Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005 -- (Senate - March 04, 2005)

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Mr. CORNYN. Thank you, Mr. President.

First, let me say to my friend, the Senator from Alabama, how much I appreciate his eloquence on this bill and his very successful attempt to explain to the American people, as well as to us, what is at stake here, and to knock down some myths that are being used to try to worry people when, in fact, there is no reason for people to be worried about this legislation.

Indeed, as has been reflected before, this bill will pass as it has previously, and will pass by a large bipartisan majority, and for good reason.

FREE SPEECH

Mr. CORNYN. Mr. President, I want to turn to another subject briefly.

The reason I changed the subject from bankruptcy to this is provoked by an op-ed piece that I read today, and that others in this body may have read, published in the Washington Post.

This article is called `` `Nuking' Free Speech,'' certainly an attention-grabbing headline.

As it turns out, reading the op-ed, it is what I can only describe as a breathless statement made in writing by one of our distinguished colleagues, claiming there are efforts to reinstate majority rule when it comes to the procedures that govern our advice and consent function; that is, the procedures by which we evaluate Federal judges sent to the Senate for our consideration under our advice and consent function.

Somehow, the opponents of reinstating the 200-and-more year tradition of majority rule when it comes to confirming Federal judges have been able to convince the press and others that this represents a nuclear option. Hence, the title and, hence, the first sentence in this op-ed.

It says:

A ``nuclear option'' is targeting the Senate.

That is unfortunate because it suggests people who want to reinstate majority rule when it comes to advice and consent on the President's judicial nominees are somehow doing something radical, something dangerous, something potentially catastrophic when, in fact, that is not the case.

As many know, we have seen use of a tactic which has been labeled obstructionist, it is fair to call it; that is, the use of the filibuster, to block the President's judicial nominees from getting an up-or-down vote. Indeed, it is that obstructionist procedure that has never been used in the history of this country before the last Congress. If there is a nuclear tactic being used here, I submit it is the use of that obstruction where a willful minority blocks a bipartisan majority from voting on the President's judicial nominees. That radical change from Senate tradition over the 200-plus years this body has existed is the radical change. For those who believe we ought to restore that tradition which has been taken down a very dangerous road these last 2 years with obstruction, I submit we are doing nothing more than trying to restore that Senate tradition and majority rule; and those who oppose reestablishing majority rule are the ones who are taking a radical, a dangerous position.

The senior Senator from West Virginia, the author of this op-ed, claims that 20 men and women have been renominated by the President to the Federal bench where 7 of those were rejected last year. Plainly, that is false. How can it be said the Senate has rejected a nominee when we were prevented from having an up-or-down vote? Clearly, that is not true.

This op-ed piece goes on to suggest that as a result of those who believe we ought to reestablish this 200-year-long tradition of majority rule when it comes to confirming judicial nominees, this op-ed goes on to say it starts with shutting off debate on judges, but it will not end there. Ultimately, he says, if Senators are denied their right to free speech on judicial nominations, an attack on extended debate on all other matters cannot be far behind.

The distinguished senior Senator from West Virginia has been in the Senate a long time. Much of his service he is justly proud of. But one of the dangers of being in the Senate for a long time is that you go on record making statements which have the potential of contradicting one's current statements. Indeed, that has been the case when it comes to the senior Senator from West Virginia.

For example, the very procedure which he now decries as nuking free speech, he himself championed in 1977, in 1979, in 1980, in 1987. Hardly can it be true that today trying to reinstate majority rule as he himself did on those four occasions on the dates of the years mentioned, hardly can that be nuking free speech. In fairness, he ought to concede what we are doing is nothing radical. Indeed, it is doing the same thing he himself did four times earlier.

The other thing that is unfortunate about this claim made in this op-ed is that it represents the latest in a continuing series of arguments being made in the Judiciary Committee. I am thinking now of the senior Senator from New York, Mr. Schumer, who asked the Attorney General, then nominee, Alberto Gonzales, of his opinion on this ``nuclear option.'' Later we heard speeches in the Senate from the distinguished senior Senator from Massachusetts, Mr. Kennedy, and together the three Senators making speeches, raising fears of alarm about the so-called nuclear option have raised the concern, at least on my part, that if left unresponded to, if the record is left uncorrected, people might indeed begin to believe what we are suggesting by restoring this 200-year tradition of majority rule is radical when it is not.

One of the dangers of being here a while is you may have been on record directly and diametrically opposed to what one is saying today. That is the case with the senior Senator from West Virginia.

In 1979 on this same issue, he said:

This Congress is not obliged to be bound by the dead hand of the past .....

He said:

Any Member of this body knows that the next Congress would not heed that law .....

He is talking about a hypothetical law where a Congress would pass a bill that says to change this you need a two-thirds majority requirement.

He said:

Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would proceed to change it and would vote repeal of it by a majority vote.

The senior Senator from West Virginia was correct in 1979. He is plainly incorrect today in claiming now that a 60-vote threshold is required in order to get an up-or-down vote on the President's judicial nominees.

The senior Senator from Massachusetts, Mr. Kennedy, spoke on this same matter in 1975--quite a time ago--when he served in this body as a much younger man. He said on this same subject:

The simple fact is the two-thirds majority required ..... under the filibuster, under the cloture rules is too difficult to obtain. Too much Senate business is too often obstructed. The will of the majority is too easily thwarted. And it is not the Senate, but the Nation's people who suffer the consequences.

I agree with the senior Senator from Massachusetts, speaking in 1975. I disagree with the senior Senator speaking in 2005 on the same subject. He made the case very clearly back then. It is the same case that applies today. He said that the immediate issue is whether a simple majority of the Senate is entitled to change the Senate rules. Although the procedural issues are complex, it is clear this question should be settled by majority vote.

So it is clear from the record that what Senator Kennedy, Senator Byrd, and Senator Schumer himself back in the year 2000 suggested, which was the majority should govern, should be the rule today. It should be the rule when Republicans control the White House and control the Senate. It should be the case were there a Democrat in the White House or the Democrats controlled the Senate. In other words, what we are talking about today is an important principle. And principles should not change with political convenience, which apparently is the case today.

For those who took the same position back then as I and others believe should be applied today, then somehow it is suggested that this majority rule option--which is what I would prefer to call what they refer to as the nuclear option or the constitutional option--that is all we are asking for, a return to that majority rule, which they championed years ago and which they, unfortunately, are obstructing today in suggesting that somehow it is a violation of our rules and of our precedents.

Unfortunately, we learn, those of us who run for office, those of us who are engaged in the rough and tumble of debate in the political arena, we know that an unresponded to allegation or attack is often an attack or an allegation believed. That is why it is so important, to set the record straight.

One of the concerns Senator Byrd expressed in this op-ed, if I can sort of get down to the bottom of it, is he thinks what we are suggesting, the return to majority rule, is somehow going to stifle debate. Well, the fact is, we have had more than 2 years, going on 3 years, to debate the President's judicial nominees who have been filibustered. Surely, any reasonable person would agree that 2 or 3 years is enough debate on any nominee, when all we are asking for is simply an up-or-down vote.

One other distinction I think is noteworthy. What we are talking about is not restricting debate in any way on legislative business, which, of course, is exclusively within the purview of the Congress. And if we want to pass a rule that says we are not going to have an up-or-down vote on legislation unless 60 Senators agree that we should close off debate, I think that is exclusively within our purview because it does not speak to the constitutional authority of power of any other branch of Government.

But when we say--and the President is given the constitutional responsibility to nominate people to the Federal bench--that our advice and consent function cannot occur unless 60 Senators agree to close off debate so we can have an up-or-down vote, that does not merely infringe on our authority as the Senate, it infringes on the constitutional power of this President to nominate good and qualified people to the Federal bench, and then to have a debate, to have a searching inquiry into their qualifications and background, but ultimately then to have a vote, if a majority stand ready to confirm these nominees.

Surely, everyone would agree that it would be wrong to say it takes a 51-percent vote to elect a Democrat to office but it somehow should take a 60-percent vote to elect a Republican to office. In a very odd sort of way, that is an analogy to what Senator Byrd, Senator Kennedy, Senator Schumer, and others on their side of the aisle have suggested.

Why in the world, after more than 200 years, when the practice has been not to filibuster judges but to allow an up-or-down vote when a bipartisan majority stand ready to vote on them, should the rules change when this President is elected to the White House and when Republicans have a majority in the Senate?

Well, of course, that is an unprincipled approach. It is merely a way of saying we have an argument for why we ought to be able to obstruct this President from getting the nominees he wants voted on to the Federal bench. No one is suggesting, of course, that any Senator do anything other than vote their conscience. If any Senator feels there is just cause for them to vote against a nominee, then they should do so. And I trust they will. But no Senator and no group of Senators has the authority to block a bipartisan majority of this Senate from doing its solemn duty under the Constitution. Yet that is precisely what has happened time and time and time again by an obstinate minority who last Congress filibustered 10 different judges, preventing that up-or-down vote from occurring.

We have tried to work with our colleagues on the other side. I remember the Democratic leader, when asked whether his approach to leadership on this and other issues would change with the change of Congress and with his ascension to Democratic leader, said: I would rather dance than fight. What it suggested to me was he was going to be amenable to working together. I know he is a tough advocate for his side of any argument, and as leader has a responsibility to his caucus to represent the views of his caucus. But it suggested to me perhaps we would have a fresh start and a new attitude when it came to judicial filibusters.

But, indeed, time and time again we have seen that is not apparently the case. And while we have not yet had to go to a vote on the floor on these judges who have been filibustered in the past, we will very soon. We know also that in addition to these circuit court nominees, we are likely to have a vacancy to the U.S. Supreme Court before very long, where, believe me, all this will have been merely a prelude to what will be a vigorous debate, which will consume virtually everything else we do, because people understand that those who are unsuccessful in getting their views enacted into law through the political process know that having judges who are confirmed who believe that a judge should be an umpire and enforce political decisions rather than make political decisions from the bench represents a threat to their agenda.

But none of us have the right to use unconstitutional means, which these filibusters are, to prevent the people of this body, to prevent this President, from doing our constitutional duty. For them to suggest trying to restore 200 years of tradition, trying to restore majority rule, doing the very things they themselves have advocated and done in the past, is somehow a nuclear option is blatantly false.

So, unfortunately, it is necessary, for me and others to lay the record straight. I trust that fairminded people, looking at the record, looking at the facts, will realize what we are suggesting is not a nuclear option. What we are suggesting is perhaps a constitutional option. What we are suggesting is a restoration of the majority rule option, but it is nothing radical, and it is, indeed, in keeping not only with the traditions of the Senate but also in keeping with the Constitution and laws of the United States.

The Constitution is abundantly clear when supermajorities are required in order to perform a certain function. For example, to amend the Constitution, it talks explicitly about the requirement of a two-thirds majority and ratification by three-quarters of the States. It is also very clear that a supermajority is required to ratify treaties. But nowhere within that document, that foundation of our laws, the Constitution, is it suggested that more than a majority rule is required in order to provide advice and consent when it comes to the President's judicial nominees.

I appreciate the opportunity and the patience of my friend, the Senator from Georgia, who I know is going to speak next, allowing me to correct the record and I hope better inform the American people and our colleagues about exactly what is going on. What is going on is that we are required to do what the people of our respective States have sent us here to do, and that is to vote. We have a tradition of lengthy debate and opportunity for any Senator to speak their mind on any subject that they care to speak on, but ultimately we are obligated by our oath and by the Constitution that governs all Americans to have an up-or-down vote, especially when a bipartisan majority stands ready to confirm, which is the case here. No Senator, no person, no collection of persons has any right to demand anything more.

Unfortunately, this has gone on for too long. Good and distinguished nominees of this President have not only been denied the opportunity to have an up-or-down vote but unfortunately have been smeared as part of the process far too often. I believe what we need is a fresh start. We need a fair process, one that will apply to Democrats as well as Republicans, and one that will reflect the kind of honor that should be reflected on this institution. Unfortunately, that has not been the case. We have somehow allowed ourselves to veer off the path that the Constitution lays out for us. But we do have a chance, if necessary, if the Democratic leadership is going to persist in this unconstitutional blockade and obstruction of the President's nominees, for us to correct what has gone on for too long. Indeed, I hope that will not be necessary. Ultimately the decision is going to be theirs.

We have been patient. We have explained our position. We have listened carefully to their arguments. We have listened to their objections. Frankly, we find them to be firmly planted on both sides of this issue.

I hope those listening and colleagues in the Chamber will now understand a little bit better about why it is so important for us to reinstate this more than 200-year tradition, indeed this constitutional mandate that binds all of us as Americans to majority rule restoration.

I yield the floor.

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