Executive Session

EXECUTIVE SESSION

Mr. SCHUMER. Mr. President, I yield myself 15 minutes and the remaining 15 minutes to my colleague from New Jersey.

I have enjoyed these debates. I said at the very beginning these debates would be good for our side. They have proven to be. One little chart here, this chart seems to be under all of my colleagues' skin because they are debating it and coming with up with their own numbers, et cetera. But let me tell you, this one chart has won this debate. You can come up with as many others as you want, and tonight what have we debated, why 168 to 4 is not true? That is what the other side has said.

I said at the beginning of this debate this would help us. Because this one chart was equal to 30 hours of palaver. To my good friend from Utah, he is a good man. He is my friend. But do you know what he just said? Rollcall votes are a form of obstructionism. I would just like my colleagues to have recalled the words of my good friend from Utah: Rollcall votes are obstructionist.

My goodness. What are we called on to do here if not vote. And letting people know how you voted, isn't that the whole mark of democracy?

I realize my colleagues on the other side of the aisle are frustrated, and so they have had to come up with all kinds of sophistic arguments. But this one tops the cake. The fact Democrats have asked for rollcall votes on judges is a means of obstructing. Maybe we should just, when the President nominates somebody, not have a hearing and not have asked questions and not have any votes and just let the President appoint all the judges. Next we will be hearing from my colleagues on the other side of the aisle that is what the Founding Fathers really wanted.

Again, to all of those who are listening, I hope there are a few left, 168 to 4. That fact is immutable, unchangeable, irrefutable. The reason it has such resonance is because the other side fails to mention it. Whether it be our colleagues when they speak, whether it be the rightwing radio shows when they say we are obstructing all of the President's judges or most of the President's judges, whether it be the editorial pages that try to kneecap us, 168 to 4, 168 to 4, 168 to 4. Don't forget it. There is no judiciary in crisis. There is no obstructionism.

There are some judges-whether they be Black, Hispanic, women, Catholic, Jewish, Muslim, Baptist, southern, northern, eastern, western-who are so far out of the mainstream that they should not be on the bench, and we are upholding the Constitution by doing that.

Now the arguments of my good friend from Minnesota, these charts, are getting to the point of ridiculous. They are what logicians and lawyers would call "outcome determinative." We want an outcome so we put together numbers. Successful filibusters. I ask my colleagues, if a filibuster is against the Constitution, why is an unsuccessful anymore unconstitutional than a successful filibuster? Why is a filibuster of an executive branch nominee any different than a filibuster of a judicial nominee?

Do you know what the other side is saying? We are just going to take judges in green shoes and give you the numbers on those and not judges in pink shoes or purple shoes.

They are differences that don't make a difference. What we are talking about here, again very simply, is how many judges have come before this Chamber and how many have been approved. One hundred sixty-eight to four. No denying it. No refuting it. No getting around it. The truth hurts because the American people know-30 hours, I guess now it is 39 hours, you can debate this for 390 hours, 3,900 hours, 39,000 hours, and all your words are not equal to 168 to 4.

For those who watched this debate, this has been elucidating, because what the hard right and their allies tried to spread throughout America is, we were holding up all the judges, most of the judges, a judiciary in crisis, a huge number of vacancies. My colleagues, do you know what answers all of that hyperbolic falsity? One hundred sixty-eight to four.

We are going to keep that chart up. I realized when I first put the chart up, one of my colleagues objected. I understand it gets under your skin. I understand it pulls the rug out from the argument.

Now, do you want to talk about judges rejected? Do you want to talk about judges who didn't get a majority vote? Then talk about them. Here we have two charts. Sixty-three of President Clinton's judges didn't get a majority vote. It doesn't matter whether they didn't get it by filibuster or by not bringing them up for any vote. Again, that is like green shoes versus pink shoes. They are all judges.

Here are some names. Did every one of these people twist in the wind? You bet. Some longer, some shorter. Were some withdrawn by the President? Of course. Some withdrew their names themselves. My good friend from Utah, who I dearly love said: Well, some of the names were withdrawn by President Clinton. Does that mean we can erase the name of Miguel Estrada from this debate? He was withdrawn. That is not going to work. He was blocked. So were the others.

One final thing I would say, because I do want to spend about half my time now, or less than half, talking about one of the nominees. The Senator from Louisiana was correct. We are opposing judges because of their views, not their ratings by the bar association, which talks about their education and legal training, and not their sex, ethnicity, or religion.

The other side seems to think that should be a determination of who becomes a judge. Shame on the women because they won't just rubberstamp any woman. Shame on the Blacks or on the rest of us because we won't rubberstamp every Black, shame on everybody, me. They called me because I didn't agree with Miguel Estrada, but should I have let him go because he was Hispanic? That is un-American. It is not right. It is un-American. It is below the belt.

My good friend from Louisiana-I have never heard her more eloquent-had every right to be angry and upset. To say the women should be ashamed of themselves because they are not voting for another woman. What do you think the American people would think if they thought that ought to be our norm? Every Baptist should vote for every Baptist and every Catholic should vote for every Catholic and every Jew should vote for every Jew. What kind of logic is that?

Let's get back to the reality here. The reality is a handful of these judges are way out of the mainstream, at least in the opinion of a good number of us. Enough to block them. The one that I would like to talk about for the little bit of time I have left is Justice Brown.

I don't agree with her views on affirmative action, but that is not dispositive to me in this case. What is dispositive to me is that we have not seen-I have not seen, in the 18 years I have been here, a judge further out of the mainstream than Justice Brown. I want to read to you what she said in a case called San Remo Hotel v. City and County of San Francisco:

Turning a democracy into a kleptocracy does not enhance the stature of the thieves, it only diminishes the legitimacy of government.

What does she mean by that? She was against zoning laws. Do most people think zoning laws are a kleptocracy in 2003? Maybe that went on in 1900, when we could have factories built next to homes and when workers' lungs would be polluted. But no more.

Here is what else she said in a speech to the Federalist Society:

Where government moves in community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is [this is when government is around] families under siege, war in the streets, unapologetic expropriation of property, the precipitous decline of rule of law, the rapid rise of corruption, the loss of civility, and the triumph of deceit. The result [this is what government brings] is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.

Many colleagues on the other side of the aisle believe in limited government. That is legitimate. I, for one, feel in certain areas Government goes too far. But this view? That is kind of disturbing, particularly for a judge on the DC Court of Appeals, which has more to do with Government than any other court in the land, with the exception of the Supreme Court. Please, you can find conservatives, you can find people who are against affirmative action who don't express these views; but these views are circa 1850, and even then would not be supported by most Americans. We are supposed to support a judge like that? Do you know what. I would guess if you asked my 51 colleagues on the other side of the aisle to nominate someone for the DC Court of Appeals and the record of Justice Brown were brought before them, they never would have nominated her.

Why is she here today? That is the question we ask. Is this to be deliberately provocative? Is it that the President doesn't believe he should nominate African Americans who are within the mainstream? I don't think so. He has nominated a few. I don't get it. The views of Justice Brown go so beyond what there is in a consensus in America, liberals and conservatives, that it is appalling to me she would be nominated for the DC Court of Appeals. There is only one reason: The extremists on the hard right are demanding something of the President. He is doing a prescription drug bill. He is talking to the United Nations. He is not demanding Roe v. Wade be repealed at this very moment. By nominating somebody like Justice Brown, maybe he appeases them, even though he may know she will not be approved. I don't know. That is just a theory.

But I will tell you this. If Justice Brown were White, or Asian, or Hispanic, a man, or if she were Protestant, Catholic, or Jewish, or Muslim, or Hindu, I would oppose her nomination. If Justice Brown got 100 percent of the vote in California, I would oppose Justice Brown. Justice Brown does not belong on the DC Court of Appeals where over decades, over centuries, beliefs among Democrats, Republicans, liberals, conservatives, 99 percent of Americans about what Government should and could do would be totally rejected. Justice Brown will be defeated tomorrow, I hope and I believe. It will not be because of outside groups and it will not be because of any of the women not standing up for women. It will simply be because her views are so ideologically out of the mainstream that she does not belong on the DC Court of Appeals. It is that simple.

When we knock out Justice Brown, I believe the Founding Fathers will be smiling upon us. One of them might say to the other: That is why we gave the Senate some power to block the President's nominees. This is the kind of nominee who should be knocked out. This is the kind of role the Senate, as the cooling saucer, should play, and whether it be by filibuster or by not bringing her up for a vote, or by defeating her in committee, which are the various ways the Senate has to be the cooling saucer, none of them-51-49, none of them simple majority, the Senate will be fulfilling its hallowed, ancient, and continuing role as a check on abuse of power of the President.

BREAK IN TRANSCRIPT

Mr. SCHUMER. Thank you.

Mr. President, I thank my colleague from South Dakota for once again being our leader in every way. We are grateful to him, and I think I speak for every Member on this side of the aisle.

Mr. President, this debate ends as it began, with this one immutable fact: 168 to 4; 168 judges confirmed, 4 rejected.

The other side has spent 39 hours trying to come up with other signs, trying to come up with other ways. In reality, this debate has actually helped our side because this fact stands out above all others.

Are we being obstructionist when we approve 168 and reject 4? Everyone but the most extreme of Americans say absolutely not. Are we violating what the Founding Fathers wanted when they talked about advise and consent when we merely blocked 4, 2 percent of the 100 percent of the judges brought up? Every seventh grader who studies constitutional law knows that 168 to 4 is not obstructionist.

The bottom line is the other side has spent hours on sophistry, successful filibusters are wrong, but unsuccessful filibusters are OK because they engaged in filibusters on judicial candidates in 2000 and 1994 and previously. Filibusters of judges are unconstitutional, but filibusters of statutes, of laws, of bills are perfectly OK. What sophistry.

The bottom line is that the other side comes up first with the result and then tries to make the argument backward. I understand why. The small hard-right minority has a scorched earth policy in America. They have to get everything their way and then are pushing, pushing, pushing the other side. They are saying: Do something. But, frankly, because of the wisdom of the Founding Fathers, the Senate still is the cooling saucer, and there is nothing they can do.

This debate has degenerated. To try and get this to be 172 to 0, there is name-calling: anti-Hispanic, anti-Black, anti-Catholic. We know what low and cheap shots those are. We are opposing judges based on their being out of the mainstream, judges who would make law, not interpret law. I don't like judges far left or far right who do that.

Then last night we got from my good friend from Utah, whom I love, he says calling for rollcall votes was obstructionist. That is how absurd and how frustrated and how piqued the other side has been. Calling for rollcall votes on judges is obstructionist? I say to my colleagues, we on this side would have rather spent the time debating how to bring jobs back to America, how to bring health care to America, how to raise the minimum wage.

But at the end of the day, this exercise, come up in the mind of a few, has ended up benefiting us, and there is one solution,

I say to my good friend from Pennsylvania, who pleads earnestly-

The PRESIDING OFFICER. The Senator's time has expired.

Mr. SCHUMER. To stop this, and that is come talk to us, work with us in a bipartisan way, nominate judges both sides can support. Don't say my way or the highway and this will stop. But that is the only way to stop it.

Thank you, Mr. President.