Rules of the Senate
RULES OF THE SENATE
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Mr. DURBIN. If the Chair would advise me when there are 10 minutes remaining, I will yield the remaining time to the Senator from New Jersey.
Let me first thank my colleague from New York for his excellent statement. Senator Schumer and I serve on the Senate Judiciary Committee. It is a committee where judges are initially considered. It is a tough assignment. When I came to the Senate from the House, I knew I would be voting on legislation, but more so in the Senate, you vote on people. That is a tougher call because it isn't in black and white. It isn't a matter of compromising, taking half of this and a quarter of the other. It is a question of making a judgment about a person. I find that a little more difficult--a lot more difficult, to be honest--and when it comes to judges, even more complicated because you aren't just putting a person in a temporary position. You are saying: Based on your life to this point, we are prepared to put you on the Federal bench for the rest of your natural life and trust your judgment that you will do the right thing by the Constitution and the American people.
Overwhelmingly, we find whether the President is a Democrat or Republican, the Senate says: Fine, we approve. The nominee is a good person. We will go forward.
What has happened here is interesting. We have, so far with President Bush in the White House, considered on the floor of the Senate 218 nominees by President Bush for the Federal judiciary. The President has that power. The Senate has the power to advise--that is, review and consider--and consent, if it chooses. Out of the 218 names sent by President Bush to the floor of the Senate, we have approved 208 of those names. So we are at a point now where we have 10 out of those 218 who have not been approved. More than 95 percent of the President's nominees have been approved.
You would say to yourself: This President is doing well. Whether he sends us conservatives of one stripe or the other, the Senate has approved them. We have sent them to the bench to lifetime appointments.
The President, after his reelection, comes to the Congress and says: That is not good enough. I want them all. I want every single one of them. I don't believe I should be held to the standard that every other President has been held to.
What is that standard? It is not just a simple majority vote. The Senate is a different place. It was created by the Constitution as a different institution. States large and small have the same number of Senators. States large and small send Senators to the Chamber, men and women who have the authority under our rules to demand an extraordinary vote.
People on the outside say: When I go to the city council meeting, it is a majority vote. When I go to the garden club, it is a majority vote. Why isn't it a majority vote in the Senate?
Because the Senate is a different place. When the Founding Fathers wrote the Constitution, they said the Senate, more than any institution in the Government of America, will be a place that respects and recognizes the rights of a minority.
For those who follow classic movies, Jimmy Stewart in ``Mr. Smith Goes to Washington,'' one Senator, idealistic and determined, took to the floor of the Senate and started a speech and, frankly, finally crumbled because he was so tired and had to end his speech. But he demonstrated the reality of the Senate, that one Senator, regardless of where they are from, a State large or small, regardless if they are the only Senator who holds that point of view, can stand up and argue that point of view. That was built into our Constitution, certainly into the tradition of the Senate. That is why 10 of President Bush's nominees have not been approved because, in this situation, they couldn't find 60 Senators who would stand up and say: Stop the debate, vote on that nominee. That is the rule of the Senate.
President Bush has said: I want to change it, to change the rules of the Senate in the middle of the game. I want to go after this whole concept of the power of the Senate, the power of checks and balances, I want more power in the White House, I want more power in the Presidency. That is not new. Presidents throughout history have always said they wanted more power than they had. Usually, the Congress stood up to them and said no.
The Constitution is more important than any single President. Thomas Jefferson, when he was elected to his second term, came to the Senate and said: I want the power to remove those Federalist judges from the Supreme Court; They disagree with my political philosophy; I want to get rid of them.
His own party said: No, President Jefferson. As important as you are, as much as we agree with you, the Constitution and traditions of the Senate are more important. And they voted him down.
President Roosevelt, one of our greatest Presidents, in the beginning of his second term, with the power of the national mandate behind him, said to the Senate: Do something about that damnable Supreme Court that won't approve my New Deal. Allow me to put more Justices on the Court until I can have my way politically.
His political body in this Senate said: Mr. President, we are Democrats, we respect you, we voted for you, we are for the New Deal, but you are wrong. You cannot come to us and ask for more Presidential power at the expense of the Constitution, at the expense of Senate traditions and values. They turned him down.
Look what happens today. President Bush, fresh from a victory of 51.5 percent in this election, comes to this body and says: I want more power in the Presidency.
What does he hear from his own party in the Senate? Sadly, it is: Whatever you want, Mr. President.
Mickey Edwards, a former Congressman from Oklahoma, who was quoted in the Washington Post this morning, gets it right. He said what amazes him about this debate is that Congress isn't standing up for its own constitutional responsibilities and rights. Congress is acquiescing in this effort by the President to take on more power so that he cannot be questioned and challenged when he puts people on the Federal bench for a lifetime.
Mr. President, I will submit for the RECORD a list of over 50 newspapers that have endorsed President Bush in 2000, 2004, or both, and have said that the President is wrong when it comes to this effort to increase Presidential power in the White House.
I ask unanimous consent to have that printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
Albuquerque Journal [NM], The Albuquerque Tribune [NM], The Arizona Republic [Phoenix], Arkansas Democrat & Gazette, Austin American-Statesman [TX], Bangor Daily News [ME], Birmingham Post Herald [AL], Chicago Tribune, The Cincinnati Enquirer [OH], and The Cincinnati Post [OH].
The Clarion-Ledger [Jackson, MS], Columbia Daily Tribune [MO], The Commercial Appeal [Memphis, TN], Contra Costa Times [CA], Corpus Christi Caller-Times [TX], Courier-Post [Camden, NJ], The Daily Camera [CO], The Dallas Morning News [TX], and The Day [New London, CT].
The Denver Post, Easton Star-Democrat [MD], Fort Worth Star Telegram [TX], The Grand Island Independent [NE], The Hartford Courant [CT], The Herald [Bradenton, FL], Houston Chronicle [TX], The Idaho Statesman, The Indianapolis Star [IN], and Journal Star [Peoria, IL].
Kalamazoo Gazette [MI], The Knoxville News-Sentinel [TN], La Crosse Tribune [WI], Lincoln Journal Star [NE], Loveland Daily-Reporter Herald [CO], The Morning Call [Allentown, PA], The Muskegon Chronicle [MI], Muskogee Daily Phoenix & Times-Democrat [OK], New Haven Register [CT], and The News Leader [Staunton, VA].
The Omaha World-Herald [NE], The Oregonian, Orlando Sentinel [FL], The Oshkosh Northwestern [WI], The Palladium-Item [IN], The Plain Dealer [Cleveland, OH], Poughkeepsie Journal [NY], Quad City Times [Davenport, IA], The Record [Troy, NY], and Salt Lake Tribune.
San Antonio Express-News [TX], Savannah Morning News [GA], Seattle Times [WA], San Diego Union Tribune, The State [Columbia, SC], The Tri-City Herald [WA], Ventura County Star [CA], The Wichita Eagle [KS], Winston-Salem Journal [NC], and York Daily Record [PA].
Mr. DURBIN. Mr. President, let me tell you, I listen to the talk shows, and I hear people say that until these judicial nominees were challenged with extended debate or filibuster, it never happened before. I will also submit for the RECORD, for the third time, this chart which shows on 11 or 12 different occasions when a filibuster was invoked on judicial nominees throughout history, including Supreme Court Justices. This is not new, not novel. It is certainly not earth shattering. It has happened before.
I ask unanimous consent that it be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
History of Filibusters and Judges
Prior to the start of the George W. Bush administration in 2001, the following 11 judicial nominations needed 60 (or more) votes--cloture--in order to end a filibuster:
1881: Stanley Matthew to be a Supreme Court Justice
1968: Abe Fortas to be Chief Justice of the Supreme Court (cloture required 2/3 of those voting)
1971: William Rehnquist to be a Supreme Court Justice (cloture required 2/3 of those voting)
1980: Stephen Breyer to be a Judge on the First Circuit Court of Appeals
1984: J. Harvie Wilkinson to be a Judge on the Fourth Circuit Court of Appeals
1986: Sidney Fitzwater to be a Judge for the Northern District of Texas
1986: William Rehnquist to be Chief Justice of the Supreme Court
1992: Edward Earl Carnes, Jr. to be a Judge on the Eleventh Circuit Court of Appeals
1994: H. Lee Sarokin to be a Judge on the Third Circuit Court of Appeals
1999: Brian Theadore Stewart to be a Judge for the District of Utah
2000: Richard Paez to be a Judge on the Ninth Circuit Court of Appeals
2000: Marsha Berzon to be a Judge on the Ninth Circuit Court of Appeals
Because of a filibuster, cloture was filed on the following two judicial nominations, but was later withdrawn:
1986: Daniel Manion to be a Judge on the Seventh Circuit Court of Appeals Senator Biden told then Majority Leader Bob Dole that ``he was ready to call off an expected filibuster and vote immediately on Manion's nomination.''--Congressional Quarterly Almanac, 1986.
1994: Rosemary Barkett to be a Judge on the Eleventh Circuit Court of Appeals ``..... lacking the votes to sustain a filibuster, Republicans agreed to proceed to a confirmation vote after Democrats agreed to a daylong debate on the nomination.''--Congressional Quarterly Almanac, 1994.
Following are comments by Republicans during the filibuster on the Paez and Berzon nominations in 2000, confirming that there was, in fact, a filibuster:
``..... it is no secret that I have been the person who has filibustered these two nominations, Judge Berzon and Judge Paez.''--Senator Bob Smith, March 9, 2000
``So don't tell me we haven't filibustered judges and that we don't have the right to filibuster judges on the floor of the Senate. Of course we do. That is our constitutional role.''--Senator Bob Smith, March 7, 2000
``Indeed, I must confess to being somewhat baffled that, after a filibuster is cut off by cloture, the Senate could still delay a final vote on the nomination.''--Senator Orrin Hatch, March 9, 2000, when a Senator offered a motion to indefinitely postpone the Paez nomination after cloture had been invoked
In 2000, during consideration of the Paez nomination, the following Senator was among those who voted to continue the filibuster:
Senator Bill Frist--Vote #37, 106th Congress, Second Session, March 8, 2000.
Mr. DURBIN. Mr. President, let me tell you something else that troubles me.
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There is something more at stake here that is even more important than the power of the President and the tradition of the Senate, and that is the independence of the judiciary. You cannot turn on the television or radio without hearing from some special interest group criticizing the Federal judiciary. I have been critical of individual decisions. I can point to some, including one that was made in the State of Florida in 2000. But to come to the floor and say let's get rid of the people making the decisions, take the power of Congress and control the judiciary, that is a mistake. An independent, fair, and balanced judiciary is critical for America.
When I hear Members of Congress and special interest groups saying they want to use this nuclear option, the power of Congress, to take control of the Federal judiciary, I am concerned. That is a power grab far beyond violating the traditions and rules of the Senate. It says they are going to try to show control and exert authority over a branch of the Government which has always been independent.
I will submit a transcript of a program on May 1 from ``This Week With George Stephanopolous.'' It is an interview with Pat Robertson.
I ask unanimous consent that it be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
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Mr. DURBIN. Mr. President, this is a strident voice among some in this country who came out and said he believed that the real threat to America was not terrorism but men and women wearing judicial robes. He thought that was a much greater threat. That gives you an idea of the extreme rhetoric. We cannot let this happen. Whether the Democrats are in control or out of control, whether Republicans control today or tomorrow is secondary. We all swear to uphold the Constitution.
I will yield the floor to my colleague from New Jersey at this point. I hope those following this debate will consider the constitutional issues at stake.
I yield the floor.
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