate man, not the President's man.

  Too many people here forget that.
  Earlier, I explained that for much of the Senate's history, a single 
Senator could stop legislation or a nomination dead in its tracks. More 
recent changes to the Senate Rules now require only \3/5\ of the 
Senate, rather than all of its Members, to end debate. Proponents of 
the ``nuclear option'' argue that their proposal is simply the latest 
iteration of a growing trend towards majoritarianism in the Senate. God 
save us from that fate, if it is true.
  I strongly disagree. Even a cursory review of these previous changes 
to the Senate Rules on unlimited debate show that these previous 
mechanisms to invoke cloture always respected minority rights.
  The ``nuclear option'' completely eviscerates minority rights. It is 
not simply a change in degree but a change in kind. It is a 
discontinuous action that is a sea change, fundamentally restructuring 
what the Senate is all about.
  It would change the Senate from a body that protects minority rights 
to one that is purely majoritarian. Thus, rather than simply being the 
next logical step in accommodating the Senate Rules to the demands of 
legislative and policy modernity, the ``nuclear option'' is a leap off 
the institutional precipice.
  And so here we collectively stand--on the edge of the most important 
procedural change during my 32-year Senate career, and one of the most 
important ever considered in the Senate; a change that would 
effectively destroy the Senate's independence in providing advice and 
consent.
  I ask unanimous consent to be able to continue for another 15 
minutes.
  The PRESIDNG OFFICER. Without objection, it is so ordered.
  Mr. BIDEN. The ``nuclear option'' would gut the very essence and core 
of what the Senate is about as an institution--flying directly in the 
face of our Founders who deliberately rejected a parliamentary system. 
A current debate, over a particular set of issues, should not be 
permitted to destroy what history has bestowed on us.
  And the stakes are much, much higher than the contemporary 
controversy over the judiciary. Robert Caro, the noted author on Senate 
history, wrote the following in a letter to the Chairman and Ranking 
Member of the Senate Committee on Rules and Administration:

       [I]n considering any modification [to the right of extended 
     debate in the Senate Senators should realize 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 . . ., you need only look at what happened 
     when the Senate gradually surrendered more and more of its 
     power over international affairs to learn the lesson that 
     once you surrender power, you never get it back.

  The fight over the nuclear option is not just about the procedure for 
confirming judges. It is also, fundamentally, about the integrity of 
the Senate. Put simply, the ``nuclear option'' changes the rules 
midstream. Once the Senate starts changing the rules outside of its own 
rules, which is what the nuclear option does, there is nothing to stop 
a temporary majority from doing so whenever a particular rule would 
pose an obstacle.
  It is a little akin to us agreeing to work together on a field. I 
don't have to sit down and agree with you that we are going to divide 
up this field, but I say, OK, I will share my rights in this field with 
you. But here is the deal we agree to at the start. Any change in the 
agreements we make about how to run this field have to be by a 
supermajority. OK? Because that way I am giving up rights--which all 
the Founders did in this body, this Constitution--rights of my people, 
for a whole government. But if you are going to change those rules with 
a pure majority vote, then I would have never gotten into the deal in 
the first place.
  I suffer from teaching constitutional law for the last 13 years, an 
advanced class on constitutional law at Widener University, a seminar 
on Saturday morning, and I teach this clause. I point out the essence 
of our limited constitutional government, which is so different than 
every other, is that it is based on the consent of the governed. The 
governed would never have given consent in 1789 if they knew the outfit 
they were giving the consent to would be able, by a simple majority, to 
alter their say in their governance.
  The Senate is a continuing body, meaning the rules of the Senate 
continue from one session to the next. Specifically, rule V provides:

       The rules of the Senate shall continue from one Congress to 
     the next Congress unless they are changed as provided in 
     these rules.

  I say to my colleague from North Carolina, on the floor, I say to my 
colleague from South Carolina, I say to my colleague from Utah: If you 
vote for this ``nuclear option'' you are about to break faith with the 
American people and the sacred commitment that was made on how to 
change the rules.
  Senate rule XXII allows only a rule change with two-thirds votes. The 
``continuing body'' system is unlike many other legislative bodies and 
is part of what makes the Senate different and allows it to avoid being 
captured by the temporary passions of the moment. It makes it different 
from the House of Representatives, which comes up with new rules each 
and every Congress from scratch.
  The ``nuclear option'' doesn't propose to change the judicial 
filibuster rule by securing a two-thirds vote, as required under the 
existing rules. It would change the rule with only a bare majority. In 
fact, as pointed out recently by a group of legal scholars:

       On at least 3 separate occasions, the Senate has expressly 
     rejected the argument that a simple majority has the 
     authority claimed by the proponents of the [nuclear option].

  One historical incident is particularly enlightening. In 1925, the 
Senate overwhelmingly refused to agree to then-Vice President Dawes' 
suggestion that the Senate adopt a proposal for amending its rules 
identical to the nuclear option.
  On this occasion, an informal poll was taken of the Senate. It 
indicated over 80 percent of the Senators were opposed to such a 
radical step.
  Let me be very clear. Never before have Senate rules been changed 
except by following the procedures laid out in the Senate rules. Never 
once in the history of the Senate.
  The Congressional Research Service directly points out that there is 
no previous precedent for changing the Senate rules in this way.
  The ``nuclear option'' uses an ultra-vires mechanism that has never 
before been used in the Senate--``Employment of the [nuclear option] 
would require the chair to overturn previous precedent.
  The Senate Parliamentarian, the nonpartisan expert on the Senate's 
procedural rules--who is hired by the majority--has reportedly said 
that Republicans will have to overrule him to employ the ``nuclear 
option''.
  Adopting the ``nuclear option'' would send a terrible message about 
the malleability of Senate rules. No longer would they be the framework 
that each party works within.
  I've been in the Senate for a long time, and there are plenty of 
times I would have loved to change this rule or that rule to pass a 
bill or to confirm a nominee I felt strongly about.
  But I didn't, and it was understood that the option of doing so just 
wasn't on the table.
  You fought political battles; you fought hard; but you fought them 
within the strictures and requirements of the Senate rules. Despite the 
short-term pain, that understanding has served both parties well, and 
provided long-term gain.
  Adopting the ``nuclear option'' would change this fundamental 
understanding and unbroken practice of

[[Page S4362]]

what the Senate is all about. Senators would start thinking about 
changing other rules when they became ``inconvienent.'' Instead of two-
thirds of the vote to change a rule, you'd now have precedent that it 
only takes a bare majority. Altering Senate rules to help in one 
political fight or another could become standard operating procedure, 
which, in my view, would be disastrous.
  The Congressional Research Service has stated that adopting the 
``nuclear option'' would set a precedent that could apply to virtually 
all Senate business. It would ultimately threaten both parties, not 
just one. The Service report states:

       The presence of such a precedent might, in principle, 
     enable a voting majority of the Senate to alter any procedure 
     at-will by raising a point of order . . . by such means, a 
     voting majority might subsequently impose limitations on the 
     consideration of any item of business, prohibiting debate or 
     amendment to any desired degree. Such a majority might even 
     alter applicable procedures from one item of business to the 
     next, from one form of proceeding to a contrary one, 
     depending on immediate objects.

  Just as the struggle over the ``nuclear option'' is about 
constitutional law and Senate history, it is also about something much 
more simple and fundamental--playing by the rules.
  I reiterate that I think Senator Frist and his allies think they are 
acting on the basis of principle and commitment, but I regret to say 
they are also threatening to unilaterally change the rules in the 
middle of the game. Imagine a baseball team with a five-run lead after 
eight innings unilaterally declaring that the ninth inning will consist 
of one out per team.
  Would the fans--for either side--stand for that? If there is one 
thing this country stands for it's fair play--not tilting the playing 
field in favor of one side or the other, not changing the rules 
unilaterally. We play by the rules, and we win or lose by the rules.
  That quintessentially American trait is abandoned in the ``nuclear 
option.'' Republican Senators as well as Democratic ones have benefited 
from minority protections. Much more importantly, American citizens 
have benefited from the Senate's check on the excesses of the majority.
  But this is not just about games, and playing them the right way. 
This is about a more ethereal concept--justice. In his groundbreaking 
philosophical treatise, A Theory of Justice, the philosopher John Rawls 
points to the importance of what he calls procedural justice.
  Relying on this predecessors such as Immanuel Kant, Thomas Hobbes, 
Jean Jacques Rousseau, and John Locke, Rawls argues that, in activities 
as diverse as cutting a birthday cake and conducting a criminal trial, 
it is the procedure that makes the outcome just. An outcome is just if 
it has been arrived at through a fair procedure.
  This principle undergirds our legal system, including criminal and 
civil trials. Moreover it is at the very core of our Constitution. The 
term ``due process of law'' appears not once but twice in our 
Constitution, because our predecessors recognized the vital importance 
of setting proper procedures--proper rules--and abiding by them.
  It is also the bedrock principle we Senators rely on in accepting 
outcomes with which we may disagree. We know the debate was conducted 
fairly--the game was played by the rules. A decision to change the 
Senate's rules in violation of those very same rules abandons the 
procedural justice that legitimates everything we do.
  It is interesting to ask ourselves what's different about now, why 
are we at this precipice where the ``nuclear option'' is actually being 
seriously debated and very well might be utilized? Why have we reached 
this point when such a seemingly radical rule change is being seriously 
considered by a majority of Senators? It's a good question, and I don't 
have an easy answer.
  We have avoided such fights in the past largely because cooler heads 
have prevailed and accommodation was the watchword.
  As Senator Sam Ervin used to say--the separation of powers should 
not, as President Woodrow Wilson warned, become an invitation for 
warfare between the two branches.
  Throughout this country's history--whether during times of war or 
political division, for example--Presidents have sometimes extended an 
olive branch across the aisle. Past Presidents have in these 
circumstances made bipartisan appointments, selecting nominees who were 
consensus candidates and often members of the other party.
  President Clinton had two Supreme Court nominees, and the left was 
pushing us as hard as the right is pushing you. What did he do? I spent 
several hours with him consulting on it. He picked two people on his 
watch who got 90 or so votes. Moderate, mainstream appointments. He did 
not appoint Scalias. He did not appoint Thomases. He appointed people 
acceptable to the Republicans because he was wise enough to know, even 
though he was President, we were still a divided Nation.
  History provides ample examples. During the midst of the Civil War, 
President Lincoln selected members of the opposition Democratic party 
for key positions, naming Stephen Field to the Supreme Court in 1863 
and Andrew Johnson as his Vice Presidential candidate in 1864.
  On the brink of American entrance into WWII, President Roosevelt 
likewise selected members of the opposition Republican party, elevating 
Harlan Fiske Stone to be Chief Justice and naming Henry Stimson as 
Secretary of War.
  Other 20th Century Presidents followed suit. In 1945, President 
Truman named Republican Senator Harold Burton to the Supreme Court. In 
1956, President Eisenhower named Democrat William Brennan to the 
Supreme Court. What has happened to us? What have we become?
  Does anyone not understand this Nation is divided red and blue and 
what it needs is a purple heart and not a red heart or a blue heart.
  Lest any of my colleagues think these examples are merely culled from 
the dusty pages of history, let me remind them that the Senate has 
witnessed recent examples of consensus appointments during times of 
close political division. As I already mentioned, President Clinton 
followed this historic practice during vacancies to the Supreme Court a 
decade ago.
  As explained by my friend, the Senior Senator from Utah, who was then 
the ranking member of the Senate Judiciary Committee, President Clinton 
consulted with him and the Republican Caucus during the High Court 
vacancies in 1993 and 1994. The result was President Clinton's 
selection of two outstanding and consensus nominees--Ruth Bader 
Ginsburg and Stephen Breyer--both of whom were confirmed overwhelmingly 
by the Senate, by votes of 97-3 and 87-9, respectively.
  Indeed, the last two vacancies to the Supreme Court are text book 
examples of the executive branch working in cooperative and collegial 
fashion with its Senate counterpart to secure consensus appointments, 
thus averting an ideological showdown. The two constitutional partners 
given roles in the nomination process engaged in a consultative process 
that respected the rights and obligations of both branches as an 
institutional matter, while also producing outstanding nominees who 
were highly respected by both parties.
  To be sure, a careful review of our Nation's history does not always 
provide the examples of consultation, comity, or consensus in the 
nomination process. Presidents of both parties have at times attempted 
to appoint nominees--or remove them once confirmed--over the objections 
of the Senate, including in some instances where the Senate was 
composed of a majority of the President's own party. And sometimes the 
Senate has had to stand strong and toe the line against imperialist 
Presidential leanings.
  Our first President, George Washington, saw one of his nominees to 
the Supreme Court rejected by this Senate in 1795. The Senate voted 14 
to 10 to reject the nomination of John Rutledge of South Carolina to be 
Chief Justice. What is historically instructive, I believe, is that 
while the Senate was dominated by the Federalists, President 
Washington's party, 13 of the 14 Senators who rejected the Rutledge 
nomination were Federalists.
  The Senate also stood firm in the 1805 impeachment of Supreme Court 
Justice Samuel Chase. President Jefferson's party had majorities in 
both the House and the Senate, and Jefferson set his sights on the 
Supreme

[[Page S4363]]

Court. Specifically, he wanted to remove Justice Chase, a committed 
Federalist and frequent Jefferson critic, from the Court.
  Jefferson was able to convince the House to impeach Justice Chase on 
a party-line vote, and the President had enough members of his party in 
the Senate to convict him. But members of the President's own party 
stood up to their President; the Senate as an institution stood up 
against executive overreaching. Justice Chase was not convicted, and 
the independence of the judiciary was preserved.
  The Senate again stood firm in the 1937 court-packing plan by 
President Franklin Roosevelt.
  This particular example of Senate resolve is instructive for today's 
debates, so let me describe it in some detail. It was the summer of 
1937 and President Roosevelt had just come off a landslide victory over 
Alf Landon, and he had a Congress made up of solid New Dealers. But the 
``nine old men'' of the Supreme Court were thwarting his economic 
agenda, overturning law after law overwhelmingly passed by the Congress 
and from statehouses across the country.
  In this environment, President Roosevelt unveiled his court-packing 
plan--he wanted to increase the number of Justices on the court to 15, 
allowing himself to nominate these additional judges. In an act of 
great courage, Roosevelt's own party stood up against this 
institutional power grab. They did not agree with the judicial activism 
of the Supreme Court, but they believed that Roosevelt was wrong to 
seek to defy established traditions as a way of stopping that activism.
  In May 1937, the Senate Judiciary Committee--a committee controlled 
by the Democrats and supportive of his political ends--issued a 
stinging rebuke. They put out a report condemning Roosevelt's plan, 
arguing it was an effort ``to punish the justices'' and that executive 
branch attempts to dominate the judiciary lead inevitably to autocratic 
dominance, ``the very thing against which the American Colonies 
revolted, and to prevent which the Constitution was in every particular 
framed.''
  Our predecessors in the Senate showed courage that day and stood up 
to their President as a coequal institution. And they did so not to 
thwart the agenda of the President, which in fact many agreed with; 
they did it to preserve our system's checks and balances; they did it 
to ensure the integrity of the system. When the Founders created a 
``different kind of legislative body'' in the Senate, they envisioned a 
bulwark against unilateral power--it worked back then and I hope that 
it works now.
  The noted historian Arthur Schlesinger, Jr., has argued that in a 
parliamentary system President Roosevelt's effort to pack the court 
would have succeeded. Schlesinger writes: ``The court bill couldn't 
have failed if we had had a parliamentary system in 1937.'' A 
parliamentary legislature would have gone ahead with their President, 
that's what they do, but the Founders envisioned a different kind of 
legislature, an independent institution that would think for itself. In 
the end, Roosevelt's plan failed because Democrats in Congress thought 
court-packing was dangerous, even if they would have supported the 
newly-constituted court's rulings. The institution acted as an 
institution.
  In summary, then, what do the Senate's action of 1795, 1805, and 1937 
share in common? I believe they are examples of this body acting at its 
finest, demonstrating its constitutional role as an independent check 
on the President, even popularly elected Presidents of the same 
political party.
  One final note from our Senate history. Even when the Senate's rules 
have been changed in the past to limit extended debate, it has been 
done with great care, remarkable hesitancy, and by virtual consensus. 
Take what occurred during the Senate's two most important previous 
changes to the filibuster rule: the 1917 creation of cloture and the 
1975 lowering of the cloture threshold.
  First, let's examine 1917. On the eve of the United States' entry 
into WWI, with American personnel and vessels in great danger on the 
high seas, President Wilson asked that Congress authorize the arming of 
American merchant vessels. Over three-fourths of the Senate agreed with 
this proposal on the merits, but a tiny minority opposed it. With 
American lives and property at grave risk, the Senate still took over 2 
months to come to the point of determining to change its rules to 
permit cloture.
  When they did so, they did it by virtual consensus, and in a 
supremely bipartisan manner. A conference committee composed equally of 
Democrats and Republicans, each named to the committee by their party 
leadership, drafted and proposed the new rule. It was then adopted by 
an overwhelming vote of 76-3.
  In 1975, I was part of a bipartisan effort to lower the threshold for 
cloture from two-thirds to three-fifths. Many of us were reacting 
against the filibustering for so many years of vital civil rights 
legislation. Civil rights is an issue I feel passionately about and was 
a strong impetus for me seeking public office in the first place. Don't 
get me wrong--I was not calling the shots back in 1975; I was a junior 
Senator having been in the chamber for only 2 years.
  But I will make no bones about it--for about two weeks in 1975--I was 
part of a slim bipartisan majority that supported jettisoning 
established Senate rules and ending debate on a rules change by a 
simple majority.
  The rule change on the table in 1975 was not to eliminate the 
filibuster in its entirety, which is what the current ``nuclear 
option'' would do for judicial nominations; rather it was to change 
from the then-existing two-thirds cloture requirement to three-fifths. 
It was a change in degree, not a fundamental restructuring of the 
Senate to completely do away with minority rights.
  The rule change was also attempted at the beginning of the Senate 
session and applied across the board, as opposed to the change 
currently on the table, brought up mid-session concerning only a very 
small subset of the Senate's business. Nonetheless, my decision to 
support cutting off debate on a rules change by a simple majority vote 
was misguided.
  I carefully listened to the debate in 1975 and learned much from my 
senior colleagues. In particular, I remember Senator Mansfield being a 
principled voice against the effort to break the rules to amend the 
rules.
  Senator Mansfield stood on this floor and said the following:

       [T]he fact that I can and do support [changing the cloture 
     threshold from \2/3\ to \3/5\] does not mean that I condone 
     or support the route taken or the methods being used to reach 
     the objective of Senate rule 22. The present motion to invoke 
     cloture by a simple majority, if it succeeds would alter the 
     concept of the Senate so drastically that I cannot under any 
     circumstances find any justification for it. The proponents 
     of this motion would disregard the rules which have governed 
     the Senate over the years, over the decades, simply by 
     stating that the rules do not exist. They insist that their 
     position is right and any means used are, therefore, proper. 
     I cannot agree.

  Senator Mansfield's eloquent defense of the Senate's institutional 
character and respect for its rules rings as true today as it did 30 
years ago. Senator Mansfield's courage and conviction in that 
emotionally charged time is further evidence, I believe, of why he is 
one of the giants of the Senate.
  In the end, cooler heads prevailed and the Senate came together in a 
way only the Senate can. I changed my mind; I along with my Senate 
colleagues. We reversed ourselves and changed the cloture rule but only 
by following the rules. Ultimately, over \3/4\ of the voting Senators--
a bipartisan group--voted to end debate. In fact, the deal that was 
struck called for reducing the required cloture threshold from \2/3\ to 
\3/5\; but it retained the higher \2/3\ threshold for any future rules 
changes.
  Now I understand that passions today are running high on both sides 
of the ``nuclear option'' issue, and I can relate to my current 
Republican colleagues. I agree with my distinguished Judiciary 
Committee Chairman that neither side has clean hands in the escalating 
judicial wars.
  I also understand the frustration of my Republican colleagues--
especially those who are relatively new to this Chamber--that a 
minority of Senators can have such power in this body.
  For me, the lesson from my 1975 experience, which I believe strongly 
applies to the dispute today, is that the Senate ought not act rashly 
by changing its rules to satisfy a strong-willed majority acting in the 
heat of the moment.

[[Page S4364]]

  Today, as in 1975, the solution to what some have called a potential 
constitutional crisis lies in the deliberate and thoughtful effort by a 
bipartisan majority of Senators to heed the wisdom of those who 
established the carefully crafted system of checks and balances 
protecting the rights of the minority. It's one thing to change Senate 
rules at the margins and in degrees, it's quite another to overturn 
them.
  Federalist No. 1 emphasizes that Americans have a unique 
opportunity--to choose a form of government by ``reflection and 
choice'':

       It has been frequently remarked that it seems to have been 
     reserved to the people of this country . . . to decide the 
     important question, whether societies of men are really 
     capable or not of establishing good government from 
     reflection and choice, or whether they are forever destined 
     to depend for their political constitutions on accident and 
     force.

  We need to understand that this is a question posed at the time of 
the founding and also a question posed to us today. At the time of the 
founding, it was a question about whether America would be able to 
choose well in determining our form of government.
  We know from the experience of the last 225 years that the founding 
generation chose well. As a question posed to citizens and to Senators 
of today, it is a question about whether we will be able to preserve 
the form of government they chose.
  The Framers created the Senate as a unique legislative body designed 
to protect against the excesses of any temporary majority, including 
with respect to judicial nominations; and they left all of us the 
responsibility of guaranteeing an independent Federal judiciary, one 
price of which is that it sometimes reaches results Senators do not 
like.
  It is up to us to preserve these precious guarantees. Our history, 
our American sense of fair play, and our Constitution demand it.
  I would ask my colleagues who are considering supporting the 
``nuclear option''--those who propose to ``jump off the precipice''--
whether they believe that history will judge them favorably.
  In so many instances throughout this esteemed body's past, our 
forefathers came together and stepped back from the cliff. In each 
case, the actions of those statesmen preserved and strengthened the 
Senate, to the betterment of the health of our constitutional republic 
and to all of our advantage.
  Our careers in the Senate will one day end--as we are only the 
Senate's temporary officeholders--but the Senate itself will go on.
  Will historians studying the actions taken in the spring of 2005 look 
upon the current Members of this Senate as statesmen who placed the 
institution of the United States Senate above party and politics?
  Or will historians see us as politicians bending to the will of the 
Executive and to political exigency?
  I, for one, am comfortable with the role I will play in this upcoming 
historic moment.
  I hope all my colleagues feel the same.
  Mr. President, on behalf of Senator Byrd, I ask unanimous consent to 
have printed in the Record a speech against the nuclear option 
delivered earlier this week by Senator Byrd to the Center for American 
Progress.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

      Upholding the Tradition of Freedom of Speech--April 25, 2005

       ``That 150 lawyers should do business together (in the U.S. 
     Congress) ought not to be expected.'' Those are the words of 
     Thomas Jefferson.
       Now comes the so-called Nuclear Option, or Constitutional 
     Option to prove him right. You know, I liked Jefferson, but I 
     always thought he borrowed some of my best stuff for that 
     declaration he wrote. This poisoned pill, euphemistically 
     designated ``the nuclear option'', has been around a long 
     time--since 1917, in fact, the year the cloture rule was 
     adopted by the U.S. Senate. It required no genius of 
     Brobdingnagian proportions to conjure up this witch's brew. 
     All that it takes is (1) to have the chair wired; (2) to have 
     a majority of 51 votes to back the chair's ruling; and (3) a 
     determined ruthlessness to execute the power grab.
       Over the 88 years since 1917, however, no White House and 
     no party in control of the Senate has ever resorted to the 
     use of this draconian weapon in order to achieve its goal. 
     Until now. Why now? It is because a determined minority in 
     the Senate has refused to confirm only 10 of over 200 
     nominees to federal judgeships submitted by President George 
     Bush during this first term as President. Since his 
     reelection, President Bush has resubmitted 7 of the 10 
     nominees who failed to be confirmed in his first term. Hence, 
     a heavy-handed move is about to be made to change the rules 
     by disregarding the standing rules of the Senate that have 
     governed freedom of speech and debate in the Senate for over 
     200 years. The filibuster must go, they say.
       Obstructive tactics in a legislative forum, although not 
     always known as filibusters, are of ancient origin. Plutarch 
     reported that, while Caesar was on sojourn in Spain, the 
     election of Consuls was approaching. ``He applied to the 
     Senate for permission to stand candidate,'' but Cato strongly 
     opposed his request and ``attempted to prevent his success by 
     gaining time; with which view he spun at the debate till it 
     was too late to conclude upon anything that day.'' Hey, the 
     filibuster has only been around 2,064 years, since circa 59 
     B.C.!
       Filibusters were also a problem in the British Parliament. 
     In 19th century England, even the members of the Cabinet 
     accepted the tactics of obstruction as an appropriate weapon 
     to defeat House of Commons' initiatives that were not 
     acceptable to the government. In this country, experience 
     with protracted debate began early. In the first session of 
     the First Congress, for example, there was a lengthy 
     discussion regarding the permanent site for the location of 
     the Capitol. Fisher Ames, a member of the House from 
     Massachusetts, complained that ``the minority . . . makes 
     every exertion to . . . delay the business.''
       Senator William Maclay of Pennsylvania complained that 
     ``every endeavor was used to waste time, . . . '' Long 
     speeches and other obstructionist tactics were more 
     characteristic of the House than of the Senate in the early 
     years.
       There have been successful filibusters that have benefited 
     the country. For example, in March 1911, Senator Owen of 
     Oklahoma filibustered a measure granting statehood to New 
     Mexico, arguing that Arizona should also be a state. 
     President Taft opposed the inclusion of Arizona's statehood 
     because a provision of Arizona's state constitution permitted 
     the recall of judges. Arizona later attained statehood, at 
     least in part because Senators took time to make the case the 
     year before. Another example occurred in July 1937, when a 
     Senate filibuster blocked FDR's Supreme Court-packing plan 
     until public opinion turned against the plan.
       Freedom of speech and debate is enshrined in Article I, 
     Section 6, of the U.S. Constitution. The roots run deep. 
     Before the British Parliament would proclaim William III and 
     Mary as king and queen of England, they were required to 
     swear allegiance to the British Declaration of Rights, which 
     they did on February 13, 1689. They were then declared joint 
     sovereigns by the House of Commons. The declaration was 
     converted into the English Bill of Rights by statute on 
     December 16, 1689, the 9th Article of which guarantees 
     freedom of speech and debate in Parliament in words similar 
     to those in our own Constitution, Article I, Section 6.
       So now, for the first time in the 217 years since 1789, the 
     tradition of freedom of speech and debate in the Senate is 
     under a serious threat of extinction by the majority party 
     through resort to the nuclear option.
       Marty Gold, deservedly respected for his knowledge of the 
     Senate rules and precedents, and opponents of free speech and 
     debate claim that, during my tenure as Majority Leader in the 
     United States Senate, I established precedents that now 
     justify a proposal for a misguided attempt to end debate on a 
     judicial nomination by a simple majority vote, rather than by 
     a 3/5s vote of all Senators duly chosen and sworn as required 
     by Paragraph 2 of Senate Rule XXII. Their claims are false. 
     Utterly false!
       Proponents of the so-called ``nuclear option'' cite several 
     instances in which they inaccurately allege that I ``blazed a 
     procedural path'' toward an inappropriate change in Senate 
     rules. They are dead wrong. Dead wrong! They draw analogies 
     where none exist and create cockeyed comparisons that fail to 
     withstand even the slightest intellectual scrutiny. My 
     detailed response to these false claims and allegations 
     appears in the March 20, 2005, edition of the Congressional 
     Record. But, simply put, no action of mine ever denied a 
     minority of the Senate a right to full debate on the final 
     disposition of a measure or matter pending before the Senate. 
     Not in 1977, not in 1979, not in 1980, not in 1987--the dates 
     cited by critics as grounds for the nuclear option. In none 
     of the instances cited by those who threaten to invoke the 
     nuclear option did my participation in any action deny the 
     minority in the Senate, regardless of party, its right to 
     debate the real matter at hand.
       Now why can't reasonable Senators on both sides of the 
     aisle act in the best interests of the Senate, the 
     Constitution, and the country by working together to find a 
     way to avoid this procedural Armageddon? President Gerald 
     Ford always said that he believed in friendly compromise and 
     called compromise ``the oil that makes governments go.''
       When I was a mere lad in southern West Virginia, I once 
     accidentally threw a wooden airplane I had crafted through 
     the glass of a window in a neighbor's house. The neighbor's 
     name was Mr. Arch Smith. He was angry, and I was scared. Into 
     the house I went to plead with Mr. Smith not to tell my Dad. 
     I

[[Page S4365]]

     knew that a belt thrashing awaited me if he did. I promised 
     to pay Mr. Smith .35 cents for the windowpane if he would 
     stay mum about the accident. I would raise the .35 cents by 
     running errands for a friendly lady next door. We struck a 
     deal. We compromised. And my dad never learned of the 
     incident until after I had paid my debt. That compromise 
     saved me a licking, and paid for Mr. Smith's broken window. 
     The sweet art of compromise solved our dispute.
       Of course, the Senate itself is the result of a compromise 
     which solved a dispute. The Senate answered the plea of the 
     smaller states for equality and a forum where they could have 
     equal representation and minority views could be heard. 
     Because of that famous action, the Great Compromise of July 
     16, 1787, the Senate and the House balance each other, 
     reflecting majority rule and minority rights like halves of 
     the same apple in our Republic, and achieving a delicate 
     balance--a finely tuned, exquisitely honed accommodation of 
     tensions which has endured for over 200 years. To paraphrase 
     the words of James Madison, the Republic has been structured 
     to, ``guard against the cabals of a few . . .,'' as well as 
     against the ``confusion of a multitude . . .''
       The Constitution, under Article II, Section 2, requires a 
     President to submit his selection of Federal judges, members 
     of his own cabinet, and certain other high-ranking officials 
     to the Senate for its ``advice and consent.'' The Framers 
     allowed the Executive only to propose. It was left to the 
     Senate to dispose. There is no stipulation in the 
     Constitution as to how the Senate is to express its advice or 
     give its consent. President Bush incorrectly maintains that 
     each nominee for a federal judgeship is entitled to an up or 
     down vote. The Constitution doesn't say that. It doesn't even 
     say that there has to be a vote with respect to the giving of 
     ``its consent.'' The Senate can refuse to confirm a nominee 
     simply by saying nothing and doing nothing. In Section 2, 
     Article II, it says, `` . . . and by and with the advice and 
     consent of the Senate, [He] shall appoint ambassadors . . . 
     Judges of the Supreme Court, and all other Officers of the 
     United States. . . .''
       Just as in Article I concerning the setting of Senate 
     rules, Article II allows the Senate the freedom to determine 
     how it will use its advice and consent powers. The choice 
     of the Senate as the single entity to work with the 
     President on the selection of life-tenured federal judges 
     seems strongly to indicate the Framer's desire for 
     scrutiny by the House of Congress uniquely designed for 
     the protection of minority views. The Framers could have 
     selected the majoritarian House of Representatives for 
     such a duty. They did not. In fact, they totally excluded 
     the House. They made a conscious decision to delegate the 
     ``advice and consent'' function to the United States 
     Senate.
       But, suppose the President's party controls the Senate, and 
     therefore controls the votes of a majority in the Senate? 
     Where then, is the check on Presidential power? The 
     filibuster is the minority's strongest tool in providing the 
     Constitutional curb on raw Presidential power when it comes 
     to nominations and the federal courts. Of course, the 
     President's party could occupy 60 seats in the Senate, and 
     that would be enough to break any filibuster except when 
     amending the rules. But, 60 votes is a high threshold, and 
     does provide an effective check on the abuse of power. Why 
     would we ever want to eliminate this important check on 
     Presidential power? Haven't we always had a healthy suspicion 
     of too much power in the hands of a King or any President 
     regardless of party affiliation? The filibuster is the final 
     bulwark preventing a President from stacking the courts (as 
     FDR tried to do in 1937) if his political party holds a 
     majority in the Senate. Without the ability by a minority to 
     defeat cloture by a supermajority vote, that slim wall 
     holding back the waters of destruction of a fair and 
     independent judiciary, ruptures. Other liberties enumerated 
     in the bill of rights can then also be washed away by a 
     President who stacks the courts to reflect a political 
     agenda. Freedom of speech, freedom of religion, all could be 
     gone, wiped out by a partisan court, beholden to one man: the 
     President.
       The threat of the so-called ``nuclear option'' puts us on a 
     dangerous course. Yet, incredibly, today we stand right on 
     the brink, maybe only days away, from destroying the checks 
     and balances of our Constitution. What has happened to the 
     quality of leadership in this country that would allow us to 
     even consider provoking a Constitutional crisis of such major 
     proportions? Where is the gentle art of compromise? Edmund 
     Burke said, ``All government--indeed, every human benefit and 
     enjoyment, every virtue and every prudent act--is founded on 
     compromise and barter.'' As I have said earlier, the nuclear 
     option has been around for years. It could have been employed 
     at anytime. Yet, no leader of either party chose to go down 
     that path because the consequences are so dire. Why have we 
     arrived at such a dangerous impasse?
       Reaction to recent decisions handed down by Federal Courts 
     has fueled the drive toward this act of self destruction. 
     Many citizens, religious people, angered by a feeling of 
     years of exclusion from our political process, are deeply 
     frustrated. I am in sympathy with such feelings. I do not 
     agree with many of the decisions which have come from the 
     courts concerning prayer in school, and prohibitions on the 
     public display of religious items. For example, relating to 
     freedom of religion, Article I states: ``Congress shall make 
     no law respecting an establishment of religion, or 
     prohibiting the free exercise thereof; . . .'' In my opinion, 
     the courts have not given equal weight to both of these 
     clauses but have stressed the first clause while not giving 
     enough weight to the second clause ``or prohibiting the free 
     exercise thereof;. . . .'' I have always believed that this 
     country was founded by men and women of strong faith, and 
     that their intent was not to suppress religion in the life of 
     our nation, but to ensure that the government favored no one 
     religion over another. I understand the extreme anger of many 
     good people who decry the nature of our popular culture, with 
     its overt emphasis on sex, violence, profanity, and 
     materialism. They have every right to seek some sort of 
     remedy. But these frustrations, as great as they are, must 
     not be allowed to destroy crucial institutional mechanisms 
     which protect minority rights, and curb the power of an 
     overreaching President. Yet, that is exactly what is about to 
     happen, with this very misdirected attack on the filibuster.
       The outlook for compromise is dim. The debate has reached a 
     fever pitch and political polarization is at levels I have 
     never seen. Democrats have overreached. Republicans have 
     overreacted. And the White House has poured salt in the wound 
     by sending the same contentious nominations right back to the 
     Senate as if there were not a country full of qualified and 
     talented judges from which to choose. Our two great political 
     parties are not having a national debate. We are simply 
     shouting at each other. I have heard statements of late which 
     cause me to shudder--such things as, ``Democrats hate 
     America,'' or ``Democrats hate people of faith,'' or 
     ``Republicans want to eliminate separation of Church and 
     State.'' Thinking Americans would ordinarily shun such 
     extreme and ridiculous rhetoric. Yet, vituperation and 
     extremism continue to rage on all sides. There have even been 
     overt attempts to physically threaten and intimidate Federal 
     judges. When the nation becomes this divided, when the spin 
     becomes this mean, the destruction of basic principles which 
     have been our guide for more than two centuries looms 
     straight ahead. Moreover, the trashing and trampling of 
     comity leaves ugly scars sure to fester and linger. How can 
     we recover from the venom spewed by this dangerous political 
     ploy and get on with the people's business, especially if the 
     nuclear trigger is actually pulled?
       At such times as these, the character of the leaders of 
     this country is sorely tested. Our best leaders search for 
     ways to avert such crises, not ways to accelerate the plunge 
     toward the brink. Overheated partisan rhetoric is always 
     available, although these days it seems to come especially 
     cheap, but the great majority of our people want a healthy 
     two-party system and leaders who know how to work together, 
     despite serious differences.
       The current uproar serves only to underscore the mounting 
     number of problems not being addressed by this government. 
     Over forty five million persons in our country, some 15% of 
     our population cannot afford health care insurance. Our 
     infant mortality rate is the second highest of the major 
     industrialized countries of the world. Our deficits are 
     skyrocketing. Poverty in these United States is rising, with 
     34 million people or 12.4% of the population living below the 
     poverty line. Our veterans lack adequate medical care after 
     they have risked life and limb for all of us. Our 
     education system produces 8th graders ranked 19th out of38 
     countries in the world in math, and 12th graders ranked 
     19th out of 21 countries in both math and science. Yet, we 
     debate and seek solutions to none of these critical 
     problems, and instead focus all energy on the frenzy over 
     the selection of judges, and seek as an antidote to our 
     frustration, the preposterous solution of permanently 
     crippling freedom of speech and debate and the right of a 
     minority to dissent in the United States Senate.
       It is very important to remember that the Senate has 
     formalized ways of considering changes to our rules. Changes 
     require 67 votes to curtail a filibuster of rules changes. If 
     this nuclear option is employed in the way most frequently 
     discussed, i.e. a ruling from the chair that a supermajority 
     requirement for cloture on a filibuster in respect to 
     amending the rules is unconstitutional, if sustained by 51 
     votes, cloture will require only a simple majority vote with 
     respect to federal judgeships. There is nothing, then, except 
     good sense, which seems to be in very short supply, to 
     prevent majority cloture of any filibuster on any measure or 
     matter, whether on the legislative or the executive calendar. 
     Think of that! Rules going back for over 200 years and 
     beyond, with roots in the early British Parliament, can be 
     swept away by a simple majority vote. Because of demagoguery, 
     lack of leadership, raw ambition, hysteria, and a state of 
     brutal political warfare that wants no truce and brooks no 
     peacemakers, we may destroy the U.S. Senate, leaving in our 
     wake a President able to select and intimidate the courts 
     like a King, and a system of government finally and 
     irretrievably lost in a last pathetic footnote to Ben 
     Franklin's rejoinder for the ages, ``a Republic, if you can 
     keep it.'' This is scary!
       I suspect that at least part of what all of this dangerous 
     sound and fury is about can be explained by the advanced ages 
     of several Supreme Court Justices, and rumors of the Chief 
     Justice's coming retirement due to ill health. The White 
     House does not want a filibuster in the Senate to derail a 
     future choice for the Supreme Court.

[[Page S4366]]

       Let me step into the brink and propose something that might 
     calm some waters. In the 105th Congress, Senator Arlen 
     Specter and I introduced S. Res. 146, a bill which would 
     establish an advisory role for the Senate in the selection of 
     Supreme Court Justices. Except for a very limited 
     ``floating'' of names shortly before the President sends up a 
     nomination for the Supreme Court, no one gets to weigh in on 
     the choices until after they are made. As in so many 
     instances in Washington, broad consultation is nonexistent. 
     In the case of potential occupants for the Federal Bench, 
     that is a recipe for instant polarization before hearings on 
     nominees are even held. Everyone quickly takes sides, and the 
     steam mounts like in an overheated pressure cooker until the 
     lid is about to blow off.
       Therein lies the source of some of the fighting over the 
     make-up of the Courts--no prior consultation, so, in effect, 
     no ``advice'' independent of the White House. Our bill aims 
     to release some of that steam in this way. The Senate 
     Judiciary Committee would establish a pool of possible 
     Supreme Court nominees for the President to consider, based 
     on suggestions from Federal and State judges, distinguished 
     lawyers, law professors, and others with a similar level of 
     insight into the suitability of individuals for appointment 
     to the Supreme Court.
       Such a pool would fulfill the Senate's ``advice'' function 
     under Article II, Section 2. In other words, everyone could 
     get their ``oar'' into the prospective judicial waters. The 
     President would of course be free to ignore the pool if he 
     chose to do so. But, the ``advice'' required by the 
     Constitution would be formally available, and the President 
     would know that the individuals in the pool had received a 
     bipartisan nod from the Senate Committee required to do the 
     vetting. Such a pool might even be expanded to include all 
     nominees for our federal judiciary.
       Perhaps letting the Senate in on the judicial ``take off'' 
     as well as the landing can help in the future to heal some of 
     the anger which dominates the discussion of the Federal 
     Courts these days.
       But for now, like many of you, I simply hope and pray that 
     cooler heads will prevail, and compromise (that fading art) 
     will prevent us from heading over the cliff. There are, at 
     least some efforts in that direction, but time is very short. 
     In just a few days we may see the unbelievable come to pass--
     one man, the President, able to select the third, unelected 
     branch of government, including the court of last resort, the 
     Supreme Court; the Senate of the United States relegated to a 
     second House of Representatives with six year terms; free 
     speech and unfettered debate rejected; and the Constitutional 
     checks and balances in sad and sorry tatters. Shame! What a 
     shame!
       In closing, let us remember the words spoken by Vice 
     President Aaron Burr in 1805 when he addressed the Senate for 
     the last time:
       This House is a sanctuary; a citadel of law, of order, and 
     of liberty; and it is here--it is here, in this exalted 
     refuge; here, if anywhere, will resistance be made to the 
     storms of political phrensy and the silent arts of 
     corruption; and if the Constitution be destined ever to 
     perish by the sacrilegious hands of the demagogue or the 
     usurper, which God avert, its expiring agonies will be 
     witnessed on this floor.
       Ladies and gentlemen, the clock is running and the hour of 
     fulfillment of Vice President Burr's prophesy is virtually at 
     hand.

  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I ask unanimous consent we be extended an extra 15 
minutes, as well.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          judicial nominations

  Mr. HATCH. The Senator from Delaware a few minutes ago claimed we 
have never changed our procedures by majority vote. Four times the 
distinguished Senator from West Virginia led this body to do exactly 
that when he was acting as majority leader--in 1977, 1979, 1980, and 
1987. Using a ruling from the Chair and a majority of all the Senate, a 
simple majority, we changed procedure relating to both legislation and 
nominations. The record has to be made clear.
  All we are asking is the 214-year tradition of the Senate that 
judicial nominees not be filibustered be followed. That has been the 
tradition of the Senate up until President Bush became President. All 
we are asking is that every one of these qualified nominees who have 
reached the floor receive an up-or-down vote. That is all we are 
asking.
  These are highly qualified nominees. The ABA has ruled they are 
qualified in every case. They all have a majority bipartisan vote in 
their favor. If our colleagues on the other side do not want to vote 
for them, they can vote against them. That will be their right. I would 
fight always to maintain that right. But give them a vote, vote up or 
down. That is what we have always done for 214 years before this 
President became President.
  The actions of our colleagues on the other side amount to changing 
that 214-year traditional history of this Senate.
  By the way, we never called this the nuclear option. It was called 
the nuclear option by the Democrats. We called it the constitutional 
option because the Constitution says the President has the right to 
appoint and nominate these people for judicial positions. We have the 
right to advise and--it is sometimes left off in this body--consent, 
which means a vote up and down.
  That is what I think our colleagues ignore. This is a dangerous 
thing. I call it the constitutional option, or I call it the Byrd 
option because our distinguished friend, the Senator from West 
Virginia, is the one who used this four times.
  If politics is a medicine, an effective prescription gives an 
accurate diagnosis. I take a step back and offer a diagnosis of our 
current struggle over how to conduct the judicial confirmation process. 
I hope this will bring a few pieces together, connect some dots, and 
provide a little perspective.
  The first principle is every judicial nomination reaching the Senate 
deserves an up-or-down vote.
  This principle has constitutional roots, historical precedent, and 
citizen support. I begin with the Constitution because that is where we 
should always begin. The Constitution is the supreme law of the land. 
Along with the Declaration of Independence, it is one of the 
foundational organic laws of the United States. It is the charter that 
each of us, as Senators, swears an oath before God to preserve, 
protect, and defend.
  That Constitution separates the three branches of Government, 
assigning legislation to us in the legislative branch, and assigning 
appointments to the President in the executive branch. We have heard 
that the Constitutional Convention considered other arrangements for 
appointing judges. That may be, but the Constitutional Convention 
rejected those arrangements. Rejected ideas do not govern us. The 
Constitution does. And the Constitution makes the President, in 
Alexander Hamilton's words, the ``principal agent'' in appointments, 
while the Senate is a check on that power.
  Giving judicial nominations reaching the floor an up-or-down vote, 
that is, exercising our role of advice and consent through voting on 
nominations, helps us resist the temptation of turning our check on the 
President's power into a force that can destroy the President's power 
and upset the Constitution's balance.
  Historically, we have followed this standard of everybody who reaches 
the floor getting an up-or-down vote. When Republicans ran the Senate 
under President Clinton, we gave each of his judicial nominations 
reaching the floor a final confirmation decision, an up-or-down vote. 
We took cloture votes, that is, votes to end debate, on four of the 
hundreds of nominees reaching us here. All four were confirmed. As a 
matter of fact, we confirmed 377 judges nominated by President Clinton, 
almost the same number as the all-time confirmation champion, and that 
was Ronald Reagan, who got 382. But Ronald Reagan had 6 years of a 
Republican Senate to help him. President Clinton only had 2 years of a 
Democrat Senate to help him. Yet, with the aid of the Republicans on 
the Judiciary Committee and in this body, he got 377 approved.
  In fact, even on the most controversial appeals court nominations by 
President Clinton, the Republican leadership used cloture votes to 
prevent filibusters and ensure up-or-down votes, exactly the opposite 
of how cloture votes are being used during President Bush's Presidency.
  This principle that every judicial nomination reaching the Senate 
floor deserves an up-or-down vote not only has constitutional roots and 
historical precedent, it also has citizen support. I saw in the 
Washington Post yesterday a poll framed in partisan terms, asking 
whether Senate rules should be changed ``to make it easier for the 
Republicans to confirm Bush's judicial nominees.''
  With all due respect, this question could easily have been written in 
the Democrats' new public relations war room. I am actually surprised 
that such a biased question did not get even more than 66-percent 
support.
  A more balanced, neutral, fair poll was released yesterday, asking 
whether

[[Page S4367]]

Senate procedures should make sure that the full Senate votes up or 
down on every judicial nomination of any President. The results, not 
surprisingly, were exactly the opposite of the biased poll, with 64 
percent of Americans, including 59 percent of moderates and almost half 
of all liberals, embracing this commonsense, fair, and traditional 
standard.
  The second aspect of this diagnosis is that the judicial nominees 
being denied this traditional up-or-down vote are highly qualified men 
and women, with majority, bipartisan support.
  Last week, I addressed how opponents of President Bush's nominees 
play games with words such as ``extremist.'' Just as they want to talk 
about a judicial appointment process the Constitution did not 
establish, these critics want to talk about everything but what these 
nominees would do on the bench. We know, from abundant testimony by 
those who know these nominees best, that no matter how provocative 
their speeches off the bench or strongly held beliefs in their hearts 
and minds, these nominees are or would be fair, impartial, and 
evenhanded on the bench.
  Yet they are called extremists. All 10 of them--there are only 7 
remaining--but all 10 of them had qualified ratings, and most well 
qualified, the highest rating of the American Bar Association. By the 
way, that was considered the ``gold standard'' during the Clinton years 
by our friends on the other side.
  Now this is the real standard.
  It is hard to believe we are actually arguing about whether we should 
vote on judicial nominations and whether highly qualified nominees, 
with majority support--bipartisan, majority support--should be 
confirmed. Yet the third part of this diagnosis is that Senate 
Democrats are trying to change our tradition of giving judicial 
nominations reaching the Senate floor an up-or-down vote. Senators, of 
course, are free to vote against them for any reason. We must, of 
course, have a full and vigorous debate about these nominees and their 
qualifications.

  The critics, however, do not want to have that debate. Democrats in 
this body and the leftwing interest groups that, to a certain extent, 
seem to control them, want only to seize what they cannot win through 
the fair, traditional system. Beginning in the 108th Congress, for the 
first time in American history, they are now using the filibuster not 
to debate but to defeat majority-supported judicial nominations.
  They are trying to rig the confirmation process, to pry us away from 
our tradition that respected the separation of powers, and force us 
into a brave, new world which turns the judicial appointment process 
inside out. They want to turn our check on the President's appointment 
power into a force that hijacks that power altogether. That would be 
serious and constitutionally suspect if a Senate majority did it. It is 
even more serious when, as we see today, a minority of Senators--all 
partisan Senators--tries to capture the process.
  For 2 years now, we have heard claims that these filibusters are 
nothing new, that they have been part and parcel of how the Senate has 
long done its confirmation business. While some questions in this 
debate may be subjective and complex, this is not one of them. The 
current filibusters target bipartisan, majority-supported judicial 
nominations, and they defeat them by preventing confirmation votes. 
Either that happened before the 108th Congress or it did not.
  Let us look at what our Democratic colleagues have claimed. On March 
11, 2003, the distinguished Senator from Vermont displayed here on the 
Senate floor a chart titled: ``Republican Filibusters of Nominees.'' He 
said his list proved that Republicans have ``succeeded in blocking many 
nominees by cloture votes.'' Anyone can look it up for him or herself. 
The whole chart is right there on page S3442 of the Congressional 
Record.
  It turns out only 6 of the 19 names on the chart were judicial 
nominations, that the Senate actually confirmed 5 of those 6, and the 
other one did not have majority support. And there was a real question 
whether that was a filibuster raised, not in the least sense by the 
person who conducted the debate on the Republican side, Senator Robert 
Griffin, who had an impeccably honest--and still does--an impeccably 
honest reputation. He said there was never a desire to filibuster 
Justice Fortas. He said they wanted 2 more days of debate to make their 
case. But, he said, they had enough votes to defeat him up and down. 
Now, he was here on the Senate floor. He knew it. He led the fight. And 
the votes were bipartisan, almost equal. It turns out, again, that only 
6 of the 19 names on the chart were judicial nominations, that the 
Senate actually confirmed 5 of them, and the only one they did not was 
Justice Fortas, because Lyndon Johnson pulled him, not wanting to be 
embarrassed.
  Far from justifying today's filibusters, the chart of the 
distinguished Senator from Vermont proved no precedent exists at all.
  On November 12, 2003, the Senator from Vermont tried again, this time 
with a list of what he claimed were Clinton appeals court nominees 
supposedly blocked by Republicans. Once again, the list included 
nominations the Senate confirmed--every one of them. How can a 
confirmed nomination be called a blocked nomination? It cannot. Not a 
single nomination on Senator Leahy's list is similar to the nominations 
being filibustered today.
  That same day, November 12, 2003, the distinguished Senator from 
Illinois, Mr. Durbin, named 5 judicial nominations which he said had 
been filibustered. Once again, not one of them is a precedent for 
filibusters happening today. You would think no one with a straight 
face would claim that ending debate and confirming nominations is 
somehow precedent for not ending debate and refusing to confirm 
nominations.
  On April 15, 2005, the distinguished assistant minority leader, 
Senator Durbin, expanded his previous list, now offering us 12 examples 
of what he said were judicial nominations requiring at least 60 votes 
for cloture to end a filibuster. I addressed this in more detail last 
week. Not one--not one--of those 12 of Senator Durbin's supposed 
precedents is any precedent at all.
  The first nomination on his list occurred in 1881, 36 years before we 
even had a cloture rule in the Senate. In fact, if we truly did what he 
apparently wants us to do, and treated his listed examples as a 
confirmation guide, we would vigorously debate judicial nominations, 
invoke cloture if we needed to, and then vote on the confirmations. 
That is what happened.
  This game continued as recently as 2 months ago. On Monday, April 25, 
on CNN's ``Crossfire'' program, the leader of a prominent leftwing 
group claimed that more than 30 nominations--here is the list--had been 
filibustered. I have this list right here in my right hand. It is 
titled: ``Filibusters of Nominations.'' It lists 13 judicial 
nominations out of the 30, and not one of them is at all like the 
filibusters being conducted today--not one. We did not even take a 
cloture vote on two of them. We invoked cloture on eight of them. We 
confirmed 12 of the 13. And the one we did not, did not have majority 
support, the Fortas nomination, but had bipartisan opposition.
  Accepting such fraudulent arguments requires believing that ending 
debate on judicial nominations is the same as not ending debate, that 
confirming judicial nominations is the same as not confirming them, and 
that judicial nominations without majority support are the same as 
those with majority support. As you can see, the liberal propaganda 
machine has been working overtime.
  In addition to these bizarre claims I described, they worked to turn 
what was once common sense and accepted fairness into something that 
sounds sinister and unseemly. They manufacture nasty phrases such as 
``court packing'' and ominous warnings about ``one-party rule.'' Now, 
we are told, preventing up-or-down votes on even majority-supported 
judicial nominations is the only way to prevent our entire 
constitutional order from imploding. The sky is falling, and we are all 
about to slide into the abyss.
  The purveyors of this fantasy would have us look to President 
Franklin Delano Roosevelt who, they tell us, wanted to pack the Supreme 
Court. The Senate rejected his legislative proposal to expand the Court 
so he could appoint more Justices. By taking this stand, the 
storytellers say, the Senate kept one-party rule from packing the 
Court.

[[Page S4368]]

  Well, as Paul Harvey might say: Here is the rest of the story.
  The Senate, even though dominated by President Roosevelt's own party, 
did not support this legislative plan. And it turns out President 
Roosevelt did not need any legislative innovations to pack the Supreme 
Court. He packed it all right, doing it the old-fashioned way, by 
appointing eight out of nine Justices in 6 years. Mind you, during the 
75th to the 77th Congress, Democrats outnumbered Republicans by an 
average of 70 to 20. Now, that is one-party rule.
  In those years, from 1937 to 1943, our cloture rule applied only to 
bills. This meant that ending debate on other things, such as 
nominations, required unanimous consent. A single Senator in that tiny, 
beleaguered minority could conduct a filibuster of President 
Roosevelt's nominations and thwart the real court packing that was in 
full swing.
  Now, if the filibuster were the only thing preventing one-party rule 
from packing the courts, and the filibuster were so easily used, surely 
there must be in history filibusters of President Roosevelt's Supreme 
Court nominations. If the warnings, frantic pleas, and hysterical 
fundraising appeals we hear today make any sense at all, the filibuster 
would certainly have been used in FDR's time.
  I hate to burst anyone's bubble, but there were no filibusters, not 
even by a single Senator, not against a single nominee. In fact, FDR's 
8 Supreme Court nominees were confirmed in an average of 13 days, and 6 
of the 8 were confirmed without even a rollcall vote.
  So if this is to protect the minority, why has it not ever happened 
before President Bush became President? Even when we look at the very 
examples and stories the other side uses, we see no support for using 
the filibuster against majority-supported judicial nominations.
  Last week, here on the Senate floor, the distinguished Senator from 
Illinois repeated a selective version of this FDR story and asked what 
would happen today in a Senate dominated by the President's party. He 
asked:

       Will they rise in the tradition of Franklin Roosevelt's 
     Senate?

  Well, I hope we do. I hope the Senate does exactly what Franklin 
Roosevelt's Senate did, by debating and voting on the President's 
judicial nominations. Franklin Roosevelt's Senate did not use the 
filibuster, even when the minority was much smaller and the filibuster 
much easier to use, and this Senate should not do so, either.
  Finally, the fourth piece to this diagnosis of our current situation 
is that Senate Democrats have threatened to shut down the Senate if the 
majority moves us back to the tradition--the 214-year tradition--of 
debating and voting on judicial nominations.
  To avoid what most Americans believe Senators come to Washington to 
do--debate and vote--we are now threatened with a party policy of open 
obstruction, a nuclear option of shutting down the Senate, at least to 
anything but what they agree to. I said a few minutes ago that the 
Constitution's separation of powers assigns legislative business to 
Congress and executive business, including appointments, to the 
President. Some Senators on the other side of the aisle are saying if 
they cannot hijack what is not theirs, they will destroy what is 
theirs. If they cannot abandon Senate tradition and use the filibuster 
to defeat majority-supported judicial nominations, they will undercut 
and disable the legislative process. And they call us radical.
  The Constitution gives the power of nomination and appointment to the 
President. The Senate provides a check on that power. I believe we must 
preserve the system of separated powers and checks and balances and 
resist those who would radically alter that system, turning the 
Senate's check on the President's power into a force that can overwhelm 
the President's power.
  Every judicial nomination reaching the Senate floor deserves an up-
or-down vote. I argued that during the Clinton years, and I prevailed 
as chairman of the Judiciary Committee. That principle has 
constitutional roots, historical precedent, and citizen support. 
President Bush has sent two highly qualified nominees that we know have 
bipartisan majority support. They deserve to be treated decently and, 
after a full and vigorous debate, given an up-or-down vote.
  Our colleagues on the other side are trying to change our tradition. 
For the first time in more than two centuries, they want to use 
filibusters to block confirmation votes on judicial nominations here on 
the Senate floor. This radical innovation is not needed to prevent one-
party rule from packing the courts. Republicans resisted using the 
filibuster under Roosevelt and Democrats should resist using it today.
  Finally, all Americans should be most concerned with the threat of 
some of our colleagues on the other side. Because they are unable to 
seize control of a judicial appointment process that does not belong to 
the Senate, Democrats say they will shut down the legislative process 
that does belong to the Senate. This cannot stand. With all due 
respect, they need to get both their principles and their priorities in 
order.
  Our former majority leader Bob Dole has a thoughtful column in 
today's New York Times also addressing Senate tradition and the 
prospect of returning to that tradition. No one loves this institution 
more than Senator Dole, and I think I am in that category, too.
  I ask unanimous consent that his column be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Apr. 27, 2005]

                            Up, Down or Out

                         (By Senator Bob Dole)

       In the coming weeks, we may witness a vote in the United 
     States Senate that will define the 109th Congress for the 
     ages. This vote will not be about war and peace, the economy 
     or the threat from terrorism. It will focus instead on 
     procedure: whether the Senate should amend its own rules to 
     ensure that nominees to the federal bench can be confirmed by 
     a simple majority vote.
       I have publicly urged caution in this matter. Amending the 
     Senate rules over the objection of a substantial minority 
     should be the option of last resort. I still hold out hope 
     that the two Senate leaders will find a way to ensure that 
     senators have the opportunity to fulfill their constitutional 
     duty to offer ``advice and consent'' on the president's 
     judicial nominees while protecting minority rights. Time has 
     not yet run out.
       But let's be honest: By creating a new threshold for the 
     confirmation of judicial nominees, the Democratic minority 
     has abandoned the tradition of mutual self-restraint that has 
     long allowed the Senate to function as an institution.
       This tradition has a bipartisan pedigree. When I was the 
     Senate Republican leader, President Bill Clinton nominated 
     two judges to the federal bench--H. Lee Sarokin and Rosemary 
     Barkett--whose records, especially in criminal law, were 
     particularly troubling to me and my Republican colleagues. 
     Despite my misgivings, both received an up-or-down vote on 
     the Senate floor and were confirmed. In fact, joined by 32 
     other Republicans, I voted to end debate on the nomination of 
     Judge Sarokin. Then, in the very next roll call, I exercised 
     my constitutional duty to offer ``advice and consent'' by 
     voting against his nomination.
       When I was a leader in the Senate, a judicial filibuster 
     was not part of my procedural playbook. Asking a senator to 
     filibuster a judicial nomination was considered an abrogation 
     of some 200 years of Senate tradition.
       To be fair, the Democrats have previously refrained from 
     resorting to the filibuster even when confronted with 
     controversial judicial nominees like Robert Bork and Clarence 
     Thomas. Although these men were treated poorly, they were at 
     least given the courtesy of an up-or-down vote on the Senate 
     floor. At the time, filibustering their nominations was not 
     considered a legitimate option by my Democratic colleagues--
     if it had been, Justice Thomas might not be on the Supreme 
     Court today, since his nomination was approved with only 52 
     votes, eight short of the 60 votes needed to close debate.
       That's why the current obstruction effort of the Democratic 
     leadership is so extraordinary. President Bush has the lowest 
     appellate-court confirmation rate of any modern president. 
     Each of the 10 filibuster victims has been rated 
     ``qualified'' or ``well qualified'' by the American Bar 
     Association. Each has the support of a majority in the 
     Senate. And each would now be serving on the federal bench if 
     his or her nomination were subject to the traditional 
     majority-vote standard.
       This 60-vote standard for judicial nominees has the effect 
     of arrogating power from the president to the Senate. Future 
     presidents must now ask themselves whether their judicial 
     nominees can secure the supermajority needed to break a 
     potential filibuster. Political considerations will now 
     become even more central to the judicial selection process. 
     Is this what the framers intended?
       If the majority leader, Bill Frist, is unable to persuade 
     the Democratic leadership to end its obstruction, he may move 
     to change the Senate rules through majority vote. By

[[Page S4369]]

     doing so, he will be acting in accordance with Article I of 
     the Constitution (which gives Congress the power to set its 
     own rules) and consistently with the tradition of altering 
     these rules by establishing new precedents. Senator Frist was 
     right this past weekend when he observed there is nothing 
     ``radical'' about a procedural technique that gives senators 
     the opportunity to vote on a nominee.
       Although the Democrats don't like to admit it, in the past 
     they have voted to end delaying tactics previously allowed 
     under Senate rules or precedents. In fact, one of today's 
     leading opponents of changing the Senate's rules, Senator 
     Robert Byrd, was once a proponent of doing so, and on several 
     occasions altered Senate rules through majoritarian means. I 
     have great respect for Senator Byrd, but Senate Republicans 
     are simply exploring the procedural road map that he himself 
     helped create.
       In the coming days, I hope changing the Senate's rules 
     won't be necessary, but Senator Frist will be fully justified 
     in doing so if he believes he has exhausted every effort at 
     compromise. Of course, there is an easier solution to the 
     impasse: Democrats can stop playing their obstruction game 
     and let President Bush's judicial nominees receive what they 
     are entitled to: an up-or-down vote on the floor of the 
     world's greatest deliberative body.

  Mr. HATCH. As our current majority leader Bill Frist put it a few 
days ago: I never thought it was a radical thing to ask Senators to 
vote. That is what we have traditionally done on judicial nominations 
that reach the floor, and that traditional standard should apply across 
the board no matter which party controls the White House and no matter 
which party controls the Senate. We should bind both parties, 
Republicans and Democrats, to do what is right.
  That is the diagnosis, and I hope we see an effective cure soon so we 
can get back to doing the people's business.
  I started off by saying one of the problems here is that every one of 
these Presidential nominees who reaches the floor should have an up-or-
down vote, especially since they are listed as qualified by the 
American Bar Association, most of them well qualified, the highest 
rating you can have. They all have majority bipartisan support. We 
should not change 214 years of Senate tradition because some in this 
body don't like President Bush's nominees.
  People such as Priscilla Owen--she broke through the glass ceiling 
for women in this country and became a major partner in a major law 
firm. Her last election to the Texas Supreme Court was over 75 percent. 
She had every editorial board in the State of Texas supporting her; 15 
former State bar presidents supported her, most of whom were Democrats. 
Yet they have called her an extremist.
  Janice Rogers Brown, a sharecropper's daughter, came up the hard way, 
put herself through college and law school as a single mother, worked 
in California State government in a variety of positions, wound up on 
the California Supreme Court where she wrote, at least in the last 
number of years, the majority of the majority opinions. She got 
reelected by 84 percent of the California voters, more votes than any 
other person running for the Supreme Court that year, including her 
colleagues. Yet she is called an extremist because she is a 
conservative African American.
  It is very dangerous stuff to say this will create nuclear war 
because we want to continue 214 years of Senate tradition. That is 
dangerous stuff. It is the wrong stuff. We ought to give these people a 
simple, straightforward up-or-down vote.
  I notice the distinguished Senator from North Carolina is waiting. I 
yield the floor.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from North 
Carolina.
  Mr. DURBIN. Madam President, if the Senator will yield briefly for a 
unanimous consent request, I ask unanimous consent that when the 
Senator from North Carolina has completed her remarks, I be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from North Carolina.
  Mrs. DOLE. Madam President, today I want to express my strong concern 
over the judicial nominations process. It is clear this process has 
completely broken down. Unfortunately, the rhetoric surrounding this 
important issue has become increasingly bitter over the past several 
weeks. Sharp words have been exchanged. The intentions of my fellow 
Republicans have been unfairly characterized and my colleagues on the 
other side of the aisle have even gone so far as to threaten to shut 
down the Government if the Senate were to exercise its constitutional 
right to set its own procedural rules. That is nuclear.
  It is time to put aside the rhetoric for a moment and look at the 
facts. It is a fact that my Democratic colleagues have taken the 
unprecedented step of blocking not 1, not 2, but 10 nominees of 
President Bush to the Federal circuit courts of appeal. As a result, 
President Bush has the lowest appeals court confirmation rate for any 
first-term President since Franklin Roosevelt. It is a fact that each 
of these filibustered nominees has the support of a majority of 
Senators and each has received a rating of qualified or well qualified 
by the American Bar Association. It is a fact that today for the first 
time in our Nation's history, a President's nominees to the Federal 
bench are being required to receive a 60-vote supermajority rather than 
the traditional majority, the up-or-down vote, that has been the 
standard for 214 years. That is nuclear.
  It is a fact that the ongoing filibuster of the President's nominees 
has prevented the Senate from fulfilling its constitutional duty to 
provide advice and consent to the appointment of men and women chosen 
to sit on our Nation's highest courts.
  The former minority leader from South Dakota once lamented he found 
it simply baffling that a Senator would vote against even voting on a 
judicial nomination. I completely agree and note that every single one 
of President Clinton's judicial nominees who reached the Senate floor 
received an up-or-down vote. And contrary to what my friends across the 
aisle are so fond of saying, this includes the Paez and Berzon 
nominations to the Ninth Circuit.
  By imposing a supermajority requirement for judicial nominees, the 
Democrats are disrupting the careful balance struck in the Constitution 
itself between Congress and the executive branch and allowing political 
considerations to play an even larger role in the confirmation process. 
They should heed the words of prominent Democratic legal advisor 
Professor Michael Gerhardt who, in another context, has written that a 
supermajority requirement for confirming judges would be ``problematic 
because it creates a presumption against confirmation, shifts the 
balance of power to the Senate, and enhances the power of special 
interests.''
  For the last several weeks, instead of engaging in the hard work of 
compromise, some of my colleagues on the other side of the aisle have 
chosen to travel down the political road. We have seen pro-filibuster 
press conferences, other political events, and even an obstruction 
rally with the extreme liberal group MoveOn.Org. Liberal special 
interest groups are now spending millions of dollars across the country 
on television ads in support of judicial filibusters. One cannot help 
but reach the conclusion that these organizations, having failed to 
defeat President Bush at the ballot box in November, are now trying to 
advance their own liberal agenda through the only avenue left open to 
them--the Federal courts.
  The judicial filibuster is their way of establishing a liberal litmus 
test. If you are not a liberal activist, you cannot serve on a Federal 
circuit court of appeals, or at least that is what the new standard 
appears to be.
  Until now every judicial nominee with support from a majority of 
Senators was confirmed. The majority vote standard was used 
consistently throughout the 18th, 19th, and the 20th century for every 
President's nominees, Democrat or Republican, even Whig, until George 
W. Bush's judicial nominations were subjected to a 60-vote standard.
  Let me emphasize one additional point. My friends across the aisle 
are well aware that no Republican--not one--is seeking to eliminate the 
ability of Senators to filibuster on legislative matters. We all 
recognize that the legislative filibuster has served an important 
function in our system of checks and balances. It is ironic, though, 
that nine of my Senate colleagues who are now working so hard to block 
President Bush's judicial nominees once advocated the elimination of 
the legislative filibuster. So who is playing politics?

[[Page S4370]]

  I commend Majority Leader Frist for his patience in trying to bring 
both sides together to develop a reasonable compromise on this 
difficult issue. Certainly no other majority leader has been faced with 
such unprecedented tactics in blocking the Senate's ability to fulfill 
its constitutional duty to provide advice and consent. I know Senator 
Frist will continue to do what he feels is right for this body and for 
our country.
  If he decides he is confronted with no other choice but to proceed 
with the constitutional option, I will fully support him. This approach 
is consistent with Senate precedent and has been employed in the past 
by some of the best parliamentary minds in this Chamber.
  Our goal is to restore the practice, the tradition of 214 years, a 
simple majority vote for a President's nominees to the Federal bench.
  I yield the floor.

                          ____________________




[Pages S4356-S4370]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mrs. MURRAY. Mr. President, I come to the floor to talk about the 
Senate's deliberations on some of the administration's judicial 
nominees. It is clear this is a debate about basic American values. In 
drafting the Constitution, the Framers wanted the Senate to provide 
advice and consent on nominees who came before it to ensure that these 
very rights and values were protected. I believe, as a Senator, I have 
a responsibility to stand up for those values on behalf of my 
constituents in Washington State.
  Many activists today are complaining that certain Senators are 
attacking religious or conservative values. I must argue that it is 
others--not Democratic Senators exercising their rights--who are 
pursuing a nomination strategy that attacks basic values outlined in 
the Constitution.
  Our democracy values debate and dissension. Our democracy values the 
importance of checks and balances. Our democracy values an independent 
judiciary. But with the nuclear option and the rhetorical assault being 
launched at Democratic Senators by activists around the country, among 
others, we see those values under attack.
  The nuclear option is an assault on the American people and many of 
the things we hold dear. It is an attempt to impose on the country, 
through lifetime appointments, the extreme values held by a few at the 
cost of the many. It is the tyranny of the majority personified. 
Confirming these nominees by becoming a rubber stamp for the 
administration would be an affront to the 200-year-old system of checks 
and balances, and at the same time it would be an affront to the values 
I promised to defend when I came to the Senate.
  Building and maintaining a democracy is not easy, but our system and 
the rights and values it holds dear are the envy of the world. In fact, 
the entire world looks at us as the model for government. It is our 
values they want to look to. We must protect them not only for us but 
for those fledgling democracies.
  I just returned from a bipartisan trip to Israel, Iraq, Georgia, and 
the Ukraine, where we saw leaders who were trying to write 
constitutions, trying to write laws, trying to write policies. They 
were all working very hard to assure even those who did not vote in the 
majority that they would have a voice. The challenges were varied in 
each country. They faced everything from protecting against terrorists 
to charging people for the first time for electricity, to reforming 
wholly corrupt institutions. Making sure that democracy survives means 
having debates, bringing people to the table, and making tough 
decisions.
  In each case, the importance of not disenfranchising any group of 
people also rings true. So how we in this country accomplish the goal 
of sustaining a strong democracy and ensuring the participation of all 
people is very important.
  Elections are the foundation of our democracy. They determine the 
direction of our country. But an election loss does not mean you lose 
your voice or you lose your place at the table. That is what we must do 
to keep our democracy strong. That is why we are fighting so hard to 
keep our voice.
  Recently, we have heard a lot from the other side about attacks on 
faith and on values. In fact, some are trying to say our motive in this 
debate is somehow antifaith. I argue the opposite is true. We have 
faith in our values, in American values. We have faith that these 
values can and must be upheld. It is not an ideological battle between 
Republicans and Democrats. It is about keeping faith with the values 
and the ideals our country stands for. Having values and having faith 
in those values requires that we make sure those without a voice are 
represented. Speaking up for those in poverty to make sure they are fed 
is a faith-based value. Making sure there is equal opportunity and 
justice for the least among us is a faith-based value. Fighting for 
human rights and taking care of the environment are faith-based values. 
To now say those of us who stick up for minority rights are antifaith 
is frightening and it is wrong.

  I hope those who have decided to make this into a faith-antifaith 
debate will reconsider. This should be about democracy. It should be 
about the protection of an independent judiciary, and it should be 
about the rights of minorities.
  Mr. President, our system of government, of checks and balances, and 
our values are under attack by this transparent grab for power. They 
are, with their words and potential actions, attempting to dismantle 
this system despite the clear intent of the Framers and the weight of 
history and precedent. They think they know better. I think not.
  Mr. President, there is even news this morning that our friends on 
the other side are unwilling to come to the table to compromise to 
avoid this crisis. I want to take a second to praise our leader, 
Senator Reid, for his effort to find a reasonable conclusion before the 
nuclear bomb is dropped.
  Unfortunately for him, for all of us on this side of the aisle, and 
for this institution, that plea has been rejected.
  First, yesterday we saw that Karl Rove, one of the President's top 
advisers, said there would be no deal. Now, in this morning's papers, 
we read the leadership on the other side of the aisle is falling into 
line and saying, ``No deal.''
  By rejecting the deal, Republicans are now saying that three 
nominees--three total nominees--are so important that they must break 
with the more than 200 years of tradition and 200 years of precedent. 
We have heard day after day on the floor--even a few moments ago--that 
this is the most important issue facing this body today.
  Well, we have record-high gas prices and deficits, we have 45 million 
uninsured Americans, and we have far too many veterans without the 
health care they need and deserve. All the other side is talking about 
is doing away with the checks and balances so they can get radicals on 
the bench.
  If the other side wants to continue on this destructive course and 
ignore those real needs of the American people, they can. But this 
Senator and my colleagues will continue to fight this abuse of power 
and do the work the people sent us here to do.
  It is a sad day when one side refuses to come to the table to 
negotiate a way out of this impasse. It is even sadder that they refuse 
to accept our excellent confirmation record in blind pursuit of 
confirming the most radical of their choices.
  Although we have been able to confirm 205 nominees that President 
Bush sent forward, there are a few that are far outside some basic 
values.
  Let's start close to home with President Bush's nominee to the Ninth 
Circuit Court. To that court, which overseas appeals from my home State 
of Washington and five other States, President Bush has nominated 
William Myers. Mr. Myers is a lifelong lobbyist and anti-environmental 
activist. He is opposed by over 175 environmental, labor, civil, and 
women's disability rights organizations. He even drew opposition from 
Native American organizations and from the National Wildlife 
Federation. This is a man who has never tried a jury case, who has an 
anti-environmental record stretching back to his days as a Bush 
Interior Department official and industry lobbyist. He even received 
the lowest possible rating from the ABA.
  Mr. President, in the Pacific Northwest and in regions around this 
great country, we hold our environmental values dear. I am not willing 
to hand a lifetime appointment to such a vehement advocate against the 
people's interests. This is the perfect example of the check our 
Framers had in mind when they drafted our Constitution. We can, and we 
must, use it.

[[Page S4357]]

  That is just one example of a nominee looking to attack basic values. 
Bill Pryor, a nominee to the Eleventh Circuit, opposes basic individual 
liberties and freedoms. He called Roe v. Wade the ``worst abomination 
of constitutional law in history.''
  Janice Rogers Brown, nominated to the DC Circuit Court, called 1937--
that was the year this Government enacted many of the New Deal's 
programs to help lift our country out of the deep depression--``the 
triumph of our own socialist revolution.'' Mr. President, her disdain 
for worker and consumer protection values and principles is clear in 
decision after decision.
  Nominee Priscilla Owen's narrow constitutional view was so far 
outside the mainstream that then-Texas Supreme Court Judge and now 
Attorney General Alberto Gonzales said that to accept it would be ``an 
unconscionable act of judicial activism.''
  Mr. President, time and time again, these nominees have sided against 
the American people and the values we hold dear. They have taken 
extreme positions that run counter to mainstream values. Not one of 
these nominees has the experience or the temperament to administer 
justice in an impartial way to the citizens that they would serve.
  Today it is fashionable for some of my colleagues on the other side 
of the aisle to disparage what they call activist judges. But this 
power grab reveals their true motivation. They want activists on the 
bench to interpret the law in a way that undermines important American 
values. We will not let them.
  We have a responsibility to stand up and say no to these extreme 
nominees. But to know that, you don't need to listen to me; just look 
back at the great Founders of our democracy.
  The Framers, in those amazing years when our country was founded, 
took great care in creating our new democracy. They wrote into the 
Constitution the Senate's role in the nomination process. They wrote 
and they spoke about protecting the minority against the tyranny of the 
majority. Their words ring true today.
  James Madison, in his famous Federalist No. 10, warned against the 
superior force of an overbearing majority or, as he called it, a 
``dangerous vice.'' He said:

       The friend of popular governments never finds himself so 
     much alarmed for their character and fate as when he 
     contemplates their propensity to this dangerous vice.

  Years prior, John Adams wrote, in 1776, on the specific need for an 
independent judiciary and checks and balances. He said:

       The dignity and stability of government in all its 
     branches, the morals of the people and every blessing of 
     society, depends so much upon an upright and skillful 
     administration of justice, that the judicial power ought to 
     be distinct from both the legislative and executive, and 
     independent upon both, that so it may be a check upon both, 
     as both should be checked upon that. The judges, therefore, 
     should always be men of learning and experience in the laws, 
     of exemplary morals, great patience, calmness, coolness and 
     attention. Their minds should not be distracted with jarring 
     interests; they should not be dependent upon any man or body 
     of men.

  Mr. President, I shudder at the thought of what these great thinkers 
and Founders of our democracy would say to this attempted abuse of 
power in the Senate. I think one of the best interpretations of those 
thoughts was offered to this body by Robert Caro, the great Senate 
historian, in a letter in 2003. He talked about the need for the Senate 
to maintain its history and traditions, despite popular pressures of 
the day, and of the important role debate and dissension plays in any 
discussion of judicial nominees. In particular, he wrote of his concern 
for the preservation of Senate tradition in the face of attempted 
changes by a majority run wild.
  In part, he said:

       In short, two centuries of history rebut any suggestion 
     that either the language or 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.
       I am . . . attempting to say as strongly as I can that in 
     considering any modification, Senators should realize that 
     they are not dealing 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 
     of power between majority and minority rights.

  Mr. President, protection of minority rights has been a fundamental 
principle since the infancy of this democracy. It should not--in fact, 
it cannot--be laid to rest here in this Chamber.
  I know many people are out there wondering why we are spending so 
much time talking about Senate rules and judicial nominations. They are 
wondering why I am talking about nominees and being on the floor 
quoting Madison and Adams. They are wondering what this means to them.
  Let me make it clear. This debate is about whether we want a clean, 
healthy environment and the ability to enforce laws to protect it 
fairly. This debate is about whether we want to protect essential 
rights and liberties. This debate is about whether we want free and 
open Government. This debate is about preserving equal protection under 
the law. This debate is about whether we want to preserve the 
independent judiciary, whether we want to defend our Constitution, and 
whether we want to stand up for the values of the American public.
  Mr. President, these values are too precious to be abdicated. 
Trusting in them, we will not let the Republicans trample our rights 
and those of millions of Americans we are here to represent. We will 
stand and say, yes, to democracy; yes, to an independent judiciary; 
yes, to minority rights; and, no, to this unbelievable abuse of power.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Graham). The Senator from Delaware is 
recognized.
  Mr. BIDEN. Mr. President, I rise today to speak at some length, if 
time will permit me, about the same subject my friend from Washington 
State so eloquently addressed. My colleagues know that although when I 
speak, I sometimes get very passionate, I have not very often, in past 
years, risen to the floor for any extended period of time. I do that 
today because so much is at stake.
  For over 200 years, the Senate has embodied the brilliance of our 
Founding Fathers in creating an intricate system of checks and balances 
among the three branches of Government. This system has served two 
critical purposes, both allowing the Senate to act as an independent, 
restraining force on the excesses of the executive branch, and 
protecting minority rights within the Senate itself. The Framers used 
this dual system of checks and balances to underscore the independent 
nature of the Senate and its members.
  The Framers sought not to ensure simple majority rule, but to allow 
minority views--whether they are conservative, liberal, or moderate--to 
have an enduring role in the Senate in order to check the excesses of 
the majority. This system is now being tested in the extreme.
  I believe the proposed course of action we are hearing about these 
days is one that has the potential to do more damage to this system 
than anything that has occurred since I have become a Senator.
  History will judge us harshly, in my view, if we eliminate over 200 
years of precedent and procedure in this body and, I might add, doing 
it by breaking a second rule of the Senate, and that is changing the 
rules of the Senate by a mere majority vote.
  When examining the Senate's proper role in our system of Government 
generally and in the process of judicial nominations specifically, we 
should begin, in my view, but not end with our Founding Fathers. As any 
grade school student knows, our Government is one that was infused by 
the Framers with checks and balances.
  I should have said at the outset that I owe special thanks--and I 
will list them--to a group of constitutional scholars and law 
professors in some of our great universities and law schools for 
editing this speech for me and for helping me write this speech because 
I think it may be one of the most important speeches for historical 
purposes that I will have given in the 32 years since I have been in 
the Senate.
  When examining the Senate's proper role in our system of Government 
and in the process of judicial nominations, as I said, we have to look 
at what our

[[Page S4358]]

Founders thought about when they talked about checks and balances.
  The theoretical underpinning of this system can be found in 
Federalist 51 where the architect of our Constitution, James Madison, 
advanced his famous theory that the Constitution set up a system in 
which ``ambition must be made to counteract ambition.''
  ``Ambition must be made to counteract ambition.'' As Madison notes, 
this is because ``[The] great security against a gradual concentration 
of the several powers in the same department consists in giving those 
who administer each department the necessary constitutional means and 
personal motives to resist encroachments by the other.''
  Our Founders made the conscious decision to set up a system of 
government that was different from the English parliamentary system--
the system, by the way, with which they were the most familiar. The 
Founders reacted viscerally to the aggrandizement of power in any one 
branch or any person, even in a person or body elected by the majority 
of the citizens of this country.
  Under the system the Founders created, they made sure that no longer 
would any one person or one body be able to run roughshod over everyone 
else. They wanted to allow the sovereign people--not the sovereign 
Government, the sovereign people--to pursue a strategy of divide and 
conquer and, in the process, to protect the few against the excesses of 
the many which they would witness in the French Revolution.
  The independence of the judiciary was vital to the success of that 
venture. As Federalist 78 notes:

       The complete independence of the courts of justice is 
     peculiarly essential in a limited Constitution.

  Our Founders felt strongly that judges should exercise independent 
judgment and not be beholden to any one person or one body. John Adams, 
in 1776, stated:

       The dignity and stability of government in all its 
     branches, the morals of the people, and every blessing of 
     society, depend so much upon an upright and skillful 
     administration of justice, that the judicial power ought to 
     be distinct from both the legislative and executive, and 
     independent upon both, that so it may be a check upon both, 
     as both should be checks upon that.

  Adams continues:

       The judges, therefore, should always be men of learning and 
     experience in the laws, of exemplary morals, great patience, 
     calmness and attention; their minds should not be distracted 
     with jarring interests; they should not be dependent upon any 
     one man or any body of men.

  In order to ensure that judicial independence, the very independence 
of which Adams spoke, the Founders did not give the appointment power 
to any one person or body, although it is instructive for us, as we 
debate this issue in determining the respective authority of the Senate 
and the Executive, it is important to note that for much of the 
Constitutional Convention, the power of judicial appointment was 
solely--solely--vested in the hands of the legislature. For the 
numerous votes taken about how to resolve this issue, never did the 
Founders conclude that it should start with the Executive and be within 
the power of the Executive. James Madison, for instance, was ``not 
satisfied with referring the appointment to the Executive;'' instead, 
he was ``rather inclined to give it to the Senatorial branch'' which he 
envisioned as a group ``sufficiently stable and independent'' to 
provide ``deliberative judgments.''
  It was widely agreed that the Senate ``would be composed of men 
nearly equal to the Executive and would, of course, have on the whole 
more wisdom'' than the Executive. It is very important to point out 
that they felt ``it would be less easy for candidates''--referring to 
candidates to the bench--``to intrigue with [the Senators], more than 
with the Executive.''
  In fact, during the drafting of the Constitution, four separate 
attempts were made to include Presidential involvement in judicial 
appointments, but because of the widespread fear of Presidential power, 
they all failed. There continued to be proponents of Presidential 
involvement, however, and finally, at the eleventh hour, the 
appointment power was divided and shared, as a consequence of the 
Connecticut Compromise I will speak to in a minute, between the two 
institutions, the President and the Senate.
  In the end, the Founders set up a system in which the President 
nominates and the Senate has the power to give or withhold--or 
withhold--its ``advice and consent.'' The role of ``advice and 
consent'' was not understood to be purely formal. The Framers clearly 
contemplated a substantive role on the part of the Senate in checking 
the President.
  This bifurcation of roles makes a lot of sense, for how best can we 
ensure that an independent judiciary is beholden to no one man or no 
one group than by requiring two separate and wholly independent 
entities to sign off before a judge takes the bench?

  There is a Latin proverb which translates to ``Who will guard the 
guardians?'' Our judges guard our rights, and our Founders were smart 
enough to put both the President and the Senate, acting independently, 
in charge of guarding our judicial guardians. Who will guard the 
guardians?
  As a Senator, I regard this not as just a right but as a solemn duty 
and responsibility, one that transcends the partisan disputes of any 
day or any decade. The importance of multiple checks in determining who 
our judges would be was not lost on our Founders, even on those who 
were very much in favor of a strong Executive.
  For example, Alexander Hamilton, probably the strongest advocate for 
a stronger Executive, wrote:

       The possibility of rejection [by the Senate] would be a 
     strong motive to [take] care in proposing [nominations. The 
     President] . . . would be both ashamed and afraid to bring 
     forward . . . candidates who had no other merit, than that . 
     . . of being in some way or other personally allied to him, 
     or of possessing the necessary insignificance and pliancy to 
     render them the obsequious instrument of his pleasure.

  Hamilton also rebutted the argument that the Senate's rejection of 
nominees would give it an improper influence over the President, as 
some here have suggested, by stating:

       If by influencing the President be meant restraining him, 
     this is precisely what must have been intended. And it has 
     been shown that the restraint would be salutary.

  The end result of our Founders was a system in which both the 
President and the Senate had significant roles, a system in which the 
Senate was constitutionally required to exercise independent judgment, 
not simply to rubberstamp the President's desires.
  As Senator William Maclay said:

       [W]hoever attends strictly to the Constitution of the 
     United States will readily observe that the part assigned to 
     the Senate was an important one--no less that of being the 
     great check, the regulator and corrector, or, if I may so 
     speak, the balance of this government. . . .The approbation 
     of the Senate was certainly meant to guard against the 
     mistakes of the President in his appointments to office . . . 
     The depriving power should be the same as the appointing 
     power.

  The Founders gave us a system in which the Senate was to play a 
significant and substantive role in judicial nominations. They also 
provided us guidance on what type of legislative body they envisioned. 
In this new type of governance system they set up in 1789 where power 
would be separated and would check other power, the Founders envisioned 
a special unique role for the Senate that does not exist anywhere else 
in governance or in any parliamentary system.
  There is the oft-repeated discussion between two of our most 
distinguished Founding Fathers, Thomas Jefferson and George Washington. 
Reportedly, at a breakfast that Jefferson was having with Washington 
upon returning from Paris, because he was not here when the 
Constitution was written, Jefferson was somewhat upset that there was a 
bicameral legislative body, that a Senate was set up. He asked 
Washington: Why did you do this, set up a Senate? And Washington looked 
at Jefferson as they were having tea and said: Why did you pour that 
tea into your saucer? And Jefferson responded: To cool it.
  I might note parenthetically that was the purpose of a saucer 
originally. It was not to keep the tablecloth clean.
  Jefferson responded: To cool it, and Washington then sagely stated: 
Even so, we pour legislation into the senatorial saucer to cool it.
  The Senate was designed to play this independent and, I might 
emphasize, moderating--a word not heard here very often--moderating and 
reflective role in our Government. But what aspects of the Senate led 
it to become this saucer, cooling the passions of the

[[Page S4359]]

day for the betterment of America's long-term future? First, the 
Founders certainly did not envision the Senate as a body of 
unadulterated majoritarianism. In fact, James Madison and other 
Founders were amply concerned about the majority's ability, as they put 
it, ``to oppress the minority.'' It was in this vein the Senate was set 
up ``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.''
  Structurally, the Founders set up a ``different type of legislature'' 
by ensuring that each citizen--now here is an important point, and if 
anybody in this Chamber understands this, the Presiding Officer does--
the Founders set up this different type of legislative body by ensuring 
that each citizen did not have an equal say in the functioning of the 
Senate--that sounds outrageous, to ensure they did not have an equal 
say--but that each State did have an equal say. In fact, for over a 
century, Senators were not originally chosen by the people, as the 
Presiding Officer knows, and it was not until 1913 that they were 
elected by the people as opposed to selected by their State legislative 
bodies.
  Today, Mr. President, you and I do stand directly before the people 
of our State for election, but the Senate remains to this day a 
legislative body that does not reflect the simple popular majority 
because representation is by States.
  That means someone from Maine has over 25 times as much effective 
voting power in this body as the Senator from California. An 
interesting little fact, and I do not say this to say anything other 
than how the system works, there are more desks on that side of the 
aisle. That side has 55. Does that side of the aisle realize this side 
of the aisle, with 45 desks, represents more Americans than they do? If 
we add up all the people represented by the Republican Party in the 
Senate, they add up to fewer people than the Democratic Party 
represents in the Senate. We represent the majority of the American 
people, but in this Chamber it is irrelevant and it should be because 
this was never intended in any sense to be a majoritarian institution.
  This distinctive quality of the Senate was part of that Great 
Compromise without which we would not have a Constitution referred to 
as the Connecticut Compromise. Edmund Randolph, who served as the first 
Attorney General of the United States and would later be Secretary of 
State, represented Virginia at the Constitutional Convention, and in 
that context he argued for fully proportionate representation in the 
debates over the proper form of the legislative branch, but ultimately 
he agreed to the Connecticut Compromise. After reflection, that so 
seldom happens among our colleagues, myself included, he realized his 
first position was incorrect and he stated:

       The general object was to provide a cure for the evils 
     under which the United States labored; that in tracing these 
     evils to their origin every man--

  Referring to every man who agreed to the compromise--

     had found it in the turbulence and follies of democracy; that 
     some check therefore was to be sought against this tendency 
     of our Governments; and that a good Senate seemed most likely 
     to answer this purpose.

  So the Founders quite intentionally designed the Senate with these 
distinctive features.
  Specifically, article 1, section 5 of the Constitution states that 
each House may determine its own rules for its own proceedings. 
Precisely: ``Each House may determine the Rules of its Proceedings.'' 
The text contains no limitations or conditions. This clause plainly 
vests the Senate with plenary power to devise its internal rules as it 
sees fit, and the filibuster was just one of those procedural rules of 
the many rules that vest a minority within the Senate with the 
potential to have a final say over the Senate's business.
  It was clear from the start that the Senate would be a different type 
of legislative body; it would be a consensus body that respects the 
rights of minorities, even the extreme minority power of a single 
Senator because that single Senator can represent a single and whole 
State. The way it is played out in practice was through the right of 
unlimited debate.
  I find it fascinating, we are talking about the limitation of a right 
that has already limited the original right of the Founding Fathers. 
The fact was there was no way to cut off debate for the first decades 
of this Republic.
  Joseph Story, famous justice and probably one of the best known 
arbiters of the Constitution in American history, his remark about the 
importance of the right of debate was ``the next great and vital 
privilege is the freedom of speech and debate, without which all other 
privileges would be comparatively unimportant, or ineffectual.'' And 
that goes to the very heart of what made the Senate different.
  In the Senate, each individual Senator was more than a number to be 
counted on the way to a majority vote, something I think some of us 
have forgotten. Daniel Webster put it this way:

       This is a Senate of equals, of men of individual honor and 
     personal character, and of absolute independence. We know no 
     masters, we acknowledge no dictators. This is a hall for 
     mutual consultation and discussion; not an arena for the 
     exhibition of champions.

  Extended debate, the filibuster, was a means to reach a more modest 
and moderate result to achieve compromise and common ground to allow 
Senators, as Webster had put it, to be men--and now men and women--of 
absolute independence.
  Until 1917, there was no method to cut off debate in the Senate, to 
bring any measure to a vote, legislative or nomination--none, except 
unanimous consent. Unanimous consent was required up until 1917 to get 
a vote on a judge, on a bill, on anything on the Executive Calendar. 
The Senate was a place where minority rights flourished completely, 
totally unchecked, a place for unlimited rights of debate for each and 
every Senator.
  In part this can be understood as a recognition of our federal system 
of government in which we were not just a community of individuals but 
we were also a community of sovereign States. Through the Senate, each 
State, through their two Senators, had a right to extensive debate and 
full consideration of its views.
  For much of the Senate's history, until less than 100 years ago, to 
close off debate required not just two-thirds of the votes, but it 
required all of the votes. The Senate's history is replete with 
examples of situations in which a committed minority flexed its ``right 
to debate'' muscles. In fact, there was a filibuster over the location 
of the Capitol of the United States in the First Congress. But what 
about how this tradition of allowing unlimited debate and respect for 
minority rights played out in the nomination context, as opposed to the 
legislative process?
  First, the text of the Constitution makes no distinction whatsoever 
between nominations and legislation. Nonetheless, those who are pushing 
the nuclear option seem to suggest that while respect for minority 
rights has a long and respected tradition on the legislative side of 
our business, things were somehow completely different when it came to 
considering nominations. In fact, it is the exact opposite.
  The history of the Senate shows, and I will point to it now, that 
previous Senates certainly did not view that to be the case. While it 
is my personal belief that the Senate should be more judicious in the 
use of the filibuster, that is not how it has always been. For example, 
a number of President Monroe's nominations never reached the floor by 
the end of his administration and were defeated by delay, in spite of 
his popularity and his party's control of the Senate.

  Furthermore, President Adams had a number of judicial nominations 
blocked from getting to the floor. More than 1,300 appointments by 
President Taft were filibustered. President Wilson also suffered from 
the filibusters of his nominees.
  Not only does past practice show no distinction between legislation 
and judicial nominations in regards to the recognition of minority 
rights, the formal rules of the Senate have never recognized such a 
distinction, except for a 30-year stretch in the Senate history, 1917 
to 1949, when legislation was made subject to cloture but nominations 
were not. Do my colleagues hear this? All of those who think a judge is 
more entitled to a vote than legislation, in 1917 it was decided that 
absolute unlimited debate should be curtailed, and

[[Page S4360]]

there needs to be a two-thirds vote to cut off debate in order to bring 
legislation to the floor.
  But there was no change with regard to judicial nominees. There was a 
requirement of unanimous consent to get a nominee voted on. So much for 
the argument that the Constitution leans toward demanding a vote on 
nominations more than on legislation. It flies in the face of the 
facts, the history of America and the intent of our Framers. This fact 
in itself certainly undercuts the claim that there has been, by 
tradition, the insulating of judicial nominees from filibusters.
  In both its rules and its practices, the Senate has long recognized 
the exercise of minority rights with respect to nominations. And it 
should come as no surprise that in periods where the electorate is 
split very evenly, as it is now, the filibustering of nominations was 
used extensively. For example, my good friend Senator Hatch who is on 
the Senate floor--as my mother would say, God love him, because she 
likes him so much, and I like him, too--he may remember when I was 
chairman of the Judiciary Committee back in the bad old days when the 
Democrats controlled the Senate during President Clinton's first 2 
years in office, a time when the Democrats controlled both the 
Presidency and the Senate but nonetheless the country remained very 
divided, numerous filibusters resulted, even in cases not involving the 
judiciary.
  I remind my friends, for example, that the nomination of Dr. Henry 
Foster for Surgeon General, Sam Brown to be ambassador to the 
Conference on Cooperation and Security in Europe, Janet Napolitano to 
be U.S. attorney in the District of Arizona, and Ricki Tigert for the 
Federal Deposit Insurance Corporation head, were all filibustered. We 
controlled the Senate, the House, the Presidency, but the Nation was 
nonetheless divided.
  Some may counter that there should be a difference between how 
judicial nominees should be treated versus the treatment accorded 
executive branch nominees, the Cabinet, and the rest. Constitutional 
text, historical practice and principle all run contrary to that 
proposition.
  On the textual point, we only have one appointments clause. It is 
also instructive to look at a few historical examples. In 1881, 
Republican President Rutherford B. Hayes nominated Stanley Matthews to 
the Supreme Court. A filibuster was mounted, but the Republican 
majority in the Senate was unable to break the filibuster, and Stanley 
Matthews' Supreme Court nomination failed without getting a vote.
  In 1968, the filibuster to block both Justice Abe Fortas from 
becoming Chief Justice and Fifth Circuit Court Judge Homer Thornberry 
to occupy the seat that Justice Fortas was vacating was one where the 
Democrats controlled the Senate, and the Republicans filibustered. The 
leader of that successful filibuster effort against Justice Fortas was 
Republican Senator Robert Griffin from Michigan. In commenting on the 
Senate's rejection of President George Washington's nomination of John 
Rutledge to be Chief Justice of the Supreme Court, the Republican 
Senator who mounted a successful filibuster against Fortas on the 
floor--translated, Fortas never got a vote, even though he was a 
sitting Supreme Court Justice about to be elevated to Chief Justice--
what did the Senator from Michigan who led that fight say about the 
first fight in the Senate?

       That action in 1795 said to the President then in office 
     and to future Presidents: ``Don't expect the Senate to be a 
     rubberstamp. We have an independent coequal responsibility in 
     the appointing process; and we intend to exercise that 
     responsibility, as those who drafted the Constitution so 
     clearly intended.''

  There is also a very important difference between judicial and 
executive nominees that argued for greater Senate scrutiny of judicial 
nominees. It should be noted that legislation is not forever. Judicial 
appointments are for the life of the candidate.
  Of course, no President has unlimited authority, even related to his 
own Cabinet. But when you look at judges, they serve for life.
  An interesting fact that differentiates us from the 1800s, when these 
filibusters took place, and 1968, when they took place: The average 
time a Federal judge spends on the bench, if appointed in the last 10 
years from today, has increased from 15 years to 24 years. That means 
that on average, every judge we vote for will be on that bench for a 
quarter century. Since the impeachment clause is fortunately not often 
used, the only opportunity the Senate has to have its say is in this 
process.
  The nuclear option was so named because it would cause widespread 
bedlam and dysfunction throughout the Senate, as the minority party, my 
party, has pledged to render its vigorous protest. But I do not want to 
dwell on those immediate consequences which, I agree with my Senate 
Judiciary Committee chairman, would be dramatic. He said:

       If we come to the nuclear option the Senate will be in 
     turmoil and the Judiciary Committee will be in hell.

  However serious the immediate consequences may be, and however much 
such dysfunction would make both parties look juvenile and incompetent, 
the more important consequence is the long-term deterioration of the 
Senate. Put simply, the nuclear option threatens the fundamental 
bulwark of the constitutional design. Specifically, the nuclear option 
is a double-barreled assault on this institution. First, requiring only 
a bare majority of Senators to confirm a judicial nominee is completely 
contrary to the history and intent of the Senate. The nuclear option 
also upsets a tradition and history that says we are not going to 
change the rules of the Senate by a majority vote. It breaks the rule 
to change the rule. If we go down this path of the nuclear option, we 
will be left with a much different system from what our Founders 
intended and from how the Senate has functioned throughout its history.
  The Senate has always been a place where the structure and rules 
permit fast-moving partisan agendas to be slowed down; where hotheads 
could cool and where consensus was given a second chance, if not a 
third and a fourth.
  While 90 percent of the business is conducted by unanimous consent in 
this body, those items that do involve a difference of opinion, 
including judicial nominations, must at least gain the consent of 60 
percent of its Members in order to have that item become law. This is 
not a procedural quirk. It is not an accident of history. It is what 
differentiates the Senate from the House of Representatives and the 
English Parliament.
  President Lyndon Johnson, the ``Master of the Senate,'' put it this 
way:

     In this country, a majority may govern but it does not rule. 
     The genius of our constitutional and representative 
     government is the multitude of safeguards provided to protect 
     minority interests.

  And it is not just leaders from the Democratic Party who understand 
the importance of protecting minority rights. Former Senate Majority 
Leader Howard Baker wrote in 1993 that compromising the filibuster:

     would topple one of the pillars of American Democracy: the 
     protection of minority rights from majority rule. The Senate 
     is the only body in the federal government where these 
     minority rights are fully and specifically protected.

  Put simply, the ``nuclear option'' would eviscerate the Senate and 
turn it into the House of Representatives. It is not only a bad idea, 
it upsets the Constitutional design and it disserves the country. No 
longer would the Senate be that ``different kind of legislative body'' 
that the Founders intended. No longer would the Senate be the 
``saucer'' to cool the passions of the immediate majority.
  Without the filibuster, more than 40 Senators would lack the means by 
which to encourage compromise in the process of appointing judges. 
Without the filibuster, the majority would transform this body into 
nothing more than a rubber stamp for every judicial nomination.
  The Senate needs the threat of filibuster to force a President to 
appoint judges who will occupy the sensible center rather than those 
who cater to the whim of a temporary majority. And here is why--it is a 
yes or no vote; you can't amend a nomination.
  With legislation, you can tinker around the edges and modify a bill 
to make it more palatable. You can't do that with a judge. You either 
vote for all of him or her, or none. So only by the threat of 
filibuster can we obtain compromise when it comes to judges.

[[Page S4361]]

  We, as Senators, collectively need to remember that it is our 
institutional duty to check any Presidential attempt to take over the 
Judiciary. As the Congressional Research Service, the independent and 
non-partisan research arm of Congress, stated, the ``nuclear option'' 
would:

       . . . strengthen the executive branch's hand in the 
     selection of federal judges.

  This shouldn't be a partisan issue, but an institutional one. Will 
the Senate aid and abet in the erosion of its Article I power by 
conceding to another branch greater influence over our courts? As 
Senator Stennis once said to me in the face of an audacious claim by 
President Nixon:

       Are we the President's men or the Senate's?

  He resolved that in a caucus by speaking to us as only John Stennis 
could, saying:

       I am a Senate man, not the President's man.

  Too many people here forget that.
  Earlier, I explained that for much of the Senate's history, a single 
Senator could stop legislation or a nomination dead in its tracks. More 
recent changes to the Senate Rules now require only \3/5\ of the 
Senate, rather than all of its Members, to end debate. Proponents of 
the ``nuclear option'' argue that their proposal is simply the latest 
iteration of a growing trend towards majoritarianism in the Senate. God 
save us from that fate, if it is true.
  I strongly disagree. Even a cursory review of these previous changes 
to the Senate Rules on unlimited debate show that these previous 
mechanisms to invoke cloture always respected minority rights.
  The ``nuclear option'' completely eviscerates minority rights. It is 
not simply a change in degree but a change in kind. It is a 
discontinuous action that is a sea change, fundamentally restructuring 
what the Senate is all about.
  It would change the Senate from a body that protects minority rights 
to one that is purely majoritarian. Thus, rather than simply being the 
next logical step in accommodating the Senate Rules to the demands of 
legislative and policy modernity, the ``nuclear option'' is a leap off 
the institutional precipice.
  And so here we collectively stand--on the edge of the most important 
procedural change during my 32-year Senate career, and one of the most 
important ever considered in the Senate; a change that would 
effectively destroy the Senate's independence in providing advice and 
consent.
  I ask unanimous consent to be able to continue for another 15 
minutes.
  The PRESIDNG OFFICER. Without objection, it is so ordered.
  Mr. BIDEN. The ``nuclear option'' would gut the very essence and core 
of what the Senate is about as an institution--flying directly in the 
face of our Founders who deliberately rejected a parliamentary system. 
A current debate, over a particular set of issues, should not be 
permitted to destroy what history has bestowed on us.
  And the stakes are much, much higher than the contemporary 
controversy over the judiciary. Robert Caro, the noted author on Senate 
history, wrote the following in a letter to the Chairman and Ranking 
Member of the Senate Committee on Rules and Administration:

       [I]n considering any modification [to the right of extended 
     debate in the Senate Senators should realize 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 . . ., you need only look at what happened 
     when the Senate gradually surrendered more and more of its 
     power over international affairs to learn the lesson that 
     once you surrender power, you never get it back.

  The fight over the nuclear option is not just about the procedure for 
confirming judges. It is also, fundamentally, about the integrity of 
the Senate. Put simply, the ``nuclear option'' changes the rules 
midstream. Once the Senate starts changing the rules outside of its own 
rules, which is what the nuclear option does, there is nothing to stop 
a temporary majority from doing so whenever a particular rule would 
pose an obstacle.
  It is a little akin to us agreeing to work together on a field. I 
don't have to sit down and agree with you that we are going to divide 
up this field, but I say, OK, I will share my rights in this field with 
you. But here is the deal we agree to at the start. Any change in the 
agreements we make about how to run this field have to be by a 
supermajority. OK? Because that way I am giving up rights--which all 
the Founders did in this body, this Constitution--rights of my people, 
for a whole government. But if you are going to change those rules with 
a pure majority vote, then I would have never gotten into the deal in 
the first place.
  I suffer from teaching constitutional law for the last 13 years, an 
advanced class on constitutional law at Widener University, a seminar 
on Saturday morning, and I teach this clause. I point out the essence 
of our limited constitutional government, which is so different than 
every other, is that it is based on the consent of the governed. The 
governed would never have given consent in 1789 if they knew the outfit 
they were giving the consent to would be able, by a simple majority, to 
alter their say in their governance.
  The Senate is a continuing body, meaning the rules of the Senate 
continue from one session to the next. Specifically, rule V provides:

       The rules of the Senate shall continue from one Congress to 
     the next Congress unless they are changed as provided in 
     these rules.

  I say to my colleague from North Carolina, on the floor, I say to my 
colleague from South Carolina, I say to my colleague from Utah: If you 
vote for this ``nuclear option'' you are about to break faith with the 
American people and the sacred commitment that was made on how to 
change the rules.
  Senate rule XXII allows only a rule change with two-thirds votes. The 
``continuing body'' system is unlike many other legislative bodies and 
is part of what makes the Senate different and allows it to avoid being 
captured by the temporary passions of the moment. It makes it different 
from the House of Representatives, which comes up with new rules each 
and every Congress from scratch.
  The ``nuclear option'' doesn't propose to change the judicial 
filibuster rule by securing a two-thirds vote, as required under the 
existing rules. It would change the rule with only a bare majority. In 
fact, as pointed out recently by a group of legal scholars:

       On at least 3 separate occasions, the Senate has expressly 
     rejected the argument that a simple majority has the 
     authority claimed by the proponents of the [nuclear option].

  One historical incident is particularly enlightening. In 1925, the 
Senate overwhelmingly refused to agree to then-Vice President Dawes' 
suggestion that the Senate adopt a proposal for amending its rules 
identical to the nuclear option.
  On this occasion, an informal poll was taken of the Senate. It 
indicated over 80 percent of the Senators were opposed to such a 
radical step.
  Let me be very clear. Never before have Senate rules been changed 
except by following the procedures laid out in the Senate rules. Never 
once in the history of the Senate.
  The Congressional Research Service directly points out that there is 
no previous precedent for changing the Senate rules in this way.
  The ``nuclear option'' uses an ultra-vires mechanism that has never 
before been used in the Senate--``Employment of the [nuclear option] 
would require the chair to overturn previous precedent.
  The Senate Parliamentarian, the nonpartisan expert on the Senate's 
procedural rules--who is hired by the majority--has reportedly said 
that Republicans will have to overrule him to employ the ``nuclear 
option''.
  Adopting the ``nuclear option'' would send a terrible message about 
the malleability of Senate rules. No longer would they be the framework 
that each party works within.
  I've been in the Senate for a long time, and there are plenty of 
times I would have loved to change this rule or that rule to pass a 
bill or to confirm a nominee I felt strongly about.
  But I didn't, and it was understood that the option of doing so just 
wasn't on the table.
  You fought political battles; you fought hard; but you fought them 
within the strictures and requirements of the Senate rules. Despite the 
short-term pain, that understanding has served both parties well, and 
provided long-term gain.
  Adopting the ``nuclear option'' would change this fundamental 
understanding and unbroken practice of

[[Page S4362]]

what the Senate is all about. Senators would start thinking about 
changing other rules when they became ``inconvienent.'' Instead of two-
thirds of the vote to change a rule, you'd now have precedent that it 
only takes a bare majority. Altering Senate rules to help in one 
political fight or another could become standard operating procedure, 
which, in my view, would be disastrous.
  The Congressional Research Service has stated that adopting the 
``nuclear option'' would set a precedent that could apply to virtually 
all Senate business. It would ultimately threaten both parties, not 
just one. The Service report states:

       The presence of such a precedent might, in principle, 
     enable a voting majority of the Senate to alter any procedure 
     at-will by raising a point of order . . . by such means, a 
     voting majority might subsequently impose limitations on the 
     consideration of any item of business, prohibiting debate or 
     amendment to any desired degree. Such a majority might even 
     alter applicable procedures from one item of business to the 
     next, from one form of proceeding to a contrary one, 
     depending on immediate objects.

  Just as the struggle over the ``nuclear option'' is about 
constitutional law and Senate history, it is also about something much 
more simple and fundamental--playing by the rules.
  I reiterate that I think Senator Frist and his allies think they are 
acting on the basis of principle and commitment, but I regret to say 
they are also threatening to unilaterally change the rules in the 
middle of the game. Imagine a baseball team with a five-run lead after 
eight innings unilaterally declaring that the ninth inning will consist 
of one out per team.
  Would the fans--for either side--stand for that? If there is one 
thing this country stands for it's fair play--not tilting the playing 
field in favor of one side or the other, not changing the rules 
unilaterally. We play by the rules, and we win or lose by the rules.
  That quintessentially American trait is abandoned in the ``nuclear 
option.'' Republican Senators as well as Democratic ones have benefited 
from minority protections. Much more importantly, American citizens 
have benefited from the Senate's check on the excesses of the majority.
  But this is not just about games, and playing them the right way. 
This is about a more ethereal concept--justice. In his groundbreaking 
philosophical treatise, A Theory of Justice, the philosopher John Rawls 
points to the importance of what he calls procedural justice.
  Relying on this predecessors such as Immanuel Kant, Thomas Hobbes, 
Jean Jacques Rousseau, and John Locke, Rawls argues that, in activities 
as diverse as cutting a birthday cake and conducting a criminal trial, 
it is the procedure that makes the outcome just. An outcome is just if 
it has been arrived at through a fair procedure.
  This principle undergirds our legal system, including criminal and 
civil trials. Moreover it is at the very core of our Constitution. The 
term ``due process of law'' appears not once but twice in our 
Constitution, because our predecessors recognized the vital importance 
of setting proper procedures--proper rules--and abiding by them.
  It is also the bedrock principle we Senators rely on in accepting 
outcomes with which we may disagree. We know the debate was conducted 
fairly--the game was played by the rules. A decision to change the 
Senate's rules in violation of those very same rules abandons the 
procedural justice that legitimates everything we do.
  It is interesting to ask ourselves what's different about now, why 
are we at this precipice where the ``nuclear option'' is actually being 
seriously debated and very well might be utilized? Why have we reached 
this point when such a seemingly radical rule change is being seriously 
considered by a majority of Senators? It's a good question, and I don't 
have an easy answer.
  We have avoided such fights in the past largely because cooler heads 
have prevailed and accommodation was the watchword.
  As Senator Sam Ervin used to say--the separation of powers should 
not, as President Woodrow Wilson warned, become an invitation for 
warfare between the two branches.
  Throughout this country's history--whether during times of war or 
political division, for example--Presidents have sometimes extended an 
olive branch across the aisle. Past Presidents have in these 
circumstances made bipartisan appointments, selecting nominees who were 
consensus candidates and often members of the other party.
  President Clinton had two Supreme Court nominees, and the left was 
pushing us as hard as the right is pushing you. What did he do? I spent 
several hours with him consulting on it. He picked two people on his 
watch who got 90 or so votes. Moderate, mainstream appointments. He did 
not appoint Scalias. He did not appoint Thomases. He appointed people 
acceptable to the Republicans because he was wise enough to know, even 
though he was President, we were still a divided Nation.
  History provides ample examples. During the midst of the Civil War, 
President Lincoln selected members of the opposition Democratic party 
for key positions, naming Stephen Field to the Supreme Court in 1863 
and Andrew Johnson as his Vice Presidential candidate in 1864.
  On the brink of American entrance into WWII, President Roosevelt 
likewise selected members of the opposition Republican party, elevating 
Harlan Fiske Stone to be Chief Justice and naming Henry Stimson as 
Secretary of War.
  Other 20th Century Presidents followed suit. In 1945, President 
Truman named Republican Senator Harold Burton to the Supreme Court. In 
1956, President Eisenhower named Democrat William Brennan to the 
Supreme Court. What has happened to us? What have we become?
  Does anyone not understand this Nation is divided red and blue and 
what it needs is a purple heart and not a red heart or a blue heart.
  Lest any of my colleagues think these examples are merely culled from 
the dusty pages of history, let me remind them that the Senate has 
witnessed recent examples of consensus appointments during times of 
close political division. As I already mentioned, President Clinton 
followed this historic practice during vacancies to the Supreme Court a 
decade ago.
  As explained by my friend, the Senior Senator from Utah, who was then 
the ranking member of the Senate Judiciary Committee, President Clinton 
consulted with him and the Republican Caucus during the High Court 
vacancies in 1993 and 1994. The result was President Clinton's 
selection of two outstanding and consensus nominees--Ruth Bader 
Ginsburg and Stephen Breyer--both of whom were confirmed overwhelmingly 
by the Senate, by votes of 97-3 and 87-9, respectively.
  Indeed, the last two vacancies to the Supreme Court are text book 
examples of the executive branch working in cooperative and collegial 
fashion with its Senate counterpart to secure consensus appointments, 
thus averting an ideological showdown. The two constitutional partners 
given roles in the nomination process engaged in a consultative process 
that respected the rights and obligations of both branches as an 
institutional matter, while also producing outstanding nominees who 
were highly respected by both parties.
  To be sure, a careful review of our Nation's history does not always 
provide the examples of consultation, comity, or consensus in the 
nomination process. Presidents of both parties have at times attempted 
to appoint nominees--or remove them once confirmed--over the objections 
of the Senate, including in some instances where the Senate was 
composed of a majority of the President's own party. And sometimes the 
Senate has had to stand strong and toe the line against imperialist 
Presidential leanings.
  Our first President, George Washington, saw one of his nominees to 
the Supreme Court rejected by this Senate in 1795. The Senate voted 14 
to 10 to reject the nomination of John Rutledge of South Carolina to be 
Chief Justice. What is historically instructive, I believe, is that 
while the Senate was dominated by the Federalists, President 
Washington's party, 13 of the 14 Senators who rejected the Rutledge 
nomination were Federalists.
  The Senate also stood firm in the 1805 impeachment of Supreme Court 
Justice Samuel Chase. President Jefferson's party had majorities in 
both the House and the Senate, and Jefferson set his sights on the 
Supreme

[[Page S4363]]

Court. Specifically, he wanted to remove Justice Chase, a committed 
Federalist and frequent Jefferson critic, from the Court.
  Jefferson was able to convince the House to impeach Justice Chase on 
a party-line vote, and the President had enough members of his party in 
the Senate to convict him. But members of the President's own party 
stood up to their President; the Senate as an institution stood up 
against executive overreaching. Justice Chase was not convicted, and 
the independence of the judiciary was preserved.
  The Senate again stood firm in the 1937 court-packing plan by 
President Franklin Roosevelt.
  This particular example of Senate resolve is instructive for today's 
debates, so let me describe it in some detail. It was the summer of 
1937 and President Roosevelt had just come off a landslide victory over 
Alf Landon, and he had a Congress made up of solid New Dealers. But the 
``nine old men'' of the Supreme Court were thwarting his economic 
agenda, overturning law after law overwhelmingly passed by the Congress 
and from statehouses across the country.
  In this environment, President Roosevelt unveiled his court-packing 
plan--he wanted to increase the number of Justices on the court to 15, 
allowing himself to nominate these additional judges. In an act of 
great courage, Roosevelt's own party stood up against this 
institutional power grab. They did not agree with the judicial activism 
of the Supreme Court, but they believed that Roosevelt was wrong to 
seek to defy established traditions as a way of stopping that activism.
  In May 1937, the Senate Judiciary Committee--a committee controlled 
by the Democrats and supportive of his political ends--issued a 
stinging rebuke. They put out a report condemning Roosevelt's plan, 
arguing it was an effort ``to punish the justices'' and that executive 
branch attempts to dominate the judiciary lead inevitably to autocratic 
dominance, ``the very thing against which the American Colonies 
revolted, and to prevent which the Constitution was in every particular 
framed.''
  Our predecessors in the Senate showed courage that day and stood up 
to their President as a coequal institution. And they did so not to 
thwart the agenda of the President, which in fact many agreed with; 
they did it to preserve our system's checks and balances; they did it 
to ensure the integrity of the system. When the Founders created a 
``different kind of legislative body'' in the Senate, they envisioned a 
bulwark against unilateral power--it worked back then and I hope that 
it works now.
  The noted historian Arthur Schlesinger, Jr., has argued that in a 
parliamentary system President Roosevelt's effort to pack the court 
would have succeeded. Schlesinger writes: ``The court bill couldn't 
have failed if we had had a parliamentary system in 1937.'' A 
parliamentary legislature would have gone ahead with their President, 
that's what they do, but the Founders envisioned a different kind of 
legislature, an independent institution that would think for itself. In 
the end, Roosevelt's plan failed because Democrats in Congress thought 
court-packing was dangerous, even if they would have supported the 
newly-constituted court's rulings. The institution acted as an 
institution.
  In summary, then, what do the Senate's action of 1795, 1805, and 1937 
share in common? I believe they are examples of this body acting at its 
finest, demonstrating its constitutional role as an independent check 
on the President, even popularly elected Presidents of the same 
political party.
  One final note from our Senate history. Even when the Senate's rules 
have been changed in the past to limit extended debate, it has been 
done with great care, remarkable hesitancy, and by virtual consensus. 
Take what occurred during the Senate's two most important previous 
changes to the filibuster rule: the 1917 creation of cloture and the 
1975 lowering of the cloture threshold.
  First, let's examine 1917. On the eve of the United States' entry 
into WWI, with American personnel and vessels in great danger on the 
high seas, President Wilson asked that Congress authorize the arming of 
American merchant vessels. Over three-fourths of the Senate agreed with 
this proposal on the merits, but a tiny minority opposed it. With 
American lives and property at grave risk, the Senate still took over 2 
months to come to the point of determining to change its rules to 
permit cloture.
  When they did so, they did it by virtual consensus, and in a 
supremely bipartisan manner. A conference committee composed equally of 
Democrats and Republicans, each named to the committee by their party 
leadership, drafted and proposed the new rule. It was then adopted by 
an overwhelming vote of 76-3.
  In 1975, I was part of a bipartisan effort to lower the threshold for 
cloture from two-thirds to three-fifths. Many of us were reacting 
against the filibustering for so many years of vital civil rights 
legislation. Civil rights is an issue I feel passionately about and was 
a strong impetus for me seeking public office in the first place. Don't 
get me wrong--I was not calling the shots back in 1975; I was a junior 
Senator having been in the chamber for only 2 years.
  But I will make no bones about it--for about two weeks in 1975--I was 
part of a slim bipartisan majority that supported jettisoning 
established Senate rules and ending debate on a rules change by a 
simple majority.
  The rule change on the table in 1975 was not to eliminate the 
filibuster in its entirety, which is what the current ``nuclear 
option'' would do for judicial nominations; rather it was to change 
from the then-existing two-thirds cloture requirement to three-fifths. 
It was a change in degree, not a fundamental restructuring of the 
Senate to completely do away with minority rights.
  The rule change was also attempted at the beginning of the Senate 
session and applied across the board, as opposed to the change 
currently on the table, brought up mid-session concerning only a very 
small subset of the Senate's business. Nonetheless, my decision to 
support cutting off debate on a rules change by a simple majority vote 
was misguided.
  I carefully listened to the debate in 1975 and learned much from my 
senior colleagues. In particular, I remember Senator Mansfield being a 
principled voice against the effort to break the rules to amend the 
rules.
  Senator Mansfield stood on this floor and said the following:

       [T]he fact that I can and do support [changing the cloture 
     threshold from \2/3\ to \3/5\] does not mean that I condone 
     or support the route taken or the methods being used to reach 
     the objective of Senate rule 22. The present motion to invoke 
     cloture by a simple majority, if it succeeds would alter the 
     concept of the Senate so drastically that I cannot under any 
     circumstances find any justification for it. The proponents 
     of this motion would disregard the rules which have governed 
     the Senate over the years, over the decades, simply by 
     stating that the rules do not exist. They insist that their 
     position is right and any means used are, therefore, proper. 
     I cannot agree.

  Senator Mansfield's eloquent defense of the Senate's institutional 
character and respect for its rules rings as true today as it did 30 
years ago. Senator Mansfield's courage and conviction in that 
emotionally charged time is further evidence, I believe, of why he is 
one of the giants of the Senate.
  In the end, cooler heads prevailed and the Senate came together in a 
way only the Senate can. I changed my mind; I along with my Senate 
colleagues. We reversed ourselves and changed the cloture rule but only 
by following the rules. Ultimately, over \3/4\ of the voting Senators--
a bipartisan group--voted to end debate. In fact, the deal that was 
struck called for reducing the required cloture threshold from \2/3\ to 
\3/5\; but it retained the higher \2/3\ threshold for any future rules 
changes.
  Now I understand that passions today are running high on both sides 
of the ``nuclear option'' issue, and I can relate to my current 
Republican colleagues. I agree with my distinguished Judiciary 
Committee Chairman that neither side has clean hands in the escalating 
judicial wars.
  I also understand the frustration of my Republican colleagues--
especially those who are relatively new to this Chamber--that a 
minority of Senators can have such power in this body.
  For me, the lesson from my 1975 experience, which I believe strongly 
applies to the dispute today, is that the Senate ought not act rashly 
by changing its rules to satisfy a strong-willed majority acting in the 
heat of the moment.

[[Page S4364]]

  Today, as in 1975, the solution to what some have called a potential 
constitutional crisis lies in the deliberate and thoughtful effort by a 
bipartisan majority of Senators to heed the wisdom of those who 
established the carefully crafted system of checks and balances 
protecting the rights of the minority. It's one thing to change Senate 
rules at the margins and in degrees, it's quite another to overturn 
them.
  Federalist No. 1 emphasizes that Americans have a unique 
opportunity--to choose a form of government by ``reflection and 
choice'':

       It has been frequently remarked that it seems to have been 
     reserved to the people of this country . . . to decide the 
     important question, whether societies of men are really 
     capable or not of establishing good government from 
     reflection and choice, or whether they are forever destined 
     to depend for their political constitutions on accident and 
     force.

  We need to understand that this is a question posed at the time of 
the founding and also a question posed to us today. At the time of the 
founding, it was a question about whether America would be able to 
choose well in determining our form of government.
  We know from the experience of the last 225 years that the founding 
generation chose well. As a question posed to citizens and to Senators 
of today, it is a question about whether we will be able to preserve 
the form of government they chose.
  The Framers created the Senate as a unique legislative body designed 
to protect against the excesses of any temporary majority, including 
with respect to judicial nominations; and they left all of us the 
responsibility of guaranteeing an independent Federal judiciary, one 
price of which is that it sometimes reaches results Senators do not 
like.
  It is up to us to preserve these precious guarantees. Our history, 
our American sense of fair play, and our Constitution demand it.
  I would ask my colleagues who are considering supporting the 
``nuclear option''--those who propose to ``jump off the precipice''--
whether they believe that history will judge them favorably.
  In so many instances throughout this esteemed body's past, our 
forefathers came together and stepped back from the cliff. In each 
case, the actions of those statesmen preserved and strengthened the 
Senate, to the betterment of the health of our constitutional republic 
and to all of our advantage.
  Our careers in the Senate will one day end--as we are only the 
Senate's temporary officeholders--but the Senate itself will go on.
  Will historians studying the actions taken in the spring of 2005 look 
upon the current Members of this Senate as statesmen who placed the 
institution of the United States Senate above party and politics?
  Or will historians see us as politicians bending to the will of the 
Executive and to political exigency?
  I, for one, am comfortable with the role I will play in this upcoming 
historic moment.
  I hope all my colleagues feel the same.
  Mr. President, on behalf of Senator Byrd, I ask unanimous consent to 
have printed in the Record a speech against the nuclear option 
delivered earlier this week by Senator Byrd to the Center for American 
Progress.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

      Upholding the Tradition of Freedom of Speech--April 25, 2005

       ``That 150 lawyers should do business together (in the U.S. 
     Congress) ought not to be expected.'' Those are the words of 
     Thomas Jefferson.
       Now comes the so-called Nuclear Option, or Constitutional 
     Option to prove him right. You know, I liked Jefferson, but I 
     always thought he borrowed some of my best stuff for that 
     declaration he wrote. This poisoned pill, euphemistically 
     designated ``the nuclear option'', has been around a long 
     time--since 1917, in fact, the year the cloture rule was 
     adopted by the U.S. Senate. It required no genius of 
     Brobdingnagian proportions to conjure up this witch's brew. 
     All that it takes is (1) to have the chair wired; (2) to have 
     a majority of 51 votes to back the chair's ruling; and (3) a 
     determined ruthlessness to execute the power grab.
       Over the 88 years since 1917, however, no White House and 
     no party in control of the Senate has ever resorted to the 
     use of this draconian weapon in order to achieve its goal. 
     Until now. Why now? It is because a determined minority in 
     the Senate has refused to confirm only 10 of over 200 
     nominees to federal judgeships submitted by President George 
     Bush during this first term as President. Since his 
     reelection, President Bush has resubmitted 7 of the 10 
     nominees who failed to be confirmed in his first term. Hence, 
     a heavy-handed move is about to be made to change the rules 
     by disregarding the standing rules of the Senate that have 
     governed freedom of speech and debate in the Senate for over 
     200 years. The filibuster must go, they say.
       Obstructive tactics in a legislative forum, although not 
     always known as filibusters, are of ancient origin. Plutarch 
     reported that, while Caesar was on sojourn in Spain, the 
     election of Consuls was approaching. ``He applied to the 
     Senate for permission to stand candidate,'' but Cato strongly 
     opposed his request and ``attempted to prevent his success by 
     gaining time; with which view he spun at the debate till it 
     was too late to conclude upon anything that day.'' Hey, the 
     filibuster has only been around 2,064 years, since circa 59 
     B.C.!
       Filibusters were also a problem in the British Parliament. 
     In 19th century England, even the members of the Cabinet 
     accepted the tactics of obstruction as an appropriate weapon 
     to defeat House of Commons' initiatives that were not 
     acceptable to the government. In this country, experience 
     with protracted debate began early. In the first session of 
     the First Congress, for example, there was a lengthy 
     discussion regarding the permanent site for the location of 
     the Capitol. Fisher Ames, a member of the House from 
     Massachusetts, complained that ``the minority . . . makes 
     every exertion to . . . delay the business.''
       Senator William Maclay of Pennsylvania complained that 
     ``every endeavor was used to waste time, . . . '' Long 
     speeches and other obstructionist tactics were more 
     characteristic of the House than of the Senate in the early 
     years.
       There have been successful filibusters that have benefited 
     the country. For example, in March 1911, Senator Owen of 
     Oklahoma filibustered a measure granting statehood to New 
     Mexico, arguing that Arizona should also be a state. 
     President Taft opposed the inclusion of Arizona's statehood 
     because a provision of Arizona's state constitution permitted 
     the recall of judges. Arizona later attained statehood, at 
     least in part because Senators took time to make the case the 
     year before. Another example occurred in July 1937, when a 
     Senate filibuster blocked FDR's Supreme Court-packing plan 
     until public opinion turned against the plan.
       Freedom of speech and debate is enshrined in Article I, 
     Section 6, of the U.S. Constitution. The roots run deep. 
     Before the British Parliament would proclaim William III and 
     Mary as king and queen of England, they were required to 
     swear allegiance to the British Declaration of Rights, which 
     they did on February 13, 1689. They were then declared joint 
     sovereigns by the House of Commons. The declaration was 
     converted into the English Bill of Rights by statute on 
     December 16, 1689, the 9th Article of which guarantees 
     freedom of speech and debate in Parliament in words similar 
     to those in our own Constitution, Article I, Section 6.
       So now, for the first time in the 217 years since 1789, the 
     tradition of freedom of speech and debate in the Senate is 
     under a serious threat of extinction by the majority party 
     through resort to the nuclear option.
       Marty Gold, deservedly respected for his knowledge of the 
     Senate rules and precedents, and opponents of free speech and 
     debate claim that, during my tenure as Majority Leader in the 
     United States Senate, I established precedents that now 
     justify a proposal for a misguided attempt to end debate on a 
     judicial nomination by a simple majority vote, rather than by 
     a 3/5s vote of all Senators duly chosen and sworn as required 
     by Paragraph 2 of Senate Rule XXII. Their claims are false. 
     Utterly false!
       Proponents of the so-called ``nuclear option'' cite several 
     instances in which they inaccurately allege that I ``blazed a 
     procedural path'' toward an inappropriate change in Senate 
     rules. They are dead wrong. Dead wrong! They draw analogies 
     where none exist and create cockeyed comparisons that fail to 
     withstand even the slightest intellectual scrutiny. My 
     detailed response to these false claims and allegations 
     appears in the March 20, 2005, edition of the Congressional 
     Record. But, simply put, no action of mine ever denied a 
     minority of the Senate a right to full debate on the final 
     disposition of a measure or matter pending before the Senate. 
     Not in 1977, not in 1979, not in 1980, not in 1987--the dates 
     cited by critics as grounds for the nuclear option. In none 
     of the instances cited by those who threaten to invoke the 
     nuclear option did my participation in any action deny the 
     minority in the Senate, regardless of party, its right to 
     debate the real matter at hand.
       Now why can't reasonable Senators on both sides of the 
     aisle act in the best interests of the Senate, the 
     Constitution, and the country by working together to find a 
     way to avoid this procedural Armageddon? President Gerald 
     Ford always said that he believed in friendly compromise and 
     called compromise ``the oil that makes governments go.''
       When I was a mere lad in southern West Virginia, I once 
     accidentally threw a wooden airplane I had crafted through 
     the glass of a window in a neighbor's house. The neighbor's 
     name was Mr. Arch Smith. He was angry, and I was scared. Into 
     the house I went to plead with Mr. Smith not to tell my Dad. 
     I

[[Page S4365]]

     knew that a belt thrashing awaited me if he did. I promised 
     to pay Mr. Smith .35 cents for the windowpane if he would 
     stay mum about the accident. I would raise the .35 cents by 
     running errands for a friendly lady next door. We struck a 
     deal. We compromised. And my dad never learned of the 
     incident until after I had paid my debt. That compromise 
     saved me a licking, and paid for Mr. Smith's broken window. 
     The sweet art of compromise solved our dispute.
       Of course, the Senate itself is the result of a compromise 
     which solved a dispute. The Senate answered the plea of the 
     smaller states for equality and a forum where they could have 
     equal representation and minority views could be heard. 
     Because of that famous action, the Great Compromise of July 
     16, 1787, the Senate and the House balance each other, 
     reflecting majority rule and minority rights like halves of 
     the same apple in our Republic, and achieving a delicate 
     balance--a finely tuned, exquisitely honed accommodation of 
     tensions which has endured for over 200 years. To paraphrase 
     the words of James Madison, the Republic has been structured 
     to, ``guard against the cabals of a few . . .,'' as well as 
     against the ``confusion of a multitude . . .''
       The Constitution, under Article II, Section 2, requires a 
     President to submit his selection of Federal judges, members 
     of his own cabinet, and certain other high-ranking officials 
     to the Senate for its ``advice and consent.'' The Framers 
     allowed the Executive only to propose. It was left to the 
     Senate to dispose. There is no stipulation in the 
     Constitution as to how the Senate is to express its advice or 
     give its consent. President Bush incorrectly maintains that 
     each nominee for a federal judgeship is entitled to an up or 
     down vote. The Constitution doesn't say that. It doesn't even 
     say that there has to be a vote with respect to the giving of 
     ``its consent.'' The Senate can refuse to confirm a nominee 
     simply by saying nothing and doing nothing. In Section 2, 
     Article II, it says, `` . . . and by and with the advice and 
     consent of the Senate, [He] shall appoint ambassadors . . . 
     Judges of the Supreme Court, and all other Officers of the 
     United States. . . .''
       Just as in Article I concerning the setting of Senate 
     rules, Article II allows the Senate the freedom to determine 
     how it will use its advice and consent powers. The choice 
     of the Senate as the single entity to work with the 
     President on the selection of life-tenured federal judges 
     seems strongly to indicate the Framer's desire for 
     scrutiny by the House of Congress uniquely designed for 
     the protection of minority views. The Framers could have 
     selected the majoritarian House of Representatives for 
     such a duty. They did not. In fact, they totally excluded 
     the House. They made a conscious decision to delegate the 
     ``advice and consent'' function to the United States 
     Senate.
       But, suppose the President's party controls the Senate, and 
     therefore controls the votes of a majority in the Senate? 
     Where then, is the check on Presidential power? The 
     filibuster is the minority's strongest tool in providing the 
     Constitutional curb on raw Presidential power when it comes 
     to nominations and the federal courts. Of course, the 
     President's party could occupy 60 seats in the Senate, and 
     that would be enough to break any filibuster except when 
     amending the rules. But, 60 votes is a high threshold, and 
     does provide an effective check on the abuse of power. Why 
     would we ever want to eliminate this important check on 
     Presidential power? Haven't we always had a healthy suspicion 
     of too much power in the hands of a King or any President 
     regardless of party affiliation? The filibuster is the final 
     bulwark preventing a President from stacking the courts (as 
     FDR tried to do in 1937) if his political party holds a 
     majority in the Senate. Without the ability by a minority to 
     defeat cloture by a supermajority vote, that slim wall 
     holding back the waters of destruction of a fair and 
     independent judiciary, ruptures. Other liberties enumerated 
     in the bill of rights can then also be washed away by a 
     President who stacks the courts to reflect a political 
     agenda. Freedom of speech, freedom of religion, all could be 
     gone, wiped out by a partisan court, beholden to one man: the 
     President.
       The threat of the so-called ``nuclear option'' puts us on a 
     dangerous course. Yet, incredibly, today we stand right on 
     the brink, maybe only days away, from destroying the checks 
     and balances of our Constitution. What has happened to the 
     quality of leadership in this country that would allow us to 
     even consider provoking a Constitutional crisis of such major 
     proportions? Where is the gentle art of compromise? Edmund 
     Burke said, ``All government--indeed, every human benefit and 
     enjoyment, every virtue and every prudent act--is founded on 
     compromise and barter.'' As I have said earlier, the nuclear 
     option has been around for years. It could have been employed 
     at anytime. Yet, no leader of either party chose to go down 
     that path because the consequences are so dire. Why have we 
     arrived at such a dangerous impasse?
       Reaction to recent decisions handed down by Federal Courts 
     has fueled the drive toward this act of self destruction. 
     Many citizens, religious people, angered by a feeling of 
     years of exclusion from our political process, are deeply 
     frustrated. I am in sympathy with such feelings. I do not 
     agree with many of the decisions which have come from the 
     courts concerning prayer in school, and prohibitions on the 
     public display of religious items. For example, relating to 
     freedom of religion, Article I states: ``Congress shall make 
     no law respecting an establishment of religion, or 
     prohibiting the free exercise thereof; . . .'' In my opinion, 
     the courts have not given equal weight to both of these 
     clauses but have stressed the first clause while not giving 
     enough weight to the second clause ``or prohibiting the free 
     exercise thereof;. . . .'' I have always believed that this 
     country was founded by men and women of strong faith, and 
     that their intent was not to suppress religion in the life of 
     our nation, but to ensure that the government favored no one 
     religion over another. I understand the extreme anger of many 
     good people who decry the nature of our popular culture, with 
     its overt emphasis on sex, violence, profanity, and 
     materialism. They have every right to seek some sort of 
     remedy. But these frustrations, as great as they are, must 
     not be allowed to destroy crucial institutional mechanisms 
     which protect minority rights, and curb the power of an 
     overreaching President. Yet, that is exactly what is about to 
     happen, with this very misdirected attack on the filibuster.
       The outlook for compromise is dim. The debate has reached a 
     fever pitch and political polarization is at levels I have 
     never seen. Democrats have overreached. Republicans have 
     overreacted. And the White House has poured salt in the wound 
     by sending the same contentious nominations right back to the 
     Senate as if there were not a country full of qualified and 
     talented judges from which to choose. Our two great political 
     parties are not having a national debate. We are simply 
     shouting at each other. I have heard statements of late which 
     cause me to shudder--such things as, ``Democrats hate 
     America,'' or ``Democrats hate people of faith,'' or 
     ``Republicans want to eliminate separation of Church and 
     State.'' Thinking Americans would ordinarily shun such 
     extreme and ridiculous rhetoric. Yet, vituperation and 
     extremism continue to rage on all sides. There have even been 
     overt attempts to physically threaten and intimidate Federal 
     judges. When the nation becomes this divided, when the spin 
     becomes this mean, the destruction of basic principles which 
     have been our guide for more than two centuries looms 
     straight ahead. Moreover, the trashing and trampling of 
     comity leaves ugly scars sure to fester and linger. How can 
     we recover from the venom spewed by this dangerous political 
     ploy and get on with the people's business, especially if the 
     nuclear trigger is actually pulled?
       At such times as these, the character of the leaders of 
     this country is sorely tested. Our best leaders search for 
     ways to avert such crises, not ways to accelerate the plunge 
     toward the brink. Overheated partisan rhetoric is always 
     available, although these days it seems to come especially 
     cheap, but the great majority of our people want a healthy 
     two-party system and leaders who know how to work together, 
     despite serious differences.
       The current uproar serves only to underscore the mounting 
     number of problems not being addressed by this government. 
     Over forty five million persons in our country, some 15% of 
     our population cannot afford health care insurance. Our 
     infant mortality rate is the second highest of the major 
     industrialized countries of the world. Our deficits are 
     skyrocketing. Poverty in these United States is rising, with 
     34 million people or 12.4% of the population living below the 
     poverty line. Our veterans lack adequate medical care after 
     they have risked life and limb for all of us. Our 
     education system produces 8th graders ranked 19th out of38 
     countries in the world in math, and 12th graders ranked 
     19th out of 21 countries in both math and science. Yet, we 
     debate and seek solutions to none of these critical 
     problems, and instead focus all energy on the frenzy over 
     the selection of judges, and seek as an antidote to our 
     frustration, the preposterous solution of permanently 
     crippling freedom of speech and debate and the right of a 
     minority to dissent in the United States Senate.
       It is very important to remember that the Senate has 
     formalized ways of considering changes to our rules. Changes 
     require 67 votes to curtail a filibuster of rules changes. If 
     this nuclear option is employed in the way most frequently 
     discussed, i.e. a ruling from the chair that a supermajority 
     requirement for cloture on a filibuster in respect to 
     amending the rules is unconstitutional, if sustained by 51 
     votes, cloture will require only a simple majority vote with 
     respect to federal judgeships. There is nothing, then, except 
     good sense, which seems to be in very short supply, to 
     prevent majority cloture of any filibuster on any measure or 
     matter, whether on the legislative or the executive calendar. 
     Think of that! Rules going back for over 200 years and 
     beyond, with roots in the early British Parliament, can be 
     swept away by a simple majority vote. Because of demagoguery, 
     lack of leadership, raw ambition, hysteria, and a state of 
     brutal political warfare that wants no truce and brooks no 
     peacemakers, we may destroy the U.S. Senate, leaving in our 
     wake a President able to select and intimidate the courts 
     like a King, and a system of government finally and 
     irretrievably lost in a last pathetic footnote to Ben 
     Franklin's rejoinder for the ages, ``a Republic, if you can 
     keep it.'' This is scary!
       I suspect that at least part of what all of this dangerous 
     sound and fury is about can be explained by the advanced ages 
     of several Supreme Court Justices, and rumors of the Chief 
     Justice's coming retirement due to ill health. The White 
     House does not want a filibuster in the Senate to derail a 
     future choice for the Supreme Court.

[[Page S4366]]

       Let me step into the brink and propose something that might 
     calm some waters. In the 105th Congress, Senator Arlen 
     Specter and I introduced S. Res. 146, a bill which would 
     establish an advisory role for the Senate in the selection of 
     Supreme Court Justices. Except for a very limited 
     ``floating'' of names shortly before the President sends up a 
     nomination for the Supreme Court, no one gets to weigh in on 
     the choices until after they are made. As in so many 
     instances in Washington, broad consultation is nonexistent. 
     In the case of potential occupants for the Federal Bench, 
     that is a recipe for instant polarization before hearings on 
     nominees are even held. Everyone quickly takes sides, and the 
     steam mounts like in an overheated pressure cooker until the 
     lid is about to blow off.
       Therein lies the source of some of the fighting over the 
     make-up of the Courts--no prior consultation, so, in effect, 
     no ``advice'' independent of the White House. Our bill aims 
     to release some of that steam in this way. The Senate 
     Judiciary Committee would establish a pool of possible 
     Supreme Court nominees for the President to consider, based 
     on suggestions from Federal and State judges, distinguished 
     lawyers, law professors, and others with a similar level of 
     insight into the suitability of individuals for appointment 
     to the Supreme Court.
       Such a pool would fulfill the Senate's ``advice'' function 
     under Article II, Section 2. In other words, everyone could 
     get their ``oar'' into the prospective judicial waters. The 
     President would of course be free to ignore the pool if he 
     chose to do so. But, the ``advice'' required by the 
     Constitution would be formally available, and the President 
     would know that the individuals in the pool had received a 
     bipartisan nod from the Senate Committee required to do the 
     vetting. Such a pool might even be expanded to include all 
     nominees for our federal judiciary.
       Perhaps letting the Senate in on the judicial ``take off'' 
     as well as the landing can help in the future to heal some of 
     the anger which dominates the discussion of the Federal 
     Courts these days.
       But for now, like many of you, I simply hope and pray that 
     cooler heads will prevail, and compromise (that fading art) 
     will prevent us from heading over the cliff. There are, at 
     least some efforts in that direction, but time is very short. 
     In just a few days we may see the unbelievable come to pass--
     one man, the President, able to select the third, unelected 
     branch of government, including the court of last resort, the 
     Supreme Court; the Senate of the United States relegated to a 
     second House of Representatives with six year terms; free 
     speech and unfettered debate rejected; and the Constitutional 
     checks and balances in sad and sorry tatters. Shame! What a 
     shame!
       In closing, let us remember the words spoken by Vice 
     President Aaron Burr in 1805 when he addressed the Senate for 
     the last time:
       This House is a sanctuary; a citadel of law, of order, and 
     of liberty; and it is here--it is here, in this exalted 
     refuge; here, if anywhere, will resistance be made to the 
     storms of political phrensy and the silent arts of 
     corruption; and if the Constitution be destined ever to 
     perish by the sacrilegious hands of the demagogue or the 
     usurper, which God avert, its expiring agonies will be 
     witnessed on this floor.
       Ladies and gentlemen, the clock is running and the hour of 
     fulfillment of Vice President Burr's prophesy is virtually at 
     hand.

  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I ask unanimous consent we be extended an extra 15 
minutes, as well.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          judicial nominations

  Mr. HATCH. The Senator from Delaware a few minutes ago claimed we 
have never changed our procedures by majority vote. Four times the 
distinguished Senator from West Virginia led this body to do exactly 
that when he was acting as majority leader--in 1977, 1979, 1980, and 
1987. Using a ruling from the Chair and a majority of all the Senate, a 
simple majority, we changed procedure relating to both legislation and 
nominations. The record has to be made clear.
  All we are asking is the 214-year tradition of the Senate that 
judicial nominees not be filibustered be followed. That has been the 
tradition of the Senate up until President Bush became President. All 
we are asking is that every one of these qualified nominees who have 
reached the floor receive an up-or-down vote. That is all we are 
asking.
  These are highly qualified nominees. The ABA has ruled they are 
qualified in every case. They all have a majority bipartisan vote in 
their favor. If our colleagues on the other side do not want to vote 
for them, they can vote against them. That will be their right. I would 
fight always to maintain that right. But give them a vote, vote up or 
down. That is what we have always done for 214 years before this 
President became President.
  The actions of our colleagues on the other side amount to changing 
that 214-year traditional history of this Senate.
  By the way, we never called this the nuclear option. It was called 
the nuclear option by the Democrats. We called it the constitutional 
option because the Constitution says the President has the right to 
appoint and nominate these people for judicial positions. We have the 
right to advise and--it is sometimes left off in this body--consent, 
which means a vote up and down.
  That is what I think our colleagues ignore. This is a dangerous 
thing. I call it the constitutional option, or I call it the Byrd 
option because our distinguished friend, the Senator from West 
Virginia, is the one who used this four times.
  If politics is a medicine, an effective prescription gives an 
accurate diagnosis. I take a step back and offer a diagnosis of our 
current struggle over how to conduct the judicial confirmation process. 
I hope this will bring a few pieces together, connect some dots, and 
provide a little perspective.
  The first principle is every judicial nomination reaching the Senate 
deserves an up-or-down vote.
  This principle has constitutional roots, historical precedent, and 
citizen support. I begin with the Constitution because that is where we 
should always begin. The Constitution is the supreme law of the land. 
Along with the Declaration of Independence, it is one of the 
foundational organic laws of the United States. It is the charter that 
each of us, as Senators, swears an oath before God to preserve, 
protect, and defend.
  That Constitution separates the three branches of Government, 
assigning legislation to us in the legislative branch, and assigning 
appointments to the President in the executive branch. We have heard 
that the Constitutional Convention considered other arrangements for 
appointing judges. That may be, but the Constitutional Convention 
rejected those arrangements. Rejected ideas do not govern us. The 
Constitution does. And the Constitution makes the President, in 
Alexander Hamilton's words, the ``principal agent'' in appointments, 
while the Senate is a check on that power.
  Giving judicial nominations reaching the floor an up-or-down vote, 
that is, exercising our role of advice and consent through voting on 
nominations, helps us resist the temptation of turning our check on the 
President's power into a force that can destroy the President's power 
and upset the Constitution's balance.
  Historically, we have followed this standard of everybody who reaches 
the floor getting an up-or-down vote. When Republicans ran the Senate 
under President Clinton, we gave each of his judicial nominations 
reaching the floor a final confirmation decision, an up-or-down vote. 
We took cloture votes, that is, votes to end debate, on four of the 
hundreds of nominees reaching us here. All four were confirmed. As a 
matter of fact, we confirmed 377 judges nominated by President Clinton, 
almost the same number as the all-time confirmation champion, and that 
was Ronald Reagan, who got 382. But Ronald Reagan had 6 years of a 
Republican Senate to help him. President Clinton only had 2 years of a 
Democrat Senate to help him. Yet, with the aid of the Republicans on 
the Judiciary Committee and in this body, he got 377 approved.
  In fact, even on the most controversial appeals court nominations by 
President Clinton, the Republican leadership used cloture votes to 
prevent filibusters and ensure up-or-down votes, exactly the opposite 
of how cloture votes are being used during President Bush's Presidency.
  This principle that every judicial nomination reaching the Senate 
floor deserves an up-or-down vote not only has constitutional roots and 
historical precedent, it also has citizen support. I saw in the 
Washington Post yesterday a poll framed in partisan terms, asking 
whether Senate rules should be changed ``to make it easier for the 
Republicans to confirm Bush's judicial nominees.''
  With all due respect, this question could easily have been written in 
the Democrats' new public relations war room. I am actually surprised 
that such a biased question did not get even more than 66-percent 
support.
  A more balanced, neutral, fair poll was released yesterday, asking 
whether

[[Page S4367]]

Senate procedures should make sure that the full Senate votes up or 
down on every judicial nomination of any President. The results, not 
surprisingly, were exactly the opposite of the biased poll, with 64 
percent of Americans, including 59 percent of moderates and almost half 
of all liberals, embracing this commonsense, fair, and traditional 
standard.
  The second aspect of this diagnosis is that the judicial nominees 
being denied this traditional up-or-down vote are highly qualified men 
and women, with majority, bipartisan support.
  Last week, I addressed how opponents of President Bush's nominees 
play games with words such as ``extremist.'' Just as they want to talk 
about a judicial appointment process the Constitution did not 
establish, these critics want to talk about everything but what these 
nominees would do on the bench. We know, from abundant testimony by 
those who know these nominees best, that no matter how provocative 
their speeches off the bench or strongly held beliefs in their hearts 
and minds, these nominees are or would be fair, impartial, and 
evenhanded on the bench.
  Yet they are called extremists. All 10 of them--there are only 7 
remaining--but all 10 of them had qualified ratings, and most well 
qualified, the highest rating of the American Bar Association. By the 
way, that was considered the ``gold standard'' during the Clinton years 
by our friends on the other side.
  Now this is the real standard.
  It is hard to believe we are actually arguing about whether we should 
vote on judicial nominations and whether highly qualified nominees, 
with majority support--bipartisan, majority support--should be 
confirmed. Yet the third part of this diagnosis is that Senate 
Democrats are trying to change our tradition of giving judicial 
nominations reaching the Senate floor an up-or-down vote. Senators, of 
course, are free to vote against them for any reason. We must, of 
course, have a full and vigorous debate about these nominees and their 
qualifications.

  The critics, however, do not want to have that debate. Democrats in 
this body and the leftwing interest groups that, to a certain extent, 
seem to control them, want only to seize what they cannot win through 
the fair, traditional system. Beginning in the 108th Congress, for the 
first time in American history, they are now using the filibuster not 
to debate but to defeat majority-supported judicial nominations.
  They are trying to rig the confirmation process, to pry us away from 
our tradition that respected the separation of powers, and force us 
into a brave, new world which turns the judicial appointment process 
inside out. They want to turn our check on the President's appointment 
power into a force that hijacks that power altogether. That would be 
serious and constitutionally suspect if a Senate majority did it. It is 
even more serious when, as we see today, a minority of Senators--all 
partisan Senators--tries to capture the process.
  For 2 years now, we have heard claims that these filibusters are 
nothing new, that they have been part and parcel of how the Senate has 
long done its confirmation business. While some questions in this 
debate may be subjective and complex, this is not one of them. The 
current filibusters target bipartisan, majority-supported judicial 
nominations, and they defeat them by preventing confirmation votes. 
Either that happened before the 108th Congress or it did not.
  Let us look at what our Democratic colleagues have claimed. On March 
11, 2003, the distinguished Senator from Vermont displayed here on the 
Senate floor a chart titled: ``Republican Filibusters of Nominees.'' He 
said his list proved that Republicans have ``succeeded in blocking many 
nominees by cloture votes.'' Anyone can look it up for him or herself. 
The whole chart is right there on page S3442 of the Congressional 
Record.
  It turns out only 6 of the 19 names on the chart were judicial 
nominations, that the Senate actually confirmed 5 of those 6, and the 
other one did not have majority support. And there was a real question 
whether that was a filibuster raised, not in the least sense by the 
person who conducted the debate on the Republican side, Senator Robert 
Griffin, who had an impeccably honest--and still does--an impeccably 
honest reputation. He said there was never a desire to filibuster 
Justice Fortas. He said they wanted 2 more days of debate to make their 
case. But, he said, they had enough votes to defeat him up and down. 
Now, he was here on the Senate floor. He knew it. He led the fight. And 
the votes were bipartisan, almost equal. It turns out, again, that only 
6 of the 19 names on the chart were judicial nominations, that the 
Senate actually confirmed 5 of them, and the only one they did not was 
Justice Fortas, because Lyndon Johnson pulled him, not wanting to be 
embarrassed.
  Far from justifying today's filibusters, the chart of the 
distinguished Senator from Vermont proved no precedent exists at all.
  On November 12, 2003, the Senator from Vermont tried again, this time 
with a list of what he claimed were Clinton appeals court nominees 
supposedly blocked by Republicans. Once again, the list included 
nominations the Senate confirmed--every one of them. How can a 
confirmed nomination be called a blocked nomination? It cannot. Not a 
single nomination on Senator Leahy's list is similar to the nominations 
being filibustered today.
  That same day, November 12, 2003, the distinguished Senator from 
Illinois, Mr. Durbin, named 5 judicial nominations which he said had 
been filibustered. Once again, not one of them is a precedent for 
filibusters happening today. You would think no one with a straight 
face would claim that ending debate and confirming nominations is 
somehow precedent for not ending debate and refusing to confirm 
nominations.
  On April 15, 2005, the distinguished assistant minority leader, 
Senator Durbin, expanded his previous list, now offering us 12 examples 
of what he said were judicial nominations requiring at least 60 votes 
for cloture to end a filibuster. I addressed this in more detail last 
week. Not one--not one--of those 12 of Senator Durbin's supposed 
precedents is any precedent at all.
  The first nomination on his list occurred in 1881, 36 years before we 
even had a cloture rule in the Senate. In fact, if we truly did what he 
apparently wants us to do, and treated his listed examples as a 
confirmation guide, we would vigorously debate judicial nominations, 
invoke cloture if we needed to, and then vote on the confirmations. 
That is what happened.
  This game continued as recently as 2 months ago. On Monday, April 25, 
on CNN's ``Crossfire'' program, the leader of a prominent leftwing 
group claimed that more than 30 nominations--here is the list--had been 
filibustered. I have this list right here in my right hand. It is 
titled: ``Filibusters of Nominations.'' It lists 13 judicial 
nominations out of the 30, and not one of them is at all like the 
filibusters being conducted today--not one. We did not even take a 
cloture vote on two of them. We invoked cloture on eight of them. We 
confirmed 12 of the 13. And the one we did not, did not have majority 
support, the Fortas nomination, but had bipartisan opposition.
  Accepting such fraudulent arguments requires believing that ending 
debate on judicial nominations is the same as not ending debate, that 
confirming judicial nominations is the same as not confirming them, and 
that judicial nominations without majority support are the same as 
those with majority support. As you can see, the liberal propaganda 
machine has been working overtime.
  In addition to these bizarre claims I described, they worked to turn 
what was once common sense and accepted fairness into something that 
sounds sinister and unseemly. They manufacture nasty phrases such as 
``court packing'' and ominous warnings about ``one-party rule.'' Now, 
we are told, preventing up-or-down votes on even majority-supported 
judicial nominations is the only way to prevent our entire 
constitutional order from imploding. The sky is falling, and we are all 
about to slide into the abyss.
  The purveyors of this fantasy would have us look to President 
Franklin Delano Roosevelt who, they tell us, wanted to pack the Supreme 
Court. The Senate rejected his legislative proposal to expand the Court 
so he could appoint more Justices. By taking this stand, the 
storytellers say, the Senate kept one-party rule from packing the 
Court.

[[Page S4368]]

  Well, as Paul Harvey might say: Here is the rest of the story.
  The Senate, even though dominated by President Roosevelt's own party, 
did not support this legislative plan. And it turns out President 
Roosevelt did not need any legislative innovations to pack the Supreme 
Court. He packed it all right, doing it the old-fashioned way, by 
appointing eight out of nine Justices in 6 years. Mind you, during the 
75th to the 77th Congress, Democrats outnumbered Republicans by an 
average of 70 to 20. Now, that is one-party rule.
  In those years, from 1937 to 1943, our cloture rule applied only to 
bills. This meant that ending debate on other things, such as 
nominations, required unanimous consent. A single Senator in that tiny, 
beleaguered minority could conduct a filibuster of President 
Roosevelt's nominations and thwart the real court packing that was in 
full swing.
  Now, if the filibuster were the only thing preventing one-party rule 
from packing the courts, and the filibuster were so easily used, surely 
there must be in history filibusters of President Roosevelt's Supreme 
Court nominations. If the warnings, frantic pleas, and hysterical 
fundraising appeals we hear today make any sense at all, the filibuster 
would certainly have been used in FDR's time.
  I hate to burst anyone's bubble, but there were no filibusters, not 
even by a single Senator, not against a single nominee. In fact, FDR's 
8 Supreme Court nominees were confirmed in an average of 13 days, and 6 
of the 8 were confirmed without even a rollcall vote.
  So if this is to protect the minority, why has it not ever happened 
before President Bush became President? Even when we look at the very 
examples and stories the other side uses, we see no support for using 
the filibuster against majority-supported judicial nominations.
  Last week, here on the Senate floor, the distinguished Senator from 
Illinois repeated a selective version of this FDR story and asked what 
would happen today in a Senate dominated by the President's party. He 
asked:

       Will they rise in the tradition of Franklin Roosevelt's 
     Senate?

  Well, I hope we do. I hope the Senate does exactly what Franklin 
Roosevelt's Senate did, by debating and voting on the President's 
judicial nominations. Franklin Roosevelt's Senate did not use the 
filibuster, even when the minority was much smaller and the filibuster 
much easier to use, and this Senate should not do so, either.
  Finally, the fourth piece to this diagnosis of our current situation 
is that Senate Democrats have threatened to shut down the Senate if the 
majority moves us back to the tradition--the 214-year tradition--of 
debating and voting on judicial nominations.
  To avoid what most Americans believe Senators come to Washington to 
do--debate and vote--we are now threatened with a party policy of open 
obstruction, a nuclear option of shutting down the Senate, at least to 
anything but what they agree to. I said a few minutes ago that the 
Constitution's separation of powers assigns legislative business to 
Congress and executive business, including appointments, to the 
President. Some Senators on the other side of the aisle are saying if 
they cannot hijack what is not theirs, they will destroy what is 
theirs. If they cannot abandon Senate tradition and use the filibuster 
to defeat majority-supported judicial nominations, they will undercut 
and disable the legislative process. And they call us radical.
  The Constitution gives the power of nomination and appointment to the 
President. The Senate provides a check on that power. I believe we must 
preserve the system of separated powers and checks and balances and 
resist those who would radically alter that system, turning the 
Senate's check on the President's power into a force that can overwhelm 
the President's power.
  Every judicial nomination reaching the Senate floor deserves an up-
or-down vote. I argued that during the Clinton years, and I prevailed 
as chairman of the Judiciary Committee. That principle has 
constitutional roots, historical precedent, and citizen support. 
President Bush has sent two highly qualified nominees that we know have 
bipartisan majority support. They deserve to be treated decently and, 
after a full and vigorous debate, given an up-or-down vote.
  Our colleagues on the other side are trying to change our tradition. 
For the first time in more than two centuries, they want to use 
filibusters to block confirmation votes on judicial nominations here on 
the Senate floor. This radical innovation is not needed to prevent one-
party rule from packing the courts. Republicans resisted using the 
filibuster under Roosevelt and Democrats should resist using it today.
  Finally, all Americans should be most concerned with the threat of 
some of our colleagues on the other side. Because they are unable to 
seize control of a judicial appointment process that does not belong to 
the Senate, Democrats say they will shut down the legislative process 
that does belong to the Senate. This cannot stand. With all due 
respect, they need to get both their principles and their priorities in 
order.
  Our former majority leader Bob Dole has a thoughtful column in 
today's New York Times also addressing Senate tradition and the 
prospect of returning to that tradition. No one loves this institution 
more than Senator Dole, and I think I am in that category, too.
  I ask unanimous consent that his column be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Apr. 27, 2005]

                            Up, Down or Out

                         (By Senator Bob Dole)

       In the coming weeks, we may witness a vote in the United 
     States Senate that will define the 109th Congress for the 
     ages. This vote will not be about war and peace, the economy 
     or the threat from terrorism. It will focus instead on 
     procedure: whether the Senate should amend its own rules to 
     ensure that nominees to the federal bench can be confirmed by 
     a simple majority vote.
       I have publicly urged caution in this matter. Amending the 
     Senate rules over the objection of a substantial minority 
     should be the option of last resort. I still hold out hope 
     that the two Senate leaders will find a way to ensure that 
     senators have the opportunity to fulfill their constitutional 
     duty to offer ``advice and consent'' on the president's 
     judicial nominees while protecting minority rights. Time has 
     not yet run out.
       But let's be honest: By creating a new threshold for the 
     confirmation of judicial nominees, the Democratic minority 
     has abandoned the tradition of mutual self-restraint that has 
     long allowed the Senate to function as an institution.
       This tradition has a bipartisan pedigree. When I was the 
     Senate Republican leader, President Bill Clinton nominated 
     two judges to the federal bench--H. Lee Sarokin and Rosemary 
     Barkett--whose records, especially in criminal law, were 
     particularly troubling to me and my Republican colleagues. 
     Despite my misgivings, both received an up-or-down vote on 
     the Senate floor and were confirmed. In fact, joined by 32 
     other Republicans, I voted to end debate on the nomination of 
     Judge Sarokin. Then, in the very next roll call, I exercised 
     my constitutional duty to offer ``advice and consent'' by 
     voting against his nomination.
       When I was a leader in the Senate, a judicial filibuster 
     was not part of my procedural playbook. Asking a senator to 
     filibuster a judicial nomination was considered an abrogation 
     of some 200 years of Senate tradition.
       To be fair, the Democrats have previously refrained from 
     resorting to the filibuster even when confronted with 
     controversial judicial nominees like Robert Bork and Clarence 
     Thomas. Although these men were treated poorly, they were at 
     least given the courtesy of an up-or-down vote on the Senate 
     floor. At the time, filibustering their nominations was not 
     considered a legitimate option by my Democratic colleagues--
     if it had been, Justice Thomas might not be on the Supreme 
     Court today, since his nomination was approved with only 52 
     votes, eight short of the 60 votes needed to close debate.
       That's why the current obstruction effort of the Democratic 
     leadership is so extraordinary. President Bush has the lowest 
     appellate-court confirmation rate of any modern president. 
     Each of the 10 filibuster victims has been rated 
     ``qualified'' or ``well qualified'' by the American Bar 
     Association. Each has the support of a majority in the 
     Senate. And each would now be serving on the federal bench if 
     his or her nomination were subject to the traditional 
     majority-vote standard.
       This 60-vote standard for judicial nominees has the effect 
     of arrogating power from the president to the Senate. Future 
     presidents must now ask themselves whether their judicial 
     nominees can secure the supermajority needed to break a 
     potential filibuster. Political considerations will now 
     become even more central to the judicial selection process. 
     Is this what the framers intended?
       If the majority leader, Bill Frist, is unable to persuade 
     the Democratic leadership to end its obstruction, he may move 
     to change the Senate rules through majority vote. By

[[Page S4369]]

     doing so, he will be acting in accordance with Article I of 
     the Constitution (which gives Congress the power to set its 
     own rules) and consistently with the tradition of altering 
     these rules by establishing new precedents. Senator Frist was 
     right this past weekend when he observed there is nothing 
     ``radical'' about a procedural technique that gives senators 
     the opportunity to vote on a nominee.
       Although the Democrats don't like to admit it, in the past 
     they have voted to end delaying tactics previously allowed 
     under Senate rules or precedents. In fact, one of today's 
     leading opponents of changing the Senate's rules, Senator 
     Robert Byrd, was once a proponent of doing so, and on several 
     occasions altered Senate rules through majoritarian means. I 
     have great respect for Senator Byrd, but Senate Republicans 
     are simply exploring the procedural road map that he himself 
     helped create.
       In the coming days, I hope changing the Senate's rules 
     won't be necessary, but Senator Frist will be fully justified 
     in doing so if he believes he has exhausted every effort at 
     compromise. Of course, there is an easier solution to the 
     impasse: Democrats can stop playing their obstruction game 
     and let President Bush's judicial nominees receive what they 
     are entitled to: an up-or-down vote on the floor of the 
     world's greatest deliberative body.

  Mr. HATCH. As our current majority leader Bill Frist put it a few 
days ago: I never thought it was a radical thing to ask Senators to 
vote. That is what we have traditionally done on judicial nominations 
that reach the floor, and that traditional standard should apply across 
the board no matter which party controls the White House and no matter 
which party controls the Senate. We should bind both parties, 
Republicans and Democrats, to do what is right.
  That is the diagnosis, and I hope we see an effective cure soon so we 
can get back to doing the people's business.
  I started off by saying one of the problems here is that every one of 
these Presidential nominees who reaches the floor should have an up-or-
down vote, especially since they are listed as qualified by the 
American Bar Association, most of them well qualified, the highest 
rating you can have. They all have majority bipartisan support. We 
should not change 214 years of Senate tradition because some in this 
body don't like President Bush's nominees.
  People such as Priscilla Owen--she broke through the glass ceiling 
for women in this country and became a major partner in a major law 
firm. Her last election to the Texas Supreme Court was over 75 percent. 
She had every editorial board in the State of Texas supporting her; 15 
former State bar presidents supported her, most of whom were Democrats. 
Yet they have called her an extremist.
  Janice Rogers Brown, a sharecropper's daughter, came up the hard way, 
put herself through college and law school as a single mother, worked 
in California State government in a variety of positions, wound up on 
the California Supreme Court where she wrote, at least in the last 
number of years, the majority of the majority opinions. She got 
reelected by 84 percent of the California voters, more votes than any 
other person running for the Supreme Court that year, including her 
colleagues. Yet she is called an extremist because she is a 
conservative African American.
  It is very dangerous stuff to say this will create nuclear war 
because we want to continue 214 years of Senate tradition. That is 
dangerous stuff. It is the wrong stuff. We ought to give these people a 
simple, straightforward up-or-down vote.
  I notice the distinguished Senator from North Carolina is waiting. I 
yield the floor.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from North 
Carolina.
  Mr. DURBIN. Madam President, if the Senator will yield briefly for a 
unanimous consent request, I ask unanimous consent that when the 
Senator from North Carolina has completed her remarks, I be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from North Carolina.
  Mrs. DOLE. Madam President, today I want to express my strong concern 
over the judicial nominations process. It is clear this process has 
completely broken down. Unfortunately, the rhetoric surrounding this 
important issue has become increasingly bitter over the past several 
weeks. Sharp words have been exchanged. The intentions of my fellow 
Republicans have been unfairly characterized and my colleagues on the 
other side of the aisle have even gone so far as to threaten to shut 
down the Government if the Senate were to exercise its constitutional 
right to set its own procedural rules. That is nuclear.
  It is time to put aside the rhetoric for a moment and look at the 
facts. It is a fact that my Democratic colleagues have taken the 
unprecedented step of blocking not 1, not 2, but 10 nominees of 
President Bush to the Federal circuit courts of appeal. As a result, 
President Bush has the lowest appeals court confirmation rate for any 
first-term President since Franklin Roosevelt. It is a fact that each 
of these filibustered nominees has the support of a majority of 
Senators and each has received a rating of qualified or well qualified 
by the American Bar Association. It is a fact that today for the first 
time in our Nation's history, a President's nominees to the Federal 
bench are being required to receive a 60-vote supermajority rather than 
the traditional majority, the up-or-down vote, that has been the 
standard for 214 years. That is nuclear.
  It is a fact that the ongoing filibuster of the President's nominees 
has prevented the Senate from fulfilling its constitutional duty to 
provide advice and consent to the appointment of men and women chosen 
to sit on our Nation's highest courts.
  The former minority leader from South Dakota once lamented he found 
it simply baffling that a Senator would vote against even voting on a 
judicial nomination. I completely agree and note that every single one 
of President Clinton's judicial nominees who reached the Senate floor 
received an up-or-down vote. And contrary to what my friends across the 
aisle are so fond of saying, this includes the Paez and Berzon 
nominations to the Ninth Circuit.
  By imposing a supermajority requirement for judicial nominees, the 
Democrats are disrupting the careful balance struck in the Constitution 
itself between Congress and the executive branch and allowing political 
considerations to play an even larger role in the confirmation process. 
They should heed the words of prominent Democratic legal advisor 
Professor Michael Gerhardt who, in another context, has written that a 
supermajority requirement for confirming judges would be ``problematic 
because it creates a presumption against confirmation, shifts the 
balance of power to the Senate, and enhances the power of special 
interests.''
  For the last several weeks, instead of engaging in the hard work of 
compromise, some of my colleagues on the other side of the aisle have 
chosen to travel down the political road. We have seen pro-filibuster 
press conferences, other political events, and even an obstruction 
rally with the extreme liberal group MoveOn.Org. Liberal special 
interest groups are now spending millions of dollars across the country 
on television ads in support of judicial filibusters. One cannot help 
but reach the conclusion that these organizations, having failed to 
defeat President Bush at the ballot box in November, are now trying to 
advance their own liberal agenda through the only avenue left open to 
them--the Federal courts.
  The judicial filibuster is their way of establishing a liberal litmus 
test. If you are not a liberal activist, you cannot serve on a Federal 
circuit court of appeals, or at least that is what the new standard 
appears to be.
  Until now every judicial nominee with support from a majority of 
Senators was confirmed. The majority vote standard was used 
consistently throughout the 18th, 19th, and the 20th century for every 
President's nominees, Democrat or Republican, even Whig, until George 
W. Bush's judicial nominations were subjected to a 60-vote standard.
  Let me emphasize one additional point. My friends across the aisle 
are well aware that no Republican--not one--is seeking to eliminate the 
ability of Senators to filibuster on legislative matters. We all 
recognize that the legislative filibuster has served an important 
function in our system of checks and balances. It is ironic, though, 
that nine of my Senate colleagues who are now working so hard to block 
President Bush's judicial nominees once advocated the elimination of 
the legislative filibuster. So who is playing politics?

[[Page S4370]]

  I commend Majority Leader Frist for his patience in trying to bring 
both sides together to develop a reasonable compromise on this 
difficult issue. Certainly no other majority leader has been faced with 
such unprecedented tactics in blocking the Senate's ability to fulfill 
its constitutional duty to provide advice and consent. I know Senator 
Frist will continue to do what he feels is right for this body and for 
our country.
  If he decides he is confronted with no other choice but to proceed 
with the constitutional option, I will fully support him. This approach 
is consistent with Senate precedent and has been employed in the past 
by some of the best parliamentary minds in this Chamber.
  Our goal is to restore the practice, the tradition of 214 years, a 
simple majority vote for a President's nominees to the Federal bench.
  I yield the floor.

                          ____________________