Executive Session
EXECUTIVE SESSION -- (Senate - May 20, 2005)
NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT--RESUMED
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Mr. LEAHY. Mr. President, today, we are continuing to debate the Republican leader's bid for what I believe is one-party rule through his insistence to trigger the nuclear option. It is kind of a ``king of the hill'' situation. While playing king of the hill, you say ``might makes right,'' but it doesn't; it makes wrong in this case. Through the misguided efforts to undercut the checks and balances that the Senate provides in our system of government, it is the need to protect the rights of the American people, the independence and fairness of the Federal courts and, of course, minority rights in the Senate.
Our time would be much better used if we were doing something about the dramatic rise in the price of gasoline over the past 5 years, or the enormous and unprecedented increase in the national debt during the past 5 years; or what has happened when we have seen the huge budget surplus that former President Clinton left his successor, which has now turned into the largest budget deficit in the lifetime of anybody in this Chamber. These are things that could help the American people.
Yesterday I urged that we get on with the business of the American people. I spoke about a number of specific items of legislation, including the bipartisan NOPEC bill, S. 555, that sit idle. That bill would provide the Justice Department with clearer tools to challenge the cartel price-setting activity of OPEC and help to lower gas prices for working Americans. I mentioned defense and law enforcement measures, as well. The Democratic leader, Senator Corzine and others made similar points about important legislative priorities. Senator Carper and I talked about the effect this extended debate is having on the bipartisan asbestos compensation bill. On Wednesday the Chairman cancelled a markup of the bill and on Thursday our markup was limited to two hours and many Senators were unavailable due to this floor debate.
But instead of bringing us together to make progress, our friends on the other side of the aisle insisted the Senate debate at length a nomination that has been debated over the last 3 years, after being voted down by the Judiciary Committee 3 years ago. In fact, a couple of years ago, the Republican majority staged a 40-hour talk-a-thon on judicial nominees. It was at the conclusion of that political exercise, that 40-hour talk-a-thon, that we discovered the Republican staff had been stealing files from the Judiciary computer service for at least 3 years.
That extended debate, staged by the majority, amounted to significant lost opportunities for progress on matters at that time including, ironically, asbestos reform, which is something before us today. At that time, we had approved a lot of judges. Through Senate Democratic cooperation we had approved 168 and turned down 4. In fact, during the 17 months when I chaired the Judiciary Committee, we approved 100 of President Bush's nominees. That is actually a speed record. By the end of last year, at the end of President Bush's first term, we had already confirmed 204 judges. We reduced judicial vacancies to the lowest level since President Reagan. We are now at 208 confirmations. So we have confirmed 208 and, depending upon whose count you go by, we have blocked 5 to 10. We have confirmed well over 95 percent, as a practical matter.
I thank the Senators who joined in the debate yesterday for their contributions: Senator Byrd, Senator Kennedy, Senator Kerry, Senator Baucus, Senator Bingaman, Senator Lautenberg, Senator Mikulski, Senator Harkin, Senator Carper, and Senator Nelson of Florida. They know, and everybody in this place knows that if you had a secret ballot on the nuclear option, it would fail miserably. The press knows it and Senators know it. We have all talked with Members on the Republican side who say: I don't want to vote for this thing. I know it is wrong. I started asking, What if there was a secret ballot? Well, of course, that would go down. That is because Senators know it is wrong--wrong in terms of protecting the rights of the American people, wrong in terms of undercutting our Federal system of checks and balances, and it is wrong in protecting the minority rights in the Senate, saying we will have a one-party rule system.
Well, one-party rule may work in some countries. It has never, ever worked in the United States of America. We can be thankful for that. We are the strongest democracy in the world because we have never let this country come to one-party rule. Democratic Senators will not be able to rescue the Senate and our system of checks and balances from the breaking of the Senate rules that the Republican leader is planning to demand. Democratic Senators cannot protect the rights by ourselves; we cannot protect the checks and balances by ourselves. If the rights of the minority have to be preserved, if the checks and balances are to be preserved, if the Senate's unique role in our system of Government is to be preserved, it is going to take at least six republicans standing up for fairness and for checks and balances.
I know a number of Republican Senators realize this nuclear option is the wrong way to go. I have to believe enough Republican Senators will put the Senate first, put the Constitution first and, most importantly, put the American people first and withstand momentary political pressures when they cast their votes.
I have spoken to Senator Isakson about his comment earlier this year about the effort to bring democracy to Iraq. I know he spoke about it yesterday. The Senator observed that a Kurdish leader in the middle of Iraq said he had a ``secret weapon'' to instill democracy. When they asked what the ``secret weapon'' was, he said it was one word--filibuster.
The Senator went on to observe:
If there were ever a reason for optimism about what this supplemental provides the people of Iraq and their stability and security, it is one of their minority leaders proudly stating one of the pillars and principles of our Government as the way they would ensure that the majority never overran the minority.
He was right. We have that same pillar here. We have had a lot of discussion on the floor of the Senate. A couple weeks ago, we voted for billions of dollars to improve law enforcement in Iraq; at the same time, we voted for a budget to cut law enforcement in the United States. We voted billions of dollars to improve infrastructure in Iraq; we voted for a budget that cuts it in America. We voted for item after item for Iraq, at the same time voting to cut similar items in America.
This is not a debate on the Iraq war, but if we are going to praise the Iraqis--and I hope and pray that they will have a democracy someday in that country--and say the reason they can have democracy is that they will have the filibuster and they can protect minority rights, maybe it is time we say let's do as much for the United States as we do for Iraq.
The Iraqi National Assembly was elected in January. In April, it acted, pursuant to its governing law, to select a presidency council by the required two-thirds vote in the assembly, a supermajority.
More recently, Cabinet members for a number of political parties, and religious and ethnic groups were announced, many in the minority parties. Use of the nuclear option in the Senate is akin to Iraqis in the majority political party in the assembly saying they have decided to disregard the governing laws and pick only members of their own party for the government and do so by a simple majority. They might feel justified in acting contrary to law because the Kurds and Sunnis were driving a hard bargain.
One thing we have learned through history is that if you govern through consensus, it is not as easy as ruling unilaterally. That is why dictators can rule unilaterally. But we have never been a dictatorship, thank God, in this country, and I believe we never will be. That is why our system of government is the world's example because we have always protected the views of all Americans, majority and minority, and we have done it in a way through a check and balance so both sides can be heard. That way it requires consensus. More difficult, yes, but then the democracy lasts, and that is the reward.
If Iraqi Shiite, Sunni, and Kurds can cooperate in their new government to make democratic decisions, why can't Republicans and Democrats in the Senate? After all, there are only 100 of us, and we are not shooting at each other--not literally, anyway. If the Iraqi law and assembly can protect minority rights and participation, so can our rules and the Senate. That has been the defining characteristic of the Senate and one of the principal ways in which it was designed from the beginning of this country to be distinct from the other body.
Recently, the Senate passed, as I said, an emergency supplemental appropriations bill to fund the war efforts in Iraq and Afghanistan. The justification for spending billions of dollars of American taxpayers' money in Iraq is we are trying to establish democracies. How ironic that at the same time we are undertaking these efforts--not just of money but of the lives of our wonderful men and women, a great cost to so many American families--the Republican majority in the Senate is seeking to undermine the protection of minority rights and checks and balances. Our men and women are dying, and while our Treasury is spending the money to bring checks and balances in Iraq, we are getting rid of it here.
Let me mention some of the recent statements of the President as he discussed democracy in other countries. When he came back, I praised him. Earlier this month, he met with President Putin of Russia. At his press conference from Latvia, President Bush noted:
The promise of democracy is fulfilled by minority rights, and equal justice under the rule of law, and an inclusive society in which every person belongs.
President Bush was right when he said the promise of democracy requires the protection of minority rights. It requires that in Latvia; all the more important, it requires it in the world's oldest existing democracy.
On that same recent, foreign trip the President correctly observed: ``A true democracy is one that says minorities are important and that the will of the majority can't trample the minority.'' That which is necessary to constitute a true democracy in Eastern Europe is needed, as well, here in the cradle of democracy.
Again, earlier this year in another press conference with his good friend, President Putin, the President correctly observed--and I praised him for this:
Democracies always reflect a country's customs and culture, and I know that. But democracies have certain things in common: They have a rule of law and protection of minorities, a free press and a viable political opposition.
The President was right when he spoke in Eastern Europe, but that which is necessary to constitute a true democracy in Eastern Europe is needed as well here in the cradle of democracy.
I agree with all of these observations. I commend the President, as I have already. I hope all Senators will read them and agree we have to uphold the rule of law and the rules of the Senate that are designed to protect the minorities as a viable political opposition. This country is never under one-party rule. This country always has checks and balances of both parties.
Others besides the President have spoken. Let me tell you what Secretary Rice said recently while overseas. She said this in Georgia:
It is not easy to build a democracy ..... It means having a strong legislative branch. It means having a strong independent judiciary ..... along with freedom of speech, freedom of worship and protection of minority rights, that's how you build a democracy.
I told Secretary Rice that I agree with her, those are the components of a democracy. But we have the same components in the United States. We need to maintain the Senate as a strong legislative branch to serve as a check on the Executive, no matter what party, Democratic or Republican, controls the Executive. We need a strong independent judiciary--not a Republican judiciary, not a Democratic judiciary, an independent judiciary--to serve as a check on the political branches. We need to protect free speech and freedom of religion, and to maintain our democracy in the United States, we have to protect minority rights.
On her way to Moscow recently, the Secretary of State stated:
[T]he centralization of State power in the presidency at the expense of countervailing institutions like the Duma or an independent judiciary is clearly very wrong.
She was speaking about how developments undercut democracy in Russia. But so, too, here in our great and wonderful country of America, democracy is undercut by the concentration of power in the Executive, removing checks and balances and undermining the independence of our judiciary. It is ironic that President Bush and Secretary of State Rice speak so eloquently--and I agree with what they have said--about the fundamental requirements of a democratic society when they meet with world leaders outside the United States, but, unfortunately, the Bush administration and the Senate Republicans are intent on employing this nuclear option to consolidate power in this Presidency in this country.
Senators ought to have enough faith in their own ability, Senators ought to have enough understanding of their independence--and the fact that each one of the 100 of us is elected independently--to be willing to stand up. We do not work for the President. We do not work for the Vice President. We represent our country and our States, and we should be independent.
They know, as all Americans know, democracy relies in the sharing of power, on checks and balances, and on an independent court system, one that protects minority rights, and on safeguarding human rights and human dignity. This nuclear option is in direct contradiction to maintain those values, those components of our democracy.
Just as Abu Ghraib and other abuses make it more difficult for our country to condemn torture and abuse when we speak to the rest of the world, this nuclear option uses a partisan effort to consolidate power in a single political power and institution and will make all the lectures we give to leaders of other countries ring hollow.
I remember when the Soviet Union broke up and it became a democratic country. A group of Russian parliamentarians came to the United States and visited the House of Representatives and the Senate. Several came to see me, and they wanted to talk about our independent judiciary. Finally one of them said: I have this question. It has really been bothering me. I have heard that in the United States people sometimes go into Federal court and sue the Government.
I said, Yes, it happens all the time.
He said, But we have also heard that sometimes the Government loses.
I said, That is right.
They said, Well, don't you fire the judge if he lets the Government lose?
I said, No, it is an independent Federal judiciary. They are independent of the executive branch. They are independent of the Senate. They are independent of the House of Representatives. They make those decisions.
This was such an eye opener to them. The rest of that afternoon, that is what we talked about.
They said, It really works, then?
I said, Yes, and if you have it work that way in Russia, you will be a much safer country.
They still haven't gotten that far. Let's hope someday they do.
Chief Justice Rehnquist is right to refer to our independent judiciary as the crown jewel of our democracy. It is a dazzling, brilliant, shining crown jewel. Judicial fairness and independence are also essential if we want to maintain our freedom. We have to stop the dangerous and irresponsible rhetoric slamming the Federal judiciary. We do not have to agree with every one of their opinions. I cannot believe that any one of 100 Senators who has followed every single Federal opinion would agree with every single one of them. I might agree with one, the distinguished Presiding Officer may disagree with the same one, or vice versa. We do not have to agree with every opinion. But let us respect their independence. Let no one say things that might bring about further threats against our judges as they endeavor to do their jobs serving justice. Let us not stand up on the floor of our Congress and speak of impeaching judges if we disagree with them. Justice Sandra Day O'Connor was right to condemn such virulent talk.
Judge Joan Lefkow of Illinois testified before the Senate Judiciary committee this week. This is a woman whose husband and mother were murdered by somebody who disagreed with her decisions. She sacrificed too much for us not to heed her words when she asked us to lower the rhetoric, lower the attacks on Federal judges. We 100, and the 435 in the other body, of all people ought to know better. We ought to be protecting them physically and institutionally. We should not take the easy rhetorical potshots that put judges in real danger when they attack the very independence of our Federal judiciary.
When the U.S. Supreme Court decided the Federal election in 2000, as a lawyer, as a Senator, I thought the 5-to-4 majority engaged in an incredibly overreaching act of judicial activism to effectively decide a Presidential election. But I went on the floor of the Senate and I went before the press and I called for Americans to respect the opinion of the Court because it was the final word. I thought the word was wrong, but I believed as Americans we must respect it.
I attended the argument, during the arguments of Bush v. Gore, with my Republican counterpart in the Senate Judiciary Committee in order to show the country that we had to get along and work together. You didn't hear Democrats saying let's impeach Justice Scalia when we wholeheartedly disagreed with his action.
Part of upholding the Constitution is upholding the independence of the third branch of Government. One political party or the other is going to control the Presidency. One party or the other will control the House of Representatives. One party or the other will control the Senate. But no political party--neither Democratic nor Republican--should control the judiciary. It has to be independent of all political parties. That was the genius of the Founders of this country. It is the genius that has protected our liberties and our rights for well over 200 years. It is the genius of this country that will continue to protect us unless we allow something to destroy it just for short-term political gain.
It would be a terrible diminution of our rights to remove the independence of the Federal judiciary. It is a diminution of our rights no matter what party we belong to, no matter what part of the country we are from. It would be a diminution of our rights that none of the armies that have marched against our country has ever been able to do. If you take away the independence of our Federal judiciary, then our whole constitutional fabric unravels.
That is what we Democrats are trying to protect. That is what we are defending. The nuclear option is a threat to the protection of the minority, the independence of our judiciary, the protection of Americans rights and our democracy. It removes checks and balances.
How can the most powerful Nation, the wealthiest Nation history has ever known, be able to maintain itself without the protection of checks and balances? How can we? And how can we represent to the rest of the world we are the example they should follow? How can we tell other countries, as they become democratic, this is what they should follow?
I know I will be speaking further. I see the distinguished Senator from North Dakota. I know he is seeking to speak. I will yield the floor.
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