Executive Session

EXECUTIVE SESSION

Mr. DURBIN. I thank the Senator from Vermont, not only for his excellent statement this morning, but also for his leadership in the Senate Judiciary Committee. It has been my honor to serve with him on that committee during my tenure in the Senate.

The point he made at the close of his remarks bears repeating. We are debating an important constitutional principle of checks and balances. We are considering for the first time in over 200 years the so-called ``nuclear option'' which will destroy one of the rules of the Senate which has been used so many times on so many occasions for so many different things. This is a strategy that has been put together by the leadership in the Senate and it undoubtedly will occasion great debate in this Chamber for many hours.

But I would like to admonish my colleagues on both sides of the aisle to take care in the words they use during the course of this debate. This morning, unfortunately, the majority leader came to the floor and said the following:

The issue is not cloture votes per se; it is the partisan leadership-led use of cloture votes to kill, to defeat, to assassinate these nominees.

I know the majority leader. I know him to be a man of genuine caring and humanity. He has proven that so many times in his personal life as a doctor, as a surgeon, as a person who has taken on humanitarian causes which many in the Senate would shrink from. And so I know those words, if they were given to him by someone, do not reflect his heart. And if they were said in a moment without thinking, it is something we could all make a mistake and do. But I would urge him and urge each and every one of us to choose words carefully in the debate about judges.

We were reminded this morning with the testimony of Judge Lefkow before the Senate Judiciary Committee how important words can be. She called for a variety of things we can do to protect judges across America, but she also went to the question of words. She said:

Frankly, I ask you--

The Senate Judiciary Committee--

to publicly and persistently repudiate gratuitous attacks on the judiciary such as the recent statement of Pat Robertson on national television and, unfortunately, some Members of Congress, albeit in much more measured terms.

Judge Lefkow understands as I do and every Member of the Senate that we live in a country that prides itself on freedom, the freedom to express yourself, the freedom for people to say things without fear that the Government will come down on them, even if we hate every word they say. But the point she was making was to take care, to denounce those comments that cross the line.

When we hear in this debate about changing the rules of the Senate as it relates to judges, let us take care to understand there are differences of opinion as to whether these men and women who are being discussed share the views of many Americans, whether their views are extreme. But the issue is not about them personally.

Some have suggested you can't oppose a judicial nominee here unless you oppose that nominee's gender, that nominee's religion, that nominee's race, that nominee's ethnic background, that nominee's upbringing. All of those things are false. My consideration of these nominees has gone to the heart of the issue. I consider myself to be without prejudice. I hope I am. I do my best to avoid it in everything I say and do. But for those who come to the floor and say you can't oppose this nominee unless you are in a position where you disagree with their religion, that is just plain wrong. There are so many lines that are crossed between religious and political belief. The issue of the death penalty in my Catholic religion is one that is hotly debated among Catholics. Many of the leading Catholic legislators, Republican and Catholic, disagree in their votes with the church's official position. But it is a public issue that should be discussed and it doesn't reflect on the nominee or the religion of a Congressman or Senator when we discuss it.

So when words are expressed during the course of the debate that those of us who oppose these nominees are setting out to kill, to defeat, or to assassinate these nominees, those words are inappropriate. Those words go too far.

Let me remind those who follow this debate, as I said earlier, the majority leader is a good man, a humane man, a sensitive man who has been closer to life and death than any of us in this Chamber, and I believe those words given to him were inappropriate, and if they were said in a careless moment I am sure do not reflect his heart.

But let us take care during the course of this debate to understand that our differences as to these nominees come down to issues of law and public policy which members of the judiciary decide. If I disagree with one of these nominees or any judge as to their opinions, it is not going to reflect anything on them personally. It reflects on the fact that we have to make decisions as to whether they should serve on the bench.

This is a historic moment in the Senate. There may never be another one like it. We are considering a change in the Senate, a change in this institution which, sadly, will ripple out as a pebble in a pond for generations to come. This is not an isolated case involving one, two, or five judges. It is a change in the Senate rules that will uniquely change this special institution.

I fear that many of the people in the White House and on the floor of the Senate who are grabbing for this political victory don't realize it is going to change an important institution we have counted on throughout our history. Those Founding Fathers who wrote the Constitution made the Senate a special institution, an institution where, in fact, minority rights and the minority's opportunity to speak would always be protected. To take away those minority rights by Vice President Cheney making a casual ruling from the Chair, to sweep away 214 years of precedent and rules so that someone can score a quick victory in terms of even 1, 2, or 10 judges is entirely inappropriate.

I hope there will be enough Members on the other side of the aisle who understand our special responsibility. It is an historic responsibility. It goes beyond this President. It goes beyond any political party, and it certainly goes beyond the press release of the day. It goes to the heart of why we are entrusted with this responsibility to serve in the Senate. We are hoping that when the nuclear option comes, there will be Senators willing to stand up for this tradition and for these constitutional values.

I yield the floor.

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