(Senate - May 19, 2005)

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[Pages S5453-S5525]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                           EXECUTIVE SESSION


                     FOR THE FIFTH CIRCUIT--Resumed

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
proceed to executive session for the consideration of calendar No. 71, 
which the clerk will report.
  The legislative clerk read the nomination of Priscilla Richman Owen, 
of Texas, to be United States Circuit Judge for the Fifth Circuit.

                   Recognition Of The Majority Leader

  The PRESIDENT pro tempore. The majority leader is recognized.


  Mr. FRIST. Mr. President, today we will resume executive session to 
consider Priscilla Owen to be a U.S. circuit court judge for the Fifth 
Circuit. We will continue the debate, as we did yesterday, by rotating 
back and forth between the aisle every 60 minutes. I think this orderly 
flow of debate will be helpful in terms of scheduling Members' speaking 
times. It worked well yesterday, and I would expect it to be orderly 
today as well. I know there is a large number of Senators who have 
indicated their desire to speak, and we will remain on the nomination 
to give everyone a chance to fully voice their concerns and their 
discussion on this very qualified nominee.
  I am hopeful that at some point we will be able to schedule a vote on 
the nomination, and I will update Members later today on the upcoming 
schedule as it relates to the nomination of Priscilla Owen.
  Mr. President, I will have a brief statement--the Democratic leader 
and I were just discussing our plans--and then he will have a 
statement, and then at that juncture I believe we will proceed as we 
set out the time schedule yesterday, alternating back and forth.
  Mr. President, we did, yesterday, have a vibrant and spirited debate 
on the Senate floor. We have been debating a very simple principle--one 
based on fairness and one grounded in the Constitution. The principle 
is that judicial nominees, with the support of a majority of Senators, 
deserve a fair up-or-down vote on the floor of the Senate.
  Yesterday, 21 Senators--evenly divided, I believe 11 Republicans and 
10 Democrats--debated for over 10 hours on the nomination of Priscilla 
Owen. We will continue that debate--10 hours yesterday--maybe 20 hours, 
maybe 30 hours, and we will take as long as it takes for Senators to 
express their views on this qualified nominee.
  But at some point that debate should end and there should be a vote. 
It makes sense: up or down, ``yes'' or ``no,'' confirm or reject; and 
then we move on in regular order.

  Senators can vote to confirm or reject a nominee. But we should 
fulfill our constitutional responsibility to give advice and consent by 
voting up or down.
  The nominee before us is Priscilla Owen, a Texas Supreme Court 
justice nominated to serve on the Fifth Circuit Court of Appeals. I 
have studied her record. I have had the opportunity to meet with her 
personally. I believe she would serve our Nation well as a circuit 
court judge.
  Her academic and professional qualifications are outstanding. She 
graduated near the top of her class in law school, and she once 
achieved the highest score in the State of Texas on the bar exam. The 
American Bar Association unanimously rated her ``well qualified,'' its 
highest possible rating.
  Her opponents suggest she is a judicial activist who is out of the 
mainstream. Her record simply shows that is not true. She was reelected 
by 84 percent of Texans. Are 84 percent of Texans really out of the 
mainstream? She is supported by Republicans and Democrats on the Texas 
Supreme Court. She has been endorsed by every major newspaper in her 
home State.
  That is a mainstream record.
  In her judicial decisions, some on the floor over the last day, and 
actually last week as well, have criticized her as a judicial activist 
in cases, and the focus has always been on these cases involving a 
parental notification law.

[[Page S5454]]

The law is not about whether a minor is able to have an abortion or 
whether a minor must receive parental consent before having an 
abortion. The law simply requires a parent to be notified if their 
child is having an abortion, except in certain circumstances.
  The author of the law, and 26 other members of the Texas legislature, 
have defended Justice Owen's opinions, and it is spelled out clearly in 
a letter of May 16, 2005, that is signed by the author of the 
legislation itself and 26 other members of the Texas legislature.
  The letter is interesting. It is a letter dated May 16, and it is a 
letter that was sent to Senator Specter, of the Judiciary Committee, 
and Senator Leahy. The letter is indeed quite powerful. I would like to 
read just a couple sections from the letter.
  Mr. President, I ask unanimous consent that following my remarks the 
entire letter be printed in the Record.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. FRIST. The letter reads pretty clearly: ``Dear Chairman 
Specter''--and there was a copy sent to Senator Leahy. This is from the 
author of the legislation of which these accusations of judicial 
activism have been floating around on the floor. These are the authors, 
the people who wrote--who wrote--the legislation. I quote from the 

       I, along with my colleagues in the Texas Senate and Texas 
     House of Representatives, am writing to express my full and 
     unconditional support for Justice Priscilla Owen's nomination 
     to the U.S. Court of Appeals for the Fifth Circuit. As the 
     author of the Texas Parental Notification Act, I followed 
     closely the Texas State Supreme Court rulings regarding that 
     statute. As such, we are disturbed by the recent attacks on 
     Justice Owen's review of the Texas Parental Notification Act. 
     Justice Owen's opponents have characterized her as an 
     activist member of the bench, and nothing could be further 
     from the truth.

  The letter continues:

       To the contrary, her opinions interpreting the Texas 
     Parental Notification Act serve as prime examples of her 
     judicial restraint.

  Mr. President, I will have my colleagues read the remainder of the 
letter. It goes on and gives examples in explaining that statement. And 
then, down in the following paragraph, I quote:

       Throughout the series of cases, Justice Owen's 
     interpretation of legislative intent were based on careful 
     reading of the new statute and the governing U.S. Supreme 
     Court precedent.

  This is the final sentence of the letter:

       In short, Justice Owen's academic and professional 
     qualifications are beyond question. We strongly urge Senators 
     to vote positively on her nomination.

  Again, it is signed by the author, Florence Shapiro, and, again, 26 
others from the house of representatives and senate in Texas.
  In addition, a pro-choice Democratic law professor also has defended 
Justice Owen. This professor, Linda Eads, is a member of the Texas 
Supreme Court Advisory Committee that drafted rules to help judges 
deciding cases under this law, the parental notification law. She says 
Justice Owen's decisions ``do not demonstrate judicial activism. She 
did what good appellate judges do every day . . . if this is activism, 
then any judicial interpretation of a statute's terms is judicial 

  If you look fairly at Justice Owen's record, you will see a well-
qualified, mainstream judge.
  But I will say, as we step back and look at the larger debate, some 
Senators may draw different conclusions about Justice Owen, and they 
may decide she does not deserve confirmation. Indeed, they may decide 
that none of the President's nominees deserve confirmation. And they, 
as Senators, are entitled to that choice. But they should express that 
choice, give that advice and consent by a vote, an up-or-down vote, 
``yes'' or ``no,'' confirm or reject. They should not hide behind a 
procedure that prevents 100 Senators from their responsibility, their 
duty to vote ``yes'' or ``no'' on the nominee, up or down.
  As everyone knows, I have advocated fair up-or-down votes for 
judicial nominees again and again and again and will continue to do so. 
In the past, some of our colleagues on the other side of the aisle have 
shared this view. Many of them have argued forcefully and eloquently 
for up-or-down votes on judicial nominees. Let me share some of their 
arguments with you.
  One Senator on the other side of the aisle, in opposition to giving 
up-or-down votes today, said:

       [E]veryone who is nominated ought to have a hearing and to 
     have a shot to be heard on the floor and have a vote on the 

  Another Democratic Senator said:

       A nominee is entitled to a vote. Vote them up; vote them 
     down. . . . If there are things in their background, in their 
     abilities that don't pass muster, vote no. Our institutional 
     integrity requires an up-or-down vote.

  Another Democratic Senator noted that:

       According to the U.S. Constitution, the President 
     nominates, and the Senate shall provide advice and consent. 
     It is not the role of the Senate to obstruct the process and 
     prevent numbers of highly qualified nominees from even being 
     given the opportunity for a vote on the Senate floor.

  These are all arguments from my Democratic colleagues in years past. 
These quotes capture what this debate today is all about. It is about 
fairness. It is about principle. It is about the constitutional duty of 
every Senator. The Senate must do what is right. We must do what is 
fair. We must do the job the American people elected us to do.
  So let us continue to debate. Let Senators exercise their right to 
speak. We may not agree. We will not agree on every judicial nominee, 
but we can agree on the principle that every qualified judicial nominee 
deserves an up-or-down vote.
  I yield the floor.

                               Exhibit 1

                               Texas State Senate, District 8,

                                       Plano, Texas, May 16, 2005.
     Hon. Chairman Arlen Specter,
     Committee on the Judiciary, U.S. Senate, Russell Senate 
         Office Bldg., Washington, DC.
       Dear Chairman Specter: I, along with my colleagues in the 
     Texas Senate and Texas House of Representatives, am writing 
     to express my full and unconditional support for Justice 
     Priscilla Owen's nomination to the U.S. Court of Appeals for 
     the Fifth Circuit. As the author of the Texas Parental 
     Notification Act (SB 30/HB 623), I followed closely the Texas 
     State Supreme Court rulings regarding that statute. As such, 
     we are disturbed by the recent attacks on Justice Owen's 
     review of the Texas Parental Notification Act. Justice Owen's 
     opponents have characterized her as an activist member of the 
     bench, and nothing could be further from the truth.
       To the contrary, her opinions interpreting the Texas 
     Parental Notification Act serve as prime examples of her 
     judicial restraint. Although some might try to hold up the 
     Texas Parental Notification Act as a litmus test on abortion, 
     they simply cannot make the case. The Act is not about 
     whether a minor is able to have an abortion or must receive 
     parental consent, but whether a parent should be notified. 
     The Act recognizes that a girl may have an abortion and does 
     not question whether the Constitution guarantees that right.
       Throughout the series of cases, Justice Owen's 
     interpretations of legislative intent were based on careful 
     reading of the new statute and the governing U.S. Supreme 
     Court precedent. For example, Justice Owen's opinion that a 
     minor should ``indicate to the court that she is aware of and 
     has considered that there are philosophic, social, moral, and 
     religious arguments that can be brought to bear when 
     considering abortion.'' This opinion is consistent with prior 
     U.S. Supreme Court precedent stating: ``The waiting period, 
     for example, may provide the parent or parents of a pregnant 
     young woman the opportunity to consult with her in private, 
     and to discuss the consequences of her decision in the 
     context of the values and moral or religious principles of 
     their family'' (Planned Parenthood v. Casey).
       In short, Justice Owen's academic and professional 
     qualifications are beyond question. We strongly urge Senators 
     to vote positively on her nomination.
           Very truly yours,
                                            Sen. Florence Shapiro,
                                            President Pro Tempore.

         Sen. Chris Harris; Sen. Jane Nelson; Rep. Brian McCall; 
           Rep. Harvey Hilderbran; Rep. Suzanna Gratia Hupp; Rep. 
           Betty Brown; Rep. Robert E. Talton; Rep. Kent 
           Grusendorf; Rep. Gary Elkins; Rep. Edmund Kuempel; Rep. 
           Joe Crabb; Rep. Leo Berman; Rep. Mike Krusee; Rep. 
           Dianne White Delisi; Rep. Joe L. Driver; Rep. Frank J. 
           Corte, Jr.; Rep. Fred Brown; Rep. Peggy Hamric; Rep. 
           Joe Nixon; Rep. Mary Denny; Rep. Elvira Reyna; Rep. 
           Geanie Morrison; Rep. Eugene Seaman; Rep. Anna Mowery; 
           Rep. Richard L. Hardcastle; and Rep. Ray Allen.

                   Recognition of the Minority Leader

  The PRESIDENT pro tempore. The Democratic leader is recognized.
  Mr. REID. It is my understanding that we go to the debate on Judge 
Owen at what time?
  The PRESIDENT pro tempore. We are on debate now.
  Mr. REID. I ask unanimous consent that the time of the two leaders 

[[Page S5455]]

take away from the debate that will begin at 9:45. What I am saying is, 
whatever time we use, the debate should start immediately after our 
time, the incremental time.
  The PRESIDENT pro tempore. The leader time is reserved. The Senator 
is entitled to take it. The controlled time does not begin until 10 
  Mr. REID. I realize that. I would like to reserve my time and use 
this time to speak on the matter now before the Senate.
  The PRESIDENT pro tempore. The time between now and 10 a.m. is not 
  Mr. REID. Just so I understand, it was my understanding the debate on 
Priscilla Owen was supposed to start at quarter to 10.
  The PRESIDENT pro tempore. It is to start at 10 o'clock.
  Mr. REID. I misunderstood. I apologize, Mr. President.
  (Mr. Vitter assumed the Chair.)
  Mr. REID. Mr. President, I have addressed the Senate on several 
occasions to do what I believe is setting the record straight about 
Senate history and the rules of this body. But, frankly, I would much 
rather address wage and health care costs, bringing down gas prices, 
talk about education, spiraling deficits we have. But the majority 
leader has decided we will spend this week and next week, or at least 
part of next week, talking about judges who I believe, Mr. President, 
are not in the mainstream of American jurisprudence.
  I am happy to engage in this debate. I would rather not. But I do 
want the debate to be accurate. For example, my good friend, the 
distinguished Republican leader, issued a statement last Friday in 
which he called the filibuster a ``procedural gimmick.'' I took time 
yesterday to correct that assertion, setting forth in the Record what 
the word ``gimmick'' means. The dictionary defines it as a scheme, a 
new scheme. I indicated that certainly the filibuster was everything 
but that. It is not a gimmick. It has been part of the Nation's history 
for two centuries. It is one of the vital checks and balances 
established by our visionary Founding Fathers. It is not a gimmick.
  Also, some Republicans have stated improperly the use of the 
filibuster. They have said time and time again that the defeat of a 
handful of President Bush's judicial nominees is unprecedented. In 
fact, hundreds of judicial nominees in American history have been 
rejected by the Senate, many by filibuster.
  There was, of course, the most notable, the nomination of Abe Fortas, 
to be Chief Justice of the United States. He was successfully 
filibustered in 1968. Here, Mr. President, is a Washington Post which I 
read in the morning when I come in. It is from many years ago. The 
first sentence:

       A full-dress Republican-led filibuster broke out in the 
     Senate yesterday against a motion to call up the nomination 
     of Justice Abe Fortas for Chief Justice of the United States.

  ``A full-dress Republican-led filibuster.'' We have had filibusters. 
That is what has been disappointing to me with some of my colleagues in 
saying there has not been a filibuster. There has been. During the 
Clinton administration, more than 60 judicial nominees were bottled up 
in the Judiciary Committee and never received floor votes. Of course, 
as indicated by my distinguished friend, the Republican leader, during 
that period of time Democrats were complaining about what was going on, 
saying there should have been hearings in the Senate, and even came to 
the floor--and these were accurate quotes of the majority leader--
saying: Let's have some votes, let's have some votes on these people.
  Well, Mr. President, we never said we would break the rules to change 
the rules. To change the rules in the Senate can't be done by a simple 
majority. It can only be done if there is extended debate by 67 votes. 
So I do not at all say that the statements made by the Republican 
leader were wrong about our wanting votes and we were disturbed that 
there are no votes, but we never, ever suggested that rules should be 
  But in addition to the pocket filibusters--call them whatever you 
want--the 60, I think 69 nominations never made it out of the Russell 
Building, out of the Judiciary Committee, but in addition to those 
performances, Republicans engaged in explicit filibusters on the floor 
against a number of Clinton judges when they did get out of committee, 
and they defeated a number of President Clinton's executive branch 
nominees by filibuster.
  It is the same advice and consent clause. Why, if a filibuster of 
Surgeon General Henry Foster was constitutional, is a Democratic 
filibuster of Fifth Circuit Court nominee Priscilla Owen 
unconstitutional? If Foster is constitutional, why wouldn't the same 
apply to Priscilla Owen? The Republican argument doesn't add up.

  But I would say this to my friend, the Presiding Officer. I have said 
let's not dwell on what went on in the Clinton administration. Let's 
not dwell on what went on in the 4 years of President Bush's 
administration. I am sure there is plenty of blame to go around. As we 
look back, I am not sure--and it is difficult to say this, but I say 
it--I am not sure either was handled properly. I have known it wasn't 
right to simply bury 69 nominations, and in hindsight maybe we could 
have done these 10 a little differently. But the American people are 
tired of what we are doing, tired of the constant fighting going on. 
What is going to take place if this continues?
  We will have a vote sometime next week. It will be a close vote, of 
course, We only need six Republicans. The Presiding Officer was 
formerly chairman of the powerful Appropriations Committee. It is very 
difficult at best to get appropriations bills passed. Most everything 
around here is done by unanimous consent. Things won't work as well as 
they could have. We need to avoid this. We are all legislators.
  But, sadly, now the President of the United States has joined the 
fray and become the latest to rewrite the Constitution and reinvent 
reality. Speaking to fellow Republicans on Tuesday night, 2 days ago, 
he said the Senate ``has a duty to promptly consider each . . . nominee 
on the Senate floor, discuss and debate their qualifications and then 
give them the up-or-down vote they deserve.'' Every one of the 10 he 
speaks of had votes, every one of them. Right here on the Senate floor, 
people walked down to these tables and their name was called and they 
  Referring to the President's words, duty to whom? The radical right 
who see within their reach the destruction of America's mainstream 
values. Certainly not duty to the tenets of our Constitution or to the 
American people who are waiting for progress and promise, not 
partisanship and petty debates.
  The duties of the Senate are set forth in the U.S. Constitution. 
Nowhere in that document does it say the Senate has a duty to give 
Presidential appointees a vote. It says appointments shall be made with 
the advice and consent of the Senate. That is very different than 
saying every nominee receives a vote. I repeat, all of these about 
which we are concerned, including Priscilla Owen, have had a vote, 
right here. The fact was even acknowledged by the majority leader that 
a vote is not required. Senator Byrd asked the majority leader--Senator 
Byrd was here, the majority leader was here--last week, he asked the 
majority leader if the Constitution accorded each nominee an up-or-down 
vote on the Senate floor. The answer was no. Senator Frist was candid. 
The answer was no. The language was not there, Senator Frist said. He 
is correct. Senators should read the same copy of the Constitution 
Senator Frist had memorized.
  It is clear that the President misunderstands the meaning of the 
advice and consent clause. The word ``advice'' means advice. President 
Clinton consulted extensively with then Judiciary Chairman Hatch, and 
as a result of that we debated Ginsburg and Stephen Breyer to the 
Supreme Court, both fine minds, fine justices. In contrast, this 
President never sought or heeded advice of the Senate. Now he demands 
our consent.
  That is not how America works. The Senate is not a rubber stamp for 
the executive branch. Rather, we are the one institution where the 
minority has the voice and ability to check the power of the majority. 
Today, in the face of President Bush's power grab, it is more important 
than ever. Republicans want one-party rule. The Senate is the last 
place where the President and Republicans can't have it all. Now the 
President wants to destroy our checks and balances to assure that he 
does get it all.

[[Page S5456]]

  That check on his power is the right to extended debate. Every 
Senator can stand on behalf of the people who have sent them here and 
say their piece. In the Senate's 200-plus years of history, this has 
been done hundreds and hundreds of times--stand up to popular 
Presidents, to unpopular Presidents, arrogant with power, to block 
legislation harmful to American workers in the eyes of the Senator, 
and, yes, even to reject Presidential nominations, even judicial 
  Who are the nominees now before this Senate?
  Priscilla Owen is a Texas Supreme Court justice nominated to the 
Fifth Circuit. She sides with big business and corporate interests 
against workers and consumers in case after case regardless of what the 
law is. Her colleagues on the conservative Texas court have written 
that she legislates from the bench. Her own colleagues have called her 
opinions ``nothing more than inflammatory rhetoric,'' her 
interpretation of the law to be ``misconceptions,'' and those are 
quotes, and even rebuked her for second-guessing the legislature on 
vital pieces of legislation. If she wanted to legislate, she should run 
for Congress. If she wants to interpret and uphold the law, she should 
be a judge. She cannot do both. And I might note that the Attorney 
General of the United States has called her activism unconscionable.

  I read to the Senate yesterday what that word means. Unconscionable. 
It, Mr. President, means that her acts are out of the mainstream for 
sure. Let me flip open my dictionary here. ``Unconscionable.'' 
``Shockingly unjust'' and ``unscrupulous.'' That is what the Attorney 
General of the United States said about Priscilla Owen. I repeat: 
``shockingly unjust, unscrupulous.'' He served with her on the supreme 
court. He should know.
  In case after case, her record marks her as a judge willing to make 
law from the bench rather than follow the language of the legislature 
judicial precedent. She has demonstrated this tendency most clearly in 
a series of dissents involving a Texas law providing for a judicial 
bypass of parental notification requirements for minors seeking 
abortion. She sought to erect barriers that did not exist in law such 
as requiring religious counseling for minors. Good idea, perhaps, but 
not something that you do from the bench. It should be done by the 
  Janice Rogers Brown, a supreme court justice from California, 
nominated to the DC Circuit, is using her seat on the bench to wage an 
ideological war against America's social safety net. She wants to take 
America back to the 19th century and undo the New Deal which includes 
Social Security and vital protections for working Americans like the 
minimum wage. Every Senator in this body should tell the more than 10 
million working Americans already living in poverty on the minimum wage 
why someone who wants to make their life harder and destroy their hopes 
and dreams should be elevated for a lifetime to one of most powerful 
courts in the country. She has been nominated to a court that overseas 
the actions of Federal agencies responsible for worker protections, 
environmental laws and civil rights and consumer protection. She has 
made no secret of her disdain for Government. According to Justice 
Brown, Government destroys families, takes property, is the cause of a 
``debased, debauched culture,'' and threatens civilization. That is her 
  Mr. SCHUMER. Would my colleague yield for a question?
  Mr. REID. I would be happy to yield for a question.
  Mr. SCHUMER. I thank my colleague. I think my colleague was in the 
Chamber yesterday when Senator Frist first rose to speak and talked 
about the 214 years of tradition of not doing filibusters of judges. I 
asked him about his vote on March 8, 2000, 5:51 p.m. He voted to 
filibuster Judge Paez. In fact, it was clearly a filibuster. The 
statement of the leader of that filibuster, who was Senator Smith, our 
former colleague from New Hampshire, is obvious. The Senator ``led a 
filibuster yesterday on the nomination of Richard Paez.'' You may 
remember that Senator Frist said he would return to the floor yesterday 
and answer how he could distinguish between saying there is a grand 
tradition in the Senate of no filibuster, but he participated in one. 
Just 5 years ago. My colleague was on the floor--I was not--earlier 
this morning. I had hoped to get here when Senator Frist spoke. I would 
just ask my colleague, did he hear any answer to that question which 
Senator Frist has promised?
  Mr. REID. I say through the Chair to my friend, I was present and 
participated in attempting to break the filibuster of Paez. I know how 
the distinguished Republican leader voted. I was here this morning, and 
I heard no answer to the question asked by the Senator from New York.
  Mr. SCHUMER. So it would be fair to say that he has still not 
answered the question, even though he said yesterday that he would come 
back and answer it.
  Mr. REID. He has not done that publicly. That is correct.
  Mr. SCHUMER. I thank my colleague for yielding for a question.
  Mr. REID. Justice Brown received a ``not qualified'' rating from the 
California judicial commission when she was nominated for the Supreme 
Court of California because of her tendency to inject her political and 
philosophical views into her opinions and complaints that she was 
insensitive to established legal precedent.
  Speaking recently at church on ``Justice Sunday,'' Justice Brown 
proclaimed a ``war'' between religious people and the rest of America. 
Imagine that. Is this someone we want protecting the constitutional 
doctrine of the separation of church and state or freedom for all 
Americans to practice religion?
  She has expanded the rights of corporations at the expense of 
individuals--arguing to give corporations more leeway against attempts 
to prevent consumer fraud--some of these things make you smile--to stop 
the sale of cigarettes to minors, to prevent discrimination against 
women and individuals. She may be the daughter of a sharecropper, but 
she has never looked back to ensure legal rights of millions of 
Americans still fighting to build better lives for their children and 
their children's children. They may not be sharecroppers, but they live 
like sharecroppers, and she has done nothing to protect them.
  These are the nominees over which the Republican leadership is waging 
this fight, and they are prepared to destroy the Senate that has 
existed for 200 years to do so.
  The Senate is a body of moderation. While the House is the voice of a 
single man, single woman, and the House of Representatives is a voice 
of the majority, the Senate is the forum of the States. It is the 
saucer that cools the coffee. It is the world's greatest deliberative 
body. How will we call this the world's greatest deliberative body 
after the majority breaks the rules to silence the minority? Breaking 
the rules to change the rules. This vision of our Government--the 
vision of our Founding Fathers--no longer suits President Bush and the 
Republicans in the Senate. They don't want consensus or compromise. 
They don't want advice and consent. They want absolute power.
  To get it, the President and majority leader will do all they can to 
silence the minority in the Senate and remove the last check we have in 
Washington against this abuse of power. The White House is trying to 
grab power over two separate branches of government--Congress and the 
judiciary. They are enlisting the help of the Republican Senate 
leadership to do it. Republicans are demanding a power no President has 
ever had, and they are willing to break the rules to do it.
  Make no mistake. This is about more than breaking the rules of the 
Senate or the future of seven radical judges. At the end of day, this 
is about the rights and freedoms of millions of Americans. The attempt 
to do away with the filibuster is nothing short of clearing the trees 
for the confirmation of an unacceptable nominee to the Supreme Court. 
If the majority gets its way, President Bush and the far, far right 
will have the sole power to put whoever they want on the Supreme 
Court--Pat Robertson, Phyllis Schlafly. They don't want someone who 
represents the values of all Americans, someone who can win bipartisan 
consensus. They want someone who can skate through with only a bare 
partisan majority, someone whose beliefs are on the fringes of our 
society. Nobody will be able to stop them from

[[Page S5457]]

placing these people on the highest court of the land--extremist judges 
who won't protect our rights and who hold values far outside the 
mainstream of America.
  Here is what is really at stake: The civil rights of millions of 
Americans; voting rights of millions of Americans; the right to clean 
water to drink and safe air to breathe for millions of Americans; the 
right to free speech and religious briefs for millions of Americans; 
the right to equality, opportunity, and justice for millions of 
Americans; nothing less than the individual rights and liberties of all 
  It is up to us to say no to the abuse of power, to stand up for the 
Constitution. We need people who have the ability to be profiles in 
courage. Let the President and the Republican Party know that the 
Supreme Court is not theirs to claim.
  The debate all comes down to this: Will we let George Bush turn the 
Senate into a rubber stamp to fill the Supreme Court with people from 
the extreme right's wish list, or will we uphold the Constitution's use 
of advice and consent powers to free the President to be like other 
Presidents have been, to force the President to look at the mainstream? 
I hope it is the latter. I know that is what my fellow Democrats and I 
will fight for, and I hope there are at least six responsible 
Republicans who will stand up and have the courage to join in this 
momentous battle.
  Will the Chair advise me as to what the order is now for debate to go 
forward on the nomination?
  The PRESIDING OFFICER. The time on the minority side has now expired, 
and the time from now until approximately 10:45 is under the control of 
the majority leader or his designee.
  Mr. REID. And then after that, we will go an hourly basis.
  The PRESIDING OFFICER. That is correct.
  Mr. REID. I hope I didn't inconvenience the majority with taking too 
much time. If I did, we will try to readjust it later.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, I am pleased the debate on Priscilla 
Owen is beginning to give her side of the story. We are finally getting 
past the sweeping mischaracterizations about her that have been put 
forward in the news media for years by interest groups--those who say 
she is outside the mainstream, or she is an extremist. But now on the 
floor of the Senate we are getting down to specifics.
  Every single time we have been able to examine a specific criticism 
of a particular opinion by Justice Owen, that criticism has been 
clearly and decisively refuted. Justice Owen is a careful and 
thoughtful jurist. She is an extremely talented intellect. She uses her 
ability to read every statute and enforce it fairly. She is the very 
model of a judge who interprets the law and does not legislate on the 
  Let's get to the heart of the matter. One of the major criticisms of 
Justice Owen is her effort to interpret a 1999 law passed by the Texas 
State legislature requiring parental notification before a minor can 
obtain an abortion. Most of the groups opposing Justice Owen 
strenuously opposed passage of that law in the first place. But the 
Texas legislature did approve a parental notification requirement with 
a strong bipartisan majority, favoring it in both the Texas House and 
Senate. The House was controlled by Democrats at the time, and it 
required any minor seeking an abortion to notify at least one parent, 
or receive permission from a judge to bypass that step. It was later up 
to the supreme court to interpret that bill.
  The law did not provide clear direction to the justices on several 
key points. We are talking about 13 cases that came to the supreme 
court for review. As sometimes occurs, the court was divided in how to 
interpret the law, particularly the portion allowing a minor to bypass 
parental notification by going to court. Some justices--a majority--
looked to other States on how their courts interpreted their parental 
notification statutes, even though those States that had different laws 
and different legislative histories. Other justices, including Justice 
Owen, looked first at the intent of the Texas legislature. She then 
looked to rulings of the U.S. Supreme Court. She reasoned, correctly, 
that the legislature had attempted to fashion the law to conform with 
Supreme Court rulings.
  Still other justices, I should add, took a different approach to 
analyze the bypass provision and, in some cases, they would have 
required greater restrictions on use of the judicial bypass than 
Justice Owen would have imposed. One of Justice Owen's colleagues on 
the supreme court at that time was Alberto Gonzales, now the U.S. 
Attorney General. The opposition to Justice Owen rests much of its case 
on a single phrase in one of then Justice Gonzales's opinions in which 
he referred to judicial activism.
  He later, and under oath, clarified what he was talking about. He 

       ``My comment about an act of judicial activism was not 
     focused at Judge Owen or Judge Hecht; it was actually focused 
     at me.''

  This is a tragically misleading statement to be used against Justice 
Owen. First, judges disagree. That is why we have a nine-member court. 
They argue with each other. They accuse each other of misreading the 
statutes. That is exactly the way it goes in many opinions. In fact, 
every member of the Texas Supreme Court was accused by one justice or 
another of judicial activism during the course of their service on the 
  Attorney General Gonzales has testified under oath that he was not 
referring to Justice Owen's opinion when he wrote the offending phrase. 
He said he was referring to himself. That by itself should dispose of 
the matter. Elsewhere in the same opinion, Justice Gonzales wrote 
another sentence. Curiously, that sentence is never cited by opponents 
of Justice Owen.

  Let me quote what Justice Gonzales wrote:

       Every member of this court agrees that the duty of a judge 
     is to follow the law as written by the legislature.

  In other words, he specifically stated that none of the nine justices 
on the Texas Supreme Court is a judicial activist.
  Finally, let me point out that Justice Gonzales was White House 
counsel when President Bush nominated Justice Owen for the Fifth 
Circuit in 2001. In other words, General Gonzales was in charge of the 
process that produced Justice Owen's nomination. Does anybody seriously 
believe he would select a nominee for this position if he thought she 
were a judicial activist?
  I want to look at the 13 cases from a statistical standpoint. Justice 
Owen is solidly in the mainstream of her court. In these 13 rulings, 
Justice Owen was in the majority 10 times and found herself in dissent 
only on 3 occasions. She disagreed with the majority decision three 
times. In those 13 cases, the Texas Supreme Court required notification 
6 times and facilitated a judicial bypass 7 times. So Justice Owen 
voted to require parental notification in nine cases and to facilitate 
the judicial bypass in four. Remember, no case on judicial bypass 
reached the Texas Supreme Court at all unless it had first been denied 
by two courts and by up to four judges. This is important, because 
under our system, the trial court is charged with ascertaining the 
facts in a case. In other words, Justice Owen is being faulted for 
being more willing to defer to trial court findings of fact because she 
knows trial judges have the unique ability to assess a witness's 
demeanor and credibility.
  Now, was Justice Owen's approach in the mainstream? Earlier this 
week, the Senate was visited by a group of six Texans. They represent 
diverse views, but they came to Washington to support Justice Owen and 
asked for fair treatment of her. They included Tom Phillips, who was 
Chief Justice of the Texas Supreme Court for most of the time Justice 
Owen had served. It included Elizabeth Whitaker, past president of the 
State Bar of Texas--one of 15 past State bar presidents, Republicans 
and Democrats, who are supporting Justice Owen's nomination.
  In the group was Linda Eads, a former assistant State attorney 
general, who is now a professor at the Southern Methodist University 
School of Law. She specializes in constitutional law. Linda Eads 
describes herself as strongly pro-choice. She also said she disagreed 
with Justice Owen on parental bypass. But she emphasized that Justice 
Owen's judicial approach to

[[Page S5458]]

these cases was thoughtful and rational. She said it was easily within 
the respectable judicial mainstream on interpreting legislation. She 
ended by saying she strongly supports the confirmation of Priscilla 
  Finally, I want to talk about the intent of the Texas Legislature. I 
served in that legislature for two terms, years ago. I know most of the 
members of the Texas House and Senate.
  It is interesting to me that opponents of Justice Owen accuse her of 
misreading legislative intent by requiring more parental involvement 
than the legislators intended. I believe the opposite might well be 
true. In fact, the legislature is currently in the process of 
discussing a new law that would strengthen parental involvement and 
require parental consent, not parental notification. That bill has 
passed the Texas House and the Texas Senate. It is now in a conference 
  Justice Owen is highly respected in Texas. Allow me to quote from a 
letter sent by Senator Florence Shapiro, the chief sponsor of the 
parental notification act approved by the legislature in 1999. She 

       As a Senator in the Texas Legislature, the manner in which 
     the Texas courts review and interpret our laws is extremely 
     important to me. Justice Owen's opinions consistently 
     demonstrate that she faithfully interprets the law as it is 
     written, and as the Legislature intended, not based on her 
     subjective idea of what the law should be. I am saddened to 
     see that partisan and extremist opponents of Justice Owen's 
     nomination have attempted to portray her as an activist 
     judge, as nothing could be further from the truth.
       Her opinions interpreting the Texas Parental Notification 
     act serve as prime examples of her judicial restraint . . . I 
     appreciated that Justice Owen's opinions throughout the 
     series of cases looked carefully at the new statute and at 
     the governing U.S. Supreme Court precedent upon which the 
     language of the statute was based, to detennine what the 
     Legislature intended the Act to do.
       I, along with many of my colleagues--Democrats and 
     Republicans alike--filed a bipartisan amicus curiae brief 
     with the Texas Supreme Court explaining that the language of 
     the Act was crafted in order to promote, except in very 
     limited circumstances, parental involvement.
       Prior to the passage of the Act, a child could go to a 
     doctor and have an extremely invasive procedure without even 
     notifying one of her parents. At the same time, school nurses 
     were not even permitted to give aspirin to a child without 
     parental consent. Like legislators in dozens of states across 
     America, we realized that something needed to be done to 
     respect the role of parents--that at least one parent should 
     be involved in a major medical decision impacting their minor 
       Because this was not an ``abortion'' bill but a ``parental 
     involvement'' bill supported by lawmakers on both sides of 
     the abortion debate, we were able to pass a bipartisan law 
     that promotes the relationship between parents and their 
     minor daughters and is exceedingly popular with the people of 
       Justice Owen is the kind of judge that the people of the 
     5th Circuit need on the bench--an experienced jurist who 
     follows the law and uses common sense. I strongly urge the 
     committee to reject the politics of personal destruction 
     pushed by Justice Owen's extremist critics and vote 
     positively on her nomination. She merits immediate 

  That is a letter from State Senator Florence Shapiro.
  Let's be clear about what is going on here. A number of interest 
groups fought against legislative enactment of the parental 
notification law. They lost. Now they are trying to undercut a judge 
who, as honestly and fairly as she could, attempted to interpret that 
law. They are entitled to their opinion. They should vote their 
convictions. Priscilla Owen deserves an up-or-down vote on her 
nomination to the Fifth Circuit.
  I want to respond to the distinguished Democratic leader, who this 
morning said that Owen and 10 other nominees have all received votes in 
the Senate. Senator Reid left out one important detail, and that is--if 
she had gotten a confirmation vote on the floor of the U.S. Senate, 
Justice Owen would be sitting on the Fifth Circuit today. Indeed, this 
Senate has taken four cloture votes on Priscilla Owen, and each time 
she has received more than a majority--the standard for confirmation in 
the Senate--until the Congress of 2 years ago.
  She would be confirmed by the Senate. Senator Reid is correct that 
nominees have received cloture votes, in an attempt to override 
filibusters. But requiring a 60-vote threshold to proceed to 
confirmation is not the Senate's practice. Justice Owen continues to 
wait patiently for the Senate to confirm her; she has been waiting for 
four years.
  The Senate Republicans have asked the minority to allow the Senate to 
vote, but they have refused and continue to vote no on cloture, thereby 
changing the Constitution without going through the process of a 
constitutional amendment.
  When the Constitution requires a supermajority, it is explicit. Just 
before the advise and consent part of the Constitution, it does have a 
standard of a two-thirds vote, but that was not put in the article on 
confirmation of judges. The clear constitutional interpretation is that 
if a supermajority is required, it is stated in the Constitution. And 
for over 200 years, this body has recognized that and has made a 
majority vote the standard until the last session of the Senate.
  It is disingenuous for the other side to suggest that these 10 
nominees have had votes because if they had, they would be sitting on 
the benches for which they were nominated. But instead, Priscilla Owen, 
after being confirmed by the Senate four times, is back again.
  I think we can do better. I think we can acknowledge the Constitution 
and acknowledge that if we are going to amend the Constitution, the 
Senate should start the process of a constitutional amendment. The 
Constitution is clear that a majority vote is required, and that has 
been the standard for over 200 years in the Senate until the last 
session of Congress.
  I hope Priscilla Owen will get an up-or-down vote, because if she 
does, the tradition of the Senate and our respect for the Constitution 
will be clear. Again, if they want to change it, perhaps they should go 
about it in the right way, and introduce a constitutional amendment to 
require a super-majority for confirmation of judges.
  I think the Founding Fathers were geniuses and knew a balance of 
power had to be delicate among the three branches of Government. They 
envisioned a President appointing circuit court judges with the Senate 
having the authority to confirm or reject them with a simple majority 
vote. The balance of power in our Constitution has kept our country 
strong and has been the anchor for our democracy.
  Priscilla Owen is a wonderful human being who has been demonized for 
4 years. She has already displayed her judicial temperament by not 
responding to the unfair criticisms, by showing no bitterness, and by 
harboring no anger. But she is a human being, a good person, and she 
deserves an up-or-down vote. When she gets an up-or-down vote, she will 
be confirmed and become a brilliant member of the Fifth Circuit Court 
of Appeals.
  I hope the Senate is on the brink of doing the right thing by these 
nominees, by acting as the lofty body it is, can be, and should be. I 
hope we will treat everyone who comes before us with respect. I do not 
think that has been the case for this very fine supreme court justice 
for the State of Texas. I hope that is going to change. I hope we will 
treat her as she should be treated. I hope she will get her up-or-down 
vote which will show that her 4 years of patience have allowed us to do 
the right thing and she will be able to serve our country in a way that 
I know she will make all of us proud.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER (Mr. Isakson). The Senator from Louisiana.
  Mr. VITTER. I thank the Chair.
  Mr. President, in recent weeks, the American people, including the 
citizens of Louisiana, have heard a lot about Senate rules, about 
historical precedent, about something very confusing called the 
filibuster, about the Senate's constitutional duty, and advice and 
consent. I think for the average American, for the average Louisianan, 
this seems pretty esoteric. This seems pretty out of touch with their 
everyday lives, this issue of how the Senate governs itself.
  But there are issues at the heart of this which are important to 
those citizens, including my constituents in Louisiana. And those 
issues are: Is the Senate going to do its job? Are we as Senators going 
to do our job and do the people's business, address important issues of 
the day to build up our country and make it better?

[[Page S5459]]

  Also, there is the fundamental issue of fairness. Are we going to be 
fair in this process to all concerned?
  Those are themes, those are issues to which Americans all across the 
country, certainly my citizens in Louisiana relate and care about. Are 
we going to do the people's business? Are we going to act in a way that 
is fair to all? Those are issues directly at the heart of this debate--
doing the people's business.
  Last year, I ran for the Senate for the first time. In doing so, of 
course, I traveled all around Louisiana and talked to citizens of all 
walks of life in every corner of the State. One theme I heard over and 
over from all sorts of folks of both parties was: Please go up there 
and do what is right and do the people's business. Get beyond all of 
this bitter partisanship, this obstructionism, the filibuster. Do the 
people's business in terms of important issues of the day. That is what 
folks in Louisiana told me over and over again.
  They care about putting good people on the bench and having our 
courts run properly and filling these vacancies. They also care about 
other important business--passing a highway bill, building 
infrastructure so we can create good jobs in this country and 
Louisiana, passing a national energy policy to get us on track in terms 
of energy independence. That is important for our national security, 
and that is important for our economic security.
  Again, wherever I went, with whomever I talked--Black, White, 
Democrat, Republican, and everyone in between--folks said over and 
over: Look, we are sending you there to do our business, to face 
issues, to vote, to move forward as a country, not to obstruct, not to 
play political games, not to get mired in bitter partisanship, but to 
take care of us and to address our concerns. And that is important.
  The other issue that is at the heart of this debate that ordinary 
citizens around the country and Louisiana care about is fairness. Are 
you going to act in a way that is fundamentally fair to everybody 
concerned? And, of course, that is at issue here as well.
  We have judicial nominees who have been nominated not weeks ago or 
months ago but, in many cases, years ago; in some cases, over 4 years 
ago. Their lives have been disrupted. They have been attacked by 
interest groups around the country, as well as Members of Congress. 
Many charges have been leveled against them that are patently untrue 
and patently unfair. And after all of that turmoil, after all of those 
trials and tribulations, they do not even get an up-or-down vote on the 
floor of the Senate. There is no resolution to the trial, the jury 
never comes back. We do not get to vote and say this person should be 
on the court or this person should not be on the court. That is not 
fair. That is not fair in the minds of any ordinary American. It is not 
fair in the minds of the citizens of Louisiana.

  We need to bring some fundamental fairness to this process. Sure, we 
need to have an important debate. Sure, we need to vet all the 
information. We can have differences of opinion. But then at the end of 
the day, we need to have resolution, we need to have an up-or-down 
vote. It is time to do that with all of these judicial nominees.
  We have a historic opportunity in the Senate right now to address 
both of those concerns: to do the people's business, to do our job, to 
vote, and to move on to other key issues, such as the highway bill, 
building jobs, building energy independence--and we have the 
opportunity to act honorably and with fundamental fairness by treating 
all concerned in a fundamentally fair way in giving these nominees an 
up-or-down vote.
  I stand on the Senate floor today to ask that we all come together to 
do that because that is the right thing to do, not for party leaders, 
not for the President, or for interest groups on the left or the right. 
It is the right thing to do for the American people. It is the right 
thing to do for the citizens of each of our respective States.
  I make a plea in particular to my colleague from Louisiana, Senator 
Landrieu, to do that. She is in a unique position to reach out and 
achieve fundamental fairness and do the people's business in a 
constructive way.
  Many folks, including me, quite frankly, were disappointed that a few 
years ago Senator Landrieu filibustered and supported that filibuster 
of Miguel Estrada, another highly qualified judicial nominee, after she 
had expressed strong support of that very nomination in her reelection 
  This is an opportunity to set that record aside and do the right 
thing and give all of these judicial nominees a fair up-or-down vote. 
That is what the folks of Louisiana want: to do the people's business, 
to do our job, to vote and to address other important issues and to act 
honorably and bring fundamental fairness, proper American values, 
Louisiana values to this process.
  We are beginning with a very important nomination to the people of 
Louisiana, Priscilla Owen of Texas. It is particularly important to my 
citizens of Louisiana because the U.S. Fifth Circuit Court of Appeals, 
to which Judge Owen is nominated, serves Louisiana, covers all of 
Louisiana. There has been a vacancy in that position for years and 
  Judge Owen has been nominated for over 4 years. Her nomination has 
been thoroughly vetted, thoroughly debated and, yet we have never had 
that closure. We have never had that fair up-or-down vote. In fact, the 
vacancy which she would fill has been declared a judicial emergency in 
the Fifth Circuit Court of Appeals, impacting directly Louisiana 
because it has been open for so long.
  So this is the perfect place to start for me, for Senator Landrieu, 
for those who are concerned about justice in the Fifth Circuit, taking 
care of that judicial emergency, and then we should move on and give 
all of these nominees a fair up-or-down vote.
  Justice Owen has been maligned unfairly. All sorts of charges have 
been leveled against her, and I want to address some of those directly. 
She has been called fringe and out of the mainstream, way out of the 
mainstream of American opinion and everyday life. Yet if you take any 
serious look at the facts, that charge simply does not hold up.
  Justice Owen has been on the Texas Supreme Court since 1994, but more 
significantly, when she was reelected to that position, she was 
reelected with 84 percent of the vote in Texas, with the endorsement of 
every major newspaper of the State and with bipartisan support.
  Now, is every newspaper in the State fringe, out of the mainstream? 
Are 84 percent of Texas voters fringe and out of the mainstream? 
Obviously not.
  In addition, in her nomination to the U.S. Fifth Circuit Court of 
Appeals, Justice Owen gained the highest rating possible from the 
American Bar Association.
  She was nominated on May 9, 2001, nearly 4 years ago, and renominated 
January 7, 2003, and February 14, 2005. Her qualifications have been 
vetted and debated exhaustively.
  Owen has significant bipartisan support, including three former 
Democrat judges on the Texas Supreme Court and a bipartisan group of 15 
past presidents of the State Bar of Texas.
  Owen has been a justice on the Texas Supreme Court since 1994 and was 
endorsed for reelection by every major Texas newspaper.
  Owen previously practiced commercial litigation for 17 years. She 
also has a substantial record of pro bono and community activity.
  Owen received her undergraduate degree from Baylor University and 
graduated third in her class from Baylor Law School in 1977. She was a 
member of the law review and has been honored as Baylor Young Lawyer of 
the Year and as a Baylor University Outstanding Young Alumna.
  After graduating from law school, Justice Owen received the highest 
score in the State on the Texas bar exam in December 1977.
  The American Bar Association unanimously rated Justice Owen ``well 
qualified,'' its highest possible rating.
  Some weeks ago, I also spoke on this floor in support of Justice 
Brown, whose nomination recently cleared the Judiciary Committee for 
the second time. The President nominated her to the U.S. Court of 
Appeals for the DC Circuit Court nearly 2 years ago. One-fourth of the 
DC Circuit is currently vacant; and Justice Brown's nomination has 
strong support.
  As I noted before, during Justice Brown's 9-year-tenure on the 
California Supreme Court, she has acquired a reputation as a fair and 
intelligent justice

[[Page S5460]]

who is committed to the rule of law. Justice Brown has served on the 
California Supreme Court since May 1996. Her appointment to that court 
was historic: Justice Brown is the first African-American woman ever to 
have served as an associate justice on the California Supreme Court.
  Even more impressive, Justice Brown was recently returned to that 
court with the approval of 76 percent of California voters. In her 
retention election, Justice Brown had the highest vote percentage of 
all justices on the ballot.
  Another sign of Brown's credibility is that, in 2002, she wrote more 
majority opinions than any of her colleagues on the California Supreme 
Court. As stated by a bipartisan group of Justice Brown's former 
judicial colleagues: ``she has quickly become one of the most prolific 
authors of majority opinions on the California Supreme Court.'' At 
least 12 judges have signed letters in support of her confirmation. 
Such numbers are indicators of the high esteem in which she is held by 
both the voting public in California and by her judicial colleagues.
  I have heard arguments from some of my colleagues on the other side 
of the aisle that Justice Brown should not be confirmed by this 
Chamber. One argument is that she supposedly abhors Government. Another 
argument is that she is supposedly hostile to civil rights. Such 
arguments are entirely without merit, and I would like to respond to 
this attack on Justice Brown.
  While her critics charge that Justice Brown abhors Government, this 
nominee is hardly an extremist when it comes to Government. Indeed, as 
a longtime public servant, Justice Brown has been part of our 
Government for 25 years. She thinks there are many things Government 
does well, many things only Government can do; and she has criticized 
the unintended consequences of some of the things that Government does. 
In her judicial decisions, Justice Brown strives to apply the law as it 
exists and she defers to the legislature's judgment on how to solve 
many social or economic issues.
  This nominee's judicial opinions suggest that she fully appreciates 
the importance of having Government play an active role in certain 
areas, including efforts to protect the public's health and safety. 
That is why she voted to uphold State health standards for labeling 
milk products. That is why she agreed that faucets, which might contain 
lead, should be considered a source of drinking water, under the 
Government's Safe Drinking Water Program. And that is why she agreed 
that her State's regulations regarding overtime pay should be liberally 
interpreted to provide California workers with more protection than 
they would have had under Federal law.
  Her opponents also have insinuated that Justice Brown is hostile to 
civil rights. But Justice Brown has stated in her judicial opinions 
that ``discrimination on the basis of race is illegal, immoral, 
unconstitutional, inherently wrong, and destructive of democratic 

  In writing for a unanimous court, Justice Brown struck down a certain 
minority aid program because it violated Proposition 209, a provision 
of the California constitution that bars discrimination against, or 
preferential treatment to, any individual group on the basis of race, 
sex, color, ethnicity, or national origin in the operation of public 
employment, public education, or public contracting. Every judge in 
California who reviewed this program found it unconstitutional.
  I find the argument that she is hostile to civil rights to be simply 
incredible, when you consider Justice Brown's personal history as an 
African-American who came of age in the South in the midst of Jim Crow 
laws. As someone who attended segregated schools, Justice Brown, better 
than anyone, can appreciate the importance of fighting discrimination. 
She grew up in Alabama, the daughter of sharecroppers, listening to her 
grandmother's stories about NAACP lawyer Fred Gray, who defended Dr. 
Martin Luther King and Rosa Parks. Her rise to the California Supreme 
Court from humble beginnings in the segregated South is absolutely 
inspiring. That may be why she has been sensitive to claims of racial 
profiling in cases where the facts strongly supported such an 
  We all know that Justice Brown has risen to a prominent position on 
the California Supreme Court. But not everyone is aware of Justice 
Brown's record of activities on behalf of minorities, children, and the 
underprivileged. Let me take this opportunity to highlight a few such 
  Justice Brown served as a member of the California Commission on the 
Status of African-American Males. The Commission made recommendations 
on how to address inequities in the treatment of African-American males 
in employment, business development, and the criminal justice and 
health care systems.
  She served on the Governor's Child Support Task Force, which reviewed 
and made recommendations on how to improve California's child 
enforcement system.
  While serving as a member of the Community Learning Advisory Board of 
the Rio Americano High School, Justice Brown developed a program to 
provide Government service internships to high school students in 
Sacramento, CA.
  I close by citing a statement in support of Justice Brown by an 
executive director of Minorities in Law Enforcement: ``We recommend the 
confirmation of Justice Brown based on her broad range of experience, 
personal integrity, good standing in the community and dedication to 
public service. . . Justice Brown is a fair and just person with 
impeccable honesty, which is the standard by which justice is carried 
  In closing, I urge my colleagues to allow both Justice Brown and 
Justice Owen to have a vote on the Senate floor. Let Justice Brown's 
judicial qualifications, rather than her political philosophy, be our 
focus in her confirmation process.
  The PRESIDING OFFICER. At this time, the majority's time has expired.
  The majority whip.
  Mr. McCONNELL. Mr. President, I ask unanimous consent for a couple of 
minutes to make requests for committees to meet in the Senate and to 
make just a brief statement, 2 minutes.
  The PRESIDING OFFICER. Is there objection?
  Mr. HARKIN. Mr. President, before I object, I could not hear the 
  Mr. McCONNELL. I ask unanimous consent for 2 minutes to make a 
request for committees to meet, which my assumption is the Senator from 
Iowa will object to, and then just to make a very brief statement, a 
total of 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, I have 10 unanimous consent requests 
for committees to meet during today's session of the Senate. They have 
the approval of the majority leader. I ask unanimous consent that these 
requests be agreed to and be printed in the Record.
  The PRESIDING OFFICER. Is there objection? The Senator from Iowa.
  Mr. HARKIN. Mr. President, on behalf of the Democratic leader, myself 
and, I might add, others on this side, because of the importance of the 
debate that is taking place on the Senate floor today, the Senate's 
attention ought to be turned to this and not to committee meetings, and 
therefore I object.
  The PRESIDING OFFICER. The Senator objects.
  Mr. McCONNELL. If I could reclaim the balance of my brief time, what 
we have is a further effort to make it impossible to do the people's 
business in the Senate. The normal way we do business is for action to 
be going on on the floor, and additional action in committees at the 
same time. As a result of these objections, we have thwarted progress. 
We have thwarted progress on an energy bill, on a JOBS bill, on a 
disaster relief bill. Yesterday, an Intelligence Committee meeting had 
to be cancelled. Here we are in the middle of the war on terror and the 
Intelligence Committee was not allowed to meet.
  Today's objections will shut down our meetings on the Energy bill, a 
closed CIA briefing on terrorism and proliferation of weapons in Iran, 
the Foreign Relations Committee, on strengthening America's workforce 
over at the Labor Committee, another Intelligence Committee shutdown by 
this action and, of course, the Judiciary Committee will not be able to 
continue its markup of the asbestos bill.
  We are following the regular order. The majority leader simply called 
up a

[[Page S5461]]

judicial nominee to be considered by the Senate. There is nothing 
irregular in any way about the procedure that is being followed, and 
yet our friends on the other side of the aisle are shutting down the 
business of the Senate by making it impossible for committees to do the 
work of the American people on everything from intelligence matters to 
passing an energy bill when gas prices are at record highs. This is an 
incredibly irresponsible approach to the majority's efforts simply to 
move the people's business along by following regular order and moving 
toward a vote on the President's nomination for the court of appeals.
  I yield the floor.
  The PRESIDING OFFICER. The Senator yields back.
  The time, until 11:45 a.m., is controlled by the Democratic leader or 
his designee.
  The Senator from Iowa.
  Mr. HARKIN. Mr. President, I yield myself such time as I may consume.
  I rise today to speak about the prospect that at some point next 
week, according to all of the press reports and according to what I 
have heard on the floor, the majority leader of the Senate will take a 
course of action that has been dubbed the ``nuclear option.''
  The majority leader will take a course of action that will tear down 
the rules by which we operate in the Senate, rules which have been laid 
down in some cases for almost 200 years, in some cases over 100 years.

  I believe we should be taking our time in the Senate because of the 
effects that this step by the majority leader could have on how we 
represent our constituents. It can have such a profound effect that it 
behooves us all to think very deeply and carefully about it and to come 
to the floor to express our opinions.
  By triggering this nuclear option, the majority leader would unleash 
forces he would regret and that everyone who loves this great Nation 
and its system of checks and balances would regret.
  There is no question that by breaking the rules--that is what would 
happen, breaking the rules--the majority party would gain short-term 
advantage. They would be able to confirm every one of their judicial 
nominees, no matter how radical or out of the mainstream. But the long-
term destructive consequences triggering the nuclear option would be 
profound for our system of Government.
  For more than two centuries, Senate rules and traditions have 
respected the rights of the minority. That would be destroyed. For more 
than two centuries, thanks to those minority rights, the Senate has 
been a force for compromise, moderation, and reason. That would be 
  For more than two centuries, the minority's power in the Senate has 
been essential to America's system of checks and balances. That would 
be destroyed. And something else of great importance would be 
destroyed: Respect for rules.
  Playing by the rules is the American way. It is one of our core 
values. From childhood, we are taught to respect the rules, to follow 
the rules, to play by the rules. We are taught it is dishonorable to 
break the rules or to change the rules in the middle of the game, 
especially to gain an advantage or simply to win. Ask any child, and he 
or she will say that breaking the rules or changing the rules in the 
middle of the game is not only unfair, it is wrong.
  America is a great country because playing by the rules and 
respecting rules is a core value. It is a way of life. It is at the 
heart of our athletics, our business dealings, our way of government. 
It is no exaggeration to say that if one destroys the idea of playing 
by the rules, then they invite distrust, disorder, and the 
disintegration of the American social fabric. They invite chaos, and 
chaos invites tyranny.
  This is exactly why the Republican leadership's plan to resort to the 
nuclear option is so dangerous. Since 1790, the filibuster has been 
used in the Senate countless times, and nearly 100 years ago the Senate 
passed rule XXII, codifying the right of extended debate. We know what 
that rule says. It says that it takes 67 votes to change the Senate 
rules and 60 votes to cut off debate. Those are the rules. They are 
deeply conservative rules, rules that have been respected and honored 
for nearly a century, until now.
  The Republican leadership is unhappy because a small number of 
judges, all of them I consider far out of the mainstream, have been 
filibustered by the minority. They are unhappy because they have been 
able to confirm only 95 percent of the President's judicial nominees 
and not 100 percent. This compares to only an 80-percent confirmation 
rate during the Clinton administration. The Republicans blocked 68 
Clinton judicial nominees, including, I might add, Bonnie Campbell, 
from my State of Iowa.
  Most of those nominees were blocked in the Judiciary Committee by 
just one Senator. Now, does the Republican leadership celebrate the 
fact that by playing by the rules they won 95 percent of the time? Do 
they now play by the rules and gather the votes necessary to change 
rule XXII governing filibusters? No.
  They are going to employ a trick, a procedure, whereby the rules are 
overturned by one decision of the Presiding Officer backed by 51 votes. 
That will destroy the rules of the Senate. Now they say: Well, it only 
applies to judges now. It can apply to anything else down the pike.
  Now, a mere 10 Bush nominees have been blocked, and what is the 
Republican leadership's response? It is to destroy the rules. Sweep 
aside more than 200 years of Senate tradition. In its place, they will 
make up their own rules, a new rule, that will allow them or any 
majority to change any rule at any time for any reason with only 51 
votes. In other words, once the nuclear option is detonated and a new 
Senate precedent is established, this body will be subject to the whim 
of any group of 51 Senators who want to impose their will without any 
provisions for extended debate. Make no mistake, this will be the end 
of the Senate as we know it.
  How ironic that this is being done by Senators who call themselves 
conservative. The truth is that resort to the nuclear option, breaking 
the rules, making up new rules convenient to the leadership, is a 
radical, unprecedented action with consequences that no one can 
predict. Because once the rules are broken and rules are made up as one 
goes along, seeds of anarchy, of chaos, are sown. An atmosphere of 
anything goes is created, and the end justifies the means.
  We have already seen this in the actions of House Majority Leader Tom 
DeLay. We have an honored tradition that congressional redistricting 
occurs every 10 years after the decennial census, but the majority 
leader in the House wanted to increase his majority in the House. So 
what did he do? He tore up the rules and made up new rules, Tom DeLay's 
rules. But the real Tom DeLay rule is this: Anything goes. The end 
justifies the means. Situational ethics. I fear we are about to adopt 
that Tom DeLay rule in the Senate. This is profoundly bad news for this 
  I am also concerned about the message it sends to businesspeople, to 
husbands and wives, to our people. The message is if our national 
leaders can break the rules as a matter of convenience, if they can 
write their own rules, impose them on others, then maybe it is okay for 
everyone else to behave just like that.
  This is a deeply disturbing prospect. I implore the distinguished 
majority leader, Senator Frist, to consider the law of unintended 
consequences. He is threatening to break rule XXII in order to pass 100 
percent of the President's judicial nominees. Once the rule is 
destroyed, and once the majority leader imposes a new rule to his 
liking, then who is to say where it will lead? It will be like an out-
of-control virus. If 51 Senators can change any rule at any time for 
any reason, then anything is possible. The metaphor Senators are using 
is a ``nuclear option,'' and I would say that is true, it is nuclear 
because it does blow up this place. But there may be another metaphor, 
too: that the majority leader is letting the genie out of the bottle 
and there will be no putting that genie back once it is out. It will 
wreak destruction in ways no one now can predict or foresee.

  For example, once the Chair can make a determination about the rules 
and have that ruling upheld by 51 votes of the Senate, what is to say 
of the time-honored tradition we have in the Senate of a Senator being 
able to have the right of the floor and being able to speak for as long 
as he or she wants? That has been our right since the

[[Page S5462]]

founding of the Senate. Once a Senator is recognized, that Senator can 
speak until they drop. I think the record is 24 or 25 hours, by former 
Senator Strom Thurmond.
  Who is to say if, in the future, someone gets up to speak but people 
want to move on and do something, that after that person speaks for 5 
or 10 hours the majority leader would be recognized and make a point of 
order that the person is speaking unconstitutionally? They have the 51 
votes to uphold the motion and that is the end of it. So a Senator's 
right to have the floor is subject to whatever the Chair wants. We may 
get it; we may not. We may not be able to speak for an hour or 2 hours 
or whatever we want. The Chair may say to the Senator from Iowa, You 
can speak for 3 minutes and then you have to sit down.
  They do that in the House of Representatives. They have a 5-minute 
rule. I know, I served there. But that is not the Senate.
  I am just saying who knows what might happen. It is possible. If we 
go down this road that is the precedent that is set.
  I do not know why the majority leader is doing this. Possibly what we 
are seeing here is an attempt to seize absolute power and unchecked 
control of all three branches of Government. The Republicans already 
control the executive branch. A majority of Supreme Court Justices are 
Republican nominees. So are the majority of judges on our Courts of 
Appeal, the circuit courts. Indeed, there is a Republican majority on 
10 of the 12 circuits. Republicans have an iron grip on the House of 
Representatives. They have a 55-seat majority here in the Senate. Only 
one barrier now stands in the way of the Republican Party seizing 
absolute control of every aspect of our Government, all three branches, 
and that is the right of the minority in the Senate to filibuster.
  By unleashing the nuclear option, the Republican leadership would 
crush this last remaining check on its power. The filibuster is a more 
than 200-year-old tradition in the Senate; it has withstood the test of 
  I do not believe the nuclear option reflects the desires or values of 
the American people. Americans are extremely wary of one-party 
dominance and control. This is a prime reason why so many voters split 
their ballots In the election last November. Republicans won the White 
House with less than 51 percent of the popular vote. The Republicans 
have a 52-percent majority in the House. They have a 55-percent 
majority here in the Senate. But they want to seize 100-percent control 
of the Government, including the third branch, the judicial branch.
  It is not healthy for our country. It is not healthy for our 
democracy. I do not believe for 1 minute this power grab reflects the 
wishes of the American people. When it comes to government, there are 
certain values and principles that the vast majority of Americans 
share. We prize our system of checks and balances. We respect minority 
rights and dissent. We want to ensure that minorities are protected. We 
understand the danger of majorities acting without check or restraint, 
running roughshod over those who would disagree.
  As a well-known minister once said:

       Democracy exists not just when the majority rules, but when 
     the minority is absolutely safe.
       The rules of the Senate and the rule of extended debate 
     give the minority that absolute safety. You take that away 
     and you take away the minority rights in the Senate. Most 
     Americans understand that checks and balances are the key to 
     preserving our liberty.

  James Madison wrote:

       The accumulation of all powers, legislative, executive and 
     judiciary, in the same hands may justly be pronounced the 
     very definition of tyranny.

  But that is exactly the goal of the Republican leadership today. They 
seek the accumulation of all power--legislative, executive, and 
judiciary--in the same hands, their hands. This is profoundly 
dangerous. By resorting to the nuclear option, the majority would break 
the rules in order to change the rules. Under the rules of the Senate, 
it takes 67 votes to change the rules, 60 votes to end debate on a 
judicial nominee. But by resorting to this parliamentary gimmick, this 
nuclear option, the majority would change this rule with only 51 votes. 
The result would be to destroy any check or restraining influence on 
the power of the majority. This is not the American way. It is 
certainly not the wishes of the American people.
  In debate in the Constitutional Convention in Philadelphia, James 
Madison said the Senate would have two roles:

       first, to protect the people against their rulers, 
     secondly, to protect the people against the transient 
     impressions into which they themselves might be led.

  By attacking the filibuster, the Republican leaders would destroy the 
ability of the Senate to ``protect the people against their rulers.'' 
The Senate would lose its capacity to stand up to an out-of-control 
majority. Instead, the Senate would be turned into a rubberstamp for 
the majority's agenda, just as the House is a rubberstamp for the 
majority's agenda right now. That would be a betrayal of the Senate's 
traditional role as envisioned by the Founding Fathers.

  The Constitution gave Senators 6-year terms so they would not bend to 
the political passions of the moment. I remind my colleagues of the 
famous exchange between Thomas Jefferson and George Washington. On his 
return from France, Jefferson asked Washington at the breakfast table 
why he favored the creation of a second Chamber, the Senate.
  Washington replied with the question, ``Why did you pour that coffee 
into your saucer?''
  Jefferson said, ``To cool it.''
  To which Washington reportedly said: ``Even so we pour legislation 
into the senatorial saucer to cool it.''
  For two centuries that is exactly how the Senate has worked. Because 
of the tradition of free speech and minority rights, specifically 
because of the threat of filibuster, Senators have a strong incentive 
to act with moderation and restraint, to make compromises, to 
accommodate the legitimate concerns of the minority. That is exactly 
what the nuclear option would demolish.
  The majority party in the Senate, whether Democratic or Republican, 
has always been frustrated by the minority's use of the filibuster. But 
I submit that frustration is the necessary byproduct of an effective 
system of checks and balances. It is the price we pay to safeguard 
minority rights.
  For decades, a determined conservative minority used the filibuster 
to block civil rights legislation and deny an up-or-down vote to a 
liberal Supreme Court nominee, Abe Fortas. Progressives were extremely 
frustrated by this exercise of minority rights and minority power.
  Now it is the Republicans' turn to be frustrated by the filibuster. 
They are frustrated because they can't get their way on judges 100 
percent of the time. They have gotten their way on 95 percent of 
judicial nominees, but not 100 percent, and they believe this justifies 
breaking the rules, to get rid of the filibuster.
  I submit the Republicans' very frustration is evidence that the 
system of checks and balances here in the Senate is healthy and 
working, working exactly as it should.
  In 1995, I proposed to modify rule XXII in a way that would have 
given the minority an incentive to limit the use of the filibuster. It 
would not have taken it away. However, my proposal bore no resemblance 
to the nuclear option. First, I did not propose to break the Senate 
rules. I played strictly by the rules. I pursued my rule change through 
normal Senate procedures as a floor amendment. It would have taken the 
requisite 67 votes to pass on the floor, which is entirely appropriate 
when changing a time-honored Senate rule. By contrast, this nuclear 
option discards the rules. It would impose the Republicans' radical 
change with only 51 votes.
  Ten years ago I proposed to modify the filibuster rule as a matter of 
principle. Today the Republican leadership wants to modify the 
filibuster as a matter of political expedience, to make it possible to 
stack the courts with radical judges. They are pursuing unchecked 
power, the absolute control of all three branches of Government. In 
this context, the filibuster takes on even new importance.
  It is all that remains to check the majority's quest for absolute 

[[Page S5463]]

  By the way, I might note parenthetically that 24 current Republican 
Senators actually voted against my proposed change to the filibuster 
back in 1995. The distinguished majority leader, Mr. Frist, was one of 
those Republicans opposing any change to the filibuster. Indeed, as has 
been noted time and time again, the majority leader voted in the year 
2000, 5 years ago, to sustain a filibuster of a Clinton nominee, as did 
many other Republicans.
  Those same Republicans, who now say President Bush's judicial 
nominees have a constitutional right to an up-or-down vote on the 
Senate floor, denied that alleged right to scores and scores of 
President Clinton's judicial nominees, including, as I said earlier, a 
distinguished Iowan, Bonnie Campbell. Ms. Campbell, a former Iowa 
attorney general, respected Justice Department official, was nominated 
for the Eighth U.S. Circuit Court, but her nomination was blocked in 
  Let's be clear. If the issue is denying nominees an up-or-down vote 
by the full Senate, there is no practical difference whatsoever between 
blocking a nominee in committee or by filibuster on the floor. During 
the Clinton years, Republicans blocked judicial nominees again and 
again and again. They did it in committee, they did it by blue slip, or 
they blocked them on the floor. It didn't matter. But the nominees were 
denied an up-or-down vote on the floor of the Senate.
  The nuclear option is a flagrant abuse of power. The minority party, 
the Democrats, will resist it vigorously within the rules of the 
Senate. We have a responsibility, an oath of office to defend our 
constitutional system of checks and balances. We have a responsibility 
to defend the Senate's unique function as the last bastion of minority 
rights, as the last check on an abusive, out-of-control majority.
  But this should not be just the responsibility of the minority party. 
It should be the responsibility of all Senators who respect the rules 
and traditions of this body. It should be the duty of all Senators who 
value our democratic principles, our system of checks and balances, 
protection of minority rights.
  The very nature of the Senate as an institution is at stake. More 
than that, the very nature of how we operate as a government is at 
stake. As I said, when you destroy the rules by not following the 
rules, you invite chaos. Chaos invites tyranny. This is the time to 
look beyond party, to look beyond short-term partisan advantage.

  I have every hope there will be enough Senators, Democrats and 
Republicans alike, to disarm this destructive nuclear option. I have 
every hope that a critical mass of Senators will be true to the rules 
and traditions of this body and that we will act to preserve the 
integrity and independence of this great institution.
  I yield the floor.
  The PRESIDING OFFICER. The assistant Democrat leader.
  Mr. DURBIN. I thank the Senator from Iowa for making clear that when 
he offered his change in the rules relative to the filibuster, he did 
it according to the rules. When Senator Harkin suggested that we change 
the number of votes necessary for a filibuster, he used the rules of 
the Senate, he followed the rules of the Senate. He understood it would 
take 67 votes for him to succeed and he pressed forward.
  If the Republican majority today did exactly as Senator Harkin did, 
there would be no discussion of a nuclear option. We would move to that 
point in the calendar, we would take the vote according to the rules, 
and no one would be paying much attention because that is the routine 
of the Senate. We would be following the rules of the Senate.
  The unique situation now presenting itself with the nuclear option is 
that the Republican majority is going to break the rules of the Senate 
in order to change them. Instead of following Senator Harkin's model 
and example of 67 votes, they will bring Vice President Cheney to the 
chair, they will ask him to rule as a Presiding Officer of the Senate 
that the rules are going to be changed, he will make that 
pronouncement, and that is the end of the story. They will be breaking 
the rules of the Senate to change them.
  That is the unique difference between what Senator Harkin did many 
years ago and what the Republican majority does today. It is historic. 
That is why so many people are following this debate. People who never 
heard of the nuclear option are following this debate. They understand 
something historic is about to take place: changing a tradition, 
changing something in the Senate, a rule that has been in place for 
over 200 years. With the wave of his hand, Vice President Cheney will 
take away a rule that has applied for 200 years.
  Some argue this should be viewed as another routine day in the 
Senate. I disagree. This is a historic debate and one on which I hope 
the American people are focusing. Changing the rules in the middle of 
the game is not accepted in most conduct in America. It shouldn't be 
accepted in the Senate. Changing the constitutional balance of the 
Senate and the White House is historic and should be followed closely 
by every single American.
  My colleague, the Senator from Kentucky, came to the Senate earlier 
and suggested that we should go about the routine business of the 
Senate while this debate continues. We see it otherwise. We believe we 
should focus in the Senate, as the people of America should focus on 
this critical debate, with very few exceptions. If there are exceptions 
relating to committee activity on national security or things of that 
nature, we will consider each and every one of those, but the routine 
business of the Senate must be held up while we engage in this.
  The core reason for this debate is the approval of judges. Since 
President Bush was elected, more than 95 percent of his judicial 
nominees have been approved, the highest approval rating of any 
President in the last 25 years. Again, 208 have been approved, 10 have 
not been approved, and the President says: That's not good enough; I 
want them all. No dissent, no disagreement, give me every single judge.
  That is the reason we are here debating. To make it clear to those 
following the debate, we are prepared, on a bipartisan basis, to work 
with the White House and the Republicans to continue to approve judges, 
as we have already done 208 times with this administration. I am about 
to make a unanimous consent request that will be followed by another, 
and let me describe it first before I make it. We have had one man's 
name on the calendar longer than the pending nominee, Priscilla Owen: 
Thomas Griffith of Utah, nominated to serve as circuit judge for the 
District of Columbia. I voted for him as a Democrat, coming out of the 
Senate Judiciary Committee. He has been on the calendar since April 14.
  As a show of good faith, as a show of bipartisanship, to demonstrate 
we can work together, we can achieve things when we speak to one 
another and when we respect one another, I will make a unanimous 
consent request to move from the current business immediately to the 
Executive Calendar to bring his name to the Senate with debate of, say, 
1 hour, and that he be voted on today.
  Then when I am finished, as the minority leader, Senator Reid, did 
yesterday, I will ask that we discharge the Senate Judiciary Committee 
and immediately consider the Michigan Circuit Court nominees of 
Griffin, McKeague, and Neilson. I will, of course, allow that unanimous 
consent request to be amended in terms of debate time necessary for 
each nominee, but we can in a matter of a few hours move four circuit 
judges through this Chamber on a bipartisan basis and demonstrate that 
there is no need to describe our situation as a crisis. There is no 
need to change a 200-year tradition of the Senate. There is no need to 
call in Vice President Cheney to wipe out a rule that we can work on 
together. I think that is what we should do.
  I ask unanimous consent we move to the nomination of Thomas B. 
Griffith of Utah to be U.S. circuit judge for the District of Columbia 
and that Mr. Griffith's nomination be considered with 1 hour of debate 
equally divided, and then have a rollcall vote. I make that unanimous 
consent request.
  Mr. McCONNELL. Reserving the right to object, and I will object, let 
me say to my good friend from Illinois, this is a scheduling issue. His 
party was in the majority for 18 months between 2001 and 2002. Then, 
Majority Leader Daschle got to decide the order of matters to be 
considered in the Senate. That is the prerogative of the majority 

[[Page S5464]]

  I am certainly pleased to hear of the enthusiastic support of my good 
friend from Illinois for the nominee, Griffith. Nevertheless, the 
majority leader, Senator Frist, is charged with the responsibility of 
determining the order in the Senate. We are on a nomination that enjoys 
bipartisan support, a majority of bipartisan support, and that is Texas 
Supreme Court Judge Priscilla Owen.
  I am of the belief that some of the efforts to shut down the 
activities of the Senate may be coming to a close, and I will seek the 
floor for the purpose of offering a unanimous consent to allow the 
Foreign Relations Committee to at least meet, which is good news. 
Unfortunately, other committees are still shut down by not following 
the normal procedure in the Senate where committees are busily at work 
while action is occurring on the Senate floor. As a result of actions 
in the last 2 days, the Energy bill is thwarted, the JOBS bill is 
thwarted, disaster relief is thwarted, and a closed intelligence 
meeting was not held again today. The Energy bill, the HELP Committee 
is out of action today. Asbestos is not going forward.
  All of these efforts to delay activity in the Senate, to shut down 
the Senate are not necessary. It is routine in the Senate for 
committees to be doing work while we have debate on the floor. Nothing 
extraordinary is happening on the floor. We are following regular 
order. The majority leader, as is his right, had called up a 
nomination, and we are debating it.
  We will get around to Mr. Griffith, and I am certainly pleased to 
hear that the assistant minority leader is in favor of him. That is 
good news. That is one, when we turn to him, I look forward to 
confirming with not a great deal of debate.
  With regard to the current consent agreement, I object.
  The PRESIDING OFFICER. The objection is heard.
  Mr. DURBIN. Mr. President, let me say it is clear now this is not 
about moving judges forward because I have offered an opportunity for 
the Republican majority to move a circuit judge in Utah forward on a 
bipartisan basis, as most of President Bush's nominees have been moved 
forward. It is about the fact that President Bush has not had every 
single nominee he sent to Congress approved. More than 95 percent have 
been approved.
  There is another controversy relating to the State of Michigan--and I 
see my colleague, Senator Stabenow, is here--a controversy that goes 
back to the Clinton administration when a systematic effort was made to 
deny any nominee, virtually any nominee sent by the Clinton White House 
to the Senate Judiciary Committee, the opportunity for a hearing and 
fair consideration.
  Naturally, the Senators from Michigan were upset that very qualified 
men and women were not given a chance to present their credentials and 
to come to a hearing and have a committee vote. Over the years they 
have expressed that concern and asked there be some balance in the 
nominations to fill the vacancies.
  At this point, I ask unanimous consent we set aside the pending 
business of the Senate, discharge the Senate Judiciary Committee from 
further consideration and immediately consider the nomination of 
Michigan Circuit Court nominees Griffin, McKeague, and Neilson.
  Mr. McCONNELL. Reserving the right to object, and I will object, once 
again, it is good news to hear the Senator from Illinois is going to be 
supportive of three circuit judges from Michigan who have been denied 
an opportunity to have an up-or-down vote for many years. The majority 
leader certainly has on his list for very near future consideration all 
of those judges, and I am pleased to hear they will be in all 
likelihood approved when they are brought up at a time of the majority 
leader's designation.

  Let me repeat, all we are looking for is an up-or-down vote. We are 
not looking for a guaranteed outcome. But my friend from Illinois is 
probably suspicious that there will be success if up-or-down votes are 
granted because all of the judges who have been pending have bipartisan 
majority support.
  We will look forward to dealing with all of the judges the Senator 
from Illinois would like to schedule, instead of the majority leader, 
in the very near future, but in the meantime we are dealing with the 
nomination of Justice Priscilla Owen to the Fifth Circuit.
  Mr. President, I object.
  Mr. DURBIN. Let me close briefly and say if the argument is being 
made by the Republican side that there is committee activity that 
should go on that is more important than this constitutional debate on 
the floor of the Senate, I would also make the argument that there is 
important floor activity that just could have taken place. We could 
have approved four more judges for President Bush at the circuit level, 
moved forward on a bipartisan basis, and done it before lunch.
  It was the decision on the Republican majority side that rather than 
bring this to a vote, bring it to closure, make progress, show we are 
working together on a bipartisan basis, instead they are going to 
continue to press for the so-called nuclear option so that Vice 
President Cheney can wipe away a 200-year tradition in the Senate with 
the wave of a hand. Unfortunately, that is a sad commentary on where we 
stand today.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Mr. President, I rise today to speak about both the 
pending nomination and also the overall process involved in the debate 
on free speech and checks and balances.
  Let me first thank and support the efforts of our Democrat minority 
leader from Illinois and thank him for his eloquence on this issue and 
indicate that despite concerns about the process now and the lack of 
bipartisanship in the Sixth Circuit for the last 4\1/2\ years and the 
lack of ability to come together in a way to jointly support nominees 
given the context of this larger debate right now and the critical 
importance of maintaining the minority views in the Senate and our 
ability to fight for our States and what is important for us both, 
Senator Levin and I have agreed to allow us to move forward in a show 
of bipartisan cooperation, a show of good faith with our colleagues on 
the other side of the aisle, to move forward with three nominees for 
the Sixth Circuit.
  It is very disappointing to once again see that motion has an 
objection rather than moving ahead. In fact, last week, when our 
leader, Senator Reid, made that motion to move forward on three judges 
in order to be able to get us moving in the right direction in terms of 
bipartisanship, the majority leader objected to moving forward on the 
three Michigan nominees and immediately went to a press conference with 
House Republicans from Michigan to criticize us for not being willing 
to compromise and move forward on Sixth Circuit nominees.
  This kind of politics is very disturbing and very unfortunate when we 
are trying very much to move forward and to break this gridlock and 
create an atmosphere where we can continue to work together on the 
issue of judges. Again, let me say that it is very unfortunate that the 
majority leader said that three out of four judges was not enough. 
There is an objection, a concern on both sides of the aisle, of one of 
the nominees, but we have been willing in good faith to move forward 
with three of the nominees and have for 4\1/2\ years been meeting with 
the administration, with colleagues on both sides of the aisle, 
offering bipartisan solutions such as what other States do in terms of 
bipartisan commissions to be able to move us forward. At every turn we 
have been told, ``no.''
  Now when we come forward and say, let's move to three of those judges 
in the interest of the larger picture in terms of what is happening in 
the attempt to eliminate checks and balances in our constitutional 
process, we, once again, are hearing, ``no.''
  I find that very unfortunate. But I think it points to the fact that 
what we are seeing is a fundamental debate, not about judges, but it is 
about free speech. It is about our constitutional system of checks and 
balances. We have to constantly refer to the fact, as has been said 
before on the floor, that if it was about judges, the administration 
should be celebrating the best record in 25 years of Presidents of 
either party: 208 to 10. There have been 208 judges confirmed on a 
bipartisan basis, to 10 whom we have objected to because they are 
incredibly outside of the mainstream of American thought. The best 
record in 25 years: 208 to 10.
  What is this debate about? Well, unfortunately, it is about the fact 

[[Page S5465]]

we have one party--we respect that. We understand one party is in 
control of the White House, the House, and the Senate, but they do not 
have 100 percent. There are people who elected others, elected 
Democratic Senators or Democratic House Members. They want their views 
to be represented as well in this democracy, where we work together to 
find compromise and balance and what is best, ideally, for everyone but 
certainly for the majority of Americans on any one decision.
  But we are hearing, instead: No, we want total, absolute, complete 
power over what happens in the United States. That is not a democracy. 
In fact, we are very fortunate that our Founders understood the 
importance of checks and balances in putting together not only a House 
of Representatives, that reflects the instant will of the people, but 
also a Senate, with a longer term--instead of a 2-year term, a 6-year 
term--that is charged with carefully evaluating the impact of 
legislation in a longer term view. In other words, the House is the 
``gas pedal,'' and the Senate was designed as the ``brake.'' So we can 
have the important debates occurring in the House, and in the Senate 
have them as well, but allow minority views to be represented in a 
different kind of way.
  On the issue of judges, our Founders were very clear. It is the third 
branch of Government, with lifetime appointments. It is not the 
President's Cabinet. I supported nominees to the President's Cabinet 
who personally I would not have selected. But the President has a 
right, within every reason, to his team for his 4 years. I have 
supported those.
  But this is a third branch of Government, with lifetime appointments, 
so our Founders said: We are going to give half of that responsibility 
to the President and half of that responsibility to the Senate. So 
given our half of the responsibility, again, we have agreed to 208 
judges on a bipartisan basis. And using our half of the responsibility, 
we have objected to 10. That is the record: objected to 10. And why? 
Because those individuals, again, do not represent mainstream thought 
and would be filling lifetime appointments--not for 3 or 4 years, but 
for three or four decades--long beyond any of us in our participation 
here in the Senate or this President.
  So it is important to remember that in putting together our 
Constitution and our Bill of Rights, our Founders, were very wise. I 
think we are very fortunate we had a group of people come together to 
create these checks and balances.
  It is not about just partisanship, Democrats and Republicans, it is 
about big States and small States. It is about Great Lakes States and 
States that do not have water. The reality is, we have a system of 
checks and balances that has allowed us to come together and create 
compromise, allowed us to create more mainstream decisions, because we 
have something called a filibuster which says a Senator can stand up, 
and as long as their legs will allow or their voice will allow, they 
can stand up and speak their mind on behalf of the people they 
represent, and they have the opportunity to put forward their view.

  It is the minority view--not the minority party view. It may be a 
single person's view, but the minority view can be heard. And because a 
Senator or two or three or four believe so passionately about 
something, the rules then require you have to get a few more people to 
agree, you have to get 60 votes, rather than 51, because of the strong 
concerns raised by individual Members.
  Now, what does that mean for us in Michigan? This is not just about 
judges. In Michigan, we are very proud of our Great Lakes. We are proud 
of the fact that we not only have our Great Lakes for drinking water, 
but for boating and tourism and economic activity. But one of the 
things we are concerned about in Michigan is the fact that someday the 
States in the West and the South that do not have a lot of water may 
decide they might want our water. Well, we do not like that very much.
  Right now, I feel very confident that Senator Levin and I, and other 
Great Lakes Senators, would be able to stand up and present the 
minority view, to be able to use the rules of the Senate to protect our 
water. What happens if that is gone? What happens if we no longer can 
express as to and fight for our State because the checks and the 
balances have changed?
  This is not just about judges. What about Social Security? If, in 
fact, the rules can be changed on judges, what about privatizing Social 
Security? Right now, we have a significant number of people to be able 
to stop the movement to dismantle Social Security, the great American 
success story. But what if the rules change and the checks and balances 
  The whole point of checks and balances, the whole point of allowing 
extended debate and forcing compromise and people coming together, is 
to bring people with calmer minds to be able to listen to each other 
and to be able to forge a bipartisan compromise. For Senators, whether 
it is their view as a Democrat or Republican or their view from their 
State or their view because of some other consideration which causes 
them to feel so passionately that what is being put forward is wrong, 
it forces us to work together. That is a great thing. That is something 
we have benefited from as a country. We need to protect that as 
  Let me say also that it is very ironic, as we are talking about the 
filibuster--I find particularly in Michigan--that when we talk about 
the filibuster, and so on, as if it has never been done before, 
colleagues of mine who have been around for a while may remember Abe 
Fortas who was nominated for Chief Justice back in 1968. I will not 
tell you where I was in 1968, but it is a little before my time here. 
But it is interesting to note that one of the Senators who filibustered 
the Justice at that time, in 1968, was a Michigan Republican Senator, 
Senator Robert Griffin.
  What is particularly noteworthy is that he is the father of one of 
the nominees to the Sixth Circuit who, in fact, we just tried to move 
forward right now and were stopped in so doing. But it is important to 
note that Senator Griffin, on the floor, in his debate, in his speech 
about why it is appropriate for Senators to be able to stand up and 
object and to filibuster on judiciary nominations, said:

       It is important to realize that it has not been unusual--

  This is 1968.

     it has not been unusual for the Senate to indicate its lack 
     of approval for a nomination by just making sure that it 
     never came to a vote on the merits. And as I said before, 21 
     nominations to the court have failed to win Senate approval.

  This is Senator Griffin in 1968:

       But only nine of that number have been rejected on a direct 
     up-or-down vote.

  In other words, Senator Griffin acknowledged, back in 1968, that it 
was not unusual for this Senate to filibuster judicial nominees. I 
think there is a lesson here. If the Republicans are currently 
concerned about filibusters, they should listen to what the father of 
one of the pending nominees, a Republican, said about filibusters and 
checks and balances.
  Once again, the reality is, I do not believe this is about 
filibusters in the context of judges because, look: 208 to 10; 208 
approved, on a bipartisan basis, to 10. This is about whether we will 
have free speech in the Senate and, I believe, in our country through 
its elected Senators. This is about whether there will be checks and 
balances in our Government that allow those rare occasions--with 
the 10--for people to say: No. You have gone too far, Mr. President. 
With all due respect, your nominations have gone too far. And on behalf 
of the people we represent, we have the responsibility to stand up and 
say, stop, send us another nominee. Send us someone in the mainstream. 
Send us someone who will, in fact, represent the interests of a 
majority of Americans.

  That is not what is happening today. We are being told: It is all or 
nothing. In the Sixth Circuit it is all or nothing. Three out of four 
judges is not good enough. We are being told here: It is all or 
nothing. It is about complete and absolute power, no checks and 
balances. In other countries they call that a dictatorship. We have a 
democracy. We respect and allow other views to be heard. We do not have 
to agree with them, but we allow them to be heard in our country's 
democracy. And we create a way, through the Senate, to force people to 
come together and listen to each other, and to be able to compromise in 
the very best sense of the

[[Page S5466]]

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

  I think that is a mistake. I think guilt by association, whatever you 
think of these organizations, should not be disqualifying of nominees 
from the Federal bench. If the standard that he erects for Priscilla 
Owen had been in place when Ruth Bader Ginsburg was nominated to the 
Court, she would not have been confirmed.
  I have also noted with some interest, while it is never held up as a 
religious test, great concern for nominees who are devout members of 
their religious faith, fearing that their beliefs and their faith would 
affect their judgment

[[Page S5467]]

on the bench. Mr. President, I believe the Constitution is explicit in 
making clear that we do not have religious tests for public office. I 
do not accuse any of my Democratic colleagues of religious bias, but I 
do hear a fearful undertone, an undercurrent here that I think will bar 
the door to judicial service to people of faith if we set or keep the 
standard at 60.
  Mr. President, I come to this place believing that the brightest of 
conservative and liberal thinkers best serve American justice and the 
evolution of American law rather than having a standard that says if 
you are unwritten and unrevealed and unaffiliated, you have a chance, 
but if you are a Member of a political organization, if you are 
affiliated with the Heritage Institute or the Brookings Institute or 
you are a member of a religious faith, these standards will begin to 
erect barriers to service in public office. I think that is a very 
dangerous thing.
  After my own law school experience, I had the privilege of serving as 
the law clerk to the chief justice of the New Mexico Supreme Court, 
Vern Payne. It was my observation in those chambers that the judges 
that made the most difference for good in the administration of equal 
protection and due process were those on the right and the left that 
had clear feelings and a compassion that guided their decisions. I do 
think we make a serious long-term mistake and do very real damage to 
American law when we say only those in the middle can serve. But that 
is what the standard of 60 will mean in the future of American law if 
that is now the rule of the Senate.
  If you study the filibuster, you will find that this is a right that 
Senators have that has evolved out of a mistake in leaving out a Senate 
rule that originally governed this body. But unlimited debate became 
the standard, and yet it also became the vehicle by which much of 
America's business was left undone. Sometimes it was used to odious 
ends, such as the denial of an African-American's civil rights. Long 
before I ever arrived here, colleagues of former days began to change, 
refine, and limit the use of the filibuster. I have heard my colleagues 
on the other side describe this right in terms which make it secular 
scripture or that this is in the Constitution. It is not in the 
Constitution. But it is an important right, I grant.
  What the public is not hearing is that there are several calendars of 
business that we take up. There is the Legislative Calendar. We are the 
legislative branch. Then there is the Executive Calendar in which we 
take up advice and consent on executive appointments both to the 
executive branch and to the judicial branch. When you get to the 
Executive Calendar, you really do get to the checks and balances. And 
the question is why was it for more than 200 years the gentleman's 
agreement was that you do not filibuster these nominees, you give them 
an up-or-down vote for so long? And the reason was simply because it 
did have an impact upon other branches of Government.
  No one here is proposing a limitation of filibusters on the 
legislative calendar.
  Nevertheless, in former years, our colleagues made many modifications 
to the filibuster rule. It began in 1917. There was no limit to 
filibusters until then. The standard was then set at 67 votes to invoke 
cloture, end debate, and go to a vote. But still, this was not a 
standard applied to the Executive Calendar.
  Further on, many changes have been made to the filibuster rights of a 
Senator. There are, in fact, 26 laws on our books today abrogating the 
right of a Senator to filibuster. For example, you cannot filibuster a 
Federal budget resolution. It was known as the Congressional Budget and 
Impoundment Control Act of 1974. The Budget Act of 1974 restricts 
debate on a budget resolution and all amendments thereto and debatable 
motions and appeals in connection therewith to not more than 50 hours. 
That is a very significant restriction on the right of a Senator to 
  Another restriction is that you cannot filibuster a reconciliation 
bill. Like the budget amendment, a reconciliation bill cannot be 
filibustered on the Senate floor, so it can pass by a majority vote. So 
you cannot filibuster anything connected with a resolution or 
reconciliation, such as an amendment or a conference report.
  I think the public would be surprised to know that at the end of a 
session, when the work of the Finance Committee and much of the work of 
the Appropriations Committee comes to this floor, usually in a big 
omnibus bill or reconciliation package, it passes by a majority vote 
because it cannot be filibustered. In fact, I suspect half of the work 
we end up doing here, because of decisions made in former days, is not 
the subject of filibuster, even though it is part of the legislative 
  Another instance: You cannot filibuster a resolution authorizing the 
use of force--the War Powers Resolution. You cannot filibuster 
international trade agreements, and that is called the Bipartisan Trade 
Promotion Authority. You cannot filibuster legislation under the 
Nuclear Waste Policy Act of 1982.
  Time and again, our colleagues before have recognized that to move 
the business of the United States, there had to be some kind of limits. 
When I speak of the filibuster, I speak of it respectfully; I also 
understand its importance to slow down debate and to give Senators all 
the opportunity they need for debate. But I also understand that the 
country's business has to move forward. So colleagues, in former 
decades, have narrowed the right of the filibuster.
  One of the Senators in this Chamber who preceded me here from Oregon 
is a man much esteemed in Oregon lore. His name was Wayne Morse, known 
as the ``tiger of the Senate.'' He is the third place recordholder for 
a filibuster, exceeded only by Strom Thurmond and Al D'Amato. As I 
recollect, he spoke for 22 hours and 26 minutes on the tidelands oil 
bill in 1953. I suspect, if you check the record, few Senators used the 
filibuster more than Wayne Morse. He used to come here late at night 
and speak well into the night almost on a daily basis when the Senate 
was in session.
  But listen to what Wayne Morse said about the filibuster:

       It is time we got back to the original purpose of the 
     Founding Fathers and of the U.S. Senate. That purpose is to 
     give reflection, continuity, and dispassion to legislation. 
     These certainly do not extend to giving a veto power to a 
     dissident minority. The Constitution is clear about when a 
     two-thirds vote is required to make a decision. Those who 
     want to add to those instances might better be honest about 
     their intentions and come forward with a constitutional 
     amendment, rather than to seek to achieve their purpose by 
     the means of Senate rules.

  What Senator Morse was referring to is that the U.S. Constitution 
makes explicit those instances in which supermajorities are required. 
Advising and consenting on judges is not among those. It is required 
for amending the Constitution, it is required to override a President's 
veto, it is required for the ratification of treaties, and in a couple 
more instances. But this issue is not among those expressed in the 
  To clarify, Senator Morse states that he supports the use of 
filibusters. He said:

       I am one liberal who admits that he filibusters.

  Yet he draws a distinction between filibusters which control debate 
and a filibuster designed to prevent a vote from ever occurring, which 
subjects the Senate to rule by the minority.
  He went on to say:

       It is one thing to filibuster to stop what is called a 
     ``steamroller'' in the Senate, to stop a majority from taking 
     advantage of a parliamentary minority. It is quite another 
     thing to filibuster in the Senate under a program which is 
     aimed to defeat the right of the majority to express itself 
     by way of the passage of legislation, which in turn will be 
     subject to the checks which our constitutional system 

  There are lots of checks and balances, but right now the 109th Senate 
has a decision to make--whether or not we should reinstate a two-
century tradition of voting up or down on the Executive Calendar for 
judges. Why? Because it is important to the two other branches of 
Government. The 108th Congress broke this tradition and 60 is now the 
rule, unless we come to some other agreement.
  Well, again, Mr. President, I do fear the impact of this new standard 
if we don't do something. I believe this new standard, if applied to 
past distinguished jurists, would make their confirmation impossible. I 
believe Oliver Wendell Holmes was revolutionary in

[[Page S5468]]

his thinking about law. Felix Frankfurter, a Roosevelt appointee, was 
certainly revolutionary in his thinking. Thurgood Marshall or William 
Rehnquist or Justice Scalia--these men, I believe, today, under this 
new 60-vote standard, would likely be unconfirmable.

  I believe this dumbs down American law, and the Senate does a 
disservice to the meaning of elections and to the important authorities 
given to the executive and the judicial branches when we raise 
filibusters to this new level, which I believe says to every bright 
young law student: If you have a point of view that is clear, if you 
have a membership in the ACLU or in the Federalist Society, if you are 
a member of a religious faith or part of a labor union, this will be 
held against you; it will have a chilling effect on people's ability to 
make a difference in law. It will certainly be a sword that we will 
wield when we are in the minority. It is, therefore, with regret but 
conviction that I assert my support for a rule that will restore the 
tradition of the Senate on the Executive Calendar.
  The Senate rules are not Scripture. They have been changed repeatedly 
throughout the history of this institution. We may now have to do that 
again. I had hoped that a compromise could be found. One may yet be 
found. But I have also come to believe that when you take a deal that 
says give up on the principle, the tradition, and throw half of these 
nominees overboard, what is admitted in that offer is that all of these 
people from whom we can select are qualified for the Federal bench, and 
what is also admitted by that offer is that this is just about 
  This is a principle too important to get in the way of the efficient 
management of our business, our responsibility of advising and 
consenting, and having back in place the 200-year tradition of giving 
up-or-down votes to those who have majority support.
  With that, I urge my colleagues to support the majority leader, and I 
urge the restoration of a majority vote on judges.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Graham). The assistant majority leader is 
  Mr. McCONNELL. Mr. President, I want to say this to my good friend 
from Oregon before he leaves the floor. I listened intently to his 
extremely well-crafted and reasoned arguments, and I congratulate him 
for his important contribution to this momentous, significant debate we 
are having in the Senate, trying to get ourselves back to the way we 
comfortably operated for 214 years. I thank my colleague for his 
  Because of the unprecedented obstruction of our Democratic 
colleagues, the Republican conference intends to restore the principle 
that, regardless of party, any President's judicial nominees, after 
full debate, deserve a simple up-or-down vote.
  I know that some of our colleagues wish that restoration of this 
principle were not required. But it is a measured step that my friends 
on the other side of the aisle have unfortunately made necessary. For 
the first time in 214 years, they have changed the Senate's ``advise 
and consent'' responsibilities to ``advise and obstruct.''
  Our Democratic friends did not bring us here by accident. For 4 
years, they have steered the Senate toward this unfortunate path. In 
April of 2001, Senate Democrats held a private weekend retreat in 
Farmington, PA, to hatch a plan of attack against the President's 
judicial nominees. According to the New York Times, one participant at 
the meeting said, quote, ``it was important for the Senate to change 
the ground rules, and there was no obligation to confirm someone just 
because they are scholarly or erudite.'' And, thus, we embarked on this 
uncharted course.
  Until the last Congress--the 108th Congress--it had been standard 
procedure not to filibuster judicial nominees. That changed on February 
11, 2003. On that day, Senator Hatch, chairman of the Judiciary 
Committee, sought consent to consider Miguel Estrada's nomination to 
the DC Circuit Court. My friend, Senator Dodd, refused. Senator Hatch 
offered to increase the amount of time for debate by 10 hours and was 
refused again. He offered 20 hours. He offered 40 hours. He offered 
even 50 hours of debate, an unprecedented amount of time. Senator Dodd 
said as follows:

       This is not about the amount of time.

  We have heard the repeated argument on the other side that this is 
about the right to speak. Senator Dodd said that this is not about the 
amount of time.
  Remember that, Mr. President. The next time you hear any one of our 
Democratic colleagues complain that when we restore the norms and 
traditions of the Senate, we will be limiting their right to speak or 
cutting off debate, they themselves say it is not about that. Such 
claims actually don't withstand scrutiny. I could not agree more with 
my friend from Connecticut when he said this current impasse is not 
about the amount of time available to debate.
  The Democratic leader, my friend, Senator Reid from Nevada, also 
agrees with me. When Senator Bennett requested an agreement to consider 
the nomination of Justice Priscilla Owen to the Fifth Circuit, Senator 
Bennett also bent over backward to give the minority whatever number of 
hours for debate it needed.
  Senator Reid responded:

       There is not a number in the universe that would be 

  ``There is not a number in the universe that would be sufficient.'' 
Clearly, it must not have been about getting enough time. Our 
Democratic friends went on to block several more reasonable requests to 
consider circuit court nominations.
  So it is clear the Democrats do not want more time to debate. The 
minority leader indicated there was not enough time in the universe for 
that. Rather, a minority of Senators are rejecting the opportunity to 
debate because they want to kill qualified judicial nominations with 
clear majority support.
  These nomination have gone for 2, 3, even 4 years--the current 
justice pending on the calendar has been up for 4 years--without a 
vote, while vacancies on the Federal bench pile up.
  Let's take, for example, Justice Priscilla Owen, who is the pending 
business of the Senate. She was nominated, as I just indicated, by the 
President 4 years ago to sit on the Fifth Circuit. Justice Owen has 
served with honor for 10 years on the Texas Supreme Court. She won 
reelection with a whopping 84 percent of the vote, far more than most 
of our colleagues who oppose her. She has the support of both Democrats 
and Republicans from Texas who know her best. She has endured 4 years 
of slanderous attacks from partisan groups with grace and poise.
  All of that meant nothing once she landed in the crosshairs of the 
Senate's obstructionist minority. We devoted 17 legislative days to 
discuss her qualifications--17 days--and we have held four cloture 
votes on Justice Owen's nomination in order to allow the entire Senate 
to pronounce its collective judgment on her qualifications. But a 
minority of Senators is determined to deny the Senate the exercise of 
its constitutional duty. All four cloture votes have failed.
  On May 1, 2003, cloture failed on the Owen nomination by a vote of 52 
to 44. One week later, it failed 52 to 45. On July 29 of that year, it 
failed 53 to 43, and on November 14 of that year, it failed 53 to 42. 
For every one of those votes, Justice Owen had a clear majority and, in 
fact, bipartisan support. But some continued to do the unthinkable. 
They continued to set the precedent that only 41 Senators should have 
the right to dictate to the President who he or she can and cannot 
appoint to our Federal courts.
  Justice Owen is not the only person they have obstructed. In the 
108th Congress, an obstructionist minority blocked the Senate from 
giving its advice and consent a record 20 times. Twenty votes on 
judicial nominees were held, and 20 times a minority of Senators 
refused to let the Senate discharge its constitutional duty to render 
advice and consent. Twenty times, Mr. President, in the 108th Congress 
they stopped a judicial nominee who clearly had majority bipartisan 
support from receiving the courtesy of an up-or-down vote. They 
filibustered 10 different circuit court nominees within 16 months. This 
is completely without precedent, and it is also not fair. Any 
President's judicial nominees should receive careful consideration,

[[Page S5469]]

but after that debate, they deserve a simple up-or-down vote.
  Despite the Democrats' power grab, we offered them several 
compromises that allowed for extended debate but still give nominees 
the courtesy of an up-or-down vote. They rejected every one. For 
instance, in May 2003, the majority leader, along with Senator Zell 
Miller of Georgia, a Democrat, proposed S. Res. 138, the Frist-Miller 
cloture reform proposal.
  The Frist-Miller proposal was narrowly tailored after a much broader 
Democratic proposal from 10 years ago that would have completely 
eliminated the filibuster in its entirety. The Democratic proposal 
would have eliminated the filibuster from legislation, to which it has 
been historically confined, as well as for judicial nominations, where 
it had not been used until the last Congress.
  Interestingly, all Republicans, every single one, voted against the 
Democratic proposal because it would have eliminated the legislative 
filibuster. In fact, it was the first vote that Majority Leader Frist 
cast in the Senate. The only Senators who voted for that proposal were 
our friends on the other side of the aisle, nine of whom are still 
serving in this body today, singing a different tune, I might add.
  I have heard several of my friends on the other side of the aisle 
warn ominously that if the Senate votes to reestablish the norms and 
traditions of this body with respect to judicial nominations, this 
could somehow lead to the infringement or even abolishment of a 
filibuster as applied to legislation. What nonsense. That will not 
happen because certainly nobody on this side is in favor of this, and I 
gather now nobody on the other side is in favor of it, even though nine 
of them were for it 10 years ago.
  When the Democrats proposed to do away with the legislative 
filibuster 10 years ago, nobody on this side of the aisle supported it, 
and I am confident nobody on this side of the aisle would support it 
today. What is remarkable about that is back in 1995 when our friends 
on the other side were proposing eliminating the filibuster, it was 
right after our party came to the majority. We would have been a big 
winner of that had it passed, but yet not a single one of us voted for 
it. What did we do? We exercised restraint.
  So back to the Frist-Miller proposal which, as I said, was a narrowly 
focused version of the Democratic--I stress ``Democratic''--bill to 
eliminate the filibuster altogether. The Frist-Miller proposal was much 
more moderate, much more measured. It would have applied only to 
nominations, not to legislation. It would have allowed Senators after 
12 hours of debate to file successive cloture motions with declining 
requirements to achieve cloture. The final cloture threshold would be a 
majority of Senators present and voting.
  The Frist-Miller proposal would have allowed the minority sufficient 
time for debate while reestablishing the Senate's 214-year history of 
allowing nominees with majority support to receive the courtesy of an 
up-or-down vote. It was a good proposal. Unfortunately, our Democratic 
colleagues rejected it.
  In April 2004, a little over a year ago, the majority again reached 
out to our Democratic colleagues. We suggested another approach to 
break this impasse on judicial nominations. This time the chairman of 
the Judiciary Committee, Senator Specter, took the lead by offering S. 
Res. 327, the Specter protocol. Under the Specter protocol, judicial 
nominees would receive a committee hearing, a committee vote, and a 
floor vote within a reasonable amount of time regardless of which party 
controlled the Senate and the White House.
  The chairman of the Judiciary Committee would agree to hold hearings 
for the nominees within 30 days of the submission of their names by the 
President. The chairman would set a date for the full committee to vote 
within 30 days of those hearings. And the majority leader would set an 
up-or-down vote on the Senate floor within 30 days after the nominee 
was reported out of committee. It was pretty simple.
  As I indicated, these timetables would apply whether Democrats or 
Republicans were in charge of the Senate, whether the same party 
controlled the White House and the Senate, or whether the two parties 
split the control.
  I bet to the vast majority of people listening, that sounds like an 
extremely fair, bipartisan solution. I agree with them. Again, 
unfortunately, our Democratic friends have not embraced it.
  At this point, most people would throw up their hands and give up. We 
do not have the luxury of doing that, however, because the American 
people elected all of us to act on these issues that confront the 
country. Restoring Senate tradition and thereby restoring the proper 
balance of power between the executive and legislative branches is one 
of our responsibilities, and we need to do it.
  We Republicans redoubled our efforts and patiently tried again. In 
the interim, though, we had an election. President Bush and several 
candidates for the Senate, many of whom serve here today, met thousands 
of mainstream ordinary Americans who were angry at the obstructive 
attempts to disfigure the filibuster. Thousands of Americans told 
President Bush and their Republican candidates for the Senate that they 
do not believe the President's nominees are out of the mainstream, and 
they do not like a minority of the Senate preventing the Senate from 
discharging its constitutional duty.
  Millions of them turned out to reelect President Bush, giving him 
more votes than any Presidential candidate in American history. And 
millions voted to increase the majority's number in this body from 51 
to 55.
  Given those results, many of us had hoped that the politics of 
obstruction would have been dumped in the dustbin of history. 
Regretfully, that did not happen.
  Recently, we Republicans tried again to reach an accommodation with 
our Democratic colleagues. Last month, the majority leader offered a 
comprehensive, thoughtful, and fair-minded solution. It is called the 
fairness rule. My Democratic colleagues had repeatedly complained that 
some of President Clinton's nominees were never reported out of the 
Judiciary Committee, and that is a valid point. They had a point. So to 
address the concern, the Frist fairness rule guarantees that every 
nominee would be reported out of Judiciary--presumably some of them 
maybe not with majority support--preventing any nominee from getting 
blocked in committee, which is the principal complaint the Democrats 
have about how they had been treated when our party controlled the 
Senate and their party the White House.
  The Frist fairness rule guarantees every nominee would be reported 
out of Judiciary, preventing any nominee from getting blocked in 
committee. The principal complaint we have heard repeated so often out 
here is that the Republicans were simply doing in committee under 
Clinton what the Democrats are doing on the floor under Bush. We will 
deal with that.

  In addition, my Democratic colleagues complain they need to have the 
right to debate judicial nominees protected.
  This complaint is incongruous with Senator Reid's comment that there 
was not enough debate time ``in the universe'' to allow a vote on 
Justice Priscilla Owen. It must not have been about time because he 
said there was not enough time in the universe.
  Nevertheless, the Frist fairness rule guarantees up to 100 hours of 
debate on every nominee, allowing every member to have his or her say. 
This is more time than has been devoted to most Supreme Court nominees.
  Finally, the Frist fairness rule guarantees up-or-down votes for 
every circuit court or Supreme Court nomination, regardless of which 
party controls the Senate or the White House. So the fairness rule 
could not have a more appropriate name. It guarantees a full and 
comprehensive debate. It guarantees every Senator a constitutional 
right to cast a fair up-or-down vote for every judicial nominee. It 
guarantees every President that their judicial nominees will get 
through committee and get a vote on the Senate floor and, of course, it 
would not apply to legislation at all.
  Once again, our Democratic colleagues quickly rejected this proposal.
  To recap, the majority in the Senate has had weeks of debate. We have 
tried multiple and generous time agreements. We have offered the Frist-
Miller proposal. We have suggested the Specter protocols. We have 
offered the Frist

[[Page S5470]]

fairness rule. Unfortunately, our Democratic colleagues have rejected 
all of these efforts at accommodation.
  We have reached the point in this debate where not a lot of new 
things are being said, but not everybody has yet said it. But I want to 
make a point that I believe has not been made by anyone today. For 70 
percent of the 20th century, the same party controlled both the White 
House and the Senate. For 70 percent of the 20th century, the same 
people running the White House were running the Senate. Most of the 
time, the people in the minority in the Senate were people of my party. 
Yet Republicans did not filibuster, for example, the judicial nominees 
of Franklin Delano Roosevelt, even though he appointed eight Justices 
to the Supreme Court and elevated another to Chief Justice.
  More recently, the Republican minority did not filibuster the 
judicial nominees of Presidents Carter and Clinton because we were in 
the minority for 2 years under President Clinton and all 4 years under 
President Carter, even though several of these nominees were extremely 
controversial and did not enjoy supermajority support.
  To be fair, when Senator Byrd was the minority leader, he did not 
lead his Democratic caucus in the Senate to filibuster President 
Reagan's judicial nominees either, and Senator Byrd should be commended 
for that. That was an extraordinary act of statesmanship. He could have 
done at the time he was in the minority when President Reagan was in 
the White House what has been done in the previous Congress.
  When Senator Byrd was minority leader, he did not lead his Democratic 
Caucus in the Senate to filibuster President Reagan's judicial 
nominees. Not until 2 years ago has a Senate minority ever decided to 
filibuster a President's judicial nominations on a repeated partisan 
and systematic basis when they clearly enjoyed majority support.
  To correct this abuse, the majority in the Senate is prepared to 
restore the Senate's traditions and precedents to ensure that 
regardless of party, any President's judicial nominees, after full and 
fair debate, receive a simple up-or-down vote on the Senate floor. It 
is time to move away from advise and obstruct and get back to advise 
and consent.
  The stakes are high. The Constitution of the United States is at 
stake. Article 2, section 2 clearly provides the President and the 
President alone nominates judges.
  The Senate is merely empowered to give advice and consent, but our 
Democratic colleagues want to change the rules. They want to 
reinterpret the Constitution to require a supermajority for 
  In effect, they would take away the power to nominate from the 
President and grant it to 41 Members of the Senate. In other words, 
there would be the distinct possibility and in fact great likelihood, 
if this continues, that 41 Members of the Senate will dictate to the 
President of the United States who may be a member of the Supreme Court 
and other courts.
  We have made every effort to reach out and compromise, but our 
colleagues at least so far have refused. The only choice that remains 
is to hold a vote to reaffirm the traditions and precedents that have 
served this body so well for the last 214 years. Let us vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. LOTT. Mr. President, I thank Senator McConnell for his comments 
and for his leadership in this area. In many respects, I would like to 
pick up where he left off in the discussion of how did we reach this 
point. How did the Senate come to where we are going to have to have 
hours, days, weeks of debate on highly qualified men, women, and 
minorities for the Federal judiciary?
  Most of my colleagues in the Senate know over the years I have been a 
believer that we should get things done for the American people; that 
we should have cooperation; that we should vote on these judges up or 
down and move on; that we need to be working as we did earlier this 
week to report a highway bill, to get energy legislation, to deal with 
the very critical and difficult issue of immigration reform, pass 
appropriations bills, take up other critical issues for the future in 
our country, the creation of jobs, to promote the continued development 
in critical high-tech areas such as telecommunications. We have a lot 
of work to do and yet here we are, stalled out, in my opinion, 
  I believe we should reach across the aisle and try to find 
accommodation. Whether one likes it, that is how the Senate was set up, 
that is how we work, quite often by consensus. Over the years, when I 
served in leadership positions, I was quite often criticized by my own 
colleagues of being too willing to work with the other side to try to 
find a way to get a result. Then Senator and Minority Leader Tom 
Daschle and I worked together a lot. At the same time I was being 
criticized by some of my colleagues, he was being criticized by his 
colleagues. It is called leadership. It is called dealing with the 
rules one has and finding a way to work together and move forward.
  I have been working for 4 years to figure out what is going on and 
find a solution that is acceptable to both sides of the aisle.
  I worked with Senator Frist and Senator Zell Miller to get a bill out 
of the Rules Committee some 2 years ago that would set up a process 
that would get us to a final vote on these nominees. The first vote 
would be the required 60 and then the second vote 57 and so on down 
until eventually after about a month we would get a direct vote that I 
think would have been fair. But, no, the Democrats would not accept 
  So then this year I came back and I started to see if maybe I could 
work across the aisle with Senators such as Senator Nelson, Senator 
Pryor, and others to see if we could address some of the legitimate 
  This problem did not start 2 years ago or 4 years ago. This has been 
coming for a long time. I think it began with the nomination of Judge 
Bork. I think Republicans have retaliated for what they felt was a 
wrong and then the Democrats retaliated, but always slipping further 
down this slope of unfairness to these good men and women.
  So Senator Nelson and I worked together, and we did come up with a 
proposal that would guarantee all nominees now and in the future would 
get reported out of the Judiciary Committee after a specified period of 
time. In other words, stop the practice, if in fact there was one 
during the Clinton years, of killing nominations in the Judiciary 
Committee unless there is clearly justification for it, objection from 
the in-State Senators, or other reasons, but do not get into the 
technicalities. Just say we were going to guarantee they would get out 
of committee, there would be time for full debate up to a week before 
we could get an up-or-down vote.
  Senator Frist actually expanded that and said how about a full 100 
hours of debate; every Senator would have an opportunity to talk an 
hour about any nominee. By the way, I can tell my colleagues, for the 
majority leader to make a sacrifice of 100 hours of this body's time is 
a huge sacrifice. It could not be done very much, maybe two or three 
times a year at the most. So the seven nominees now being held hostage 
whom we are going to talk about in the next few days, some of them 
clearly would not make it under that procedure, but it would have 
gotten to a final vote.

  Again, that was rejected by the Democrats because they said, oh, no, 
we cannot agree to anything that would appear to or in fact give up our 
right to filibuster these judges. That did not work.
  Then, of course, there was the last effort, one that is now still 
underway, one I am not involved in any longer because I kept feeling we 
were not going to get an agreement that did not force us to throw over 
and not even vote or agree to vote down one of these two women, 
outstanding nominees, for the Federal appellate courts. I will talk 
more about them individually in a moment.
  So again back to the question of how we got here, the debate we find 
ourselves currently engaged in is a culmination of 4 years of 
obstructionism by a minority of Senators who refuse to allow the 
majority of the Senate to fulfill their constitutional 
  I know we have a lot of people who come to the Senate floor and talk

[[Page S5471]]

about the Constitution, pontificate about the forefathers, and that the 
language is this. I have read the Constitution, I have read the 
Federalist Papers, I have looked at the history, and clearly these 
judges should be getting an up-or-down vote.
  The Constitution clearly says when they expect a supermajority, and 
if they do not, then the presumption is a majority would win.
  I believe in protecting minority rights. I have been in the minority 
more in my legislative career of 33 years than I have been in the 
majority. But there is another little thing: It is called elections and 
a majority. At some point, we quit talking and we give these people a 
fair up-or-down vote.
  Some people will come to the floor and say, this is the tradition, we 
must not mess with it; this is something that has been in existence 
from the very beginning of the history of our country. That is not so. 
As a matter of fact, filibusters did not get started until World War I.
  Oh, people will be surprised at that. You mean we have not had it 
since the great days of Clay, Webster, and Calhoun? No. As a matter of 
fact, after a minority of Senators blocked efforts to have an up-or-
down vote on a proposal to arm merchant ships during World War I, the 
Senate adopted its first cloture rule. The cloture rule was later 
changed on five separate occasions, most recently in 1986.
  So these great and hallowed traditions in this institution, if one 
checks back on them, do not go back very far. This is a living body. 
Like the Constitution, it is a living, breathing body. It changes. It 
evolves. We make changes in the rules. That is why when people say, woe 
is me, doom and gloom, the Senate cannot get through this, whatever we 
do, it will be cataclysmic--forget it. We have a job to do here. Let us 
face it like men and women and let us deal with the issue. Let us move 
on. Let us deal with the substance. Let us deal with the things that 
matter to people, such as the price of gasoline and the immigration 
problem, and handle it in a fair way. But this is not something that 
has been written into the Constitution. No, it is new.
  It began, I am sorry to say, with a personal friend of mine, a great 
man, a great judge named Charles Pickering who had been approved 
unanimously by the Senate in the past to be a Federal district judge, 
but when he was nominated for the Fifth Circuit Court of Appeals, we 
could not get it out of the committee. At that time, the majority, the 
Democrats, killed his nomination in committee. I was floored. I could 
not believe it; one of the finest men, one of the finest Christians, 
one of the finest judges, one of the best unifiers we have ever had in 
the history of our country probably since LQC Lamar in the 1880s.
  He got defeated in committee. I thought at the time it was a shot at 
me, part of the politics we get around here, and that it would change 
with time; it was just a gratuitous backhand at me. I can say for sure 
Senator Daschle, my friend, was not comfortable with what happened 
there. The majority came back to the Republican side and Judge 
Pickering came to the floor and he was filibustered. Then it was Miguel 
Estrada. Then it was Priscilla Owen. Then a pattern developed. That is 
one reason some people say, look, if there is this option that it only 
takes 51 votes, why was it not done last year or 2 years ago or 4 years 
ago? Frankly, because I thought it was an aberration. I thought it was 
  I could not believe this institution would besmirch, denigrate, and 
harass these nominees, turning the Senate not into an august, hallowed 
body of great deliberation but into a torture chamber, and yet here we 
are. I have tried to find a way to get out of this. I have tried to 
accept some of the blame I deserve, but that has already been done.
  We have to find a solution now and we have to do it soon. Can a 
compromise be worked out? Why, of course. They always can, by sundown. 
That would probably satisfy nobody totally, but everybody a little bit. 
If it does not happen, we have to get this over with. We have to vote.
  So what I thought was going to be an isolated incident now has become 
extreme. It has become systematic. It has become highly partisan. We 
have to deal with it. We probably should have already dealt with it.
  As majority leader, I worked closely with Senator Daschle to ensure 
each nominee who reached the Senate floor received an up-or-down vote. 
Some people said, all the judges did not get out of committee. The 
leaders do not dictate to the committees. We do not dictate to one 
Senator, let alone a committee of Senators. But when it came to the 
floor, through thick or thin and however difficult it was, we got it 
done, we got them confirmed.

  I will give an example. I filed cloture personally on President 
Clinton's nominee to the Federal district court in Utah, Brian Theodore 
Stewart. A cloture vote was in fact held to cut off an unnecessary and 
unfair filibuster on September 21, 1999. I voted for cloture to cut off 
the filibuster for this nominee because I believed, as I believe now, 
that it was important to hold an up-or-down vote on a nomination after 
it reached the Senate floor.
  Additionally, I would like to mention two other controversial 
nominees to the Ninth Circuit Court of Appeals nominated by President 
Clinton. Marsha Berzon and Richard Paez both had very serious problems 
that were raised during their nominations and that concerned Senators. 
Their nominations were certainly highly contentious, and the process 
was very slow. However, they did eventually come out of the Judiciary 
Committee and at the appropriate time I rose to file for cloture on 
both of these nominees in an effort to move the process forward toward 
a vote, against the wishes of a number of Members of my own caucus. I 
stood right there and said we are not going to filibuster Federal 
judicial nominees; we are not going to do it. If they come out of the 
committee, they are going to get an up-or-down vote. Now, I may vote 
against them but not on my watch are Republicans going to filibuster 
these nominees.
  On March 8, 2000, the Senate voted 86 to 13 to 1 to invoke cloture to 
cut off the filibuster on the nomination of Judge Berzon. Her 
nomination was confirmed the following day by a vote of 64 to 34 to 2.
  Also on March 8, 2000, the Senate voted 85 to 14 to 1 to invoke 
cloture on the nomination of Richard Paez. The next day, March 9, 2000, 
a motion to postpone indefinitely a vote on Paez was defeated 67 to 31 
to 2. By the way, in the interest of full disclosure, I voted to delay 
it. I do not remember why, and I am embarrassed. I should not have. An 
indefinite postponement is the same as a filibuster. That was wrong. We 
should not have done it. He was later approved that very day 59 to 39 
to 2.
  These two now serve in the Federal judiciary. They had lots of 
problems, in my mind, which I will not enumerate. There is no use 
rehashing that. But this is proof of the evidence when Republicans say 
we did not do it when we could have during the Clinton years, we did 
not allow filibusters. The number of President Clinton's judges who 
were blocked by filibusters, zero. Not under my watch or others'.

  I think it is time we bring this to conclusion. I think if we could 
ever get a time out, if we could ever find a way to stop the 
filibusters, deal with the magnificent seven that are still pending, 
this would fade away. That is the way it happens in the Senate.
  Oh, the clash is mighty and the roar is deafening. ``There is no way 
out of this valley of death.'' That is when it always seems to happen, 
that we find a way to stop the craziness and move forward in a 
responsible way.
  I have to talk a little bit about the nominees. I have met with some 
of them. I direct your attention to this picture. Why does he have a 
picture? I want to make a point. These are not numbers. These are not 
seven things. These seven nominees who have been renominated by the 
President are men and women and minorities who have had their 
reputations and their lives dragged through the mud--this one, 
Priscilla Owen, for up to 4 years.
  Maybe you could analyze the seven and say, that one has a little 
problem or that one has a little problem. I don't say they are perfect. 
None of us are. But I am telling you, you can't get much closer to 
perfect than this nominee, Priscilla Owen. That is why I could never 
agree to any deal that did anything but allow this lady to have an up-
or-down vote on her nomination.

[[Page S5472]]

She is from Texas. Maybe that is part of the problem, I don't know. She 
serves on the Texas Supreme Court. It seems like a good training ground 
before you move to the Federal judiciary. She graduated cum laude from 
Baylor University and cum laude from Baylor University Law School. She 
was a member of the Baylor Law Review. She was honored as the Baylor 
Young Lawyer of the Year, Baylor University Outstanding Young Alumna. 
After graduating from law school, she scored the highest score in the 
State when she took the Texas bar exam in 1977.
  She practiced law with one of the most prestigious law firms in the 
State of Texas, mostly commercial litigation, for 17 years. She has 
been on the Supreme Court of Texas for 10\1/2\ years, and the last time 
she ran she was endorsed by every major newspaper in the State and she 
received 84 percent of the vote.
  She has ruled hundreds of times, not always on the business side, 
sometimes on the consumer side. She has had to interpret law that has 
been difficult, but she has done it. She has done it fairly. She has 
done it most often with the majority of the court.
  By the way, even that hallowed American Bar Association--that I used 
to be a member of, but I dropped my membership for a number of 
reasons--gave her its highest rating.
  When you look at this lady's record, her brilliance, her family--
every way she has conducted herself, there is no justification for her 
not being confirmed or at least getting a vote.
  I am not going to go through the charges that are levied against her, 
partially because some of them are so bizarre and so ridiculous, but 
also because I have seen around here that if you repeat a misstatement 
often enough, it becomes fact. Here is an example. Justice Owen has 
been accused by some of the people here because of the fact that 
Justice Alberto Gonzales--now the Attorney General, then a supreme 
court justice in Texas--accused her of being engaged in an 
``unconscionable act of judicial activism'' in one particular parental 
notice case where abortion was involved and she was interpreting a 
State law. That happened even though Justice Gonzales said that was not 
the case, that his words were twisted and misconstrued. When he said 
that, for him, in his concurring opinion, it would be an 
``unconscionable act of judicial activism'' for any judge to bend the 
statute to advance his or her own personal views, even though ``the 
ramifications of such law and the results of the court's decision may 
be personally troubling,'' he was talking about himself.
  This is not a gratuitous shot at his colleague sitting on the bench, 
and he has tried to clarify it. It makes no difference. It continues to 
be repeated as fact among those who oppose this nomination.
  Look at this face. This lady has been through 4 years of hell. Why? I 
just don't get it.
  Somebody said she has a pro-business voting record. Is that something 
sinister? She has ruled, for instance, that patients who are injured 
should be able to pursue doctors. She has ruled on occasion for 
consumers. But, my goodness, is it an indictment if you are pro-
business? I am the son of a shipyard pipefitter, union member, but I am 
pro-business because I figured out, like my daddy knew, if business 
didn't make a profit, if they went out of business, he was out of a 
  So, there, she deserves a vote up or down. She will make a great 
Federal judge.
  This one is even more hard to explain to me. Janice Rogers Brown. I 
am not going to give her American dream story, but she has lived it: 
Born in Alabama, family moved to Sacramento when she was still in 
elementary school. She grew up in California, got an education, and 
worked hard. She graduated from California State University at 
Sacramento, with a bachelor in economics and received a law degree from 
UCLA Law School. She has served as Legal Affairs Secretary to Pete 
Wilson, the Governor of the State of California, Deputy Attorney 
General in the office of the California Attorney General, and she 
served on an intermediate California appellate court. She has been on 
the bench long enough where she has been appointed and sought 
reelection and she got 76 percent of the vote in California on 
  That is not exactly a center or a center right constituency. They 
must have thought she was doing a good job; the first African-American 
woman in history on the Supreme Court of California. A great record.
  The American dream has been lived for this lady. Two days ago, when 
she came by my office, I apologized to her on behalf of the American 
people for the way the Senate has treated her. I am ashamed of what we 
did. What is the criticism?

  One of them, she is harsh on criminal defendants. Excuse me? The 
truth is, she is a conservative African-American woman. This is bad. 
``How can we allow that to happen? That can't be.'' She has had some 
things to say in her remarks off the bench, that some of the Federal 
programs have had a counter-effect, not a positive effect. But she has 
been described by others as being brilliant and fair. Even a columnist 
who was being critical of her recently admitted that her opinions are 
consistently the most concise, engaging, well organized, and well 
  She wrote the majority of the decisions in 2002 for the California 
Supreme Court. She is writing with the majority. Again, this face is a 
human being. This is not a number. This lady has been tangled up in 
partisan politics for 2 years. This is wrong.
  That is why when people say to me, Oh, the institution will be 
damaged, my colleagues, I think we maybe protest too much, and we puff 
ourselves up a little bit too much. By the way, there are some things 
more important than the rules of an institution. I still think right 
and wrong should apply, just as it should in every other phase of our 
  What has happened to this lady, and this one, is wrong. I cannot be a 
part of a process that doesn't give them the vote that they deserve, up 
or down--now. If they are not confirmed, so be it. I have voted on the 
winning side and on the losing side. I have voted for judges and 
against judges. Most often they have been confirmed; occasionally not, 
and I have been berated by Democrats sometimes when I voted against 
some of the nominees. But the process used to work. It is broken now. 
Let's fix it. Let's fix it now. Let's do our job. Let's vote.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Coburn). The Senator from Missouri.
  Mr. BOND. Mr. President, I think the facts are clear. You have heard 
this many times. Almost everything has been said, but not everybody has 
said it. I want to go over some of the facts I think are very 
  For 214 years judicial nominations have come to the Senate floor and 
have been considered without filibuster. It is a courtesy extended by 
my fellow Senators to the President. By resorting to filibustering 
judicial nominees who have the support of a majority of Senators, which 
began in 2003 by colleagues on the other side of the aisle, they are 
throwing overboard 214 years of Senate courtesy and tradition.
  The Constitution of the United States does not contain a word about 
filibusters. The Federalist Papers do not contain the word 
``filibuster.'' Rather, the Constitution lays out the standards for 
confirming judges. It does not require a 60-vote majority for 
confirmation. It requires a majority vote to confirm members of the 
Federal judiciary.
  The Democrats in this Chamber have taken it upon themselves to 
rewrite the rules for confirming justices. They now demand 60 votes for 
confirmation to a circuit court or potentially a Supreme Court 
  For the first time, judicial nominations with clear majority support 
are denied an up-or-down 51-vote, Senate majority vote on the Senate 
floor through the unprecedented use of the filibuster.
  There is no constitutional authority for their demands, and it is an 
abandonment of the tradition of this Chamber. We are perfectly within 
our rights and history is on our side as we prepare to take steps to 
ensure the confirmation of judges with majority support.

  In an attempt to cloud these rather clear facts, the Democrats have 
put forward a parade of dubious arguments to support their filibusters, 
obfuscation to justify political obstructionism.
  One of the facts they overlook is their obligation to check the 
President--and our very system of checks and balances gives them 
authority and

[[Page S5473]]

demands action. But the Senate has the ability to check the President, 
not a minority of the Senate willing to pervert the rules of this body. 
The majority, therefore the Senate as a body, and representing a 
separate branch of Government, has spoken on these nominations. These 
nominees enjoy the support of the majority body's Members. The 
President has made his nominations and made his case for the 
nominations. Supporters and opponents of the nominees have made their 
case before the Senate on these nominations. From the votes we have 
taken we have seen that a majority of the Senate agrees with the 
President and supports his nominations. Under the system to check the 
President, as laid out clearly in the Constitution, the President has 
carried the issue and won the support of the body that has the 
authority to register its disapproval.
  It has not disapproved. The Constitution says nothing on the subject 
of a filibuster, and it says nothing of the power of a minority to 
defeat the President's judicial nominations. It is the product of a 
rule of the Senate passed many years after the ratification of the 
Constitution. This rule does not derive from the authority of the 
Constitution. Furthermore, the rule is being used in a manner never 
used before. It is a perversion of the intent of the Constitution and, 
if its use in this manner is not abandoned, then we must take steps to 
wipe it from the books.
  Let me go back to statements made about this process. Democrats are 
trying to change the constitutional standard for confirmation from a 
simple majority to a 60-vote standard. That is why we see the claim of 
the distinguished senior Senator from West Virginia that the 
nominations were rejected because they did not get 60 votes for cloture 
in the 108th Congress. Senators from Nevada, New York, Wisconsin, and 
Massachusetts have said they were rejected. A 60-vote standard is 
contrary to the Constitution. The Constitution spells out clearly where 
a supermajority is required: For veto overrides, constitutional 
amendments, treaty ratification, expelling a Member, convictions for 
impeachment. Judicial confirmation is not one of them.
  It is also a double standard based on past treatment of a Democratic 
President's nominees. For example, Clinton nominees Richard Paez and 
Susan Molloway and William Fletcher were all confirmed with fewer than 
60 votes, as were Carter nominees Abner Mikva and L.T. Senter.
  It is said that justice delayed is justice denied. These filibusters 
of judicial nominations have slowed the consideration of cases in the 
Federal appeals court, especially in the Sixth Circuit, where Democrats 
have blocked four qualified nominees. As my colleague from Mississippi 
has pointed out, these good people who have devoted their life to law 
and the judiciary have been subject to interminable delays, personal 
vilification, without giving them the right to an up-or-down vote which 
this body has already demonstrated they would give them.
  Look at what they have said. Back in 1975 in the Congressional Record 
of February 20:

       The filibuster has been the shame of the Senate and the 
     last resort of special interest groups. Too often, it has 
     enabled a small minority of the Senate to prevent a strong 
     majority from working its will and serving the public 

  So spoke the senior Senator from Massachusetts.
  Then, in 1998, June 18, a statement from the Congressional Record:

       I have stated over and over again on this floor that I 
     would . . . object and fight against any filibuster on a 
     judge, whether it is somebody I opposed or supported.

  That was the senior Senator from Vermont.
  He also said:

       I do not want to get [to] having to invoke cloture on 
     judicial nominations. I think it is a bad precedent.

  Congressional Record, September 16, 1999.
  Another quote:

       If we want to vote against somebody, vote against them. I 
     respect that. State your reasons. I respect that. But don't 
     hold up a qualified judicial nominee . . . I have stated over 
     and over again on this floor that I would . . . object and 
     fight against any filibuster on a judge, whether it is 
     somebody I opposed or supported; that I felt the Senate 
     should do its duty.''

  Same Senator from Vermont, June 18, 1998.
  Here is another one from the Congressional Record March 19, 1997:

       But I also respectfully suggest that everyone who is 
     nominated ought to have a shot, to have a hearing and have a 
     shot to be heard on the floor and have a vote on the floor . 
     . . It is totally appropriate for Republicans to reject every 
     single nominee if they want to. That is within their right. 
     But it is not, I will respectfully request, Madam President, 
     appropriate not to have hearings on them, not to bring them 
     to the floor and not to allow a vote . . .

  That was the distinguished senior Senator from Delaware, March 19, 
  Here is another good quote:

       The Chief Justice of the United States Supreme Court said: 
     ``The Senate is surely under no obligation to confirm any 
     particular nominee, but after the necessary time for inquiry 
     it should vote him up or vote him down.'' Which is exactly 
     what I would like.

  The distinguished senior Senator from Massachusetts, Congressional 
Record, March 7, 2000.
  Mr. President, the minority had the opportunity to win their argument 
long before it reached the Senate. They had a chance to win at the 
ballot box. They argued that the American people could send Members of 
the Senate who agreed with their legislative agenda and their view of 
the role of the judiciary. The American people did not agree with the 
minority and sent an increased majority of Members to the Senate who 
agree with the President on the role of the judiciary, the type of 
individuals who should occupy these positions, and the need to give 
them an up-or-down vote.
  On two occasions, my colleagues on the other side of the aisle had 
the chance to win the argument on judicial nominations and had a chance 
to win this argument at the ballot box. They did not. They had a chance 
to convince a majority of the Members of the Senate that the nominees 
are unsuitable to sit on the Federal bench. They were unable to do so. 
So they have resorted to turning a Senate rule on its head and 
insisting on an application never used before to win a debate they 
could not win by a simple 51-vote majority.
  Now our Democratic colleagues come to the floor and say the view of 
the majority of the Senate and the view of a President, who won the 
most votes ever by any President, is out of the mainstream. A minority 
is now demanding their view--which is the minority opinion in this 
body, and apparently from the opinion polls and our contacts, the 
minority opinion in the country--should carry the day as to what is and 
what is not in the mainstream. Once again, this line of thought would 
seem to turn logic on its head.
  To cloud further the unprecedented nature of their attack on the 
President's nominations, my Democratic colleagues are blowing their own 
horn about confirming 208 of the President's nominees versus only 
defeating 10; a stellar record of cooperation they claim, evidenced by 
confirming 95 percent of the President's nominees. By confirming the 
President's district court nominees they are attempting to hide a 
blatant attack on the President's nominees for higher court, appellate 
courts, courts of appeal.
  The circuit courts of appeals are the second most important courts in 
the land behind only the Supreme Court of the United States. When it 
comes to confirmation of the President's nominees, their record is not 
one of cooperation but one of unprecedented assault. Nearly one in 
three of President Bush's nominees for the Federal court of appeals has 
been targeted for defeat. This is not by accident. We know two days 
after the Senator from Vermont switched parties and changed the balance 
of the Senate in June of 2001, a number of extreme left-leaning groups 
met to plot the defeat of circuit court nominees. Their analysis showed 
a Republican President would surely nominate judges with a philosophy 
consistent with the President, strict construction of the Constitution, 
rather than the extreme leftwing judicial legislation views of their 
own. The left-leaning groups saw their balance on the court decreasing, 
and their plan was to defeat circuit court nominees. Their plan was not 
to argue for judges in the mainstream or to defeat district court 
nominees. Their objective was to defeat, by any means, circuit court 
nominees of President Bush.

  Yesterday we saw this outline in the Washington Times. These groups, 

[[Page S5474]]

turn, met with Senate Democrats to target certain nominees. 
Surprisingly, the nominees the groups decided to target seemed to be 
neatly in line with those ultimately targeted by Senate Democrats. So, 
actually, the minority has been outsourcing their decision as to who is 
and who is not in the mainstream to outside liberal groups such as 
People for the American Way, which a glance at any of their material 
reveals they are not exactly in the mainstream.
  Here are a couple of excerpts from the Washington Times article 

       In a November 7, 2001, internal memo to Sen. Richard J. 
     Durbin, who is now the minority whip, an aide described a 
     meeting that the Illinois Democrats had missed between groups 
     opposed to Mr. Bush's nominations and Sen. Edward M. Kennedy, 
     Massachusetts Democrat and member of the Judiciary Committee.

  The memo goes on to State:

       Based on input from these groups, I would place the 
     appellate nominees in the categories below . . . listing 19 
     nominees as ``good,'' ``bad'' or ``ugly.''
       Four of the 10 nominees who Democrats have since 
     filibustered were deemed either ``bad'' or ``ugly.'' None of 
     those deemed ``good'' by the outside groups was filibustered.
       Among those listed as ``ugly,'' was Texas Supreme Court 
     Justice Priscilla Owen, whose nomination will be brought to 
     the floor today by Majority Leader Bill Frist, Tennessee 
       In a June 4, 2002, memo to Mr. Kennedy, staffers advised 
     him that Justice Owen would be ``our next big fight.''
       ``We agree that she is the right choice--she has had a bad 
     record on labor, personal injury and choice issues, and a 
     broad range of national and local Texas groups are ready to 
     oppose her,'' the aides wrote.

  I ask unanimous consent this be printed in the Record after my 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1)
  Mr. BOND. As I believe has been stated many times before, Justice 
Owen has won overwhelming support, more than three-quarters support of 
the majority of Texas and the endorsement of major leading newspapers, 
the Bar Association, but the left-leaning groups did not like her.
  Our colleagues in the minority want congratulations for the fact that 
nearly all of the President's trial court judges have been confirmed. I 
respect greatly the men and women on the Federal district court. In the 
eyes of the Senate Democrats, however, clearly, all judgeships are not 
created equal.
  We see the contrast between the way the Democrats are conducting 
business and the way business has been conducted by tradition. Nearly 
one of three of the President's nominees to the appellate court, the 
circuit court are being filibustered. Prior to the Democrats embarking 
on this path, 2,372 nominees were confirmed without a filibuster; 377 
of President Clinton's nominees were confirmed without a filibuster. 
Judges were confirmed for 214 years without there being a filibuster. 
So the minority has turned over the determination as to who is and who 
is out of the mainstream to a number of out-of-the-mainstream groups, 
and they let these groups lead us down the path of destroying Senate 
tradition of 200 years. Not a record, in my view, that warrants a hardy 
pat on the back.

  In a thoughtful opinion piece in today's Washington Times, majority 
leader Bob Dole recalls there were a few nominations made by President 
Clinton that were clearly objectionable to most Republicans. He said:

       I recall two judicial nominations of President Clinton's 
     particularly troubling to me and my fellow Republicans 
     members when I was the Republican Leader in the Senate. 
     Despite our objections, both received an up-or-down vote on 
     the Senate floor. In fact, I voted to end debate on one of 
     these nominees while voting against his confirmation. 
     Republicans chose not to filibuster because it was considered 
     inappropriate for nominations to the federal bench.

  Senator Dole goes on to say:

       By creating a new 60-vote threshold for confirming judicial 
     nominees, today's Senate Democrats have abandoned more than 
     200 years of Senate tradition.
       For the first time, judicial nominees with clear majority 
     support are denied an up-or-down vote on the Senate floor 
     through an unprecedented use of the filibuster. This is not a 
     misrepresentation of history; it's a fact.

  I ask unanimous consent that be printed in the Record after my 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2)
  Mr. BOND. We have heard a lot of statements and posturing from the 
other side about the President trying to pack the courts and how this 
is a nuclear option.
  Let me tell you what the nuclear option is. The Democrats say if we 
go back to the tradition of confirming judges by a 51-vote up-or-down 
majority in the Senate, they are going to blow up the Senate. They are 
going to bring everything to a halt. They are going to destroy this 
body because we insist on what Democrats, prior to 2001, agreed with 
us; that is, judicial nominations brought to the floor deserve to be 
confirmed by a 51-vote up-or-down majority.
  Already, we have seen the Democrats' stall tactics. ``Stall ball'' is 
being played. For people not in this body, you may not know that any 
Senator has a right to object to committee hearings being conducted 2 
hours after the Senate goes in session. Even though this is regular 
order, this is standard procedure, we have had the Democratic side 
object to holding hearings.
  Yesterday, we were scheduled to have a very important meeting in our 
Intelligence Committee to go over current threats, the intelligence of 
the dangers that our troops in the field face and the dangers we in the 
homeland face. That meeting was canceled because the Democrats 
  The Energy Committee is trying to write a very important bill dealing 
with energy. We have not had an energy policy in a decade and a half. 
Gas prices have gone through the roof. We are seeing shortages. We are 
paying at the pump. We are paying in our home heating bills, paying 
with jobs going overseas because of the unnatural, artificial 
restrictions on the development of sources of energy in the United 
States--natural gas, oil, and even renewable fuel--while demand 
artificially is being increased for natural gas by the requirement that 
rules require it be used in electric utilities. And yet by objecting to 
committee hearings, the Democrats are limiting the Energy Committee to 
2 hours a day and a markup.
  It is not the President who is distorting rules to forward his 
nominations. It is not the President who has abandoned tradition and 
courtesy in forwarding his nomination. It is not the President who is 
attempting to rewrite the Constitutional standard for confirming 
judges. The other side of the aisle thinks if they can muster 41 votes, 
they ought to stop anybody that their leftwing, liberal interest groups 
target for blocking from confirmation. The President is exercising his 
constitutional role to appoint members of the Federal judiciary, and he 
is doing so following his decisive victory last fall after winning more 
votes than any other president in history, promising to appoint good, 
well-qualified, highly qualified, highly respected judges and attorneys 
to the courts of appeal. Who is and who is not in the mainstream of 
American thought?
  I believe it is clear that the President and the majority in the 
Senate have a right to give these well-qualified nominees an up-or-down 
51-vote majority vote on the floor of the Senate.
  Mr. President, I thank the Chair and yield the floor.

                               Exhibit 1

               [From the Washington Times, May 19, 2005]

             Memos Reveal Strategy Behind Judge Filibusters

                           (By Charles Hurt)

       The ``nuclear'' showdown that is expected to begin 
     unfolding in the Senate today has its origins in closed-door 
     discussions more than three years ago between key Senate 
     Democrats and outside interest groups as they huddled to plot 
     strategies for blocking President Bush's judicial nominees.
       In a Nov. 7, 2001, internal memo to Sen. Richard J. Durbin, 
     who is now the minority whip, an aide described a meeting 
     that the Illinois Democrat had missed between groups opposed 
     to Mr. Bush's nominees and Sen. Edward M. Kennedy, 
     Massachusetts Democrat and member of the Judiciary Committee.
       ``Based on input from the groups, I would place the 
     appellate nominees in the categories below,'' the staffer 
     wrote, listing 19 nominees as ``good,'' ``bad'' or ``ugly.''
       Four of the 10 nominees who Democrats have since 
     filibustered were deemed either ``bad'' or ``ugly.'' None of 
     those deemed ``good'' by the outside groups was filibustered.

[[Page S5475]]

       Among those listed as ``ugly'' was Texas Supreme Court 
     Justice Priscilla Owen, whose nomination will be brought to 
     the floor today by Majority Leader Bill Frist, Tennessee 
       The internal Democratic memos, downloaded from Democratic 
     computer servers in the Judiciary Committee by Republican 
     staffers, offer a unique look into the early stages of the 
     filibuster campaign, when Democrats were clearly doubtful 
     that they could succeed in blocking any of the nominees.
       In the 14 memos obtained in November 2003 by the Wall 
     Street Journal and The Washington Times, Democratic staffers 
     outlined the concerns held by outside groups about Justice 
     Owen's ``hostile'' position toward abortion and her ``pro-
     business'' attitude.
       In a June 4, 2002, memo to Mr. Kennedy, staffers advised 
     him that Justice Owen would be ``our next big fight.''
       ``We agree that she is the right choice--she has a bad 
     record on labor, personal injury and choice issues, and a 
     broad range of national and local Texas groups are ready to 
     oppose her,'' the aides wrote.
       Another nominee discussed often in the memos is Miguel 
     Estrada, a Washington lawyer who became the first 
     filibustered nominee and who withdrew his nomination to the 
     U.S. Court of Appeals for the D.C. Circuit after waiting two 
     years for a final vote.
       In the 2001 memo to Mr. Durbin, the staffer explained the 
     concerns that the outside groups had about Mr. Estrada.
       ``They also identified Miguel Estrada (D.C. Circuit) as 
     especially dangerous because he had a minimal paper trail, he 
     is Latino, and the White House seems to be grooming him for a 
     Supreme Court appointment,'' the aide wrote.
       The memos also reveal the close relationship between 
     Democrats and the outside groups.
       In a June 21, 2002, memo to Democrats Mr. Kennedy, Mr. 
     Durbin, Sen. Charles E. Schumer of New York and Sen. Maria 
     Cantwell of Washington, a staffer urged delaying a hearing 
     for Mr. Estrada to ``give the groups time to complete their 
     research and the committee time to collect additional 
       One nominee who wasn't filibustered was Judge Timothy 
     Tymkovich, who now sits on the U.S. Court of Appeals for the 
     10th Circuit. But Democrats opposed moving him until all the 
     groups had given their approval.
       ``[I]t appears that the groups are willing to let Tymkovich 
     go through (the core of the coalition made that decision last 
     night, but they are checking with the gay rights groups),'' 
     staffers wrote Mr. Kennedy in a June 12, 2002, memo.
       But even as late as early 2003, Democrats appeared 
     concerned that they would not succeed in mounting a full-
     scale filibuster against their first target.
       In a January 2003 meeting between Democrats on the 
     Judiciary Committee and Democratic leaders in the Senate, 
     Democrats agreed to attempt a filibuster against Mr. Estrada.
       ``All in attendance agreed to attempt to filibuster the 
     nomination of Miguel Estrada, if they have the votes to 
     defeat cloture,'' the judiciary aides wrote. ``They also 
     agreed that, if they do not have the votes to defeat cloture, 
     a contested loss would be worse than no contest.''

                               Exhibit 2

                      A Unique Case of Obstruction

       In the current debate over judicial nominations, some 
     commentators claim Republicans such as myself are 
     misrepresenting history by suggesting the current filibuster 
     tactics of the Democrats are unprecedented.
       These commentators cite the 1968 nomination of Abe Fortas 
     to be chief justice of the United States as an example of how 
     Republicans once attempted to block a judicial nomination on 
     the Senate floor. I welcome the opportunity to respond to 
     this claim, because the more Americans learn about the 
     history of judicial nominations, the more they will realize 
     how terribly off-track our confirmation process has become.
       In 1968, President Lyndon Johnson sought to elevate his 
     longtime personal lawyer, then-Associate Supreme Court 
     Justice Abe Fortas, to be chief justice. I would not be 
     elected a senator for a few more months, but followed the 
     news surrounding this nomination closely.
       There were problems with the Fortas nomination from the 
     beginning. Not only did he represent the most aggressive 
     judicial activism of the Warren court, but it soon became 
     apparent Justice Fortas had demonstrated lax ethical 
     standards while serving as an associate justice.
       For example, it emerged Fortas had taken more than $15,000 
     in outside income from sources with interests before the 
     federal courts. This was more than 40 percent of his salary 
     at the time, or about $80,000 in today's dollars.
       More fundamentally, Fortas never took off his political hat 
     when he became a judge. While serving as a Supreme Court 
     justice, Fortas continued serving as an informal political 
     adviser to the president and even involved himself in Vietnam 
     War policy. It later emerged Fortas had discussed pending 
     cases with the president, an obvious violation of 
     professional ethics.
       In fact, less than a year after his nomination as chief 
     justice was withdrawn by President Johnson, Justice Fortas 
     was forced to resign from the Supreme Court due to ethical 
       The claim Fortas was not confirmed due to a ``filibuster'' 
     is off-base. A filibuster, commonly understood, occurs when a 
     minority of senators prevents a majority from voting up-or-
     down on a matter by use or threat of permanent debate.
       That simply did not happen with Fortas, where the Senate 
     debated the nomination's merits quite vigorously. Senators 
     exposed the ethical issues involved and the widespread belief 
     the vacancy had been manufactured for political purposes. 
     They sought to use debate to persuade other senators the 
     nomination should be defeated.
       After less than a week, the Senate leadership tried to shut 
     down debate. At that time, two-thirds of the senators voting 
     were needed to do so, yet only 45 senators supported the 
     motion. Of the 43 senators who still wished to debate the 
     nomination, 23 were Republicans and 19 were Democrats.
       President Johnson saw the writing on the wall--that Fortas 
     did not have 51 senators in support of his nomination--so he 
     withdrew the nomination before debate could be completed.
       The events of 37 years ago contrast markedly with those the 
     Senate Faces today:
       (1) Fortas lacked majority support when President Johnson 
     withdrew his nomination. Today, Senate Democrats block up-or-
     down votes on judicial nominees who are supported by a 
     majority of senators.
       (2) Justice Fortas was politically associated with 
     President Johnson and eventually resigned from the Supreme 
     Court under an ethical cloud. No such charges have been made 
     against President Bush's nominees.
       (3) The Senate debated the Fortas nomination only for 
     several days before Johnson withdrew the nomination, versus 
     the four years some of President Bush's nominees have been 
     pending. It's clear the Democrats today have no desire to 
     persuade, and have even complained further debate is a 
     ``waste of time.''
       (4) Fortas' support and opposition were bipartisan, with 
     Republicans and Democrats on both sides of the question. 
     Today, the controversy is purely partisan--with only 
     Democratic senators, led by their leader Harry Reid, opposing 
     an up-or-down vote.
       I recall two judicial nominations of President Clinton's 
     particularly troubling to me and my fellow Republican members 
     when I was the Republican Leader in the Senate. Despite our 
     objections, both received an up-or-down vote on the Senate 
     floor. In fact, I voted to end debate on one of these 
     nominees while voting against his confirmation. Republicans 
     chose not to filibuster because it was considered 
     inappropriate for nominations to the federal bench.
       By creating a new 60-vote threshold for confirming judicial 
     nominees, today's Senate Democrats have abandoned more than 
     200 years of Senate tradition.
       For the first time, judicial nominees with clear majority 
     support are denied an up-or-down vote on the Senate floor 
     through an unprecedented use of the filibuster. This is not a 
     misrepresentation of history; it's a fact.

  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, will the Senator yield for a question?
  He quoted that wonderful and very important editorial by former 
majority leader, Bob Dole, saying without any doubt this is an 
unprecedented act to filibuster. I notice that Senator Hatch, one of 
our most distinguished Members, the former chairman of the Judiciary 
Committee, has just joined us on the floor.
  I will ask the Senator from Missouri if he remembers, several years 
ago, after Senator Dole had left the Senate, that a discussion was had 
in the Republican Conference about the possibility of filibustering 
judges, and that Chairman Hatch explained to us that it was totally 
against the traditions of the Senate, and we did not maintain a 
filibuster against Clinton judges. I wonder if he remembers that.
  Mr. BOND. Mr. President, I seem to recall that. I thought it was a 
very statesmanlike and accurate portrayal of the traditions of this 
body and the requirements of the Constitution, and I once again commend 
our colleague from Utah, who at that time was in a position where he 
obviously could have mustered 41 votes to block the nominee. It was the 
view of those of us who agreed with the Senator from Utah that we 
should not do that because the people of America elected a President 
who has--we know and he knows--the power to nominate judges. And it is 
necessary to maintain a well-staffed judiciary that we give prompt and 
up-or-down votes to these nominees.
  Mr. SESSIONS. I thank the Senator from Missouri. I will say, I did 
not hear all of his remarks, but I heard a good portion of them, and if 
anyone would like an accurate summary of the status of our situation, I 
suggest they read his remarks. So far as I can tell, everything he said 
is accurate. So far as I can tell, much of what we have heard from the 
other side is inaccurate, distorting of the traditions of the Senate,

[[Page S5476]]

and not a fair summary of the situation we are in. I feel very strongly 
about it.
  There is a huge issue at stake. And the issue is how the Federal 
courts will be staffed and operate. What do we want and what do we 
expect from Federal judges? How do we expect them to behave? President 
Bush says he believes judges should be faithful to the law and the 
Constitution, that they are not empowered to use activist tactics to 
reinterpret and manipulate the meaning of the words in the Constitution 
or a statute to further a personal agenda they might favor. But they 
are judges. They are referees, umpires to settle disputes by 
interpreting the law fairly and objectively. If we get away from that, 
our judiciary is in great danger.
  I believe Senator Bond is correct, also, in saying this memo that was 
just produced, and other actions I have seen over the years I have been 
in the Senate, indicate to me that too often our colleagues have 
outsourced their valuation, outsourced their decision making process on 
judges to very hard-left groups who are not honest, who deliberately 
distort the record of fine nominees, who attempt to manipulate the 
press nationwide, who raise money with an effort to destroy people's 
reputations in a way that is not legitimate and unfair. I believe that 
strongly. I have seen it time and time again.
  It is time to bring that to a conclusion. One of our great traditions 
in the Senate is to give a nominee an up-or-down vote. Senator Hatch, 
who is on the Senate floor, was my chairman of the Judiciary Committee 
for a number of years. Senator Hatch warned us when I came to the 
Senate. There were a lot of people who felt strongly about some 
activist nominees of the Clinton administration. We were very concerned 
with them.
  I see my colleague, the Senator from Oklahoma, who was in the House. 
The House Members were unhappy with us. They thought we ought to 
filibuster some of these nominees. And we considered it. People 
discussed it. Senator Hatch made a very strong, clear presentation in 
the Republican Conference. He said no, that it was against our 
traditions. It would be bad public policy. It would alter the balance 
of power in the separation of powers by creating now a super majority 
needed for the confirmation of judges. He said we should not do it. And 
the Republicans were in the majority. We had a majority in the Senate, 
at one time 55 Members.
  So the question was, What about some of these nominees that were 
objected to? I objected to two from the Ninth Circuit very strongly. 
The Ninth Circuit was the most activist circuit in America. It had been 
reversed by the U.S. Supreme Court in 27 out of 28 cases. It was out of 
step. The New York Times said in an article that a majority of the 
Supreme Court considered the Ninth Circuit a rogue circuit. Yet 
President Clinton was appointing two ultra-liberal activists to the 
  But what happened to those two judges? We have heard the democrats 
complain about on occasion: Judges Paez and Berzon. The Republican 
majority leader of the Senate, Trent Lott, called those nominees up and 
asked for an up-or-down vote by cloture motion. Those of us who opposed 
them--I certainly was one of them--voted for cloture, voted to give 
them an up-or-down vote, even though we intensely opposed them. They 
were given an up-or-down vote, and they were confirmed. President 
Clinton's nominees, when the majority was in the hands of the 
Republicans, were moved, after full debate and an opportunity to make 
their case. They brought them up, and they were given that up-or-down 
vote. That is the principle under which the Senate has operated.
  Some say, well, we might want to filibuster in the future. Well, we 
have not filibustered in the past, not for 200 years.
  Now, how did this situation that we are facing happen? There is no 
mystery if you look at the history of it. Senator Bond made a number of 
the points. But not long after President Bush was elected, in 2000, the 
Democrats went to a retreat. According to a New York Times article that 
reported on it, three very liberal, capable law professors--Laurence 
Tribe, Marcia Greenberger, Cass Sunstein--met with them in retreat. And 
they returned from that retreat with the conclusion that they were 
going to change the ground rules of confirmations.
  That is what we have seen time and again in a whole lot of ways. The 
ground rules were changed. For example, not long after that, one 
Republican Member switched parties and we ceased to be the majority 
party, and so the Judiciary Committee had a majority of Democrats on 
it. The first nine nominees who had been submitted--several of these 
nominees were in that group, including Priscilla Owen and others--were 
nominated in 2001. They would not bring them up in committee. Then 
after they moved two nominees--one was a minority and the other was a 
Democrat. They moved those two, but these other fine nominees never 
moved out of committee. They were changing the ground rules then.
  Then after the Republicans regained the majority, they commenced an 
unprecedented attempt to filibuster in committee--something we had 
never seen before. We had to have a fight over that in committee, under 
Chairman Hatch's leadership, and we reversed that. They were going to 
filibuster nominees in committee. It is so contrary to what they were 
saying a few years ago on the floor of the Senate.
  On Tuesday of this week, Senator Boxer railed against Janice Rogers 
Brown, but this is what she said about judicial nominees when President 
Clinton was in office:

       According to the United States Constitution, the President 
     nominates, and the Senate shall provide advice and consent. 
     It is not the role of the Senate to obstruct the process and 
     prevent numbers of highly qualified nominees from even being 
     given the opportunity for a vote on the Senate floor.

  Now, she has been inconsistent, I would say. But Chairman Hatch has 
been consistent. When he opposed Clinton nominees, he gave them an up-
or-down vote, and so did Trent Lott. As soon as the situation flops, 
some of the Democratic Senators flopped. Senator Schumer was one of the 
most outspoken complainers during the Clinton administration. He said:

       I also plead with my colleagues to move judges with 
     alacrity--vote them up or down.

  I agree with that, Senator Schumer.--

       But this delay makes a mockery of the Constitution, makes a 
     mockery of the fact that we are here working, and makes a 
     mockery of the lives of the very sincere people who have put 
     themselves forward to be judges and then they hang out here 
     in limbo.

  Senator Leahy, now leading the filibuster, was on the floor talking 
about that. Back when the Clinton administration was submitting judges, 
he said:

       I have had judicial nominations by both Democrat and 
     Republican Presidents that I intended to oppose. But I fought 
     like mad to make sure they at least got a chance to be on the 
     floor for a vote. I have stated over and over again on this 
     floor that I would refuse to put an anonymous hold on a 
     judge; that I would object and fight against any filibuster 
     on a judge, whether it is somebody I opposed or supported; 
     that I felt the Senate should do its duty. If we don't like 
     somebody the President nominates, vote him or her up or down. 
     But don't hold them in this anonymous unconscionable limbo. . 
     . .

  Well, I see Chairman Hatch is here. I know the time is a bit drawn. 
Chairman Hatch and the Republican leadership have been consistent on 
this issue, even when it was not to their political benefit to do so. 
We have opposed the idea of filibusters and have not supported it. The 
Democrats oppose them when it is convenient and support them when it is 
convenient. I think their position is untenable as a matter of 
principle and as a matter of public policy, and our country will not be 
better off for filibustering judges.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Martinez). The Senator from Utah is 
  Mr. HATCH. Mr. President, I thank my colleague for his kind remarks, 
and other colleagues as well. I ask unanimous consent that I be given 
the original half-hour time and that the Democrats be extended an equal 
amount of time.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I appreciate my colleague from Alabama. He 
knows about as much as anybody who has ever sat on this side of the 
aisle. He has the sting of having been rejected by the Judiciary 
Committee Democrats when he was nominated for a Federal

[[Page S5477]]

judgeship years ago. I think that is pretty ironic. They knew he was 
good and that he could do the job. Now he is a sitting Senator who can 
no longer be ignored, and he has stood up and triumphed for so many 
good people through the years. I think it was kind of a God-given thing 
that he was rejected back then, so he could sit in the Senate and tell 
people the important aspects of the Federal judiciary we have been 
discussing. I personally love and appreciate him. He has been a great 
member of the Judiciary Committee and I have a lot of respect for him.
  I have also been told that at the beginning of the session today, one 
of the leaders offered to discharge a number of judges from the 
committee, or judgeship nominees. I find that pretty ironic because at 
the end of the 108th Congress, when I attempted to discharge three 
nominees to the floor--Tom Griffith, our former counsel, nominated for 
the DC circuit; J. Michael Seabright, who was from Hawaii and was 
sponsored very strongly by the two Hawaiian Senators; and Paul Crotty, 
from New York, who was sponsored strongly by the two New York 
Senators--the Democrats opposed that and said this was extremely 
unprecedented, and they prevented me from doing so because they claimed 
``proper order'' for all nominees.
  Forgive me, Mr. President, if I find the recent Democratic request to 
discharge people they want to discharge--three Sixth Circuit nominees--
more than a little disingenuous. It is only done to try to make it look 
as though they are trying to cooperate when in fact they knew that 
could not be permitted. The leadership in the Senate will decide what 
judges come to the floor and we want all of them, including the three 
from Michigan.
  Last week when the Judiciary Committee considered the asbestos bill, 
one of our Democratic colleagues referred to proposed amendments to 
that bill and said something very important: Let's debate them up or 
down. He said it the way the American people believe it, and that is 
debating and voting is what legislators do. Let's debate them and then 
vote them up or down.
  The Senator offering that idea was my colleague from Vermont, Senator 
Leahy. He was speaking then about legislation, but he and other 
Democrats once insisted the Senate should follow the same principle as 
we evaluate the President's judicial nominations.
  In October 1997, for example, he said on the Senate floor:

       I hope we might reach a point where we as a Senate will 
     accept our responsibility and vote people up, vote them down. 
     Bring the names here. If we want to vote against them, vote 
     against them.

  Of course, at that time, a Democratic President was in power. That 
may have been the difference between then and now.
  It is always refreshing to see our fellow citizens from all over this 
great country coming here to sit up in the galleries and observe their 
Senate at work. Some of them with us today might actually be asking, 
Why is the Senator from Utah making such a big deal about something 
that is so obvious--votes up or down, that is. Many of our fellow 
citizens may be surprised to learn that some of the Senators they 
elected and sent to Congress are refusing to vote on nominations. They 
might share the sentiment of former Democratic leader Senator Tom 
Daschle when he said in 1999--of course, Clinton was President:

       I find it simply baffling that a Senator would vote against 
     even voting on a judicial nomination.

  That is what they are doing. I guess it makes a difference whether 
your President is President or whether the opposition President is 
President. I happen to think there are certain virtues that ought to be 
maintained, no matter what.
  Those Senators on the other side are blocking votes because they know 
they will lose those votes. If we debate these nominees, America would 
better understand why we need judges who will interpret, not make, the 
law. Americans will see how these highly qualified judicial nominees 
meet that standard, and America will see that these nominees, every one 
of them, have a bipartisan majority support.
  What is wrong with giving them a vote up or down? The political 
forces promoting an activist political judiciary oppose many of these 
nominees, and their strategy is simple. The Senate cannot confirm 
nominees if Senators cannot vote on them. We cannot vote if we cannot 
end debate. These filibusters use Senate rules to prevent ending 
debate, prevent taking a vote, and prevent confirmation of these 
judges. That is not only baffling, it is unprecedented. This is not a 
tangent, an academic issue, or a question that will 1 day be found in 
the game ``Trivial Pursuit Senate Edition.'' This issue is central to 
this debate, and our Democratic colleagues know it.
  Some are so desperate to claim even one single solitary precedent for 
what they are doing that they stretch, twist, and morph the word 
``filibuster'' beyond all recognition. They want the word 
``filibuster'' to mean so many things that it ultimately means 
virtually nothing at all.
  Unfortunately, these mischaracterizations of Senate history, 
tradition, and rules cynically exploit the fact that many of our fellow 
citizens have not mastered the particulars of Senate history, the 
peculiarities of Senate procedure, or the idiosyncrasies of the 
confirmation process. Misleading, confusing, patently false claims can 
easily take on a life of their own, echoed and repeated throughout the 
media, cyberspace, and even here on the Senate floor.
  We all know it can take a long time for what is true to catch up with 
what is false. Judicial filibuster defenders who claimed that when the 
Senate voted to end debate on past judicial nominations, we were 
actually filibustering those nominations; that when we voted down 
debate and confirmed them, we were actually filibustering--poppycock. 
They want Americans to believe that ending debate then justifies 
refusing to end debate now. Poppycock. Or they claim that when the 
Senate voted to confirm judicial nominations in the past, we were 
actually filibustering those nominations when we voted to confirm them. 
That is how far they have gone to try and justify these inappropriate 
  They want Americans to believe that confirming nominations then, as 
we did, justifies refusing to confirm them now. Those bizarre claims 
focus on what happens here on the Senate floor at the end of the 
judicial confirmation process. Sometimes judicial filibuster defenders 
on the other side have focused instead on what happens in the Judiciary 
Committee, an earlier phase in the process. Some appear willing to try 
anything to create a precedent for their filibusters. Some even claim 
that any nomination which is not audibly confirmed, no matter what the 
reason, no matter what the step in the process, has been filibustered. 
Giving a word any meaning you want may help make any argument you want 
to make, but it does not make that argument legitimate. This gimmick 
may have some public relations punch. It leads to cliches such as 
``pocket filibuster'' or ``one-man filibuster,'' and creates villains, 
such as me. What kind of campaign would this be without a bogeyman? 
After all, I was chairman of the Judiciary Committee for 6 years under 
President Clinton.

  Never mind that the Republican Senate confirmed 377 judges for 
President Clinton, just 5 short of the all-time confirmation record set 
by President Reagan. Bill Clinton was the second confirmation champion 
of judges in the history of this country, and he had 6 years when I was 
chairman. I wonder how that happened if I was so partisan.
  Never mind that President Reagan had his own party controlling the 
Senate for 6 years while President Clinton had the other party, the 
Republicans, controlling the Senate for 6 of his years. So Reagan had 
his own party help him for 6 years. President Clinton only had his own 
party for 2 years, and yet he still came in just five votes shy of 
President Reagan. And if my recollection serves me correctly, he would 
have been three ahead of him had it not been for Democratic holds on 
their side. One Senator was not getting his; therefore, he would not 
let anybody else get theirs. It happened. Never mind facts such as 
  The assistant minority leader yesterday claimed every Clinton 
nomination that was not audibly confirmed was filibustered and that I 
personally buried them. My hand alone held back a confirmation wave of 
apparently mythic proportions. Look for a moment what it takes to 
believe every

[[Page S5478]]

unconfirmed nominee is a filibustered nominee. It requires believing 
dozens of nominees President Clinton himself withdrew were 
filibustered. Preposterous. President Clinton, for example, withdrew 
one of his court nominees fewer than 6 months after her nomination 
because of health concerns. Her nomination did not get out of the 
Judiciary Committee, did not receive a floor vote, and was not 
confirmed. But was she filibustered? They seem to think so.
  Is her situation the same as Justice Priscilla Owen who has been 
waiting for more than 4 years and cannot get a floor vote because of a 
Democratic filibuster, a leader-led partisan filibuster, the first time 
in history?
  This line that all unconfirmed nominees are filibustered nominees 
requires you to believe ill-founded arguments such as that. It also 
requires believing that the 28 nominations sent too late to be 
considered or which President Clinton chose not to resubmit were 
  That is how they add, they double count. It is ridiculous. 
Preposterous is the word.
  It requires believing that nominations not given hearings because of 
opposition by their home State Senators were filibustered. We have had 
that go on for years, whoever has been in power. Home State Senators 
have a lot of swat. The Judiciary Committee system that gives extra 
weight to the views of Senators from a nominee's home State has been in 
place in various forms for nearly a century. Democrats, as well as 
Republicans, use it. I do not hear the Democrats who now want to call 
these situations filibusters also calling to abolish that system of 
home State senatorial courtesy. They cannot have it both ways.
  The majority leader, Senator Frist, recently offered a proposal that 
would not only address our concerns about the floor by ensuring up-or-
down votes, but also address Democrats' concerns about the committee by 
guaranteeing reporting of nominees. The majority leader tried to do 
that. Democrats rejected that offer. They are not going to give up 
their rights in committee anymore than Republicans should give up their 
rights in committee.
  But that is not filibustering, I can guarantee that. Either they 
think treatment of judicial nominees in the Judiciary Committee is a 
problem needing a remedy or they do not. They cannot have it both ways. 
Democrats know that many factors determining whether a nomination is 
approved by the Judiciary Committee are not simply up to the chairman's 
unilateral discretion. What galls me is some who have made the 
argument. One in particular this morning begged me to get his judges 
through, and I have to say there were real questions about his judges, 
but I put them through because they were nominated by the President. He 
came to me and asked that I get it done. I did it for countless 
Democrats in the 6 years I was chairman of the committee during the 
Clinton years, and they know it. They do not have any other arguments.
  So what do they want to do? They want to vilify the chairman of the 
Judiciary Committee who has had to put up with all kinds of 
machinations in the Judiciary Committee from both sides, whoever the 
chairman is. Democrats know there are procedures in the Judiciary 
Committee and on the floor for forcing a committee chairman to act if 
Senators believe the chairman is dragging his feet and that those 
procedures were never used, never even attempted, while I was chairman. 
Why? Because they knew darn well I was trying to do the best I could.
  They do not have any other arguments. They cannot justify their 
position. Democrats know these things. They also know that many of our 
fellow citizens do not. So the spin machine cooks up this tail that all 
unconfirmed nominees are filibustered nominees, attempting to make 
people believe there is some precedent, even a totally fictional 
precedent, for their current filibusters. Saying that ending a debate 
is the same as not ending a debate did not work. Saying that confirming 
nominations is the same as not confirming nominations did not work. 
Saying that President Clinton's near record confirmation total is 
evidence of unfair treatment by Republicans will not work either.
  On Tuesday the distinguished Senator from Wisconsin, Mr. Feingold, 
was making a few other arguments. He pointed out that the text of the 
Constitution does not require an up-or-down confirmation vote for a 
judicial nomination.
  Well, many of our colleagues on the other side of the aisle attack 
judicial nominees when they take the Constitution's text this 
seriously. But I am glad that the Senator from Wisconsin is doing so.
  The word ``filibuster'' is not found in the Constitution, either. Nor 
are phrases such as ``unlimited debate,'' ``minority rights,'' or even 
``checks and balances,'' as misused as those terms have been by the 
other side.
  None of the phrases used by some to try to give these judicial 
filibusters a constitutional anchor are in the chartered text, the 
constitutional text. What the Constitution does say, however, is that 
the President has the power to nominate and appoint judges--not the 
Senate, the President has that power. Our role of advice and consent is 
a check on the President's power to appoint.
  When the filibuster turns our check on the President's power into a 
weapon that hijacks the President's power, then, yes, it has indeed 
violated the design that is most certainly in the text of the 
Constitution, and that is what they are doing.
  The Senator from Wisconsin also said the procedure the majority 
leader may use to prohibit judicial filibusters will mean changing the 
Senate rules by fiat. That is a variation on the Democratic mantra that 
this would break the rules to change the rules. That is a catchy little 
phrase but neither of its catchy little parts is true.
  The Senate operates not only by its written rules but also by 
parliamentary precedence established when the Presiding Officer rules 
on questions of procedure asked by the Senators. What we call the 
constitutional option would seek such a ruling from the Presiding 
Officer. After sufficient debate, the Senate should vote on a judicial 
nomination. That is what the ruling would be. Senate precedents and 
procedures would change, but Senate rules would remain unchanged. No 
breaking of the rules, no changing of the rules.
  Senators use the word ``fiat'' because it sounds bad and fits with 
the abuse of power theme probably born in some liberal focus group 
somewhere. The word attempts to give people a bad impression, but it 
should give them an even worse impression to know that it is patently 
  The Constitution gives authority over Senate rules and procedures to 
the Senate, not to the Parliamentarian or to the Presiding Officer but 
to the Senate. If the Presiding Officer rules on the question of 
procedure, it will not actually change Senate procedures until a 
majority of the Senators vote to do so.
  Just as American self-government is radically different from 
monarchy, Senate self-government is radically different from fiat.
  The Senator from Wisconsin said that whenever the Senate merely takes 
a cloture vote or a vote to end debate, a filibuster is always 
underway. That, too, is patently false.

  Let me refer to this chart. This is what the Congressional Research 
Service said on April 22, 2005:

       It is erroneous to assume that cases in which cloture is 
     sought are always the same as those in which a filibuster 

  Let me repeat that.

       It is erroneous to assume that cases in which cloture is 
     sought are always the same as those in which a filibuster 

  Let me use two examples. Among President Clinton's most controversial 
nominees were Marsha Berzon and Richard Paez nominated to the U.S. 
Court of Appeals for the Ninth Circuit. Our colleague from New York, 
Senator Schumer, who has spoken many times on the floor on this issue, 
in November 2003 called these nominees ``very liberal,'' and, ``quite 
far to the left.'' Now, that is quite something coming from a Senator 
who has never been called even a little bit to the right.
  On November 10, 1999, the majority leader at the time, Senator Lott, 
promised that he would bring these controversial nominations up for a 
confirmation vote no later than March 15, 2000, and that was at my 
request. He correctly said that I agreed with using the cloture vote to 
ensure that a confirmation vote occurred. In other words, it was used 
to get to a vote.

[[Page S5479]]

  On March 8, 2000, that is exactly what we did. It was of a procedural 
floor management device. The first two names on the petition for the 
cloture vote happened to be Senator Lott and myself. We took that 
cloture vote to prevent a filibuster and to ensure an up-or-down vote. 
We prevented a filibuster. That vote occurred, and the Senate confirmed 
both nominees. They are today sitting Federal judges. Otherwise we 
would have kept going on and on on the Senate floor. We decided that is 
the way to get to a vote, and we did.
  The Senator from Vermont, Mr. Leahy, said on Tuesday that the 
constitutional option which would use a parliamentary ruling to 
prohibit judicial filibusters would ``use majority power to override 
the rights of the minority.'' I have called this parliamentary approach 
the Byrd option because when Senator Byrd was the majority leader in 
the late 1970s and early 1980s, Senator Byrd used it to change Senate 
procedures. He did so regarding legislation and also regarding 
nomination-related filibusters.
  In 1980, for example, then-Majority Leader Byrd wanted to prohibit 
filibusters with a motion to proceed to nominations, and they could do 
that back then, just as a confirmation vote cannot happen if debate 
does not end. Debate cannot start if the Senate cannot vote to proceed 
to that debate.
  Today we hear that any limitation on debate, any restriction of the 
filibuster, strikes at the very heart of the essence of this 
institution. Maybe it was a different story back then when they were in 
control. When the Presiding Officer ruled against what Majority Leader 
Byrd was trying to do, he then appealed that ruling and the Senate 
voted to overturn it, effectively terminating those nomination-related 
filibusters. He knew how the vote was going to turn out in the end.
  I remind my colleagues what my good Democratic friend from West 
Virginia said when he used the procedure to change the filibuster rule, 
on January 4, 1995, during the Clinton administration. He said:

       I have seen filibusters. I have helped to break them. There 
     are few Senators in this body who were here [in 1977] when I 
     broke the filibuster on the natural gas bill. . . . I asked 
     Mr. Mondale, the vice president, to go please sit in the 
     chair; I wanted to make some points of order and create some 
     new precedents that would break these filibusters.

  Then he said this:

       And the filibuster was broken--back, neck, legs, and arms. 
     . . . So I know something about filibusters. I helped to set 
     a great many of the precedents that are on the books here.

  Well, the Senator was candid. I personally admire him for it. On at 
least three other occasions, Majority Leader Byrd used a ruling by the 
Presiding Officer to change Senate procedures without changing the 
underlying Senate rules.
  The Senator from Vermont says that using this very same mechanism 
today would be an outrageous trashing of minority rights. Yet he voted 
every time to support Majority leader Byrd's use of that mechanism, 
including to eliminate nomination related filibusters.
  Yesterday, the Senator from Illinois, Senator Durbin, claimed that 
Senate rules, in his words, from the very beginning, required an 
extraordinary majority to end debate.
  Now that is factual claim, and it is factually false.
  The Senate adopted its first rules in 1789. Rule eight allowed a 
simple majority to proceed to a vote. The men who founded this republic 
designed this Senate without the minority's ability to filibuster 
  Over the last few days, many excuses have been offered why some 
refuse to debate and vote on judicial nominations that reach the Senate 
  Let me correct that. While these may be their reasons, there are no 
valid excuses.
  When procedural obstructive devices such as the filibuster are kept 
where they belong, in the legislative process, the debate can properly 
focus on the merits of these nominees. That is what debating and voting 
should ultimately be about, the President's nominees.
  The debate we have seen here on the Senate floor regarding nominees 
such as Justices Priscilla Owen and Janice Rogers Brown is typical of 
what we will see in the future regarding other nominees.
  Many of our fellow citizen may know little of the Senate's Byzantine 
procedures, they may know little about judicial rulings, they may not 
speak legalese, but I hope they will not be afraid to participate in 
this process.
  Let me offer a few pointers, a few tips, for the road ahead.
  Politics is often about results, about winners and losers, and 
involves politicians asserting their will. Law is about the process of 
reaching results, about what the law requires, and involves judges 
using judgment.
  Politics and law are two very different things, and our liberty 
depends on preserving that difference. So if you hear critics of 
judicial nominees talking only in the language of politics, you know 
something is wrong.
  In the last day or two, for example, critics of the nominees before 
us have reduced them to sound bites, checklists, and litmus tests.
  Senators begin sentences with phrases such as she ruled that . . . or 
she ruled for. . . .
  Mentioning only those results, without exploring how a judge reached 
those results, amounts to applying political criteria to a judicial 
nominee, and that is fundamentally wrong. Sometimes the law requires 
results we may not like, results that may even sound dramatic.
  Mentioning the political results without the judicial process leading 
to those results misleads people about what judges do and how to choose 
the rights ones.
  Or the critics will characterize what a judge said rather than tell 
us what she actually said.
  Or if they do quote the judge, critics will often pluck out only a 
phrase, or use lots of ellipses.
  These are signs that spin may be in the air.
  Or the critics will quote other critics. Imagine if the only thing 
someone knew about you came from what your critics or enemies said 
about you. That picture would be distorted, incomplete, and just plain 
  So our fellow citizens should not be worried that they do not know 
the language of lawyers, that they have not read a judicial nominee's 
writings or rulings, or are not well-versed in the fine points of legal 
  I hope they will listen critically to the debate here in the Senate 
about these nominees, their qualifications, and their records.
  I hope our fellow citizens will be very skeptical of critics who make 
a political case against a judicial nominee, skeptical if the case 
against a nominee is limited to soundbites about results or 
characterizations by third parties.
  Let me conclude my remarks by noting that in September 2000, the 
Senator from Michigan, Senator Levin, said that the Constitution each 
of us has sworn to protect and defend requires that we debate and vote 
on judicial nominations reaching the floor.
  I agreed with that principle then, and I agree with it today.
  For more than two centuries, we kept the filibuster out of the 
judicial confirmation process.
  It is surely not a good sign about our political culture that we must 
today formalize by parliamentary ruling a standard we once observed by 
principle and self-restraint.
  But that self-restraint has broken down, and maintaining our 
tradition of up or down votes for judicial nominations is worth 
defending. Once we take unprecedented obstruction tactics like the 
filibuster off the table, we can focus where we should, on the merits 
and qualifications of nominees.
  We must have a standard that binds both political parties. That 
standard must be fair, it must respect the separation of powers, and it 
must be consistent with our own Senate tradition.
  Between 1789 and 2003, we had a strong consistent tradition of voting 
on judicial nominations once they reach the Senate floor.
  We should return to that principle and practice.
  Unfortunately, in 2003, the Democratic leadership broke with this 
longstanding Senate tradition and took an ill-founded turn down a 
partisan political path and unwisely changed the confirmation process 
in an unprecedented fashion.
  We must turn back from that path. Once a judicial nomination reaches 
us here, our course should be clear. Let us debate and then let us 
  I yield the floor.

[[Page S5480]]

  The PRESIDING OFFICER (Mr. Alexander). The Senator from 
  Mr. KENNEDY. Mr. President, I understand that under the previous 
agreement, I have 15 minutes. Is that correct? Mr. President, I will 
yield myself 15 minutes. I ask consent to be able to proceed for 15 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. I ask the Chair if he will be good enough to let me know 
when there is 3 minutes left.
  The PRESIDING OFFICER. The Chair will so notify the Senator.
  Mr. KENNEDY. I thank the Chair.
  Mr. President, I will take a few moments of the time of the Senate, 
and for those who are watching this debate, to try to put this whole 
issue of what I consider to be an arrogant grab for power in some 
perspective. I urge my colleagues, perhaps over the course of the 
weekend, take 2 or 3 hours and reread the debates on the Constitutional 
Convention, about how our Founding Fathers wanted the selection of 
judges for the courts of this country to be done.
  There were three different occasions during the Constitutional 
Convention when our Founding Fathers considered who should appoint the 
judges who were going to serve on the courts of this country. The first 
two times the Founding Fathers debated this and discussed this, they 
made a unanimous recommendation that it would be solely the Senate of 
the United States that would be the sole judge for nominating and 
approving judges who were going to serve on the courts. Then, as the 
Constitutional Convention came to an end, 8 days before the end of the 
Constitutional Convention, they came back and they were reviewing the 
totality of their work and at that time they made a judgment and 
decision that was virtually unanimous that they would provide a shared 
responsibility between the executive and the Senate of the United 
  No one can read the debates of the Constitutional Convention and not 
understand that the Senate of the United States is effectively, in the 
eyes of the Founding Fathers, a coequal partner in the naming of 
  I know it has been fashionable around here for many years, 
particularly for those of the majority party--and I have seen it done 
even on our side when we were the majority party--for a Democrat to 
say: Look, if the President of the United States nominates, there has 
to be a heavy burden on any individual to vote against it. It ought to 
be automatic. It ought to be effectively a rubberstamp.
  That has never been my position. I have always felt and understood 
that we have an independent judgment and decision as charged by our 
Founding Fathers to exercise our own good judgment. That has been the 
history of the Senate.
  We have listened--I have--to a lot of debates, saying what we are 
doing is going back to the original intent of our Founding Fathers. 
That does not happen to be factually true.
  I reviewed yesterday those who have held the seat I hold in the 
Senate. Going back to John Quincy Adams, going back to Charles Sumner, 
going back to Daniel Webster--to President Kennedy--the series of 
Supreme Court nominees they considered, and those they voted for and 
those they voted against: there never was a single time when any 
Senator from Massachusetts was effectively muzzled, silenced, gagged 
when they were expressing their conscience, their view about the 
members going to the Supreme Court or the circuit courts, not in the 
history of this body, never.
  But under the proposal of the majority leader, that will no longer be 
the case. That no longer will be the case. It is not only the 
silencing, the muzzling and gagging of any of the Members in here; it 
is breaking the rules in the middle of the game.
  We have parliamentary rules, like any other legislative body, and we 
have ways of changing and altering those rules. They are all laid out. 
I will mention them briefly. There is a way to change the rules if we 
do not like them and we can follow them and conform them to our views. 
By the Senate rules we can alter and change them. Is that what is going 
to be before the Senate in the nuclear option? Absolutely not. 
Absolutely not.

  There is a way to change them, but not the way the Republican 
leadership and this administration want to do it. They are effectively 
tearing up the rules. They are basically running roughshod over the 
Senate rules, the institution that has served this Nation well for 224 
years. That is what is being proposed. When all is said and done, we 
mention all these other past histories of activities, this is 
effectively what is being done.
  I think most Americans may take issue with what happens here in the 
Senate. They may agree with the activities of the Senate or may differ 
with them. But one thing in which the American people have some degree 
of confidence is their basic institutions of Government. With the 
proposal by the majority leader, we are rending asunder the power and 
the authority that was described in the Constitutional Convention and 
described in the Constitution for the Senate. That is why people are 
feeling so strongly about this, many of us feel so strongly about 
this--because basically we are undermining what our Founding Fathers 
  This is an issue that has been overhanging the Senate now for some 
weeks, for some months, in spite of the fact that we have approved 208 
of the President's judges: 95 percent, a higher percentage than the 
previous President Bush. What is suddenly the difference? This 
President has a higher percentage of his nominees approved than the 
first President Bush, Bush 1. The difference is a different political 
climate. There is a radical right out there that is loose in the 
country. They feel they won the Presidency, the House of 
Representatives, the Senate of the United States and, by God, they are 
going to take over the independent judiciary.
  That is what this is all about. Meantime, while the so-called nuclear 
option has been hanging out over the Senate, what in the world have we 
been doing for the last 5 months? January, February, March, April, and 
now the third week in May?
  When I go back to Massachusetts, the people there are talking still 
about job security and its uncertainty. They are talking about whether 
they are going to continue to be able to have health insurance. They 
are talking about escalating prices of prescription drugs. They are 
talking about the increased costs of tuition, whether their children 
are going to be able to go to college. They are talking about what is 
happening in the schools and the school dropout problems and the fact 
so many classes in our Nation don't have well-trained teachers. They 
are talking about the needs for special education teachers. They are 
talking about supplementary services for children going to high schools 
that were guaranteed in the No Child Left Behind Act and too many of 
our school districts are not doing; that is what they are talking 
  But what have we been doing? Waiting for the nuclear option. Which 
means what? Tear up the rules and we pass class action bills 
benefitting corporate America, we pass bankruptcy bills that will help 
the credit card industry. We did take 2 weeks, and deservedly so, on 
the supplemental appropriations, and we included an amendment to add 
some armor for our troops over there, of which I highly approved. That 
is it. That is the record. Nothing we really care about. Why? Because 
we have been absorbed with the nuclear option, changing and altering 
the rules. Mr. President, 95 percent of approval of this President's 
nominees has been achieved.
  I frankly feel a great deal of this responsibility is right down at 
the other end of Pennsylvania Avenue. I can remember in January of this 
year, in the wake of the conclusion of the election and all of us said, 
This President won. We congratulate him. We have to bring the country 
back together. I certainly voiced that.
  My colleague, Senator Kerry, certainly voiced that. What happened? 
The ballots are barely cast and the votes are hardly counted, and this 
President sends up the nominees that have been debated, discussed, had 
hearings, and voted on in the Senate and said: You have to pass these, 
Senate, or we will change the rules.
  I have taken the time of the Senate in going over the qualifications 
of these. These are not just ordinary nominees. I have gone over these 
in some detail. These nominees are radical. I would say, radical, 
outside the

[[Page S5481]]

mainstream. If you have a nominee such as Mr. Pryor, who thinks we 
ought to repeal the Voting Rights Act, I think he is out of the 
  What he says in his legal papers is in complete conflict with and has 
been rejected unanimously by the Supreme Court. He does not understand 
the Americans With Disabilities Act. He does not understand that 
Republicans and Democrats alike voted for the Americans With 
Disabilities Act to bring those that are challenged, mentally and 
physically, into the mainstream of American society. We spent weeks and 
months and years to pass that legislation. This is not one Senator who 
will vote for someone that absolutely wants to undermine and eviscerate 
it, destroy it, and end it. That is what Mr. Pryor's positions lead to.
  So these are not people that are in the mainstream. We have expressed 
that. We ought to be able to express it. But that is not satisfactory 
to this administration. No, no. They want to change the rules. That is 
what this will be all about. They are effectively saying: Look we have 
nominated, and you are going to go ahead and approve.
  We have 224 years where they have not been able to silence us, and 
now they will be able to silence us. But not with this Senator's 
  These are the rules, and I welcome any on the other side to dispute 
them, and I invite them to put that in the Record. First of all, they 
will have to put the Vice President of the United States in the 
Presiding Officer's chair. There will not be another Senator in that 
chair to make the ruling because it is not going by the rules of the 
  Do listeners understand that? It is akin to going to the football 
game and the referee and the umpire call the penalty or the touchdown 
and someone else from the crowd says, no, no, that does not count, and 
for us it recognizes the ``someone else'' in the crowd. That is what 
they are doing. They will replace a Member of the Senate. We have, as 
we do now, the distinguished Senator from Tennessee sitting in the 
chair and presiding over the Senate. But that will not be true that 
particular day.
  Next they will have to break paragraph 1 of rule V which requires 1 
day's specific written notice if a Senator intends to try to suspend or 
change a rule.
  And then they break paragraph 2, rule V, which provides that the 
Senate rules remain in force from Congress to Congress unless they are 
changed in accordance with existing rules.
  Then they have to break paragraph 2, of rule XXII, which requires a 
motion signed by 16 Senators, a 2-day wait, and a three-fifths vote to 
close debate on a nomination.
  Then they have to break rule XXII requirement of a petition, a 2-day 
wait, and a two-thirds vote to stop debate on a rules change.
  They have to break scores of the rules. It will make a sham of the 
rules and parliamentary procedures of this Senate. It is wrong.
  We are witnessing in this debate an arrogant power grab by the 
Republican right. This is what happens when the rightwing of the 
Republican Party calls the tune for the Republican Party as a whole. We 
are spending days and weeks debating five rightwing judges but not 5 
minutes on what counts in most people's lives: Secure jobs, healthy 
families, educational opportunity. Those are not the values and 
priorities we see today from the White House and this Republican 
Congress. To them, history does not matter. Mainstream values do not 
matter. Our commitment is to working families, and that does not 
  What the Republican Party cares about today is putting a rightwing 
agenda ahead of mainstream values, corporate interests ahead of public 
interests, and the agenda of the privileged few ahead of the American 
dream for all.
  We, as Senators, have a choice as well. We can break the rules and 
run roughshod over our constitutional system of checks and balances or 
we can seek accommodation and compromise for the good of our democracy 
and the strength of our Nation.
  The one thing standing between the White House and total control of 
the Congress and the courts is the Senate's right to full and fair 
debate. Let's not give it up.
  As many of us have said, if Republicans persist in the course they 
have set, they will destroy the ``compact of comity'' that enables the 
Senate to fulfill its constitutional responsibilities.
  Outside the Capitol, the gravity of that danger may not be self-
  ``Comity'' may be an unused word today, but for 200 years it has been 
the lifeblood of daily life in the Senate.
  In the Senate, comity is the glue that binds us to one another and to 
that small but brilliant group of Framers who met, over two centuries 
ago, and conceived of this institution.
  They certainly knew what comity was: they came from totally different 
views of government.
  They labored ceaselessly, in the heat of a Philadelphia summer, in 
the ultimate American Government Seminar, until they created a 
government that was reliable, resilient--resistant to attack from 
within and without.
  Comity among the Framers--their overriding ``agreement to agree'' 
despite their deep differences--informed and nourished their efforts. 
They worked especially hard to design the Senate.
  Their debates were all about great challenges:

       What size would be right to enable the Senate to serve as a 
     check on the other House and the President too, and still 
     place personal responsibility for their actions on individual 
       How long should each Senate term last, to set the proper 
     balance between the strong, independent Senate they wanted 
     and the potential tyranny of an aristocratic upper House, 
     insulated from popular opinion?
       Who would make better judicial choices, the Senate or the 

  Fortunately for us today, their debates were not just theoretical. 
They were very real and very practical. The Framers understood they 
were creating a new experiment in the history of government as they 
worked to combine their diverse views into a single concise blueprint.
  Despite vigorous and fundamental disagreements at the start, they 
retained their respect for one another, their capacity for reason, 
their shared concept of what this Nation could be, and what its 
government should be. Consensus was not just a goal, but a necessity. 
Compromise not just an option, but a cornerstone of their creation.
  It is not an exaggeration to say that if that ``compact of comity'' 
is not preserved, the Senate and the Government will suffer mightily. 
Our vital role in the machinery of checks and balances will fade, and 
the nation will be left diminished.
  What would the Framers have done if faced with the challenge we face?
  They would clearly have counseled respect and moderation.
  It is not respectful or moderate to suggest, as one of our colleagues 
did, that judges may have it coming to them if their decisions outrage 
some people. It is not respectful or moderate to suggest, as the 
majority leader did yesterday, that Senators are equivalent to the 
assassins of judges because they strongly criticize the political or 
ideological views of judicial nominees. As part of its advice and 
consent function, the Senate has done that since 1795, when it rejected 
George Washington's nomination of John Rutledge to be Chief Justice.
  The majority leader's use of the word ``assassinate'' was especially 
unfortunate, coming in the very day that Judge Lefkow of Chicago was 
testifying to our Judiciary Committee about the brutal murders of her 
family members.
  The Founders also would have counseled us about communication. We 
work with members of the other party every day. We talk to them every 
day. But I can't think of one of them who has come to me over the past 
2 years to say, ``This judicial nomination issue is headed the wrong 
way--we ought to start talking about how to preserve our institution's 
strengths and traditions, and solve the problems that these judicial 
nominations are creating for us all.'' We all know it is very late in 
this contest of nuclear ``chicken,'' but it is never too late to try.
  The Framers would also have told us to minimize the distortions and 
respect the truth. Again, and again, we are told that there was no 
Republican-led filibuster of the Fortas nomination to be Chief Justice 
in 1968. There are still three of us in the Senate today, who were in 
the Senate then, and who know the truth firsthand. It demeans the 
Senate and discredits the debater when

[[Page S5482]]

someone parrots the bizarrely erroneous White House talking points 
denying such a filibuster, without having the grace to check the facts.
  The Founders would also have told us to take extremely seriously what 
James Madison in Federalist No. 62, called ``the senatorial trust,' 
which require[es] a greater extent of information and stability of 
  As Madison understood, Senators are not the owners of this 
institution, but we are more than just its occupants. We are, its 
trustees, with an awesome responsibility to protect that trust--this 
body--the Senate. That means we must preserve what makes it work well--
like extended debate and the super-majority cloture rule.
  A central part of that senatorial trust is standing up to the 
President when he overreaches in the exercise of his power, as he has 
done with the few, but important, still hotly contested circuit 
  Finally, the Framers would say that our endangered senatorial trust 
needs comity more than ever in our day-to-day activities and 
relationships. As Madison stated, the comity the Framers had in mind 
was--``the result, not of theory, but `of a spirit of amity, and that 
mutual deference and concession which the peculiarity of our political 
situation rendered indispensable.' '' That is what we must aspire to. 
That is what we must accomplish if we are not only to solve our present 
dilemma but leave this place as least as fine an institution as we 
found it.
  Who are the nominees that the Republicans so want confirmed that 
Senator Frist is willing to violate the rules of the Senate?
  They include Janice Rogers Brown, who has been nominated to the very 
important DC Circuit, which is widely regarded as the most important 
court of all the courts of appeals, and whose decisions affect the 
rights of all Americans. She has a compelling personal story, which all 
of us respect. But confirmation to the DC Circuit requires more than a 
compelling personal story. It requires a record of clear commitment to 
upholding the rights of all Americans. It requires a record of clear 
dedication to the rule of law--not remaking the law to fit a particular 
political view.
  Janice Rogers Brown fails this basic test. Her record on the 
California Supreme Court makes clear that she's a judicial activist who 
will roll back basic rights. Her record shows a deep hostility to civil 
rights, to workers' rights, to consumer protection, and to a wide 
variety of governmental actions in many other areas--the very issues 
that predominate in the DC Circuit.
  She has repeatedly voiced contempt for the very idea of democratic 
self-government. She has stated that ``where government moves in, 
community retreats [and] civil society disintegrates.'' She has said 
that government leads to ``families under siege, war in the streets.'' 
In her view, ``when government advances . . . freedom is imperiled 
[and] civilization itself jeopardized.''
  She has criticized the New Deal, which gave us Social Security, the 
minimum wage, and fair labor laws. She has questioned whether age 
discrimination laws benefit the public interest. She has even said that 
``Today's senior citizens blithely cannibalize their grandchildren 
because they have a right to get as much `free' stuff as the political 
system will permit them to extract.''
  Yet my colleagues say we're wrong to worry about putting Janice 
Rogers Brown on the DC Circuit, which is widely regarded as the most 
important court of appeals, and is just a heartbeat away from the 
Supreme Court.
  No one with these views should be given a lifetime appointment to the 
Federal court of appeals, and certainly not to the Federal court most 
responsible for cases affecting government action. It is no wonder that 
an organization seeking to dismantle Social Security is running ads 
supporting her nomination to the second most powerful court in the 
  In the area of civil rights, Justice Brown has also written opinions 
that would roll back basic protections. In a case involving ethnic 
slurs against Latino workers, Justice Brown wrote that the first 
amendment prevents courts from stopping ethnic slurs in the workplace, 
even when those slurs create a hostile work environment in violation of 
job discrimination laws. She dissented from a holding that victims of 
discrimination may obtain damages from administrative agencies for 
their emotional distress. She also wrote an opinion suggesting that 
Supreme Court decisions upholding affirmative action are inconsistent 
with laws against discrimination.
  On workers' rights, she rejected a binding precedent limiting an 
employer's ability to require workers to submit to drug tests.
  In another case, she wrote a dissent urging the California Supreme 
Court to strike down a San Francisco law providing housing assistance 
to low-income, elderly, and disabled people. In case after case, she 
has sought to undermine the rights of the American people.
  It is a travesty that the majority leader is attempting to break the 
rules of the Senate to confirm such nominees. It takes 67 votes to 
change Senate rules. Because the majority leader can't win fair and 
square, he is proposing to break the rules in the middle of the game.
  We have heard them make every argument in an attempt to disguise 
their raw abuse of power. They even claim the Constitution prohibits 
Senators from filibustering judicial nominees. But as Senator Frist, 
the majority leader, admitted on the floor recently, that's nowhere in 
the Constitution. Certainly the Republicans didn't believe that when 
they were filibustering President Clinton's nominees--including when 
Senator Frist, himself joined in a filibuster of a circuit court 
nominee in 2000.
  This misreading of the Constitution and Senate rules is the same kind 
of distortion we have seen from the nominees they support.
  We have seen it in Priscilla Owen's opinions twisting the law in an 
attempt to deny the insurance claim of a heart surgery patient, or to 
exempt campaign contributors from environmental regulations. We have 
seen it in Janice Rogers Brown's twisting the Constitution to claim job 
discrimination laws can't protect Latino workers from ethnic slurs in 
the workplace. We have seen it in William Pryor's opposition to basic 
protections for the disabled, voting rights, and family and medical 
leave--views rejected by the Supreme Court. And we've seen it in 
William Myers' opinion that cleared the way for an open-pit mine on 
land sacred to Native Americans--an opinion that a Federal court later 
said ignored ``well-established canons of statutory construction.''
  These nominees do not deserve lifetime appointments to the federal 
courts, where they have enormous power over the American people.
  More importantly, the Senate does not deserve the bitter legacy we 
would leave if we adopt the nuclear option. It is not worth running 
roughshod over the traditions of this institution for short-term 
political gain. It is not worth turning our backs on our constitutional 
role as a check and balance on Presidential appointments to the courts.
  Alexander Hamilton said this about the need for the Senate to be an 
independent check on the President's nominations.
  ``To what purpose [do we] require the co-operation of the Senate? . . 
. It would be an excellent check upon a spirit of favoritism in the 
President, and would tend greatly to prevent the appointment of unfit 
  That's what Alexander Hamilton said the Senate should be--a check 
against overreaching by the President, not a rubber stamp for the 
President. I urge my colleagues to remember that as United States 
Senators, we are the keepers of a constitutional trust that is not ours 
to give away. That trust belongs to the American people. The system of 
checks and balances protects them. If we give away that trust, we will 
never get it back.
  What we are witnessing in this debate is an arrogant power grab by 
the Republican right. This is what happens when the rightwing of the 
Republican Party calls the tune for the Republican Party as a whole. We 
are spending days and weeks debating five rightwing judges, but not 5 
minutes on what counts most in people's lives--not 5 minutes on secure 
jobs, or healthy families, or educational opportunity. Those are not 
the values and priorities we see today from this White House and this 
Republican Congress.

[[Page S5483]]

  To them, history doesn't matter. Mainstream values don't matter. Our 
commitment to working families doesn't matter. What the Republican 
Party cares about today is putting a rightwing agenda ahead of 
mainstream values, corporate interests ahead of the public interest, 
and the agenda of the privileged few ahead of the American dream for 
  We have approved 208 of George Bush's nominees to the federal courts. 
Two hundred eight. But the five right wing judicial nominees at stake 
in the nuclear option have no business making life-or-death, make-or-
break decisions that affect our lives. They are anti-worker, anti-civil 
rights, anti-disability, anti-senior, anti-consumer, and anti-
  This is President Bush's moment of truth too. Instead of fanning the 
right wing flames, the President can end this abuse of power. He can 
pick judges closer to the center, not from the outer edge.
  We as Senators have a choice as well. We can break the rules and run 
roughshod over our constitutional system of checks and balances, or we 
can seek accommodation and compromise for the good of our democracy and 
the strength of our Nation. The one thing standing between The White 
House and total control of Congress and the courts is the Senate's 
right to full and fair debate.
  I urge the President, I urge the Republican leadership in the Senate, 
to heed the timeless words of the prophet Micah who wrote, ``What is 
good and what does the Lord require of you but to do justice, and to 
love kindness, and to walk humbly with your God?''
  Here are some of the rules and precedents that the executive will 
have to ask its allies in the Senate to break or ignore, in order to 
turn the Senate into a rubber stamp for nominations:
  First, they will have to see that the Vice President himself is 
presiding over the Senate, so that no real Senator needs to endure the 
embarrassment of publicly violating the Senate's rules and precedents 
and overriding the Senate Parliamentarian, the way our Presiding 
Officer will have to do;
  Next, they will have to break paragraph 1 of rule V, which requires 1 
day's specific written notice if a Senator intends to try to suspend or 
change any rule;
  Then they will have to break paragraph 2 of rule V, which provides 
that the Senate rules remain in force from Congress to Congress, unless 
they are changed in accordance with the existing rules;
  Then they will have to break paragraph 2 of rule XXII, which requires 
a motion signed by 16 Senators, a 2-day wait and a \3/5\ vote to close 
debate on the nomination itself;
  They will also have to break rule XXII's requirement of a petition, a 
wait, and a \2/3\ vote to stop debate on a rules change;
  Then, since they pretend to be proceeding on a constitutional basis, 
they will have to break the invariable rule of practice that 
constitutional issues must not be decided by the Presiding Officer but 
must be referred by the Presiding officer to the entire Senate for full 
debate and decision;
  Throughout the process they will have to ignore, or intentionally 
give incorrect answers to, proper parliamentary inquiries which, if 
answered in good faith and in accordance with the expert advice of the 
Parliamentarian, would make clear that they are breaking the rules;
  Eventually, when their repeated rule-breaking is called into 
question, they will blatantly, and in dire violation of the norms and 
mutuality of the Senate, try to ignore the minority leader and other 
Senators who are seeking recognition to make lawful motions or pose 
legitimate inquiries or make proper objections.
  By this time, all pretense of comity, all sense of mutual respect and 
fairness, all of the normal courtesies that allow the Senate to proceed 
expeditiously on any business at all will have been destroyed by the 
pre-emptive Republican nuclear strike on the Senate floor.
  To accomplish their goal of using a bare majority vote to escape the 
rule requiring 60 votes to cut off debate, those participating in this 
charade will, even before the vote, already have terminated the normal 
functioning of the Senate. They will have broken the Senate compact of 
comity, and will have launched a preemptive nuclear war. The battle 
begins when the perpetrators openly, intentionally and repeatedly, 
break clear rules and precedents of the Senate, refuse to follow the 
advice of the Parliamentarian, and commit the unpardonable sin of 
refusing to recognize the minority leader.
  Their hollow defenses to all these points demonstrate the weakness of 
their case.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, how much time do I have?
  The PRESIDING OFFICER. The minority has 1 hour 50 minutes remaining.
  Mr. BYRD. I wonder how much time the minority will give to me?
  I shall proceed.
  Mr. President, today I wish to speak about the history of freedom of 
speech in the Senate, about the cloture rule which, when invoked, 
limits debate, a bit about the background here that might help all 
Senators if they care to read or listen, and the people out there who 
are listening, help them to understand a little more about what this is 
all about.
  It is a matter of very great interest to the country and to the 
Republicans and to Democrats and to independents, to people from all 
walks of life. It is in that spirit that I seek to talk just a little 
while about this subject which is of great concern. I hope to have more 
to say on another day, but today I will limit myself to talking about 
the background, what this is all about, and the history that brings us 
to where we are today.
  In recognition that the duty imposed on the President faithfully to 
execute the law requires persons sympathetic to his program, the Senate 
traditionally has given the President great leeway in choosing his 
policymaking subordinates, especially those in his Cabinet and those in 
sub-Cabinet positions. The Senate has more or less uniformly followed 
this practice, as a matter of grace and in the spirit of cooperation, 
to ensure that the executive branch functions as a team in implementing 
and enforcing the laws.
  What has been the fairly general practice with respect to the 
appointment of executive branch policymakers, however, has not always 
applied to judicial nominations, and the arguments to the contrary are 
at odds with the separation of powers doctrine, common sense and 
  The Constitution establishes a Supreme Court and gives Congress the 
power, in its discretion, to constitute inferior tribunals; nowhere in 
the blueprint of our Government is it hinted--is it even hinted; 
nowhere is it even hinted--that the high Court or any other Federal 
court is the President's court.

  Some may say, well, the President should have his own Cabinet. He 
should have his Cabinet. He should be able to choose his Cabinet. And 
there is considerable weight to be given to that point of view. But I 
do not think that any of us should maintain that the President is 
entitled to have his own court. That is the point.
  So nothing in the Constitution suggests that either the Justices or 
the judges should be the President's men. Let me say that again. 
Nothing in the Constitution suggests that either the Justices or judges 
should be the President's men or women, as it were. In fact, the 
Constitution refutes this notion by granting Federal judges lifetime 
tenure and by making their compensation inviolable.
  The men who met in Philadelphia in that hot summer of 1787 were 
practical statesmen. They were experienced in politics, statesmen who 
viewed the principle of separation of powers as a vital check against 
tyranny. And so I ask, can a rubber stamp be ``a vital check against 
tyranny''? If the Framers had intended the Senate simply to endorse the 
President's selections, the Senate could have been left out of the 
process altogether. Clearly, the men who met at Philadelphia, nearly 
219 years ago, had in mind a more substantive role for the Senate.
  The Senate has more than once flexed its political muscles to reject 
a Presidential nominee, including the rejection or withdrawal of 15 
Cabinet nominations and 26 Supreme Court nominations. Confirmation 
power is one of the major constitutional provisions that separates the 
Senate from

[[Page S5484]]

the other body, the House of Representatives. It has been the subject 
of numerous articles, books, novels, and even motion pictures.
  As early as Henry IV, who reigned from 1399 to 1413, English 
Parliaments effectively controlled the King's royal council and 
household. Several officials of Henry IV's household were dismissed at 
the insistence of the House of Commons. Both the household officials 
and the members of ``the great and continual council'' were named in 
  So I say to the distinguished Senator from Tennessee, who presently 
presides over the Senate, with a degree of aplomb and grace and dignity 
that is so rare as a day in June, that the Senate routinely debated 
nominations in closed session in the beginning.
  John Tyler was the first Vice President to become President on the 
death of the incumbent. Early in the Tyler administration, President 
Tyler broke with the Whig majority in the Senate, which thereafter 
frustrated his efforts to appoint his own supporters to office. Nothing 
in the Senate's history has ever, ever matched the spectacle that 
occurred on March 3, 1843, the last day of the Senate's session, when 
President Tyler came to the Capitol, just down the hall, to sign 
legislation and to submit last-minute nominations.
  Tyler nominated Caleb Cushing to be Secretary of the Treasury, not 
once, not twice, but three times that night. Are you listening? Three 
times. And each time, the Senate rejected Cushing by an even larger 
margin than before, the votes being, as recorded in the Senate 
Executive Journal, 19 for to 27 against, then 10 for to 27 against, and 
on the third time, 2 for Caleb Cushing and 29 against.
  Three times President Tyler named Henry A. Wise to be Minister to 
France--that same evening--and Wise, too, was thrice rejected.
  Senator Thomas Hart Benton reported that ``nominations and rejections 
flew backwards and forwards in a game of shuttlecock.'' In all--in 
all--the Senate turned down four of President Tyler's Cabinet nominees: 
in addition to Cushing, David Henshaw as Secretary of the Navy, James 
M. Porter as Secretary of War, and James S. Green as Secretary of the 
Treasury. And that ain't all. The Senate turned down four of President 
Tyler's nominees to the Supreme Court: John C. Spencer, Reuben H. 
Walworth, Edward King, and John M. Read. It is a record of rejection 
unmatched--unmatched--by any other President. What a spectacle.
  ``History,'' wrote the poet Byron, ``with all her volumes vast, hath 
but one page.'' Byron was saying there that history does repeat itself, 
so it only needs one page.
  We should do well, then, Mr. President, to look backward into the 
past where we shall find that due diligence by the Senate in fulfilling 
its ``advice and consent'' responsibility in the appointment process 
has been, in Hamilton's words, ``an efficacious source of stability'' 
in the Government of the Republic.
  Mr. President, in his Manual of Parliamentary Practice, Thomas 
Jefferson quoted ``Mr. Onslow, the ablest among the Speakers of the 
House of Commons,'' as follows. Here is what Mr. Onslow had to say:
       It was a maxim he had often heard when he was a young man, 
     from old and experienced Members--
like myself--

     that nothing tended more to throw power into the hands of 
     administration, and [into the hands of] those who acted with 
     the majority of the House of Commons, than a neglect of, or 
     departure from, the rules--

``the rules''--

     of proceeding; that these forms, as instituted by our 

yours and mine--

     operated as a check and control on the actions of the 
     majority, and that they were, in many instances, a shelter 
     and protection to the minority, against the attempts of 
  Now, Thomas Jefferson himself wrote that whether the rules of a 
legislative body:

     . . . be in all cases the most rational or not is really not 
     of so great importance. It is much more material that there 
     should be a rule to go by than what that rule is; that there 
     may be a uniformity of proceeding in business not subject to 
     the caprice of the Speaker or captiousness of the members. It 
     is very material that order, decency and regularity be 
     preserved in a dignified public body.

  Therefore, Mr. President, all legislative bodies need rules to follow 
if they are to transact business in an orderly fashion, and if they are 
to operate fairly--I have heard that word used a good bit here--
efficiently, and expeditiously.
  On April 7, 1789, the day after a quorum of Senators had appeared--so 
you see the Senate just goes back to April 6, 1789--a special committee 
was created to ``prepare a system of rules for conducting business.'' 
The committee consisted of Senators Oliver Ellsworth of Connecticut, 
Richard Henry Lee of Virginia, Caleb Strong of Massachusetts, William 
Maclay of Pennsylvania, and Richard Bassett of Delaware. All five of 
these committee members were lawyers. Each had served in his State 
legislature, the procedures of which were indebted to colonial and 
English experience. Two had served in the Continental Congress, which 
was also indebted to colonial and English precedents, and three had 
participated in the Constitutional Convention, whose members had 
created the Senate.
  Obstructive tactics--we have heard a lot about that lately--in a 
legislative forum, although not always known as filibusters, are of 
ancient origin. Plutarch reported that when Caesar returned to Rome 
after his sojourn in Spain, his arrival happened at the time of the 
election of consuls. ``He applied to the Senate for permission to stand 
candidate,'' but Cato--Cato the Younger--strongly opposed his request 
and ``attempted to prevent his success by gaining time; with which view 
he spun out the debate till it was too late to conclude anything that 
  The sun went down. That ended the debate.
  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.
  Now, in this country, I say to the Presiding Officer and the 
distinguished Senator from Tennessee and my other colleagues, 
experience with protracted debate began early. In the first session of 
the First Congress--that is going back quite a ways. I have only lived 
one-fourth of all the time that has transpired since that First 
Congress convened. But in the first session of the First Congress, for 
example, there was a lengthy discussion regarding the permanent site 
for the location for the capital. How about that. Fisher Ames, a Member 
of the House from Massachusetts, complained that ``the minority . . . 
make every exertion to . . . delay the business.'' That is what we are 
talking about. That sounds like a filibuster, doesn't it? Senator 
William Maclay of Pennsylvania complained that ``every endeavor was 
used to waste time.''
  That sounds like a filibuster, doesn't it? Well, long speeches and 
other obstructionist tactics were more characteristic of the House than 
of the Senate in the early years. So it started over there. But the 
House, on February 27, 1811, ``decided . . . that after previous 
question was decided in the affirmative, the main question should not 
be debated.'' So there you have it. They moved the previous question. 
That still is done in the other body. The practice of limiting debate 
dates back to 1604--my, that is over 400 years; that is 401 years--when 
Sir Henry Vane first introduced the idea in the British Parliament. 
Known in parliamentary procedure as the ``previous question,'' it is 
described in section XXXIV of Jefferson's Manual of Parliamentary 
Practice, as follows. Here is the way Thomas Jefferson explained the 
previous question:

       When any question is before the House, any Member may move 
     a previous question . . . --

  That is the way it is done over in the House, Mr. President: Mr. 
Speaker, I move the previous question--
     whether that question (called the main question) shall now be 

  Mr. Speaker, they say in the House: I move the previous question.
  Jefferson went on to say:

       If it pass in the affirmative, then the main question to be 
     put immediately, and no man may speak anything further to it, 
     either to add or alter.

  That is Thomas Jefferson speaking through his writing. The journals 
of the Continental Congress record that the previous question was used 
in 1778. Get that. This is the Continental Congress. When did it first 
meet? It first

[[Page S5485]]

met in 1774, the First Continental Congress. So the journals of the 
Continental Congress record that the previous question was used in 
1778. Section 10 of the rules of the Continental Congress read:

       While a question is before the House, no motion shall be 
     received, unless for an amendment, for the previous question, 
     to postpone the consideration of the main question, or to 
     commit to.

  The rules adopted by the Senate in April 1789 included a motion for 
the previous question. According to historian George H. Haynes, when 
Vice President Aaron Burr delivered his farewell address to the Senate 
in March 1805--200 years ago--he, Aaron Burr, the Vice President of the 
United States, ``recommended the discarding of the previous question,'' 
because in the preceding 4 years during which he had presided over the 
Senate, it had ``been taken but once, and then upon an amendment.''
  So, Mr. President, I say to the Senator from Tennessee, who is 
presiding, and other Senators, when the rules of the Senate were 
codified in 1806--that was the first revision of the rules, in 1806--
reference to the previous question was omitted. The previous question 
allowed the Senate to terminate debate: Mr. President, I move the 
previous question. Or in the House: Mr. Speaker, I move the previous 
question. If that gained a majority, no further debate. The previous 
question will be voted on.
  In 1806, when the rules of the Senate were first codified, reference 
to the previous question was omitted. Since then it had only been used 
10 times from the years 1789 to 1806, and it has never--it has never, 
it has never--been restored.
  Henry Clay, in 1841, proposed the introduction of the previous 
question. Here we have Henry Clay proposing that they bring back the 
previous question. But he abandoned the idea in the face of opposition. 
Those Senators did not want the previous question. They did not want to 
terminate debate. They wanted freedom of speech.
  When the Oregon bill was being considered in 1846, a unanimous 
consent agreement was used as a way to limit debate by setting a date 
for a vote.
  When Senator Stephen Douglas proposed permitting the use of the 
previous question in 1850, the idea encountered substantial opposition 
and was dropped--dropped, dropped. They did not want the previous 
question. They did not want to terminate debate. They wanted to be able 
to speak on and on and on. A filibuster? Well, perhaps.
  An effort to reinstitute the previous question on March 19, 1873, 
failed by a vote of 25 for to 30 against.
  The final impetus for a cloture rule came as a result of a 1917 
filibuster, one of the most famous in the Senate annals--against an 
administration measure permitting the arming of American merchant 
vessels for the duration of the World War. I believe that was 1915.
  On February 26, President Wilson--I was born during one of the 
administrations of Woodrow Wilson--President Wilson appeared before a 
joint session of Congress to request legislation authorizing the arming 
of merchant ships. The President announced that the rules of the Senate 
would have to be revised--now get this--the rules of the Senate would 
have to be revised before he would call a special session of the entire 
Congress to deal with the war emergency. And so, Mr. President, the 
fate of the unlimited debate was sealed.
  The principal responsibility for the cloture resolution rested with 
the new Democratic majority leader, Thomas Martin of Virginia. Under 
his guidance, a bipartisan committee of the Senate's leaders drew up a 
proposal providing that a vote--get this--by two-thirds of those 
present and voting could invoke cloture on a pending measure. Two-
thirds of those present and voting.
  By a vote of 76 to 3 on March 8, 1917, after only 6 hours of debate, 
the Senate adopted its first cloture rule. Mr. President, 1917, that 
was the year in which I was born.
  In 1949 now, President Harry S. Truman sought to clear the way for a 
broad civil rights program, and his first step was to push for 
liberalization of the cloture rule. His efforts produced a bitter 
battle at the beginning of the 81st Congress.
  The Senate adopted a compromise measure that proved to be less usable 
than the one it replaced. It required that two-thirds of this entire 
Senate vote for cloture rather than two-thirds of those present and 
voting. That was 1949. The new rule differed from the old in that it 
allowed cloture to operate on any pending business or motion, with the 
exception of debate on rules change. This meant that future efforts to 
change the cloture rule would themselves be subject to extended debate 
without benefit of the cloture provision.
  Now we are getting down into my time. At the beginning of the 86th 
Congress--I came to Congress during the 83rd Congress when Harry Truman 
was getting close to the end of his tenure--at the beginning of the 
86th Congress, Senate majority leader, Lyndon B. Johnson, offered and 
the Senate adopted by a 72-to-22 rollcall vote, a resolution to amend 
Senate rule XXII. Approved on January 12, 1959, after 4 days of debate, 
the resolution permitted two-thirds of the Senators present and 
voting--going back to the very beginning of the cloture rule--two-
thirds of the Senators present and voting to close debate, even on 
proposals for rules change. It also added to rule XXII:

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

  These rules, these rules in this book, the ``Senate Manual.''
  On February 28, 1975, I submitted a resolution providing that debate 
in the Senate be closed by a vote of three-fifths of the Senators duly 
chosen and sworn, except in the case of a measure or motion to change 
the rules of the Senate, when a two-thirds vote of Senators present and 
voting would be required to close debate.
  On March 7, 1975, the Senate adopted my substitute providing that 
three-fifths of all Senators chosen and sworn could invoke cloture. 
This provision applied to all measures except those amending the rules 
of the Senate which still required a two-thirds vote of Senators 
present and voting.
  Four years later on February 22, 1979, the Senate agreed to a 
resolution that I submitted establishing a cap of 100 hours of 
consideration once cloture had been invoked on a measure.
  Under my resolution, each Senator would be entitled to 1 hour of 
time. Senators could yield their time to the majority or minority floor 
managers of the bill or to the majority or minority leaders. Except by 
unanimous consent, none of the designated four Senators could have more 
than 2 additional hours yielded to him or to her. These Senators in 
turn could yield their time to other Senators. If all available time 
expired, a Senator who had not yielded time and who had not yet spoken 
on the matter on which cloture had been invoked could be recognized for 
10 minutes for the sole purpose of debate.
  The 1979 resolution made in order only those first-degree amendments 
submitted by 1 p.m. the day following submission of a cloture motion, 
with second-degree amendments in order only if submitted in writing 1 
hour prior to the beginning of the cloture vote.
  The substitute amendment contained the current overall limitation of 
30 hours of consideration after cloture has been invoked.
  So that brings us up to the present day rules with reference to 
debate and limitation of debate in the Senate, the current cloture 
rule. That puts us where we are now, and I thought it would be well 
just to review briefly the history of unlimited debate in the Senate 
and then the cloture rule limiting debate--the cloture rule as 
initially adopted requiring two-thirds of those present and voting; and 
then in 1949, two-thirds of those elected and sworn; and then again in 
1975, two-thirds of those Members present and voting, that is where we 
are--so that we might have this basis for a better understanding of 
where we go from here.
  I thank you, Mr. President. I thank all Senators, and I yield the 
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Massachusetts.
  Mr. KERRY. Mr. President, I thank the Chair, and I thank the 
distinguished Senator from West Virginia for his extraordinary analysis 
and understanding of the Constitution which he has constantly been the 
keeper of in the Senate.

[[Page S5486]]

  We are in a remarkable moment of confrontation. This is a great 
institution, or at least it always has been, and it is looked up to by 
people all over the world. Caught up as we are now in this moment of 
partisan ideological division of a raw reach for power, the Congress 
itself is daily dropping in its regard by the American people. Rather 
than reaching across the aisle to grapple with the real crises that 
face our Nation, the Republican leadership keeps moving unilaterally to 
change the way this institution has worked, and not for the better.
  Those of us who have had the privilege of being here for some period 
of time--I have been here for 22 years; Senator Byrd has been here 
almost 50; Senator Kennedy, Senator Stevens, and others have also 
served for a significant period of time--but brief as my stay has been, 
I find myself now I think No. 18 in seniority, which means 82 Senators 
have come and gone during the time I have been here. I have had a 
chance to know many of them going back to the time of Barry Goldwater, 
John Stennis, Russell Long, and others. Never in that whole period of 
time I have served have I ever seen this institution behaving the way 
it does today.
  Colleagues who came to do the same good as colleagues on the other 
side of the aisle, locked out of conference committees, hearings that 
do not take place when they ought to; oversight that does not occur as 
it used to. This institution is being damaged daily by the 
partisanship, the bitter ideological divide that is preventing good 
people on both sides of the aisle from doing good business for the 
American people; from finding real solutions to the real problems of 
real concern to average families all across our country, who cannot pay 
their health care bills, who are losing jobs abroad, who worry about 
the twin deficits of the budget of our country and of our trade; who 
see extraordinary threats to community as kids do not get the education 
they ought to. All this time we have been spending weeks, if not 
months, caught up discussing a nuclear option, discussing a few judges 
out of the two hundred, 208 or so, who have been nominated and approved 
by this President.
  The Senate is now watching this struggle take place, countless hours 
consumed by an effort to change the rules by breaking the rules. If my 
colleagues want to change the rules, use the rules to change the rules. 
Do not subvert the system. Do not play a cute parliamentary game that 
has been untouched over 200 years.
  This is a stunning moment. The problem is that words spoken in this 
Chamber do not even fully convey the importance of this moment. This 
is, in fact, one of those times the Founding Fathers and countless 
other statesmen of history have warned us against.
  Henry Clay said: The arts of power and its minions are the same in 
all countries and in all ages. It marks its victim, denounces it and 
excites the public odium and the public hatred to conceal its own 
abuses and encroachments.
  James Madison said: Where the whole power of one department is 
exercised by the same hands which possess the whole power of another 
department, the fundamental principles of a free constitution are 
subverted. . . . The accumulation of all powers, legislative, executive 
and judiciary, in the same hands, whether of one, a few or many, and 
whether hereditary, self-appointed or elective, may justly be 
pronounced the very definition of tyranny.
  What we are going to see if this happens is the judiciary of the 
United States entirely put into the hands of the Presidency, period. 
The advice and consent will be wiped out, barring displays of courage 
that we have not seen recently, because people will come, as they did 
in our committee most recently, to say, well, we just had an election 
and the President won and the President has the right to his 
appointments, that is it, end of issue. Gone, the divisions; gone, the 
test; gone, the judgment we were supposed to apply as a separate and 
coequal branch of Government.
  That is what the Founding Fathers wrote. They did not give the 
President the ability to have whoever that President wants. That is 
what is written into the Constitution, that every single one of us went 
to the well of this body and raised our hands and swore to uphold.
  We did not swear to uphold the majority leader. We did not swear to 
uphold the President. We did not swear to uphold our party. We swore to 
uphold the Constitution of the United States, and that is our duty.
  Lord Acton said it maybe best: All power corrupts. Absolute power 
corrupts absolutely.
  Thomas Jefferson said: I hope our wisdom will grow with our power and 
teach us that the less we use our power the greater it will be.
  If my colleagues want to use the power of ending a filibuster, just 
have the filibuster for week after week and let people stand up and 
make their arguments. If the arguments have no currency, believe me, 
between the press, public opinion, the bloggers, and C-SPAN, this 
country will rise up and they will get their 60 votes if they deserve 
them. That is an up-or-down vote of its own kind.
  If it were compelling enough, as it was with the Civil Rights Act, or 
compelling enough as it has been in other great confrontations in this 
body, we have always found our way to make it happen. We have always 
done it without the rules. We are a Nation that has listened to some 
remarkable men and women in remarkable debates about how we as a Nation 
are different in balancing power and protecting the people and the 
institutions that we set up to protect the people. We are not here as 
an institution to protect an ideology. We are not here as an 
institution to protect a party. We are here to protect collectively the 
Government of the United States of America that is made up of those 
brilliant words that were fought over so diligently and remarkably in 
Philadelphia and which have served us so well all of these years.
  Now all of a sudden in 2005, feeling the flush of victory in an 
election that was close, controlling two branches of Government, 
elected officials, people who serve at the grace of that Constitution 
for a brief period of time, at the sufferance of the people who vote 
for us, those people are choosing to serve the moment, not to serve 
history, not to serve precedent, not to serve common sense, not to 
serve even the real interests of the American people, but to serve a 
narrowly defined, elected, official, leadership-determined, ideological 
  I believe the real interests of Americans are best served by 
remembering that the greatest strength and the greatest virtue of our 
democracy is not that it gives power to the majority, which is easy to 
exercise, easy to understand, easy to abuse; the great virtue of the 
American system of Government and of our democracy is the protection it 
provides to the minority. That is what is special about America. That 
is what makes us different from everybody else. That is what lives are 
being lost for, to tell people in Iraq and Afghanistan, this is what 
you ought to embrace--the full measure of democracy, not some limited 
tricky little measure where, in the flush of victory, you change the 

  What would we say about this if it was another country that we had 
helped to be the country they are, embracing our democracy, but they 
started to play those kinds of games and there was suddenly an abuse of 
rules that had been set up that everybody understood were there to make 
the democracy work effectively?
  It is precisely the protection of the minority that makes our 
democracy so respected and so awesome to people all over this planet.
  This is a dangerous time for our democracy. What is at stake here is 
something far greater than the confirmation of a few judges. Let there 
be no doubt that line was drawn clearly here this morning because the 
deputy leader offered to have four judges confirmed. We could have 
confirmed four judges right here, today, this morning.
  No, no, no. This is a division. This is a moment of confrontation 
being sought by the leadership on the other side of the aisle. What is 
at stake is something far greater than any of the individual judges. It 
is defined by the refusal to accept the offer to do those judges today. 
We could have gotten the President's percentage up from 95 to whatever, 
98 percent. But, no, we do not want that. That will change the focus.
  No matter how much time is spent on the life story of Priscilla Owen, 
we all

[[Page S5487]]

know the choice of this particular judgeship and of just staying on 
this judgeship and not trying to have other judgeships represents, in 
fact, a choice. It is a smokescreen for what this fight is really all 
about. It is not about these few judges. We could have confirmed those 
judges. But the Republican leadership is fundamentally determined to 
deny the minority the right to hold the Executive accountable for such 
judgments as we might make about the lifetime appointment of those 
  I heard both sides out here. Some Members of our side did call for 
up-or-down votes when that was the argument that best served them. But, 
guess what, when they didn't get it, they didn't call for a change in 
the rules, and they did not try to break the rules to change the rules. 
They used their best argument, but they respected the institution.
  That is not what is happening today. So we can forget about who said 
what when. The real fight is about the Senate. The real fight is about 
the Constitution. The real fight is about who we are and what kind of 
country we are going to be and how we behave and what kind of example 
we set to young kids in school today who read the history books and 
dream someday of being a Senator and perhaps joining the world's 
greatest deliberative body.
  This is about George Bush and Karl Rove and the Republican leadership 
and their quest for absolute control over who goes to the Supreme Court 
and to the judgeships across this country. This is about carrying, 
beyond this branch of Government, power into another branch of 
Government that is supposed to be separate. This is about the 
gratification of immediate ideological goals and the pursuit of power, 
regardless of the long-term consequences to the Senate, the Congress, 
or the Constitution of the country. To get what they want, the 
leadership has acquiesced to outside forces. Not even the precedents 
and history and quality of this institution are guiding them. It is an 
outside hand.
  As John Danforth, with whom many of us had the privilege of serving 
here, a greatly respected former Republican Senator--he was George 
Bush's choice as a special envoy to Darfur. He was George Bush's choice 
to go to the United Nations. He is, above all, as all of us know, a man 
of enormous faith, a respected minister, and a leader in his church. 
Here is what he wrote a few weeks ago:

       The problem is not with people or churches that are 
     politically active. It is with a party that has gone so far 
     in adopting a sectarian agenda that it has become the 
     political extension of a religious movement.

  So spoke Senator John Danforth, Republican.
  Yet, despite Senator Danforth's warning, most of my colleagues stay 
right on script in this fight for history, this fight for principle, 
and this fight for rights. On script, they allow our cherished 
principles to be abused and glossed over as the debate sort of develops 
or drops down into a competition of hollow sound bites. But script and 
sound bite are not what should dictate what happens here, not in the 
Senate. Conscience and principle ought to dictate what happens here. 
There have to be Senators prepared to stand up and do their duty as 
U.S. Senators, not Senators of their party.
  My distinguished colleague, Senator Voinovich, recently showed 
courage in the Foreign Relations Committee when he suddenly stopped the 
proceedings of the committee and he said: I am not comfortable with 
what is happening here. My conscience tells me we ought to stop and 
take a better look.
  Guess what happened. He was vilified on talk radio and in certain 
partisan circles for having gone off script.
  Senator Chafee of Rhode Island, 4 years here, stands up and says: 
Wow, that is the first time in 4 years I have ever seen anybody do 
  What? The first time in 4 years a Senator saw another Senator stop 
and think for himself and exercise conscience and go off script? What 
kind of statement is that about what has happened here? It is not 
controversial, my friends. It is a sad statement about the Senate, and 
it underscores what is happening here now.
  Independence and conscience and principle are really what is at stake 
here, the independence of the Senate, the independence of the judiciary 
from an administration that is just hell-bent for leather determined to 
get its way. Heavens knows what leverage will be exerted in these next 
hours as we see so much on the table, with military bases closing and 
other issues--who knows? Independence of the Senate, a special 
institution in our Government, a place where things purposefully slow 
down, where they find their balance--that is what the Senate was 
created for.

  It is surprising and disturbing that members of the Republican 
leadership know what is at stake, but they have actually worked with 
the Republican administration to spreads things that aren't true. I 
don't know what happened to truth around here. I don't know what 
happened to truth in the discussion of great issues before this 
  But the truth is, in the end, none of the constitutional issues that 
have been put forward--and today's Republican leadership--none of them 
stand up. They do not stand scrutiny. They are hollow, tortured, poll-
tested statements. The whole argument about the Constitution and up-or-
down votes or ``unprecedented''--the word ``unprecedented'' has been 
used. They sound good, but they are not true, and we know it. Yet 
Senators continue to fall in line, turning out the script, turning out 
the phases that have to be repeated. It is not a true representation of 
the Constitution, of history, or the rights of Senators.
  Personally, I believe there would be a lot more outrage in the Nation 
and in the media if the value of truth had not been so diminished over 
the last years. We have a budget that comes trillions of dollars short 
of counting every dollar we plan to spend, but, oh no, there is no 
accountability. We have a budget that doesn't even count the interest 
on the debt. Find me an accountant in a business in America who doesn't 
put the interest on the debt that they owe in the accounting, and they 
would be fired. We do not do it. No accountability.
  We have had a Medicare actuary who was forced at risk of losing his 
job to lie about what the costs would be of a prescription drug bill 
and lie to the Congress. No accountability. We have had falsified 
numbers in Iraq, on everything from the cost of the war to the number 
of troops that have been trained to the slam dunk on intelligence--no 
accountability. We have an administration that continues to want to 
fund fake newscasts paid for by the American people, without 
disclaimer, and mislead people across America.
  In fact, the administration's willingness to consistently abandon the 
truth I think has done great damage to the American people's 
willingness to believe anything any of us say. They are less willing to 
listen. They are less willing to trust or take anything said seriously.
  Now we find ourselves in a struggle between a great political 
tradition in the United States that seeks to find the common ground, do 
the common good, and we have a new ethic on any given issue, where any 
means justifies the ends of victory no matter what. It is a new view 
that says, if you don't like the facts, just change them. If you can't 
win by playing by the rules, just rewrite them. Witness what happened 
with Tom DeLay.  The new view says if you can't win a debate on the 
strength of your arguments, then go ahead and demonize your opponents 
regardless of whether it is true. The new view says it is okay to 
ignore the overwhelming public interest as long as you can get away 
with it.

  This time the Republican leadership has gone the farthest to get away 
with it, hoping to convince Americans that by breaking the Senate 
rules, they are actually acting to defend the Constitution, honor the 
words of our Founding Fathers, and avert a judicial crisis.
  This debate is not fueled by an effort to protect the Constitution. 
It is fueled by ideology. It is not fueled by a shortage of judges on 
the bench because, as the ranking member of the Judiciary Committee has 
made clear, we have the best record of appointing them and the lowest 
vacancies in years.
  The facts have been repeatedly cleared up, again and again, and 
repeatedly they are brushed aside with the old adage that if you throw 
enough mud and you repeat something that is not true enough, enough 
people may come to believe it. Over 95 percent of all judges already 
approved. I have been here since 1985 and I have probably voted for a 
thousand judges. I

[[Page S5488]]

have not counted them all. For Ronald Reagan, for George Herbert Walker 
Bush, for President George Bush. What have we got? Ten who have not 
been confirmed?
  The Bush administration and their allies in Congress hope to get away 
with this by selling words to the public on a ``team'' the public would 
never buy if there was a referee who put real facts in front of the 
American people. Unfortunately, words with great meaning--Constitution, 
Founding Fathers, history, precedent--all of these are being twisted 
and cheated of their full meaning and of their full import in the 
  In the end, the American people are being underestimated by this 
administration. They may work their will here; I don't know yet. We do 
not know. Certainly they have a lot of cards to play. But in the end, 
Americans value the Constitution, and over time this will be felt. In 
the end, Americans understand that the strength of our democracy is 
best judged by the enduring strength of our minority and its ability to 
be heard. And Americans cherish the ability of the minority to be 
  When Americans first heard the term ``nuclear option,'' they kind of 
recoiled--appropriately. They were confident that dismantling the 
filibuster and silencing the minority would have as catastrophic an 
effect on our democracy as a nuclear blast would on our security. But 
the majority's action was not to back off and to say, okay, we will 
play by the rules. The majority's reaction was to change the slogan. So 
in an act of transparent hypocrisy, the minority changed the slogan 
from ``nuclear option'' to ``constitutional option.'' George Orwell 
would be pleased. They embarked on a series of hollow arguments based 
on mythical constitutional provisions confident that if you just say 
it, somebody will believe it.
  You can change the slogan, but you cannot change the fact that 
diminishing the rights of the minority diminishes the spirit and the 
substance of our Constitution and the foundation of our Government. 
Argument after argument put forward by the Bush Republican leadership 
is just plain false. False. I have heard it argued that our 
Constitution mandates specific protocol of voting for judges. No. They 
have used their new catchphrase, up-or-down votes, hundreds of times in 
recent days. But those words do not appear once in our Constitution. 
They are not even subliminally in the Constitution in the advice and 
consent and separateness of power given to the Senate and the right of 
the Senate to make its own rules.
  No one should be fooled. Those phrases do not mean constitutional. 
They do not mean democratic. They do not mean fair. They are phrases 
that are code for dissent-proof, minority-proof, and filibuster-proof. 
There is nothing in our Constitution or our history to suggest that the 
nominee of any President is so special as to be excused from the 
scrutiny of the minority or granted immunity from the tools of 
democracy that protect that minority.

  I didn't win, but I can guarantee this: Had I been President, I would 
not have contemplated supporting or sending a request to change what I 
have viewed as something of value in the entire time I have been here 
in the Senate. Never would have occurred to me. It would have occurred 
to me to send people up here who could win the support of people on 
both sides. It would have occurred to me to bring the members of the 
Judiciary Committee together and sit them down and work together to 
come to a common understanding of what sort of standard we ought to 
apply and let the American people share that standard.
  There is nothing in our Constitution or in history to suggest the 
President ought to be granted immunity from the tools of democracy. And 
that is what will happen.
  My colleagues are well aware that the power of advice and consent is 
granted to the Senate and the Constitution says absolutely nothing 
about how the Senate will proceed to provide advice and consent. And 
the words advice and consent are there in their duality because advice 
is one thing and consent is another. You can withhold your consent or 
you can give your consent. You can say yes, or you can say nothing if 
you do not vote. And if you do not vote, you have withheld your 
  It didn't take long before the new Congress exercised its 
constitutional powers in 1795. Senators who were friends and colleagues 
of the Founders themselves, who surely knew their intent, turned around 
and defeated George Washington's nomination of George Rutledge to be 
the Chief Justice of the Supreme Court. In 1968, Republican Senator 
Robert Griffin captured the spirit of that event when he said:

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

  The Constitution did not mandate a rubberstamp for George Washington 
and the Constitution doesn't mandate a rubberstamp for George Bush 
  In 1795, the rejection of Washington's nominee was heralded as the 
Constitution working, not failing. There is no doubt that an active, 
coequal partnership was intended. That resounding rejection of George 
Washington, our revolutionary leader, helped to seal the death of the 
monarchy in this country.
  The genius of empowering the Senate and the minority was that by 
limiting the executive, the Senate legitimized the executive. So when I 
hear my colleagues come to the Senate arguing that the Constitution 
mandates the will of the majority always trumps the minority, I don't 
hear the wisdom of our Founding Fathers. I don't see or hear a respect 
for what happened in 1795. I don't hear the same blind activism that 
characterizes the judges they intend to enforce on the Federal bench. 
The actions of some Senators, in fact, today come closer to rewriting 
the Constitution than defending it.
  Another argument we have heard is that the filibuster itself is 
unconstitutional. That has been made. That argument is deeply flawed. 
The Constitution in Article I, section 5 granted each house the power 
to ``determine the rules of its proceedings.'' That is the Constitution 
of the United States.
  Every Senator went down there, raised his or her hand, and swore to 
defend the Constitution. And the Constitution says we have the power to 
determine our rules and we have a rule by which we determine the rules, 
and the current rule says you have to have a supermajority to change 
the rules. But, no, in the flush of victory, in a moment of ideological 
excess, people are going to come in and change the rule by breaking the 
rule of the Senate that the Constitution itself enshrines. Shame. That 
is a disgrace to the oath and a disgrace to the history and a disgrace 
to what this institution stands for and to the quality of our democracy 
that we export at the lives of young Americans abroad. It is wrong, 
fundamentally wrong.

  Over the past 200 years, our predecessors in the Senate have taken 
the role of ``consent'' very seriously. They have created time-tested 
rules to assure the rights of the minorities and to balance the power 
of government. With a hold, a so-called hold, a single Senator can 
delay a Presidential nominee. A single committee chairman can block a 
nomination by simply refusing to hold hearings.
  I saw Senator Helms do that any number of times. I tried to get a 
hearing. We tried to get the possibility of a Governor of the United 
States of America, the Governor of Massachusetts, Bill Weld, nominated 
to be the Ambassador to go to Mexico. Senator Helms: no hearing. 
Wouldn't hear of it. It could not happen. Nomination killed.
  What is this game that is being played back and forth about who said 
what, when? We all know how this place has worked all these years. 
These rules were not created by the Democratic Party when George Bush 
was elected President. The filibuster was used as early as 1790 by 
Senators from Virginia and South Carolina who filibustered against a 
bill to locate the first Congress in Philadelphia. That was a 
filibuster of one because in 1790, as Senator Byrd has pointed out, you 
needed unanimous consent to end the debate. They did change that rule, 
but they changed that rule by using the rules of the Senate, not by 
breaking them.

[[Page S5489]]

  Think about it. Those legislators and friends and even the Founders 
themselves permitted a filibuster of one. Knowing that, today's 
activist arguments buckle under the weight of history. The unfortunate 
truth is that some Senators have now fashioned themselves as activist 
legal scholars using a false reading of the Constitution to paint their 
opponents as obstructionists while pursuing their political agenda at 
the expense of our democracy.
  I think some of my colleagues forget that the Senate was designed 
specifically to be the moderating check on a President. And guess what. 
We have done unbelievably well as a nation these 200 years. We are the 
envy of people all across this planet. There is not one of us whose 
heart does not fill with pride, who is not astounded at what we can do 
and have done, and what we can achieve in America, and the stories of 
individual Senators in this Chamber who have risen from adverse 
circumstances, and nothing, to be able to represent people in their 
States. It is a stunning story. It is a story based on that respect for 
the law and based on the mutual respect that has always guided this 
great institution. I think some of my colleagues have lost track of 
  My colleagues also forget, as they demonize the filibuster, it has 
been a force for the good. Farmers don't forget that. There are a lot 
of farmers in the Midwest in our country. They don't forget when 
Senators from rural States used the filibuster to force Congress to 
respond to a crisis that left thousands of farmers on the brink of 
bankruptcy in 1985. The big oil companies don't forget it. That don't 
forget when Senators used the filibuster to defeat massive tax 
giveaways that they were lobbying for in 1981. And I don't forget it, 
when, 10 years ago, I came to the floor and filibustered to prevent a 
bill that would have gutted public health and safety and consumer and 
environmental protections. That bill never passed, and we know the 
country is better for it.
  Some Senators come to the floor with a practical argument about our 
courts. They claim that because we have not rubberstamped each and 
every one of George Bush's nominees, the Nation faces a crisis because 
of a shortage of judges on the bench. It is not true. How can you keep 
coming to the floor of the Senate saying things that are just plain not 
  Over 95 percent of the President's nominees have been confirmed. Our 
courts today have the lowest vacancy rate they have had in years. 
Enough of that argument.
  What is threatened is a delicately balanced system that for 214 years 
successfully prevented the Executive from usurping power that was 
granted in good faith by the American people. And that threat manifests 
itself in this nuclear option that threatens the character, the core of 
this institution.
  The integrity of this Senate is threatened when the majority attempts 
to change the rules by breaking the rules. The balance of power is 
threatened when the power of advice and consent is gutted. It will be 
gone. Whatever nominees they want will be confirmed, unless you happen 
to find a few people who will stand up to the pressure exerted on their 
States' need or their reelection need or the other needs that the 
Founding Fathers wanted to protect Senators against.
  Our democracy is threatened when we set the dangerous precedent that 
minority rights will be silenced at the convenience of the majority. I 
believe our courts and the justice this rule is meant to deliver are 
threatened, in the end, by some of these judges who have been 
  As I said, that is not what this is fundamentally, in the end, about. 
It is about getting everything you want when you want it.
  I will wrap up in a moment, Mr. President.
  Some of my colleagues have argued that Democrats filibuster these 
judges because we simply dislike them or disagree on ideology or 
policy. Well, there may be some disagreement on things they have said 
or the way they have approached their courts. We saw what Attorney 
General Gonzales has said about Priscilla Owen, that her dissent in In 
re Jane Doe was an ``unconscionable act of judicial activism.'' But the 
point is, we have confirmed countless judges with whom we disagree on 
countless issues. If we have confirmed over 200 judges of the President 
of the United States, you know we do not agree with them on many of the 
issues that they brought to the bench, but they brought a fundamental 
fairness or they brought a record that we did not believe ought to be 
  I think we have shown our good faith on the approach to the 
confirmation of judges. We have confirmed countless judges because we 
believed they were impartial and responsible arbiters of the law. It is 
an activist judge, it is a judge with a particular--many of the 
arguments have been made; I am not going to go through them now--but 
those arguments have been eloquently made with specificity as to these 
few judges. It is judges who want to rewrite our laws from the bench 
whom we believe are unqualified for a lifetime appointment. And we 
stand against them, Mr. President, not as a threat to the Constitution, 
but in defense of the Constitution.

  We have also been accused of unprecedented acts with respect to these 
nominations. Well, I am not going to go back into all that history. A 
lot of my colleagues have talked about it in the last days. But you 
just cannot come out here with a straight face, on either side--both 
sides have engaged in delaying some nominees--many of them were not 
even allowed out of the committee when President Clinton was in. Waited 
years; never got out. That does not make it all right, but it is the 
way it works as we fight this process of finding people who meet the 
consensus of the Senate.
  Did you hear the minority then hide behind a mythical constitutional 
value? No. Did you hear the minority stand up and assert a 
constitutional violation or the rules of the Senate ought to be 
changed? No. The majority leader himself has voted to filibuster a 
nominee. It does not matter whether it is 1, 2, or 10 filibusters, a 
filibuster is a filibuster.
  President Johnson's nominee to be Chief Justice of the Supreme Court, 
Abe Fortas, was defeated with a filibuster.
  Tennessee Republican Howard Baker articulated the minority's position 

       The majority is not always right all of the time. And it is 
     clear and predictable that the people of America, in their 
     compassionate wisdom, require the protection of the rights of 
     the minority as well as the implementation of the will of the 

  Throughout our history, Presidents and majorities have always had to 
govern a nation where minority rights are protected. Until this day, 
Presidents of the majority have respected that tradition. They were 
humbled by it. They were inspired by it, by the lessons of history that 
colleagues seem to have forgotten today.
  In 1937, President Roosevelt attempted to court pack and assert his 
influence. His own party said no. Thomas Jefferson once attempted to 
impeach a Supreme Court Justice who disagreed with his political 
agenda. His own party said no.
  When my colleagues complain of lack of precedent, remember those 
precedents. They were fair, and they were just. They respected the 
Constitution and they defended the judiciary. Our predecessors stood up 
to their own party leaders because they valued the real strength of our 
democracy more than the short-term success of a political agenda of the 
moment. And the question for all of us here is: Are we going to live up 
to that test?
  Recent predecessors of Senate Republicans have repeatedly urged 
respect for this--their own party Members, Members of the Republican 
Party, people of extraordinary respect and even reverence. Former 
Republican Majority Leader Howard Baker said, destroying the right to 
the filibuster:

     would topple one of the pillars of American democracy, the 
     protection of minority rights from majority rule.

  Former Senator Chuck Mathias said:

       The Senate is not a parliamentary speedway, nor should it 

  Former Republican Senator Bill Armstrong said:

       Having served in the majority and in the minority, I know 
     it's worthwhile to have the minority empowered. As a 
     conservative, I think there is a value to having a constraint 
     on the majority.

  My colleagues should defend their judges, but do it without tearing 

[[Page S5490]]

the Constitution and our Founding Fathers, or destroying the rules and 
character of this great institution. Defend your judges without ceding 
dangerous and corruptive levels of power to the executive branch of 
Government. Defend your judges without erasing 214 years of wisdom and 
sacrifice that raised this Nation from tyranny and chaos and spread 
freedom across the globe. Our Founding Fathers would shudder to see how 
easily forces from outside of the mainstream now seem to effortlessly 
push people toward conduct the American people don't want for their 
elected leaders, abusing power, inserting the Government into our 
private lives, injecting religion into debates on public policy, 
jumping through hoops to ingratiate themselves to their party base, 
while step by step and day by day real problems that keep American 
families up at night fall by the wayside in Washington.
  Congress and our democracy itself are being tested this week and next 
and will be tested in this vote. We each have to ask ourselves 
individually, as a matter of conscience, what are we prepared to do? I 
have attended the Senate prayer breakfast with colleagues here. I know 
this is a place of great faith and a place of real concern. I ask my 
colleagues to look into their souls and ask themselves, is this the 
right thing to be doing for the long-term interests of our Nation?
  For those in this Chamber who have reservations about the choices 
their leadership has made and worry about the possible repercussions on 
our Constitution and democracy, stop over the weekend and look at 
history and find the courage to do what is right. History has always 
remembered and found a place for those who are courageous, and it will 
remember the courageous few who live up to their responsibility now and 
speak truth to power when the Senate is tested, so that power doesn't 
go unchecked.
  The Senate and the country need Senators of courage who are prepared 
to make their mark on history by standing with past profiles in courage 
and defending not party, not partisanship, but defending principle, 
defending the Constitution, and defending democracy itself.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. LAUTENBERG. Mr. President, when I first came to the Senate, our 
Nation was engaged in the Cold War with the Soviet Union. But now, 22 
years later, this Senate is experiencing its own cold war. It is a cold 
war across the aisle that separates the two parties, and it has 
escalated with the threat of this nuclear option.
  As the name suggests, the result of this threat is nuclear, but in 
many ways it is also a timebomb. It is a timebomb because, while the 
action will be visible now, it will do irreparable damage to the future 
of this country.
  Its potential effects on the operations of the United States are well 
known. But here I want to address my comments to the American people 
because they are going to pay the price for the change if it takes 
place here. The majority leader insists on breaking the rules in order 
to give several people, some of whom deserve far greater review, 
lifetime appointments as high-ranking Federal judges. They could be on 
the bench for 30 or 40 years, and they will make decisions about your 
lives, your families, your rights, and the future of your children. 
They will make decisions about our lives, such as: Will clean air rules 
be enforced against polluters. I hope so. I would like to know my 
grandchildren can breathe the air and not be harmed by it. I have one 
grandchild who is asthmatic. My daughter, when he goes to play a game 
or engage in a sport, always checks to see where the nearest emergency 
clinic is.
  So do we want to leave our kids with air that is polluted, with 
drinking water that is contaminated? Will we have health care? Will we 
still have strong constitutional rights? That is what this is about. We 
got lost in how long the filibuster rule has been in effect and how 
devastating it will be on the process. But it goes much deeper than 
that. These are critical questions, and these are the judges who will 
be answering those questions. They might even one day be asked to help 
elect a President.
  When I was a soldier 60 years ago and we dropped the earliest version 
of the nuclear bomb, called the atom bomb, we celebrated. We knew we 
could save thousands of Americans from dying in the fight to vanquish 
our then enemy, Japan.
  With this nuclear option, the majority leader is threatening to 
annihilate over 200 years of American tradition in the Senate by 
getting rid of the right that challenges decisions made by a slim 
majority over a minority of over 140 million people's representatives 
here in the Senate.
  Extended debate, or filibuster, is an American tradition that goes 
back to the earliest days of the Senate. While the written rules 
establishing the Senate filibuster were not adopted until 1806, the 
practice existed even in the first Congress. Historical records 
indicate that in 1790, Senators from Virginia and South Carolina 
engaged in a filibuster, and it has continued since then.
  The first well-documented filibuster was conducted in 1825 by Senator 
John Randolph of Virginia. For several days, Senator Randolph 
filibustered President John Quincy Adams' economic agenda. That was in 
1825. During the 19th century, there wasn't even an option of a cloture 
to end the filibuster. It continued as long as people had the breath 
and stamina to continue. There was no way to stop determined Senators 
from engaging in an unlimited debate. Then, in 1917, the cloture rule 
was adopted, which established a procedure to end debate only upon a 
vote of a supermajority. Through all of these years, through every 
crisis, the American tradition of the filibuster has endured. It 
endured through the War of 1812, the Civil War, Reconstruction, two 
world wars, the Great Depression, the civil rights movement. Yet 
because of a few of President Bush's judicial nominees, we are being 
asked to throw out the filibuster safeguards of the huge minority. It 
makes no sense.
  We have heard claims that it is unprecedented to mount a filibuster 
on a judicial nominee. It can be said, but it is wrong, and the 
evidence is on the Senate's own Web site.
  I quote from a statement made earlier by the senior Senator from 
Missouri. Mr. Bond said:

       Mr. President, I think the facts are clear. You have heard 
     this many times. Almost everything has been said but not 
     everybody has said it, so I want to go over some of the facts 
     that I think are very, very important. For 214 years, 
     judicial nominations have come to the Senate floor and have 
     been considered without filibuster.

  I ask unanimous consent that a table that shows there were 14 judges 
whose nominations were filibustered since 1968 be printed in the 
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                         TABLE 3.--NOMINATIONS SUBJECTED TO CLOTURE ATTEMPTS, 1968-2002
                     [Executive branch nominations in roman; Judicial nominations in italic]
      Congress and year             Nominee          Position        motions       Outcome of     Disposition of
                                                                      filed     cloture attempt     nomination
(1) 90th, 1968...............  Abe Fortas......  Chief Justice...            1  rejected.......  withdrawn
(2) 92nd, 1971...............  William H.        Associate                   2  rejected.......  confirmed
                                Rehnquist.        Justice.
96th, 1980...................  William A.        General Counsel,            3  invoked........  confirmed
                                Lubbers.          National Labor
                                                  Relations Board.
96th, 1980...................  Don Zimmerman...  Member, National            3  invoked........  confirmed
                                                  Labor Relations
(3) 96th 1980................  Stephen G.        Circuit Judge...            2  invoked........  confirmed
(4) 98th 1984................  J. Harvie         Circuit Judge...            2  invoked........  confirmed
(5) 99th, 1986...............  Sidney A.         District Judge..            1  invoked........  confirmed
99th, 1986...................  Daniel A. Manion  Circuit Judge...            1  withdrawn......  confirmed
(6) 99th, 1986...............  William H.        Chief Justice...            1  invoked........  confirmed
100th, 1987..................  Melissa Wells...  Ambassador......            1  invoked........  confirmed
100th, 1987..................  C. William        Secretary of                1  invoked........  confirmed
                                Verity.           Commerce.

[[Page S5491]]

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

  Mr. LAUTENBERG. Mr. President, the Senate Web site points to one 
incident from 1964 to the present time. October 1, 1968: ``Filibuster 
Derails Supreme Court Appointment.'' Why don't our colleagues on the 
other side take their heads out of the sand, open their eyes, read the 
record, and tell the public the truth?
  In 1968, Abe Fortas, Supreme Court Justice, was filibustered. The 
Senate failed to invoke cloture on Fortas. There were only 45 votes for 
cloture. Some say this is proof that a majority of the Senators did not 
support Fortas. But President Johnson thought otherwise, noting that 12 
Senators were absent for the cloture vote. And here from 1968 is a page 
1, first-page headline in the Washington Post. It says: ``Filibuster 
Derails Supreme Court Appointment.''

       A full-dress Republican-led filibuster broke out in the 
     Senate yesterday against the motion to call up the nomination 
     of Justice Abe Fortas for Chief Justice.

  The public ought to know what is being said. Unfortunately, in the 
urgency to get this done, they are not being accurate in the things 
that are said by the Republican majority.
  So in 1968--note this, people across the country--on a nomination to 
be the most influential judge in the country, there was a filibuster. I 
am not a lawyer, but it seems to me that those who say this has not 
happened before are guilty of factual negligence. The right to 
filibuster is fundamental to the Senate because the Senate was created 
by our Constitution to protect the rights of the minority.
  Just this weekend, one of the most distinguished Members of the 
Senate, our colleague from Arizona, Senator McCain, explained it very 
well. Senator McCain said:

       The Senate was designed to protect the minority. That is 
     why Wyoming has two votes, and that's why California has two 
     votes. That's why Rhode Island--

  Another small State--

     had two votes among the original 13, and New York and 
     Massachusetts and Virginia had two votes.

  The modern Senate reflects the same types of disparities in 
population as the original Senate. My home State, for instance, New 
Jersey, has a population that is greater than Alaska, Wyoming, Kansas, 
North Dakota, South Dakota, and Mississippi combined. But New Jersey 
only gets two votes in this body, and each one of those States I 
mentioned also gets two votes. So it is not surprising that when you do 
the math on the current Senate, you find that the majority is actually 
in the minority, and the minority is the majority.
  Here is what I mean very simply put. The Republican caucus with 55 
Senators and with each Senator getting half of the vote in that State 
represents 144 million people. The Democratic caucus with 45 Senators 
represents 148 million people. The first one, 144 million; the second 
one, 148 million--that does not look like much of a minority to me. 
That is what we are looking at.
  Mr. President, what you find is the minority in this body, the 
Democratic caucus, represents more than the majority, and that is 
exactly what the Founding Fathers wanted to protect--minority rights in 
the Senate--because a minority of Senators may actually represent a 
majority of the people. So it is corrected by a process we have here. 
The Democratic caucus on this side of the aisle represents many more 
Americans than the Republican side. That is why we have a filibuster 
rule. That is why we generally operate by unanimous consent.
  The right to filibuster is not just some obscure rule in the Senate. 
It is part of our American heritage, and it has been celebrated by our 
culture and our folklore. As many Americans know, the filibuster was 
immortalized in the film ``Mr. Smith Goes to Washington.'' Here we see 
a picture of Jimmy Stewart as he played Senator Smith. He used the 
filibuster to protect the interests of his constituents back home. This 
image shows Senator Smith in the midst of his filibuster.
  From some of the things we have heard from the majority leader, you 
might think Mr. Smith was the bad guy in that film. No, Mr. Smith, as a 
filibustering Senator, is not only the good guy, but he is the hero of 
that film. That film is a celebration of our American democracy. It is 
a celebration of this Senate, the world's greatest deliberative body. 
But if the majority leader is successful in ending the filibuster, in 
ending the representation that the huge minority deserves, we will move 
from the world's greatest deliberative body to a rubberstamp factory.
  The Constitution gives us an active role in the nomination process. 
The Senate is not a mere formality under the Constitution. The Founding 
Fathers intended the Senate to be a check on the President's power. We 
hear our colleagues on the other side pleading for a majority vote; let 
the Senate act as it should.
  The Senate is responsible for the quality of people we put on the 
courts, and if there is a challenge, so be it. Let the majority party 
make the case, convince us that these people are not what we think they 
are in terms of their activist views. Is it an inconvenience to the 
President to contend with the Senate? Perhaps. But direct your 
complaints to Thomas Jefferson, James Madison, and our Founding 
Fathers. You will find they had their hands full, and they knew how to 
deal with it.

  I know our majority leader has said:

       We can keep the filibuster for legislation, just not on 

  But the American people know you cannot sort of end the filibuster. 
If this

[[Page S5492]]

nuclear option goes into place, citizens across our country understand 
that their rights will be taken away in large part by those who have 
expressed themselves before they were nominated in matters dealing with 
gender, dealing with marriage, dealing with all kinds of issues on 
which the American people have a right to have a view.
  No, this now says we are just going to do it for the judges. Beware, 
once that barn door opens, we are going to see all kinds of changes. 
You cannot sort of end the filibuster. You either have to keep the 
filibuster or you end it.
  Would the majority leader like to rename the Jimmy Stewart film, 
``Mr. Smith Goes to Washington Except for Judges''?
  Speaking of popular culture, the biggest film of the year is opening 
this week, ``Star Wars: Revenge of the Sith.'' This is one of the 
characters in that film. He is portrayed here on this chart. He is the 
leader of the Senate in a far-off universe. In this film, this leader 
of the Senate breaks rules to give himself and his supporters more 
power, and after this move from the Senate leader, another Senator 

       This is how liberty dies.

  One film critic described this film as a story of ``how a republic 
dismantles its own Democratic principles.''
  As millions of Americans go to see this film this week and in the 
weeks ahead, I sincerely hope it does not mirror actions being 
contemplated in the Senate. I say to my colleagues, do not let liberty 
die. I urge my colleagues, on behalf of the American people--and I ask 
the American people to express themselves on this--do you want to give 
up your rights, do you want to give up your rights to protect your 
children against a foul environment? Do you want to give up your rights 
to be able to work in a safe environment? Do you want to give up your 
rights to decide on questions such as war and peace? I urge do not let 
it happen. I urge my colleagues to oppose any attempt to break the 
Senate rules and destroy over 200 years of American tradition. We must 
save the United States and the interests of our country as a whole.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Burr). The Senator from Delaware.
  Mr. CARPER. Mr. President, I have served in the Senate for a bit over 
4 years. When I came, I never imagined I would stand on this floor and 
defend a filibuster. I came to try to make sure we preserve jobs and 
bring in new ones, to make sure kids got a new education, to make sure 
we brought down the costs of health care and made it affordable and 
extended to a whole lot more people, that we ran a fiscally sound ship 
of state, and that we provided for the security of our Nation. I came 
for all of those things. I never imagined I would be standing in a food 
fight on how we are going to approve these judges, how many 
confirmations are enough and what constitutes a shortfall.
  In Delaware, we are proud of being the first State. We were the first 
State to ratify the Constitution. We did it December 7, 1787. The 
Constitution that we confirmed at the Golden Fleece Tavern in Dover, 
DE, had been hammered out about 75 miles north up the road in 
Philadelphia. The last part of the Constitution that was hammered out, 
maybe one of the more difficult aspects of the Constitution, was not 
only who is going to be President, how are we going to pick the 
President, how long will their terms be. That was worked out. They did 
not get caught up in how old does one have to be to be a Senator or how 
old does one have to be to be a Representative, how long are the terms 
going to be. That was worked out. What was hardest to work out in the 
Constitutional Convention, almost harder than anything else, was how we 
are going to pick these judges.
  There were some folks at the Constitutional Convention, led by Ben 
Franklin, who were fearful we would end up in this country with a king. 
We may not call him a king or we may not call her a queen, but we would 
end up with a king. They were dead-set determined to make sure we did 
not do that.
  If we read through the Constitution, it is an intricate set of checks 
and balances that are designed to make sure that we have a President 
but we do not have a king. With those sets of checks and balances, the 
Constitution has served us extraordinarily well.
  The Constitution also said, in addition to having a House and a 
Senate and how one gets elected to serve and how long they serve, it 
also said the House and Senate could each set out their rules. The 
Constitution does not say what the rules of the Senate are. It says we 
can write our own, and we have done that.
  We heard earlier this afternoon about how the rules have been changed 
with respect to invoking cloture to end debate. Before 1917, Senators 
could not invoke cloture. Another Senator could talk literally as long 
as they could stand. From about 1917 to 1975 or so, the rule was that 
there had to be roughly a two-thirds supermajority to be able to end 
debate. Using the rules of the Senate to effect change, the rules were 
changed to say, no, a three-fifths majority, 60 Senators, is needed to 
bring debate to a close.
  It is interesting how we confirm our judges in Delaware. Governors 
nominate with the advice and consent of the Senate. We do not nominate 
people to lifetime terms on the bench. We nominate them to 12-year 
terms. The remarkable thing in Delaware is for every--and I served 8 
years as Governor--Democrat I nominated to the bench I had to nominate 
a Republican. We are equally balanced Democrat and Republican.

  In survey after survey, the Delaware legal environment, including our 
judiciary, is regarded maybe as the best in the country. We do not have 
these food fights in Delaware. We have the best judiciary. We have 
Democrats and we have Republicans who serve on the bench. They are 
nominated by Republican and by Democratic Governors.
  I ran into a friend of mine not long ago who has loosely been 
following this debate on judicial nominations. He asked: Why do you not 
confirm more of the President's judicial nominees? And I said: How many 
do you think we have confirmed, or what percentage do you think we have 
  He said: Maybe half.
  And I said: No, no my friend, 95 percent.
  He said: Really? Do you not have a lot of vacancies on the Federal 
judiciary bench?
  I said: No. We have one of the lowest vacancy rates we have had in 
  I asked him in return: While we have confirmed over the last 4 years 
95 percent of President Bush's nominees to the bench, what percentage 
of President Clinton's nominees do you think were confirmed during his 
first 4 years?
  Well, I do not have a chart here that says what the answer to that 
question is, but just to remind us all, from 2001 to the beginning of 
this year, 95 percent of President Bush's nominees have been confirmed.
  If I had a magic marker I would make a big yellow line through this 
and write in 81 percent because that is the percentage of President 
Clinton's nominees that were confirmed in his first 4 years.
  There is a great irony. I am told we never heard a peep or a squeak 
from our friends on the other side of the aisle during the first 
Clinton administration when his nominees were denied a vote on the 
floor. It was not because of a filibuster. They were denied a vote on 
the floor because somebody on the other side of the aisle in the Senate 
Judiciary Committee would not let a hearing be held, not on one or two 
judges nominated by Bill Clinton but on scores of them. They would not 
have a hearing. They would not let a nominee out of committee. They did 
not have to kill them on the floor in a filibuster. They did it in 
committee, quietly, out of the view of the public.
  Now, why just a few years ago was it okay to deny 19 percent of 
President Clinton's nominees an up-or-down vote on this floor? Why was 
that okay? And why is it with this President--he received 95 percent of 
what he wants and actually in the end he will get more than that. There 
are a couple from Michigan that we are going to confirm. Some of the 10 
have basically withdrawn their names or retired from the bench.
  The figure of 95 percent actually understates what ultimately this 
President will realize in confirmation victories.
  The other number I want to share, talking about advice and consent, 
is 2,703. This number is 1. What do they refer to? During the first 4 
years of

[[Page S5493]]

President Bush's presidency, he nominated over 200 judges. Republicans 
and Democrats voted on those judges. There were 2,703 aye votes from 
the Republican side of the aisle on President Bush's judicial nominees. 
In those 4 years, there was one nay vote from the Republican side of 
the aisle on a judicial nominee of this President.
  We can argue forever what advice and consent really was meant to be 
when the Constitution was written. But if we are in a situation where 
50 percent plus 1, 51 percent, would enable a nominee of this President 
or any other President to go on to serve for life on the Federal bench, 
and if you look at the last 4 years and only 1 person out of 2,704 
votes was no, does that give you any kind of confidence that we are 
going to see any sort of checks and balances going forward? It doesn't 
give me much.

  I do not care if you are a Democrat or Republican, it should not 
matter. It should not matter who is in the White House or the House and 
Senate. But when you get a situation where you have one party that 
controls the White House and one party controls the House of 
Representatives and one party controls the Senate, and you have, out of 
2,704 votes for judicial nominees, only 1 Republican Senator who ever 
voted no, and it was for somebody initially nominated by Bill Clinton, 
that is something we ought to worry about.
  Someday, someday we are going to have a Democratic President. Someday 
we are going to have a Democratic majority in this body. We have 
sayings in Delaware. I bet they have in Minnesota, too. Maybe in 
Vermont. Among those sayings are these: Chickens do come home to roost; 
the beds that we make are some days the beds that we get to sleep in; 
what goes around comes around.
  I promise you, I promise you, my friends, if a decision is made to 
pull this trigger, this nuclear option, and we end up with a situation 
where the rights of the minority really are, in my view, ignored, maybe 
even trampled on, the Republicans who do this will come to rue the day.
  Let me close with this. I came here to get things done. As I look 
around this floor, the other Senators who are here whom I respect, I 
know you came here to get things done as well. I mentioned at the 
outset the kinds of things I wanted to see us accomplish. I describe 
myself as a recovering Governor. We have a recovering mayor who is 
presiding here today. We like to work together. We would like to work 
across the aisle. We are even happy to work with the President, 
Democrat or Republican.
  My fear is here is what is going to happen. If this action succeeds, 
if we do change the rules of the Senate to lower to 51 the votes that 
are needed to end a filibuster on judicial nominations, that is a 
slippery slope. If we can do it on judges, we can do it on other 
nominees to other posts, we can do it on amendments, we can do it on 
bills. It is a slippery slope. But there is an even greater concern to 
me, as a guy who wants to get things done.
  I see Senator Leahy is here. He is working with Senator Specter on 
asbestos litigation reform. We need to pass that litigation. We need to 
right a wrong. My fear is, if we take this step, trying to work out a 
very difficult compromise on that legislation will be made more 
difficult, not easier. We need to address the rising cost of health 
care and all the folks who do not have it and cannot afford it, and 
employers are stopping providing it. We need a comprehensive energy 
policy in this country. It is tough in the best of times to hammer that 
  Mr. LEAHY. Will the Senator from Delaware yield?
  Mr. CARPER. I am happy to yield.
  Mr. LEAHY. I absolutely agree with the Senator from Delaware. We have 
a lot of bipartisan legislation that is not even being looked at. The 
NOPEC bill is one, with Senator DeWine, Senator Kohl, myself, and 
others. We looked at the fact that gasoline prices have gone up nearly 
50 percent in the last 5 years alone, and yet we have no constraints on 
artificial prices being set by the NOPEC countries here in the United 
States. It takes more than holding hands with Saudi princes to bring 
down prices. We have to ask for real efforts. This is legislation that 
could pass. This is legislation that could pass. Put some teeth in it. 
Instead of holding hands, we could hold court actions, and we would be 
somewhere ahead. That is just one area.

  The Senator from Delaware mentioned the asbestos bill. Senator 
Specter and I have worked on it on a totally bipartisan fashion with 
Senators on both sides of the aisle. We have a bill that could pass. It 
would take some effort on the floor. It would take a week or so, but it 
could pass. Victims of asbestosis would be helped. Companies would have 
some idea what their costs are. The economy would dramatically improve. 
That bill is going to die if the nuclear option goes through because we 
will lose the ability to move bipartisan legislation.
  We have law enforcement legislation at a time when most of the law 
enforcement grants, such as the COPS grants and whatnot, are being cut 
by the administration. A lot of Members on both sides of the aisle are 
trying to find a way to get that money back to our police officers, the 
money being cut. We cannot have a debate on it.
  This is going to take up--you confirmed 208 judges; blocked, 
actually, 5. I have been here 31 years. I don't believe anyone has had 
a record that good. Certainly no baseball team ever had a record that 
good. The President ought to declare victory on that, having done so 
much better than all but about three Presidents of recent memory, and 
let us get on with things. Bring down the price of gasoline, for one; 
that is affecting the American people.
  Mr LEAHY. Mr. President, today we continue to debate the Republican 
Leader's bid for one-party rule through his insistence to trigger the 
``nuclear option.'' I spoke yesterday about this misguided effort to 
undercut the checks and balances that the Senate provides in our system 
of Government, and about the need to protect the rights of the American 
people, the independence and fairness of the Federal courts, and 
minority rights here in the Senate.
  I started my statement yesterday by commending the chairman of the 
Senate Judiciary Committee. Today I want to add and thank a number of 
Senators who participated throughout the debate yesterday for their 
contributions: the Democratic leader; the assistant Democratic leader 
and senior Senator from Illinois; the senior Senator from Washington; 
both Senators from California; the senior Senator from New York; the 
senior Senator from Montana; the senior Senator from Minnesota, the 
senior Senator from Massachusetts and Senator Dorgan.
  I noted yesterday that this is a setting in which Democratic Senators 
alone will not be able to rescue the Senate and our system of checks 
and balances from the breaking of the Senate rules that the Republican 
leader is planning to demand. If the rights of the minority are to be 
preserved, if the Senate's unique role in our system of Government is 
to be preserved, it will take at least six Republicans standing up for 
fairness and for checks and balances. I believe that a number of 
Republican Senators know in their hearts that this nuclear option is 
the wrong way to go. I know that Republican Senators with whom I have 
been privileged to serve know better. I hope that more than six 
Republican Senators will withstand the political pressures being 
brought to bear upon them and do the right thing, the honorable thing. 
I have to believe that enough Republican Senators will put the Senate 
first, the Constitution first, and the American people first, and 
withstand those political pressures when they cast their votes.
  Today, as we continue this discussion, I note that the Senate remains 
fixated on a handful of the President's most extreme and divisive 
judicial nominees. The Democratic leader rightly said recently that the 
current tally is 208 to 5. The Senate has confirmed 208 of President 
Bush's judicial nominees, and we are resisting action on five.
  I included in the Record yesterday my statement laying out my reasons 
for opposing the nomination of Priscilla Owen. As we continue to debate 
a nomination that was rejected by the Judiciary Committee in 2002 and 
on which the Senate engaged in extensive debate in 2004, the Senate is 
neglecting other matters. That is the choice made by the Republican 
leadership, in insisting on this confrontation and upcoming conflict.
  The Democratic leader is right when he urges the Senate to ``put 
people over

[[Page S5494]]

partisanship'' and to work to reduce gas prices, make health care more 
affordable, create new and better jobs and give our veterans and their 
families the support they need and deserve.
  Among the matters being neglected in order to engage in this 
political exercise is consideration and passage of the NOPEC bill, S. 
555. This is bipartisan legislation. Our lead sponsors are Senator 
DeWine and Senator Kohl. With the increase of gasoline prices by almost 
50 percent during the Bush Presidency, with Americans having to pay so 
much more each week to get to work, drive their kids to school and just 
to get around, the Republican leadership of the Senate is ignoring a 
substantial burden on American working families.
  This week, the national average price for a gallon of regular 
gasoline was $2.18. In Vermont, gas is slightly less expensive, but 
still a hefty $2.15 per gallon. Just a year ago the price was $1.92. 
When President Bush took office it was $1.46 a gallon.
  The artificial pricing scheme enforced by OPEC affects all of us, and 
it is especially tough on our hard-working Vermont farmers. Rising 
energy expenses can add thousands of dollars a year to the costs of 
operating a 100-head dairy operation, a price that could mean the 
difference between keeping the family business open for another 
generation or shutting it down.
  With summer coming, many families are going to find that OPEC has put 
an expensive crimp in their vacation plans. Some are likely to stay 
home; others will pay more to drive or to fly so that they can visit 
their families or take their well-deserved vacations.
  Americans deserve better, and if the White House will not act to 
abate this crisis, it is time for Congress to act. It is past the time 
to hold hands and exchange kisses with Saudi princes who artificially 
inflate the price of gasoline. The President's ``jawboning'' with his 
Saudi friends has proven unsuccessful. It is now time to act, and the 
Senate, under the Republican majority leader, is choosing instead to 
revisit a handful of extreme judicial nominations that have already 
been considered and rejected by this body.
  The production quotas set by OPEC continue to take a debilitating 
toll on our economy, our families, our businesses, our industry and our 
farmers. Last year and again last month, the Judiciary Committee voted 
to report favorably to the full Senate the bipartisan NOPEC bill. Our 
legislation would apply America's antitrust laws to OPEC's 
anticompetitive cartel. Why not give the Justice Department the clear 
authority to use our antitrust laws against the anti-competitive, anti-
consumer conduct in which they have engaged? We should take up that 
bill, debate it and pass it without further delay. The many days of the 
Senate's time allocated to the provocative ``nuclear option'' comes at 
the expense of our taking up the NOPEC bill on behalf of the American 
  Another consequence of this fixation on the effort to increase the 
White House's political power, and to aid this President's attempt to 
pack the Federal courts, is the loss in focus and sacrifice of progress 
we have been making on asbestos reform. For more than 3 years I have 
been working on asbestos reform to provide compensation to asbestos 
victims in a fair and more expedited fashion.
  Chairman Specter and I have worked closely on S. 852, the FAIR Act. 
It is pending before the Judiciary Committee. We are in the midst of 
our markup sessions. That effort was scheduled for yesterday and today, 
but the Chairman had to cancel our consideration yesterday in light of 
this debate and it had to be cut short today. That is most unfortunate. 
We have been working hard and in good faith to achieve bipartisan 
legislative progress on this issue. We have done so despite criticism 
from many quarters. That bipartisan effort is now being retarded by 
this continuing debate.
  There are many, many items that need prompt attention. I understand 
that the Armed Services Committee last week completed its work on the 
Department of Defense Authorization bill. Why the Republican leadership 
is delaying Senate consideration of the Defense Authorization bill I do 
not understand. At a time when we have young men and women in combat 
zones and when the home front is being affected by recently recommended 
base closings, I would have thought the Defense Authorization bill 
would be a priority.
  Let me mention just one other set of legislative issues. Last week 
was Police Week. On Sunday I was privileged to attend the National 
Peace Officers' Memorial Service commemorating the service and 
sacrifice of 154 public safety officers killed in the line of duty over 
the last year. I worked in a bipartisan way with Senators Specter, 
Biden, Hatch, Brownback, Cornyn, DeWine, Durbin, Feingold, Feinstein, 
Kennedy, Kohl, Kyl, Schumer, Salazar and Collins to introduce and pass 
S. Res. 131, which recognized May 15 as Peace Officers Memorial Day and 
called upon the entire Nation to join in honoring our law enforcement 
officers. The President spoke movingly at the ceremony held here on 
Capitol Hill on that day of remembrance.
  This week we should honor our law enforcement officers with 
supportive legislative action. In the past we have worked in a 
bipartisan way to improve the Public Safety Officers Benefit Program 
and to provide educational benefits for the families of State and 
Federal officers who have been killed in the line of duty. Sadly, the 
administration has not yet implemented the latest round of improvements 
to the Public Safety Officers Benefit Program that we enacted last 
year. I have urged a Judiciary Committee hearing on this delay, as well 
as on the general state of police officer safety. The Fraternal Order 
of Police, the International Association of Chiefs of Police, the 
National Association of Police Organizations, the National Sheriffs' 
Foundation and other law enforcement organizations are all interested 
in working with us to ensure that the Justice Department produces 
comprehensive regulations that effectively create a more user-friendly 
PSOB Program.
  In addition, we should be considering the Social Security Fairness 
Act, S. 619, the bill that Senators Collins, Boxer, Feinstein and a 
number of us have cosponsored over the years to protect the Social 
Security and retirement of police officers. Those on the front lines 
protecting all of us from crime and violence should not see their 
Social Security benefits reduced because they have historically 
participated in separate retirement benefit programs. That needs fixing 
and this week would be an appropriate one to take that Senate action.
  These are merely examples of some of the business matters the 
Republican majority of the Senate has laid aside.
  Mr. CARPER. Mr. President, what I was saying, in closing, one of my 
greatest fears is that we end up with this partisan battle. Those of us 
who fervently want to accomplish asbestos litigation reform, a 
comprehensive energy bill, determining what the business model for the 
Postal Service ought to be in the 21st century or the passenger rail 
service in the 21st century--what should our next steps be in welfare 
reform? How are we going to provide health care coverage, reduce the 
costs, and extend coverage to all kinds of people? There is a ton of 
stuff, so many issues we need to address.
  The postal bill alone--the Presiding Officer serves on the Homeland 
Security and Governmental Affairs Committee with me. We worked for 
years, Senator Collins, myself, and others, to determine what should 
the Postal Service look like in the 21st century. What should the 
business model be? We unanimously passed the bill last year out of 
committee. Over in the House of Representatives, almost the very same 
bill was negotiated, debated, and passed unanimously by our counterpart 
committee. There was not a single ``no'' vote. We could not get either 
bill to the floor for debate. And that is when we agree.
  I remind my friends, if it is that hard to get legislation through 
the House and Senate to the President for his signature when we agree, 
God help us on difficult issues such as asbestos or comprehensive 
energy policy or health care or the like.
  Finally, I have a whole lot of quotes here. I was trying to figure 
who to close my remarks by quoting. I looked for something for the 
Senator from Minnesota, the Presiding Officer, which might seem 
appropriate. I couldn't find anything, at least on this subject, so I 
turned to another source. I think it is

[[Page S5495]]

actually pretty good. It is not a Senator, but he probably wouldn't be 
a bad one, a fellow who has thought a lot and written a lot and I think 
is generally regarded more favorably on the other side of the aisle 
than this one, and he makes a lot of sense sometimes. I will close my 
comments today with a quote from George Will. Here is what he said 
about the filibuster:

       The filibuster is an important defense of minority rights, 
     enabling democratic government to measure and respect not 
     merely numbers but also intensity in public controversies. 
     Filibusters enable intense minorities to slow the 
     governmental juggernaut. Conservatives, who do not think 
     government is sufficiently inhibited, should cherish this 
     blocking mechanism. And someone should puncture Republicans' 
     current triumphalism by reminding them that someday they will 
     again be in the minority.

  Will goes on to conclude:

       The promiscuous use of filibusters, against policies as 
     well as nominees, has trivialized the tactic. But filibusters 
     do not forever deflect the path of democratic government. Try 
     to name anything significant that an American majority has 
     desired, strongly and protractedly, but has not received 
     because of a filibuster.

  The PRESIDING OFFICER (Ms. Murkowski). The Senator from North 
  Mr. BURR. Madam President, I rise to urge my colleagues to support an 
up-or-down vote on these judicial nominees. I have a great respect for 
my colleague from Delaware, and I do not stand up with pretty charts 
with big numbers. I am not a recovering State legislator or recovering 
city mayor, and I hope I am never a recovering parent or father.
  I stand up as a parent today, as a father of two kids, with the full 
knowledge and understanding that the work we do up here in large 
measure dictates the America that is going to be there for them. That 
if we are to follow the strategies on that side, the chart that my 
colleague showed would never change because we would never vote. That 
bipartisanship that is needed for legislation--whether it is health 
care or whether it is energy policy or whether it is asbestos reform--
would not be achievable because we would never come here to register a 
yea or nay on behalf of the people who sent us here.

  We are faced with difficult votes, but we take those difficult votes. 
We do not shy away from the responsibility that people elected us to 
come here and to make a judgment call and, more importantly, to be held 
responsible for it. The only thing I can think of relative to not 
taking a vote is that there are some who believe they will not be held 
responsible if, in fact, they force this body not to vote, that 
eventually people will wear down and that if we happen to seat someone 
that is not the best, the most qualified, that is OK because it saved 
this institution a fight.
  I will tell my colleagues I cannot think of anything more important 
if there is going to be a fight than that fight be on who we put on the 
  Now, today's debate, though we have a nominee up, I don't think is 
about one particular person because clearly we have not heard arguments 
that this is an unqualified individual. As a matter of fact, in seeking 
compromise there have been proffers now to this side that suggested: We 
will vote on five, but not seven, and you pick the two you want to 
chuck overboard.
  What message do we want to send to that law student out there who 
aspires one day to being on the bench and ultimately seeking a 
nomination by the President to a Federal court or to the Supreme Court? 
If you want to do it, understand you will go through personal character 
assassination; that in some cases you may have to wait 4-plus years to 
get there.
  In 1995, Senator Lautenberg stood on this same floor, in this same 
building, as a Member of the Senate, and he said this then when talking 
about fairness of the system and how it is equitable for a minority to 
restrict the majority view:

       Why can we not have a straight up-or-down vote on this 
     without threats of filibuster, without threats of filibuster. 
     Whether it was Robert Bork and John Tower or Clarence Thomas, 
     even though there was strong opposition, many Senators 
     opposed them. The fact is, the votes were held up or down.

  June 21, 1995. Senator Lautenberg.
  Today, he denies this Senate a vote on a judicial nominee and 
threatens a filibuster on all the nominees.
  This afternoon, Senator Kerry claimed it is dangerous for the Senate 
to limit filibusters on judicial nominees. Senator Kennedy and Senator 
Lautenberg joined Senator Kerry in defending judicial filibusters. But 
on January 5, 1995, just shortly before, Senator Lautenberg was on the 
Senate floor making the statement I read, all three of those Senators 
voted to change the Senate rules to eliminate all filibusters on 
nominations, motions, legislation--everything. If any of those three 
Senators had had their way in January 1995, we would have an up-or-down 
vote on these judicial candidates, but we also wouldn't have the 
ability of the filibuster as a tool in the legislative process.
  Some claim this is the start down a road to doom. It is not down the 
road to doom. Senator Kerry, Senator Lautenberg, and Senator Kennedy 
voted for it and were joined by Senator Feingold, Senator Boxer, 
Senator Sarbanes, Senator Harkin, Senator Lieberman, and Senator 
Bingaman. We are not plowing ground that hasn't been plowed.
  If anything, we are saying, for 214 years this institution, the 
Senate, had a gentleman's agreement, and that agreement was that the 
filibuster would never be used for judicial nominees. For 214 years 
they showed restraint, even though the rule allowed them to do it 
because they understood that the process was so important to make sure 
the best and the brightest found their way to the bench. For 214 years 
a handshake was all it took.
  Something changed in the last Congress. For the first time it was 
actually used. Now, in an effort to have an up-or-down vote, to have a 
process like I described in the last election to the people who elected 
me that I would come here and try to achieve, even if we needed to make 
sure that the constitutional option of eliminating the filibuster only 
as it exists for judicial nominees is removed, some suggest that would 
be disastrous for the Senate.
  Some of those same people in 1995 voted to eliminate the filibuster 
for judicial nominees, for the legislative process, for everything, and 
they are the same ones who claim this would be disastrous to the Senate 
  So much has been said, so many accusations, so many claims, so many 
revisionists of history. The reality is in a conversation I had with a 
high school student just this week, as she looked at me: Can you 
explain these actions on the floor? I talked about the 214 years that 
the gentleman's agreement allowed a nominee to get an up-or-down vote 
with no filibuster and the fear that we were reaching a point where we 
might have to make a decision, and the concern that existed in this 
Senate and around the country that it might be disastrous. She looked 
at me after I explained it to her and she said: Senator, with 214 years 
of experience, it is not going to be disastrous. Why would you wait so 
long to do it?
  The reality is that sometimes it takes years to understand what we 
have a hard time understanding up here. For 214 years the filibuster 
was not used, and we picked the best and brightest and got them on the 
bench and they guided this country and we have been headed in the right 
  If the choice is made and we have to choose to eliminate this tool, 
this is not a dangerous thing for the institution. We have 214 years of 
experience. We will be just fine. And the challenge will be to protect 
that filibuster as it relates to the legislative process.
  I am here as a new member, as a father, as a citizen, who deeply 
believes I was sent to the Senate to get work done. That work I do on 
behalf of North Carolina and for the citizens across this country. 
There is no doubt in my mind that I was sent here to do what the people 
of North Carolina heard me say that I would do, and that was to work 
hard and to accomplish solutions to real problems. There is no doubt in 
my mind the task includes ensuring that the Senate provides judicial 
nominees on up-or-down votes.
  I am not going to lobby my colleagues which way to vote, but isn't it 
common courtesy to allow these nominees to have some finality to this 
process? The judge that is up today, Priscilla Owen, has been in this 
process for 4 years. I have asked myself, even though I am not a lawyer 
by profession, would I stick with it 4 years? Would I put myself and my 
family, my

[[Page S5496]]

friends, my career through the types of delays that she has faced? The 
answer is, I do not know.
  The question is, What are future nominees going to say when they get 
that call, when the President of the United States--whether he is a 
Republican or Democrat--calls in the future, and says, I need your 
service to this country, and they look at the precedent of 4 years, of 
2 years, of 18 months, of the harassment, of the claims? Are they going 
to say ``yes, sir'' or ``yes, ma'am'' to the President of the United 
States? They might. But we might lose the opportunity at the best and 
the brightest.
  One month ago, I joined my freshmen colleagues in urging the Senate 
leadership to get in a room, to break the current impasse regarding 
judicial nominees, and to develop a process that was respectful of both 
parties, where judicial nominees, at the end of the day, receive an up-
or-down vote.
  I said earlier, the Democrat's offer was: We will vote on five but 
chuck two of them over the side, and you pick which two. I cannot think 
of anything worse for the future of this country than for us to treat 
the best and the brightest with the disregard that proffer would 
  I remain hopeful still today that a resolution can be reached. Many 
of us have worked toward a fair process where all judicial nominees 
with majority support, regardless of party, receive an up-or-down vote. 
Let me say that again: regardless of party, receive an up-or-down vote.
  What happened for 214 years? This debate is about principle. It is 
about allowing judicial nominees an up-or-down vote on the Senate 
floor. And I believe it is an issue of fairness. Let me be perfectly 
clear, though. I believe if one of my colleagues objects to a 
particular nominee, it is certainly appropriate and fair for my 
colleague to vote against that nominee on the floor of the Senate. But 
denying judicial nominees of both parties, who seek to serve their 
country, an up-or-down vote, simply is not fair. It was certainly not 
the intention of our Founding Fathers when they designed and created 
this very institution.
  Together, as Members of the Senate, we are advocates for democracy 
and for a democratic system of government. It is vital that we have a 
system that continues to serve as an illustration of effective 
democracy around the world. The integrity of our judicial system is so 
very important, and it will certainly suffer as a result of inaction.
  Obstructing votes on Presidential nominees threatens the future of 
our judicial system and the nature of the Supreme Court. You see, I am 
not sure that many Americans have stopped to think: Well, what happens 
if this is exercised for Supreme Court Justices? Because I believe in 
the next several years we will have one or two or possibly more Supreme 
Court nominees to consider.
  Well, the Court still meets. If we are not able to produce a Justice 
out of this fine Hall, then they will meet with eight Justices. I have 
to believe there is an odd number of Justices for a very logical 
reason. It was so there would not be a tie.
  On a 4-to-4 tie, what happens? Seldom have we asked the question. On 
a 4-to-4 tie in the Supreme Court, the lower court's decision stands. 
That means all of a sudden the Supreme Court, our highest court, the 
Court we look to to be the best and brightest to interpret law and the 
Constitution, is insignificant in the process. It means that whatever 
that court of appeals was--the Fourth Circuit or the Ninth Circuit--
whatever decision they came up with that somebody believed was wrong, 
and they appealed it to the Supreme Court, and the Supreme Court, on 
the merits of the case, heard it, would become the law of the land.
  My colleagues on the other side argue that the reason this is so 
important is because a Federal judgeship is for life. Let me say to 
them today, if you exercise this as it relates to the Supreme Court of 
the United States, and you jeopardize that there may be a 4-to-4 tie, 
the result is not for the lifetime of the judge you did not seek, it is 
for the lifetime of this country because that is now the law of the 
land, that an appellate court, whether it is the Fourth or the Ninth--
not the Supreme Court--that will be the ultimate determining factor as 
to what the law is that our children, our grandchildren, their 
children, their grandchildren will live by for their entirety.
  I urge my colleagues to consider the nomination of Priscilla Owen and 
all the Federal judges who enjoy the support of a majority of the 
Members of this Senate. I am reminded, as I stand here, that so much 
has been said that suggests this process has not been fair. I have 
looked back at some of my colleagues who have been here for years and 
who have experience I hope one day to have in this fine institution.
  Senator Boxer, in 1997, said:

       According to the U.S. Constitution, the President nominates 
     and the Senate shall provide advice and consent. It is not 
     the role of the Senate to obstruct the process and to prevent 
     numbers of highly qualified nominees from even being given 
     the opportunity for a vote on the Senate floor.

  What has changed since 1997? I read this statement four or five 
times. There are no exceptions. There is no ``shall be'' or ``case 
of.'' It is very clear, ``given the opportunity for a vote on the 
Senate floor.''
  And Senator Durbin, who has been a regular in this debate, in 1998, 

       I think that responsibility requires us to act in a timely 
     fashion on nominees sent before us.

  He went on to say:

       If after 150 days languishing on the Executive Calendar 
     that name has not been called for a vote, it should be. Vote 
     the person up or down. They are either qualified or they are 

  One hundred fifty days should be an automatic trigger that a judicial 
nominee should come up for a vote up or down--1998--no qualifications, 
no exceptions. Well, Priscilla Owen has been waiting 4 years. If we had 
accepted his challenge in 1998, Senator Durbin's challenge, 150 days 
after she was first nominated, this body would have voted up or down.
  I believe she ought to be voted on up or down today. I believe it is 
an injustice to the American people that a threat of a filibuster or 
the application of a filibuster will be applied to the judicial 
  Madam President, I know there are a lot of Members who want to speak. 
I am convinced there will be truths and there will be half-truths that 
will be spoken as we go through this process. But I am also assured 
that every Member of the Senate understands the obligation we have when 
we are sworn in. I would urge my colleagues that obligation is not to a 
2-year session of Congress. It is not an obligation to show up every 
day. It is not an obligation to be involved in committee work, or it is 
not an obligation necessarily to come up with solutions to problems. 
But it is an obligation to vote. It is an obligation that when you come 
in this body it is with the intent to vote up or down. I am convinced 
that when Priscilla Owen is allowed to have a vote, that her nomination 
will be confirmed.
  I am convinced it is in the interest of this Senate, of this United 
States, of my family, of your family, of the citizens of this country, 
that we proceed forward in whatever fashion we must to assure that vote 
takes place. I am convinced if we don't, the scenario of the inability 
to accede a Justice to the Supreme Court will cause irreparable harm to 
the policies, the laws, and to the future of this country.
  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SANTORUM. Madam President, I thank the Senator from North 
Carolina for his excellent statement.
  I have been on the floor many times to talk about the issue of 
judicial nominations, to stand and speak in favor of many nominees to 
the bench who have been debated over the past couple of years. Last 
night, I had the opportunity to meet with Justices Janice Rogers Brown 
and Priscilla Owen. I expressed to them my personal sympathy for them 
and their families, as I do to all of those who have had their lives, 
careers, and decisions unjustly dragged and contorted through the 
streets of debate on the floor of the Senate.
  Four years ago now, when Justice Owen was nominated, I am sure that 
was a very proud day for her. I am sure she looked forward to the 
challenges of the confirmation process and the challenges of serving in 
the circuit court. I don't think anyone could possibly have conceived 
that a person with her judicial standing, having been rated the highest 
qualified by the American Bar

[[Page S5497]]

Association, having served as a supreme court justice in one of the 
largest States, having been elected in that State with over 80 percent 
of the vote, having accolades from Democrats and Republicans alike who 
have served with her on the court, as well as public officials in 
Texas--I don't think she could have possibly imagined she would be 
involved as one of the focal points of this maelstrom we see pouring 
out here over the last few days and, unfortunately, over the last 
couple years on the floor of the Senate.
  These nominees have my respect. They have my respect for their 
courage and for their perseverance. It has been an act of perseverance 
on the part of many of them. All of them could have easily walked 
away--not that they don't have good jobs and great careers, and if not 
universally respected in the legal community, they are certainly highly 
respected. They don't get nominated for these positions unless they are 
highly respected within the community.
  So I think it would have been very easy for many to walk away, but 
they have not. They certainly have earned my respect, no matter what 
happens here. I think it is a very sad day when we take highly 
qualified people who are willing to serve, and who have served in the 
judicial capacity, and treat them this way. We hear so much from the 
other side about many of us complaining about activist judges, and 
being critical of judges, and how it is a security threat to judges. 
Well, I suggest what we have been seeing over the last couple of years 
in the way these judges and their records have been distorted, they 
have added to the sense of frustration of the American public as to our 
judiciary and our system of justice in this country.
  We have an opportunity to correct that. We have an opportunity to 
step away from the mistakes of the past in the next few days and to 
allow up-or-down votes on the floor of the Senate again. For 214 years, 
214 years--in this Chamber and the Chamber just down the hall, and once 
in a couple other places--in Washington and other places, such as 
Philadelphia--we had votes by Senators who were elected at very 
difficult times in our Nation's history, at contentious times, where 
judges had major roles to play on the issues of the day. Think back to 
the times of slavery, during the early 1800s, when judges played a huge 
role in this issue that eventually fractured this country. I am sure 
there were times when either side, depending on who was the President 
and who controlled the Senate, felt it would have been unfair to their 
cause, the Northern cause or the Southern cause, to have a person on 
the Supreme Court who would vote against their interests. I am 
confident many felt very much tempted to vote and join a filibuster to 
block a nomination to require a supermajority vote.

  But if you think about it, it is remarkable they withheld from doing 
that and chose instead something most people would say is much more 
dramatic, and that is to secede from the Union. But Senators, enduring 
that very contentious time when there were fights on the floor of the 
Senate, understood that a very key part, an important part, essential 
part of the Senate is the process by which we govern ourselves; that 
the process protects our rights; the process protects the system of 
Government. They chose to withhold their passions--the passions of the 
moment for the issue of the day--for the right and controversy to do 
what was best for the institution of the Senate, the greatest 
deliberative body in the history of the world, potentially.
  And now we have seen this infection that entered into the bloodstream 
of the Senate. Whether you want to call it a partisan infection or an 
ideological infection, there certainly is a sickness. I think it is a 
sickness that, candidly, both sides of the aisle feel. I don't know too 
many people who feel very good about what we are going through on 
either side. It is making us all weaker, sicker, and it is so doing to 
this institution. We need a cure. We had a pretty healthy institution 
when it came to this issue for 214 years. I think we can look to the 
prescription that we had for 214 years for a cure to what ails us in 
this body today.
  The Senator from North Carolina accurately said we had an agreement--
he used the term ``gentlemen's agreement''--a handshake, that this was 
the way we were going to proceed. I argue those in the 1850s had the 
right to filibuster judges. Those in 2003 had the right to filibuster 
judges. I had the right, during the Clinton administration, to 
filibuster his appointments. There were those whom I wanted to 
filibuster and those whom I desperately didn't want to see on the 
court, and we stood down because in spite of the passions and in spite 
of what I thought was a mistake to put a particular person on a 
particular court, there was something lasting, something more 
important, something certainly not eternal, but certainly eternal for 
as long as the United States shall survive, and that is this 
institution. We should not go mucking around in this institution and 
changing the way we do things, particularly when it comes to the 
balance of powers and the independence of one of the branches of our 
Government, the judiciary.
  We must tread very carefully before we go radically changing the way 
we do business here, which has served this country well. We have 
radically changed the way we do business here.
  Some are suggesting we are trying to change the law, we are trying to 
break the rules. Remarkable hubris. Imagine, the rule that this is the 
way we confirm judges has been in place for 214 years, broken by the 
other side 2 years ago, and the audacity of some Members to stand up 
and say, How dare you break this rule, it is the equivalent of Adolf 
Hitler in 1942 saying: I'm in Paris, how dare you invade me, how dare 
you bomb my city. It's mine. This is no more the rule of the Senate 
than it was the rule of the Senate before not to filibuster. It was an 
understanding, an agreement, and it has been abused.
  In a sense, what we see on the floor of the Senate is a reflection of 
what we often see in our society. What we often see in our society is a 
government that increasingly is passing laws. I get this from some of 
my constituents sometimes. They say: You guys are always passing more 
and more laws and more and more laws, and ultimately when you are 
passing laws, in many cases what you are doing is restricting people's 
  The more laws we have on the books, the more laws there are to obey, 
the more laws you have the ability to break. So why do we do this? 
Because we respond to problems in society that come about certainly, in 
many cases, because what we once thought we did not need a law in place 
to keep people from doing, we now have laws in place to punish people 
who heretofore understood it simply was not a good thing to do.
  We did this recently with the corporate scandals. What did we do? We 
passed a huge law, Sarbanes-Oxley, in response to what? Activities by a 
group of people who simply forgot about the handshake, forgot about the 
duty we have to each other, and pushed the law well beyond what we 
intended. So we had to pass a new law, and we had to constrain 99 
percent of the people in America who never even thought about breaking 
the law or doing the things that were done by Enron and Tyco and all 
those people. So we had to pass laws on everybody.
  Was it a good thing to do? We had to pass the law because there were 
some who could not live by the law, could not live civilly, could not 
live with not just the letter of the law but the spirit of the law.
  So we had to pass legislation that restricted freedom, that put 
burdens on people. That is why I have said many times I am not crazy 
about having to vote to eliminate the possibility of filibusters on 
judges. I am not anxious to do this anymore than I was anxious to pass 
some of the corporate responsibility provisions. One would like to 
think, particularly here, where we are supposed to be a reflection of 
what is best in our society, that we can understand what we are doing 
here is wrong and just step back from the ledge and let civility reign, 
let the tradition of the Senate be upheld.
  I do not want to have to pass a law. I want to see a Senate that can 
agree to act civilly, to respect tradition in the process of running 
this place that has worked well for 214 years. That is what I want.
  So I have encouraged many to sit down and try to negotiate. I 
encouraged our leaders to do so. I know our leader has tried 
diligently. I just spoke with him on the phone a few minutes

[[Page S5498]]

ago, and he continues to work to avoid what no one--at least I hope no 
one in this Chamber--wants to see happen. I certainly do not. But we 
can no longer live--just like we cannot live with the opportunity of 
those to cheat shareholders and employees--we can no longer live with 
the minority trying to cheat those nominated by the President of the 
United States from a fair up-or-down vote in the Senate. We cannot 
tolerate that. That is behavior beyond the pale. That is behavior that 
no Senate, prior to the last one, tolerated. None.
  I have repeatedly asked and I know other people have asked 
repeatedly, Name one judge brought to the floor of the Senate who had 
majority support who was not confirmed. Name one, prior to 2 years ago. 
Never happened. Never happened in the entire history of the Senate. 
Never happened. We have 10, potentially 16 who would have that 
privilege because of this new precedent.
  I cannot understand how Members of the Senate can come here and say 
what we are doing is breaking the rules. Breaking the rules? I do not 
know how you can possibly contort the facts of this case around to 
where the Senate Republicans, by returning to the tradition of the 
Senate of 214 years, is somehow breaking the rules.
  This is truly a sad day. It has been a sad week. If you look and 
listen to my constituents--and I am sure all of our constituents--they 
are not happy about this debate. They are not happy a group of 100 
leaders--100 leaders--cannot negotiate and find some way of acting 
civilly, of reflecting to our children and our grandchildren that we 
know how to play nice and we know how to play by the rules.
  But the passions of the moment, the passions of the moment have swept 
over us, and those groups out there that are fomenting this because of 
their own ideological agenda are the culprits, or at least the 
motivation, but the votes are here. The votes are here. I am hopeful 
there are enough on the other side of the aisle who will come to the 
realization this is not good for them, this is not good for their 
ideology, it is not good for their partisanship, this is not good for 
the institution, and this is not good for the country to continue down 
this path.

  When I came to the Senate, I came from the House, like the Senator 
from Georgia, from the legislature, like the Presiding Officer. I had 
never dealt with executive nominations before. So one of the things I 
looked into is how do I determine what a good judge is. We did a little 
looking around and determined how do you evaluate a judge.
  First, are they qualified? Do they have the educational skills, the 
experience to do the job? Second, are they ethical, not just did they 
break any laws, but are they ethical individuals and have a reputation 
for high ethics? And three, do they have an understanding of the role 
of a judge? Those are the three things.
  You did not hear me say, do I agree with them on this issue, this 
issue, or that issue, because my feeling is whoever is elected 
President will appoint people who agree with their philosophy. That is 
how it works, just as when you appoint a Secretary of Veterans Affairs 
or a Secretary of Energy, you appoint someone who intellectually agrees 
with your philosophy.
  When President Clinton was elected, I came here, and I supported 
almost every Clinton nominee. Did I agree with them? Absolutely not. 
Did I think most of them would be damaging to the court? Absolutely. 
Did I vote for them? Yes. There are a couple of exceptions. One in 
particular, I have to tell you, who caused me a lot of heartburn was 
Judge Richard Paez from California who showed a record of activism on 
the court that was upsetting to me and showed that he was not someone 
who understood the role of a judge.
  So under that he certainly was qualified, and I had no questions 
about his ethics, but I did have a question as to whether he understood 
the role of a judge. From his experience it showed me he did not.
  There were many who wanted to filibuster Judge Paez because of that 
very fact. In my mind, certainly from the standpoint of not wanting 
someone on the court, it would have been a justifiable filibuster, 
except for the fact that is not the way we do things in the Senate, 
because you know what. The President won the election, and he can 
nominate who he wants. And we in the Senate have had a tradition saying 
if you can get a majority of votes in the Senate, you get confirmed.
  It is about majorities. And by the way, I voted for cloture on Judge 
Paez and voted against him on the floor when an up-or-down vote came. 
He did not get 60 votes. Had we filibustered, he would not be on the 
Ninth Circuit today. We did not. I did not because it was not the right 
thing to do. It was absolutely not the right thing to do.
  I suggest that we have changed the qualifications from highly 
ethical, highly qualified and understanding the role of a judge to 
someone who is ``in the mainstream.'' That seems to be the idea now. So 
we are talking about ideology, in the ideological mainstream.
  There were probably--well, Richard Paez, certainly from my view, I 
would argue, is probably not in the ideological mainstream of America 
but they all supported Judge Paez.
  Probably Justice Harlan, who was the lone dissenter in 1896 in Plessy 
v. Ferguson, was not in the mainstream at the time.
  Thurgood Marshall was confirmed in the Senate to the circuit court 
back in 1961 with 54 votes. As a lawyer for the NAACP in the 1950s, 
probably a lot of people in America would not have said he was in the 
  There are a lot of judges who are not ``in the mainstream'' depending 
on what stream one happens to be swimming in.
  Elections have consequences. In 1961, John F. Kennedy was the 
President. He won the election, and he got the benefit of the doubt on 
the Senate floor. He got an up-or-down vote. Majorities matter. I do 
not think my colleagues will hear the Senator from Georgia or any other 
Senator on this side of the aisle complain because for 18 months 
Priscilla Owen was held in the Senate Judiciary Committee during the 
chairmanship of Senator Leahy. I certainly will not complain. It was 
his right not to report her nomination to the Senate floor. Why? 
Because they were in the majority. If a majority of that committee did 
not support her nomination, fine, hold it in committee. Defeat her in 
committee. That is fine. No problem.
  If someone happens to be reported out and a majority defeats, fine, 
majority rules. This idea that 60, 80 whatever Clinton nominees were 
held in committee by Republicans during the last few years of the 
Clinton administration, they were held because the majority opposed 
them. The majority rules, up-or-down vote on majority vote. That is the 
214-year tradition of the Senate.
  The idea now is the minority rules. One can lose the presidency, lose 
four seats in the House and control who is going to be the next circuit 
and Supreme Court judges in the United States? Very interesting. I 
guess elections do not matter. I guess who people vote for, for 
President is of no concern to the minority in the Senate. They are the 
ones who should dictate who the nominees of this President should be. 
They are the ones who should dictate who comes to the floor and whether 
they get a vote or not.
  That is not the precedent of 214 years. It has been an up-or-down 
vote. This is an outrage. This is an abuse of power.
  It is interesting we are in the Senate, and we are talking about the 
minority abusing power. Yes, the minority can abuse power in this case, 
and in my opinion they certainly have.
  One final comment, and I apologize to the Senator from Georgia and I 
appreciate his patience. I just want to make a comment on one case. 
Yesterday I heard the Senator from California make a statement with 
respect to Janice Rogers Brown, one I am particularly concerned about 
because it deals with the issue of Catholic Charities. I heard the 
Senator from California in describing Justice Janice Rogers Brown's 
decision in that case and she used the following words in describing 
her dissent: She, meaning Justice Brown, was the only member of the 
court who voted to strike down a State antidiscrimination law that 
provided a contraceptive drug benefit to women. That is her comment.
  Now, she did not go into the fact what this law said. What was this 
law? Well, it was a law that said that if an employer provided health 
insurance they must provide contraceptive coverage--must. Now most 
folks who have

[[Page S5499]]

dealt in this area before would say: Is there not an exemption for 
those religious organizations who do not believe in contraception? The 
answer is the California legislature did provide such an exception. Let 
me read the exception. It said that we will exclude from coverage for 
contraceptive methods that are contrary to their religious tenets. 
Sounds reasonable. We do that all the time. If it is contrary to 
religious tenets of a religious organization, they do not have to offer 
this particular kind of care.
  As a Catholic, the tenets of the Catholic Church are that 
contraceptives are wrong, and therefore they do not want to, according 
to their religious tenets, offer that service to their employees. Well, 
this is the California exception for a religious employer: One, the 
entity whose purpose is the inculcation of religious values. Well, this 
is Catholic Charities. Is it Catholic Charities' role to inculcate 
religious values? No. One of the key roles of the Catholic Church is to 
care for the poor, to care for those who are less fortunate. It is a 
basic and core value of the church. We hear it repeatedly offered by 
Members on the other side.

  We have discussions about the church and its theology, how core and 
central helping the poor is. So they do not qualify under that.
  Two, that primarily employs persons who share its religious tenets. 
Well, Catholic Charities does not primarily employ people. They employ 
people who want to serve the needs of the poor, and they do not ask 
whether you want to go to church or not at a Catholic Church.
  Three, that serves primarily persons who share those religious 
tenets--in other words, only Catholics. Obviously not. They serve 
everyone. Mother Teresa is the classic example of a Catholic out on the 
front lines serving the needs of the poor irrespective of who they are.
  Four, and qualifies as a church under a particular section of Federal 
law. Obviously, Catholic Charities is not a church. Under the religious 
exception of the California statute, Catholic charities is an arm 
directly under the control of the bishop, a mission of the church, not 
a religious organization.
  What Justice Brown said was that is an outrage, that is 
unconstitutional, it is against freedom of religion to suggest that a 
Catholic organization, Catholic Charities, under that construct, has to 
offer services in their health care plan. I will agree she was the sole 
person but that is hardly striking down the rights of women to have 
contraceptive services. This was an infringement upon the Religious 
Liberty Protection Act.
  I find it very interesting a lot of folks come in here with their 
scorecards. Well, she voted against consumers this many times, she 
voted against women this many times, she voted against this, as if 
judges are supposed to keep a scorecard as to who they vote for and 
against as opposed to following what the law says.
  So if a consumer comes before a judge, they are supposed to be pro-
consumer? If a business person comes before a judge, they are supposed 
to be pro-business? Is that what my colleagues want judges to do, have 
a scorecard and make sure they are 50-50 on all of these things?
  These litmus tests that are being spewed from the other side are a 
complete undermining of what the rule of law is to be about, about what 
justice is to be about. They are infusing politics, policy, and 
partisanship in this process.
  We must stop this. We must have up-or-down votes. I hope we do it in 
a way that does not force us to vote to do that.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. ISAKSON. Madam President, I commend the Senator from Pennsylvania 
on his remarks. For the moment that he is here, I want him to hear me 
say something.
  I make the remarks I am about to make with a full understanding, were 
I in the minority party and this another day, I would need to make 
exactly the same speech and take exactly the same position. You see, I 
am new here, but I have learned something very quickly. The words you 
say today will be the words repeated to you tomorrow.
  I learned something else. The genie came out of the bottle in the 
108th Congress. Whether it was Democrats or Republicans, one day 
somebody would ultimately have to decide: Was the filibuster intended 
to be used on advice and consent?
  With all due respect to everybody I have heard, it is just incorrect 
to say that to do away with the filibuster is going to make us a 
rubberstamp body.
  Go ask Clarence Thomas if this place was a rubberstamp body, or 
Justice Bork. Think about the confirmations, most contentious in the 
last 20 years. Nobody invoked a filibuster. One of those justices was 
confirmed. One was not.
  There are many responsibilities of the Senate that are designated in 
the Constitution. Impeachment is one. Whoever heard anybody 
filibustering an impeachment? Did you? The Constitution says the Senate 
will conduct that trial, as it says the Senate will advise and consent 
on treaties--by two-thirds majority. And on justices of the court--
simple. It doesn't say maybe. It doesn't say if you feel like it. It is 
not even confusing. I have it in my pocket. I read it right before I 
came over here just to make sure I hadn't missed something because I 
heard twice today people say this document, the Constitution, doesn't 
say things that it does say.

  I rise also, understanding how important the words are, because the 
second speech I made in the Senate, the first week of February this 
year, there was nobody in the Chamber. I've got a bigger crowd with the 
Senator from Pennsylvania than I had. It was early in the morning. It 
wasn't much of a gallery. I figured nobody was listening. The 
distinguished Democratic leader quoted me seven times since I made that 
  I want to address that quote for a second.
  You see, I told the story of being in Baghdad and talking to a Sunni, 
a Shiite, and a Kurd and asking the Kurd: Well, now that you are in the 
minority, aren't you scared the Shiites are going to run over you? And 
he said: Oh, no, we will use filibuster.
  I thought that was a great remark. Here was a Kurd from the north of 
Iraq, in a place that had just won its liberty thanks to the blood, 
sweat, and tears of the United States of America, and he was reading 
Adams and Jefferson and studying us.
  The next thing I know, the distinguished Mr. Reid from Nevada says I 
said that to endorse a debate over whether or not the filibuster should 
be used on the confirmation of a judge.
  I don't blame him. But just so the record is set straight, he is 
quoting a Kurd who read about America, who is in the process of writing 
their constitution which, I presume when it is finished, will provide 
for a filibuster over issues but not a filibuster to be used to 
obstruct the justice of the new democratic nation of Iraq.
  I know my time is short. But I want to make some observations. I want 
to make my remarks in the context of Justice Brown. I know that Mrs. 
Owen is the current topic of discussion, about which at some point in 
time we hope there will be a vote, but Janice Rogers Brown is around 
the corner, and I felt like, after listening to all these debates, 
nobody is really talking about anybody's qualifications. Have you 
noticed that?
  Even one of the deals that was offered was: tell you what, we will 
approve any five, you just give us two we are not going to approve.
  Does that tell you they care anything about qualifications? Why, if 
you thought there was an unqualified judge, would you let the other 
side pick five and not pick two? I don't think qualifications are the 
issue. I understand that. That is another reason why I say this is not 
a superfluous argument, were we in the minority and it was still being 
decided, and had the roles been on the other side. And it is important 
that we decide it today.
  Janice Rogers Brown was born in 1949 in the Deep South. I was born in 
1944 in the Deep South.
  When Janice Rogers Brown was born, I don't know that her parents ever 
envisioned that she would be a supreme court justice in the State of 
California. When I was born, I doubt my parents envisioned that I would 
be a Senator. However, in 1944, for a male white child born in the 
South, it was possible to be a Senator. In 1949, in the South, in 
Alabama or Georgia, it would not have

[[Page S5500]]

been possible for a parent to dream that for a female black child.
  In my lifetime of studying this body, the most prevalent use of the 
filibuster was by southerners in the debates over the civil rights laws 
in the 1960s. The filibuster was used to protract the ultimate passage 
of those laws. It finally failed. Our country did what was right and 
those laws were passed.
  I would hope that today the filibuster would not be used to deny an 
up-or-down vote on Janice Rogers Brown because every parent deserves to 
dream for every child that they will have the chance--not the 
guarantee--but the chance. These justices who have been nominated by 
our President deserve an up-or-down vote. No one in here has challenged 
anybody's right to vote yes or no. But they have challenged the fact 
that, yes, every one of them deserves a vote, and that is what this 
debate is all about.
  So, as one who is new to this Chamber but understands how important 
this debate is, I rise to repeat that I will vote to support a vote, up 
or down, on every nominee. Understanding that, were I in the minority 
party and the issues reversed, I would take exactly the same position 
because this document, our Constitution, does not equivocate. It 
designates that responsibility to the Senate. I repeat, we are not 
breaking an old rule, we are addressing an issue that was raised in the 
last Congress as to where the filibuster would apply. It must be 
decided, and we must be diligent in our debate, respectful of the 
differences of opinions but, in the end, understanding of our 
responsibility as Members of the Senate and those elected to represent 
those who brought us here.
  Madam President, I see my time is about up. If the Chair will inform 
me, I believe I have 2 minutes.
  The PRESIDING OFFICER. The Senator has 2 minutes remaining.
  Mr. ISAKSON. I will close by going to a quote I heard earlier today 
by the distinguished Senator from Massachusetts, who talked about the 
history of judicial confirmation, and my understanding of history is 
the same as his. The distinguished Senator said the first two times our 
Founding Fathers worried about writing the Constitution, they were 
going to designate the appointment of judges to the Senate. It was only 
on the third meeting that, at the Constitutional Convention, they 
determined it be a joint responsibility: Nomination by the President, 
confirmation by the Senate.
  The distinguished Senator is absolutely correct. He described it as a 
dual responsibility. It would be irresponsible for the Senate to avoid 
expressing itself in advice and consent on the qualification of any 
nominee. To do anything other than that which the Constitution 
designates to us would be to abrogate our responsibility. Our Founding 
Fathers were right over 200 years ago, and our leader, whom I commend, 
is right today. I hope when this debate ends, whether through 
negotiations or a vote, the men and women nominated to the Federal 
bench of the United States of America will know, not that they are 
guaranteed a judgeship, but they are guaranteed to know how the Members 
of the Senate voted on whether or not they would be confirmed.
  I yield the floor.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. SCHUMER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Madam President, I yield myself 7 minutes and then will 
yield to the Senator from New Mexico 15 minutes immediately after me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Madam President, as most have said, we believe we have 
been more than fair. We have confirmed 95 percent of the President's 
judges. As I have said before, if my daughter came home with a 95 on 
her report card, I would say, great. What some on the other side want 
to say is this: Only got a 95? Break the rules and get 100.
  We do not believe in that and would like to exhibit in the most 
graphic way how we have supported 208 of the 218 judges by doing 
something very simple--by reading the names of the 208 judges the 
President has nominated and gotten approved by this Senate.
     1. Callie Granade, SD AL
     2. Consuelo Callahan, 9th Cir.
     3. David Bunning, ED KY
     4. Dora Irizarry, USDC ED NY
     5. Gary Sharpe, USDC ND NY
     6. Henry Hudson, ED VA
     7. James Gritzner, SD IA
     8. Jeffrey Howard, 1st Circuit
     9. John Roberts, DC Circuit
     10. Julia S. Gibbons, 6th Cir.
     11. Kurt Engelhardt, ED LA
     12. Leonard Davis, ED TX
     13. Margaret Rodgers, ND FL
     14. Michael McConnell, 10th Cir
     15. Paul Cassell, UT
     16. Ralph Erickson, ND
     17. Richard Holwell, SD NY
     18. Robert Conrad, WD NC
     19. Rosemary M. Collyer, DDC
     20. Stanley Chesler, NJ
     21. Thomas Phillips, ED TN
     22. Walter Kelley, ED VA
     23. William Smith, RI
     24. C. Ashley Royal, MD GA
     25. Clay Land, GA
     26. Danny Reeves, ED KY
     27. Diane S. Sykes; 7th Circuit
     28. Frederick Martone, AZ
     29. Henry Floyd, SC
     30. James Gardner, ED of PA
     31. Jay Zainey, ED LA
     32. John Houston, SD CA
     33. Judith Herrera USDC D NM
     34. Kim Gibson, WD PA
     35. Legrome Davis, ED PA
     36. Marcia Krieger, CO
     37. Michael H. Watson, SD OH
     38. Paul A. Crotty, SD NY
     39. Ralph Beistline, AK
     40. Richard E. Dorr WD MO
     41. Robert Clive Jones, NV
     42. Ronald White, ED OK
     43. Sharon Prost, Federal Circuit
     44. Thomas Hardiman, WD PA
     45. Virginia H. Covington, MD FLO
     46. William Riley, 8th Circuit
     47. Amy J. St. Eve, ND IL
     48. Christopher Boyko, ND OH
     49. D. Michael Fisher, 3rd Circuit
     50. David Godbey, ND TX
     51. F. Dennis Saylor IV, Mass.
     52. Gregory Frost, ND OH
     53. J. Ronnie Greer, WD TN
     54. James Robart, WD WA
     55. Joe Heaton, OK
     56. Jose Linares, NJ
     57. Kathleen Cardone, WD TX
     58. Larry Hicks, NV
     59. Louise W. Flanagan, ED NC
     60. Micaela Alvarez, SD TX
     61. Morrison England, ED CA

  Madam President, I am illustrating how many judges--208 to 10--we 
have approved in this Senate, an outstanding 95-percent record, nothing 
that any President should complain about.
  We will continue the reading later.
  I yield the floor to my friend and colleague from New Mexico, Senator 
  Mr. BINGAMAN. Madam President, I thank my friend from New York and 
congratulate him on his leadership on this very important issue.
  I find it very unfortunate that disagreements about judicial 
appointments have brought us to the point where the majority is ready 
to take away the longstanding right of each and every Senator to 
unlimited debate. That is a very major change in the way business has 
traditionally and historically been done in the Senate.
  This is a confrontation that could easily have been avoided by the 
President and his legal counsel if they had been willing to follow what 
I understand to be the normal practice that historically has prevailed 
and should prevail. Someone asked: What is that normal practice? It is 
simply the practice of consulting with the Senators most involved in 
the nominating process before making a final decision on which 
individuals to nominate.
  In the case of judicial nominees for Federal court positions in my 
State of New Mexico, and also positions to be filled on the Tenth 
Circuit Court of Appeals that are designated for New Mexico attorneys, 
I have been contacted, and I have been asked if I had objections to 
perspective nominees in each case before a final decision to nominate 
has been made. And that is not just in the last year or 2, this is over 
the 22-plus years I have served in the Senate. As far as I can 
remember, I have been afforded that courtesy each time. We, the Senate, 
have confirmed; and Presidents Reagan and Bush, Sr., and Clinton and 
now George W. Bush have nominated many individuals for the Federal 
court in my State during that time.
  It is also my understanding that more often than not the chair and 

[[Page S5501]]

ranking member of the Judiciary Committee have been afforded that same 
courtesy prior to the nomination of individuals to court of appeals 
positions or to a Supreme Court position. Much of the current 
confrontation and rancor could have been sidestepped if that practice 
had been followed with respect to the nominees who are currently in 
dispute. Unfortunately, this President has chosen a different course.
  Rather than consulting before a nomination is made, the White House 
has chosen to make nominations that it knows will be highly 
controversial, in some cases where it knows that the Senators from the 
nominee's State are strongly opposed to that nominee. Where nominations 
have been blocked during one Congress, the 108th Congress, last 
Congress, the President has chosen to renominate those same individuals 
in the succeeding Congress.
  Madam President, this is not a strategy to unite rather than divide 
the country. This is a strategy to split and to polarize the Senate and 
the American people, and it is clearly having that exact effect.
  Given where we are, I, like most of my colleagues, feel obliged to 
come to the Senate floor and speak on this so-called nuclear option. In 
my view, this is a misguided effort that will not only harm the Senate, 
it will also have a significant impact on the checks and balances that 
our Founding Fathers envisioned. I am disappointed that the majority 
leader has decided to pursue this course of action. I regret that he 
has repeatedly rejected the minority leader's offers to compromise on 
the issue.
  There are two distinct issues I want to discuss briefly today. The 
first is the manner in which the change is being made, the idea that 
the majority can simply change longstanding Senate rules whenever it 
believes it would be expedient to do so. I find that notion deeply 
troubling. We are a nation of laws, and our institutions need to 
reflect this.
  The second issue I want to discuss is the merits of the proposal and 
the impact of eliminating the ability to filibuster. The use of the 
filibuster not only ensures that minority views are respected in the 
Senate, it also plays an important role in checking the power of the 
executive branch and in ensuring that the judiciary remains 
  Let me take a moment to briefly describe what this nuclear option 
entails. I recognize that discussing rules and procedures is not an 
exciting topic, but it is important that the American public understand 
precisely what is being done. This is not about whether every nominee 
should get an up-or-down vote. It is about whether it is acceptable for 
the majority party to disregard longstanding Senate rules in order to 
get its way in each and every case that comes before the Senate.
  Senate rule V states that:

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

  In accordance with Senate rule XXII, any such change can only be made 
with the approval of two-thirds of all Senators elected. That is 67 
  Requiring continuity of the rules from Congress to Congress, and 
requiring that changes to the rules meet a threshold vote well above a 
simple majority, has a very straightforward purpose. It ensures that 
the rules governing the Senate remain constant, that they are not 
changed whenever one party believes the rules are hampering their 
ability to get their way in the short term.
  Some in the majority party have complained that it is necessary to 
change the rules with respect to use of the filibuster on judicial 
nominees because in their view the current 60-vote requirement to end 
debate is too high. I have no objection to debating that issue and 
bringing it to a vote. Indeed, throughout the Senate's history there 
have been a variety of proposals to modify the rules governing the 
  For example, in 1975, the Senate reduced the number of votes required 
to end debate from 67 to 60. In 1995, I supported a proposal Senator 
Harkin offered which did not pass but would have revised the procedure. 
So why is not the majority leader bringing this proposal, which he is 
now threatening to make, up for a vote under normal procedure? Simply 
put, he does not have the votes to pass the measure if we stick by the 
rules of the Senate, the 67-vote rules of the Senate.

  So his proposal is simple: If you do not have the votes to pass the 
proposal using the rules as they exist, then make up your own rules so 
you can pass it. Under this procedural maneuver, if the Senate votes to 
not end debate on one of the disputed nominees, the majority leader 
intends to make a point of order requesting that the Presiding Chair, 
who will likely be the Vice President, rule that only 51 votes are 
needed to confirm appellate and Supreme Court nominees.
  Now, all of us know, and it is very clear to everyone who has studied 
this issue, that is not what the Parliamentarian would rule. The 
Parliamentarian has said just the opposite. Democrats will object, but 
the ruling would be upheld by a simple majority vote. It is my 
understanding this would be the first time that we have changed the 
rules of the Senate without following the prescribed procedure for 
doing so in the rules that we have adopted. This would entail 
overruling the Senate Parliamentarian.
  Madam President, I have to ask, what is the meaning of a rule if it 
is permissible to break it when one disagrees with the outcome that 
would result if the rule were followed? If the majority leader wants to 
try to modify the filibuster, he has the right to attempt that, but he 
should do so within the parameters of the Senate rules. It is dangerous 
to set a precedent of ignoring those rules that govern how we go about 
changing rules.
  Indeed, if one rule can be changed this way with a simple majority 
vote, why not others as well?
  The majority leader has argued that the Senate's record of processing 
the President's judicial nominees is so egregious that it justifies 
breaking the rules and disregarding over 200 years of precedent in 
order to get more nominees confirmed. Let's examine this record. My 
colleague from New York has already discussed at length the number of 
judges, appellate court judges, district court judges, we have approved 
in this Senate since this President has been in office.
  We have the lowest vacancy rate in the Federal judiciary since 
President Reagan was in office. The Senate has confirmed 95 percent of 
the President's nominees. In addition, Democrats have offered to bring 
up several of the disputed nominees for consideration, which would 
bring the confirmation rate closer to 98 percent. Unfortunately, the 
majority leader has rejected that proposed compromise.
  Some have also asserted that Democrats are charting new ground in 
filibustering judicial nominees. Frankly, this is just incorrect. It is 
contrary to the history of the Senate. Republicans did filibuster Abe 
Fortas in 1968 when he was nominated to be the Chief Justice of the 
U.S. Supreme Court. The filibuster was successful. He ultimately 
withdrew his nomination from consideration.
  I agree we have an obligation to process the President's judicial 
nominees in a fair and judicious manner, and, as the record 
demonstrates, that is exactly what we have been trying to do.
  However, I do understand the general frustration surrounding the 
processing of judicial nominees. During the Clinton administration, the 
Republican majority, during several of those years, killed over 60 
nominees through a variety of delay tactics, mostly by refusing to give 
hearings in the Judiciary Committee. As a result, many of those 
nominees never got a chance to have a fair and open debate about their 
qualifications, much less a vote on the Senate floor.
  I believe we should look for ways to improve the confirmation process 
so that it is conducted in a more bipartisan and constructive manner. 
But exercising the so-called nuclear option is not a step in the right 
direction. Let's be clear on what this is about. It is about setting 
the stage for the debate over the next Supreme Court Justice. It is 
about putting in place a procedure that would limit the ability of 
Democrats and moderate Republicans to influence the debate. There would 
be little need to consult or to compromise if the nominee could be 
pushed through the Senate with a straight majority vote.
  As I have discussed, I strongly disagree with the tactics that have 

[[Page S5502]]

chosen here to make these changes. With regard to the merits of the 
proposal to eliminate the filibuster for judicial nominees, I would 
like to take a moment to elaborate on the profound implications of 
moving forward with this effort. I believe such a change would be not 
only detrimental to the Senate as an institution but will also result 
in significant deterioration of the checks and balances that ensure the 
independence of our judiciary.
  Having a procedure in place that allows 40 Senators to keep a nominee 
or legislation from being adopted serves many purposes. Most important, 
it facilitates compromise by guaranteeing the minority a voice in the 
legislative process. Unlike in the House of Representatives, where 
legislation can be easily pushed through with a simple majority vote, 
the Senate is an institution where deliberation and compromise are 
absolutely essential.
  Forcing Senators to achieve common ground in order to complete the 
people's work is something that should be encouraged. Bipartisanship 
has been in short supply in recent years, and we need to be looking for 
ways to work together to address the challenges we face in America.
  I have had the privilege of representing the people of New Mexico for 
over 22 years now in the Senate. I recognize the importance of working 
across the aisle to achieve results. Earlier this week, we held the 
first of several hearings on comprehensive energy legislation to try to 
mark up legislation in that area. I am extremely encouraged by how 
members of the committee from both parties have been working together. 
It is my hope that bipartisanship and sense of compromise can be 
adopted elsewhere in the Senate. This exemplifies how we should be 
facilitating more compromise between the majority and minority parties.
  The filibuster is not only an important check on the majority power 
within the Senate, but it is also an essential check on the executive 
branch. Article II, section 2 of the U.S. Constitution provides the 
Senate and the President shall share the power to appoint judicial 
nominees. The President is granted the authority to nominate. The 
Senate is vested with the authority to provide its advice and consent. 
This is a serious constitutional duty. I do not believe the Senate 
should be relegated to the role of a glorified rubberstamp. That is not 
what the American people want, not what the Founding Fathers 
  The prospect of a filibuster forces the President to submit nominees 
to the Senate who will be able to garner the support of more than a 
simple majority of that President's own party. There are plenty of 
well-qualified, conservative lawyers and judges who would easily be 
confirmed by this Senate. In fact, the Senate has confirmed over 200 of 
them since this President has been in office. At the beginning of this 
Congress, the President chose to resubmit several of the most 
controversial nominees who lacked widespread support, rather than to 
heed the concerns that had been raised about their nominations. The 
Senate has coequal responsibilities in the appointment process. It is 
important for the administration to recognize this when it decides 
which nominees to send to the Senate for consideration.
  Without the filibuster, the President would essentially be free to 
appoint whomever he wants to the Federal judiciary with very little 
restraint. This would threaten the independence of the judiciary, which 
is charged with checking the actions of the executive and legislative 
branches, by allowing a President to stack the courts with individuals 
willing to advance a particular agenda or ideology.
  If the same party controls the Senate and the White House, as is the 
case today, the ability to filibuster is a primary restraint on the 
majority party of using its power in the nomination and confirmation 
process. As the Framers recognized, it is reasonable to require that a 
lifetime appointee have the support of a substantial percentage of 
Senators who have been elected.

  There is a reason why the Framers granted the Senate and not the 
House of Representatives the constitutional authority to provide advice 
and consent. The Senate's procedures ensure extended debate and respect 
for minority views, which in turn facilitate compromise and moderation. 
I personally believe that having qualified and reasonable judges in the 
Federal judiciary, regardless of political party, who interpret the law 
objectively and in accordance with mainstream legal theory is a good 
thing. These are lifetime appointments, which deserve rigorous debate 
and substantial scrutiny. This scrutiny would be significantly 
diminished if the majority party could appoint whoever they want to the 
judiciary without concern for the views of the minority. And the 
independence of the judiciary would be threatened if judges approach 
their work with a particular concern for carrying out the will of the 
party in power at that moment.
  It is not surprising that a President would seek to expand his 
authority in the appointment process. But it is disappointing to think 
that the Senate might accede to this and abrogate its own 
constitutional authority in exercising its obligation to provide advice 
and consent.
  Lastly, the proponents of the nuclear option have said they only want 
to eliminate the filibuster with regard to nominees, not with regard to 
legislation. But nothing about their reasoning is unique to nominees. 
If this can be done with regard to judicial nominees, it can certainly 
be done with regard to executive branch nominees as well. And there is 
no logic for arguing it cannot be done with regard to legislation.
  As I have stated, I have many concerns about employing this tactic 
and disregarding Senate tradition. I urge my colleagues across the 
aisle to seriously consider the ramifications of this so-called nuclear 
option. It is not good for the Senate, it is not good for the delicate 
checks and balances that govern our Government, and it is not in the 
interest of the American people.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from Maryland is 
  Ms. MIKULSKI. Mr. President, I rise to speak against this so-called 
nuclear option. This is a sad day for the Senate because I believe we 
are about to fracture 200 years of precedent and tradition. I think we 
are about to fracture what I had hoped would be a bipartisan approach 
to solving the compelling problems we face in the United States of 
America, and the Republicans are about to change the rules in the 
middle of the game.
  One of the hallmarks of the United States of America is always fair 
play. And fair play means a belief and respect for the rules because we 
are a nation that believes in rules and in the rule of law. Whenever we 
are in competitive situations, we believe in rules. You don't change 
the rules in the middle of the game. You don't change the rules in a 
game you are losing. But here especially there is no reason to change 
because the Bush administration is not losing. They have had more 
nominees confirmed than almost any other Administration in recent 
  This is a manufactured crisis. There are those who say there is a 
crisis in terms of confirming judges. There is no crisis. George Bush 
is not losing. Right now, right this minute, we have confirmed 208 of 
the President's nominees for the bench. That is a 95-percent 
confirmation rate. I would think that getting 95% of what you want 
would make you declare victory. But, oh, no, that is not good enough. 
There is a desire to change the rules so that the President gets 100% 
and we cannot exercise our constitutional responsibility of advise and 
  Now I know that many of my colleagues on both sides of the aisle 
don't want to change the Senate rules. They know the ebbs and flows of 
this institution one day you are in the majority and the next in the 
minority. And they know its not fair to change the rules in the middle 
of the game because doing so undermines century of tradition and the 
very essence of the Senate as the world's premier deliberative body.
  So I have come to the floor today to urge my colleagues to oppose 
this so-called nuclear option. I do this because I firmly believe in my 
heart of hearts that we must always have an independent judiciary and a 
judiciary that has been confirmed according to the traditional roles of 
the Senate. I know it is one of my foremost responsibilities as a 
member of the United States Senate to protect the independence and 
integrity of our federal courts. Because our courts are charged with 
safeguarding the very principles on which

[[Page S5503]]

our nation was built--justice, equality and individual liberty.
  The courthouse door must always stay open. And when someone walks 
through that door, they must find an independent judiciary. In order to 
do that, we cannot turn the Senate into a rubberstamp for any 
administration. We must not compromise our constitutional checks and 
balances over 7 highly controversial judges. The American people 
deserve better and, and the Constitution requires it.
  When Alexander Hamilton and others were at the Constitutional 
Convention inventing America, they wanted checks and balances. They 
wanted no one to have absolute power, they wanted no individual to have 
absolute power, and they wanted no institution within our Government to 
have absolute power. That is why we have the system of checks and 
balances. That is why the greatest check and balance is the advice and 
consent role given to the Senate. The President nominates and the 
Senate has an important co-equal role to play in the confirmation 
  So the Senate has a very real and critical role to play here. It 
can't rubber stamp nominees. It can't give consent without a thorough 
examination and it should not support nominees who don't respect basic 
judicial principles.
  When we are talking about this, we say, What does it mean? Who has 
been nominated? Who has been confirmed? Whom have we opposed? I have 
given the statistics. Since the President has been in office the Senate 
has confirmed 208 of his nominees and rejected only 10. That's 95 
percent approval and those we have rejected have been among the most 
controversial and extreme nominees. Nominees who did not represent the 
mainstream of American legal thought. Nominees hostile to civil rights, 
women's rights, reproductive rights and working families.
  Let's talk about the 208. Let's talk about working on a bipartisan 
basis. Let's talk about Maryland.
  There were three openings on the Federal bench in Maryland for the 
district court. Governor Ehrlich sent forth three names of outstanding 
people of judicial competency. Senator Sarbanes and I moved them 
straightforward and ahead, even though one had been the chairman of the 
Republican Party. We did not care about that. Second, he had even run 
for attorney general. We did not care about that. What we cared about 
was that the Maryland Bar Association said he was qualified.
  No. 2, he had been a U.S. attorney and had done a stunning job, and 
he had extensive legal background in Maryland. We did not play 
politics. We moved Judge Bennett, Judge Quarles, and Judge Titus.
  Then came the court of appeals. Oh, my gosh, guess what came out of 
the Bush administration. They wanted to give us a guy who was not even 
a member of the Maryland bar. Sarbanes and Mikulski said no. That is 
one of the ones that did not even come up. Why? We think if you are 
going to represent Maryland on the court of appeals, you ought to be a 
member of the Maryland bar and have some significant ties to Maryland. 
We threatened a filibuster.
  This is the Maryland seat on the Fourth Circuit Court of Appeals. 
They wanted to give us someone from Virginia. We like Virginia, Senator 
Warner, Senator Allen. We like judges from Virginia, but not for the 
Maryland seat. And Senator Sarbanes and I said we would filibuster. So 
we stopped, prevent our state from losing its seat on the court of 
appeals because of the Senate rules.
  Though some of them never came forth as nominees, we knew we had the 
rules of the Senate to prevent this injustice to Maryland. We invited 
the White House to look at the thousands of lawyers in Maryland who are 
members of the bar, who have judicial competence and judicial 
temperament and commitment to basic constitutional principles. Maryland 
would recognize them.
  But we were ready to use these rules in the Senate to protect the 
Maryland seat and make sure whoever was on the court of appeals for the 
Maryland seat would at least be a member of the Maryland bar or at 
least be from Maryland and have significant ties there.
  Those are the rules. That is how you exercise advice and consent. We 
gave advice, they ignored it, so they were not going to get our 
consent. Hey, those are the rules. We do not want those rules changed, 
and it would be the same if there was a Democrat in the White House.
  We could look at the nominees President Bush has given us. Not only 
do we get people who are not members of a bar, but we get some who are 
outside the judicial mainstream.
  Judge Priscilla Owen is an example of someone who would turn our 
courts in the wrong direction. She has a history of being driven by 
ideology and not law. Her beliefs are far outside the mainstream of 
judicial thinking. She has an extreme ideological agenda on civil 
rights, women's rights and the right to privacy that we severely 
question and make her unsuitable to sit on this federal court.
  She is a judicial activist, that means she has a consistent pattern 
of putting ideology about the law and ignoring statutory language and 
substituting her own views. Something about which even officials in 
this White House have raised concern. Alberto Gonzales, now our 
Attorney General, who once served with her, called her dissent in a 
case ``unconscionable . . . judicial activism'' and in another case 
said her dissent would judicially amend the Texas statute. In other 
words, she was making law rather than interpreting law.
  Her opinions show a bias against consumers, victims and individuals. 
She has consistently ruled against workers, accident victims and 
victims of discrimination. Her decisions impair the rights of ordinary 
people to have access to the courts. On the Texas Supreme Court she has 
restricted a woman's right to choose by ignoring statute and creating 
additional barriers for women seeking to exercise reproductive choice.
  We could go through Owen, and we could go through others. Priscilla 
Owen stands among a handful of nominees who will turn back the clock on 
protecting important constitutional rights. We know through our 
examination of these nominees that they are outside the judicial 
mainstream, and we want to exercise our priority and our responsibility 
on advice and consent. And now Republicans want to focus on the jobs of 
7 people who already have jobs when we have 7.7 million Americans who 

  They want the change the subject away from issue that Americans care 
about to a handful of extreme judicial nominees. They say there is a 
crisis but there are more federal judges now than at any other point in 
our nation's history. This is the lowest vacancy rate on the courts in 
a decade. Republicans have the wrong priorities.
  I had to explain what this nuclear option means to a head of state. 
Did you ever have to explain to someone who is a former head of a 
government in a European country, who himself fought for freedom and 
was a dissident and even in prison, what a nuclear option means? He 
thought we were talking about using nuclear weapons.
  I had to explain this to members of my family, the senior citizens in 
my family. ``Barb, what is this nuclear option? Are we thinking about 
using nuclear weapons?'' We use language here very glibly, and I think 
exaggerated. What I said was we are headed for a meltdown. We cannot 
let the Senate melt down, and we will melt down if we do not stop these 
proceedings from going forth. We need to have an institution that 
functions on a bipartisan basis.
  Some of the happiest and most distinguished accomplishments of my 
life have been accomplished because of working on a bipartisan basis. 
In the 1990s, I worked with the Senator from Colorado, Mr. Hank Brown, 
and we worked to bring Poland, Hungary, and the Czech Republic into 
NATO. We had to stand up to a Democrat such as Senator Moynihan and a 
Republican such as Senator Warner to get the Senate to consider it, but 
we worked on a bipartisan basis, and we extended NATO from old Europe 
to a new Europe. And right now, the people we brought into NATO are 
fighting with us side by side in Iraq and are part of the coalition of 
the willing. Bipartisan relationships did that.
  Because of our work in the Senate where the women get together at 
least once a month to have dinner for friendship and fellowship and to 
talk about

[[Page S5504]]

an agenda, we have done a lot on women's health. We have increased 
mammogram funding research by 700 percent. We have increased funding 
for domestic violence. We have done all this when we worked together.
  My gosh, when we work together we work our best. Let us now stop this 
dangerous course. We should not continue further on this terrible down 
this path on which we are embarking. The American people want us to be 
standing up for jobs. They want us to be able to face straightforward 
the health care crisis, and they want to make sure we stabilize the 
pension crisis in the United States of America. Young people want to be 
able to afford college. They wonder what are we doing here. Republicans 
are spending all this time on the nuclear option and debating 7 
controversial nominees instead of focusing on our national priorities. 
When all is said and done, is will be that more gets said than gets 
  Let's put the nuclear arsenal option back into the missile silo. We 
must do so to preserve the constitutional role of the Senate to advise 
and consent and protect our checks and balances.
  Let's get back to doing the business of the people. The American 
people deserve that and they deserve a Senate that works for them. A 
Senate that governs best when it works together, and let's start 
putting the people first rather than politics.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, last week on Wednesday, we evacuated the 
Capitol. At the instruction of the Capitol Police, more than a few 
Senators and staff actually ran from this building and surrounding 
offices in the very real fear that a plane was carrying a bomb to 
attack this building, the center of our democracy.
  Sadly, Wednesday was not the first time, and Wednesday will likely 
not be the last time, that we guard against threats to our democracy by 
plane or by bomb.
  But there are other threats to our democracy and our freedoms just as 
menacing, equally as dangerous.
  Abraham Lincoln said:

       America will never be destroyed from the outside. If we 
     falter and lose our freedoms, it will be because we destroyed 

  Former Librarian of Congress Daniel Boorstin said:

       It is not slogans or bullets, but only institutions that 
     can make and keep people free.

  And Baron Montesquieu wrote in ``The Spirit of the Laws'':

       There is no liberty, if the judiciary power be not 
     separated from the legislative and the executive.

  The effort to break the rules to allow the President more easily to 
appoint judges that undermine the independence of the Federal judiciary 
is no less than a threat to our democracy, a threat to our freedoms, 
and a threat to our liberties.
  For two centuries, Democrats and Republicans alike have used the 
Senate's rules to protect our democracy, to protect our freedoms, and 
to protect our liberties. After two centuries, it would be a mistake to 
change those rules.
  Unlimited debate allows Senators to protect minority freedoms. 
Unlimited debate helps to ensure that no one party has absolute power. 
Unlimited debate helps to give effect to the Founders' conception of 
checks and balances.
  History will see the actions of this month as what they are: A threat 
to those checks and balances. History will see the actions of this 
month as a terrible attempt to diminish the Senate. History will see 
the actions of this month as an attempt to diminish our democracy.
  If those who seek to change the rules succeed, especially by breaking 
the rules, it will be only a matter of time before the next step comes. 
It will be only a matter of time before some future Senate leader 
decides to once again to break the rules to change the rules, and 
abolish the filibuster altogether.
  And what will the Senate look like then?
  Then all our votes will be simple majority votes. Then lost will be a 
centuries-old check and balance. And then what will be left will be a 
vastly different Senate from the one to which I came in 1978.
  The majority leader has proposed that debate on important judges be 
limited to a fixed number of hours, to 100 hours. That might sound like 
a lot of time.
  But the point is not the number of hours. The point is that at the 
end of a set amount of time, no Member of the minority party need 
participate. At the end of a set amount of time, only the majority 
party will rule. At the end of that set amount of time, there would be 
no more check and balance.
  If one wants to see what the Senate will look like then, look at 
budget resolutions. Like the majority leader's proposed rule, they 
allow for a long period of debate. The leader's proposal calls for 100 
hours of debate on judges. The Budget Act calls for 50 hours of debate 
on budgets.
  Look at the results.
  Rarely do budget resolutions achieve consensus. Since 1992, only one 
budget resolution has received more than 55 votes on final passage.
  This year, the vote on the budget resolution was 52-to-47.
  Last year, the disagreements on the budget were so partisan that the 
majority was not able to bring the conference report on the budget 
resolution to the floor in the Senate.
  In 2003, the vote was as close as it could get: 51-to-50. The Vice 
President had to break the tie vote.
  In 2002, once again, divisions were so partisan that the majority was 
not able to secure a majority in the Senate.
  In 2001, the vote was 53-to-47
  In 2000, the vote was 50-to-48.
  In 1999, the vote was 54-to-44.
  In 1998, the majority was once again unable to adopt a budget 
  And 1997 was the exception that proved the rule. That year, the 
budget resolution achieved a broad consensus, receiving a vote of 76-
  But in 1996, the vote was 53-to-46.
  In 1995, the vote was 54-to-46.
  In 1994, the vote was 53-to-46.
  In 1993, the vote was 55-to-45.
  And in 1992, the vote was 52-to-41.
  Thus, over 14 years, under Republican Presidents and a Democratic 
President, over the course of nearly a decade and a half, only one 
budget resolution has been the product of consensus. Fourteen years, 
and only one budget with more than 55 votes.
  The time limit on debate has not led to working together. The time 
limit on debate has caused partisanship. And three times in the last 
decade, the time limit on debate has led to complete failure.
  That is what would happen to the Senate if we head down this road. 
Votes would become more partisan, if that is possible, but it would 
happen. And the products of those votes would become more extreme.
  If we head down this road for the confirmation of judges, then judges 
will be more partisan. Judges will be more likely to uphold the powers 
of the President who appointed them. And judges will be less likely to 
defend individual freedoms and liberties against the powerful 
  Just think about that for a moment. Under this rule change, judges 
will be less likely to defend individual freedoms and liberties against 
the powerful executive. Why? Because of the partisan nature under which 
a partisan President will have appointed them.
  The Senate's role in protecting against extremism is particularly 
important in the context of nominations for the lifetime jobs of 
Federal judges. The Founders wanted the courts to be an independent 
branch of Government, helping to exercise the Constitution's intricate 
system of checks and balances. The Senate's involvement in the 
confirmation of judges has helped to ensure that the judiciary can be 
that more independent branch. And that independence of the judiciary, 
in turn, has helped to ensure the protection of our democracy, our 
freedoms, and our liberties.
  In ancient Rome, when the Senate lost its power, and the emperor 
became a tyrant, it was not because the emperor abolished the Senate. 
In ancient Rome, when the Senate lost its power, it continued to exist, 
at least in name. But in ancient Rome, when the Senate lost its power, 
in the words of the Senate's historian, Senator Robert Byrd, the Senate 
became ``little more than a name.''
  In ancient Rome, when the Senate lost its power, the Roman Senate was 
complicit in the transfer. The emperor did not have to seize all the 
honors and

[[Page S5505]]

powers. The Roman Senate, one after another, conferred greater powers 
on Caesar.
  It was not the abolition of the Senate that made the emperor 
powerful. It was the Senate's complete deference.
  Like the Roman Senate before us, we risk bringing our diminution upon 
ourselves. We risk bringing upon ourselves a hollow Senate, a mere 
shadow of its past self. And we risk bringing upon ourselves a loss of 
the checks and balances that ensure our American democracy.
  This change, if it succeeds, will leave Senators, as T.S. Eliot 
described in his 1925 poem, as ``The Hollow Men.'' In that poem, Eliot 
wrote of a place like what the Senate would become. He wrote:

       ``Our dried voices, when
       We whisper together
       Are quiet and meaningless
       As wind in dry grass
       This is the dead land
       This is cactus land
       In this hollow valley
       This broken jaw of our lost kingdoms
       In this last of meeting places
       We grope together
       And avoid speech
       Gathered on this beach of the tumid river
       This is the way democracy ends; this is the way democracy 
     ends; this is the way democracy ends; not with a bomb, but a 

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, before the distinguished 
Senator from Montana departs, I want to thank him for obviously 
something that has been well thought out and deeply felt. He is a 
distinguished Senator who has served decades in the Senate and who has 
risen to the position as chairman of the Finance Committee. He 
understands the traditions and the comity of this institution in order 
for it to function. It clearly cannot function unless Senators can get 
along and trust each other, where Senators can have respect for one 
another, and where the minority is not run over all the time by the 
  That is one of the great checks and balances of this constitutional 
system that we have. The rights of the minority are protected because 
of extended debate which, at the end of the day, encourages compromise 
and consensus building.
  As the Good Book says: Come, let us reason together.
  So I thank the Senator for his comments. I thank him for being a 
mentor to me, as I have so enjoyed his company and his leadership as 
well as the company of all these Senators. There is not a Senator here 
that I don't like. I like them all. I want to see this body continue to 
function as it has for 216 years, as the greatest deliberative body in 
the world. We are about to change that dramatically if this nuclear 
option is, in fact, employed.
  I thank the Senator for his comments.
  Mr. President, I want to add in my own little way a plea to the rest 
of the Senators. I have gotten into some of the discussions that are 
going on around this Capitol Building right now, to see if we can head 
off this thing. It doesn't look like we can. It looks like people are 
hardening into their positions. I wonder why. Is it worth changing over 
two centuries of history and precedent in the Senate for what, in 
effect, are five judges? Is it worth giving up the traditions and the 
protection of the minority, under the rules, for over two centuries for 
five judges?
  I was surprised when I looked over the record and found out what my 
voting record has been here. I have voted, under President Bush, for 
209 of his judicial nominees; I have voted against 7. That is 97 
percent of the President's nominees for Federal judgeships that I have 
voted for. Am I not entitled, as the senior Senator from Florida, to 
exercise my judgment on seven people for a lifetime appointment as 
judge, when I don't think they have the judicial temperament in order 
to be judge for life? That is what the Senate is all about. That is 
what the Constitution said it is all about. It says that the judicial 
process is a two-step process. The President nominates and the Senate 
decides. In the old language of the constitutional forefathers it was 
``advise and consent.''
  My advice was, on seven, that I didn't think they had the judicial 
temperament, that they would look dispassionately at an issue, that 
they would look at the facts and apply the law. Those seven seemed to 
me to have their minds already made up.
  That is not what I want in a judge. I want a judge who is going to be 
fairminded, who is going to listen to all the nuances and make a fair 
and reasoned judgment.
  I gave the President the benefit of the doubt on these 209. I can 
tell you, some of those were in Florida. On those I didn't give him the 
benefit of the doubt; those were good because in Florida we have a 
system whereby we have a judicial nominating commission, which is not 
by law but has been by custom over the years, and that judicial 
nominating commission receives the applications of people who want to 
be a Federal district judge, they interview them, and they make a 
recommendation to the Senators and to the White House. The arrangement 
that Senator Graham and I had with the White House, with Alberto 
Gonzales, then the counsel for the White House, was that we would 
interview all of those recommended to us--sometimes it was three, 
sometimes it was six--for the vacancy, and we would tell the White 
House if we had an objection.

  That has worked. On the judges from Florida that are within that 209 
that I voted for, I can tell you they are good appointments.
  But that was the give and take between the Senate and the White House 
in the filling of a judicial vacancy. That is not the ramming down your 
throat a judicial nomination just because the White House wants it.
  I have agreed with the White House 97 percent of the time. You can 
calculate it mathematically, that is 97 percent of the time. So now 
they want to take away the right, under the rule, to filibuster so that 
no matter who comes in, they are going to be approved if they have 50 
votes. It could be 50-50, because the tie would be broken with the Vice 
President sitting as the Presiding Officer of the Senate.
  There is another reason that has just come to my attention why I do 
not want the filibuster to be eliminated from this particular set of 
judges. If it is done for this, what is next? What is next? That the 
majority leader would stand and take away the filibuster and my right 
to filibuster as a Senator? Is he going to do that on what the 
administration is bent on doing, and that is drilling for oil and gas 
off the coast of Florida--drilling for what 18 million Floridians are 
deathly afraid of; that the $50 billion a year tourism industry is 
going to be threatened because of oil lapping up onto our beaches?
  Are they going to take away my right to stand out here and hold up 
such legislation, to drill off the coast of Florida, that would despoil 
our environment? Are they going to take away my right to protect our 
military assets, an asset that is so valuable it is called restricted 
airspace? It is out in the Gulf of Mexico and portions of the Atlantic 
Ocean off Florida, which is why we have so much training in Florida. 
The pilots can go out there in that restricted airspace. Are they going 
to take away my right to utilize the filibuster to protect the 
interests of Florida?
  It is obvious that today they have started trying to drill off the 
coast of Florida. Two weeks ago, I had a meeting with the Secretary of 
the Interior, and I pleaded with her, as she had agreed back in 2001, 
that she would not include within the 5-year plan that there would be 
drilling further, other than what was the agreement back in 2001, to 
extend an additional 1.5 million acres for oil and gas leasing, and it 
started to intrude into the eastern Gulf of Mexico. She promised it in 
the 5-year plan which was from 2002 to 2007. So when I met with her 2 
weeks ago I asked her to give me that----

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. NELSON of Florida. I ask for an additional 5 minutes to proceed.
  Mr. REID. It is my understanding the majority leader is on his way. I 
have no problem with the Senator speaking and the same time would be 
extended to the majority.
  Mr. KYL. Reserving the right to object, I was going to speak at 6 
o'clock. My understanding is the minority leader and the majority 
leader wanted to intercede with a brief colloquy or comments. In order 
for my scheduling purposes, I would like to know what the

[[Page S5506]]

timing then might be. Can the distinguished minority leader give me 
some idea?
  Mr. REID. The Republican leader is going to come to the floor and 
talk about what the schedule will be the next couple of days. It should 
not take long. I ask when he shows up that the distinguished Senator 
from Florida yield to the majority leader.
  Mr. NELSON of Florida. Of course.
  Mr. REID. We get 5 minutes, they get 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Florida is recognized for an additional 5 minutes.
  Mr. NELSON of Florida. This filibuster issue is so important to me as 
I project how it can be taken away from me as I try to protect the 
interests of Florida.
  I was about to point out that although the Secretary of the Interior 
2 weeks ago, when I requested in the next 5-year plan that she extend 
the same protections of no additional drilling in the Gulf of Mexico 
off of Florida, would not give me that assurance.
  I now see, as the result of a vote today in the House of 
Representatives, an amendment offered for oil and gas drilling off of 
the State of Florida. It may have been this amendment, may have been 
just for gas drilling. That is the proverbial camel's nose under the 
  All drilling, happily, in that amendment failed in the House of 
Representatives, but the Bush administration's intent is now clear 
since the Secretary of Interior would not give me that assurance that 
she gave me back in 2001. It is their intent to start drilling off the 
coast of Florida in the Gulf of Mexico, which brings me back to the 
  I don't want to lose this precedent of 216 years in the Senate, to 
lose this right of a filibuster. If we do it with regard to these 
judges, then what is coming next, they will take away our right to 
stand up here for the interests of our States?
  This is a matter of tremendous gravity. It affects all of us.
  I yield the floor.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Chambliss). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KYL. Mr. President I ask unanimous consent that the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the Senator from Arizona is recognized.
  Mr. KYL. Might I inquire of the distinguished minority leader, the 
majority leader will be here shortly?
  Mr. REID. A few minutes ago he said he was on his way.
  Let me say, one of the distinguished clerks, without divulging a 
person's name, said that when Senator Frist and I talk about coming to 
the floor, it is dog time, meaning every minute is 7 minutes, so you 
never know.
  Mr. KYL. Mr. President, I will go ahead and in between the sandwich 
we will have the meat which will be the conversation between the two 
leaders, but I will proceed with my remarks.
  Now I am told the leader is indeed on his way, so I will suspend and 
yield to the distinguished majority leader.
  The PRESIDING OFFICER (Mr. Chambliss). The majority leader is 
  Mr. FRIST. Mr. President, many Members have been inquiring about the 
schedule, but I do want to thank all Senators for their statements 
today, as well as yesterday. The debate time has been evenly divided. 
We have heard from a number of people. This is our second day of debate 
on the nomination of Priscilla Owen for the Fifth Circuit Court. We 
have not had very much in the way of pauses in the debate. We have used 
floor time well. And from both leaders, we thank everybody for their 
participation and cooperation. It has been a constructive debate.
  Tomorrow, we will resume debate. We will be continuing debate 
tonight, but for people's planning purposes, tomorrow we will resume 
debate on Priscilla Owen, and it would be my intent to ask consent for 
some limitation of time before we vote on the Owen nomination. If we 
are unable to reach an agreement, I would then file a cloture motion 
tomorrow, on Friday.
  On Monday, we would return to session and continue the debate on 
Priscilla Owen, much in the same vein it has been yesterday, today, and 
will be tomorrow. I encourage, once again, our colleagues to take 
advantage of the opportunity to speak. The reason we are spending the 
time is to make sure all ideas and thoughts and concerns are expressed.
  The Democratic leader and I have discussed this, and we will have a 
vote on Monday at approximately 5:30. It will be a procedural vote. I 
anticipate it will be--we will say 5:30 now. Senators should return for 
debate on this vote. On Monday, Senators will have as much time as they 
need to debate the pending nomination. We will file cloture tomorrow, 
and then we would have the cloture vote on Tuesday. And the timing of 
that vote is something the Democratic leader and I have not talked 
about but will do so and make our colleagues aware.
  With that understanding--and that is the plan--we will have no 
further votes this evening. And we would have no votes tomorrow as well 
but continue debate.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, very briefly, before I address the primary 
subject of my presentation, I would like to do two things. First, I ask 
unanimous consent to have printed in the Record, after my remarks, the 
Washington Times op-ed piece by a former majority leader of the Senate, 
Bob Dole, dated Thursday, May 19, 2005.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. KYL. Secondly, I would like to very briefly remind my colleagues 
of the fact that when we talk about the numbers of judges President 
Bush has nominated who have been confirmed, it is important for us to 
remember that there has never been any controversy with respect to 
district court judges. Almost all Presidents' district court judges are 
confirmed. Those are recommended for nomination usually by Members of 
the Senate, and it is rare, indeed, that we would object to each 
other's recommendations. Instead, for all Presidents there is a very 
high number of district court judges confirmed. And indeed, that was 
the case with President Clinton and has been the case so far with 
President Bush.
  So when talking about the numbers of judges confirmed, and wondering 
what the fuss is all about, our constituents might want to focus on the 
fact that what the other side usually does not talk about is the fact 
that the judges that are not being confirmed are circuit court judges. 
These are the judges directly below the U.S. Supreme Court. There are 
not very many of them. They are very important. And these are the 
judges who are being filibustered by the minority.

  How many? Well, in the case of President Bush, in his first term--and 
none have been confirmed now at the beginning of his second term, so 
this is the full story--35 of the President's 52 nominees have been 
confirmed. That is only a confirmation rate of two-thirds or 67 
percent. And that puts that at the lowest percentage of any President 
in our modern history. This chart says ``ever.'' And that is what we 
are talking about here, the 10 filibusters and 6 other threatened 
filibusters last year of the President's circuit court judges who have 
been filibustered and, as a result, have never received an up-or-down 
vote. That is what is troubling us.
  So I want folks to understand that instead of talking about almost 
200 judges confirmed, and only a very few rejected, what we are talking 
about is the circuit court judges. And of those, only 35 of 52 have 
been confirmed. That is what this is all about. And these are the 
judges directly below the position of the U.S. Supreme Court.
  What I want to talk about today is a very simple and yet a very 
momentous question. Does the Senate have the power to govern itself? 
Does the Senate have the power to govern itself? Specifically, can a 
majority of the Senate establish how we are governed? I have heard a 
lot of careless talk over the last few months and days. Some have 
charged the Senate will soon break the rules to change the rules and 
destroy the Senate as we know it. Some Senators claim the Senate is 
about to abdicate all constitutional responsibility, is becoming a 
rubberstamp. Others

[[Page S5507]]

raise the specter of lawlessness and banana republics. Worst of all, 
Senators speak figuratively of detonating nuclear bombs and shutting 
down the Senate's business.
  This kind of hysteria does a tremendous disservice not only to the 
Senate but to our Nation as a whole. Not only are the claims blatantly 
false, but they add to the already unacceptable level of incivility in 
our political affairs. It is often said we should disagree without 
being disagreeable. That is a sentiment with which I wholeheartedly 
concur. A good first step would be for my colleagues to stop making 
outrageous claims that Republicans want to destroy this institution.
  The reality is the Senate is now engaged in a historic debate and, I 
believe, a historic effort to protect constitutional prerogatives and 
the proper checks and balances between the branches of our Government.
  Republicans seek to right a wrong that has undermined 214 years of 
tradition--wise, carefully thought out tradition. The fact that the 
Senate rules theoretically allowed the filibuster of judicial 
nominations, but were never used to that end, is an important indicator 
of what is right and why the precedent of allowing up-or-down votes is 
so well established. It is that precedent that has been attacked and 
which we seek to restore.
  Fortunately, the Senate is not powerless to prevent a minority from 
running roughshod over its traditions. It has the power--indeed, I 
would say the obligation--to govern itself. As I will demonstrate 
today, that power to govern itself easily extends to the device that 
has come to be known as the constitutional option.
  The Constitution is clear about the scope of the Senate's power to 
govern itself. Article I, section 5, clause 2 of the Constitution 
states that each House may determine the rules of its proceedings.
  The Supreme Court of the United States has rarely interpreted this 
clause, but one case is important for our purposes, the case of the 
United States v. Ballin, a case decided in 1892. That case dealt with 
the power of the majority of the House of Representatives to make 
rules, and it contains two holdings that bear on our situation today.
  First, the Supreme Court held that the powers delegated to the House 
or the Senate through article I, section 5, clause 2 are powers held by 
a simple majority of the quorum. The Constitution states that a 
majority of Members constitutes a quorum, and the Supreme Court, 
therefore, held that ``when a majority are present the house is in a 
position to do business.''
  The Supreme Court continued:

       All that the Constitution requires is the presence of a 

  Thus, a majority is all the Constitution requires for us to make 
rules, to set precedents, and to operate on a day-to-day basis. The 
Supreme Court made this clear.
  Second, the Supreme Court held that the power to make rules is not 
one which, once exercised, is exhausted. It is a continuous power, 
always subject to being exercised by the House. By ``House,'' the court 
means the House of Representatives or the Senate. The import of this 
statement is crucial for present purposes. The power of the majority of 
Senators to define Senate procedures is one that exists at all times, 
whether at the beginning, the middle, or the end of Congress.
  The constitutional background is simple and uncomplicated. We can 
govern ourselves. We can do it by majority vote, and we can do it at 
any time. Let me repeat: The Supreme Court has held that we have the 
right to govern ourselves, that we can do it by majority vote, and we 
can do it any time.
  Let's look at how the Senate employs its constitutional power to 
govern itself. There are four basic ways that the Senate does so: In 
standing rules, precedents, standing orders, and in rulemaking 
statutes. I will discuss each briefly in turn.
  First, the Senate has adopted standing rules to govern some but not 
all Senate practices and procedures. I have seen much confusion in the 
press and even, sadly, in this body about those standing rules. Some 
argue that the standing rules are the be-all and end-all of Senate 
practice and procedure. The confusion might be understandable outside 
the Senate, but Senators know that these rules are but one aspect of 
the overall set of tools, the broader rules that the Senate uses to 
govern itself.
  That brings us to the second way the Senate exercises its 
constitutional power: the creation of precedents. Precedents are 
created whenever the Presiding Officer rules on a point of order, when 
the Senate sustains and/or rejects an appeal of the Presiding Officer's 
ruling on a point of order, or when the Senate itself rules on a 
question that has been submitted to it by the Presiding Officer.
  As former Parliamentarian and Senate procedural expert Floyd Riddick 
has said:

       The precedents of the Senate are just as significant as the 
     rules of the Senate.

  Let me repeat what Mr. Riddick said:

       The precedents of the Senate are just as significant as the 
     rules of the Senate.

  Indeed, as we will see, precedents have sometimes been created that 
directly contradict the Standing Rules of the Senate. I will return to 
that point later, but I want everyone to remember what Mr. Riddick 
  A third way that the Senate exercises its constitutional power is 
through standing orders which can be adopted by legislation, Senate 
resolutions, or run-of-the-mill unanimous consent agreements. It is 
worth pausing to note that the Senate regularly overrides the standing 
rules and precedents of the Senate through unanimous consent 
agreements. You saw that a few minutes ago. Our leaders get together 
and decide, for example, to change the time to hold a cloture vote, 
even though rule XXII mandates that the vote shall occur 1 hour after 
the Senate comes into session on the second day after the cloture 
petition is filed. Yet the leaders move the votes in direct 
contradiction of the rules.
  Of course, a unanimous consent agreement is formalistically 
unanimous. But that temporary rule change, if you want to call it that, 
is done completely outside the standing rules.
  How can we do this? How can the Senate ignore the Standing Rules of 
the Senate? The answer is simple. It goes to the essence of the 
situation before us today. As the Supreme Court held, the Constitution 
gives the Senate the power to make rules and govern itself on a 
continuous basis. We are not held hostage to the standing rules, nor 
are we required to go through the cumbersome process of amending the 
standing rules when it is necessary to get something done. This has 
always been true.

  A fourth way that the Senate exercises its constitutional power is 
through rulemaking statutes. For example, for 30 years the Budget Act 
has been placing severe restrictions on the rights of Senators to 
debate. Indeed, the Congressional Research Service has identified 26 
rulemaking statutes that somehow limit the ability of individual 
Senators to debate and/or amend legislation. Think about that for a 
moment. We hear much pontificating on this floor about the supposedly 
sacred and untouchable right of Senators to debate on an unlimited 
basis. Yet, arguably, our most important function, that of ensuring 
that government services are budgeted and receive funding, is subject 
to carefully crafted restrictions of that right of debate. We have 50 
hours of debate, followed by a majority vote, period. For generations, 
Senators have judged some limits on debate are necessary just as a 
matter of common sense. This is one of them.
  Parenthetically, no matter how many times a few Senators say 
otherwise, this controversy before us now has nothing whatsoever to do 
with free speech, as the minority leader himself has acknowledged. This 
dispute has never been about the length of debate. It is about blocking 
judicial nominees. We will have plenty of debate on all of the 
nominees, as much as anyone wants.
  I would like to move to another important aspect of this discussion: 
The role of tradition and norms of conduct in the day-to-day 
functioning of the Senate. This is crucial. Although it is frequently 
said that the unique features of the Senate are individual Senator's 
rights to demand and amend, there is another even more central aspect 
to Senate procedure. As I see it, the overriding feature of the Senate 
is the mutual self-restraint and respect for the settled norms of this 
body. I would like to consider a few examples.
  Senators limit their speech on an informal basis every day. We cut 

[[Page S5508]]

remarks so that others can speak. We did that a few moments ago. We 
acquiesce in unanimous consent agreements that will have the effect of 
denying ourselves any chance to speak on a subject. We decline to 
object to procedural unanimous consent requests even though we might 
have good reason to want to slow down Senate business. We acquiesce in 
our leader's floor schedule. We work with bill managers to limit 
amendments so that the Senate can function, so that each individual 
Senator's rights do not become an impediment to the task of governing. 
Senators have rights, but we also have obligations to each other and to 
the Nation.
  So we limit our rights on the basis of mutual respect and a belief in 
good government but, candidly, also out of fear of retaliation. If I 
assert my rights too forcefully, I not only disrespect my colleagues, 
but I threaten my own public policy goals. The result is a complicated 
mutual truce of sorts that allows us to do the people's business in an 
orderly way. In a word, we gain institutional stability.
  In short, the Senate is institutionally stable, not just because of 
rules, precedents, or the standing order, or the rulemaking statutes I 
discussed. The body is stable because we respect each other's 
prerogatives. We understand that any breach of the truce will produce a 
reaction. And it is that basic understanding of physics, action, and 
reaction, coupled with a genuine goodwill that allows us to function 
even with the many individual rights that we possess. The rights only 
work because we so often choose not to exercise them. So it is not just 
rights that define the Senate but also restraint.
  Which brings us back to the filibuster of judicial nominations. It is 
certainly the case that the Standing Rules of the Senate do countenance 
the filibuster of judicial nominations, but it is equally the case that 
the longstanding norms of the Senate do not. Until 2003, no judicial 
nominee with demonstrable support of a majority of Senators had ever 
been denied an up-or-down vote on the Senate floor through a 
filibuster. Even on the rare occasions where there were attempts, they 
failed on a bipartisan basis. And why? Because the filibuster of 
judicial nominations used as a minority veto was not part of our 
tradition and never had been. Again, out of respect for fellow Members, 
for the President, and for the judiciary, and out of a recognition of 
the long-term impact of such tactics, the Senate had always declined to 
march down this path.
  When I entered the Senate in 1995, I had grave concerns about some of 
more activist nominees that President Clinton sent to us.
  But I listened to Chairman Orrin Hatch, Majority Leader Trent Lott, 
and many others. They taught that we had a longstanding Senate 
tradition against blocking Senate nominations by filibuster. So I 
joined Democrats and Republicans alike in making sure there were no 
  Ironically, some point to those successful cloture votes for 
confirmed judges and claim those nominees were filibustered. Well, all 
that establishes is that both parties ensured a supermajority to end 
debate, precisely to adhere to historical norms. We took the steps to 
ensure those judicial nominees who reach the Senate floor received the 
fair up-or-down votes to which they were entitled. Again, the standing 
rules might have permitted such obstruction, but the Senate norms and 
traditions did not.
  To the extent the rules technically permitted such obstruction, the 
traditions had rendered the power obsolete and inert. In common law, 
there is a doctrine called desuetude, which means that obsolete or 
unenforced laws shall not have effect in the future even if not 
formally repealed. In other words, a law that is de facto unenforced 
may be treated as ineffective de jure as well.
  We faced a similar situation in the Senate. In fact, our tradition 
was our rule. To minimize the traditions of this body is to display a 
naive and legalistic misunderstanding of the institution. To say we are 
a body of traditions is meaningless if we do not acknowledge that our 
traditions have content and meaning. There can be no question that the 
filibusters of the last Congress broke that Senate tradition and, 
therefore, the set way this body had governed itself. By breaking 
traditions of the Senate, members of the minority should have known 
they would force the Senate to react. Tradition should never change 
without consensus, and a consensus requires, at a minimum, a majority. 
The question is, what are we to do when norms and traditions are 
changed by the minority? What do we do when there is no consensus, just 
a minority with a determination to exploit dormant rules to further 
partisan end? The Senate can do one of two things: Let our traditions 
be transformed and permit rule by minority or we can insist that the 
Senate maintain traditional norms and take action to protect them.
  That brings us to the constitutional option itself. The 
constitutional option is nothing more than the Senate governing itself, 
as the Constitution provides, by acts of majorities of Senators. The 
Senate has been in this situation before 4 times over a 10-year period, 
when the Senate majority reacted to a minority using rules that had not 
traditionally been used to obstruct Senate business. My colleague 
Senator McConnell will discuss each instance in depth. I address one in 
particular by way of illustration.
  In 1977, two Senators attempted to block a natural gas deregulation 
bill after cloture had already been invoked. They were succeeding 
through a strategy of ``filibuster by amendment.'' Post-cloture debate 
time had lapsed, but the obstructing Senators could still call up 
amendments, force quorum calls, and force rollcall votes on the 
amendments. Rule XXII prohibited dilatory or nongermane amendments, but 
Senate procedure did not rule these amendments out of order. True, a 
Senator could raise a point of order against one of these dilatory 
amendments, but any favorable ruling could be appealed. A rollcall vote 
could then be demanded on that appeal. And once that rollcall vote 
began, the obstructing Senators could accomplish their slowdown in a 
different way--filibuster by rollcall vote. To make matters worse, in 
1977, before any point of order could even be made against an 
amendment, the amendment in question had to be read by the clerk. By 
objecting to the routine courtesy of waiving the reading of the 
amendment, the obstructing Senators delayed the business of the Senate 
even further.
  That all may seem complicated, but there is one undeniable truth 
about what these obstructing Senators were doing. It was all completely 
permitted under the standing rules and the precedents of the Senate. At 
the same time, however, these tactics were in violation of settled 
Senate norms and practices. So what was the Senate to do?
  The answer came when the then-Democratic majority leader made the 
decision these new tactics were dilatory, in violation of the 
traditional norms, and could no longer prevail. He asked then-Vice 
President Walter Mondale to sit in the chair in his capacity as 
President of the Senate. The Democratic majority leader made a point of 
order that ``when the Senate is operating under cloture, the chair is 
required to take the initiative under Rule XXII to rule out of order 
all amendments that are dilatory or which on their face are out of 
order.'' Mondale sustained the point of order, even though it had no 
foundation in the rules or precedents of the Senate. Another Senator 
appealed the Mondale ruling, and the Democratic majority leader moved 
to table. The Senate then voted to table the appeal. In doing so, the 
Senate created a new precedent. But that precedent ran directly 
contrary to the Senate's longstanding procedures which had required 
Senators to raise points of order to enforce Senate rules. Under the 
new precedent established by the Senate, no such point of order would 
be necessary.

  Again, this may seem complicated, but these small changes had 
dramatic effects. The Democratic majority leader began to call up each 
of the dilatory amendments so the Chair could rule them out of order. 
One by one, the Chair obliged. Under normal circumstances, an appeal 
would have been in order, but the majority leader exercised his right 
of preferential recognition to block any appeal. He quickly called up 
every remaining amendment, Vice President Mondale ruled them out of 
order, and all of the amendments were disposed of.
  Nearly 20 years later, the Senator who orchestrated those events in 

[[Page S5509]]

explained to the Senate what he had done. He explained:

       I asked Mr. Mondale, the Vice President, to go please sit 
     in the chair; I wanted to make some points of order and 
     create new precedents that would break these filibusters. And 
     the filibuster was broken--back, neck, legs, and arms. So 
     there should be no confusion about what happened on that day.

  That was the constitutional option in action. The Senate faced a 
situation where a minority of Senators was frustrating Senate business 
in an untraditional way. The majority wished to proceed. The majority 
did not propose any formal rules change, refer the proposal to the 
Rules Committee, wait for its action, and then bring it to the floor 
under rule XXII's cloture provisions for such rule change proposals. 
That procedure was not followed. Instead, the majority leader 
recognized that the Senate had the constitutional power to bypass that 
route, which is exactly what the Senate did.
  As I mentioned earlier, that same Democratic leader would create 
several other precedents while serving as majority leader, in each case 
because he concluded the existing standing rules and precedents of the 
Senate were inadequate, and that a majority of Senators had the power 
to alter the way the Senate governs itself. In 1979, for example, a new 
precedent was created to prevent legislation on appropriations bills, 
in direct contravention of the text of the standing rules at that time. 
In 1980, the Senate used the constitutional option to eliminate the 
ability to debate and filibuster the motion to proceed to a particular 
item on the Executive Calendar. That situation is remarkably similar to 
the one we face today. In 1987, in a complicated set of maneuvers, the 
Senate created new precedents to limit minority rights and declare that 
certain dilatory tactics during the morning hour were out of order.
  I will not examine each of these historical events in detail today. 
Instead, I ask unanimous consent to have printed in the Record a copy 
of the policy paper prepared by the Republican Policy Committee, which 
I chair, which examined each of these events in great detail.
  There being no objection, the material was ordered To be printed in 
the Record, as follows:

      The Senate's Power To Make Procedural Rules by Majority Vote


       In recent months, there has been growing public interest in 
     the Senate's ability to change its internal procedures by 
     majority vote. The impetus for this discussion is a Senate 
     minority's use of the filibuster to block votes on 10 
     judicial nominations during the 108th Congress. Until then, a 
     bipartisan majority of Senators had worked together to 
     guarantee that filibusters were not to be used to permanently 
     block up-or-down votes on judicial nominations. For example, 
     as recently as March 2000, Majority Leader Trent Lott and 
     Minority Leader Tom Daschle worked together to ensure that 
     judicial nominees Richard Paez and Marsha Berzon received up-
     or-down votes, even though Majority Leader Lott and most of 
     the Republican caucus ultimately voted against those 
     nominations. But that shared understanding of Senate norms 
     and practices--that judicial nominations shall not be blocked 
     by filibuster--broke down in the 108th Congress.
       This breakdown in Senate norms is profound. There is now a 
     risk that the Senate is creating a new, 60-vote confirmation 
     standard. The Constitution plainly requires no more than a 
     majority vote to confirm any executive nomination, but some 
     Senators have shown that they are determined to override this 
     constitutional standard. Thus, if the Senate does not act 
     during the 109th Congress to restore the Constitution's 
     simple-majority standard, it could be plausibly argued that a 
     precedent has been set by the Senate's acquiescence in a 60-
     vote threshold for nominations.
       One way that Senators can restore the Senate's traditional 
     understanding of its advice and consent responsibility is to 
     employ the ``constitutional option''--an exercise of a Senate 
     majority's power under the Constitution to define Senate 
     practices and procedures. The constitutional option can be 
     exercised in different ways, such as amending Senate Standing 
     Rules or by creating precedents, but regardless of the 
     variant, the purpose would be the same--to restore previous 
     Senate practices in the face of unforeseen abuses. Exercising 
     the constitutional option in response to judicial nomination 
     filibusters would restore the Senate to its longstanding 
     norms and practices governing judicial nominations, and 
     guarantee that a minority does not transform the fundamental 
     nature of the Senate's advice and consent responsibility. The 
     approach, therefore, would be both reactive and restorative.
       This constitutional option is well grounded in the U.S. 
     Constitution and in Senate history. The Senate has always 
     had, and repeatedly has exercised, the constitutional power 
     to change the Senate's procedures through a majority vote. 
     Majority Leader Robert C. Byrd used the constitutional option 
     in 1977, 1979, 1980, and 1987 to establish precedents 
     changing Senate procedures during the middle of a Congress. 
     And the Senate several times has changed its Standing Rules 
     after the constitutional option had been threatened, 
     beginning with the adoption of the first cloture rule in 
     1917. Simply put, the constitutional option itself is a 
     longstanding feature of Senate practice.
       This paper proceeds in four parts: (1) a discussion of the 
     constitutional basis of the Senate's right to set rules for 
     its proceedings; (2) an examination of past instances when 
     Senate majorities acted to define Senate practices--even 
     where the written rules and binding precedents of the Senate 
     dictated otherwise; (3) an evaluation of how this history 
     relates to the present impasse regarding judicial nomination 
     filibusters; and (4) a clarification of common 
     misunderstandings of the constitutional option. The purpose 
     of this paper is not to resolve the political question of 
     whether the Senate should exercise the constitutional option, 
     but merely to demonstrate the constitutional and historical 
     legitimacy of such an approach.

      The Constitution: the Senate's Right to Set Procedural Rules

       The Senate's constitutional power to make rules is 
     straightforward, but two issues do warrant brief 
     elaboration--the number of Senators that are constitutionally 
     necessary to establish procedures and whether there are any 
     time limitations as to when the rulemaking power can be 
       The Supreme Court addressed both of these questions in 
     United States v. Ballin, an 1892 case interpreting Congress's 
     rulemaking powers. [144 U.S. 1 (1892).] First, the Court held 
     that the powers delegated to each body are held by a simple 
     majority of the quorum, unless the Constitution expressly 
     creates a supermajority requirement. [Ballin, 144 U.S. at 6. 
     There is no serious disagreement with the Supreme Court's 
     conclusion in Ballin. Indeed, Senator Edward Kennedy has said 
     that only a majority is necessary to change Senate 
     procedures. Congressional Record, Feb. 20, 1975, S3848. 
     Senator Charles Schumer conceded during a Judiciary 
     subcommittee hearing on the constitutionality of the 
     filibuster that Senate rules ``could be changed by a majority 
     vote.'' S. Hrg. 108-227 (May 6, 2003), at 60.] The 
     Constitution itself sets the quorum for doing business--a 
     majority of the Senate. [U.S. Const., art. I, 5, cl. 1.] 
     Second, the Supreme Court held that the ``power to make rules 
     is not one which once exercised is exhausted. It is a 
     continuous power, always subject to be exercised by the 
     house.'' [Ballin, 144 U.S. at 5.] Thus, the Supreme Court has 
     held that the power of a majority of Senators to define the 
     Senate's procedures exists at all times whether at the 
     beginning, middle, or end of a Congress.
       The Senate majority exercises this constitutional 
     rulemaking power in several ways:
       First, it has adopted Standing Rules to govern some Senate 
     practices and procedures. Those rules formally can be changed 
     by a majority vote. Any motion to formally amend the Standing 
     Rules is subject to debate, and Senate Rule XXII creates a 
     special two-thirds cloture threshold to end that debate.
       Second, the Senate operates according to Senate precedents, 
     i.e., rulings by the Chair or the Senate itself regarding 
     questions of Senate procedure. A precedent is created 
     whenever the Chair rules on a point of order, when the Senate 
     sustains or rejects an appeal of the Chair's ruling on a 
     point of order, or when the Senate itself rules on a question 
     that has been submitted to it by the Chair. [Floyd M. 
     Riddick, Senate Parliamentarian, Oral History Interviews 
     (November 21, 1978), Senate Historical Office, Washington, 
     D.C., at 429.] As former parliamentarian and Senate 
     procedural expert Floyd M. Riddick has said, ``The 
     precedents of the Senate are just as significant as the 
     rules of the Senate.'' [Riddick interview at 426.]
       Third, the Senate binds itself through rule-making statutes 
     that constrain and channel the consideration of particular 
     matters and guarantee that the Senate can take action on 
     certain matters by majority vote. At least 26 such rule-
     making statutes govern Senate procedure and limit the right 
     to debate, dating back to the 1939 Reorganization Act and 
     including, most prominently, the 1974 Budget Act. [Martin B. 
     Gold, Senate Procedure and Practice (2004), at 5. For a 
     complete list of the 26 statutes that limit Senate debate, 
     see John Cornyn, Our Broken Judicial Confirmation Process and 
     the Need for Filibuster Reform, 27 Harv. J. L. Pub. Pol'y 
     181,213-214 (2003).]
       Finally, the Senate can modify the above procedures through 
     Standing Orders, which can be entered via formal legislation, 
     Senate resolutions, and unanimous consent agreements.
       It is important to emphasize, however, that these rules are 
     the mere background for day-today Senate procedure. As any 
     Senate observer knows, the institution functions primarily 
     through cooperation and tacit or express agreements about 
     appropriate behavior. Most business is conducted by unanimous 
     consent, and collective norms have emerged that assist in the 
     protection of minority rights without unduly hindering the 
     Senate's business.

[[Page S5510]]

       Consider, for example, the Senate's contrasting norms 
     regarding the exercise of individual Senators' procedural 
     rights. Under the rules and precedents of the Senate, each 
     Senator has the right to object to consent requests and, with 
     a sufficient second, to demand roll call votes on customarily 
     routine motions. If Senators routinely exercised those 
     rights, however, the Senate would come to a standstill. Such 
     wholesale obstruction is rare, but not because the Senate's 
     standing rules, precedents, and rulemaking statutes prohibit 
     a Senator from engaging in that kind of delay. Rather, 
     Senators rarely employ such dilatory tactics because of the 
     potential reaction of other Senators or the possibility of 
     retaliation. As a result, informed self enforcement of 
     reasonable behavior is the norm.
       At the same time, some ``obstructionist'' tactics have long 
     been accepted by the Senate as features of a body that 
     respects minority rights. Most prominent is the broadly 
     accepted right of a single Senator to speak for as long as he 
     or she wants on pending legislation, subject only to the 
     right of the majority to invoke cloture and shut off debate. 
     Indeed, an overwhelming and bipartisan consensus in support 
     of the current legislative filibuster system has existed for 
     30 years. [Standing Rule XXII's standard for cloture--three-
     fifths of Senators ``duly chosen and sworn''--has been in 
     effect since 1975.] Thus, the norms of the Senate tolerate 
     some, but not all, kinds or degrees of obstruction.
       Thus, while written rules, precedents, and orders are 
     important, common understandings of self-restraint, 
     discretion, and institutional propriety have primarily 
     governed acceptable Senatorial conduct. It is the departures 
     from these norms of conduct that have precipitated 
     institutional crises that require the Senate to respond.

  The History: the Senate's Repeated Use of the Constitutional Option

       The Senate is a relatively stable institution, but its 
     norms of conduct have sometimes been violated. In some 
     instances, a minority of Senators has rejected past practices 
     and bipartisan understandings and exploited heretofore ``off 
     limits'' opportunities to obstruct the Senate's business. At 
     other times, a minority of Senators has abused the rules and 
     precedents in a manner that violates Senators' reasonable 
     expectations of proper procedural parameters. These are 
     efforts to change Senate norms and practices, but they do not 
     necessarily have the support of a majority.
       Such situations create institutional conundrums: what 
     should be done when a mere minority of Senators changes 
     accepted institutional norms? One option is to acquiesce and 
     allow ``rule by the minority'' so that the minority's norm 
     becomes the Senate's new norm. But another option has been 
     for the majority of Senators to deny the legitimacy of the 
     minority Senators' effort to shift the norms of the entire 
     body. And to do that, it has been necessary for the majority 
     to act independently to restore the previous Senate norms of 
       This section examines those illustrative instances--
     examples of when the Senate refused to permit a minority of 
     Senators to change norms of conduct or to otherwise exploit 
     the rules in ways destructive to the Senate, and, instead, 
     exercised the constitutional option.
       When Senator Robert C. Byrd was Majority Leader, he faced 
     several circumstances in which a minority of Senators (from 
     both parties) began to exploit Senate rules and precedents in 
     generally unprecedented ways. The result was obstruction of 
     Senate business that was wholly unrelated to the 
     institution's great respect for the right to debate and 
     amend. Majority Leader Byrd's response was to implement 
     procedural changes through majoritarian votes in order to 
     restore Senate practices to the previously accepted norms of 
     the body.
       In 1977, two Senators attempted to block a natural gas 
     deregulation bill after cloture had already been invoked. 
     [See Martin B. Gold & Dimple Gupta, The Constitutional Option 
     to Change Senate Rules and Procedures: a Majoritarian Means 
     to Overcome the Filibuster, 28 Harv. J. L. Pub. Pol'y 
     206,262-264 (2004).] A ``post-cloture filibuster'' should 
     seem counterintuitive for anyone with a casual acquaintance 
     with Senate rules, but these obstructing Senators had found a 
     loophole. Although further debate was foreclosed by Rule XXII 
     once post-cloture debate was exhausted, the Senators were 
     able to delay a final vote by offering a series of amendments 
     and then forcing quorum calls and roll call votes for each 
     one. Even if the amendments were ``dilatory'' or ``not 
     germane'' (which Rule XXII expressly prohibits), Senate 
     procedure provided no mechanism to get an automatic ruling 
     from the Chair that the amendments were defective. A Senator 
     could raise a point of order, but any favorable ruling could 
     be appealed, and a roll call vote could be demanded on the 
     appeal. Moreover, in 1975, before a point of order could even 
     be made, an amendment first must have been read by the clerk. 
     While the reading of amendments is commonly waived by 
     unanimous consent, anyone could object and require a reading 
     that could further tie up Senate business. Thus, the finality 
     that cloture is supposed to produce could be frustrated.
       These practices were proper under Senate rules and 
     precedents, but Majority Leader Byrd concluded in this 
     context that these tactics were an abuse of Senate Rule XXII. 
     His response was to make a point of order that ``when the 
     Senate is operating under cloture the Chair is required to 
     take the initiative under rule XXII to rule out of order all 
     amendments which are dilatory or which on their face are out 
     of order.'' [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 263.] 
     The Presiding Officer, Vice President Walter Mondale, 
     sustained the point of order, another Senator appealed, and 
     Majority Leader Byrd immediately moved to table. The Senate 
     then voted to sustain the motion to table the appeal. In so 
     doing, the Senate set a new precedent that ran directly 
     contrary to the Senate's longstanding procedures which 
     required Senators to raise points of order to enforce Senate 
     rules. Now, under this precedent, the Chair would be 
     empowered to take the initiative to rule on questions of 
     order in a post-cloture environment.
       The reason for Majority Leader Byrd's tactic immediately 
     became clear. He began to call up each of the dilatory 
     amendments that had been filed post-cloture, and the Chair 
     instantly ruled them out of order. There was no reading of 
     the amendments (which would have been dilatory in itself) and 
     there were no roll call votes. The Majority Leader then 
     exercised his right of preferential recognition to call up 
     numerous remaining amendments, and similarly disposed of 
     them. No appeals could be taken because any appeal was mooted 
     when Majority Leader Byrd secured his preferential 
     recognition to call up additional amendments. [Gold & Gupta, 
     28 Harv. J. L. Pub. Pol'y at 263-264.]
       This was the constitutional option in action. Majority 
     Leader Byrd did not follow the regular order and attempt to 
     amend the Senate Rules in order to block these tactics. 
     Instead, he used a simple point of order that cut off the 
     ability of a minority of Senators to add a new layer of 
     obstruction to the legislative process. His method was 
     consistent with the Senate's constitutional authority to 
     establish procedure.
       Majority Leader Byrd used the constitutional option again 
     in 1979 in order to block legislation on appropriations 
     bills. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 264-265.] 
     Standing Rule XVI barred Senate legislative amendments to 
     appropriations bills. By precedent, however, such amendments 
     were permissible when offered as germane modifications of 
     House legislative provisions. Thus, when the House acted 
     first and added legislative language to an appropriations 
     measure, Senators could respond by offering legislative 
     amendments to the House's legislative language. While another 
     Senator might make a point of order, the Senator offering the 
     authorizing language could respond with a defense of 
     germaneness. And, by the express language of Rule XVI, that 
     question of germaneness must be submitted to the Senate and 
     decided without debate. By enabling the full Senate to vote 
     on the germaneness defense without getting a ruling from the 
     Presiding Officer first, the legislative amendment's sponsor 
     avoided having to overturn the ruling of the Chair and create 
     any formal precedents in doing so. The result was a breakdown 
     in the appropriations process due to legislative amendments, 
     and it was happening pursuant to Senate rules that plainly 
     permitted these tactics.
       Majority Leader Byrd resolved to override the plain text of 
     Rule XVI and strip the Senate of its ability to decide 
     questions of germaneness in this context. Senator Byrd's 
     mechanism was similar to the motion he employed in 1977: he 
     made a point of order that ``this is a misuse of precedents 
     of the Senate, since there is no House language to which this 
     amendment could be germane, and that, therefore, the Chair is 
     required to rule on the point of order as to its being 
     legislation on an appropriation bill and cannot submit the 
     question of germaneness to the Senate.'' [Gold & Gupta, 28 
     Harv. J. L. Pub. Pol'y at 265 (emphasis added).] The Chair 
     sustained the point of order, and the Senate rejected the 
     ensuing appeal, 44-40.
       The result of Majority Leader Byrd's exercise of the 
     constitutional option was a binding precedent that caused the 
     Senate to operate in a manner directly contrary to the plain 
     language of Rule XVI. [Gold & Gupta, 28 Harv. J. L. Pub. 
     Pol'y at 265.] Moreover, the method was contrary to past 
     Senate practices regarding germaneness. But the process 
     employed, as in 1977, was nonetheless constitutional because 
     nothing in the Senate's rules, precedents, or practices can 
     deny the Senate the constitutional power to set its 
     procedural rules.
       The Senate's Executive Calendar has two sections--treaties 
     and nominations. Prior to March 1980, a motion to enter 
     Executive Session, if carried, would move the Senate 
     automatically to the first item on the Calendar, often a 
     treaty. Rule XXII provides (then and now) that such a motion 
     to enter Executive Session is not debatable. However, unlike 
     the non-debatable motion to enter Executive Session, any 
     motion to proceed to a particular item on the Executive 
     Calendar was then subject to debate. In practice, then, the 
     Senate could not proceed to consider any business other than 
     the first Executive Calendar item without a Senator offering 
     a debatable motion, which then would be subject to a possible 
     filibuster. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 265-
       Majority Leader Byrd announced his objection to this 
     potential ``double filibuster'' (once on the motion to 
     proceed to a particular Executive Calendar item, and again on 
     the Executive Calendar item itself), and exercised another 
     version of the constitutional option. This time he moved to 
     proceed directly to a particular nomination on the Executive 
     Calendar and sought to do so without debate. Senator Jesse 
     Helms made the

[[Page S5511]]

     point of order that Majority Leader Byrd could only move by a 
     non-debatable motion into Executive Session, not to a 
     particular treaty or nomination. [Gold & Gupta, 28 Harv. J. 
     L. Pub. Pol'y at 266.] The Presiding Officer upheld the point 
     of order given that it was grounded in Rule XXII and 
     longstanding understandings of Senate practices and 
     procedures. But Majority Leader Byrd simply appealed the 
     ruling of the Chair and prevailed, 38-54. Thus, even though 
     there was no basis in the Senate Rules, and even though 
     Senate practices had long preserved the right to debate any 
     motion to proceed to a particular Executive Calendar item, 
     the Senate exercised its constitutional power to ``make rules 
     for its proceedings'' and created the procedure that the 
     Senate continues to use today.
       As an historical sidenote, Majority Leader Byrd used this 
     new precedent to great effect in December 1980 when he 
     bypassed several items (including several nominations) on the 
     Executive Calendar to take up a single judicial nomination--
     that of Stephen Breyer, then Chief Counsel to the Senate 
     Judiciary Committee, to be a judge on the U.S. Court of 
     Appeals for the First Circuit. Judge Breyer was later 
     nominated and confirmed to the U.S. Supreme Court in 1994. 
     Without Majority Leader Byrd's exercise of the constitutional 
     option earlier that year, it is almost certain that Justice 
     Breyer would not be on the Supreme Court today.
       A fourth exercise of the constitutional option came in 1987 
     when Senator Byrd was once again Majority Leader. The 
     controversy in question involved an effort by Majority Leader 
     Byrd to proceed to consider a particular bill, an effort that 
     had been frustrated because a minority of Senators objected 
     each time he moved to proceed. To thwart his opponents, 
     Majority Leader Byrd sought to use a special feature of the 
     Senate Rules--the Morning Hour (the first two hours of the 
     Legislative Day).
       Under Rule VIII, a motion to proceed to an item on the 
     Legislative Calendar that is made during the Morning Hour is 
     non-debatable. This feature of the rules gives the Majority 
     Leader significant power to set the Senate agenda due to his 
     right to preferential recognition (which is, itself, a 
     creature of mere custom and precedent). Such a motion cannot 
     be made, however, until the Senate Journal is approved and 
     Morning Business is thereafter concluded (or the first of the 
     two hours has passed). Meanwhile, the clock runs on the 
     Morning Hour while that preliminary business takes place. 
     When the Morning Hour expires, a motion to proceed once again 
     becomes debatable and subject to filibuster. [Gold, Senate 
     Procedure and Practice, at 68-69.] It was this feature of the 
     Morning Hour that Senator Byrd believed would enable him to 
     proceed to the bill in question.
       Majority Leader Byrd's plan was complicated, however, when 
     objecting Senators forced a roll call vote on the approval of 
     the Journal, as was their right under the procedures and 
     practices of the Senate. Rule XII provides that during a roll 
     call vote, if a Senator declines to vote, he or she must 
     state a reason for being excused. The Presiding Officer then 
     must put a non-debatable question to the Senate as to whether 
     the Senator should be excused from voting. When Majority 
     Leader Byrd moved to approve the Journal, one Senator 
     declined to vote and sought to be excused. Following Rule 
     XII, the Presiding Officer put the question directly to the 
     Senate--should the Senator be excused?--but during the roll 
     call on whether the first Senator should be excused, another 
     Senator announced that he wished to be excused from voting on 
     whether the first Senator should be excused. The Chair was 
     likewise obliged to put the question to the Senate. At that 
     point, yet another Senator announced he wished to be excused 
     from that vote. There were four roll call votes then 
     underway--the original motion to approve the Journal and 
     three votes on whether Senators could be excused. If Senators 
     persisted in this tactic, the time it took for roll call 
     votes would cause the Morning Hour to expire, and the 
     Majority Leader would lose his ability to move to proceed to 
     his bill without debate. All this maneuvering was wholly 
     consistent with the Standing Rules of the Senate.
       Majority Leader Byrd countered with a point of order, 
     arguing that the requests to be excused were, in fact, little 
     more than efforts to delay the actual vote on the approval of 
     the Journal. His solution was to exercise the constitutional 
     option: to use majority-supported Senate precedents to change 
     Senate procedures, outside the operation of the Senate rules. 
     In three subsequent partyline votes, three new precedents 
     were established: first, that a point of order could be made 
     declaring repeated requests to be excused from voting on a 
     motion to approve the Journal (or a vote subsumed by it) to 
     be ``dilatory;'' second, that repeated requests to be excused 
     from voting on a motion to approve the Journal (or a vote 
     subsumed by it) ``when they are obviously done for the 
     purpose of delaying the announcement of the vote on the 
     motion to approve the Journal, are out of order;'' and third, 
     that a Senator has a ``limited time'' to explain his reason 
     for not voting, i.e., he cannot filibuster by speaking 
     indefinitely when recognized to state his reason for not 
     voting. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 267-269.] 
     Majority Leader Byrd had crafted these new procedures 
     completely independently of the Senate Rules, and they were 
     adopted by a partisan majority without following the 
     procedures for rule changes provided in Rule XXII. Yet the 
     tactics were wholly within the Senate's constitutional power 
     to devise its own procedures.
       This 1987 circumstance offers a very important precedent 
     for the present difficulties. Majority Leader Byrd 
     established that a majority could restrict the rights of 
     individual Senators outside the cloture process if the 
     majority concluded that the Senators were acting in a purely 
     ``dilatory'' fashion. Previous to that day, dilatory tactics 
     were only out of order after cloture had been invoked.
       The Senate also has endorsed (or acted in response to) some 
     version of the constitutional option several other times over 
     the past 90 years--in 1917, 1959, 1975, and 1979.
       The original cloture rule, adopted in 1917, itself appears 
     to be the result of a threat to exercise the constitutional 
     option. Until 1917, the Senate had no cloture rule at all, 
     although one had been discussed since the days of Henry Clay 
     and Daniel Webster. The ability of Senators to filibuster any 
     effort to create a cloture rule put the body in a quandary: 
     debate on a possible cloture rule could not be foreclosed 
     without some form of cloture device.
       The logjam was broken when first term Senator Thomas Walsh 
     announced his intention to exercise a version of the 
     constitutional option so that the Senate could create a 
     cloture rule. His method was to propose a cloture rule and 
     forestall a filibuster by asserting that the Senate could 
     operate under general parliamentary law while considering the 
     proposed rule. Doing so would permit the Senate to avail 
     itself of a motion for the previous question to terminate 
     debate--a standard feature of general parliamentary law. 
     [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 220-226.] In this 
     climate, Senate leaders quickly entered into negotiations to 
     craft a cloture rule. [Gold & Gupta, 28 Harv. J. L. Pub. 
     Pol'y at 226.] Negotiators produced a rule that was adopted, 
     76-3, with the opposing Senators choosing not to filibuster. 
     [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 226.] But it was 
     only after Senator Walsh made clear that he intended to press 
     the constitutional option that those negotiations bore fruit. 
     As Senator Clinton Anderson would remark in 1953, ``Senator 
     Walsh won without firing a shot.'' [Gold & Gupta, 28 Harv. J. 
     L. Pub. Pol'y at 227.]
       The same pattern repeated in 1959, 1975, and 1979. In each 
     case, the Senate faced a concerted effort by an apparent 
     majority of Senators to exercise the constitutional option to 
     make changes to Senate rules. In 1959, some Senators 
     threatened to exercise the constitutional option in order to 
     change the cloture requirements of Rule XXII. Then-Majority 
     Leader Lyndon Johnson preempted its use by offering a 
     modification to Rule XXII that was adopted through the 
     regular order. [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 
     240-247.] In 1975, the Senate three times formally endorsed 
     the constitutional option by creating precedents aimed at 
     facilitating rule changes by majority vote, although the 
     ultimate rule change (also to Rule XXII) was implemented 
     through the regular order after off-the-Floor negotiations. 
     [Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 252-260.] And in 
     1979, Majority Leader Byrd threatened to use the 
     constitutional option unless the Senate consented to a time 
     frame for consideration of changes to post-cloture 
     procedures. The Senate acquiesced, and the Majority Leader 
     did not need to use the constitutional option as he had in 
     the other cases discussed above. [Gold & Gupta, 28 Harv. J. 
     L. Pub. Pol'y at 260; Congressional Record, Jan. 15, 1979.]
       The Senate, therefore, has long accepted the legitimacy of 
     the constitutional option. Through precedent, the option has 
     been exercised and Senate procedures have been changed. At 
     other times it has been merely threatened, and Senators 
     negotiated textual rules changes through the regular order. 
     But regardless of the outcome, the constitutional option has 
     played an ongoing and important role.

         The Judicial Filibuster and the Constitutional Option

       The filibusters of judicial nominations during the 108th 
     Congress were unprecedented in Senate history. [This 
     historical observation has been conceded by leading Senate 
     Democrats. For example, the Democratic Senatorial Campaign 
     Committee solicited campaign contributions in November 2003 
     with the claim that the filibusters were an ``unprecedented'' 
     effort to ``save our courts.'' See Senator John Cornyn, 
     Congressional Record, Nov. 12, 2003, S14601, S14605. No 
     Senator has disputed that until Miguel Estrada asked the 
     President to withdraw his nomination in September 2003, no 
     circuit court nominee had ever been withdrawn or defeated for 
     confirmation due to the refusal of a minority to permit an 
     up-or-down vote on the Senate floor.] While cloture votes had 
     been necessary for a few nominees in previous years, leaders 
     from both parties consistently worked together to ensure that 
     nominees who reached the Senate floor received up-or-down 
     votes. The result of this bipartisan cooperation was that, 
     until 2003, no judicial nominee with clear majority support 
     had ever been defeated due to a refusal by a Senate minority 
     to permit an up-or-down floor vote, i.e., a filibuster. [For 
     a review of all past cloture votes on judicial nominations 
     prior to the 108th Congress, see Senate Republican Policy 
     Committee, ``Denying Mr. Estrada an Up-or-Down Vote Would Set 
     a Dangerous Precedent'' (Feb. 10, 2003). See also Cornyn, 27 
     Harv. J. L. Pub. Pol'y at 218-227.]

[[Page S5512]]

       The best illustration of this traditional norm is the March 
     2000 treatment of President Bill Clinton's nominations of 
     Richard Paez and Marsha Berzon to the U.S. Court of Appeals 
     for the Ninth Circuit. When those nominations reached the 
     Senate floor, Majority Leader Trent Lott, working with 
     Democrat Leader Tom Daschle, filed cloture before any 
     filibuster could materialize. Republican Judiciary Chairman 
     Orrin Hatch likewise fought to preserve Senate norms and 
     traditions, arguing that it would be ``a travesty if we 
     establish a routine of filibustering judges.'' [Congressional 
     Record, Mar. 8, 2000, S1297.] Moreover, as a further 
     testament to the bipartisan opposition to filibusters for 
     judicial nominations, more than 20 Republicans who opposed 
     the nominations and who would vote against them nonetheless 
     supported cloture for Mr. Paez and Ms. Berzon, and cloture 
     was easily reached. [For Berzon, compare Record Vote #36 
     (cloture invoked, 86-13) with #38 (confirmed, 64-34); for 
     Paez, compare Record Vote #37 (cloture invoked, 85-14) with 
     #40 (confirmed, 59-39). All votes on Mar. 8-9, 2000.] Had 
     every Senator who voted against Mr. Paez's nomination 
     likewise voted against cloture, cloture would not have been 
     invoked. Thus, as recently as March 2000, more than 80 
     Senators were on record opposing the filibuster of judicial 
     nominations. [For a more detailed list of Senators' historic 
     opposition to filibusters for judicial nominations, see 
     Senate Republican Policy Committee, ``Denying Mr. Estrada an 
     Up-or-Down Vote Would Set a Dangerous Precedent'' (Feb. 10, 
     2003). For an extended examination of filibustering Senators' 
     previous opposition to judicial filibusters, see Cornyn, 27 
     Harv. J. L. Pub. Pol'y at 207-211.] If the new judicial 
     nomination filibusters are accepted as a norm, then the 
     Senate will be rejecting this history and charting a new 
       It is not only the Senate norm regarding not filibustering 
     judicial nominations that risks being transformed, but the 
     effective constitutional standard for the confirmation of 
     judicial nominations. There can be no serious dispute that 
     the Constitution requires only a Senate majority for 
     confirmation. Indeed, many judicial nominees have been 
     confirmed by fewer than 60 votes in the past--including three 
     Clinton nominees and two Carter nominees. [Examples of 
     judicial nominations made prior to the 108th Congress that 
     were confirmed with fewer than 60 votes include Abner Mikva 
     (D.C. Cir., 1979); L.T. Senter (N.D. Miss., 1979); J. Harvie 
     Wilkinson III (4th Cir., 1984); Alex Kozinski (9th Cir., 
     1985); Sidney Fitzwater (N.D. Tex., 1986); Daniel Manion (7th 
     Cir., 1986); Clarence Thomas (Supreme Court, 1991); Susan 
     Mollway (D. Haw., 1998); William Fletcher (9th Cir., 1998); 
     Richard Paez (9th Cir., 2000); and Dennis Shedd (4th Cir., 
     2002).] Never has the Senate claimed that a supermajority is 
     necessary for confirmation.
       Recently, however, some filibustering Senators have 
     suggested that a failed cloture vote is tantamount to an up-
     or-down vote on a judicial nomination. The new Senate 
     Minority Leader, Harry Reid, has stated that the 10 
     filibustered judges have been ``turned down.'' [William C. 
     Mann, Senate leaders draw line on filibuster of judicial 
     nominees, Boston Globe, Jan. 17, 2005.] Senator Charles 
     Schumer has repeatedly stated that a failed cloture vote is 
     evidence that the Senate has ``rejected'' a nomination. 
     [Senator Charles Schumer, Congressional Record, July 22, 
     2004, S8585 (``I remind the American people that now 200 
     judges have been approved and 6 have been rejected''); see 
     also Jeffrey McMurray, Pryor Supporters Debate Timing of 
     Vote, Tuscaloosa News, Jan. 10, 2005 (``To nominate judges 
     previously rejected by the Senate is wrong''); Anne Kornblut, 
     Bush Set to Try Again on Blocked Judicial Nominees, Boston 
     Globe, Dec. 24, 2004 (quoting official statement by Sen. 
     Schumer).] Senator Russell Feingold described the 
     filibustered nominees from the 108th Congress as having 
     ``been duly considered by the Senate and rejected.'' [Keith 
     Perine, Fiercest Fight in Partisan War May Be Over Supreme 
     Court, CQ Weekly, Jan. 10, 2005, at 59.] Judiciary Committee 
     Ranking Member Patrick Leahy has referred to the filibustered 
     nominees as having been ``effectively rejected.'' 
     [Congressional Record, Feb. 27, 2004, S1887.] And in April 
     2005, Senator Joseph Lieberman claimed that 60 votes should 
     be the ``minimum'' for confirmation. [Senator Joseph 
     Lieberman, Transcript of Press Conference, Apr. 21, 2005.] 
     These characterizations illustrate the extent to which the 
     Senate has lost its moorings.
       Without restoration of the majority-vote standard, judicial 
     nominations will require an extra-constitutional 
     supermajority to be confirmed, without any constitutional 
     amendment--or even a Senate consensus--supporting that 
     change. Any exercise of the constitutional option would, 
     therefore, be aimed at restoring the Senate's procedures to 
     conform to its traditional norms and practices in dealing 
     with judicial nominations. It would return the Senate to the 
     Constitution's majority-vote confirmation standard. And it 
     would prevent the Senate from abusing procedural rules to 
     create supermajority requirements. Instead, it would be 
     restorative, and Democrats and Republicans alike would 
     operate in the system that served the nation until the 108th 

         Common Misunderstandings of the Constitutional Option

       Senate procedures are sacrosanct and cannot be changed by 
     the constitutional option.
       This misunderstanding does not square with history. As 
     discussed, the constitutional option has been used multiple 
     times to change the Senate's practices through the creation 
     of new precedents. Also, the Senate has changed its Standing 
     Rules several times under the threat of the constitutional 
       Exercising the constitutional option will destroy the 
     filibuster for legislation. The history of the use of the 
     constitutional option suggests that this concern is grossly 
     overstated. Senators will only exercise the constitutional 
     option when they are willing to live with the rule that is 
     created, regardless of which party controls the body. For 
     the very few Senators (if any) who today want to eliminate 
     the legislative filibuster by majority vote, the roadmap 
     has existed since as early as 1917. Moreover, an exercise 
     of the constitutional option to restore the norms for 
     judicial confirmations would be just that--an act of 
     restoration. To eliminate the legislative filibuster would 
     not be restorative of Senate norms and traditions; it 
     would destroy the Senate's longstanding respect for the 
     legislative filibuster as a vehicle to protect Senators' 
     rights to amend and debate. It is also worth noting that 
     the Senate is now entering its 30th year of bipartisan 
     consensus as to the cloture threshold (three-fifths of 
     those duly chosen and sworn) for legislative filibusters. 
     [In 1995, Senators Tom Harkin and Joe Lieberman proposed a 
     major revision to the Senate filibuster rules for 
     legislation, but the proposal failed 76-19, attracting the 
     support of no Republicans and but a fraction of Democrats 
     (who were in the minority). The only current Senators who 
     sought to change the Senate's consensus position on 
     legislative filibusters were Senators Jeff Bingaman, 
     Barbara Boxer, Russell Feingold, Tom Harkin, Edward 
     Kennedy, John Kerry, Frank Lautenberg, Joe Lieberman, and 
     Paul Sarbanes. See Record Vote #1 (Jan. 5, 1995).]
       All procedural changes must be made at the beginning of a 
     Congress. Again, this claim does not square with history. In 
     fact, there is nothing special about the beginning of a 
     Congress vis-a-vis the Senate's right to establish its own 
     practices and procedures, or even its formal Standing Rules. 
     As discussed above, Majority Leader Byrd used the 
     constitutional option to create a precedent that overrode 
     Rule XVI's plain text--and not at the beginning of a 
     Congress. Moreover, as the Supreme Court held in Ballin, each 
     House of Congress's constitutional power to make procedural 
     rules is of equal value at all times. [Ballin, 144 U.S. at 
       The essential character of the Senate will be destroyed if 
     the constitutional option is exercised. When Majority Leader 
     Byrd repeatedly exercised the constitutional option to 
     correct abuses of Senate rules and precedents, those 
     illustrative exercises of the option did little to upset the 
     basic character of the Senate. Indeed, many observers argue 
     that the Senate minority is stronger today in a body that 
     still allows for extensive debate, full consideration, and 
     careful deliberation of all matters with which it is 
       Exercising the constitutional option would turn the Senate 
     into a ``rubber stamp.'' Again, history proves otherwise. The 
     Senate has repeatedly exercised its constitutional power to 
     reject judicial nominations through straightforward denials 
     of ``consent'' by up-or-down votes. For example, the Senate 
     defeated the Supreme Court nominations of Robert Bork (1987), 
     G. Harold Carswell (1970), and Clement Haynsworth (1969) on 
     up-or-down votes. [See Record Vote #348 (Oct. 23, 1987) 
     (defeated 42-58); Record Vote #112 (Apr. 8, 1970) (defeated 
     45-51); Record Vote #135 (Nov. 21, 1969) (defeated 45-55).] 
     Even in the 10Sth Congress, when the Senate voted on the 
     nomination of J. Leon Holmes to a federal district court in 
     Arkansas, five Republicans voted against President Bush's 
     nominee. Had several Democrats not voted for Mr. Holmes, he 
     would not have been confirmed. [Record Vote #153 (July 
     6,2004) (confirmed 51-46).] In other words, the Senate still 
     has the ability to work its will in a nonpartisan fashion as 
     long as the minority permits the body to come to up-or-down 
     votes. Members from both parties will ensure that the Senate 
     does its constitutional duty by carefully evaluating all 


       Can the Senate restore order when a minority of its members 
     chooses to upset tradition? Does the Constitution empower the 
     Senate to act so that it need not acquiesce whenever a 
     minority decides that the practices, procedures, and rules 
     should be changed? Can the Senate majority--not necessarily a 
     partisan majority, but simply a majority of Senators--act to 
     return the Senate to its previously agreed-upon norms and 
     practices? The answer to all these questions is a clear yes. 
     The Senate would be acting well within its traditions if it 
     were to restore the longstanding procedural norms so that the 
     majority standard for confirmation is preserved and nominees 
     who reach the Senate floor do not fall victim to filibusters.
  Mr. KYL. These precedents--in 1977, 1979, 1980, and in 1987--bear 
directly on the situation the Senate faces today. In those instances, 
Senate business was being obstructed by dilatory tactics that had not 
traditionally been employed but which were permitted under the rules. 
The Senate faced the same conundrum as it does today: Must the Senate 
permit rule by the minority, or can it exercise its constitutional 
power to restore traditional practices? In

[[Page S5513]]

each case, the Senate did the latter. It created precedents that 
altered the practices and procedures and, in some cases, operation of 
the standing rules themselves in order to ensure that tradition was 
  What did not happen as a result of these earlier exercises of the 
constitutional option?
  Well, first, the Senate did not collapse or become ``like the House 
of Representatives,'' which is the fear of many Senators today.
  Second, Senators' speech rights are just as strong as ever. Nor were 
Americans' free speech rights injured, as some Senators say will 
  Third, minority rights were not destroyed. The Senate minority is as 
vibrant as ever and has been remarkably successful in obstructing the 
business of the Senate, whether we are talking about the Energy bill, 
medical liability lawsuit reform, asbestos reform, tax relief, or other 
  Before I close, I would like to address concerns that some of my 
conservative friends have recently expressed. Some are fretting that 
Republicans are taking a dangerous step by restoring the traditional 
up-or-down vote standard for judicial nominees. My friends argue that 
Republicans may want to filibuster a future Democratic President's 
nominees. To that I say, I do not think so. And even if true, I am 
willing to give up that tool. It was never a power we thought we had in 
the past, and it is not one likely to be used in the future, unless 
that longstanding tradition is abdicated.
  I know some insist we will someday want to block judges by 
filibuster, but I know my colleagues. I have heard them speak 
passionately, publicly and privately, about the injustice done to 
filibustered nominees. I think it highly unlikely that they will shift 
their views simply because the political worm has turned, again, if we 
sustain the tradition of the Senate. So I say to my friends what you 
say that we Republicans are losing is in fact no loss at all.
  My friends also argue that the legislative filibuster will be next. I 
have even seen some media outlets insist that this exercise of the 
constitutional option for judicial filibusters will automatically apply 
to the legislative filibuster. This is completely false. Moreover, no 
Republican Senator wants to eliminate the legislative filibuster and 
few, if any, Democrats do. Some once did, but they recently recanted. 
In fact, the junior Senator from California said she was ``wrong . . . 
totally wrong'' ever to have thought otherwise.
  Everyone here knows that political fortunes change. It is one thing 
to give this supposed ``right'' that had never been used, such as this 
filibuster of judicial nominees. It is quite another to be so 
shortsighted as to eliminate such a powerful legislative tool. In fact, 
the first vote I ever cast as a Senator was to preserve the legislative 
filibuster, and I was in the majority.
  But I think it is important to acknowledge, in the interest of 
intellectual honesty, that if the majority wanted to eliminate the 
filibuster for all matters, including legislation, it would have 
certainly had that power. It would be wildly imprudent, contrary to 
tradition, generally destructive of the institution, but that is what 
the Constitution provides--the power of the Senate to govern itself.
  In closing, I say to my colleagues what we are contemplating doing is 
in the best traditions of the Senate. We are restoring our consensus 
practices for managing the judicial confirmation process using a tool 
that has been repeatedly used and has always been available. I look 
forward to completing this debate so that we can start voting on 
individual judicial nominees and turn to the pressing legislative 
matters of the Senate.

                               Exhibit 1

               [From the Washington Times, May 19, 2005.]

                      A Unique Case of Obstruction

                         (By Senator Bob Dole)

       In the current debate over judicial nominations, some 
     commentators claim Republicans such as myself are 
     misrepresenting history by suggesting the current filibuster 
     tactics of the Democrats are unprecedented.
       These commentators cite the 1968 nomination of Abe Fortas 
     to be chief justice of the United States as an example of how 
     Republicans once attempted to block a judicial nomination on 
     the Senate floor. I welcome the opportunity to respond to 
     this claim, because the more Americans learn about the 
     history of judicial nominations, the more they will realize 
     how terribly off-track our confirmation process has become.
       In 1968, President Lyndon Johnson sought to elevate his 
     longtime personal lawyer, then-Associate Supreme Court 
     Justice Abe Fortas, to be chief justice. I would not be 
     elected a senator for a few more months, but followed the 
     news surrounding this nomination closely.
       There were problems with the Fortas nomination from the 
     beginning. Not only did he represent the most aggressive 
     judicial activism of the Warren court, but it soon became 
     apparent Justice Fortas had demonstrated lax ethical 
     standards while serving as an associate justice.
       For example, it emerged Fortas had taken more than $15,000 
     in outside income from sources with interests before the 
     federal courts. This was more than 40 percent of his salary 
     at the time, or about $80,000 in today's dollars.
       More fundamentally, Fortas never took off his political hat 
     when he became a judge. While serving as a Supreme Court 
     justice, Fortas continued serving as an informal political 
     adviser to the president and even involved himself in Vietnam 
     War policy. It later emerged Fortas had discussed pending 
     cases with the president, an obvious violation of 
     professional ethics.
       In fact, less than a year after his nomination as chief 
     justice was withdrawn by President Johnson, Justice Fortas 
     was forced to resign from the Supreme Court due to ethical 
       The claim Fortas was not confirmed due to a ``filibuster'' 
     is off-base. A filibuster, commonly understood, occurs when a 
     minority of senators prevents a majority from voting up-or-
     down on a matter by use or threat of permanent debate.
       That simply did not happen with Fortas, where the Senate 
     debated the nomination's merits quite vigorously. Senators 
     exposed the ethical issues involved and the widespread belief 
     the vacancy had been manufactured for political purposes. 
     They sought to use debate to persuade other senators the 
     nomination should be defeated.
       After less than a week, the Senate leadership tried to shut 
     down debate. At that time, two-thirds of the senators voting 
     were needed to do so, yet only 45 senators supported the 
     motion. Of the 43 senators who still wished to debate the 
     nomination, 24 were Republicans and 19 were Democrats.
       President Johnson saw the writing on the wall--that Fortas 
     did not have 51 senators in support of his nomination--so he 
     withdrew the nomination before debate could be completed.
       The events of 37 years ago contrast markedly with those the 
     Senate faces today:
       (1) Fortas lacked majority support when President Johnson 
     withdrew his nomination. Today, Senate Democrats block up-or-
     down votes on judicial nominees who are supported by a 
     majority of senators.
       (2) Justice Fortas was politically associated with 
     President Johnson and eventually resigned from the Supreme 
     Court under an ethical cloud. No such charges have been made 
     against President Bush's nominees.
       (3) The Senate debated the Fortas nomination only for 
     several days before Johnson withdrew the nomination, versus 
     the four years some of President Bush's nominees have been 
     pending. It's clear the Democrats today have no desire to 
     persuade, and have even complained further debate is a 
     ``waste of time.''
       (4) Fortas' support and opposition were bipartisan, with 
     Republicans and Democrats on both sides of the question. 
     Today, the controversy is purely partisan--with only 
     Democratic senators, led by their leader Harry Reid, opposing 
     an up-or-down vote.
       I recall two judicial nominations of President Clinton's 
     particularly troubling to me and my fellow Republican members 
     when I was the Republican Leader in the Senate. Despite our 
     objections, both received an up-or-down vote on the Senate 
     floor. In fact, I voted to end debate on one of these 
     nominees while voting against his confirmation. Republicans 
     chose not to filibuster because it was considered 
     inappropriate for nominations to the federal bench.
       By creating a new 60-vote threshold for confirming judicial 
     nominees, today's Senate Democrats have abandoned more than 
     200 years of Senate tradition.
       For the first time, judicial nominees with clear majority 
     support are denied an up-or-down vote on the Senate floor 
     through an unprecedented use of the filibuster. This is not a 
     misrepresentation of history; it's a fact.

  The PRESIDING OFFICER (Mr. Allen). The Senator from Texas.
  Mr. CORNYN. Mr. President, at a time when it seems like too often 
debate on the President's nominees have shed more heat than light, it 
has been a delight for me to sit here, as the Chair has, and listen to 
the Senator from Arizona present in comprehensive detail the legal and 
constitutional framework for the Senate's authority to set its own 
rules by establishing precedents, passing standing rules, adopting 
standing orders by unanimous consent, and otherwise. It was an 
excellent presentation and, indeed, a strong case, and that is exactly 
why leading Senators on the other side of the aisle, including the 
former Democratic majority leader, the Senator

[[Page S5514]]

from West Virginia, the Senator from Massachusetts, and the junior 
Senator from New York, have all stated, as recently as 2 years ago, 
that, of course, a majority of Senators has the power to set rules, 
precedents, and procedures. Indeed, that is why the power of the Senate 
majority to set rules, precedents, and procedures is known as the Byrd 
option or, as some have called it, the constitutional option.
  Let me begin my remarks by making one simple point. I would prefer 
the bipartisan option to the Byrd option every time. America works 
better, indeed the Senate works better, when we work together in a 
bipartisan way to try to solve the problems that come before the 
Congress. I would much prefer to stand up here, after waking each day, 
and conduct business in a bipartisan manner.
  I have done my best to make the most of every opportunity that I have 
seen to do so since I have been in the Senate. For example, I have 
enjoyed working with the senior Senator from Vermont on legislation to 
strengthen the accessibility, accountability, and openness of the 
Federal Government.
  I have worked with the junior Senator from Wisconsin and the senior 
Senator from Connecticut on the important issue of continuity of 
Government in the wake of a future terrorist attack.
  I have worked with the senior Senator from New York on ways that we 
together can combat modern day slavery and human trafficking.
  And I have worked with the senior Senator from Massachusetts on 
military citizenship and immigration issues.
  I would choose collaboration in this kind of bipartisan cooperation 
any day of the week. But bipartisanship is a two-way street. Both sides 
must agree on certain fundamental principles and a fair process that 
applies no matter who is in power, whether we have a Republican 
President or a Democratic President, whether we have a Republican 
majority or a Democratic majority.
  The most fundamental principle of all is fairness. Fairness means 
that the same rules apply regardless of who is President.
  Bipartisanship is difficult, however, when long-held understandings 
and the willingness to abide by basic agreements and principles has 
unraveled so badly. Where fairness falters, bipartisanship will fail.
  So I ask my colleagues, what are we supposed to do when these basic 
principles, commitments, and understandings have unraveled? What are we 
to do when nominees are attacked, including being called names, simply 
for doing their jobs, when they are attacked for following judicial 
precedents adopted and agreed to by appointees of Presidents Clinton 
and Carter, when they are singled out for their decision on a 
particular case even though it was held by a unanimous or near 
unanimous court?
  What are we to do when these nominees are demonized and caricatured 
beyond recognition to those of us who actually know them; when Senators 
on the other side of the aisle call them kooks, despicable, 
Neanderthal, and scary; when nominees are condemned as unqualified or 
perhaps lacking in judicial temperament, while at the same time they 
are deemed unanimously well qualified by the American Bar Association, 
an institution that the Democrats have always revered and held up as 
the gold standard when it came to qualifications to serve on the 
Federal judiciary?
  What are we to do when Senate and constitutional traditions are 
abandoned for the first time in more than two centuries, when both 
sides once agreed that nominees would never be filibustered, and then 
one side simply denies the existence of that very agreement when it 
suits them, when their interpretation of Senate tradition changes based 
on who happens to occupy the Oval Office and who happens to be in the 
majority in the Senate?
  What are we to do when our colleagues boast to their campaign 
contributors of this ``unprecedented'' obstruction, and then come to 
the Senate floor and claim that it is someone else who has changed the 
rules; when our colleagues justify their obstruction by pointing to 
Clinton nominees, such as their most prominent example, Judge Richard 
Paez, who was confirmed by standards they now reject for this 
President's nominees?
  What are we to do when our colleagues on the other side of the aisle 
claim that Justice Owen must cross the threshold of 60 votes, whereas 
Judge Paez only required 51 votes to be confirmed?
  What are we to do when the Democrats' former majority leader, the 
Senator from West Virginia, claims on 1 day that the filibuster is 
sacrosanct and sacred to the Founders when in January of 1995 he said:

       I have seen filibusters. I have helped to break them . . . 
     the filibuster was broken--back, neck, legs, arms.

  Finally, what are we to do when they claim on 1 day that all they 
seek is more time to debate a nomination and then claim on another day 
that there are not enough hours in the universe to debate the 
  The new requirement this partisan minority is now imposing, that 
nominees will not be confirmed without the support of at least 60 
Senators, is, by their own admission, wholly unprecedented in Senate 
history. The reason for this is simple. The case for opposing this fine 
nominee, Justice Priscilla Owen, is so weak the only way they can 
attempt to successfully oppose her is by changing the rules, imposing a 
double standard in an attempt to defeat her nomination.
  Different Senators during the course of this debate have come to the 
floor and criticized judicial decisions that Justice Owen has 
participated in as a member of the Texas Supreme Court. As Members of 
this body know, I formerly served on that same court and for 3 years 
had the distinct pleasure of serving alongside of this able judge and 
fine and decent human being. I can tell you from the sharp attacks that 
have been made against her and the mischaracterizations that have been 
made of the opinions she has written and joined, I doubt that many 
Senators have actually read those opinions. If they had, they would not 
be able, with a straight face, to make some of the claims that have 
been made on this floor.
  Rather than reading the opinions of this able jurist and fine and 
decent human being, it appears the talking points they have been using 
are written, not based on what these cases actually say, but they are 
talking points prepared by political consultants who are more concerned 
with winning a partisan political battle at any cost.
  A number of Senators, for example, have mentioned a case called 
Montgomery Independent School District v. Davis. That is supposed to be 
an example of Justice Owen being ``out of the mainstream.''
  But I ask my colleagues, just read the opinion. The case involved the 
authority of a local school board to dismiss a poorly performing and 
abusive teacher. This teacher admitted that she had referred to her 
students as little blank blank blanks, a four-letter expletive that I 
will not mention on the floor of the Senate. But when confronted with 
this, the teacher justified the use of this expletive--to 
schoolchildren mind you--on the bizarre ground that she used exactly 
the same language when talking to her own children--clearly 
unacceptable conduct on the part of any teacher, or any adult who is 
given the authority to deal so closely with impressionable children.
  The Senator from New York says this teacher was wrongly dismissed. 
Numerous other Senators have likewise characterized Justice Owen's 
decision in the case the same way.
  I have children. Many Senators have children. Are Justice Owen's 
opponents really arguing that this teacher acted appropriately? That 
she was wrongly dismissed and that somehow this decision, or this 
ruling by Justice Owen--I should say in her dissenting opinion--somehow 
renders her out of the mainstream? Justice Owen simply said the local 
school board was justified in dismissing this teacher, hardly a 
decision out of the mainstream. I daresay the vast majority of America 
would agree with her.
  However, in that case the majority of the Texas Supreme Court 
disagreed and held that the school board could not dismiss the teacher, 
notwithstanding the fact that she conceded the language that she used. 
Justice Owen's dissenting opinion simply concluded that the majority 
``allows a state hearing examiner to make policy decisions that the 
Legislature intended local

[[Page S5515]]

school boards to make.'' She also noted that the majority 
``misinterpreted the Education Code.''
  Another case that Senators, particularly the Senator from 
Massachusetts, attacked Justice Owen for was Texas Farmers Insurance 
Company v. Murphy. In this case, Justice Owen ruled that neither an 
arsonist nor his spouse should benefit from his crime by recovering 
insurance proceeds.
  The senior Senator from Massachusetts says this position puts Justice 
Owen out of the mainstream. I disagree. Do Justice Owen's opponents 
really believe that it is extreme and out of the mainstream to say that 
arsonists and their spouses should not benefit from their crime?
  I also point out that Justice Owen's ruling in this case followed two 
unanimous decisions of the Fifth Circuit Court of Appeals, the very 
court to which she has been nominated. Again, hardly out of the 
  How about the case of FM Properties Operating Company v. the City of 
Austin, relied upon also by the senior Senator from Massachusetts and 
other Senators? Justice Owen is criticized for dissenting in this case 
because she did not want to use a doctrine known as the nondelegation 
doctrine in order to strike down a Texas law as unconstitutional. Yet 
just last month, another Senator, this time the senior Senator from 
Delaware, criticized another judicial nominee, Bill Pryor, for wanting 
to use the nondelegation doctrine in another situation. So Justice 
Owen's critics seem to be saying if you support the use of this 
particular legal doctrine, the nondelegation doctrine, you are out of 
the mainstream. And if you oppose the nondelegation doctrine, you are 
somehow out of the mainstream.
  I ask them, which one is it? The truth is, this legal doctrine known 
as nondelegation is a controversial theory that is often harshly 
criticized by liberals who accuse conservatives of wanting to use it to 
strike down laws enacted by the legislature. That is fine. Fair enough. 
But that is exactly what Justice Owen's dissent criticized the majority 
of the court for doing. She stated the court has seized upon this 
rarely used nondelegation doctrine to claim the constitutional 
authority for an unprecedented restriction of the legislature's power, 
and that the court today exercises raw power to override the will of 
the legislature and of the people of Texas.
  It reminds me of the lyrics of a country and western song: ``Darned 
If I Do, Danged If I Don't.''
  Justice Owen cannot win. She is being whipsawed by Senators who on 
one hand criticize her for doing one thing, when other Senators 
criticize some other nominee for doing something else. They really are 
arguing both sides against the middle and these nominees cannot win, 
according to that inconsistent, and some might even claim hypocritical 
  The Senator from Illinois has attacked Justice Owen for a ruling in 
the City of Garland v. Dallas Morning News. In that case Justice Owen 
followed precedents adopted by three appointees of President Carter to 
the Federal bench. So Justice Owen is now too conservative and out of 
the mainstream because she happens to agree with presidential 
appointees of President Jimmy Carter?

  The majority opinion in that case said we should not blindly follow 
the Federal courts. Justice Owen simply said that the courts should 
follow Federal precedence because Texas open government laws had 
originally been modeled after the Federal Freedom of Information Act.
  One last example. The Senator from Washington mentioned a case that 
was discussed in a recent op-ed in Roll Call. She claimed that in Read 
v. Scott Fetzer Company, Judge Owen would not allow a woman who was 
raped by a vacuum cleaner salesman to sue the company that had hired 
him without a background check.
  The Senator should check her facts because it is simply not true. The 
Senator must not have seen my letter published in Roll Call a few days 
later because I pointed ought there, as I point out here, that the 
dissenting opinion made clear no one questions that the company that 
had hired the rapist is, in fact, liable. The justices simply disagreed 
on whether another company, one that had not hired the rapist and had 
no relationship with the rapist, should also have been held liable.
  Of course, a number of Senators have spoken about the parental 
notification cases. That is the attempt by the Texas Supreme Court to 
interpret a new statute which stands for the proposition which I think 
most Americans would agree with, that when minor girls seek to get an 
abortion, they should notify their parents or, failing that, seek a 
bypass of that requirement from a judge. That is what the legislature 
said they should do, and that is precisely the statute that Justice 
Owen sought to interpret.
  I ask the people across America who may be listening to the debates 
we are having in the Senate, whom would you trust to judge Justice Own 
and whether she did a good job in that case? Who was more credible to 
talk about the quality of Justice Owen's legal analysis in the parental 
notification cases? Would it be, perhaps, say, the author of the law 
she was interpreting who supports Justice Owen? Would it be, perhaps, 
her former colleagues on the court, including former Justices Alberto 
Gonzales and Greg Abbott, who support Justice Owen's nomination. How 
about now--Attorney General Alberto Gonzales, who swore under oath that 
the accusations we are hearing are untrue and that he never accused her 
of being a judicial activist.
  I have seen some of the advertising that has been done by some of the 
interest groups attacking Justice Owen unfairly who are claiming that 
Alberto Gonzales accused her of being a judicial activist. As I pointed 
out, he swore under oath that is not true. It is clear by any 
reasonable reading of the opinions that he never referred to her by 
name or was even, in fact, referring to her by implication.
  It reminds me of what Mark Twain said: A lie can travel around the 
world while the truth is still putting on its shoes.
  How about the pro-choice Democratic law professor appointed by the 
Texas Supreme Court to help set up procedures under which parental 
notification statute. Would critics tend to think she might be a 
credible person when it comes to whether Justice Owen did a good job if 
this same Democratic pro-choice law professor supports Justice Owen 
too? She said in a letter that has been made part of the Congressional 
Record Justice Owen simply did what good appellate judges do every day. 
If this is activism, then any judicial interpretation of a statute's 
terms is judicial activism.
  I ask, should we trust the critics 
who have misconstrued and mischaracterized and painted a picture of 
this fine person beyond any recognition by those who know her and have 
worked alongside her or do you trust the people who actually know her, 
the people who have worked most closely with her? In fact, it is the 
very same liberal special interest groups who criticize her today who 
never wanted the legislature to pass this parental notification law in 
the first place.
  It is these same liberal interest groups who literally make their 
living trashing nominees of this President who are criticizing Justice 
Owen today.
  As a former justice of the Texas Supreme Court myself, I find these 
cases moderately interesting reading. Most Senators and most Americans 
probably do not, and that is fine. But we can surely agree on this. If 
these cases are accurately characterized and understood, they 
definitively demonstrate that Justice Owen is a capable and well-
qualified judge, and that of course is why she enjoys such impressive 
and wide-ranging endorsements from across the aisle.
  We should keep our eye on the ball. Let's remember what judicial 
activism really means because the American people know a controversial 
judicial ruling when they see one. Whether it is the radical 
redefinition of our society's most basic institutions like marriage, or 
the expulsion of the Pledge of Allegiance from our classrooms, or from 
the public square, whether it is the elimination of the three strikes 
and you are out law and other penalties against hardened criminals, or 
the forced removal of military recruiters from college campuses, 
Justice Owen's ruling, of course, falls nowhere near this category of 

  There is a world of difference between struggling to try to interpret 
the ambiguous expressions of a legislative body and refusing to obey a 
legislature's directives altogether.

[[Page S5516]]

  If the Senate today were simply to follow more than 200 years of 
consistent Senate and Constitutional tradition dating back to our 
Founding Fathers, there would be no question that Justice Owen would be 
confirmed today. President after president after president had their 
judicial nominees confirmed by a majority vote, not a supermajority 
  By their own admission, at least at one time, Justice Owen's 
opponents in this body are using unprecedented tactics to block her 
nomination and prevent a bipartisan majority from casting their vote in 
favor of her confirmation.
  Again, the reason is simple: The case for opposing this fine nominee 
is simply so weak that only by using a double standard and changing the 
rules can they hope to defeat her. Legal scholars across the spectrum 
have long concluded what we in the Senate know instinctively, and that 
is to change the rules of confirmation, as a partisan minority has done 
these last 4 years, badly politicizes the confirmation, as a partisan 
minority has done, and badly politicizes the Judiciary and hands over 
control of the judicial confirmation process to special interest 
  I ask unanimous consent a summary of supporting quotes from legal 
scholars be printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1)
  Mr. CORNYN. Mr. President, the record is clear, notwithstanding what 
some opponents have said today and in the last 4 years. The Senate 
tradition has always been a majority vote, and the desire by some to 
alter that Senate tradition has been roundly condemned by legal experts 
across the political spectrum.
  I will close by simply reinforcing what the Senator from Arizona 
stated so well in his earlier remarks. To employ the Byrd option is not 
a radical move at all. It would merely be an act of restoration. In 
fact, as we have heard time and time again, there is ample precedent to 
support the use of this point of order.
  The senior Senator from West Virginia was then majority leader of 
this body and used this on four separate occasions--in 1977, in 1979, 
in 1980 and again in 1987--to establish precedence to change Senate 
procedure during a session of Congress. Other leading Senators from the 
other side of the aisle have recognized, time and again, the legitimacy 
of the Byrd option, including the Senator from Massachusetts, as well 
as the junior Senator from New York as recently as 2 years ago.
  In the end, I believe this debate demonstrates, without a doubt, that 
it is time to fix our broken judicial confirmation process. It is time 
to end the blame game, to fix the problem, and to move on and do the 
American people's business. It is time to end the wasteful and 
unnecessary delay in the process of selecting judges that hurts our 
justice system and harms all Americans.
  It is simply intolerable for a partisan minority to block a 
bipartisan majority from conducting the Nation's business. It is 
intolerable that the standards now change depending on who is in the 
White House and which party is the majority party in the Senate. And it 
is simply intolerable that this nominee--this fine and decent human 
being--an outstanding judge has wasted 4 long years for a simple up-or-
down vote.
  Yes, we need a fair process for selecting fair judges, after full 
investigation, full questioning, full debate, and then a vote. 
Throughout our Nation's more than 200-year history, constitutional rule 
and Senate tradition for confirming judges has always been a majority 
vote. And that tradition--broken 4 years ago after this nominee and 
others were proposed by the President--must be restored. After 4 years 
of delay, affording Justice Owen a simple up-or-down vote would be an 
excellent start.
  Mr. President, I thank the Chair and yield the floor.

                               Exhibit 1

       Professor Michael Gerhardt, who advises Senate Democrats 
     about judicial confirmations, 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 the special interests.''
       D.C. Circuit Judge Harry Edwards, a respected Carter 
     appointee, has written that the Constitution forbids the 
     Senate from imposing a supermajority rule for confirmations. 
     After all, otherwise, ``[t]he Senate, acting unilaterally, 
     could thereby increase its own power at the expense of the 
     President'' and ``essentially take over the appointment 
     process from the President.'' Edwards thus concluded that 
     ``the Framers never intended for Congress to have such 
     unchecked authority to impose supermajority voting 
     requirements that fundamentally change the nature of our 
     democratic processes.''
       Georgetown law professor Mark Tushnet has written that 
     ``[t]he Democrats'' filibuster is . . . a repudiation of a 
     settled, pre-constitutional understanding.'' He has also 
     written: ``There's a difference between the use of the 
     filibuster to derail a nomination and the use of other Senate 
     rules--on scheduling, on not having a floor vote without 
     prior committee action, etc.--to do so. All those other rules 
     . . . can be overridden by a majority vote of the Senate . . 
     . whereas the filibuster can't be overridden in that way. A 
     majority of the Senate could ride herd on a rogue Judiciary 
     Committee chair who refused to hold a hearing on some 
     nominee; it can't do so with respect to a filibuster.''
       And Georgetown law professor Susan Low Bloch has condemned 
     supermajority voting requirements for confirmation, arguing 
     that they would allow the Senate to ``upset the I carefully 
     crafted rules concerning appointment of both executive 
     officials and judges and to unilaterally limit the power the 
     Constitution gives to the President in the appointment 
     process. This, I believe, would allow the Senate to 
     aggrandize its own role and would unconstitutionally distort 
     the balance of powers established by the Constitution.'' She 
     even wrote on March 14, 2005: ``Everyone agrees: Senate 
     confirmation requires simply a majority. No one in the Senate 
     or elsewhere disputes that.''

  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. CORZINE. Mr. President, I rise today to address the nomination of 
Priscilla Owen to the Fifth Circuit Court of Appeals and to oppose the 
majority's challenge to our Nation's constitutional framework of checks 
and balances. I also rise to protect the rights of the minority in our 
political system.
  This debate is historic in the context of American constitutional 
practice, and it deals with the core of necessary consensus building 
that has united and strengthened America throughout our political life.
  Though I have come to the floor on a number of occasions this year to 
speak on vital domestic and national security concerns affecting New 
Jersey's and America's citizens, today, with disappointment, I rise to 
speak--not about issues such as the safety of our troops in Iraq; 
protecting our citizens at home from terrorist threats, whether it be 
at chemical plants or ports or airports; ending genocide in Darfur; 
strengthening Social Security; providing access or cost control to 
health care; lowering gas prices, combating global warming; or building 
affordable housing--all vital issues to the American people--instead, I 
am here because some in this body think it is their responsibility and 
right to eliminate minority rights when it comes to approving lifetime 
appointments to the U.S. Court of Appeals and to the U.S. State supreme 
  I rise to protest this attack on our constitutional system and our 
Senate traditions. In short, it is an attack that I think supports the 
view that breaking the rules is the way to change the rules. We are 
here today because a number of my colleagues, many in good faith, wish 
to ignore the principles embedded in the U.S. Constitution and allow 
the will of the majority to reign supreme. Absolute power is often said 
to corrupt, and limiting the checks and balances of the right to debate 
on the Senate floor can most certainly facilitate that abuse.
  There was a reason our Founders gave two votes to each State. That 
fundamental principle was debated as the Founders wrote our 
Constitution. Today, there are two Senators from California, a State 
with 36 million citizens. Similarly, there are two Senators from the 
State of Wyoming, which has slightly more than 500,000 citizens. Our 
Founders believed strongly in the right of minorities to have a voice 
on the floor of the Senate and embedded this principle in our 
Constitution. It is absolutely one of the most essential compromises 
that was a part of creating our Constitution. In fact, it has been the 
framework that has allowed the Constitution to work so effectively for 
some 217-odd years.

[[Page S5517]]

  At a practical level, this overreach--some might call abuse--by the 
majority is unfortunate for those of us who have been pleased to work 
well with the White House in building a consensus on judicial 
nominations. It has happened in our State. For example, New Jersey 
Senators have met and agreed to a set of five judges, including, by the 
way, a circuit court judge who reflects the best of our legal community 
and who travels well within the mainstream of legal thought.
  Over my 4\1/2\ years in the Senate, the White House and I have agreed 
on an outstanding package of jurists of whom we can all be proud. And 
we are currently working with the White House on another package--for 
district court judges and one additional circuit court judge.
  Let me be clear, while many of these judges would not have been my 
first political or philosophical choice, I have worked, together with 
Senator Lautenberg, and before him with Senator Torricelli, with the 
White House to come to an agreement on smart, fair, and hard-working 
judges for the Federal bench in New Jersey--people clearly in the 
mainstream, people of whom we will all be proud to have as lifetime 
judicial appointments. All of these are judges committed to the rule of 
law and not to promoting their own political views or trying to rewrite 
law through judicial activism.
  I have voted many times for judges with whom I disagree on important 
issues--issues as fundamental to me as choice or worker protections. 
But I have voted for them because they respect the law and precedent. 
What I cannot and will not agree to are nominees who are political 
ideologues people who let us know that they will challenge precedent in 
order to promote their political beliefs and what I believe is an 
extremist agenda. They want to change the law. The job of writing laws 
is the job we have right here on the Senate floor.
  This debate is particularly important in a practical sense to me 
because there is a vacancy currently on the Third Circuit Court of 
Appeals due to the retirement of Michael Chertoff, now the head of our 
Nation's Department of Homeland Security. I fear this Third Circuit 
vacancy is in jeopardy of going the way of what we have seen with the 
nomination of these activist judges--jurists with views outside the 
mainstream, with extremist views, who believe that it is their right to 
make the law as opposed to interpret it or apply it.
  If these activist individuals want to make law--and they may have 
remarkable resumes--they should run for Congress or the Senate rather 
than accept a nomination to the Federal bench.
  That is why my support for the filibuster in the judicial nominating 
process is not about anything but the fundamental constitutional 
principles established by our Founders.
  It is not about getting even. It is not tit for tat. I am not 
suggesting Democrats should block nominations because Republicans have 
used process and procedure to stop Democratic nominees, which, in fact, 
has been the case. The hard facts show that the Senate has approved 208 
of President Bush's 218 judicial nominations. That is a 95-percent rate 
of approval--not too bad; as a matter of fact, I think most people 
would think if you were hitting at that level in baseball, you would be 
doing pretty good.
  President Clinton's nominees were often held up before they even had 
a chance for debate in committee, a different procedural process that 
led to about over 60 of the Clinton nominations being blocked. But 
again, I don't think this issue is about tit for tat or getting even.
  It is misplaced for others to argue that Democrats are being 
obstructionist because we refuse to serve as rubberstamps. I was not 
elected by the people of New Jersey to be a rubberstamp. Actually, they 
don't like that kind of thing in New Jersey.
  Republicans may one day see a change in their majority status, and 
many of my Republican colleagues may not like this change at another 
point in time. I don't think they would seek to be a rubberstamp in the 
judicial nomination process at that time.
  This is not about an up-or-down vote, as Republicans suggest. That 
argument is intended to divert the attention of the American people 
from the real issue--the rights of the minority in the Senate, as 
developed by our constitutional Founders, the U.S. system of checks and 
balances, and, frankly, the principle of fundamental fairness, that you 
don't change the rules in the middle of the game.
  Here is the argument that this is not about an up-or-down vote. The 
majority blocked over 60 of President Clinton's nominees. They never 
allowed them to have an up-or-down vote on the Senate floor and, 
frankly, they never allowed them to have an up-or-down vote in 
committee. They just used different rules and different procedures, at 
different time, but they accomplished the same thing.
  Additional evidence that this is not about giving nominees an up-or-
down vote is the simple fact that historically the filibuster has been 
used as a Senate procedural tool, often to prevent Democratic judicial 
nominees from receiving an up-or-down vote in the Senate.
  Since 1968, at least according to the legal scholars I have talked 
to, we have seen Republicans use the filibuster six times to block 
judicial nominees, perhaps the most visible being the nomination of Abe 
Fortas to be Chief Justice of the Supreme Court. The Fortas nomination 
was successfully filibustered and was never given an up-or-down vote.
  But just to put it in a broader historical perspective, 20 percent of 
the nominations to the Supreme Court from our birth as a nation have 
never gotten an up-or-down vote in the Senate.
  One has to put this into a historical perspective. This is something 
that should be debated on a more fundamental level of what it is that 
one can draw from the reading of our Constitution. I go back to the 
fact that there are two Senators for every State, regardless of its 
size. The intent was to make sure minorities were fully represented.
  Looking at this from another perspective, a more political 
perspective, I accept that Republicans hold 55 seats in the Senate and 
that President Bush won reelection. However, neither of those facts 
goes against the constitutional history of the right to speak your mind 
as a minority. And neither of those facts give the majority the right 
to break the rules to gain more power. The rules are the rules adopted. 
A ruling from the Chair without consultation with the Parliamentarian 
would be an extraordinary action, certainly contrary to anything I have 
seen in the 4\1/2\ years I have been here, certainly contrary to what I 
hear among my colleagues.
  A rule change under extraordinary procedures is why it has been 
labeled the nuclear option. I would argue if the majority were to adopt 
this procedure they would be breaking the rules to make the rules. We 
all know we are setting an extraordinary precedent--and frankly, this 
could become a slippery slope for this legislative body, particularly 
when it sets a precedent that may be expanded upon to include 
legislative filibusters, which I hear almost everyone argue is not 
something they would embrace. It could be a slippery slope and a 
dangerous precedent for a thriving democracy and an August body that 
has served America well by providing for checks and balances through 
the fullness of our political life.
  Our U.S. system is based on the competition of ideas between the two 
main political parties. Clearly, each side seeks to prevail. What the 
majority is doing now goes beyond a simple desire to prevail. What is 
going on here is an attempt by the majority to break the rules to 
change the rules. That violates the principle of fundamental fairness 
and actually attacks in a fundamental sense the rule of law under which 
our Nation operates. You don't break the rules to win in America. That 
is not the American way.
  The American way is to play fairly and consistently by the rules. 
That is all that I believe we on this side of the aisle are asking for. 
We are asking for the right to play by the established rules that have 
been historically in place, consistent with precedent, ones that have 
existed for decades, to challenge people who we believe are 
fundamentally unqualified or judicially outside the mainstream to be 
Federal judges either because of their views, which are inconsistent 
with precedent, or because of their activist judicial records.

[[Page S5518]]

  Let me be specific as to the judicial nominees before the Senate: 
Justice Priscilla Owen and Justice Janice Rogers Brown. Both may be 
remarkable people in their own right, but that is not my concern. Good 
people may not be fit to serve as federal judges because of their 
interpretation of the Constitution, how they apply it or don't apply 
law, and the activist approach they take.

  Let's start with Justice Owen. This is a judge who has consistently 
inserted her political views into judicial opinions. That is how I read 
the record. She has had a record distinguished by conservative judicial 
activism. Justice Owen has consistently voted to throw out jury 
verdicts favoring workers and consumers against businesses and she has 
dismissed cases brought by workers for job-related injuries, 
discrimination, and unfair employment practices, making decisions that 
are inconsistent with established precedent.
  Justice Owen has participated in cases involving companies that have 
been involved in her own political activities, including Enron and 
Halliburton decisions. But the real issue, the Houston Chronicle 
concluded, was that ``Owen's judicial record shows less interest in 
impartially interpreting law than in pushing an agenda.'' I believe 
this is a record that is outside the mainstream. That justifies my 
position and, I believe, that of my Democratic colleagues.
  As for Justice Janice Rogers Brown, a California Supreme Court 
justice nominated to the DC Circuit, she has spent the better part of 
her time as a judge attacking America's social safety net. The 
California Bar Commission found Justice Brown unqualified in part 
because of her tendency to interject her political and philosophical 
views into her opinions. I don't have a problem with people having 
political and philosophical views. Most of the folks who speak here on 
this floor have political views. But when you go to the bench, you are 
asked to bring an impartiality, an independence as to how you deal with 
a case and how you apply the law and interpret the law. Justice Brown, 
through her opinions as a judge has made it clear that she has a 
disregard for legal precedent. Justice Brown has called Supreme Court 
decisions upholding the New Deal ``the triumph of our socialist 
revolution.'' I believe that is outside the mainstream. Let us not 
forget, by the way, that one of the main components of the New Deal was 
the creation of Social Security, which is now having a debate in this 
Nation. It is hardly a socialist initiative.

  Justice Brown has also--always in dissent--used constitutional 
provisions or defied the legislature's intent to attempt to restrict or 
invalidate laws that she doesn't like--as, most notably, she did with 
California's anti-discrimination statute. And so I believe that this is 
a case where there is reason to believe that Justice Brown would 
operate outside of the mainstream if confirmed as a federal judge.
  I simply cannot support placing such an immoderate judge on the 
Federal appeals court for a lifetime tenure.
  In closing, let me return to where I began. Yes, this is an important 
debate--maybe one of the two or three most important in the last few 
years. I think it goes at the core of our constitutional system. It is 
unfortunate we are not here debating the real problems that face our 
Nation and the citizens of my State, which include health care costs, 
gas prices, education, energy costs, and the safety of servicemen. 
Those are the issues that people talk to me about when I am out and 
about in my home State. But the people of my home State--and I suspect 
it is true of people of every State in the Nation--expect us to defend 
our constitutional liberties. They expect us to stand for checks and 
balances and for the rights of those in the minority so that we can 
build a consensus to unite, not divide. They expect us to speak 
strongly to preserve those rights on the floor of this Senate. I think 
that is what this debate is about. This debate is a fundamental one 
and, therefore, truly one of the most important we can have.
  I want us to move on to the real issues of the day, and they are 
challenging for our Nation, for all of us. Men and women are losing 
their lives. But there is an absolute responsibility for all of us to 
make sure that our system works with the kind of care and 
thoughtfulness and the kind of checks and balances that have served our 
Nation so well.
  It is our responsibility to stay tuned to the historical traditions 
of the Senate and to the principles our Founders put together that said 
minorities in this Nation have a right to be heard. The Founders 
established that principle clearly with the Philadelphia Compromise. We 
must sustain this principle in the days ahead in our debate.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, this morning, Senator Gordon Smith came to 
the floor. He is a close friend. He made a statement relative to 
something I said on the floor yesterday about the nomination of 
Priscilla Owen. I am flattered he was listening, or that someone was 
  I am afraid what he said about my remarks was not completely 
accurate. Senator Smith made the following statement:

       As I understood the assistant Democratic leader, he was 
     saying that Judge Owen's membership in the Federalist Society 
     should disqualify her.

  Well, this is about the nomination of Priscilla Owen from Texas. I 
made the point of how interesting it was that while very few lawyers in 
America belong to the Federalist Society--maybe 1 percent--it turns out 
that about a third of President Bush's nominees belong to this 
Federalist Society. I referred to it as the ``secret handshake'' at the 
White House and that, if you belong, you have a much better chance to 
become a judge.
  I also made a point of the fact that when we ask nominees what the 
Federalist Society is and why do you belong, we get the craziest 
answers you can imagine. There was a law professor from Georgetown, 
Viet Dinh, a nice man who worked for the Department of Justice, and I 
said to him, ``What is the Federalist Society? Why is it so many Bush 
nominees belong to it?'' ``Oh,'' he said, ``it is an excuse to have 
lunch in Chinatown once a month. We go there and somebody talks to us 
and we eat and come back to school.'' And I would ask others, ``What is 
it all about?''
  With the exception of Senator Orrin Hatch, who I believe was on the 
board, or may still be on the board of the Federalist Society, almost 
nobody will talk publicly about who they are and what they believe.
  That was the point I was making. This curious, semisecret society is 
so quickly disavowed by its members whenever you ask a public question 
about it. Yet it appears to be one of the most important things you can 
add to your resume if you want to be a judge from the Bush 
  And Priscilla Owen of Texas--surprise, surprise--is a member and 
officer of the Federalist Society. I do not think she should be 
disqualified because of that. There is nothing illegal about it. I do 
not know what the philosophy is other than what they state on their Web 
site. It is very conservative. It thinks that liberals are ruining the 
world. It goes on and on.
  I am not saying that if you belong to that you should not be 
qualified to serve on the bench. That is not the point. But when I 
asked someone such as Priscilla Owen, a supreme court justice from 
Texas whose time must be very precious, why she took the time to join 
this organization and she cannot or will not answer it, I think it is 
  I voted to confirm the vast majority of President Bush's nominees and 
a lot of Federalist Society members, so I am not blackballing or 
disqualifying them. I know it is an ultraconservative society, whatever 
it is, and I know that so many people are afraid to even acknowledge 
they are members when it is brought to public attention.
  I think their views are extreme and off base, from my point of view. 
I think their views are extreme and off base when we look at mainstream 
America. How can you say, as they do, that the legal profession is 
strongly dominated

[[Page S5519]]

by a form of orthodox liberal ideology? Look at the 13 Federal courts 
of appeal and you find 10 of those Federal courts of appeal in America 
dominated by Republican-appointed judges. Liberal ideology? How can you 
say the legal profession is strongly dominated by a form of orthodox 
liberal ideology when seven out of the nine members of the U.S. Supreme 
Court were appointed by Republican Presidents?
  So what I said about Justice Owen is that her conservative ideology 
is demonstrated by her membership in the Federalist Society. However, 
the best documentation on her ideology is her own track record as a 
judge. So I say to Senator Smith, no, it does not disqualify Priscilla 
Owen, but it is curious to me why this supreme court justice had the 
time to pay the dues and join an organization which she just cannot 
remember what they believe in. I think there is more to it.
  Senator Kyl of Arizona also came to the Senate floor. He said 
something I would like to address. He charged that President Bush has 
only had 67 percent of his circuit court nominees confirmed, and that 
this is an alltime low, according to Senator Kyl. I do not know if it 
is true or not. I do not have the data going back all the way in time. 
But I know this: If the Republican leadership had taken me up on my 
offer this morning and they had confirmed the four circuit court 
nominees I asked unanimous consent to bring up for a vote, President 
Bush's circuit court success rate would be 75 percent. But I was 
reminded by the Republican leader--in this case the Republican whip, 
Senator McConnell--that there is just no time in the schedule to bring 
up more of President Bush's circuit court nominees.
  Curious, isn't it? This whole debate, this constitutional 
confrontation is all about whether President Bush is getting enough 
nominees. I came to the floor this morning and said: Here are four we 
can take right now, confirm on a bipartisan basis, and get it done 
before lunchtime. Senator McConnell of Kentucky said we are much too 
busy to deal with approving judges on a bipartisan basis. Instead, we 
are focused on one judge, already rejected by the Senate, who may 
precipitate a constitutional confrontation here on the floor of the 
  Incidentally, President Clinton's circuit court success rate when the 
Republicans were in control of the Senate: 71 percent. So if President 
Bush had these four nominees and hit 75 percent, he has already passed 
the success rate of President Clinton during his tenure in office.
  So there is no vacancy crisis here, and they are trying to 
manufacture it, they are trying to suggest that President Bush is being 
mistreated, and yet the same Republican leadership that talks about 
mistreatment could not take the time--namely, an hour or two--to pick 
up four circuit court nominees who are standing waiting for approval. 
Democrats are prepared to approve. Of course, that would destroy the 
argument that somehow we are obstructionist.
  I was involved in the debate yesterday when Senate majority leader 
Bill Frist came to the floor and said:

       I rise today as leader of the majority party of the Senate, 
     but I do not rise for party, I rise for principle. I rise for 
     the principle that judicial nominees with the support of a 
     majority of Senators deserve an up-or-down vote on this 

  Moments later, Senator Schumer of New York asked Senator Frist a 
simple, pointed question: Is it correct that on March 8, 2000, Senator 
Frist, the Republican majority leader, voted to uphold the filibuster 
on a Democratic nominee, Richard Paez? Here is Senator Frist's reply:

       The issue is we have leadership-led partisan filibusters 
     that have obstructed not 1 nominee but 2, 3, 4, 5, 6, 7, 8, 
     9, 10 in a routine way. The issue is not cloture votes per 
     say, it's the partisan leadership led use of cloture votes to 
     kill, to defeat, to assassinate these nominees. That's the 

  I spoke yesterday on the floor afterwards about Senator Frist's poor 
choice of words. I said then, and I will say now, he is a man with a 
good heart. He cares for people. He is a doctor who has saved lives. He 
is a transplant surgeon, well recognized in his profession as a very 
accomplished doctor. In his spare time he goes to help the poorest 
people of the world. So I do not question that he is a man with a good 
heart. That was never part of it.
  I was concerned with his choice of words. It was a very bad day to 
use the words ``to assassinate nominees.'' Just minutes before, Joan 
Lefkow of Chicago had been to the Senate Judiciary Committee testifying 
in very emotional testimony about her own family being attacked in 
their home and her husband and mother losing their lives.

  I do not want to belabor this point. Let me just say, let's be 
careful with the language we use on the floor when it relates to 
judges. I do wish to talk about the rest of Senator Frist's statement, 
not that particular section.
  He admitted in the course of what he said that ``the issue is not 
cloture votes per se,'' it is not filibusters, per se. And we know from 
his own actions that the majority leader does not believe that every 
judicial nominee with majority support deserves an up-or-down vote 
because he, in fact, on March 8, 2000, voted to support a filibuster. 
In other words, the thing that he is condemning when it comes to 
Priscilla Owen is exactly what he did on March 8, 2000--supporting a 
filibuster against a nominee, Richard Paez. I do not understand that. I 
cannot understand how he can condemn that today, having done it himself 
a short time ago.
  It turns out that it is a very specific type of filibuster to which 
Senator Frist objects--in his words, a leadership-led use of cloture 
votes. I can see why the majority leader was such a good surgeon. He 
has taken the scalpel to the filibusters and decided which filibusters 
are OK and which are not. That really destroys the whole argument that 
this is all about an up-or-down-majority vote.
  Senator Frist voted to deny Richard Paez an up-or-down-majority vote. 
Now he says we need to change a 200-year tradition in the Senate so 
that no one can ever do the same thing he did to Richard Paez. This is 
an unusual principle to try to follow. It is, in fact, creating a 
constitutional confrontation over something that is very contradictory 
on its face.
  I believe filibusters are constitutional. They are certainly allowed 
under the Senate rules. And when we get to the question of motives 
behind them, I really think that the Republicans, the majority has to 
dig very deep in order to find an argument to make against the practice 
we have used and others have used throughout the history of the Senate.
  In addition, yesterday morning, before Senator Frist moved to bring 
up the nomination of Priscilla Owen, Senator Reid asked the majority 
leader whether it would not make more sense for the Senate to move 
instead to consider four other nominees about whom there is little 
controversy. Senator Frist refused yesterday, as Senator McConnell 
refused today. So for 2 straight days, the Republicans have had a 
chance to pick up four circuit court nominees to fill vacancies, to 
give the President a higher success rate in filling vacancies on these 
courts than President Clinton, and they have refused; they said we are 
much too busy. We have to spend time here destroying a precedent in the 
Senate. We have to reach the point when we can count on Vice President 
Cheney to come to the Senate, to sit in that chair and, when asked, 
give the right answer so they can wipe away with one ruling by Vice 
President Cheney a rule that has been in place for over 200 years.
  Senator Leahy asked if we could consider a nominee from Utah, who 
would have likely won confirmation easily yesterday. Senator Frist 
refused. He insisted on bringing up this nomination of Priscilla Owen, 
one of the most controversial judicial nominees in recent memory, 
someone who has already been rejected by the Senate.
  Why would the majority leader flatly refuse every effort to find a 
way out of this crisis? I don't know. It is possible he is still taking 
advice from people who should not be trusted for advice. I don't know 
if the name Manny Miranda rings a bell, but it should. From the spring 
of 2002 until April 2003, Mr. Miranda was working for the chairman of 
the Senate Judiciary Committee, Orrin Hatch, and then for majority 
leader Bill Frist.
  Mr. Miranda and other Republican staff hacked into the committee's 
computers and systematically stole thousands of documents, including 
confidential memos between Democratic Senators and their staff. I know. 
I was the biggest target of Mr. Miranda.

[[Page S5520]]

  I discovered it when the Wall Street Journal published an editorial 
and quoted extensively from a staff memo in my office. And I said as 
soon as I read it: Somebody stole this memo. There is no way the 
newspaper would have a copy of an obscure memo and build an editorial 
around it.
  After some investigation, we learned that in fact Mr. Miranda was 
behind it.
  Let me tell you what then-chairman of the Senate Judiciary Committee, 
Orrin Hatch, said. I quote him directly:

       I am mortified that this improper, unethical and simply 
     unacceptable breach of confidential files may have occurred 
     on my watch.

  At which point Senator Hatch asked the Senate Sergeant at Arms to 
conduct an investigation. Mr. Miranda was forced to resign from the 
Senate staff in disgrace. The findings of the Sergeant at Arms 
investigation were referred to the Justice Department, which then 
assigned a special prosecutor to the case.
  Two years later, with the case still unresolved and finished, it 
appears Mr. Miranda is back. According to news reports, he is now 
helping to lead the nuclear option fight from outside the Senate. 
Yesterday, Mr. Miranda sent an e-mail to allies of Senator Frist, 
demanding, ``a straightforward rallying cry: NO DEALS, VOTE PRINCIPLE'' 
  So here we have a former aide to Senator Frist, a person who, 
according to the investigation, broke into Senate computers. He is now 
in charge of rallying the troops on the conservative side. He is the 
cheerleader for the nuclear option. And he is demanding that Senator 
Frist and other Republicans break the Senate rules to give extremist 
judges lifetime appointments.
  I do not quite understand this. I commend Senator Hatch for the 
investigation. I commend Senator Frist for the investigation. They knew 
as we knew that something wrong, probably criminal, had occurred, and 
they went forward with an honest investigation. When this man resigned 
in disgrace you would think that would be the end of his role on 
Capitol Hill, but now he has returned as a cheerleader for the cause of 
the nuclear option.
  It is hard to keep track of some of these players without a 
scorecard. But keep track of Mr. Miranda. He will undoubtedly pop up 
  There is another thing that should be addressed. Senator Frist has 
given his word in writing that he will not seek to eliminate the 
filibuster when it comes to legislation--just judicial nominees, 
Senator Frist said. But he also said he is leaving the Senate at the 
end of next year. He has voluntarily, on his own, decided to limit the 
terms that he would serve.
  So the next majority leader, Republican or Democrat is not obliged to 
take any promise Senator Frist might make. The truth is, if this 
Senate, for the first time in history, rejects the principle of 
extended debate, there is no guarantee that the damage of the nuclear 
option will not spread. In his opening remarks yesterday Senator Frist 
said if Republicans would vote the nuclear option, Democrats ``will 

       They will obstruct the Senate's other business. They will 
     obstruct the people's business. They will hold back our 
     agenda to move America forward. An energy strategy to reduce 
     our dependence on foreign oil, held back; an end to the 
     medical lawsuit abuse to reduce the cost of health care, held 
     back; a simpler, fair Tax Code to create jobs and to 
     encourage economic growth, held back.

  Supporters of the nuclear option say they only want to eliminate the 
filibuster for judicial nominees. It doesn't take much imagination to 
consider the possibility of a majority leader in the future saying, 
with gas prices at an all-time high, America just cannot afford an 
extended debate on an energy bill.
  If we eliminate extended debate for judges who serve for life, why 
would we preserve unlimited debate on the nominations of Cabinet 
Secretaries who leave office with the President who appoints them? Or 
on laws that can be reversed by the next Congress?
  The truth is, this line in the sand will disappear with the next 
wave. This is not about principle. It is about politics.
  Many special interest groups have made it clear they are going to 
fight anyone who tries to eliminate the filibuster over legislation. To 
quote the conservative columnist, George Will:

       It is a short slide down a slippery slope from the 
     postulated illegitimacy of filibustering judicial nominees to 
     the illegitimacy of filibustering any sort of nominee to the 
     illegitimacy of filibusters generally. That is not a position 
     conservatives should promote.

  Quote from George Will, the grand guru of the conservative cause.
  Former Republic Senators Jim McClure and Malcolm Wallop, both also 
conservative, agree. In a recent op-ed in the Wall Street Journal, 
these two former Republican Senators wrote:
       It is naive to think what is done to the judicial 
     filibuster will not later be done to its legislative 

  They add:

       It is disheartening that those entrusted with the Senate's 
     history and future would consider damaging it in this manner.

  I think that is what it gets down to. I think it is a question of 
this institution and its future and what it is going to look like. 
Today I am in the minority. You are in the majority. That could change. 
Every election, the people of this country have the final word on who 
will be the majority party in the Senate. What has endured throughout 
all the changes in history from one party to the next is a basic 
concept and that is, no matter how large your majority, you must 
respect the minority in the Senate. It is not democracy if you do not 
respect the minority--it is tyranny. We know that. The Greeks knew that 
when they invented the term.
  Yet when it comes to the rules of the Senate to protect the minority, 
what we are hearing is that many are ready to cast them aside. Senator 
Frist, for reasons I cannot explain, wants to have the distinction, the 
singular distinction, to go down in history as the only Republican 
majority leader to destroy a 200-year-plus tradition in the Senate, a 
tradition of extended debate and filibusters. I do not think that would 
be a proud moment for this body. I do not think it would be a proud 
part of any Senator's legacy. That is why many of us are appealing to 
the other side of the aisle.
  Time and again in our Nation's history when we really faced some very 
difficult situations with judges who were controversial and courts that 
didn't agree with the President, Presidents have said: Give us more 
power. We will control those courts.
  And when those Presidents came to Congress, as they had to, they 
found that even their own party would not go along with them. The 
Senators in those eras of Thomas Jefferson and Franklin Roosevelt took 
enough pride in this institution to say: We will make our own rules, 
Mr. President. We will stand by the Constitution. We will not give you 
more power.
  But look what is going on now with this nuclear option. It is being 
orchestrated by the President. And we have too many Senate Republicans 
who are playing the role of lapdog to the Commander in Chief. They are 
sitting there like a group of cocker spaniels in a room full of pit 
bulls, afraid to speak up. They want to give this President whatever 
power he asks for, whatever nominee he asks for. What a departure from 
the tradition of this Senate, when it was truly independent, when we 
respected the President but also respected--maybe more--our 
constitutional responsibilities.
  Our constitutional responsibility is not to agree with everything the 
President says; not to agree with everything that he wants; not to give 
him every shred of power that he seeks. Throughout history, Senators 
have said: We respect you, Mr. President. We respect the Constitution 
  In the midst of this debate, that has been completely thrown away by 
so many Republican Senators. They are so loyal, to the point of blind 
loyalty, that they cannot see what is happening to this institution. 
That they would walk away from the institutional authority of the 
Senate, the constitutional authority of the Senate, over what?
  Take a look at these numbers--208 to 10. How much more graphic could 
it be? The full Senate has considered 218 judges, since President Bush 
was elected, and 208 have been approved. Over 95 percent.
  When it comes to the 10, it is arguable who dropped out and who 
retired, but I will use the larger number of 10 just to demonstrate to 
those who are following this debate that there is hardly a crisis. This 
President has been more successful appointing judges than

[[Page S5521]]

any President in 25 years. There are fewer vacancies on the Federal 
courts of America than at any time in recent memory. And it was not 
that long ago when the Republicans, during the Clinton administration, 
held a series of hearings, which I attended, arguing that we just have 
too many Federal judges. Senator Grassley of Iowa, a good friend, 
chairman of a Subcommittee on Judiciary, used to hold regular hearings 
calling Republican judges from different circuits who would say: Keep 
those vacancies. Don't fill them. We have plenty of judges. The 
caseload is not that heavy.
  Now the argument is being made, with even fewer vacancies, that we 
are in a judicial crisis. We are not. It has been 9 years since we had 
so few judicial emergencies in the courts. We have been through times 
of larger vacancies and, unfortunately, the Republican majority would 
not give President Clinton the judges he needed to fill them.
  These are the things which clearly we find are the realities of the 
debate. A President extraordinarily successful in creating and filling 
more judgeships, a president who has been extraordinarily successful 
when it comes to convincing his presidential party to support him, and 
now a move afoot to change the traditions and rules of the Senate in a 
way that can create constitutional confrontation, if not constitutional 
  There are 55 Republican Senators. We need six--six who will stand up 
and say: History is our guide. We cannot let this institution change or 
diminish. We will stand with those on the Democratic side of the aisle, 
understanding that each of us has to use our own discretion when it 
comes to those nominees we will vote for, understanding that each of us 
is aware of the fact that the next election could change the balance in 
this Senate so quickly.
  One of the nominees who will be considered next is Janice Rogers 
Brown. She may be the nuclear trigger--either she or Priscilla Owen. 
There was an article in a recent New York Times magazine about a far-
right legal movement in America called the Constitution in Exile. This 
movement consists of judges and scholars who believe that the right to 
private property and economic liberty is almost absolute. Its adherents 
believe that nearly all Government infringement on property rights is 
repressive. They encourage judges to strike down laws on behalf of 
rights that do not appear explicitly in the Constitution.
  If this philosophy sounds familiar, it should. The article lists 
Janice Rogers Brown as a poster child for the Constitution in Exile 
  I served as the ranking Democrat at Justice Brown's hearing in 
October of 2003. I asked her a lot of questions. Her answers offered 
little assurance that she will be anything other than a judicial 
activist with a very extreme agenda. Her views on Government, courts, 
and the Constitution are troubling. She called the year 1937 ``the 
triumph of our socialist revolution.''
  She has said:

       Where government moves in, community retreats, civil 
     society disintegrates and our ability to control our own 
     destiny atrophies.

  She has said that politicians are ``handing out new rights like 
lollipops in the dentist's office.''
  She claimed that our Federal courts ``seem ever more ad hoc and 
expedient, perilously adrift on the roiling seas of feckless, photo-op 
compassion and political correctness.''
  She has even complained in the last 30 years, the Constitution has 
``been demoted to the status of a bad chain novel.''
  Her rhetoric makes it clear she is inspired and guided by 
Fountainhead, Atlas Shrugged, and the Road to Serfdom, more than the 
Constitution and the Bill of Rights.
  At her hearing, Justice Brown said her speeches were just an attempt 
to ``stir the pot.'' Justice Brown's speech did more than stir the pot. 
Those speeches knocked it off the stove.
  I have concerns about her record on the bench, even beyond these 
speeches where she has opened up her heart.
  In her own words, she said:

       I have been making a career out of being the lone 

  In case after case, she has come out on the side of denying rights 
and remedies to the disadvantaged. Oftentimes she was, indeed, a lone 
dissenter and oftentimes she ignored even established court precedent 
and rulings. I have a lot of concerns about her tendency to push her 
philosophical views into opinions.

  The California State Bar Commission in 1996 said as much when it 
rated Justice Brown as not qualified for the California Supreme Court. 
Yet the Bush White House wants to appoint her to the second highest 
court at the Federal level in America.
  Justice Brown suggested at her hearing the views in her speech do not 
reflect the view and her decisions. The facts tell a different story. 
There is a seamless web between Justice Brown's speeches and her 
decisions. It is the same person. It is the same philosophy. It is the 
same conclusion. I have concern about nominating to the DC Circuit 
someone with her hostility to the forces of Government.
  The DC Circuit is the No. 1 adjudicator of Federal agency disputes. I 
don't think someone who considers the New Deal a ``socialist 
revolution'' is the right person for the job. Think of all the 
socialism in the New Deal. I can think of one element that she might 
call socialism. Franklin Delano Roosevelt called it Social Security.
  I want to discuss her evasiveness too. She is a wise lawyer. And good 
lawyers knows how to duck a question better than a politician. We can't 
properly perform the advice and consent function of the Senate if 
nominees will not level with us. Take the Lochner case. This is a 
famous case that most students study in law school, certainly those who 
study constitutional law. In her speeches, Justice Brown has praised 
it. Now, at her hearing we asked her, and she attempted to distance 
herself from what she said before, saying that the case has been 
``appropriately criticized'' and ``discredited.'' Yet she evaded a 
simple question about whether she agreed with it.
  It is an important case. It is a case that spells out the 
responsibility of the Federal Government when it comes to questions of 
commerce and liberty of contract. It was a decision by the court many 
thought moved clearly in the wrong direction and did not even allow 
Federal jurisdiction in questions regulating health and safety.
  Here is another example of her evasiveness. I asked her in writing to 
explain what rights she was referring to when she said that politicians 
are handing out new rights like lollipops in a dentist's office. Her 
full answer to that question was as follows:

       I was merely commenting in general terms and was not 
     specifically criticizing a particular legislative action.

  Now, in all fairness, that is a duck and a dodge. She did not answer 
the question. I asked her whether she agreed with the Federalist 
Society mission statement, the one I said earlier, about orthodox 
liberal ideology dominating the legal profession and so forth. She gave 
me the most evasive answer of any nominee, once again mystified as to 
what the Federalist Society really means, although she has attended 
their events.
  She said:

       As a judge, I have not had occasion to determine whether 
     the law schools and legal professors are by and large liberal 
     or conservative, and thus do not find myself qualified to 
     offer an opinion on that subject.

  She did not answer half the question. My question was about law 
schools and legal profession and she did not address the legal 
profession. I can go on, but I tell you this: She was not going to 
answer questions. We have seen nominees like her before who come before 
us and defy us to ask questions and to have answers come forward.
  There is a legitimate area of inquiry. I can recall when a Republican 
Member of the Senate Judiciary Committee asked one of President 
Clinton's nominees to disclose every vote she had cast for a California 
referendum for or against it in her lifetime. I thought that crossed 
the line. There is some secrecy in the ballot box and privacy involved, 
but that was considered a fair range of questions when it came to 
asking Clinton nominees if they are qualified. When we ask Justice 
Janice Rogers Brown the most fundamental questions about things she has 
said publicly, she ducks and dodges.
  According to the Washington Post, which has defended many of 
President Bush's judicial nominees:

       Justice Brown is one of the most unapologetically 
     ideological nominees of either party in many years.

[[Page S5522]]

  A Los Angeles Times editorial entitled ``A Bad Fit for a Key Court,'' 

       In opinions and speeches, Brown has articulated disdainful 
     views of the Constitution and government that are so strong 
     and so far from the mainstream as to raise questions about 
     whether they would control her decisions.

  That is from her home-State newspaper.
  The New York Times echoed that sentiment and said Brown ``has 
declared war on mainstream legal values that most Americans hold 
  The Atlantic Journal-Constitution wrote that Brown's views ``are far 
out of the mainstream of accepted legal principles.''
  The list goes on and on of over 100 organizations, including the 
Congressional Black Caucus, that oppose Justice Brown.
  Dorothy Height recently received the Congressional Gold Medal. She 
said this about a vote on Justice Brown:

       I cannot stand by and be silent when a jurist with the 
     record of performance of California Supreme Court Justice 
     Janice Rogers Brown is nominated to a federal court, even 
     though she is an African-American woman.

  Ms. Height, an African-American women herself, goes on to say:

       In her speeches and decisions, Justice Janice Rogers Brown 
     has articulated positions that weaken the civil rights 
     legislation and progress that I and others have fought so 
     long and hard to achieve.

  Stephen Barnett, a University of California-Berkeley constitutional 
law professor who had endorsed Brown before her hearing and whose 
support Chairman Hatch specifically mentioned in his opening statement 
at Justice Brown's hearing, sent a letter to Senator Hatch after the 
hearing and withdrew his support for Janice Rogers Brown. This is what 
Professor Barnett, who was once supposed to be a strong advocate for 
her, wrote to Senator Hatch after her hearing:

       Having read the speeches of Justice Brown that have now 
     been disclosed, and having watched her testimony before the 
     Committee on October 22, I no longer support the nomination.

  So you would hear from the Republican side that she is just another 
routine nominee who is being beaten up on by the Democratic side of the 
aisle. But when you read through all these comments of people who have 
observed her in her professional life, those who have followed her, not 
only fellow judges but those in the legal profession, it is very clear: 
This is a controversial nominee. She is a person who will bring to the 
bench something less than the moderation that we look for.
  I come from the Democratic side of the aisle. I understand if you are 
going to put a person on the bench, 9 times out of 10 you should look 
for a person who is going to try to be moderate and mainstream. What I 
found is that 10 times out of 10, with very few exceptions, that is 
exactly what we have ended up with. That is not the case here.
  The White House strategy is unfair to Justice Brown and her family, 
unfair to the Senate, and unfair to those who want to move beyond the 
environment of political confrontation which has become the hallmark of 
our efforts. We should not have to go through this knock-down, drag-out 
over filling these court vacancies. I have said to Chairman Hatch, and 
I will say again to those listening, there are plenty of good, 
conservative Republican attorneys and judges who are not so 
ideologically extreme who could fill these positions. You can find them 
in Ohio. You can find them in Virginia. You can even find them in 
Illinois. Why this White House continues to go after some of the most 
inflammatory, some of the most extreme judges to fill the benches in 
the highest courts in the land is beyond me.
  So when we find, among 218 nominees, 10 who fall into this extreme 
category, when we say they have gone too far, when we say to the 
President: You may have 95 percent, but for this other 4 or 5 percent 
the answer is no--I think we are doing what the Constitution asks us to 
do: advise and consent.
  But the President, of course, says no. I want them all. No dissent, 
no disagreement--I want every single judge. Strike ``advise and 
consent'' and put ``consent'' in there. That is what this President 
wants. Maybe that is what every President wanted. But the Congress and 
Senate in particular in the past have told those Presidents: No. We 
have the right to ask these questions and to demand the answers. And if 
we find a nominee wanting, we have the right to reject them, either by 
extended debate and filibuster or by the majority vote that ultimately 
that candidate would face if a motion for cloture prevailed.
  So in this case, they have decided that rather than hold these 
nominees to the same standard, they will change the rules of the 
Senate. That is what the nuclear option is about, changing the rules in 
the middle of the game, diminishing the constitutional principle of 
checks and balances, reducing the power of the Senate against the power 
of the White House and the Presidency, and saying to this President: 
You may make lifetime appointments of judges without holding them to 
the same standards that every President's nominees have been held to.
  Some time next week--and I pray to God it does not happen--Vice 
President Cheney may take that chair, preside over the Senate, and with 
just a few words sweep away 200 years of tradition. It is an act of 
arrogance to think that any person would do that without reflecting on 
the history of this body and its traditions.
  It is an abuse of power that this White House has to have more and 
more power, that 208 judges out of 218 is not enough, that they are 
going further. They want them all. And they have found too many 
compliant Republican Senators who have said: Whatever you want, Mr. 
President. Sign us up.
  I sincerely hope the Senate rises to the occasion. I sincerely hope 
that six Republican Senators will show the courage to speak out for the 
value of our Constitution and the tradition of the Senate.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Thune). The Senator from Ohio.
  Mr. VOINOVICH. Mr. President, I rise to support the nomination of 
Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit.
  I believe it is important that the Senate take its responsibility to 
advise and consent with respect to nominations very seriously. The 
people who are appointed to the judiciary, as well as to the executive 
branch of Government, can have an enormous impact on how our Government 
operates. In many cases, an appointee can make the difference on 
whether a particular policy or program is effective.
  I also believe the Senate should seek to work in a bipartisan manner, 
particularly with respect to judges. Since I came to the Senate 6 years 
ago, I have always been open to listen to any concerns that my 
colleagues across the aisle may have about a nominee.
  There has been a great deal said about Priscilla Owen and her 
nomination to the Fifth Circuit. I have heard the concerns about 
Justice Owen, but, frankly, I do not see any basis for them. If Justice 
Owen is not acceptable as a nominee to the U.S. Court of Appeals, we 
are going to have a hard time filling the vacancies in the court of 
  Let's review Justice Owen's record. Justice Owen has a very 
distinguished and impressive record as a lawyer, community leader, and 
most recently as a justice on the Texas Supreme Court.
  Justice Owen graduated cum laude from Baylor University and cum laude 
from Baylor Law School in 1977. She was on the Baylor Law Review and 
earned the highest score on the Texas bar exam in December of 1977.
  Justice Owen joined the well-regarded firm of Andrews & Kurth and 
rose to be a partner by the remarkably young age of 30. Any lawyer in 
this body has to be impressed with the fact that someone such as 
Justice Owen could become a partner at the age of 30. She practiced 
commercial litigation for 17 years.
  In 1994, Justice Owen was elected to the Texas Supreme Court, and, in 
2000, as has already been noted, she won a second term to the Texas 
Supreme Court with a vote of 84 percent.
  This is a very impressive record.
  I am not surprised that the American Bar Association unanimously 
rated Justice Owen as ``well qualified.'' That is the highest rating 
the American Bar Association can give to someone seeking a judgeship.
  But Justice Owen's legal credentials are not the only reasons I 
support her

[[Page S5523]]

nomination. In an age where I believe too many people do not take the 
time to become active members of their communities, Justice Owen has 
been a real leader in her community.
  She is a member of the board of the Texas Hearing & Service Dogs, and 
a member of the St. Barnabas Episcopal Mission, where she teaches 
Sunday school. She helped organize Family Law 2000, which seeks to 
lessen the adversarial nature of divorce proceedings in her State.
  She has been honored as Baylor Young Lawyer of the Year and as a 
Baylor University Outstanding Young Alumna. She also has been active in 
helping the poor obtain legal services, as well as other pro bono legal 
  I think her involvement in her community is important. We need judges 
who not only have exceptional legal skills, which Justice Owen 
certainly has, but also who have a perspective about how the law 
impacts upon individuals and communities.
  I have reviewed the letters of support she has received, and I am 
pleased that she has such broad support from the people who know her 
best and have worked with her.
  I also would like to note that even her opponents in the Senate have 
said they believe her to be a very good person. Accordingly, I do not 
see any issues that could raise any questions about whether she should 
be confirmed. Rather, she is exactly the type of serious, hard-working, 
and well-respected person who should be nominated to the court of 
  Some have said that Justice Owen is an extremist who will be a 
judicial activist. Again, I see no reason for such conclusions. 
Reviewing her record, I see a judge who vigorously but carefully sets 
forth her reasoning in her decisions and is willing to stand up for 
what she thinks is the correct decision. She is not an activist. She is 
an excellent judge.
  Any good nominee who has been active in thinking and writing about 
issues is going to have statements in their writings that, if taken out 
of context, can be made to appear extreme. This is what has happened to 
Justice Owen. Her opponents--mainly partisan interest groups--have 
scrutinized her writings, looking for anything that they could make 
into a sound bite to distort her record. But an examination of her 
record as a whole reveals that claims that she is extremist are 
baseless. Justice Owen is a good judge and would and will make a great 
circuit court judge.
  There is no need to filibuster this nominee. Justice Owen deserves an 
up-or-down vote. The filibustering of Justice Owen reveals just why the 
constitutional option may be necessary. The filibuster is being abused. 
If the minority is going to abuse its power to filibuster nominees such 
as Justice Owen, then the nomination process will break down 
completely. It is already too long and demanding on nominees and their 
families and deters excellent candidates from choosing to serve. We 
have no idea of what a chill this is sending throughout the country to 
people who we would like to serve on the bench but who say: I don't 
want to go through that process. It is a shame that such an 
exceptionally qualified nominee such as Miguel Estrada finally asked 
that his nomination be withdrawn after being filibustered for 2 years. 
As I look at what a clearly qualified nominee such as Miguel Estrada 
and Justice Owen must go through to serve our country, I wonder that 
the judiciary is not going to be able to attract the talent it needs.
  If every nominee must get 60 votes, it is clear that many posts 
simply will not be filled. In addition, if we require 60 votes to 
confirm nominees, we are only going to see nominees who have no paper 
trails or records of achievement, who have done little, if any, 
scholarly work, and who avoid public or judicial controversies. I don't 
want extremists on the bench, but I also don't want bland nominees who 
have never had to make difficult decisions.
  Comparing the Senate now to the Senate prior to the 108th Congress 
when filibustering of judicial nominations first occurred, I have to 
say that I think the old system was a lot better than what we saw in 
the 108th Congress. Under that system, a nominee who had the support of 
a majority of Senators, who was reported out of the Judiciary 
Committee, would get an up-or-down vote after review of the nominee's 
record and a robust debate. That was the fair way to proceed. It has 
been that way many times. It has been that way, as a matter of fact, 
for 214 years. No judicial nominee sent to the Senate floor who had the 
support of a majority of Senators was denied an up-or-down vote. There 
were no judicial filibusters. Thus, I do not consider the 
constitutional option as a change in the rules but a restoration of a 
Senate tradition, the tradition that filibusters do not apply to 
judicial nominees.
  My colleagues on this side of the aisle, including myself, had many 
opportunities to filibuster judicial nominees during the Clinton years 
as well as during the decades it spent in the minority. Just think 
about how long the Republican Party was in the minority--from 1954 to 
1980. All during that time, they never used a filibuster to stop a 
judge who was nominated. They insisted that there be an up-or-down 
vote. This was the courtesy that was extended to the other party. It 
helped make sure that the judicial nomination process worked smoothly 
and fairly. I wish the present minority would extend the same courtesy 
  I also believe the ongoing abuse of the filibuster is preventing the 
Senate from addressing other, often more pressing business, such as 
passing an energy bill, addressing asbestos litigation, and other 
issues. I can recall in the 108th Congress hour after hour after hour 
after hour, staying here late at night, working on these judicial 
nominees when, in my opinion, we should have been doing the other work 
of the Senate that was important to the people of our country.
  The minority has repeatedly claimed that President Bush has had 95 
percent or so of his nominees confirmed. Yet we all know this statistic 
is a smokescreen. The real issue here is the appointment of circuit 
court judges, and the minority has successfully prevented the 
confirmation of about a third of President Bush's nominations. 
President Bush has the lowest confirmation rate of circuit court judges 
of any President going back as far as President Roosevelt. I think the 
statistics show that the real issue here is not that any of these 
judges is extreme but that there is an active campaign to use the 
filibuster to prevent President Bush from appointing circuit court 

  It is the President's job to nominate judges, and it is the Senate's 
job to advise and consent. It is time the Senate started doing its job 
and voted on these nominees. If a Senator doesn't like the nominee, 
that Senator should vote against the nominee. If someone doesn't like 
Justice Owen, vote against her, don't filibuster her and deny your 
colleagues an up-or-down vote. I want to vote on these nominees.
  There have been nominees in the past and some currently and some from 
my own party who I did not support. But I never filibustered them, even 
during the Clinton years. I can remember in our conference meetings 
talking about judges and some of my colleagues getting up and saying at 
those meetings: Let's filibuster this judge. We can't allow that judge 
to go forward. That judge is going to be bad for the district court to 
which they are being nominated. I can remember Orrin Hatch saying: We 
can't do that because if we start to do this, God only knows where we 
are going.
  Last time around, my colleagues on the other side of the aisle 
started a new tradition. It is not a good tradition for the Senate. It 
is not a good tradition for the people of the United States of America. 
I believe both the President and my fellow Senators, as well as this 
country, deserve the courtesy of an up-or-down vote on nominees.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. Mr. President, I rise to speak on this matter of judges. I 
was presiding the last hour and a half or so listening to some of my 
colleagues speak. I associate myself with the remarks of the Senator 
from Ohio. But I was listening to my colleagues from New Jersey and 
Illinois, Senator Corzine and Senator Durbin.
  I heard the Senator from New Jersey talking about the rights of 
minorities. The Senate does care about the rights of the minority. When 
one talks about the rights of the minority, one normally talks about 
ways to enhance

[[Page S5524]]

civil rights, to make sure there is equal opportunity--that there is 
due process of law.
  Sadly, the Democrats have changed the rules. They changed 214 years 
of practice, which was that when a President nominated a particular 
person for a judicial vacancy, the Judiciary Committee would examine 
that individual very closely, as to their scholarship, their 
temperament, their judicial philosophy, and ultimately if they passed 
muster, that person would come to the Senate floor. Senators, for 214 
years, would vote to confirm or deny confirmation to that particular 
nominee. That changed just 3 years ago.
  What is being suggested by Senator Corzine and others on the other 
side is that a minority of only 41 Senators should be able to deny a 
well-qualified nominee the fairness and the due process of an up-or-
down vote on the Senate floor.
  These individuals are well qualified, but they are denied the 
opportunity of an up-or-down vote. These individuals, as Senator 
Voinovich said, go through a gauntlet. And when one of these nominees 
goes through the gauntlet, that doesn't last just months. It has been 
lasting for 1, 2, 3, and, in the case of Priscilla Owen, 4 years. Once 
you get through that gauntlet, you may be bruised and you may have some 
aspersions made about you and statements taken out of the record and 
opinions criticized and scrutinized and all the rest.
  At the end of the day, when a majority of the Senators are in favor 
of that individual and they have come out of the Judiciary Committee, 
they ought to be accorded the fairness, the decency, the due process of 
an up-or-down vote.
  Another statement that was made is that the Senate is to protect 
minority interests. Well, if one would actually read the Constitution 
and read the documents and the debates on the Senate, why the Senate 
was created the way it is and compare that to the way the House of 
Representatives is, one would find that the Senate is to protect the 
interests of the people in the States. The Senate is not representative 
of the population of the country, as is the House.
  In fact, the Senate was to serve, in many respects, as a safeguard of 
State prerogatives. So when the Senator from New Jersey says the Senate 
is created to protect minority rights, it is to protect the right of 
the States. Let's recall that it was the people in the States who 
created the Federal Government. Note the name of our country: The 
United States of America. In fact, the rights of the States were so 
closely guarded that State legislators actually selected Senators for 
most of the history of this country rather than the people. Let's get 
those facts straight.
  All of this sort of talk and background noise is trying to avoid the 
point that the Democrats' partisan obstruction of the President's 
nominees is unprecedented. We are trying to get back to the precedent 
we had for 214 years before they changed it. It is an issue of 
fairness. It is an issue for me as a Senator from the Commonwealth of 
Virginia, the State of James Madison, one of the key authors of our 
Constitution. It is my constitutional duty to advise and consent. What 
41 Senators are trying to do is take away my responsibility to the 
citizens of the Commonwealth of Virginia. I see nothing wrong with 
voting yes or no.
  Now, also in the midst of this flailing and background noise, from 
time to time, we have heard from the senior Senator from Illinois, 
casting aspersions on an organization called the Federalist Society, 
saying because Justice Owen of Texas was a member of the Federalist 
Society, and that many of President Bush's nominees for the Federal 
courts were in the Federalist Society, he wondered what this society 
was all about.
  Well, after listening, I had my crack staff get on the Internet and 
get me the background on the Federalist Society. Let me share this with 
my colleagues regarding what is called the Federalist Society for Law 
and Public Policy Studies. Here is their background:

       Founded in 1982, the Federalist Society for Law and Public 
     Policy Studies is a group of conservatives and libertarians 
     dedicated to reforming the current legal order. We are 
     committed to the principles that the State exists to preserve 
     freedom, that the separation of governmental powers is 
     central to our Constitution, and that it is emphatically the 
     province and duty of the judiciary to say what the law is, 
     not what it should be. The Society seeks to promote awareness 
     of these principles and to further their application through 
     its activities.

  It goes through its mission and says the purpose of the society is 
unique. They have legal experts of opposing views to interact with 
members of the legal profession, the judiciary, law students, 
academics, and the architects of public policy. They talk about 
appreciation of the role of separation of powers; federalism; limited 
constitutional Government; and the rule of law protecting individual 
freedom and traditional values. Overall, the Society's efforts are 
improving our present and future leaders' understanding of the 
principles underlying American law. They have a student division, and 
the student division has more than 5,000 law students at approximately 
180 ABA-accredited law schools, including all of the top twenty law 
  They have a lawyers' division comprised of over 20,000 legal 
professionals and others interested in current intellectual and 
practical development in the law.
  I urge my colleague from Illinois to recognize that they have 
chapters in 60 cities, including Washington, DC; New York; Boston; 
Chicago; Los Angeles; Milwaukee; San Francisco; Denver; Atlanta; 
Houston; Pittsburgh; Seattle; Indianapolis, and others. They have a 
faculty division and more.
  I ask unanimous consent that this statement of the background of the 
Federalist Society be printed in the Record before anybody else 
mischaracterizes the purpose and salutary goals and mission of the 
Federalist Society.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    [From the Federalist Society for Law and Public Policy Studies]

                             Our Background

       Founded in 1982, the Federalist Society for Law and Public 
     Policy Studies is a group of conservatives and libertarians 
     dedicated to reforming the current legal order. We are 
     committed to the principles that the state exists to preserve 
     freedom, that the separation of governmental powers is 
     central to our Constitution, and that it is emphatically the 
     province and duty of the judiciary to say what the law is, 
     not what it should be. The Society seeks to promote awareness 
     of these principles and to further their application through 
     its activities.
       In its mission and purpose, the Federalist Society is 
     unique. By providing a forum for legal experts of opposing 
     views to interact with members of the legal profession, the 
     judiciary, law students, academics, and the architects of 
     public policy, the Society has redefined the terms of legal 
     debate. Our expansion in membership, chapters, and program 
     activity has been matched by the rapid growth of the 
     Society's reputation and the quality and influence of our 
     events. We have fostered a greater appreciation for the role 
     of separation of powers; federalism; limited, constitutional 
     government; and the rule of law in protecting individual 
     freedom and traditional values. Overall, the Society's 
     efforts are improving our present and future leaders' 
     understanding of the principles underlying American law.
       The Society is a membership organization that features a 
     Student Division, a Lawyers Division, and a newly-established 
     Faculty Division. The Student Division includes more than 
     5,000 law students at approximately 180 ABA-accredited law 
     schools, including all of the top twenty law schools. The 
     national office provides speakers and other assistance to the 
     chapters in organizing their lectures, debates, and 
     educational activities.
       The Lawyers Division is comprised of over 20,000 legal 
     professionals and others interested in current intellectual 
     and practical developments in the law. It has active chapters 
     in sixty cities, including Washington, D.C., New York, 
     Boston, Chicago, Los Angeles, Milwaukee, San Francisco, 
     Denver, Atlanta, Houston, Pittsburgh, Seattle, and 
     Indianapolis. Activities include the annual National Lawyers 
     Convention, a Speakers Bureau for organizing lectures and 
     debates, and 15 Practice Groups.
       The Federalist Society established its Faculty Division in 
     early 1999 with a conference that was attended by many of the 
     rising stars in the legal academy. The objective of the 
     Faculty Division is to provide events and other tools to help 
     encourage constructive academic discourse. This encouragement 
     will help foster the growth and development of rigorous 
     traditional legal scholarship.
       Finally, the Federalist Society provides opportunities for 
     effective participation in the public policy process. The 
     Society's ongoing programs encourage our members to involve 
     themselves more actively in local, state-wide, and national 
     affairs and to contribute more productively to their 
  Mr. ALLEN. Mr. President, the Senator from Illinois went on further 

[[Page S5525]]

chastise and criticize the statements that he said were contradictory 
statements of Senator Frist in a filibuster, as he characterized it, in 
the year 2000.
  Now, if the senior Senator from Illinois, Senator Durbin, wants to 
point to prior inconsistent statements, let me refresh his memory. This 
is what Senator Durbin said on September 28, 1998:

       I think that responsibility requires us to act in a timely 
     fashion on nominees sent before us. The reason I oppose 
     cloture is I would like to see that the Senate shall also be 
     held to the responsibility of acting in a timely fashion. If, 
     after 150 days languishing in a committee there is no report 
     on an individual, the name should come to the floor. If, 
     after 150 days languishing on the Executive Calendar that 
     name has not been called for a vote, it should be. Vote the 
     person up or down. They are qualified or they are not.

  Those are good words from the senior Senator from Illinois in 1998. 
Those are the principles we are advocating now. These nominees have not 
been held up for just 150 days. These nominees--Priscilla Owen, Janice 
Rogers Brown, and others have been held up for months and years, and in 
Justice Owen's case, four years.
  Then we heard from the senior Senator from Illinois, after saying 
that we ought to watch our words, he called the Republicans dogs, more 
specifically, cocker spaniels. This was all because we vote for 
President Bush's nominees for judges. So we are like dogs, cocker 
spaniels. Let me be like an Australian shepherd and herd in the 
Democrats for the last few days who have been popping up like prairie 
dogs. We have heard this charge from others, including Senator Kennedy, 
Senator Murray, Senator Schumer, Senator Dorgan, and Senator Durbin, 
who just recently made this unsubstantiated accusation that, we just 
vote for all these nominations and nobody votes against any of 
President Bush's judicial nominees.
  The truth is, all of these Senators--Senators Kennedy, Murray, 
Schumer, Dorgan, and Durbin when it came to a straight up-or-down vote 
on all of President Clinton's judicial nominees, whether they were for 
district court, circuit court of appeals, or Supreme Court, never cast 
a dissenting vote--not even once. That is a lot of affirmative votes, 
if you ask me, for 8 years of President Clinton's nominees.
  Then I scoured around like a German shorthair, and let me point out 
what I found out from Senator Kennedy on straight up-or-down votes, not 
only on President Clinton's nominees, but on President Carter's 
judicial nominees. Senator Kennedy didn't even cast a dissenting vote 
on any of those nominees. To be calling Republicans ``lap dogs,'' 
``rubberstamps,'' and so forth--I don't think so.
  Unlike Senator Durbin, we are not going to call the Democrats dogs or 
cocker spaniels. I think we are lucky dogs that President Bush has 
examined some outstanding nominees from coast to coast, outstanding men 
and women who are willing to serve at the circuit court level, which is 
a very important level of appeals in this country. He has nominated 
well-qualified nominees for the circuit court, such as Miguel Estrada.
  When you talk about qualifications, Miguel Estrada received the 
highest possible rating unanimously from the American Bar Association 
and although we had, on five or six occasions, 55, 56 votes, he was 
denied the opportunity of a fair up-or-down vote. Finally, his life 
could not continue in such limbo and he withdrew his nomination.
  Priscilla Owen, a justice of the Supreme Court of Texas, another 
outstanding nomination from President Bush, the person we are actually 
debating right now, received the highest level of endorsement from the 
American Bar Association, a unanimous, well-qualified. Justice Owen was 
elected to the Supreme Court of Texas in 1994 and was reelected with 84 
percent of the vote in Texas in the year 2000. This is a person well 
qualified, well respected in her State.
  Janice Rogers Brown, another great American life story of someone who 
is the daughter of a sharecropper in segregated Alabama, moved to 
California, ended up being the first African American on the Supreme 
Court of California, the largest State in our Nation. She is one who 
has been characterized as a brilliant and fair jurist who is committed 
to the rule of law. The Chief Justice of the California Supreme Court 
called on her to write the majority opinion more times in 2001 and 2002 
than any other justice of the supreme court.
  In California, judges are elected rather than appointed and in the 
most recent election, Justice Brown received 76 percent of the vote, 
which was the largest margin of any of the four justices up for 
retention that year in California, which is not a strong red State. In 
fact, it is kind of a pale-blue State. Nonetheless, she received 76 
percent of the vote in California.
  This individual, Janice Rogers Brown, is having to go through these 
sort of accusations against her. She is well respected, and she is 
certainly within the mainstream.
  I hope these rebuttals will shed some light on the reality of what is 
going on here. What we are simply trying to do is accord these nominees 
the fairness of an up-or-down vote. People in the real world probably 
do not understand this process. They do not understand why a nominee 
who has majority support cannot be accorded the fairness of a vote. The 
people of America understand courtesy, and they understand due process. 
They understand the bump and run and activity that one will have and 
statements that might be made, and you can have some fun talking about 
dogs, and so forth.
  But ultimately, once you go through all the histrionics, aspersions, 
characterizations, rebuttals, and setting the record straight, 
ultimately what we ought to do as Senators is our job and our duty. 
This is what the people of America in our respective States have asked 
us to do. I really do not think it is too much for us to get off our 
haunches, show some spine, show some backbone, vote yes, vote no on 
these nominees, and then you can explain to your constituents back in 
New Jersey or Illinois or South Dakota or Virginia why you voted the 
way you did.
  What we need to do is truly take the politics out of this process. It 
is harmful that this has become so politicized in the last several 
years. It is an issue I know is very important to the American people. 
They recognize President Bush has a philosophy--and it is one that I 
share--that judges ought to apply the law, not invent the law, and that 
he has found and sought out men and women of diverse background to 
bring their experiences, but also their fundamental belief of what the 
proper role of a judge should be, and that is to listen to the 
evidence, apply the facts to the law as written by the legislative 
branch in our representative democracy, and make that ruling.
  These nominees are well qualified. They have gone through a lot. They 
are individuals. These are not just pieces of paper that you just 
crumble up and throw aside. These are human beings, and they should not 
be treated this way.
  If we are going to be able to attract quality men and women in the 
future to our Federal judgeships and Federal appointments, many giving 
up lives where they can make more money, certainly have less 
controversy, they ought not to be treated like a sheet of paper. They 
are human beings. Let's have our debates, have the arguments, make a 
judgment, and ultimately vote ``yes'' or vote ``no.''
  That is what I think the American people expect out of the Senate, 
and it is a shame we are having to spend as much time as we are on 
this, but it is an important principle. It is due process, it is 
fairness, and it is the rule of law.
  I thank my colleagues. Mr. President, I yield the floor, and I 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ALLEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.