Executive Session
EXECUTIVE SESSION -- (Senate - May 23, 2005)
NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT--RESUMED
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Mr. BENNETT. Mr. President, we turn on the television these days and get bombarded with advertisements saying: ``Write your Senator.'' ``Call your Senator and preserve the filibuster.'' ``Get ahold of your Senator and make sure this tool that provides rights and protections of the minority gets preserved.''
I have been associated with the Senate now since I was a 19-year-old intern sitting in the family gallery in the 1950s, falling in love with the debate that was going on, on the Senate floor. I must say there were usually more Senators here in the 1950s than there are now, but I understand, with television, the Senators stay in their offices and watch, and I am happy to accept that. But I understand the traditions of this body have great roots in history that many times get ignored. That is, these roots get ignored by people writing columns and stories today.
I want to go on record very firmly as being on the same side as those people who are buying the ads saying: ``Preserve the filibuster.'' I have watched the filibuster be used to help shape legislation. I watched the filibuster be used as a tool of compromise. I think the filibuster is a very worthwhile thing to hang on to in order to preserve the rights of the minority.
Now, that position of saying ``let's save the filibuster'' has not always been popular. If you go back 10 years ago, when a proposal was made on the Senate floor to abolish the filibuster, the New York Times editorialized in favor of that position. The New York Times told us
..... the filibuster has become the tool of the sore loser.
The Times was anxious to have the whole thing wiped away. There were only 19 Senators who voted to abolish the filibuster, 9 of whom are still serving today. The rest of us all voted to preserve the filibuster. So I am on record as saying: We must preserve the filibuster. I value it. I believe it has a place in the Senate. However, I also believe we have the right to shape the filibuster, to focus the filibuster, to reform the filibuster, so it can be used in a more effective way.
There are those now who, when they say ``save the filibuster,'' mean ``save the filibuster the way we like it,'' not ``save the filibuster in its historic form, because its historic form has changed over the years.
The first point, as far as history is concerned, is this: The filibuster did not come into existence with the Constitution. I had a phone call over the weekend from a very dear friend who said: This is a constitutional issue that goes back all the way to the Founding Fathers. However, the filibuster, Rule XXII, came into the Senate history in 1917. That is a long time after the Founding Fathers. And it has been changed several times since that time, some times by formal Senate rule. It was changed in 1949. It was changed again in 1959. And it was changed again in 1975. So for those who run the ads saying ``save the filibuster,'' maybe the first question is, which filibuster do you have in mind that you want us to save?
But there is another aspect of the filibuster. I turn again to the New York Times. It is amazing how much they have changed their minds in the intervening 10 years. After the New York Times said the filibuster was a tool of the sore loser, now in this debate they decide that
..... the filibuster [is] a time-honored Senate procedure .....
They editorialize: ``Keep it just the way it is.'' Well, I want to talk a little bit about time-honored Senate procedures, and particularly time-honored Senate procedures with respect to the filibuster. It is a time-honored Senate procedure that the filibuster can be changed by majority vote. There are a number of Senators who have served here and are still serving here who, at least at one time in their careers, agreed with that.
Senator Kennedy had this to say in 1975, when there was a debate on what kind of filibuster we could have and what the time-honored Senate procedures would say about the filibuster. Senator Kennedy said:
A majority may adopt the rules in the first place. It is preposterous to assert they may deny future majorities the right to change them.
Senator Kennedy was enunciating a time-honored Senate procedure that said a majority had the right to change the rules. This was in 1975.
Senator Mondale served in 1975. Senator Mondale had this to say about what was done in 1975. For those who are talking about time-honored Senate procedures, this was the Senate procedure 30 years ago. And for 30 years it has stood the test of time. Senator Mondale said:
..... the President of the Senate ..... and the membership of the Senate ..... have both clearly, unequivocally, and unmistakably accepted and upheld the proposition that the U.S. Senate may ..... establish its rules by majority vote, uninhibited by rules adopted by previous Congresses.
Somehow this happened. Senator Mondale said it happened ``clearly, unequivocally, and unmistakably,'' and the place did not blow up. There were no threats to shut everything down, to object to every unanimous consent request, to cause a ``nuclear bomb'' to go off in this Chamber if this policy were to happen. This is a time-honored Senate procedure and it happened with both the membership of the Senate and the President of the Senate in 1975, according to Senator Mondale.
I picked Senator Mondale because in 1976 he was elected Vice President, which meant he became the Presiding Officer of the Senate. And something happened while he was the Presiding Officer of the Senate in this same time-honored Senate procedure.
The majority leader at the time was Senator Byrd of West Virginia. And he has described what happened while Vice President Mondale was presiding over this body. Here is what Senator Byrd had to say in 1995, as a bit of historic information for the rest of us who may not have been present back in the time when Mr. Mondale was the Vice President.
Senator Byrd explained:
I have seen filibusters. I have helped to break them. There are few Senators in this body who were here when I broke the filibuster on the natural gas bill. ..... I asked Mr. Mondale, the Vice President, to go please sit in the chair; I wanted to make some points of order and create some new precedents that would break these filibusters.
Interesting choice of words, because that is what we are talking about here under the name ``nuclear option,'' making a point of order and setting a new precedent. Senator Byrd, the majority leader, asked Vice President Mondale to ``please sit in the chair,'' to be there when Senator Byrd made ``some points of order'' and created ``some new precedents'' to ``break these filibusters.'' He goes on to describe what happened:
And the filibuster was broken--back, neck, legs, and arms. It went away in 12 hours.
So I know something about filibusters. I helped to set a great many of the precedents that are in the books here.
A time-honored Senate procedure.
Senator Byrd did it again. Going ahead to 1980, Senator Byrd led 54 Senators, all but one of whom were Democrats, in overturning the Chair and eliminating all debate on motions to proceed to nominations. The point here is an important one. He did not abolish the filibuster. He did not say: Get rid of the filibuster. He did not abide by the advice of the New York Times that said it was a tool of sore losers. But he helped shape it. He helped focus it. He said the filibuster should not be quite as broad as it may have been in the past. And using the time-honored Senate procedure of making a point of order, and getting the Senate to vote, he helped shape it, and the Senate Democrats set this precedent before the Senate had even begun to debate the motion, so that the filibuster that used to apply to motions to proceed to nominations no longer does.
And how was the rule changed? It was changed by a time-honored Senate procedure.
Now, there is one other time-honored Senate procedure that Senator Leahy has spoken of. This goes to a floor statement Senator Leahy made in 1997, as he was talking about nominations for the Federal bench. Senator Leahy, who at the time was the ranking minority member of the Judiciary Committee--he went on later to become the chairman--said:
I cannot recall a judicial nomination being successfully filibustered.
I find that interesting because many of our Democratic friends are now saying: ``Oh, filibusters of judicial nominations are normal. They have happened before.'' Well, at least in 1997, Senator Leahy said:
I cannot recall a judicial nomination being successfully filibustered. I do recall earlier this year when the Republican chairman of the Judiciary Committee and I noted how improper it would be to filibuster a judicial nomination.
I have the same recollection. I remember in our conference when the issue of filibustering some of President Clinton's judges came up, it was the Republican chairman of the Judiciary Committee, my senior colleague, Senator Hatch, who stood before the conference and said: ``Do not do it. It would be improper to filibuster a judicial nominee. Having judicial nominees get a vote is a time-honored Senate precedent.'' Senator Lott was the majority leader. He took the floor, after Senator Hatch had spoken, and said: ``Senator Hatch is right.'' We should not cross the line and start to filibuster judicial nominations because the Senate tradition has said no.
So that is where we are now. The Senate tradition has been changed. The Members of the minority have exercised their right, which has always been on the books, to change the precedent which had held for so long that even Senator Leahy could not recall an exception to it. What we are talking about doing now is using the time-honored Senate procedure of changing the rule by majority vote to see to it that the prior precedent remains--or, rather, returns because it was broken in the 108th Congress.
So I value the filibuster. I am in favor of the filibuster. But I think the filibuster has been and still can be shaped and changed so it is more focused than simply an across-the-board procedure.
I want to close by putting something of a human face on this whole issue because we are talking about this filibuster of judicial nominees almost as if the judicial nominees were not people, almost as if the judicial nominees were spectators in this activity. They are not spectators. They are seeing their reputations smeared. They are seeing their history attacked. It is time we spent a little time thinking about them.
I know the nomination on the floor is Priscilla Owen, but over the weekend I had called to my attention an article that appeared in the Sacramento Bee by one Ginger Rutland that I would like to close with. It is entitled: ``Worrying about the right things.'' Ginger Rutland identifies herself as ``a journalist of generally liberal leanings,'' and she talks about the nomination of Janice Rogers Brown.
Both Ms. Rutland and Ms. Brown live in California. Ms. Rutland says:
I've been trying to get a fix on Brown since President Bush nominated her for the influential U.S. Circuit Court of Appeals for the District of Columbia.
It talks about the experience. And then she makes this comment:
Championed by conservatives, Brown terrifies my liberal friends. They worry she will end up on the U.S. Supreme Court. I don't. I find myself rooting for Brown. I hope she survives the storm and eventually becomes the first black woman on the nation's highest court. I want her there because I believe she worries about the things that most worry me about our justice system: bigotry, unequal treatment and laws and police practices that discriminate against people who are black and brown and weak and poor.
She was born and raised poor, a sharecropper's daughter in segregated Alabama. She was a single mother for a time, raising a black child, a male child. I don't think you can raise a black man in this country without being sensitive to the issues of discrimination and police harassment.
She goes on in the article. I ask unanimous consent that the entire article be printed in the RECORD at the conclusion of my remarks.
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She concludes with this comment:
I don't pretend to know how Brown will rule on other important issues likely to reach the Federal courts. I only know that I want judges on those courts who will defend the rights of the poor and the disenfranchised in our country.
She believes Janice Rogers Brown is one of those jurists.
I am not sure whether she is right or wrong. But I do know Janice Rogers Brown deserves the opportunity to have her nomination voted on. And if one use of the filibuster has been to prevent Priscilla Owen and Janice Rogers Brown and others like them from getting this vote, a time-honored procedure of the Senate can be used with equal justification to see to it that the filibuster gets tweaked a little bit to make sure we go back to the practice that existed here for decades.
For that reason, I will support the motion of the majority leader if it becomes necessary to make sure that we have an opportunity to a vote on Priscilla Owen. I hope as a result of this debate, our friends on the Democratic side of the aisle will step back a little from their position of saying no to a vote on Priscilla Owen and allow us to have a vote. If they do, they are acting in accordance with the history of the Senate for past decades, the history of the Senate going back so far that even PATRICK LEAHY cannot remember an exception to it. If they do and we have an up-or-down vote on Priscilla Owen, it may well be that all of this talk about changing the rules will go away.
The outcome lies in their hands. If they allow us to vote on Priscilla Owen, we will not have the lack of civility, the shutting down of the Senate, the collapse of Government, all of the other things that have been predicted. If, on the other hand, they say no, we will not allow this woman who has been unanimously rated as well qualified by the American Bar Association to even get a vote, then we will see the majority leader follow the practice, follow the precedent, follow the example set by Senator Byrd, the example endorsed by Senator Kennedy, endorsed by Senator Mondale, and use the time-honored Senate procedure to change the rule by majority vote. If the majority leader so moves, I will support it.
Exhibit 1
[May 8, 2005]
Ginger Rutland: Worrying About the Right Things
(By Ginger Rutland)
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