Executive Session

EXECUTIVE SESSION -- (Senate - May 19, 2005)

NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT--Resumed

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Mr. KENNEDY. I thank the Chair.

Mr. President, I will take a few moments of the time of the Senate, and for those who are watching this debate, to try to put this whole issue of what I consider to be an arrogant grab for power in some perspective. I urge my colleagues, perhaps over the course of the weekend, take 2 or 3 hours and reread the debates on the Constitutional Convention, about how our Founding Fathers wanted the selection of judges for the courts of this country to be done.

There were three different occasions during the Constitutional Convention when our Founding Fathers considered who should appoint the judges who were going to serve on the courts of this country. The first two times the Founding Fathers debated this and discussed this, they made a unanimous recommendation that it would be solely the Senate of the United States that would be the sole judge for nominating and approving judges who were going to serve on the courts. Then, as the Constitutional Convention came to an end, 8 days before the end of the Constitutional Convention, they came back and they were reviewing the totality of their work and at that time they made a judgment and decision that was virtually unanimous that they would provide a shared responsibility between the executive and the Senate of the United States.

No one can read the debates of the Constitutional Convention and not understand that the Senate of the United States is effectively, in the eyes of the Founding Fathers, a coequal partner in the naming of judges.

I know it has been fashionable around here for many years, particularly for those of the majority party--and I have seen it done even on our side when we were the majority party--for a Democrat to say: Look, if the President of the United States nominates, there has to be a heavy burden on any individual to vote against it. It ought to be automatic. It ought to be effectively a rubberstamp.

That has never been my position. I have always felt and understood that we have an independent judgment and decision as charged by our Founding Fathers to exercise our own good judgment. That has been the history of the Senate.

We have listened--I have--to a lot of debates, saying what we are doing is going back to the original intent of our Founding Fathers. That does not happen to be factually true.

I reviewed yesterday those who have held the seat I hold in the Senate. Going back to John Quincy Adams, going back to Charles Sumner, going back to Daniel Webster--to President Kennedy--the series of Supreme Court nominees they considered, and those they voted for and those they voted against: there never was a single time when any Senator from Massachusetts was effectively muzzled, silenced, gagged when they were expressing their conscience, their view about the members going to the Supreme Court or the circuit courts, not in the history of this body, never.

But under the proposal of the majority leader, that will no longer be the case. That no longer will be the case. It is not only the silencing, the muzzling and gagging of any of the Members in here; it is breaking the rules in the middle of the game.

We have parliamentary rules, like any other

legislative body, and we have ways of changing and altering those rules. They are all laid out. I will mention them briefly. There is a way to change the rules if we do not like them and we can follow them and conform them to our views. By the Senate rules we can alter and change them. Is that what is going to be before the Senate in the nuclear option? Absolutely not. Absolutely not.

There is a way to change them, but not the way the Republican leadership and this administration want to do it. They are effectively tearing up the rules. They are basically running roughshod over the Senate rules, the institution that has served this Nation well for 224 years. That is what is being proposed. When all is said and done, we mention all these other past histories of activities, this is effectively what is being done.

I think most Americans may take issue with what happens here in the Senate. They may agree with the activities of the Senate or may differ with them. But one thing in which the American people have some degree of confidence is their basic institutions of Government. With the proposal by the majority leader, we are rending asunder the power and the authority that was described in the Constitutional Convention and described in the Constitution for the Senate. That is why people are feeling so strongly about this, many of us feel so strongly about this--because basically we are undermining what our Founding Fathers wanted.

This is an issue that has been overhanging the Senate now for some weeks, for some months, in spite of the fact that we have approved 208 of the President's judges: 95 percent, a higher percentage than the previous President Bush. What is suddenly the difference? This President has a higher percentage of his nominees approved than the first President Bush, Bush 1. The difference is a different political climate. There is a radical right out there that is loose in the country. They feel they won the Presidency, the House of Representatives, the Senate of the United States and, by God, they are going to take over the independent judiciary.

That is what this is all about. Meantime, while the so-called nuclear option has been hanging out over the Senate, what in the world have we been doing for the last 5 months? January, February, March, April, and now the third week in May?

When I go back to Massachusetts, the people there are talking still about job security and its uncertainty. They are talking about whether they are going to continue to be able to have health insurance. They are talking about escalating prices of prescription drugs. They are talking about the increased costs of tuition, whether their children are going to be able to go to college. They are talking about what is happening in the schools and the school dropout problems and the fact so many classes in our Nation don't have well-trained teachers. They are talking about the needs for special education teachers. They are talking about supplementary services for children going to high schools that were guaranteed in the No Child Left Behind Act and too many of our school districts are not doing; that is what they are talking about.

But what have we been doing? Waiting for the nuclear option. Which means what? Tear up the rules and we pass class action bills benefitting corporate America, we pass bankruptcy bills that will help the credit card industry. We did take 2 weeks, and deservedly so, on the supplemental appropriations, and we included an amendment to add some armor for our troops over there, of which I highly approved. That is it. That is the record. Nothing we really care about. Why? Because we have been absorbed with the nuclear option, changing and altering the rules. Mr. President, 95 percent of approval of this President's nominees has been achieved.

I frankly feel a great deal of this responsibility is right down at the other end of Pennsylvania Avenue. I can remember in January of this year, in the wake of the conclusion of the election and all of us said, This President won. We congratulate him. We have to bring the country back together. I certainly voiced that.

My colleague, Senator Kerry, certainly voiced that. What happened? The ballots are barely cast and the votes are hardly counted, and this President sends up the nominees that have been debated, discussed, had hearings, and voted on in the Senate and said: You have to pass these, Senate, or we will change the rules.

I have taken the time of the Senate in going over the qualifications of these. These are not just ordinary nominees. I have gone over these in some detail. These nominees are radical. I would say, radical, outside the mainstream. If you have a nominee such as Mr. Pryor, who thinks we ought to repeal the Voting Rights Act, I think he is out of the mainstream.

What he says in his legal papers is in complete conflict with and has been rejected unanimously by the Supreme Court. He does not understand the Americans With Disabilities Act. He does not understand that Republicans and Democrats alike voted for the Americans With Disabilities Act to bring those that are challenged, mentally and physically, into the mainstream of American society. We spent weeks and months and years to pass that legislation. This is not one Senator who will vote for someone that absolutely wants to undermine and eviscerate it, destroy it, and end it. That is what Mr. Pryor's positions lead to.

So these are not people that are in the mainstream. We have expressed that. We ought to be able to express it. But that is not satisfactory to this administration. No, no. They want to change the rules. That is what this will be all about. They are effectively saying: Look we have nominated, and you are going to go ahead and approve.

We have 224 years where they have not been able to silence us, and now they will be able to silence us. But not with this Senator's support.

These are the rules, and I welcome any on the other side to dispute them, and I invite them to put that in the RECORD. First of all, they will have to put the Vice President of the United States in the Presiding Officer's chair. There will not be another Senator in that chair to make the ruling because it is not going by the rules of the Parliamentarian.

Do listeners understand that? It is akin to going to the football game and the referee and the umpire call the penalty or the touchdown and someone else from the crowd says, no, no, that does not count, and for us it recognizes the ``someone else'' in the crowd. That is what they are doing. They will replace a Member of the Senate. We have, as we do now, the distinguished Senator from Tennessee sitting in the chair and presiding over the Senate. But that will not be true that particular day.

Next they will have to break paragraph 1 of rule V which requires 1 day's specific written notice if a Senator intends to try to suspend or change a rule.

And then they break paragraph 2, rule V, which provides that the Senate rules remain in force from Congress to Congress unless they are changed in accordance with existing rules.

Then they have to break paragraph 2, of rule XXII, which requires a motion signed by 16 Senators, a 2-day wait, and a three-fifths vote to close debate on a nomination.

Then they have to break rule XXII requirement of a petition, a 2-day wait, and a two-thirds vote to stop debate on a rules change.

They have to break scores of the rules. It will make a sham of the rules and parliamentary procedures of this Senate. It is wrong.

We are witnessing in this debate an arrogant power grab by the Republican right. This is what happens when the rightwing of the Republican Party calls the tune for the Republican Party as a whole. We are spending days and weeks debating five rightwing judges but not 5 minutes on what counts in most people's lives: Secure jobs, healthy families, educational opportunity. Those are not the values and priorities we see today from the White House and this Republican Congress. To them, history does not matter. Mainstream values do not matter. Our commitment is to working families, and that does not matter.

What the Republican Party cares about today is putting a rightwing agenda ahead of mainstream values, corporate interests ahead of public interests, and the agenda of the privileged few ahead of the American dream for all.

We, as Senators, have a choice as well. We can break the rules and run roughshod over our constitutional system of checks and balances or we can seek accommodation and compromise for the good of our democracy and the strength of our Nation.

The one thing standing between the White House and total control of the Congress and the courts is the Senate's right to full and fair debate. Let's not give it up.

As many of us have said, if Republicans persist in the course they have set, they will destroy the ``compact of comity'' that enables the Senate to fulfill its constitutional responsibilities.

Outside the Capitol, the gravity of that danger may not be self-evident.

``Comity'' may be an unused word today, but for 200 years it has been the lifeblood of daily life in the Senate.

In the Senate, comity is the glue that binds us to one another and to that small but brilliant group of Framers who met, over two centuries ago, and conceived of this institution.

They certainly knew what comity was: they came from totally different views of government.

They labored ceaselessly, in the heat of a Philadelphia summer, in the ultimate American Government Seminar, until they created a government that was reliable, resilient--resistant to attack from within and without.

Comity among the Framers--their overriding ``agreement to agree'' despite their deep differences--informed and nourished their efforts. They worked especially hard to design the Senate.

Their debates were all about great challenges:

What size would be right to enable the Senate to serve as a check on the other House and the President too, and still place personal responsibility for their actions on individual Senators?

How long should each Senate term last, to set the proper balance between the strong, independent Senate they wanted and the potential tyranny of an aristocratic upper House, insulated from popular opinion?

Who would make better judicial choices, the Senate or the Executive?

Fortunately for us today, their debates were not just theoretical. They were very real and very practical. The Framers understood they were creating a new experiment in the history of government as they worked to combine their diverse views into a single concise blueprint.

Despite vigorous and fundamental disagreements at the start, they retained their respect for one another, their capacity for reason, their shared concept of what this Nation could be, and what its government should be. Consensus was not just a goal, but a necessity. Compromise not just an option, but a cornerstone of their creation.

It is not an exaggeration to say that if that ``compact of comity'' is not preserved, the Senate and the Government will suffer mightily. Our vital role in the machinery of checks and balances will fade, and the nation will be left diminished.

What would the Framers have done if faced with the challenge we face?

They would clearly have counseled respect and moderation.

It is not respectful or moderate to suggest, as one of our colleagues did, that judges may have it coming to them if their decisions outrage some people. It is not respectful or moderate to suggest, as the majority leader did yesterday, that Senators are equivalent to the assassins of judges because they strongly criticize the political or ideological views of judicial nominees. As part of its advice and consent function, the Senate has done that since 1795, when it rejected George Washington's nomination of John Rutledge to be Chief Justice.

The majority leader's use of the word ``assassinate'' was especially unfortunate, coming in the very day that Judge Lefkow of Chicago was testifying to our Judiciary Committee about the brutal murders of her family members.

The Founders also would have counseled us about communication. We work with members of the other party every day. We talk to them every day. But I can't think of one of them who has come to me over the past 2 years to say, ``This judicial nomination issue is headed the wrong way--we ought to start talking about how to preserve our institution's strengths and traditions, and solve the problems that these judicial nominations are creating for us all.'' We all know it is very late in this contest of nuclear ``chicken,'' but it is never too late to try.

The Framers would also have told us to minimize the distortions and respect the truth. Again, and again, we are told that there was no Republican-led filibuster of the Fortas nomination to be Chief Justice in 1968. There are still three of us in the Senate today, who were in the Senate then, and who know the truth firsthand. It demeans the Senate and discredits the debater when someone parrots the bizarrely erroneous White House talking points denying such a filibuster, without having the grace to check the facts.

The Founders would also have told us to take extremely seriously what James Madison in Federalist No. 62, called ``the senatorial trust,' which require[es] a greater extent of information and stability of character.''

As Madison understood, Senators are not the owners of this institution, but we are more than just its occupants. We are, its trustees, with an awesome responsibility to protect that trust--this body--the Senate. That means we must preserve what makes it work well--like extended debate and the super-majority cloture rule.

A central part of that senatorial trust is standing up to the President when he overreaches in the exercise of his power, as he has done with the few, but important, still hotly contested circuit nominees.

Finally, the Framers would say that our endangered senatorial trust needs comity more than ever in our day-to-day activities and relationships. As Madison stated, the comity the Framers had in mind was--``the result, not of theory, but `of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.' '' That is what we must aspire to. That is what we must accomplish if we are not only to solve our present dilemma but leave this place as least as fine an institution as we found it.

Who are the nominees that the Republicans so want confirmed that Senator Frist is willing to violate the rules of the Senate?

They include Janice Rogers Brown, who has been nominated to the very important DC Circuit, which is widely regarded as the most important court of all the courts of appeals, and whose decisions affect the rights of all Americans. She has a compelling personal story, which all of us respect. But confirmation to the DC Circuit requires more than a compelling personal story. It requires a record of clear commitment to upholding the rights of all Americans. It requires a record of clear dedication to the rule of law--not remaking the law to fit a particular political view.

Janice Rogers Brown fails this basic test. Her record on the California Supreme Court makes clear that she's a judicial activist who will roll back basic rights. Her record shows a deep hostility to civil rights, to workers' rights, to consumer protection, and to a wide variety of governmental actions in many other areas--the very issues that predominate in the DC Circuit.

She has repeatedly voiced contempt for the very idea of democratic self-government. She has stated that ``where government moves in, community retreats [and] civil society disintegrates.'' She has said that government leads to ``families under siege, war in the streets.'' In her view, ``when government advances . . . freedom is imperiled [and] civilization itself jeopardized.''

She has criticized the New Deal, which gave us Social Security, the minimum wage, and fair labor laws. She has questioned whether age discrimination laws benefit the public interest. She has even said that ``Today's senior citizens blithely cannibalize their grandchildren because they have a right to get as much `free' stuff as the political system will permit them to extract.''

Yet my colleagues say we're wrong to worry about putting Janice Rogers Brown on the DC Circuit, which is widely regarded as the most important court of appeals, and is just a heartbeat away from the Supreme Court.

No one with these views should be given a lifetime appointment to the Federal court of appeals, and certainly not to the Federal court most responsible for cases affecting government action. It is no wonder that an organization seeking to dismantle Social Security is running ads supporting her nomination to the second most powerful court in the country.

In the area of civil rights, Justice Brown has also written opinions that would roll back basic protections. In a case involving ethnic slurs against Latino workers, Justice Brown wrote that the first amendment prevents courts from stopping ethnic slurs in the workplace, even when those slurs create a hostile work environment in violation of job discrimination laws. She dissented from a holding that victims of discrimination may obtain damages from administrative agencies for their emotional distress. She also wrote an opinion suggesting that Supreme Court decisions upholding affirmative action are inconsistent with laws against discrimination.

On workers' rights, she rejected a binding precedent limiting an employer's ability to require workers to submit to drug tests.

In another case, she wrote a dissent urging the California Supreme Court to strike down a San Francisco law providing housing assistance to low-income, elderly, and disabled people. In case after case, she has sought to undermine the rights of the American people.

It is a travesty that the majority leader is attempting to break the rules of the Senate to confirm such nominees. It takes 67 votes to change Senate rules. Because the majority leader can't win fair and square, he is proposing to break the rules in the middle of the game.

We have heard them make every argument in an attempt to disguise their raw abuse of power. They even claim the Constitution prohibits Senators from filibustering judicial nominees. But as Senator Frist, the majority leader, admitted on the floor recently, that's nowhere in the Constitution. Certainly the Republicans didn't believe that when they were filibustering President Clinton's nominees--including when Senator Frist, himself joined in a filibuster of a circuit court nominee in 2000.

This misreading of the Constitution and Senate rules is the same kind of distortion we have seen from the nominees they support.

We have seen it in Priscilla Owen's opinions twisting the law in an attempt to deny the insurance claim of a heart surgery patient, or to exempt campaign contributors from environmental regulations. We have seen it in Janice Rogers Brown's twisting the Constitution to claim job discrimination laws can't protect Latino workers from ethnic slurs in the workplace. We have seen it in William Pryor's opposition to basic protections for the disabled, voting rights, and family and medical leave--views rejected by the Supreme Court. And we've seen it in William Myers' opinion that cleared the way for an open-pit mine on land sacred to Native Americans--an opinion that a Federal court later said ignored ``well-established canons of statutory construction.''

These nominees do not deserve lifetime appointments to the federal courts, where they have enormous power over the American people.

More importantly, the Senate does not deserve the bitter legacy we would leave if we adopt the nuclear option. It is not worth running roughshod over the traditions of this institution for short-term political gain. It is not worth turning our backs on our constitutional role as a check and balance on Presidential appointments to the courts.

Alexander Hamilton said this about the need for the Senate to be an independent check on the President's nominations.

``To what purpose [do we] require the co-operation of the Senate? . . . It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.''

That's what Alexander Hamilton said the Senate should be--a check against overreaching by the President, not a rubber stamp for the President. I urge my colleagues to remember that as United States Senators, we are the keepers of a constitutional trust that is not ours to give away. That trust belongs to the American people. The system of checks and balances protects them. If we give away that trust, we will never get it back.

What we are witnessing in this debate is an arrogant power grab by the Republican right. This is what happens when the rightwing of the Republican Party calls the tune for the Republican Party as a whole. We are spending days and weeks debating five rightwing judges, but not 5 minutes on what counts most in people's lives--not 5 minutes on secure jobs, or healthy families, or educational opportunity. Those are not the values and priorities we see today from this White House and this Republican Congress.

To them, history doesn't matter. Mainstream values don't matter. Our commitment to working families doesn't matter. What the Republican Party cares about today is putting a rightwing agenda ahead of mainstream values, corporate interests ahead of the public interest, and the agenda of the privileged few ahead of the American dream for all.

We have approved 208 of George Bush's nominees to the federal courts. Two hundred eight. But the five right wing judicial nominees at stake in the nuclear option have no business making life-or-death, make-or-break decisions that affect our lives. They are anti-worker, anti-civil rights, anti-disability, anti-senior, anti-consumer, and anti-environment.

This is President Bush's moment of truth too. Instead of fanning the right wing flames, the President can end this abuse of power. He can pick judges closer to the center, not from the outer edge.

We as Senators have a choice as well. We can break the rules and run roughshod over our constitutional system of checks and balances, or we can seek accommodation and compromise for the good of our democracy and the strength of our Nation. The one thing standing between The White House and total control of Congress and the courts is the Senate's right to full and fair debate.

I urge the President, I urge the Republican leadership in the Senate, to heed the timeless words of the prophet Micah who wrote, ``What is good and what does the Lord require of you but to do justice, and to love kindness, and to walk humbly with your God?''

Here are some of the rules and precedents that the executive will have to ask its allies in the Senate to break or ignore, in order to turn the Senate into a rubber stamp for nominations:

First, they will have to see that the Vice President himself is presiding over the Senate, so that no real Senator needs to endure the embarrassment of publicly violating the Senate's rules and precedents and overriding the Senate Parliamentarian, the way our Presiding Officer will have to do;

Next, they will have to break paragraph 1 of rule V, which requires 1 day's specific written notice if a Senator intends to try to suspend or change any rule;

Then they will have to break paragraph 2 of rule V, which provides that the Senate rules remain in force from Congress to Congress, unless they are changed in accordance with the existing rules;

Then they will have to break paragraph 2 of rule XXII, which requires a motion signed by 16 Senators, a 2-day wait and a 3/5 vote to close debate on the nomination itself;

They will also have to break rule XXII's requirement of a petition, a wait, and a 2/3 vote to stop debate on a rules change;

Then, since they pretend to be proceeding on a constitutional basis, they will have to break the invariable rule of practice that constitutional issues must not be decided by the Presiding Officer but must be referred by the Presiding officer to the entire Senate for full debate and decision;

Throughout the process they will have to ignore, or intentionally give incorrect answers to, proper parliamentary inquiries which, if answered in good faith and in accordance with the expert advice of the Parliamentarian, would make clear that they are breaking the rules;

Eventually, when their repeated rule-breaking is called into question, they will blatantly, and in dire violation of the norms and mutuality of the Senate, try to ignore the minority leader and other Senators who are seeking recognition to make lawful motions or pose legitimate inquiries or make proper objections.

By this time, all pretense of comity, all sense of mutual respect and fairness, all of the normal courtesies that allow the Senate to proceed expeditiously on any business at all will have been destroyed by the pre-emptive Republican nuclear strike on the Senate floor.

To accomplish their goal of using a bare majority vote to escape the rule requiring 60 votes to cut off debate, those participating in this charade will, even before the vote, already have terminated the normal functioning of the Senate. They will have broken the Senate compact of comity, and will have launched a preemptive nuclear war. The battle begins when the perpetrators openly, intentionally and repeatedly, break clear rules and precedents of the Senate, refuse to follow the advice of the Parliamentarian, and commit the unpardonable sin of refusing to recognize the minority leader.

Their hollow defenses to all these points demonstrate the weakness of their case.

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