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Judicial Nominations

Location: Washington, DC



Mr. BIDEN. Mr. President, I rise today to speak at some length, if time will permit me, about the same subject my friend from Washington State so eloquently addressed. My colleagues know that although when I speak, I sometimes get very passionate, I have not very often, in past years, risen to the floor for any extended period of time. I do that today because so much is at stake.

For over 200 years, the Senate has embodied the brilliance of our Founding Fathers in creating an intricate system of checks and balances among the three branches of Government. This system has served two critical purposes, both allowing the Senate to act as an independent, restraining force on the excesses of the executive branch, and protecting minority rights within the Senate itself. The Framers used this dual system of checks and balances to underscore the independent nature of the Senate and its members.

The Framers sought not to ensure simple majority rule, but to allow minority views--whether they are conservative, liberal, or moderate--to have an enduring role in the Senate in order to check the excesses of the majority. This system is now being tested in the extreme.

I believe the proposed course of action we are hearing about these days is one that has the potential to do more damage to this system than anything that has occurred since I have become a Senator.

History will judge us harshly, in my view, if we eliminate over 200 years of precedent and procedure in this body and, I might add, doing it by breaking a second rule of the Senate, and that is changing the rules of the Senate by a mere majority vote.

When examining the Senate's proper role in our system of Government generally and in the process of judicial nominations specifically, we should begin, in my view, but not end with our Founding Fathers. As any grade school student knows, our Government is one that was infused by the Framers with checks and balances.

I should have said at the outset that I owe special thanks--and I will list them--to a group of constitutional scholars and law professors in some of our great universities and law schools for editing this speech for me and for helping me write this speech because I think it may be one of the most important speeches for historical purposes that I will have given in the 32 years since I have been in the Senate.

When examining the Senate's proper role in our system of Government and in the process of judicial nominations, as I said, we have to look at what our Founders thought about when they talked about checks and balances.

The theoretical underpinning of this system can be found in Federalist 51 where the architect of our Constitution, James Madison, advanced his famous theory that the Constitution set up a system in which ``ambition must be made to counteract ambition.''

``Ambition must be made to counteract ambition.'' As Madison notes, this is because ``[The] great security against a gradual concentration of the several powers in the same department consists in giving those who administer each department the necessary constitutional means and personal motives to resist encroachments by the other.''

Our Founders made the conscious decision to set up a system of government that was different from the English parliamentary system--the system, by the way, with which they were the most familiar. The Founders reacted viscerally to the aggrandizement of power in any one branch or any person, even in a person or body elected by the majority of the citizens of this country.

Under the system the Founders created, they made sure that no longer would any one person or one body be able to run roughshod over everyone else. They wanted to allow the sovereign people--not the sovereign Government, the sovereign people--to pursue a strategy of divide and conquer and, in the process, to protect the few against the excesses of the many which they would witness in the French Revolution.

The independence of the judiciary was vital to the success of that venture. As Federalist 78 notes:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution.

Our Founders felt strongly that judges should exercise independent judgment and not be beholden to any one person or one body. John Adams, in 1776, stated:

The dignity and stability of government in all its branches, the morals of the people, and every blessing of society, depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.

Adams continues:

The judges, therefore, should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness and attention; their minds should not be distracted with jarring interests; they should not be dependent upon any one man or any body of men.

In order to ensure that judicial independence, the very independence of which Adams spoke, the Founders did not give the appointment power to any one person or body, although it is instructive for us, as we debate this issue in determining the respective authority of the Senate and the Executive, it is important to note that for much of the Constitutional Convention, the power of judicial appointment was solely--solely--vested in the hands of the legislature. For the numerous votes taken about how to resolve this issue, never did the Founders conclude that it should start with the Executive and be within the power of the Executive. James Madison, for instance, was ``not satisfied with referring the appointment to the Executive;'' instead, he was ``rather inclined to give it to the Senatorial branch'' which he envisioned as a group ``sufficiently stable and independent'' to provide ``deliberative judgments.''

It was widely agreed that the Senate ``would be composed of men nearly equal to the Executive and would, of course, have on the whole more wisdom'' than the Executive. It is very important to point out that they felt ``it would be less easy for candidates''--referring to candidates to the bench--``to intrigue with [the Senators], more than with the Executive.''

In fact, during the drafting of the Constitution, four separate attempts were made to include Presidential involvement in judicial appointments, but because of the widespread fear of Presidential power, they all failed. There continued to be proponents of Presidential involvement, however, and finally, at the eleventh hour, the appointment power was divided and shared, as a consequence of the Connecticut Compromise I will speak to in a minute, between the two institutions, the President and the Senate.

In the end, the Founders set up a system in which the President nominates and the Senate has the power to give or withhold--or withhold--its ``advice and consent.'' The role of ``advice and consent'' was not understood to be purely formal. The Framers clearly contemplated a substantive role on the part of the Senate in checking the President.

This bifurcation of roles makes a lot of sense, for how best can we ensure that an independent judiciary is beholden to no one man or no one group than by requiring two separate and wholly independent entities to sign off before a judge takes the bench?

There is a Latin proverb which translates to ``Who will guard the guardians?'' Our judges guard our rights, and our Founders were smart enough to put both the President and the Senate, acting independently, in charge of guarding our judicial guardians. Who will guard the guardians?

As a Senator, I regard this not as just a right but as a solemn duty and responsibility, one that transcends the partisan disputes of any day or any decade. The importance of multiple checks in determining who our judges would be was not lost on our Founders, even on those who were very much in favor of a strong Executive.

For example, Alexander Hamilton, probably the strongest advocate for a stronger Executive, wrote:

The possibility of rejection [by the Senate] would be a strong motive to [take] care in proposing [nominations. The President] ..... would be both ashamed and afraid to bring forward ..... candidates who had no other merit, than that ..... of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instrument of his pleasure.

Hamilton also rebutted the argument that the Senate's rejection of nominees would give it an improper influence over the President, as some here have suggested, by stating:

If by influencing the President be meant restraining him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary.

The end result of our Founders was a system in which both the President and the Senate had significant roles, a system in which the Senate was constitutionally required to exercise independent judgment, not simply to rubberstamp the President's desires.

As Senator William Maclay said:

[W]hoever attends strictly to the Constitution of the United States will readily observe that the part assigned to the Senate was an important one--no less that of being the great check, the regulator and corrector, or, if I may so speak, the balance of this government. .....The approbation of the Senate was certainly meant to guard against the mistakes of the President in his appointments to office ..... The depriving power should be the same as the appointing power.

The Founders gave us a system in which the Senate was to play a significant and substantive role in judicial nominations. They also provided us guidance on what type of legislative body they envisioned. In this new type of governance system they set up in 1789 where power would be separated and would check other power, the Founders envisioned a special unique role for the Senate that does not exist anywhere else in governance or in any parliamentary system.

There is the oft-repeated discussion between two of our most distinguished Founding Fathers, Thomas Jefferson and George Washington. Reportedly, at a breakfast that Jefferson was having with Washington upon returning from Paris, because he was not here when the Constitution was written, Jefferson was somewhat upset that there was a bicameral legislative body, that a Senate was set up. He asked Washington: Why did you do this, set up a Senate? And Washington looked at Jefferson as they were having tea and said: Why did you pour that tea into your saucer? And Jefferson responded: To cool it.

I might note parenthetically that was the purpose of a saucer originally. It was not to keep the tablecloth clean.

Jefferson responded: To cool it, and Washington then sagely stated: Even so, we pour legislation into the senatorial saucer to cool it.

The Senate was designed to play this independent and, I might emphasize, moderating--a word not heard here very often--moderating and reflective role in our Government. But what aspects of the Senate led it to become this saucer, cooling the passions of the day for the betterment of America's long-term future? First, the Founders certainly did not envision the Senate as a body of unadulterated majoritarianism. In fact, James Madison and other Founders were amply concerned about the majority's ability, as they put it, ``to oppress the minority.'' It was in this vein the Senate was set up ``first to protect the people against their rulers; secondly, to protect the people against the transient impressions into which they themselves might be led. .....The use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.''

Structurally, the Founders set up a ``different type of legislature'' by ensuring that each citizen--now here is an important point, and if anybody in this Chamber understands this, the Presiding Officer does--the Founders set up this different type of legislative body by ensuring that each citizen did not have an equal say in the functioning of the Senate--that sounds outrageous, to ensure they did not have an equal say--but that each State did have an equal say. In fact, for over a century, Senators were not originally chosen by the people, as the Presiding Officer knows, and it was not until 1913 that they were elected by the people as opposed to selected by their State legislative bodies.

Today, Mr. President, you and I do stand directly before the people of our State for election, but the Senate remains to this day a legislative body that does not reflect the simple popular majority because representation is by States.

That means someone from Maine has over 25 times as much effective voting power in this body as the Senator from California. An interesting little fact, and I do not say this to say anything other than how the system works, there are more desks on that side of the aisle. That side has 55. Does that side of the aisle realize this side of the aisle, with 45 desks, represents more Americans than they do? If we add up all the people represented by the Republican Party in the Senate, they add up to fewer people than the Democratic Party represents in the Senate. We represent the majority of the American people, but in this Chamber it is irrelevant and it should be because this was never intended in any sense to be a majoritarian institution.

This distinctive quality of the Senate was part of that Great Compromise without which we would not have a Constitution referred to as the Connecticut Compromise. Edmund Randolph, who served as the first Attorney General of the United States and would later be Secretary of State, represented Virginia at the Constitutional Convention, and in that context he argued for fully proportionate representation in the debates over the proper form of the legislative branch, but ultimately he agreed to the Connecticut Compromise. After reflection, that so seldom happens among our colleagues, myself included, he realized his first position was incorrect and he stated:

The general object was to provide a cure for the evils under which the United States labored; that in tracing these evils to their origin every man--

Referring to every man who agreed to the compromise--

had found it in the turbulence and follies of democracy; that some check therefore was to be sought against this tendency of our Governments; and that a good Senate seemed most likely to answer this purpose.

So the Founders quite intentionally designed the Senate with these distinctive features.

Specifically, article 1, section 5 of the Constitution states that each House may determine its own rules for its own proceedings. Precisely: ``Each House may determine the Rules of its Proceedings.'' The text contains no limitations or conditions. This clause plainly vests the Senate with plenary power to devise its internal rules as it sees fit, and the filibuster was just one of those procedural rules of the many rules that vest a minority within the Senate with the potential to have a final say over the Senate's business.

It was clear from the start that the Senate would be a different type of legislative body; it would be a consensus body that respects the rights of minorities, even the extreme minority power of a single Senator because that single Senator can represent a single and whole State. The way it is played out in practice was through the right of unlimited debate.

I find it fascinating, we are talking about the limitation of a right that has already limited the original right of the Founding Fathers. The fact was there was no way to cut off debate for the first decades of this Republic.

Joseph Story, famous justice and probably one of the best known arbiters of the Constitution in American history, his remark about the importance of the right of debate was ``the next great and vital privilege is the freedom of speech and debate, without which all other privileges would be comparatively unimportant, or ineffectual.'' And that goes to the very heart of what made the Senate different.

In the Senate, each individual Senator was more than a number to be counted on the way to a majority vote, something I think some of us have forgotten. Daniel Webster put it this way:

This is a Senate of equals, of men of individual honor and personal character, and of absolute independence. We know no masters, we acknowledge no dictators. This is a hall for mutual consultation and discussion; not an arena for the exhibition of champions.

Extended debate, the filibuster, was a means to reach a more modest and moderate result to achieve compromise and common ground to allow Senators, as Webster had put it, to be men--and now men and women--of absolute independence.

Until 1917, there was no method to cut off debate in the Senate, to bring any measure to a vote, legislative or nomination--none, except unanimous consent. Unanimous consent was required up until 1917 to get a vote on a judge, on a bill, on anything on the Executive Calendar. The Senate was a place where minority rights flourished completely, totally unchecked, a place for unlimited rights of debate for each and every Senator.

In part this can be understood as a recognition of our federal system of government in which we were not just a community of individuals but we were also a community of sovereign States. Through the Senate, each State, through their two Senators, had a right to extensive debate and full consideration of its views.

For much of the Senate's history, until less than 100 years ago, to close off debate required not just two-thirds of the votes, but it required all of the votes. The Senate's history is replete with examples of situations in which a committed minority flexed its ``right to debate'' muscles. In fact, there was a filibuster over the location of the Capitol of the United States in the First Congress. But what about how this tradition of allowing unlimited debate and respect for minority rights played out in the nomination context, as opposed to the legislative process?

First, the text of the Constitution makes no distinction whatsoever between nominations and legislation. Nonetheless, those who are pushing the nuclear option seem to suggest that while respect for minority rights has a long and respected tradition on the legislative side of our business, things were somehow completely different when it came to considering nominations. In fact, it is the exact opposite.

The history of the Senate shows, and I will point to it now, that previous Senates certainly did not view that to be the case. While it is my personal belief that the Senate should be more judicious in the use of the filibuster, that is not how it has always been. For example, a number of President Monroe's nominations never reached the floor by the end of his administration and were defeated by delay, in spite of his popularity and his party's control of the Senate.

Furthermore, President Adams had a number of judicial nominations blocked from getting to the floor. More than 1,300 appointments by President Taft were filibustered. President Wilson also suffered from the filibusters of his nominees.

Not only does past practice show no distinction between legislation and judicial nominations in regards to the recognition of minority rights, the formal rules of the Senate have never recognized such a distinction, except for a 30-year stretch in the Senate history, 1917 to 1949, when legislation was made subject to cloture but nominations were not. Do my colleagues hear this? All of those who think a judge is more entitled to a vote than legislation, in 1917 it was decided that absolute unlimited debate should be curtailed, and there needs to be a two-thirds vote to cut off debate in order to bring legislation to the floor.

But there was no change with regard to judicial nominees. There was a requirement of unanimous consent to get a nominee voted on. So much for the argument that the Constitution leans toward demanding a vote on nominations more than on legislation. It flies in the face of the facts, the history of America and the intent of our Framers. This fact in itself certainly undercuts the claim that there has been, by tradition, the insulating of judicial nominees from filibusters.

In both its rules and its practices, the Senate has long recognized the exercise of minority rights with respect to nominations. And it should come as no surprise that in periods where the electorate is split very evenly, as it is now, the filibustering of nominations was used extensively. For example, my good friend Senator Hatch who is on the Senate floor--as my mother would say, God love him, because she likes him so much, and I like him, too--he may remember when I was chairman of the Judiciary Committee back in the bad old days when the Democrats controlled the Senate during President Clinton's first 2 years in office, a time when the Democrats controlled both the Presidency and the Senate but nonetheless the country remained very divided, numerous filibusters resulted, even in cases not involving the judiciary.

I remind my friends, for example, that the nomination of Dr. Henry Foster for Surgeon General, Sam Brown to be ambassador to the Conference on Cooperation and Security in Europe, Janet Napolitano to be U.S. attorney in the District of Arizona, and Ricki Tigert for the Federal Deposit Insurance Corporation head, were all filibustered. We controlled the Senate, the House, the Presidency, but the Nation was nonetheless divided.

Some may counter that there should be a difference between how judicial nominees should be treated versus the treatment accorded executive branch nominees, the Cabinet, and the rest. Constitutional text, historical practice and principle all run contrary to that proposition.

On the textual point, we only have one appointments clause. It is also instructive to look at a few historical examples. In 1881, Republican President Rutherford B. Hayes nominated Stanley Matthews to the Supreme Court. A filibuster was mounted, but the Republican majority in the Senate was unable to break the filibuster, and Stanley Matthews' Supreme Court nomination failed without getting a vote.

In 1968, the filibuster to block both Justice Abe Fortas from becoming Chief Justice and Fifth Circuit Court Judge Homer Thornberry to occupy the seat that Justice Fortas was vacating was one where the Democrats controlled the Senate, and the Republicans filibustered. The leader of that successful filibuster effort against Justice Fortas was Republican Senator Robert Griffin from Michigan. In commenting on the Senate's rejection of President George Washington's nomination of John Rutledge to be Chief Justice of the Supreme Court, the Republican Senator who mounted a successful filibuster against Fortas on the floor--translated, Fortas never got a vote, even though he was a sitting Supreme Court Justice about to be elevated to Chief Justice--what did the Senator from Michigan who led that fight say about the first fight in the Senate?

That action in 1795 said to the President then in office and to future Presidents: ``Don't expect the Senate to be a rubberstamp. We have an independent coequal responsibility in the appointing process; and we intend to exercise that responsibility, as those who drafted the Constitution so clearly intended.''

There is also a very important difference between judicial and executive nominees that argued for greater Senate scrutiny of judicial nominees. It should be noted that legislation is not forever. Judicial appointments are for the life of the candidate.

Of course, no President has unlimited authority, even related to his own Cabinet. But when you look at judges, they serve for life.

An interesting fact that differentiates us from the 1800s, when these filibusters took place, and 1968, when they took place: The average time a Federal judge spends on the bench, if appointed in the last 10 years from today, has increased from 15 years to 24 years. That means that on average, every judge we vote for will be on that bench for a quarter century. Since the impeachment clause is fortunately not often used, the only opportunity the Senate has to have its say is in this process.

The nuclear option was so named because it would cause widespread bedlam and dysfunction throughout the Senate, as the minority party, my party, has pledged to render its vigorous protest. But I do not want to dwell on those immediate consequences which, I agree with my Senate Judiciary Committee chairman, would be dramatic. He said:

If we come to the nuclear option the Senate will be in turmoil and the Judiciary Committee will be in hell.

However serious the immediate consequences may be, and however much such dysfunction would make both parties look juvenile and incompetent, the more important consequence is the long-term deterioration of the Senate. Put simply, the nuclear option threatens the fundamental bulwark of the constitutional design. Specifically, the nuclear option is a double-barreled assault on this institution. First, requiring only a bare majority of Senators to confirm a judicial nominee is completely contrary to the history and intent of the Senate. The nuclear option also upsets a tradition and history that says we are not going to change the rules of the Senate by a majority vote. It breaks the rule to change the rule. If we go down this path of the nuclear option, we will be left with a much different system from what our Founders intended and from how the Senate has functioned throughout its history.

The Senate has always been a place where the structure and rules permit fast-moving partisan agendas to be slowed down; where hotheads could cool and where consensus was given a second chance, if not a third and a fourth.

While 90 percent of the business is conducted by unanimous consent in this body, those items that do involve a difference of opinion, including judicial nominations, must at least gain the consent of 60 percent of its Members in order to have that item become law. This is not a procedural quirk. It is not an accident of history. It is what differentiates the Senate from the House of Representatives and the English Parliament.

President Lyndon Johnson, the ``Master of the Senate,'' put it this way:

In this country, a majority may govern but it does not rule. The genius of our constitutional and representative government is the multitude of safeguards provided to protect minority interests.

And it is not just leaders from the Democratic Party who understand the importance of protecting minority rights. Former Senate Majority Leader Howard Baker wrote in 1993 that compromising the filibuster:

would topple one of the pillars of American Democracy: the protection of minority rights from majority rule. The Senate is the only body in the federal government where these minority rights are fully and specifically protected.

Put simply, the ``nuclear option'' would eviscerate the Senate and turn it into the House of Representatives. It is not only a bad idea, it upsets the Constitutional design and it disserves the country. No longer would the Senate be that ``different kind of legislative body'' that the Founders intended. No longer would the Senate be the ``saucer'' to cool the passions of the immediate majority.

Without the filibuster, more than 40 Senators would lack the means by which to encourage compromise in the process of appointing judges. Without the filibuster, the majority would transform this body into nothing more than a rubber stamp for every judicial nomination.

The Senate needs the threat of filibuster to force a President to appoint judges who will occupy the sensible center rather than those who cater to the whim of a temporary majority. And here is why--it is a yes or no vote; you can't amend a nomination.


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