Executive Session - II

EXECUTIVE SESSION -- (Senate - May 18, 2005)

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Mr. SCHUMER. Mr. President, first, I compliment my friend and colleague from the great State of Washington for her outstanding remarks and leadership on this issue. She knows, because of her experience and her compassion and humanity, what this nuclear option would mean to this Senate. I thank the Senator for her leadership.

Mr. President, there are so many things to say here. The idea of blowing up the Senate, literally, almost, at least in terms of the rules, at least in terms of comity, and at least in terms of bipartisanship, all because 10 judges have not been approved, is just appalling.

I mentioned earlier today, it seems like a temper tantrum if we do not get our way on every single one, say the hard-right groups, we will show them they cannot stop us on anything. That is how ideologues think. That is how people who are so sure they have the message from God or from somebody else, that they know better than everyone else, that is how they think. They cannot tolerate the fact that some of these judges, a small handful, have been held up.

We can tell in the debate today where the enthusiasm and the passion is. There is a weariness on the other side of the aisle. My guess is that more than half of those on the other side, if it were a secret ballot, would vote against the nuclear option. They know it is wrong. Ten have said to me: I am under tremendous pressure; I have to vote for it. The reason the majority leader has not called for a vote is because of the courageous handful who have resisted the pressure. Four of them have told me of the pressure on them.

We used to hear about these groups influencing things. Does anyone have any doubt that if not for the small groups, some dealing with social issues because they think America has been torn away from them, some deal with economic issues--they hate the fact that the commerce clause actually can protect workers. Their idea is that self-made businessman should not pay taxes, should be able to discriminate, should be able to pollute the air and water.

Janice Rogers Brown basically stands for the philosophy of the 1890s and said over and over again that we should go back to the days when if you had a lot of money and power, you could do whatever you wanted. It is an abnegation of history, of the knowledge we have learned. It is an abnegation of the free market principles are the best principles.

But we have learned over the years they need some tempering and some moderation. That is why we do not have the booms and busts that characterized America from 1870 to 1935. That is why people live better. Not because corporate America did good for them. They did do some good, and they do more good now. It was through unionization, through government rules that we transformed America from a nation of a very few rich, a small middle class, and a whole lot of poor people, into an America that had more rich people, a large--gigantic, thank God--middle class, and still too many poor people but fewer poor people.

But Janice Rogers Brown believes all government regulation is wrong. She believes the New Deal was a socialist revolution that had to be undone. Do mainstream conservatives believe that? Is it any wonder even the Chamber of Commerce is against the nuclear option? No.

There are so many points I wish to make, and fortunately it seems we will have a lot of time to make these points. I will focus on something that has not been focused on before, and that is this idea of an up-or-down vote.

First, we have had votes. Yes, the other side has needed 60 to prevail on the small number of judges we have chosen to filibuster. Yes, certainly there has not been a removal of cloture, but the bottom line is we have had votes, unlike when Bill Clinton was President and 60 judges were pushed aside and not given a vote.

The other point of the up-or-down vote is let 51 votes decide, let's each come to our own decision as we weigh the judges.

Let me show the independence of the decisions that have been made by those on the other side.

This is a compilation of all the votes taken by Republican Members of the Senate for every one of President Bush's court of appeals nominees. There have been 45. How many times has any Republican voted against any 1 of those 45 at any single vote? If, of course, we were all coming to an independent decision, do you think there would be 100, 200, 300 out of the 2,700-some-odd votes cast? You would think so. Independent thinking, let's have an up-or-down vote. Here is what it is: 2,703 to 1. Let me repeat that because it is astounding: 2,703 ``yes'' votes by Republicans for court of appeals nominees--45 of them--and 1 vote against.

Now, how is that? First, people ask, Well, who is the one vote? Why did one person, at one point, dissent from the marching lockstep to approve every single nominee the President has proposed? Well, I will tell you who it was. It was TRENT LOTT, the former majority leader. On what judge? On Judge Roger Gregory, who was nominated by Bill Clinton to be the first Black man to sit on the Fourth Circuit, which has a large black population. It is Virginia, North Carolina, South Carolina--I am not sure if it has Georgia in it or not; I think not Georgia.

And when President Bush renominated him, TRENT LOTT voted against him, maybe to help his friend, Jesse Helms, who blocked every nominee and certainly every African-American nominee on the Fourth Circuit. That is it. That is TRENT LOTT right there on Roger Gregory. TRENT LOTT on every other nominee, every other Republican Senator on every nominee: 100 percent of the time they voted for the President's nominee.

So this idea that we are a deliberative body, and we are going to look at each person on the merits, I heard our majority leader say: Let's look. Do you know what this means? Do you know what this spells, these numbers? R-U-B-B-E-R-S-T-A-M-P. This Senate, under Republican leadership, has become a complete rubber stamp to anyone the President nominates. Did maybe one of those nominees strike a single Member of the other side as going too far on a single issue? Did maybe one of those nominees do something that merited they not be on the bench? Did maybe one of those nominees not show judicial temperament? I guess not. Rubber stamp: 2,703 to 1. Once was there a dissent, only once, and on Roger Gregory, the first African-American nominee to the Fourth Circuit.

So what is happening here is very simple. The hard-right groups, way out of the mainstream, not Chambers of Commerce or mainstream churches, but the hard-right groups, as I said, either some who believe, almost in a theocratic way, that their faith--a beautiful thing--should dictate not just their politics but everyone's politics, and some, from an economic point of view, who do not believe there should be any Federal Government involvement in regulating our industries, our commerce, et cetera--these groups are ideologues. They are so certain they are right.

They have some following in this body, but it is not even a majority of the Republican side of the aisle. And they certainly do not represent the majority view of any Americans in any single State. But they have a lot of sway. And until this nuclear option debate occurred, they had very little opposition. People did not know what was going on. And now, of course, this debate allows us to expose the lie.

Let me say another thing about this idea. One out of every five Supreme Court nominees who was nominated by a President in our history never made it to the Supreme Court. The very first nominee, Mr. Rutledge, nominated by George Washington, was rejected by the Senate, in a Senate that had, I believe it was, eight of the Founding Fathers. Eight of the twenty-two people who voted in the Senate had actually signed the Constitution, defining them as Founding Fathers. Did they have votes like this? Of course not because the Founding Fathers, in this Constitution, wanted advice and consent. They say in the Federalist Papers, they wanted the President to come to the Senate and debate and discuss.

Has any Democrat been asked? Has PATRICK LEAHY, our ranking member of Judiciary, been asked about who should be nominees in these courts? Has there been a give-and-take the way Bill Clinton regularly called ORRIN HATCH, chairman of the Judiciary Committee? There is a story, I do not know if it is apocryphal, that ORRIN HATCH said: You can't get this guy for the Supreme Court. You can't get this guy, but Breyer will get through. And President Clinton nominated Breyer. Did Stephen Breyer have ORRIN HATCH's exact political beliefs? No. Did he have Bill Clinton's exact ones? No. It was a compromise. That is what the Constitution intended.

But when a President nominates judges through an ideological spectrum, when he chooses not moderates, and not even mainstream conservatives, but people who are way over--way over--we have safeguards. One of those safeguards is the filibuster. It says to the President: If you go really far out and do not consult and do not trade off, you can run into trouble.

Well, George Bush did not consult. He did what he said in the campaign, that he was going to nominate ideologues. He said: I am going to nominate judges in the mold of Scalia and Thomas. There probably should be a few Scalias on our courts. They should not be a majority. And Bush nominates a majority. And he is now sowing what he has reaped--or reaping what he has sown. I come from New York City. We do not have that much agriculture, although I am trying to help the farmers upstate.

So that is the problem. This is not the Democrats' problem. This is the way the President has functioned in terms of judicial appointments. This is the way the Republican Senate, to a person, has been a rubber stamp without giving any independent judgment.

This is the way the Founding Fathers wanted we Democrats and the Senate as a whole to act. And that is what we are doing.

And then, when they do not get their way--quite naturally, we did what we are doing--they throw a temper tantrum. They say: We have to have all 100 percent. I want to repeat this because this was said by someone--I do not remember who--but I think it is worth saying. If your child, your son or daughter, came home and got 95 percent on a test, 95 percent, what would most parents do? They would pat him or her on the head and say: Great job, Johnny. Great job, Jane. Maybe try to do a little better, but you have done great. I am proud of you.

When President Bush gets the 95 percent, he does not do that. President Bush would advise--what he is doing, in effect, is saying to Johnny or Jane: You only got 95 percent?

This is not what President Bush does. It is what the far-right groups do, the hard-line far right. Only 95 percent? Break the rules and get 100 percent. What parent would tell their child that? Yet that is what these narrowminded groups are saying. And wildly enough, the majority leader and most--and thank God, not yet all--of his caucus is agreeing. Break the rules, change the whole balance of power and checks and balances in this great Senate and great country so we don't have 95 percent, but 100 percent.

What is it that is motivating them? Some say it is a nomination on the Supreme Court that might be coming up, that they can't stand the fact that Democrats might filibuster. I can tell you, if the President nominates someone who is a mainstream person, who will interpret the law, not make the law, there won't be a filibuster.

They say: Well, they will have to agree with the Democrats on everything. Bunk. I haven't voted for all 208. I probably voted for about 195. I guarantee you, of those 195, I didn't agree with the views of many. No litmus test have I. I voted for an overwhelming majority who were pro-life even though I am pro-choice. I voted for an overwhelming majority who probably want to cut back on Government activity in areas that I would not cut back. But at least there was a good-faith effort by these nominees, at least as I interviewed them, being ranking Democrat on the Courts Subcommittee, to interpret the law, not to make the law.

There are some the President nominated you can't tolerate, that are unpalatable. I debated Senator Hatch on the Wolf Blitzer show. He keeps bringing up the old saw: You are opposing Janice Rogers Brown because you can't stand having an African-American conservative.

They said that about PRYOR in terms of being a Catholic and about Pickering in terms of being a Baptist. It is a cheap argument. I don't care about the race, creed, color, or religion of a nominee. If that nominee believes the New Deal was a socialist revolution, if that nominee believes the case the Supreme Court decided that said wage and hour laws were unconstitutional was decided correctly in 1906, even though it was overturned, I will oppose that nominee. That person should not be on the second most important court in the land. No way. We are doing what the Founding Fathers wanted us to do. We are doing the right thing.

One other point, and it relates to this hallowed document--the Constitution. In the 1960s and 1970s, one of the main bugaboos of the conservative movement was that the courts were going too far. They called them activist judges. They believed--from the left side, not from the right side--that these judges were making law, not interpreting the law. And there are cases where they were right. I remember being in college and being surprised as I studied some of the cases that the Supreme Court would do this.

So they created a counterreaction. Ronald Reagan nominated conservative judges, not as conservative as George Bush's, but the bench had largely been appointed by moderates, whether it be Kennedy, Johnson, Nixon, Ford, or Carter. So when Reagan came in and began to sprinkle some conservatives in there, people didn't make too much of a fuss, especially at the courts of appeal level.

The point I am making is this: So they didn't like activist judges, judges who would sort of read the Constitution and divine what was in it. And they had a movement that said: You only read the Constitution in terms of the words. If it doesn't say it in the Constitution, you don't do it.

I defy any Republican who says they don't believe in activist judges to find the words ``filibuster,'' ``up-or-down vote,'' ``majority rule,'' when it comes to the Senate. I would say that anyone who is now saying the Constitution says there cannot be a filibuster is being just as activist in their interpretation of the Constitution as the judges they condemned in the 1960s and 1970s.

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