Transportation Equity Act: A Legacy for Users

TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS

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Mr. DURBIN. Madam President, I thank the chairman of the committee. Let me say I share his sense of urgency about the underlying bill. This is a bipartisan bill, a bill Democrats and Republicans want to see passed, a bill to finance the building of roads and bridges and airports, to finance mass transit in what is critical infrastructure for America's economy. I do not have an amendment to the bill, but if I did, I would offer it because I think those who have them should bring them to the floor so we can move and get it done before we take a recess next week. I urge my colleagues on the Democratic side to follow the admonition of the chairman.

What brings me to the floor was a statement made earlier by the Senator from Utah which made reference to me. Senator Orrin Hatch and I are friends. We disagree on a lot of things.

We vote differently on a lot of issues and we debate furiously, but we get along fine. I think that is what life should be like and what the legislative process should be like. He made a reference earlier to this whole question of the nuclear option, to which I would like to return for a few moments.

First, what is the nuclear option? People who don't follow the Senate on a regular basis have to wonder are they using nuclear weapons on the floor of the Senate? What could it be? ``Nuclear Option'' was a phrase created by Republican Senator Trent Lott to describe a procedure that might be used to change the rules of the Senate. The reason Senator Lott called it the nuclear option was because it is devastating in its impact to the tradition and rules of the Senate.

I will put it into context. The Senate was created to give the minority in the Senate, as well as in the United States, a voice. There are two Senators from every State, large and small. Two Senators from the smallest State have the same vote on the floor of the Senate as Senators from larger States, such as California, New York, Illinois, and Texas. That is the nature of the Senate. The rules of the Senate back that up. The rules of the Senate from the beginning said if any Senator stood up and objected, started a filibuster, the Senate would come to a stop. You think to yourself, how can you run a Senate if any Senator can stop the train? Well, it forces you, if you are going to move something forward in the Senate, to reach across the aisle to your colleagues, to compromise, to find bipartisanship, so that things move through in a regular way and in a bipartisan way. That is the nature of the filibuster.

Over the years, it has changed. You saw the movie ``Mr. Smith Goes to Washington,'' when Jimmy Stewart stood at his desk, with his idealism and his youth, arguing for his cause until he collapsed on the floor. He was exercising a filibuster because he believed in it so intensely. We have said over the years that you can do that to any nominee, bill, or law on the floor of the Senate; but if a large number of Senators, an extraordinary number of Senators, say it is time for the filibuster to end, it would end. The vote today is 60 votes. So if I am perplexed by an amendment offered by one of my colleagues, and I stand up to debate it and decide I am going to hold the floor of the Senate as long as my voice and body can hold out, I can do that, until such point as 60 colleagues, Democrats and Republicans, come together and say: Enough, we want to move to a vote. That is what it is all about.

So what has happened is the Republicans now control the House, Senate, and the White House. What they have said is they want to change the rules. They want to change the rules in the middle of the game because they don't like the fact that Democratic Senators have used the filibuster to stop 10 judicial nominees President Bush has sent to Congress, sent to the Senate.

Now, for the record, the President sent 215 nominees; 205 were approved and only 10 were not. Over 95 percent of the President's judicial nominees have gone through. We have the lowest vacancy rate on the Federal bench in modern memory. So we don't have outrageous vacancies that need to be filled quickly. We decided--those of us who voted for the filibusters--that these 10 nominees went way too far; their political views were inconsistent with the mainstream of America. They were not consistent with the feelings and values of families across the country on issues as diverse as the role of the Federal Government in protecting health and safety, which is an issue nominee Janice Rogers Brown takes a position on that is hard to believe. She has taken a position on a case--a famous case called the Lockner case--which would basically take away the power of the Federal Government to regulate areas of health and safety when it comes to consumers and the environment. It is a radical position.

And then another nominee, William Myers--my concern about him and the concern of many Senators is the fact that he has taken a radical position when it comes to our Nation's treasury and heritage, our natural and public lands. He has taken a position where he backs certain lobby groups, but there is one that we think is inconsistent with mainstream thinking in America. So there is an objection.

Other nominees have taken what we consider to be far-out positions that don't reflect the mainstream of America and we have objected, which is our right. Now the President says: Enough, I am tired of losing any nominee to the Senate. Don't we have 55 Republicans? Should we not get what we want?

He is not the first President who has felt that way. Thomas Jefferson felt that way. Thomas Jefferson, in the beginning of his second term, came to the Senate and said: I am sick and tired of the judges who have been appointed to the Supreme Court. I want to start impeaching them.

You know what Jefferson's party said? No, Mr. President, you are wrong. The Constitution is more important than your Presidential power. They said no to Thomas Jefferson.

Franklin Roosevelt did the same thing at the beginning of his second term. He was unhappy that his New Deal legislation was being rejected. He came to the Senate and said: Let's change this and make sure we can put more Justices on the Supreme Court and get the votes we want.

His Democratic Party in the Senate said: No, Mr. President, we love you and we are glad you were elected, and we support your New Deal, but you have gone too far. Presidential power is not more important than the Constitution. They said no to him.

So now comes President Bush and Vice President Cheney, and they have said: We don't like the fact that we only have 95 percent of our nominees approved; we want them all. We want to change the rules of the Senate--in fact, we will break those rules to change them so that President Bush can get every single nominee. Unfortunately, very few on that side of the aisle from the President's party are willing to stand up and say to this President, as Senators have said to President Jefferson and President Roosevelt: You are going too far. What you are doing here, sadly, is going to abuse the Constitution to build the power of the White House.

The Senator from Utah, Mr. Hatch, came in earlier and made a statement. He said every nominee should have an up-or-down vote. On its face, that sounds reasonable. We understand the rules of the Senate allow the filibuster and an extraordinary majority for nominees. What Senator Hatch failed to mention was that when he was chairman of the Judiciary Committee during the Clinton administration--those 8 years--over 60 Presidential nominees for the bench who were sent up by President Clinton to his committee were buried in committee without so much as a hearing. They didn't even have a chance to stand up and defend themselves, explain their point of view. Senator Hatch said, no. Over 60 Presidential nominees for President Clinton were stopped by Senator Hatch on the Judiciary Committee. I know; I served on the committee. I watched it happen. I heard Senator Hatch say every nominee should have an up-or-down vote. He is suffering from political amnesia. He has forgotten when he was in charge, 60 nominees never even had a hearing, let alone an up-or-down vote.

So we come to this point, a point where I think the issues are very clear. The Republicans are prepared, with the help of Vice President Cheney--who announced over the weekend he supports them--to break the rules of the Senate, which are in a book that is seldom drawn out of our desks. The rules of the Senate say it takes 67 votes to change the rules of the Senate. That is a big number, 67 out of 100. The Republicans know they don't have 67 votes to change the filibuster rule, so they have decided to do it differently. They are going to wait until Vice President Cheney is in the chair, and they are going to make a point of order that we should just have a simple majority vote on judicial nominees. And Vice President Cheney is going to rule--he already said he would--and that is that. That is the end of the story.

So they are breaking the rules of the Senate to change the rules of the Senate, to eliminate a tradition and rule that has been around for 200 years. They are changing the rules in the middle of the game. The net result of that is this: The Senate will lose power when it comes to checks and balances. The President will have more power. It will mean that the President--this President, unlike President Jefferson and President Roosevelt--will trump the Constitution and will basically say: I am going to take more power away from the Senate. And his party will go along with that, even though President Jefferson and President Roosevelt had members of their own party stand up and say: Mr. President, you have gone too far.

The net result--the one that troubles me the most--is that we are talking about lifetime appointments to the Federal bench. If you take people who are so far out of the mainstream and stick them on a Federal bench for life, let me tell you, we don't have a clue what that is going to mean. But it is certainly worrisome that they could rule and change laws that we value as Americans--laws that, frankly, cross both political borders and Democrats and Republicans have supported. When you put somebody on the bench with that much power for a lifetime, then you have to worry about them.

So we have tried to come to some conclusion. Senator Reid of Nevada, our Democratic leader, came to the floor to describe in general terms what he has been doing. For weeks, he has been negotiating with Senator Frist and speaking to other Republican Senators about avoiding this constitutional confrontation, avoiding a constitutional crisis, avoiding this effort to change the rules in the middle of the game. He has made an offer--a good-faith offer--to bring some of these judges forward, to talk about rule changes that are in the best interests of this institution; and, frankly, Senator Frist said yesterday:

No, we are not talking about it anymore. It is over.

That is unfortunate.

It is important that we continue a dialog. The good thing about the filibuster is that it brings us together in order to move a nominee or a bill. Republicans have to reach across the aisle to Democrats and Democrats have to reach across to Republicans. That is the way it should be in this Chamber. It should not be a line down the middle and a wall that cannot be breached. That is exactly what we face if the Republicans go forward with the nuclear option.

When I return to Illinois, they say: Senator, can we come together to pass this highway bill Senator Inhofe is bringing to the floor? We will and it will be a good, bipartisan bill. We have been waiting, but let's pass this bill on a bipartisan basis. They say: Senator, can't Democrats and Republicans work together to do something about health insurance? You don't even talk about it on the Senate floor. I think we can. I know that business interests, as well as labor interests, want us to bring up this issue and resolve it. We should do it on a bipartisan basis. They say: Senator, can't you sit down and find a Republican who wants to put more money into our schools for No Child Left Behind, so that we can have better schools, better teachers, better students?

Of course, we should move toward bipartisanship. But the nuclear option, sadly, is going to divide us, split us. Make no mistake, if the nuclear option goes forward, this will be a different Senate and not very good in the process, I am afraid. A lot will happen that will be bad for us. Some have said on the floor, well, certainly at that point the Democrats are going to shut down the Senate and the Government. Trust me, that is not going to happen. We saw that tactic once. Remember the name Newt Gingrich and the Contract with America? He was so emboldened by Rush Limbaugh, he said if we shut down the Federal Government, nobody will notice. We noticed in a hurry and it hurt the Republican Party when they did it. We are not going to make that mistake. We believe that important functions of this Government must move forward. The defense of America, the support of our troops, the passage of critical appropriations bills, the passage of a highway bill--those issues are moving forward. But the ordinary day-to-day business of the Senate, otherwise, is going to be changed a lot.

If the Republicans are prepared to break the rules to change the rules, sadly the Senate Democrats will have to say we must play by the rest of the rules. That means more time on the floor, more debate, Senators spending more time at their desks, more time in session, more time in Washington. You hear the complaint that 5,000-page bills come before us that nobody reads. We will read them. Important amendments will be read. Debate will take place, and instead of the Chamber almost always being empty, it may be almost always full. Things will change.

I think there is a better way. Senator Reid has suggested a better way--that cooler heads prevail, that those truly interested in not only the institution of the Senate but the value of the Constitution come forward. We can protect the filibuster. We can make certain that we do it in a sensible way. But we can only do it if we are in a dialog.

Senator Frist's comments yesterday are worrisome. At this point, I ask unanimous consent to have printed in the RECORD an article from the Chicago Tribune. It is an editorial of April 25, which supports the Democrats and opposes the nuclear option.

There being no objection, the material was ordered to be printed in the Record, as follows:

[From Chicago Tribune, Apr. 25, 2005]

Democracy and the Filibuster

The most surprising thing about the Senate battle over the filibuster is that a dusty 200-year-old procedure could generate such fresh controversy. Republicans say Democrats have abused it so badly to block judicial nominees that it should be removed from their arsenal. Democrats say it is an indispensable tool to prevent the president from turning the federal courts over to extremist judges.

But the debate is really just the latest argument about the central issue of our system of government: how much power the majority should have.

There is no question that Democrats have misused the leverage afforded by the filibuster. This device is supposed to ensure that the Senate gets a full hearing on any controversy before it votes. Facing a Republican president and a Republican majority of 55 senators, however, Democrats have deployed the threat of a filibuster not to delay votes but to prevent them.

Contrary to Republican claims, though, this tactic is not unprecedented, and it wasn't invented by the Democrats. Republicans tried to filibuster several judges named by President Clinton, even though they controlled the Senate at the time.

Democrats were right to complain then, as Sen. Patrick Leahy did in 1999: ``If we don't like somebody the president nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of senators really shame all senators.'' Republicans are equally justified in objecting now.

But changing Senate rules to bar the use of filibusters against judicial nominees, as Republican leader Bill Frist of Tennessee has threatened to do, would be shortsighted and ultimately unhealthy. The filibuster, whatever its potential for misuse, is a vital safeguard against majority excesses. As such, it buttresses a constitutional framework ingeniously designed to keep the many from running roughshod over the few.

Although Americans have great faith in democracy, a Martian political scientist arriving here with no knowledge of our federal framework might think its purpose was not to empower the majority but to frustrate it. The Constitution contains a variety of mechanisms designed to make sure that public sentiment doesn't automatically get translated into policy.

The Bill of Rights, for instance, places certain subjects off-limits. The separation of powers, dividing authority among three different branches of government, serves as another check on the will of the people. A president can overrule the 535-member Congress and sustain a veto with as few as 34 senators. The Senate itself, of course, is at odds with pure democracy, because it allocates equal representation to each state, regardless of population.

The filibuster is merely a Senate rule, not a constitutional provision. But the reason it has survived for so long is that it fits well into the overall structure of our government.

Devices that obstruct the will of the majority can be an awful nuisance. But in the long run, the protections they offer against democratic excesses are worth the price.

Mr. DURBIN. Madam President, the Chicago Tribune, I can tell, is no liberal newspaper. They have a newspaper that takes conservative positions regularly, and they have decided that the nuclear option is the wrong way to go.

I yield the floor.

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