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Public Statements

Executive Session - Part 1

Location: Washington, DC

PAGE S14683
Nov. 12, 2003
[Page S14683]

Executive Session

Mr. GRAHAM of South Carolina. Mr. President, we got to the bewitching hour. It is midnight. I am going to enjoy the evening the best I can because I have a chance to engage with two of my colleagues. I don't know how long it will last, but I really enjoy the give and take of dealing with Senator Schumer. It may come to surprise people, we actually have been working on a couple of things. We had some successes in the past and we will have some in the future. I believe with a great deal of certainty, if the shoe were on the other foot, if my party were engaged in filibustering nominees of a Democratic President, that Senator Schumer would be right out here fighting for his cause. Senator Corzine and I are getting to know each other. We will have all night to get to know each other. I have enjoyed working with him, also.

This is unusual for the Senate. I don't know if this has ever been done before. I hope it is not necessary to do again. But here we are. We are here at midnight. We are talking about whether or not there is a filibuster. Has there ever been one in the past? Who shot John? Who has been the meanest and the baddest in the past?

I guess what I am trying to focus on for the next few minutes is, What about the future? I guess that is my biggest concern. We have had all kinds of charts about how nominees were treated in the past. I have been here a year. Since I have been here, it has been like pulling teeth to get certain people on the floor for a vote. But that is OK. The process is what it is. The Constitution says what it says and we will all have our chance to express what we think is right versus what we think is wrong.

This is a big deal. It is a big deal for the Senate. There are a lot of other issues that need to be talked about. Sure, Iraq is certainly one of them, people out there in harm's way. We have 9 million people unemployed. I am the first to admit there are a lot of issues in this country that need to be talked about and addressed.

But this is one of them. One of the reasons Senator Corzine has not had too many calls is Americans are able to walk around with a pretty secure feeling that the system works. I think it is a blessing we are not nervous every day about whether or not you can go to court because we expect, if we have a problem, a legal problem, there will be a place to go to get it resolved. That is just part of our mindset. We don't worry a whole lot about that and I think that is great.

But, really, that is a luxury. There are a lot of countries in this world where there is no venue to go to settle disputes. You have to go by force or violence, or you have nobody to help you out when you are down.

We have a pretty good legal system. God knows it needs to be fixed in some respects, but the idea of a rule of law nation caring about how you appoint judges is a big deal. Imagine if you had a system where it would be almost impossible to confirm somebody who had an actual belief or opinion. What you would find is there would be a lot of vacancies and there would be a backlog of cases. The things we assumed were always there for us would no longer be there. So this really is a big deal.

If you believe in a system where the weak can hold the strong accountable, then you ought to be listening to this debate because only in a rule of law nation, a courtroom, is that possible, because in a political environment the strong always win over the weak. In a confrontation of resources, the strong always win over the weak.

But America is a little bit different. You can hold anybody accountable. You can have your day in court. Even the President of the United States can be sued by an average, everyday person, if the President of the United States is claimed to have violated their rights.

That is a big deal. That is something worth fighting for. Some people believe that is worth dying for.

Now, that is very much at risk. The way we do business with our legal system is very much at risk. Because you can put up all the charts you want to put up and you can play all the number games you want to play, but the truth is, and I challenge someone to prove me wrong, that this is the first time in the history of our Nation that nominees have come out of the Judiciary Committee with a majority vote and have been blocked by a filibuster from being voted up or down. This is unprecedented. This is dangerous. We find ourselves in political and constitutional quicksand.

Of all the conflicts we have had in this Nation, of all the fights between the Republican and Democratic Parties, of all the likes and dislikes that have happened politically, no one before has chosen to go down this road. The road our friends on the other side have chosen to go down really is the road to oblivion, in terms of trying to get good men and women to be willing to serve their country as a judge.

[Page S14713]

My friend and colleague, Senator Coleman from Minnesota, is new to the Senate like myself. The strength of this Nation is people with accents have a chance to get ahead in life. I am the first person in my family to go to college. My dad was a World War II veteran and came out of the war and started his own business and married my mom and neither one of them finished high school. But they impressed upon me and my sister the value of an education. Because of the good, sound, strong public school system of which we partook, I was able to do things I never dreamed of doing. Now I find myself in the Senate.

I am a lawyer. If you can't take a joke, you should not be a lawyer, because there is a lot of lawyer jokes out there. But I have always enjoyed the role of being an attorney because I like representing people and I like representing causes. The law to me was not just a job; it was a passion.

The ultimate ascendancy for somebody in the law is to become a judge. You will make less money but you will get authority and respect, and you will have a chance to mold the law. To many people that is much more important than money.

To me it is a shame, if you are willing to apply for the job, that you have to be treated so poorly as these four people we are talking about have been treated. But make no mistake about it, they are not four people; there are going to be at least a dozen in the next couple of weeks. They are being treated differently than anybody in the history of the Nation. They are having some very hard things said about them and all they want to do, and all they are willing to do, is to serve their country in the Federal judiciary.

Our friends on the other side have pulled out a chart, 168 to 4, with an illustration: 168 apples represented those people who were allowed to go forward. The Senator who had the chart said, I like apples, so I picked apples to represent the 168. And the four, well they were called lemons. I thought that was pretty cute at the time. But the more I thought about it, that is really not fair. If you don't like these people, if you disagree with their philosophy, if you disagree with their view of the world, you have a chance to express it. You have a chance to vote them up or vote them down. But I don't think it helps anybody to label them as lemons. We are going to have a long talk about the people they have labeled as lemons. Between now and 9 o'clock in the morning, we are going to have a long talk, eventually, about the individual nominees.

You can decide whether or not you will vote for them. You can kind of be a Senator for a day, if you would like. That would be an exercise that would be interesting for those who want to watch. If you don't like them, you can vote against them in the Senate. But I think you have an obligation to vote them up or down.

As I talk about these individuals I will tell you why I am willing to vote yes. I don't expect anyone on the other side, or my side, to vote because of my reasoning. I do expect the people at home, in South Carolina, to be able to judge me and hold me accountable for my reasoning. I will tell you, with a deep sense of pride, that I think the four people who have been called lemons are very fine Americans and deserve more respect than they have gotten.

The thing I like most about serving with my colleague, Senator Coleman from Minnesota, is that his race was one of the most watched and unusual races in the Nation. It was full of triumph and tragedy. His opponent, Senator Wellstone, who I knew fairly well and certainly respected for his strong beliefs, tragically died right before the election. Senator Coleman ran against former Vice President Mondale.

The thing that impressed me most about his race, as I watched the debate, was the sincerity he had when it came time to present the reason he wanted to be a Senator for the people of Minnesota, along the lines of: I would like to go to Washington and do something. I watch you from afar and you seem to be fussing and fighting about everything. People are hurting out here and I would like to be a Senator who could go to Washington and work across the aisle and actually do something.

Tonight, at almost quarter after midnight, I would argue to the people who may be listening in Minnesota that your Senator is doing something. It is not what he envisioned. It is not what he hoped for. It is not what I hoped for. I hoped to be home right now. And we passed some legislation long overdue. But I argue the Senator from Minnesota is doing something that needs to be done; that is, standing up for his beliefs and his view of the Constitution.

I am confident that over time this exercise will be judged well in history. When there is an accounting in this period of the Senate, it will be one of the darker periods of the Senate and my hope is it will be a period that will not have lasted long. Because the future is why I am here. The future is why I and Senator Coleman ran. We have a lot of problems with Social Security and Medicare and a budget and a war to fight and many obstacles facing this country. We are dying to get on with it. We really do want to help win this war on terrorism and make the economy better and stronger and fix the retirement problem the Nation faces.

We didn't ask for this. But it came our way. It happened on our watch. I think this may be one of the most important things we will ever do as Senators.

With that, I will yield to my good friend, Senator Coleman from Minnesota, and let him know in my opinion that he is doing something that is very important to the country by participating in this debate.


Mr. GRAHAM. I thank the Senator. The Senator did an excellent job of trying to put into perspective what we are trying to do. Senator Reid from Nevada has left. If anybody deserves a break, he does. A couple of days ago, he spent about 8 hours-plus on the floor trying to prevent some legislation from coming forward that he thought was inappropriate. He was committed to making sure that the activity of the Senate did not go forward. He used his right as a Senator to speak. I applaud him for that. I don't agree with him, but the worst thing I think I can say about Senator Reid is that sometimes I disagree with him. He is a very nice man. I have enjoyed getting to know him over the years and serving with him. I appreciate the nice things he said about me.

The point is that we disagree on this, and I don't question his motivation. I just question the judgment of what we are doing here. He described the United States problems in very graphic terms. God knows we have problems in this country, but I think it was used to try to illustrate or trivialize what we are doing tonight. If we have all these problems, why are we talking about this? I don't think it is healthy to trivialize the constitutional process of nominating judges. Whatever problems we have in this country-and there are a lot of them-none are going to be made better by hijacking the Constitution. If you expect us to just lay down and forget about it, then you have mistaken who we are. If you feel strong enough to stand up for 8 hours to stop something from happening, God bless you; if you think other people are not going to do the same, you have made a huge mistake. We are going to talk until 9 o'clock and do other things.

I announced today that if this doesn't change, I am going to ask the Supreme Court to decide whether or not the tactics of the minority have violated the Constitution, because I believe they have. If you are into numbers, I can tell you this. In the past 11 Presidents, on their judicial nominees confirmed versus those filibustered, we have had 2,372 people confirmed. We have not had one person filibustered. Now we have 4, and in just a couple weeks we are going to have a dozen. Some things were said. If nothing changes, nothing will change.

I can stand here, talk until I am blue in the face, and I have no illusions about my ability to change anybody's vote on the other side. I feel a real need to let history know, and my constituents back in South Carolina know, I think this is a lousy thing that is going on. I think this is a change for the worse, that you are taking the country down a road no other group has ever taken it in the Senate. You are doing it for political reasons you believe are just, but I think history is going to judge you poorly. I think it is going to be one of the darkest chapters in the history of the Senate. You have started something you can't stop, and most likely we will answer in kind down the road and you have taken 200 years of history and thrown it in a ditch. That is a big deal.

There are a lot of problems in this country, but you are about to create one that is very bad. You are adding to that list of problems the fact the Constitution has been changed in a way I think is illegal. Certainly it violates the traditions of the Senate. And we have to deal with it and we are going to deal with it. We are going to talk about it and we are going to try to get you to vote and we are not going to let this go.

I am going to ask the Supreme Court to look at this case that is going on before the Senate and see if the filibuster, requiring 60 votes, violates the terms of the Constitution because the Constitution requires a simple majority vote to confirm a judge sent over by the President.

Since we are going to have about 8 hours, I will save some of the time to talk about the history of the constitutional debate that went into that clause, why they picked a majority versus a two-thirds requirement that you have for ratifying treaties and impeaching the President. There is absolutely a rhyme and a reason for everything in this document.

There is no rhyme or reason for what is going on now, other than politics of the moment.

If you listen to Senator Reid, you would want to leave the country. I mean it is an assessment of the problems of the country, given to try to trivialize our objection to the Constitution being changed in an improper way. But it also is a distortion of who we are as Americans, because Americans, given all of our problems, are still the most hopeful people in the world. After listening to this rendition you would just wonder why everybody is not moving to Canada or Mexico.

We are not leaving the country. Other people are trying to get into our country. One of the biggest problems we have that he did not talk about is illegal immigration. People are literally risking their lives to get to be part of the American dream.

I would rather focus on some of the positive aspects of our country, one of them being a courtroom available to everybody and anybody, regardless of your status in life, where you can go have your day in court, and that requires a judge. Judges are picked by the President and confirmed by the Senate. The advice and consent clause for the Senate has never meant a minority telling the President what to do. It has always meant a vote on the nominee with a majority being required to put you on the bench, until now.

Let's talk a little bit about some of these people, the four names. But there are many more affected by this than just four. This is the America I like to talk about, and relish.

Justice Brown: Janice Rogers Brown is one of the four who is being filibustered. She sits on the California Supreme Court. Senator Schumer said she is out of the mainstream. She is not of the temperament and the thought process, in his opinion, that makes her a mainstream person, so she would do harm to the country if she served as a judge.

President Bush disagrees with Senator Schumer because he chose her to go on the court of appeals. Senator Schumer has an obligation under the Constitution to give his advice and give his consent and eventually vote. He doesn't have the right, in my opinion, to band together with 39 other Senators and bring us to a screeching halt. No one has ever done that before. It is called a filibuster. The number of filibusters in the last 11 Presidencies is zero up until now.

Let me tell you a little bit about Justice Brown. No. 1, she lives in California and she got 76 percent of the vote. In California you get to vote on a judge. You get to decide. You, as a citizen, get to vote to retain a judge once they become a judge. You actually get to express yourself. I am going to go out on a limb here and say no rightwing nut is going to get 76 percent of the vote in California. I am going to stand firmly behind that statement. I don't believe 76 percent of the electorate in California would vote for somebody described as Senator Schumer has described this lady. I believe 76 percent of the people in California see Judge Brown like the President sees Judge Brown. This whole argument that she is somehow out of the mainstream just does not pass the smell test because the people of California get to vote on Justice Brown.

We finally got a Republican Governor of California. Arnold is an interesting figure, Governor Schwartzenegger is a larger-than-life figure-literally. But I don't think anybody would ever accuse him of being a rightwing nut. California's political makeup is such that the person described by Senator Schumer would never, ever make it. This is just one example of the cut-and-paste job on all four of these judges, with more to follow.

[Page S14721]

Let's talk about the America she came from. Only in this country can you do what Senator Coleman and myself have done. I grew up in a pool hall restaurant-beer joint is probably a more accurate term-and made it to the Senate. I am very proud of my parents. They worked hard. They are small business people. I feel I am the luckiest person in the world.

She is the daughter of a sharecropper. She was not born in California; she was born in Greenville, AL in 1949. She attended segregated schools. I attended segregated schools up until I was in the sixth grade. I was born in 1955.

I can remember, I think it was the sixth grade-about 1967, somewhere along that period of time-showing up and for the first time in my life having African-American students attend my class. It all worked well back home where I lived. In other parts of the State it was more dramatic. In Alabama it was more dramatic. This is the State where George Wallace stood in front of the door of the University of Alabama and said, No, you are not coming here if you are an African American. It took the Alabama National Guard, federalized by President Kennedy, to open that door.

That is where she grew up. She talked about listening to her grandmother's stories about the NAACP lawyer Fred Gray, who defended Dr. Martin Luther King, Jr., and Rosa Parks, and her experiences as a child of the South, and that motivated her to become a lawyer.

Senator Schumer said she is not very good on affirmative action. Maybe her view of affirmative action is not what Senator Schumer's view is, but I would argue if she was somehow in the right ditch on affirmative action, 76 percent of the people in California wouldn't have voted for her and somebody would have informed them otherwise.

This lady's story is compelling. She moved to Sacramento when she was a teenager. She got a BA in economics from California State in Sacramento in 1974, her J.D. from the UCLA School of Law in 1977. She received an honorary doctor of law degree from Pepperdine University Law School, Catholic University of America School of Law, and Southwestern University School of law.

Prior to more than 8 years as judge in the State courts, she served from 1991 to 1994 as the legal affairs secretary to California Governor Pete Wilson, another known rightwing crazy person, where she provided legal advice on litigation, legislation, and policy matters. From 1987 to 1990 she served as deputy secretary and general counsel for the California Business, Transportation and Housing Agency, where she supervised the State banking, real estate, corporations, thrift, and insurance departments.

She was deputy attorney general in the Office of the California Attorney General. She began her career as a legislative counsel of the California legislature and more will come about Justice Brown.


Mr. GRAHAM of South Carolina. Mr. President, I thank Senator Lautenberg for his services to this country. Serving in World War II is a big deal no matter your rank. My dad was a corporal, too. If you think it is a waste of time, have your say. This is a huge deal. The Democratic leadership and the members of the Democratic Party have set in motion something I don't know how to stop. I had a chart that says in the last 11 Presidencies we had 2,372 people confirmed and not one person filibustered. You decided to do something different. It bothers me as much as our response bothers you. The people being filibustered are very qualified people, in my opinion, and you certainly have your right to disagree.

I don't believe the Constitution gives the minority of the Senate the right to advise and consent. We have 214 years of history where the advice and consent clause has been the Senate speaking as a majority. What hurts the most about the filibusters, which are unprecedented and are harmful to the country, is every nominee that is being filibustered by our friends on the other side has enough votes to become a judge. Literally a minority of Senators have taken it upon themselves for the first time in the history of the country to make sure a majority of the Senate cannot vote to confirm a judge by using a rule of the Senate.

I would like the Supreme Court to hear that case because I don't know of any other way to make this go forward. Chances are the Supreme Court may very well say this is not something we decide because you are the Senate. We are the Court. These rules are your rules. They may well say that, but I feel a need to push this as far as you can to get an answer and try to move on and have a better future.

[Page S14724]

The future of the Senate when it comes to judges is going to be lousy. We have four filibusters going on with another seven or eight to come. But if we behave with each other like this, we will have hundreds before long. As time marches on, we will have a lot of people caught in this vise.

Senator Coleman from Minnesota made a great point, I thought. Justice Ginsburg would not have a prayer because she has a liberal view of the law and a lot of people on this side voted against her. But they voted and she won the day. Justice Scalia is vilified by the left. He would never have a shot. A lot of people on the Democrat side voted against him. But he won the day and he is sitting on the Court. That is the strength of the Nation. When you have someone like Ginsburg and Scalia in a room having to talk to each other trying to find a way to move forward in terms of judges, it is going to be very disappointing because good people are not going to put themselves through this.

Justice Brown will be filibustered just as sure as I am standing here. She is an African American who sits on the Supreme Court of California. She has authored more majority opinions in California than any other justice. I gave a rundown a while ago about her story coming from a sharecropper family in Greenville, AL, going all the way to the Supreme Court in California, getting 76 percent of the vote in her last election. And you have to vote on judges in California. My argument is that no one would get 76 percent of the vote in California if they were the rightwing ideologue that the other side is describing.

I am not here to convince Members that I am right. I am here to set the record straight in terms of why I believe President Bush picked a good person. If you disagree, vote against her. Don't allow the Constitution to be changed in the way you are doing because you are putting the country in constitutional and political quicksand. Members will regret it down the road. I know the country will regret it.

Now, there is politics going on here. I will put a human face on this. Justice Brown has had a pretty rough time of it in committee. She has been very successful with her career in California. She has been successful in every endeavor she has engaged in, serving in a variety of capacities to the point that people want to promote her and the three-fourths of the citizens of her State think she has done a great job. But she comes to the Senate and she runs into a buzz saw because she is conservative. Apparently that is a crime.

This is a cartoon by the Black Commentator, a paper. The first amendment allows people to talk about public figures. This is just a little bit of what it is like to be in the environment our friends on the other side have created. This cartoon has "Welcome to the Federal Bench, Ms. Clarence, I mean, Ms. Rogers Brown. You'll fit right in."

And it is a caricature of President Bush and a racial stereotype, an offensive drawing, of Miss Brown. The people in the choir are clapping, as Justice Clarence Thomas-a very distorted picture which is offensive, I think-Colin Powell, African American, Secretary of State, a great general and somebody I admire, and Condoleezza Rice, our national security adviser, another African American who I think will help us do a good job in Iraq. This has been a miserable experience for this lady. I am very sorry she has had to go through this.

Over 50 percent of the Senate will vote for her when the cloture vote comes. Pickering, Owens, Pryor, all have received over 50 votes but we cannot get to passage because the filibuster rule requires us to get 60 votes. Therein is my problem. The Constitution does not require 60 votes to confirm a judge. There are several places where two-thirds are required. The Constitution says you will advise and consent by majority vote in the Senate.

They are using a procedural device, the Democratic Party is in this case, to block a vote on what I think are well-qualified people. No one else in the history of the country has done this before, Republican or Democrat. This is the first time someone has come out of the Judiciary Committee with a majority vote who cannot receive an up-or-down vote. There are four of them with a bunch more to come.

I give no apology for wanting to try to do something about this because, as sure as we are all here tonight, there will be a Democratic President come later on and that person will make a recommendation to this body, a nomination to this body, and if we do not change the way this trend is going, it will be a miserable experience. We will get bogged down and we will never be able to move forward as the Constitution has envisioned. This has worked well for 214 years. This is not time to change it.

Senator Lautenberg was right, there is a political dynamic going on here. I am sure Republicans have been abusive in the past in terms of the way the judges have been treated. I have heard a lot about that. Like Senator Coleman, I am new to the Senate. I would rather not perpetuate that problem. I would like to be someone who solved that problem.

We have some quotes from the past that I will read quickly. Senator Leahy, the ranking member of the Judiciary Committee, said in 1998: I stated over and over again on this floor that I would refuse to put an anonymous hold on any judge-that is a way of keeping a judge coming through the committee-that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported, that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down.

Very wise advice. We are not doing that at all. I don't know why we changed but we have.

Senator Leahy, 1998: 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 will read before the night is over many statements in the past where our Democratic colleagues were absolutely against the idea of doing anything other than giving a person an up-or-down vote. That has changed in an unhealthy way.

E-mails were talked about before. Let me read an e-mail that I think says a lot. This came from Senator Corzine, the chairman of the Democratic Senatorial Campaign Committee, November 3, 2003, not very long ago, and it was sent out to raise money. I am sure we have sent e-mails and letters saying: Help us. The Democrats are destroying all of President Bush's nominations. That is the political environment we have gotten ourselves into. Like Senator Coleman, I would rather not perpetuate this. I would like to end it and move on and get it right.

Based on the prior statements of Senator Leahy and others that we will read later on, they have changed for some reason. Now they are going into the past and saying, we are doing this because you did that. Where does this end? The truth is, no one has done what they are doing now. That is just a fact.

From the e-mail:

Senate Democrats have launched an unprecedented effort.

I will stop right there. I think that is a true statement. I don't believe Senator Corzine is misleading the donor population. I think he is trying to tell them, folks, we are doing something nobody else has done before. This is unprecedented. You need to pay attention. You need to look at your Democratic Senators, pay attention to what we are doing, because we are taking a step no one has ever taken before. What is that step?

By mounting filibusters against the Bush Administration's most radical nominees, Senate Democrats have led the effort to save our courts.

This e-mail is designed, quite simply, to let people in the Democratic Party know that the Senate Democrats have done something different, something unprecedented, and they are filibustering the President's nominees because they are radical. You cannot send this e-mail out to collect money and spend 32 hours denying you are filibustering anybody. You are filibustering judges in an unprecedented way. And they are the Bush administration's nominees. The question is whether or not they are radical.

[Page S14725]

If you think they are radical, vote against them. I don't believe Justice Brown is radical. I don't think 76 percent of the people in California who have voted would have voted for her if she was radical. I think the attacks against her have been radical. But that is just my opinion.

This e-mail clearly establishes the fact that the Democratic Party has made a calculated effort in the Senate wing of the Democratic Party to do something different, to stand up against President Bush. They are blinded by the political moment. If we continue down this road, there will be more e-mails such as this on both sides of the aisle and it will be a disaster for the Constitution.

There are men and women serving in Iraq. There are people putting their lives at stake for this country. God bless them. We all did take an oath. They have their opinion and I have my opinion about what the oath means. But it will not withstand the filibustering of these nominees. It would be irresponsible on my part, given what I believe my oath is, to just let this go and make like it is no big deal because I think this is a huge deal.

I yield to the Senator from Minnesota.


Mr. GRAHAM of South Carolina. I thank the Senator for yielding. I think he did a very good job of trying to explain the best we can that this has never been done before, that this is truly a new era for the Senate. We are filibustering judges who have been reported out of the Judiciary Committee for the first time in the history of the country. That fact will never go away. It has never happened before. Abe Fortas was not a partisan filibuster. Republicans and Democrats thought the man was not qualified to be chief judge because of some ethics complaints, and the President withdrew it. But you had Republicans and Democrats banding together trying to send a message to the President that they did not think this person was promotable. They had 4 days of debate. It was not a filibuster. It wound up being a bipartisan effort to come together to send a message to the President.

There is nothing bipartisan about this other than the fact that every nominee who is being filibustered has Republican and Democratic support to sit on the bench in a majority fashion. That is the problem here, that if all of these people who are being filibustered had their day on the floor, an up-or-down vote, they would be judges and they would have Democratic votes. One of them has 55, we believe, because 55 people have voted to allow a vote on the floor. That is important.

These people would be judges, just like the two Senator Lott intervened on. The two Democrats who were being opposed by some Members of the Republican Party, Senator Lott stepped in and stopped it. He filed a cloture motion and it passed overwhelmingly to end debate, and they are sitting on the bench today. Good for him. I am glad he did it.

I want to be fair, too, to Senator Corzine. There is nothing wrong with people talking about issues before the Senate in trying to get money sent to the parties. Both parties do that. I have never suggested that Senator Corzine has done anything wrong. I am just trying to put in perspective what this debate truly is all about, because when you are out there talking to your base about what you are doing that can be a pretty good evidence of what is in your heart and what you mean to do.

Now I have the whole document. This chart is an excerpt from a November 3 fundraising e-mail sent out by Senator Corzine, the head of the Democratic Senatorial Campaign Committee. It says:

Senate Democrats have launched an unprecedented effort . . . By mounting filibusters against the Bush administration's most radical nominees, Senate Democrats have led the effort to save our courts.

I have been saying for days now that this e-mail indicates that they view this to be an unprecedented effort by Democratic colleagues and the unprecedented effort is mounting filibusters. But this dot, dot, dot, now I have the whole e-mail and I do want to be fair. I do not think it has changed a thing. Having looked at the e-mail, I think it reinforces my point.

This is what the actual paragraph says in full:

Senate Democrats have launched an unprecedented effort to protect the rights of all Americans by keeping our courts fair and impartial. By mounting filibusters . . .

I think a fair reading, a fair interpretation of the English language, is that the unprecedented effort refers to the filibusters. They are throwing in some nice language about being fair in there. Nothing has changed.

This was an e-mail sent out to try to tell Democrats that we are up here fighting Bush in an unprecedented way by filibustering his judges because we think they are radical. This e-mail is about a particular judge, and I am going to read the whole thing. This is the way it is entitled:

Senate Democrats protect our courts again. Dear Erin, Senate Democrats have stopped another judicial extremist who wants nothing more than to turn back the clock on fifty years of progress on civil liberties. Reproductive freedom, equal opportunity, and corporate accountability again.

[Page S14731]

What a lousy person that is-that is me stating.

After being defeated under a Democratic controlled Senate, controversial judicial nominee Charles Pickering was defeated again on Thursday by Democrats in the Senate.

For the first time in history, a President of the United States re-nominated a judicial nominee that the committee had already voted down but the Senate Democrats stopped the Bush Administration in its tracks.

That is true. When the Democrats had control of the Senate, Judge Pickering was voted down on a party-line vote. The President has a right to resubmit the nominee. I am very glad he did because this time he came out of committee on a party-line vote.

We just have a different view of whether or not this man is a racist, because there is no other way to interpret what this e-mail is saying about this man.


Despite the administration's desire to ignore the Constitution's rule of advice and consent, Senate Democrats are holding Republicans accountable.

Why must the Democrats continue their fight against Charles Pickering?

While in law school, Mr. Pickering wrote an article suggesting ways the State of Mississippi could better enforce its ban on interracial marriage.

As a State senator in the 1970's, Mr. Pickering worked to repeal important provisions of the Voter Rights Act.

In 1994, he went out of his way to seek a more lenient sentence for a convicted cross-burner.

They have described somebody who is not what you would want to have on the bench. There is no other way to say it other than this e-mail is directly and indirectly suggesting Charles Pickering is racially motivated. What a horrible thing to say about somebody if it is not true.

Once defeated when Democrats had a majority in the Senate, President Bush nominated Charles Pickering for a second time after the 2002 elections and now two successful filibusters launched by Senate Democrats have kept him off the bench!

The Bush Administration is devoted to using the courts to its political advantage. Time and again, this administration has nominated ultra-conservative candidates who are zealously devoted to advancing corporate interests, taking away reproductive freedom, smashing the wall of separation between church and state, and dismantling equal opportunity.

But the Administration has got a big problem: Senate Democrats. Senate Democrats have launched an unprecedented effort to protect the rights of all Americans by keeping our courts fair and impartial. By mounting filibusters against the Bush Administration's most radical nominees, Senate Democrats have led the effort to save our courts.

Help the Senate Democrats keep fighting. Support the DSCC efforts to help elect more Democrats to the Senate-and keep the proven leaders we have. Help the DSCC send a message to the Bush Administration-Senate Democrats will NOT rubber stamp extremist judicial candidates. Help us fight to maintain judicial integrity by sending more Democrats to the United States Senate in 2004.

That is the e-mail in its entirety. Now the accusations in that e-mail are strong, they are direct, and I think vicious. Judge Pickering, according to this e-mail, is someone who wanted to keep the interracial marriage statute alive when he was in law school by writing law school papers in support of this. He went out of his way in 1994 to make a sentence more lenient for a convicted cross burner.

The only thing a rational person would receive from that litany is Judge Pickering is friendly to a cross burner. If that is true, he should never have been a judge for 30 seconds. If the other things are true, it was a huge mistake to ever advance this man forward.

But here is the problem I have with believing what is in this e-mail. Number one, I have met the man. I have talked to him. I served in the House with his son, Chip, who is one of the nicest, brightest young men I have ever met. This e-mail describes him as a very intolerant, racially insensitive person. But I can tell you without a doubt from personal experience he did a great job as a father because his son is anything but racially intolerant. His son is a wonderful young man.

If that e-mail is true, then you explain to me how the American Bar Association could give him the highest rating possible, well qualified. Did they miss this racial past? Or do they condone it? How about this, maybe this is a cut-and-paste job and they didn't buy it. He graduated first in his class; 99.5 percent of the cases were affirmed or not appealed. His reversal rate is below the national average, two times lower than the average district judge in the Fifth Circuit Court of Appeals. He has never had a voting rights case appealed or reversed. He has never had a formal discrimination case reversed in 170 cases and is endorsed by the current president and 17 past presidents of the Mississippi State bar. Maybe they are all racist, too. He is endorsed by all major newspapers in Mississippi. He is endorsed by all statewide elected Democrats and the chairman of the Mississippi legislative black caucus. He was endorsed by former Democratic Governor William Winter, Bill Waller, former Democratic lieutenant governor, and the list goes on and on and on.

Other people object, but I assure my colleagues this e-mail is a distortion of this man. Here is the Judge Pickering I have come to know. In 1967 when Mississippi was red hot and racial tensions were very high in the South, particularly in Mississippi, he served as an elected county prosecutor. He was asked to testify against the Imperial Wizard of the Ku Klux Klan of Mississippi. He took the stand against the Imperial Wizard successfully but lost his job. He was not in the mainstream; he was swimming upstream.

In 1967, when schools were integrated in Mississippi-and I have told the story about integration in South Carolina-he chose to keep his children in public schools at a time when White flight was the dominant way of dealing with the problem in that part of Mississippi. You will see class photos in that era of a lot of African-American children and a smattering of White kids. Among those White families, White kids, were Judge Pickering's kids.

He chose at a time, when others did not in large numbers, to try to make Mississippi better. He has been head of the Mississippi Baptist Association. He has been on the Federal bench for a dozen years, rated well qualified by the American Bar Association.

Of all the events that have occurred in the Senate since I have been here, this one bothers me the most because southern White males are very open to the accusation that we are racially insensitive, due mostly to the way the South has conducted itself.

When I grew up, my family had a restaurant and African Americans came to get their food and to buy a beer and they had to leave because there was no mixing of the races until I was in high school. That is not something to be proud of. Judge Pickering was part of the solution.

What they are trying to cast this man as being is unfair to him; it is unfair to his family. If you believe it to be so, you can vote against him. But he is the best example of how sick the Senate has become.


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