Executive Session
EXECUTIVE SESSION -- (Senate - May 18, 2005)
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Mr. SCHUMER. Mr. President, this debate is not only about Priscilla Owen and whether she should become an appellate judge, but it is about something much more momentous. If the situation in the Senate were not so grave, there might be some humor in the fact my strict constructionist Republican friends who daily claim to be against activist judges are, through the nuclear option, engaging in the most activist reading of the Constitution to seat an activist judge on the appellate court. That is breathtaking hypocrisy.
But we are more profound than that. We are on the precipice of a crisis, a constitutional crisis. The checks and balances which have been at the core of this Republic are about to be evaporated by the nuclear option, the checks and balances which say if you get 51 percent of the vote you do not get your way 100 percent of the time. It is amazing. It is almost a temper tantrum by those on the hard right. They want their way every single time, and they will change the rules, break the rules, misread the Constitution so they will get their way.
That is not becoming of the leadership of the Republican side of the aisle, nor is it becoming of this Republic. That is what we call abuse of power.
There is, unfortunately, a whiff of extremism in the air. In place after place, the groups that were way out of the mainstream with their disproportionate influence on the White House and the Republican leadership in this Senate seem to push people to abuse power.
It happened in the Schiavo case, and there was a revulsion in America. It happened with threats against judges, both made by some of my colleagues in this body and certainly by some well-known activist religious figures. It has happened on Social Security where there is an attempt to undo a very successful government program. And that is why the popularity, the respect that this Republican leadership has in America, goes down every day. I know, as chair of the DSCC, because I keep an eye on those things.
I make a plea. It is to the seven or eight Republicans on that side of the aisle. Every one of them has told us they know the nuclear option is wrong. It is a plea to have the courage to stand up for what is right. There are many others of our colleagues on the other side of the aisle who have already said they know the nuclear option is wrong, but they say they cannot resist the pressure. I understand it. We have had times on the Democratic side where groups on the left extreme have had undue influence. But it is in yours and America's detriment and to our party's detriment.
We are on the precipice of a constitutional crisis. It rests on the shoulders of three or four men or women on the other side of the aisle. We hope we will not fall into the abyss.
Judges are now under siege. Our Constitution is under attack. Our precious system of checks and balances is under assault. Some of my colleagues seem to have forgotten we in the Senate have a constitutional role to play, and we will. The Founding Fathers did not intend us to march lockstep like lemmings behind every Presidential appointee no matter how many times he or she is put before the Senate. The Founding Fathers, whom many of us like to cite, foresaw collaboration between the President and the Senate in the seating of judges. The Founding Fathers expected, because of the advice and consent clause, the President would be judicious, that he would talk to the Senate about nominees.
This President has done none of that. No President has nominated judges more through an ideological spectrum than this President. When he asks why he doesn't get cooperation from the Democrat side, he has reaped what he has sown. No consultation, no discussion, and nominees who tend to be way over at the extreme.
As Hamilton wrote in the Federalist Papers about the importance of the Senate's role in approving judicial nominees, the possibility of rejection of nominees would be a strong motive to use care in proposing. But this President, instead of taking that care that the Founding Fathers sought, has seen some of his nominees--a handful--rejected, and now instead of accepting that as a consequence of no consultation and of nominating extreme judges, he seeks to encourage the majority leader and others to change the rules in this hallowed institution.
Why are we at this crisis point? The bottom line is that no President in memory has taken so little care in the proposing of judges.
What about abuse of power? I will talk for a moment, before I talk about Priscilla Owen, about the nuclear option. If there ever was something that signified an abuse of power, a changing of the rules in midstream simply because you could not get your way on every judge, it is this nuclear option. There is now a desperate attempt on the other side of the aisle not to call it the nuclear option, but it was my colleague from Mississippi, the former majority leader, who gave it that name--with justification. You won't change the name. To call it the constitutional option is hypocrisy. There is nothing in the Constitution that talks about filibuster or majority vote when it comes to judges in the Senate.
It is a nuclear option because it will vaporize whatever is left of bipartisanship and comity in the Senate.
Now, let me ask a question: How much power does the Republican leadership need? How much power is it entitled to? Does a 1- or 2-percent point victory in the last election, does a margin of five Senators give them the right to get their way all the time and then to change the rules if they can't?
The American people are understanding this. There are only three branches of Government. The Republican Party has a tight grip on all three. Republicans control the Presidency, they control the House, they control the Senate. They already have control of the courts.
As the chart shows, of all of our judicial circuits, only two have slight Democratic majorities. The sixth is even. And all the others have Republican majorities.
The circuit courts, the courts of last resort, are overwhelmingly Republican already in terms of their appointees. And on the new judges they have been able to fill, they have gotten their way 95 percent of the time. As one of my colleagues said, if your child came home and said they got a 95 on their test, would you pat them on the head and say ``good job'' or would you say ``go change the rules, cheat until you get 100 percent''? That is what the other side is doing.
Ninety-five percent should make this President very happy. And maybe it would if he was left to his own devices. But the group of hard-right extremists, who seem to have disproportionate sway, are not happy unless they have 100 percent.
Now, let me talk a little bit about calling it a ``constitutional option.'' The other side will, with a straight face, either tomorrow or the next day, invoke our democracy's chief charter, the Constitution, in ruling that judicial filibusters are prohibited by the Constitution. There is only one problem. There is nothing in the Constitution that supports the nuclear option. There is nothing in the Constitution that requires a majority vote for every judicial nominee. Republicans know this.
The Senator from Tennessee, our majority leader, who got on the floor earlier today and said for 214 years there have not been filibusters of judges, has a very short memory. I asked him this morning, Did you not, on March 8, 2000, vote in favor of a filibuster of Richard Paez to the Ninth Circuit Court of Appeals? Here is a copy of the vote. Voting no: Frist, Republican of Tennessee. Did he think it was unconstitutional then? He said on the floor, in answer, Well, some are successful, some are not. I have never known the Constitution to say that something is unconstitutional if it fails and constitutional if it succeeds. When we talk about attempted murder or robbery or larceny, it is still a crime.
So I would like to ask my colleague to answer during this debate, How can he distinguish as unconstitutional our votes to block judges, and it is perfectly acceptable, 5 years ago, his vote to block a judge, or the scores of votes by other Republicans in favor of filibusters over the years, including those against Paez and Berzon and Fortas? Were they unconstitutional? I do not think so.
Furthermore, have judges never been blocked? All the time. One out of every five Supreme Court nominees did not make it to the Supreme Court. That is part of the tradition of this country. Should the Senate have majority say? No. Should we have the say the majority of the time? No. Should we have the say some of the time? Yes. And there is the balance. The more a President consults, the more the President nominates moderate nominees, the more likely his nominees will succeed. Bill Clinton had a little trouble, but he consulted Orrin Hatch regularly. Patrick Leahy has not been consulted by the President at all.
Another interesting point. It seems the only people who seem to cling to the nuclear option are those in elected office who are susceptible to the power and sway of these extremist groups. Conservatives who are not in public office, retired elected officials, commentators, have repeatedly said the nuclear option is not constitutional.
How about George Will--hardly a liberal--one of the country's most foremost commentators. Here is what he said:
Some conservatives say the Constitution's framers ``knew what supermajorities they wanted''--the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc.; therefore, other supermajority rules are unconstitutional. But it stands--
Listen to this.
But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted.
Of course. The people who advocate this are the greatest activists of all. And it is an unbelievable turnaround, an unbelievable act of hypocrisy, that all of a sudden activism, which means interpreting things in the Constitution which are not in the writings of the Constitution, is OK when you want to get your way. It is wrong.
Now, let me talk a little bit about Priscilla Owen. She is the nominee before us today. This is the third time we have considered the nomination of Priscilla Owen. Each previous time she got an up-or-down vote. She did not get 60, but she sure got an up-or-down vote. Everyone's vote was on the record. This was not being done, what was done in the Clinton years, which was not even letting judges come up for a vote. Here we are again.
Why are we doing Priscilla Owen again? Because 95 percent is not good enough for the President or for the leadership here in the Senate. On the merits, nothing has changed. There is no question she is immoderate and that she is a judicial activist. I continue to believe Justice Owen will fail my litmus test, my only litmus test in terms of nominating judges; that is, will they interpret law, not make law? Will they not impose their own views and have enough respect for the Constitution and the laws of this land that they will not impose their own views?
Well, do not ask me. Ask the people who served with Justice Owen. They believe that she, time and time again, cast aside decades of legal reasoning, miles of legislation, to impose her own views. If there was ever a judge who would substitute her own views for the law, it is Judge Owen. Her record is a paper trail of case after case where she thinks she knows better than hundreds of years of legal tradition.
In one case, In re Jane Doe, Judge Owen's dissent came under fire from her colleagues in the Texas Supreme Court. They referred to her legal approach as an effort to ``usurp the legislative function.'' That was a very conservative court, and they still said Justice Owen put her views ahead of the law.
Even more troubling, of course, is what Attorney General Alberto Gonzales said. He sat on the same court with Judge Owen. He wrote a separate opinion in which he chastised the dissenting judges, including Justice Owen, for attempting to make law, not interpret the law. These are Judge Gonzales' words, not mine. He said that to construe the law as the dissent did ``would be an unconscionable act of judicial activism.'' Those are not my words. Those are the words of the man the President has appointed as Attorney General.
In another case, Montgomery Independent School District v. Davis, the majority ruled in favor of a teacher who had been wrongly dismissed, and the majority, including Judge Gonzales, wrote that:
the dissenting opinion's misconception ..... stems from its disregard--
Not its misinterpretation; ``its disregard''--of the [rules] the Legislature established.
In a third case, Texas Department of Transportation v. Able, Justice Gonzales also took Justice Owen to task for her activism, indicating she had misunderstood the plain intent of the State legislature.
The list goes on and on. And there is nothing to indicate she has backed off from her activist tendencies.
As extreme as Justice Owen is, Justice Janice Rogers Brown is even more so.
The things she has said are unbelievable. She is an activist judge, more committed to advancing her own extreme beliefs and ideas than guaranteeing a fair shake for millions of Americans who would be affected by her decisions on the DC circuit. There was the Lochner case which threw out as unconstitutional a law that said bakery workers could not work a certain number of hours. That was a New York law, so we are not even dealing with federalism. It was decided in 1906 or 1901, close to 100 years ago. If you go to law school, it is called the worst Supreme Court decision of the 20th century.
She said it was decided correctly. Judge Janice Rogers Brown believes that if an employer wanted to employ a child for 80 hours in awful conditions, that would be that employer's constitutional right.
Justice Brown's views on economics make Justice Scalia look very liberal. She doesn't want to roll back the clock to the 1950s or even the 1930s. She wants to go back to the 1800s. She has been nominated to the most important court in the country when it comes to enforcing Government laws and rules--environmental, labor--and yet she abhors Government.
Here is what she once wrote:
Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies.
Does the kind of person who thinks that way belong on any court of appeals, and particularly on the DC Court of Appeals? Absolutely not.
For those reasons, the American Bar Association gave her one of the lowest rankings any of this administration's circuit court judges have ever received.
We stand on the edge. This is an amazing time. I wake up in the morning, sometimes with butterflies in my stomach, thinking the Senate might actually attempt to do this. If there was ever a time where the power grab has been so harsh, so real, and so unyielding, it is now. It is not simply that we have a disagreement of ideas and we argue vehemently. It seems much more that the leadership on the other side can't stand the fact that they don't always get their way and that they have to change the rules to do it.
People who hate activist judges are becoming activist themselves in the sense that they read into the Constitution things that are never there. People who say that they respect bipartisanship are going to undo whatever is left of bipartisanship here in the Senate.
Amazingly enough, with all of the smoke pumped by the radical right's media machines, talk radio, the American people have a deep understanding. The only solace I have, as we are on the edge of this crisis and the eve of a great vote in the Senate, is that the American people understand what majority leader Frist is up to. They understand this is a power grab. They understand this is a breaking of the rules. They understand the checks and balances will go by the wayside. What was good enough 4 years ago, votes on filibusters, is not acceptable today.
I believe the nuclear option, even if it should pass on the floor this week or next week, will not stand, that the American people will understand what is attempting to be done, they will rise up and, whether it is at the polls or just in the court of public opinion, cause the nuclear option to be undone.
That is the faith I have in the Government we have and the people who are governed. But let us not go through that. We will stop progress in the Senate. We will ruin bipartisanship, whatever is left of it, and we will be playing with fire when it comes to the constitutional checks and balances that are at the core of our Constitution and our Republic.
I will have plenty more to say in the upcoming weeks, but it is a momentous time. I appeal once again to my colleagues: Think of what you are doing. Think of its consequences. Maybe we won't have to live with this, the greatest undoing of the Constitution that this Senate has seen in decades.
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