Executive Session

EXECUTIVE SESSION

Mr. DURBIN. Thank you, Mr. President.

Let's not forget what this is all about. Mr. President, 168 of President Bush's nominees have been approved by the Senate; 4 have not-168 to 4. That is the score. This President has 98 percent of his nominees approved. We have now consumed 36 hours of the time of the Senate railing about the four who were held back.

Those on the other side of the aisle believe the advise and consent clause of the Constitution is meaningless. They believe their President, their Republican President, should have every nominee, every judge. They really argue with the premise that these judges should be asked hard questions. They do not believe that a judge seeking a lifetime appointment to the bench should be asked, What do you believe? What values will motivate you if you were in a position of power, a position to decide cases and basically the position to decide the outcome of people's lives?

They do not believe in that. Frankly, they are arguing that this Constitution, that they have sworn to uphold, which provides for the advice and consent of the Senate before a Presidential nominee is appointed to the bench, should be tossed out.

Those of us on the Democratic side disagree. I think, frankly, in their heart of hearts a lot of the more moderate Republicans disagree. They understand that no President gets everything he wants 100 percent. No President should, Democrat or Republican. But they are loyalist, and their partisan loyalty is showing. It has shown for 36 hours.

Let me show you the judicial confirmation scorecard so you will understand what has happened to nominees sent by Presidents to the Senate.

President Clinton's nominees: 248 confirmed, 63 blocked. So 20 percent of the nominees, one out of five sent to the Senate by President Clinton, were blocked by the Republicans, Senator ORRIN HATCH, and the Senate Judiciary Committee.

President Bush's nominees: 2 percent have been blocked.

I listened to the Senator from Pennsylvania tell us, warning us that, frankly, stopping four judges will be remembered, and they will revisit this if the Democrats ever take control of the White House again.

Well, let me remind my colleague from Pennsylvania, those 63 Clinton nominees who were blocked, most of them were never even given the courtesy of a hearing. I know this personally. Three judges from Illinois, three good people seeking Federal appointments, were stopped because one Republican Senator-in the case of one of my nominees, former Republican Senator John Ashcroft of Missouri-personally stopped this nominee. This nominee, a good person, who would have been an excellent judge, was stopped because Senator Ashcroft objected to him. In objecting to him, he never got a hearing.

So for the Senator from Pennsylvania to come and warn us that if there is ever a Democratic President, you can count on nominees being stopped, we learned that lesson. We learned it when President Clinton offered nominees who were quality people, moderate people, and stopped because of some perceived slight, stopped because of some perceived position on issues that the right wing did not agree with.

Let me show you some of the photographs of some of these nominees. You can see that even this small gathering of nominees here represent a rich diversity of people across America. The Republicans would have us believe these people sent to the Senate Judiciary Committee by President Clinton were somehow radical people, people who did not share the views and opinions of America.

You can count on this: Within those people are excellent judges, people with the highest ratings from the American Bar Association, people who were rejected. It gets back to this, as shown on the next chart: The final score here is 168 to 4. So 168 of President Bush's nominees have been approved; only 4 have been held back. Ninety-eight percent have been approved.

I listened to the speech just given by the Senator from Kansas. I hope that those who are following this debate, even though I cannot imagine at 3 o'clock in the morning on the west coast a lot of people are tuned in, but if those who are following this debate heard what the Senator from Kansas said, I think it was chilling and troubling, if not alarming. It is a clear indication of what is at stake here in this debate. The Senator from Pennsylvania joined in the chorus because the Senator from Kansas said they were opposed to judges who were "discovering the right of privacy in the Constitution." Those were his words, "discovering the right of privacy in the Constitution."

Well, the Senator from Kansas is correct. The word "privacy" does not appear in the Constitution of the United States. But those who have interpreted this document have come to the conclusion that Americans have a basic right of privacy. I suppose from what the Senator from Kansas said, that is judicial activism in his eyes.

But let's remember how that right of privacy first came to the Supreme Court and the decision made, the landmark decision of Griswold v. Connecticut, a Connecticut statute which said they would prohibit the right of married couples to buy birth control devices, contraception, an archaic statute from the 19th century that said that married couples could not buy birth control devices. We are talking about the ones most commonly known.

The Supreme Court said that is wrong. We believe that the people of Connecticut, the people of America, have the basic right of privacy and that married couples should be allowed to make that decision, and no State government should prohibit them from making that decision.

So in this case, the Supreme Court "discovered" the right of privacy in the Constitution. The Senator from Kansas believes, I suppose, that this is judicial activism, that the court went too far. How many people in America believe that? How many people in America believe that States or the Federal Government should prohibit the right of couples or even individuals to buy birth control devices, to buy birth control pills? Is that this discovered right of privacy at work? The same right of privacy, I might add, that was at the core of the Roe v. Wade decision.

So there we have it. They are looking for judges who even question the right of privacy in the Constitution. You wonder why we would even stop four judges because given free rein, I am afraid that my Republican friends would turn the clock back, turn the calendar back to the 19th century, questioning the right of privacy of Americans.

I thought conservatives, by their nature, were opposed to the overreach of government. But what we hear this morning from the most conservative members of the Republican caucus is that we have to question the right of privacy. That is hard to believe.

They also went on to say, the Senator from Kansas agreed with the Senator from Pennsylvania that we need a check and balance on the courts. Think about that for a moment. Oh, it is a nice-sounding phrase. But think about the check and balance on the courts, and then think about the principle of an independent judiciary. Those two are inconsistent.

The check and balance on courts comes in the process when the President nominates a judge, and when we review that judge's credentials and decide whether that judge receives a lifetime appointment. Then there is the correct belief that short of impeachment, judges in America are independent to make decisions. It is one of the bedrocks of our democracy. That has been challenged on the floor of the Senate today by the most conservative members of the Republican caucus.

You wonder why we are here for 36 hours? You wonder why we are taking all this time. It is because of the views just expressed this morning by two members of the Republican caucus which indicate the extreme position they are prepared to take, indicate why 168 of President Bush's nominees being approved and 4 being stopped is unacceptable, and indicate that they want to change the profile and complexion of the judiciary across America in profound ways.

The Senator from Pennsylvania has political amnesia. He comes to the floor this morning and forgets that 63 of President Clinton's nominees never even received a hearing, not even the dignity of a hearing. And he warns us in a booming voice: We will remember this if there is ever a Democratic President.

I say to the Senator from Pennsylvania, he is suffering from political amnesia. He has failed to acknowledge that 63 of President Clinton's nominees were never even given the dignity of a hearing. That was a sad outcome for those nominees and their families. To think we are not going to stop this process at this point in time, that we are going to continue on for another 3 hours is, frankly, I think, unfortunate.

Yesterday, I went with a group of Senators out to Walter Reed Hospital to visit with some of our injured soldiers. Senator TIM JOHNSON from South Dakota was in that group, as well as Senator BYRON DORGAN of North Dakota. There were about a dozen of us who went out and visited with these soldiers. It is something I am not going to forget. These are some of the best we have who have given the most. They have been subject to injuries which are truly sad and tragic in a way, but their courage and their determination are going to stick with me.

Why aren't we talking about Iraq? Why aren't we talking about the veterans? Why aren't we talking about the need for this country's national security or its economy? Really, because there is another agenda in play here. We are involved in a made-for-TV filibuster. That is what this is all about. This isn't for real. Those cots were props on a stage. I walked around the Senate. Most of those cots are still cold as ice. They have never been warmed by a Senator's body. They were brought in here so Fox TV News and all the right wing talk shows could say: My goodness, we are staying up all night. There is a handful of Senators who have given a lot of hours here, no don't about it. This is a made-for-TV filibuster. Sadly, we are ignoring the agenda of this country.

My colleague from North Dakota is here, and I yield the floor to him.

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, I thank my colleague from North Dakota for reminding us that there are issues out there about which the American people really care. I dare say if you go to Missouri, Illinois, North Dakota, South Carolina, Georgia, or Minnesota and take the average person on the street and ask them: "Where in the list of priorities in your life is the fact that 4 judges out of 172 nominated by President Bush have not been approved," my guess is they are going to say: I didn't even know that. Is that a big problem?

In fact, this morning's Washington Post has an interesting story about what we are doing here, this made-for-TV filibuster. They say:

The greatest deliberative body shows what it does best-talk itself silly.

That is the Washington Post this morning. They refer to filibuster buttons-we have them on both sides of the aisle-filibuster T-shirts, and filibuster bingo games.

I am glad they didn't disclose the identity of this man, but they went out and asked one of our Capitol Police officers what he thought about this marathon debate. He probably would lose his job if his name were disclosed because of the Republican majority. Here is what this man said, a Capitol policeman who has been standing guard over the Capitol through the wee hours of the morning while we gassed on here on the floor about our favorite political issue: the lack of confirmation of four judges.

Incidentally, for those who are keeping score, I believe it cost us about a quarter of a million dollars in taxpayer money for additional pages to be printed in the Congressional Record and for additional Capitol Hill Police overtime protection because of this 39-hour marathon-a quarter of a million dollars.

Let me get to the quote from this Capitol policeman. They asked about the made-for-TV filibuster. He said:

I can see it if it was something important, like the budget or Iraq, but who cares about judicial appointments. They should get a life.

There is a lot of wisdom out there standing in the hallways and in the streets in the cold wondering what in the world we are doing here. The Senator from North Dakota knows full well, if you go to his State or my State and talk about 3 million jobs lost under the Bush administration, those are the numbers they care about, not 168 to 4.

The Republican majority is out of touch. They just don't get it. They don't understand what real families and real businesses across America care about.

The cost of health insurance-for goodness' sake, how much time have we spent in the Senate talking about the cost of health insurance this year? Nada, zero, rien, not at all. No time to discuss the cost of health insurance, the biggest single issue facing families and businesses across America, but, boy, for four judges we are prepared to stand on this floor for 36 hours and grind red meat for Fox TV News and the right-wing radio boys. We will spend night and day. We will bring in our props such as cots and suitcases, and we will pretend this is a really serious filibuster and ignore the really serious issues that America really cares about.

You wonder why fewer and fewer people take the Senate seriously? You wonder why fewer and fewer people vote? It is because of this kind of charade.

Mr. DORGAN. Mr. President, will the Senator from Illinois yield?

Mr. DURBIN. I yield for a question.

Mr. DORGAN. In the previous administration, over 50 nominations were sent to the Congress in which there wasn't even 1 day of hearing-not even the courtesy of allowing someone to come to the Capitol for a hearing. Were any of the folks who are now on the floor of the Senate complaining about our holding up four judges who did get a hearing but we decided not to confirm-were any of the folks complaining back then that those 50 nominees never got a hearing?

Mr. DURBIN. I say to the Senator from North Dakota, their passion for justice did not apply to a Democratic justice. Their passion for justice did not apply to 63 nominees who were not given a chance to come to the Senate floor. Their passion for judges did not apply to those men and women whose lives were changed forever. But when it comes to these four, we take up the time of the Senate, take up the money of the taxpayers to divert us from issues that people really care about. It tells us what it is all about.

When the Senators from Kansas and Pennsylvania come to the floor and say, We want judges who don't discover the right of privacy in the Constitution, is that a conservative value, is that a family value-to reject the right of privacy? That is what they said, and I don't get it. If that is what they are for, they are clearly out of the mainstream, and we ought to take a closer look at every job.

I even think Robert Bork, when he was trying to get on the Supreme Court, said he agreed with Griswold v. Connecticut, a right to privacy case. What we heard this morning from the most extreme members of the Republican caucus is they will not even acknowledge a right of privacy for individuals and families across America. That is a sad outcome and one I think, frankly, should be challenged because if that is really the standard we are going to play to, I am going to look a lot harder on the Senate Judiciary Committee to make sure we don't have nominees given lifetime appointments to the bench who would have our Government raiding the bedrooms and private lives of Americans. That is what it is all about. It should not be allowable.

I see the majority leader on the floor and I respect him very much, but this is wrong. What we are doing is wrong. This made-for-TV filibuster over 4 judges after the President had 168 approved-why aren't we talking about issues people really care about, such as the cost of health care, the loss of jobs, the poor soldiers coming back injured who need help in veterans hospitals?

The Presiding Officer is chairman of the Veterans' Administration and HUD subcommittee on the Appropriations Committee. We had to pull his bill from the floor the other day. We did not have time to finish the bill, the 2 hours it would take to finish that bill-$62 billion, if I am not mistaken, or $68 billion for the Veterans' Administration-because we had to hurry on to this made-for-TV filibuster. That is sad. We should do the people's business. We should focus on things that Americans really care about.

I yield the floor.

BREAK IN TRANSCRIPT

Mr. DURBIN. I know we are coming to the breathless close of this wonderful marathon, this made-for-TV filibuster.

I ask the Senator through the Chair the following question: Is the Senator aware in the early hours this morning Republican Senators from Kansas and Pennsylvania came before the Senate and raised the question of whether the Constitution includes the right to privacy? According to the Senator from Kansas, he referred to it as the discovered right of privacy in the Constitution.

I would like to ask through the Chair if the Senator from California could reflect on the right to privacy, particularly as it relates to one anomaly from her State, Carolyn Kuhl

Mrs. BOXER. Absolutely. I will show the number of women's organizations who oppose Carolyn Kuhl. I am glad the Senator raised this question.

It is particularly interesting that today we have three women before the Senate. I say to my colleagues from both sides of the aisle, as a woman who has been in public life, actually elected to my first office in 1976, making sure that women have an equal opportunity, making sure that women move into positions of leadership has been one of the hallmarks of my career.

Now we hear people on the other side saying anyone who votes against these women is not in favor of women.

Let me state from the bottom of my heart-and I will get to that issue of privacy-the worst thing that can happen to the women of this country-to your daughters, to your nieces, to your aunts, to your grandmothers, for that matter, to your moms-the worst thing is to have a woman in power who rules against the interests of women. Carolyn Kuhl is one such woman. Janice Brown is one such woman. And Priscilla Owen. And those are the three who come before the Senate today in a package. Each of them, if you look at their decisions, has been hostile to women.

I will talk about the Carolyn Kuhl case. Before Carolyn Kuhl, as a sitting State judge, comes a case in which a woman is explaining that she went to a physician for a followup mastectomy examination, a very humiliating, difficult, painful moment for that woman. That woman has written us and her story is in the RECORD. I have placed it in the RECORD.

The woman simply said to Judge Kuhl: My privacy was violated because I went to my doctor and the doctor allowed in the room a drug salesman. The doctor did not ask me, the doctor never told me.

This drug salesman was leaning over the table, was fanning this woman with a fan, was involved in this intimate exam.

Every woman in this country knows that if that happened to them, they would be humiliated beyond belief. This woman had the courage to sue. Carolyn Kuhl ruled against the woman, and the excuse is, she allowed the case against the doctor to go forward. Untrue. That particular case never was before her. The issue was breach of privacy. She ruled against the woman. Carolyn Kuhl had to write an apology to the committee for misstating what actually had happened.