Jucicial Nominations

JUDICIAL NOMINATIONS

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Mr. DURBIN. Madam President, I thank my colleague from South Dakota who just spoke. I just left the Senate Judiciary Committee of which I have been a member for a number of years. It is not just an ordinary meeting of the committee today; it is a historic meeting. It is a meeting I am sure, when they chronicle this episode in the history of the Senate, they will point to as a catalyst for a constitutional confrontation, the likes of which the Senate has never seen in its history. Let me tell you what is going on.

Many times in the history of this country, a President with a popular mandate comes to Washington in their second term unhappy with the judiciary, unhappy with judges who do not see the world as they do. These Presidents come to the conclusion that with their popular mandate, with their majorities in Congress, they can change the Constitution, they can change the courts.

It is happening with President Bush, but he is not the first President who has been through this experience. President Thomas Jefferson, in the beginning of his second term, so angry over the opposition party that controlled judgeships, tried to impeach a member of the U.S. Supreme Court. He brought the issue to the floor of the Senate, to a floor that was dominated by his own political party, and said: Give me the power to get rid of these outrageous judges. His party turned on him and said: No, the Constitution, Mr. President, is more important than your power. We reject your notion that you can pack the Supreme Court with friendly judges.

Thomas Jefferson was not the last. A President whom I honor and venerate, Franklin Delano Roosevelt, in the beginning of his second term came to the White House with this large popular mandate and, in frustration, said: I am sick and tired of the ideas of the New Deal being killed in that Supreme Court. Give me the power as President, Franklin Roosevelt said, and I will replace and add to the membership of that Supreme Court until we get Justices who think like I do.

He came to this Senate, this Chamber, dominated by Members of his own political party, and said: Stand with me. You voted for the New Deal, now stand with me. We are going to make sure the Supreme Court goes along. And his party said no. They said: Franklin Roosevelt, the Constitution is more important than your power as President. We will stand by the Constitution. You are wrong, Mr. President.

But look what is happening today. President Bush, not content to have 95 percent of his judicial nominees approved by this Senate, has now said: This Republican Party is going to change the rules of the Senate, change the constitutional principles that have guided us so that President Bush can have every single judicial nominee approved by the Senate, bar none.

So what will happen in a Senate dominated by the President's party? Will they rise in the tradition of Thomas Jefferson's Senate? Will they rise in the tradition of Franklin Delano Roosevelt's Senate? Will they, as the President's party, stand up and say: The Constitution is more important than the power of any President? Sadly, it appears they will not. They are lapdogs as the President is demanding this power. They will come to the Senate with the so-called nuclear option. It is a good name. It is a good name because it signifies the importance and gravity of what they will do.

The first thing they have to do is break the rules of the Senate. If you want to change a Senate rule, you need 67 votes. They do not have 67 votes to give President Bush this unbridled power, so they will break the rules of the Senate with a so-called point of order to change the rules of the Senate and to say that this President, unlike any other President in history, will not have his judicial nominees subject to the rules of the Senate as we know them.

Oh, they argue, this opposition to President Bush's nominees is unprecedented. Nobody has ever used the filibuster on a judicial nominee. That is what they say. But they are wrong. It has happened 11 times. Most recently the Republicans used the filibuster against President Clinton's nominees. They have done it. They have done it because the rules allowed them to do it. And now, in the middle of the game, they want to change the rules and diminish the power of the Senate and attack the principle of checks and balances.

The reason this great democracy has survived longer than any in history is that we have this tension between the branches of Government--the power of the Presidency checked by the power of Congress checked by the power of the judiciary--and this tension among the three branches of Government has given us this democracy that has survived while others have failed. Yet the majority party, the Republican Party in the Senate, would walk away from that fundamental principle, for what? For what? So that this President can have every single judicial nominee without fail? Madam President, 95 percent is not enough? And 205 out of 215 is not enough?

I have stood with my colleagues and voted against some of these nominees. I will do it again. These are men and women far outside the mainstream of American political thought. They have been pushed to the forefront by special interest groups demanding they get lifetime appointment on a court in America to make decisions that will affect everyone--every family, every worker, the air we breathe, and the privacy we revere.

What is the agenda? We hear this agenda. It is spelled out in detail by Congressman TOM DELAY of Texas. He threatens the judiciary: We are going to dismantle them if they don't agree with me, he says. TOM DELAY is going to set the standard for judges in America? This man who was pushing through the Terry Schiavo case, defying 15 years of court decisions, defying the wishes of that poor woman's family? He was so angry when the Federal judges did not agree with him, he said: We will get even with you. That is what this is about.

So judicial nominees will come to the floor who will be approved who will follow the TOM DELAY school of thinking, who will follow something far outside the mainstream of America.

We need to have bipartisanship. We need balance. We need fairness. We need to say to a President of any political party: As powerful as you may be, you are never more powerful than our Constitution. The Constitution, which is the one commonality in the Senate, of all the things we argue about and all the things on which we disagree, we--each and every one of us--stand proudly next to that well, raise our hands, and swear to uphold and defend the Constitution of the United States.

To my colleagues and friends who are following this debate, the constitutional crisis we are facing is unnecessary. If the President's own party has the courage that Thomas Jefferson's party had, that Franklin Roosevelt's party had, they would say to the President: You have gone too far. The Constitution is more important than any President. But, sadly, we are on a path to this crisis.

If it occurs--and I hope it does not--it is going to change this body. It is going to change it dramatically. The Senate is so much different from the House. The Senate is successful because each and every day you will hear said over and over, ``I ask unanimous consent.'' Unanimous consent is just as the phrase suggests--any Senator can object. But it seldom occurs because we agree to move forward together--Democrats on this side, Republicans on the other side--move forward with the people's business. But if the Republican majority pushes through this constitutional confrontation, destroys this tradition of the Senate, assaults the principle of checks and balances, then the courtesy, the comity, and the cooperation which makes this such a unique institution is in danger.

I hope that cooler minds will prevail. I am heartened by the fact that Senator JOHN MCCAIN, a leading Republican, has stood up and begged his fellow Republican colleagues: Don't do this. The Senate and its traditions and the Constitution, Senator McCain says, are more important than any President or any party.

I am confident the Judiciary Committee will send this nomination of Priscilla Owen of Texas to the floor. I hope that once it reaches the calendar, cooler minds will prevail and all of us who have sworn to uphold this Constitution will honor it by our actions on the floor of the Senate.

http://thomas.loc.gov/