Rules of the Senate

RULES OF THE SENATE -- (Senate - May 10, 2005)

Mr. President, I yield myself such time as I may consume.

As the Senate convenes this week, we stand on the edge of dramatic change. Change is usually a good thing, but the change that the other side is trying to invoke is not a good thing. We all know it. Most Americans know it. Most Democrats know it. Most Republicans know it. Even most Senators on the other side know it. Yet they are torn because of a small group way out of the mainstream. The same people who believe their message, which may come from the heavens, dictates to them what is right for everybody else seem to be in control. It is a crucial time for America. The age-old checks and balances that are at the center of this Republic, at the center of our Constitution, are hanging at the precipice.

It is the Senate where the Founding Fathers established a repository of checks and balances. It is not like the House of Representatives where the majority leader or the Speaker can snap his fingers and get what he wants. Here we work many times by unanimous consent where you need all 100 Senators to go along. In some instances, we work where 67 votes are needed, in some with 60, and in most with 51. But the reason we don't always work by majority rule is very simple. On important issues, the Founding Fathers wanted--and they were correct in my judgment--that the slimmest majority should not always govern. When it comes to vital issues, that is what they wanted.

The Senate is not a majoritarian body. My good friend from Utah spoke. He represents about two million people in Utah. I represent 19 million in New York State. We have the same vote. You could have 51 votes for a judge on this floor that represents 21 percent of the American people. So the bottom line is very simple. This has not always been a 50.1 to 49.9 body. It has been a body that has had to work by its rules and by the Founding Fathers' intent. Even when you are in the majority, you have to reach out and meet not all, not most, but some of the concerns of the minority.

I understand why my colleague from Utah would get up and make such ridiculous arguments. He is torn. He knows this is wrong. Most of the Members on the other side of the aisle know it is wrong. Some have had the guts--a handful--to say no. Some have had the strength to resist the calls of that extreme group or groups. Some are true believers. But some, and my guess is my friend from Utah is one of those, know it is wrong but decide: I am going along anyway.

When my friend from Utah lists the 10 most ridiculous arguments against keeping the filibuster and says checks and balances is a ridiculous argument, please. I care a great deal about my friend from Utah. He is a fine man. We are friends. We have worked together on many things. But he has more respect for the Constitution than to say checks and balances is a ridiculous argument. He knows darn well that a 51-to-49 vote does away with certain kinds of checks and balances.

When my friend from Utah talks about no extremists, it seems to me the very same people who are calling the shots are the people who said that judges are worse than terrorists. That seems pretty extreme to me. That is the type of person importuning my friend from Utah.

Another one said: Judges, in their black robes, are like the Ku Klux Klan in their white robes. These are officials of the American Government, most of whom now are Republicans. Sixty percent of the court of appeals are Republican appointees. Seven of the nine Supreme Court members are Republican appointees.

When my friend from Utah doesn't think those statements are extreme and listens to the solution that people who make those statements prescribe, what else can one conclude than that he is sort of tying himself in a pretzel to try and make an argument that he must know in his heart is wrong.

Unprecedented? Well, it was my good friend from Utah who played a leading role in blocking a large number of the Clinton judges. He will say it wasn't by filibuster. The American people are a lot smarter than that. Whether it is by not bringing them up for a vote in committee or by requiring that they get 60 votes to choke off debate on the floor, the effect is the same. The President, the incumbent, is denied his choice. By the way, that is how our Senate has functioned.

The President, when he gets 51.5 percent, as George Bush did, or even when he gets over 65 percent, as Franklin Roosevelt did in 1936, shouldn't always get his way with every single judge.

He says that this will not doom the legislative filibuster, that that is an absurd argument. A year ago, if we would have heard that the Republican majority was considering having the Vice President sit in the chair and rule by fiat his own interpretation of the Constitution, coming out of nowhere because the Constitution doesn't mention any of this, certainly a narrow reading wouldn't allow us to address this issue from the Constitution, and he says that we will rule by fiat from the Chair and there should be no more filibusters of judges, even though that has been allowed for 200 years, even though it was done in 2000 by our colleagues on the Republican side of the aisle for Ms. Berzon and Mr. Paez, and then he is saying, well, it is absurd that we do it for other things. I say this: Allow them to do it for judges today, they will do it for Social Security tomorrow. The same exact procedure could be used to block filibusters of legislation and of every single other thing that comes before this body. There is no difference. The Constitution doesn't mention the word ``filibuster.''

I don't know where it is divined in the heads of some of my colleagues from the other side of the aisle: It says it is for judges, but not for legislation. That is an activist reading of the Constitution if you ever heard one.

The bottom line is simple: We are appealing to those Members of the other side of the aisle who, unlike my friend from Utah, have thus far resisted the entreaties of the hard, hard, hard right, who have resisted the entreaties of the narrow few who are way out there and say to them: Have strength, have courage.

The basic makeup of our Senate is at stake. The checks and balances that Americans prize are at stake. The idea of bipartisanship, where you have to come together and can't just ram everything through because you have a narrow majority, is at stake. The very things we treasure and love about this grand Republic are at stake.

I, for one, am saddened by what is happening. I, for one, am surprised at what is happening. I, for one, hope and pray that it will not come to this. But I assure my colleagues, at least speaking for this Senator from New York, I will do everything I can to prevent the nuclear option from being invoked not for the sake of myself or my party but for the sake of this great Republic and its traditions.

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