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Judicial Nominations- Continued

Location: Washington, DC



With legislation, you can tinker around the edges and modify a bill to make it more palatable. You can't do that with a judge. You either vote for all of him or her, or none. So only by the threat of filibuster can we obtain compromise when it comes to judges.

We, as Senators, collectively need to remember that it is our institutional duty to check any Presidential attempt to take over the Judiciary. As the Congressional Research Service, the independent and non-partisan research arm of Congress, stated, the ``nuclear option'' would:

..... strengthen the executive branch's hand in the selection of federal judges.

This shouldn't be a partisan issue, but an institutional one. Will the Senate aid and abet in the erosion of its Article I power by conceding to another branch greater influence over our courts? As Senator Stennis once said to me in the face of an audacious claim by President Nixon:

Are we the President's men or the Senate's?

He resolved that in a caucus by speaking to us as only John Stennis could, saying:

I am a Senate man, not the President's man.

Too many people here forget that.

Earlier, I explained that for much of the Senate's history, a single Senator could stop legislation or a nomination dead in its tracks. More recent changes to the Senate Rules now require only 3/5 of the Senate, rather than all of its Members, to end debate. Proponents of the ``nuclear option'' argue that their proposal is simply the latest iteration of a growing trend towards majoritarianism in the Senate. God save us from that fate, if it is true.

I strongly disagree. Even a cursory review of these previous changes to the Senate Rules on unlimited debate show that these previous mechanisms to invoke cloture always respected minority rights.

The ``nuclear option'' completely eviscerates minority rights. It is not simply a change in degree but a change in kind. It is a discontinuous action that is a sea change, fundamentally restructuring what the Senate is all about.

It would change the Senate from a body that protects minority rights to one that is purely majoritarian. Thus, rather than simply being the next logical step in accommodating the Senate Rules to the demands of legislative and policy modernity, the ``nuclear option'' is a leap off the institutional precipice.

And so here we collectively stand--on the edge of the most important procedural change during my 32-year Senate career, and one of the most important ever considered in the Senate; a change that would effectively destroy the Senate's independence in providing advice and consent.

I ask unanimous consent to be able to continue for another 15 minutes.

The PRESIDNG OFFICER. Without objection, it is so ordered.

Mr. BIDEN. The ``nuclear option'' would gut the very essence and core of what the Senate is about as an institution--flying directly in the face of our Founders who deliberately rejected a parliamentary system. A current debate, over a particular set of issues, should not be permitted to destroy what history has bestowed on us.

And the stakes are much, much higher than the contemporary controversy over the judiciary. Robert Caro, the noted author on Senate history, wrote the following in a letter to the Chairman and Ranking Member of the Senate Committee on Rules and Administration:

[I]n considering any modification [to the right of extended debate in the Senate Senators should realize they are dealing not with the particular dispute of the moment, but with the fundamental character of the Senate of the United States, and with the deeper issue of the balance between majority and minority rights ....., you need only look at what happened when the Senate gradually surrendered more and more of its power over international affairs to learn the lesson that once you surrender power, you never get it back.

The fight over the nuclear option is not just about the procedure for confirming judges. It is also, fundamentally, about the integrity of the Senate. Put simply, the ``nuclear option'' changes the rules midstream. Once the Senate starts changing the rules outside of its own rules, which is what the nuclear option does, there is nothing to stop a temporary majority from doing so whenever a particular rule would pose an obstacle.

It is a little akin to us agreeing to work together on a field. I don't have to sit down and agree with you that we are going to divide up this field, but I say, OK, I will share my rights in this field with you. But here is the deal we agree to at the start. Any change in the agreements we make about how to run this field have to be by a supermajority. OK? Because that way I am giving up rights--which all the Founders did in this body, this Constitution--rights of my people, for a whole government. But if you are going to change those rules with a pure majority vote, then I would have never gotten into the deal in the first place.

I suffer from teaching constitutional law for the last 13 years, an advanced class on constitutional law at Widener University, a seminar on Saturday morning, and I teach this clause. I point out the essence of our limited constitutional government, which is so different than every other, is that it is based on the consent of the governed. The governed would never have given consent in 1789 if they knew the outfit they were giving the consent to would be able, by a simple majority, to alter their say in their governance.

The Senate is a continuing body, meaning the rules of the Senate continue from one session to the next. Specifically, rule V provides:

The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

I say to my colleague from North Carolina, on the floor, I say to my colleague from South Carolina, I say to my colleague from Utah: If you vote for this ``nuclear option'' you are about to break faith with the American people and the sacred commitment that was made on how to change the rules.

Senate rule XXII allows only a rule change with two-thirds votes. The ``continuing body'' system is unlike many other legislative bodies and is part of what makes the Senate different and allows it to avoid being captured by the temporary passions of the moment. It makes it different from the House of Representatives, which comes up with new rules each and every Congress from scratch.

The ``nuclear option'' doesn't propose to change the judicial filibuster rule by securing a two-thirds vote, as required under the existing rules. It would change the rule with only a bare majority. In fact, as pointed out recently by a group of legal scholars:

On at least 3 separate occasions, the Senate has expressly rejected the argument that a simple majority has the authority claimed by the proponents of the [nuclear option].

One historical incident is particularly enlightening. In 1925, the Senate overwhelmingly refused to agree to then-Vice President Dawes' suggestion that the Senate adopt a proposal for amending its rules identical to the nuclear option.

On this occasion, an informal poll was taken of the Senate. It indicated over 80 percent of the Senators were opposed to such a radical step.

Let me be very clear. Never before have Senate rules been changed except by following the procedures laid out in the Senate rules. Never once in the history of the Senate.

The Congressional Research Service directly points out that there is no previous precedent for changing the Senate rules in this way.

The ``nuclear option'' uses an ultra-vires mechanism that has never before been used in the Senate--``Employment of the [nuclear option] would require the chair to overturn previous precedent.

The Senate Parliamentarian, the nonpartisan expert on the Senate's procedural rules--who is hired by the majority--has reportedly said that Republicans will have to overrule him to employ the ``nuclear option''.

Adopting the ``nuclear option'' would send a terrible message about the malleability of Senate rules. No longer would they be the framework that each party works within.

I've been in the Senate for a long time, and there are plenty of times I would have loved to change this rule or that rule to pass a bill or to confirm a nominee I felt strongly about.

But I didn't, and it was understood that the option of doing so just wasn't on the table.

You fought political battles; you fought hard; but you fought them within the strictures and requirements of the Senate rules. Despite the short-term pain, that understanding has served both parties well, and provided long-term gain.

Adopting the ``nuclear option'' would change this fundamental understanding and unbroken practice of what the Senate is all about. Senators would start thinking about changing other rules when they became ``inconvienent.'' Instead of two-thirds of the vote to change a rule, you'd now have precedent that it only takes a bare majority. Altering Senate rules to help in one political fight or another could become standard operating procedure, which, in my view, would be disastrous.

The Congressional Research Service has stated that adopting the ``nuclear option'' would set a precedent that could apply to virtually all Senate business. It would ultimately threaten both parties, not just one. The Service report states:

The presence of such a precedent might, in principle, enable a voting majority of the Senate to alter any procedure at-will by raising a point of order ..... by such means, a voting majority might subsequently impose limitations on the consideration of any item of business, prohibiting debate or amendment to any desired degree. Such a majority might even alter applicable procedures from one item of business to the next, from one form of proceeding to a contrary one, depending on immediate objects.

Just as the struggle over the ``nuclear option'' is about constitutional law and Senate history, it is also about something much more simple and fundamental--playing by the rules.

I reiterate that I think Senator Frist and his allies think they are acting on the basis of principle and commitment, but I regret to say they are also threatening to unilaterally change the rules in the middle of the game. Imagine a baseball team with a five-run lead after eight innings unilaterally declaring that the ninth inning will consist of one out per team.

Would the fans--for either side--stand for that? If there is one thing this country stands for it's fair play--not tilting the playing field in favor of one side or the other, not changing the rules unilaterally. We play by the rules, and we win or lose by the rules.

That quintessentially American trait is abandoned in the ``nuclear option.'' Republican Senators as well as Democratic ones have benefited from minority protections. Much more importantly, American citizens have benefited from the Senate's check on the excesses of the majority.

But this is not just about games, and playing them the right way. This is about a more ethereal concept--justice. In his groundbreaking philosophical treatise, A Theory of Justice, the philosopher John Rawls points to the importance of what he calls procedural justice.

Relying on this predecessors such as Immanuel Kant, Thomas Hobbes, Jean Jacques Rousseau, and John Locke, Rawls argues that, in activities as diverse as cutting a birthday cake and conducting a criminal trial, it is the procedure that makes the outcome just. An outcome is just if it has been arrived at through a fair procedure.

This principle undergirds our legal system, including criminal and civil trials. Moreover it is at the very core of our Constitution. The term ``due process of law'' appears not once but twice in our Constitution, because our predecessors recognized the vital importance of setting proper procedures--proper rules--and abiding by them.

It is also the bedrock principle we Senators rely on in accepting outcomes with which we may disagree. We know the debate was conducted fairly--the game was played by the rules. A decision to change the Senate's rules in violation of those very same rules abandons the procedural justice that legitimates everything we do.

It is interesting to ask ourselves what's different about now, why are we at this precipice where the ``nuclear option'' is actually being seriously debated and very well might be utilized? Why have we reached this point when such a seemingly radical rule change is being seriously considered by a majority of Senators? It's a good question, and I don't have an easy answer.

We have avoided such fights in the past largely because cooler heads have prevailed and accommodation was the watchword.

As Senator Sam Ervin used to say--the separation of powers should not, as President Woodrow Wilson warned, become an invitation for warfare between the two branches.

Throughout this country's history--whether during times of war or political division, for example--Presidents have sometimes extended an olive branch across the aisle. Past Presidents have in these circumstances made bipartisan appointments, selecting nominees who were consensus candidates and often members of the other party.

President Clinton had two Supreme Court nominees, and the left was pushing us as hard as the right is pushing you. What did he do? I spent several hours with him consulting on it. He picked two people on his watch who got 90 or so votes. Moderate, mainstream appointments. He did not appoint Scalias. He did not appoint Thomases. He appointed people acceptable to the Republicans because he was wise enough to know, even though he was President, we were still a divided Nation.

History provides ample examples. During the midst of the Civil War, President Lincoln selected members of the opposition Democratic party for key positions, naming Stephen Field to the Supreme Court in 1863 and Andrew Johnson as his Vice Presidential candidate in 1864.

On the brink of American entrance into WWII, President Roosevelt likewise selected members of the opposition Republican party, elevating Harlan Fiske Stone to be Chief Justice and naming Henry Stimson as Secretary of War.

Other 20th Century Presidents followed suit. In 1945, President Truman named Republican Senator Harold Burton to the Supreme Court. In 1956, President Eisenhower named Democrat William Brennan to the Supreme Court. What has happened to us? What have we become?

Does anyone not understand this Nation is divided red and blue and what it needs is a purple heart and not a red heart or a blue heart.

Lest any of my colleagues think these examples are merely culled from the dusty pages of history, let me remind them that the Senate has witnessed recent examples of consensus appointments during times of close political division. As I already mentioned, President Clinton followed this historic practice during vacancies to the Supreme Court a decade ago.

As explained by my friend, the Senior Senator from Utah, who was then the ranking member of the Senate Judiciary Committee, President Clinton consulted with him and the Republican Caucus during the High Court vacancies in 1993 and 1994. The result was President Clinton's selection of two outstanding and consensus nominees--Ruth Bader Ginsburg and Stephen Breyer--both of whom were confirmed overwhelmingly by the Senate, by votes of 97-3 and 87-9, respectively.

Indeed, the last two vacancies to the Supreme Court are text book examples of the executive branch working in cooperative and collegial fashion with its Senate counterpart to secure consensus appointments, thus averting an ideological showdown. The two constitutional partners given roles in the nomination process engaged in a consultative process that respected the rights and obligations of both branches as an institutional matter, while also producing outstanding nominees who were highly respected by both parties.

To be sure, a careful review of our Nation's history does not always provide the examples of consultation, comity, or consensus in the nomination process. Presidents of both parties have at times attempted to appoint nominees--or remove them once confirmed--over the objections of the Senate, including in some instances where the Senate was composed of a majority of the President's own party. And sometimes the Senate has had to stand strong and toe the line against imperialist Presidential leanings.

Our first President, George Washington, saw one of his nominees to the Supreme Court rejected by this Senate in 1795. The Senate voted 14 to 10 to reject the nomination of John Rutledge of South Carolina to be Chief Justice. What is historically instructive, I believe, is that while the Senate was dominated by the Federalists, President Washington's party, 13 of the 14 Senators who rejected the Rutledge nomination were Federalists.

The Senate also stood firm in the 1805 impeachment of Supreme Court Justice Samuel Chase. President Jefferson's party had majorities in both the House and the Senate, and Jefferson set his sights on the Supreme Court. Specifically, he wanted to remove Justice Chase, a committed Federalist and frequent Jefferson critic, from the Court.

Jefferson was able to convince the House to impeach Justice Chase on a party-line vote, and the President had enough members of his party in the Senate to convict him. But members of the President's own party stood up to their President; the Senate as an institution stood up against executive overreaching. Justice Chase was not convicted, and the independence of the judiciary was preserved.

The Senate again stood firm in the 1937 court-packing plan by President Franklin Roosevelt.

This particular example of Senate resolve is instructive for today's debates, so let me describe it in some detail. It was the summer of 1937 and President Roosevelt had just come off a landslide victory over Alf Landon, and he had a Congress made up of solid New Dealers. But the ``nine old men'' of the Supreme Court were thwarting his economic agenda, overturning law after law overwhelmingly passed by the Congress and from statehouses across the country.

In this environment, President Roosevelt unveiled his court-packing plan--he wanted to increase the number of Justices on the court to 15, allowing himself to nominate these additional judges. In an act of great courage, Roosevelt's own party stood up against this institutional power grab. They did not agree with the judicial activism of the Supreme Court, but they believed that Roosevelt was wrong to seek to defy established traditions as a way of stopping that activism.

In May 1937, the Senate Judiciary Committee--a committee controlled by the Democrats and supportive of his political ends--issued a stinging rebuke. They put out a report condemning Roosevelt's plan, arguing it was an effort ``to punish the justices'' and that executive branch attempts to dominate the judiciary lead inevitably to autocratic dominance, ``the very thing against which the American Colonies revolted, and to prevent which the Constitution was in every particular framed.''

Our predecessors in the Senate showed courage that day and stood up to their President as a coequal institution. And they did so not to thwart the agenda of the President, which in fact many agreed with; they did it to preserve our system's checks and balances; they did it to ensure the integrity of the system. When the Founders created a ``different kind of legislative body'' in the Senate, they envisioned a bulwark against unilateral power--it worked back then and I hope that it works now.

The noted historian Arthur Schlesinger, Jr., has argued that in a parliamentary system President Roosevelt's effort to pack the court would have succeeded. Schlesinger writes: ``The court bill couldn't have failed if we had had a parliamentary system in 1937.'' A parliamentary legislature would have gone ahead with their President, that's what they do, but the Founders envisioned a different kind of legislature, an independent institution that would think for itself. In the end, Roosevelt's plan failed because Democrats in Congress thought court-packing was dangerous, even if they would have supported the newly-constituted court's rulings. The institution acted as an institution.

In summary, then, what do the Senate's action of 1795, 1805, and 1937 share in common? I believe they are examples of this body acting at its finest, demonstrating its constitutional role as an independent check on the President, even popularly elected Presidents of the same political party.

One final note from our Senate history. Even when the Senate's rules have been changed in the past to limit extended debate, it has been done with great care, remarkable hesitancy, and by virtual consensus. Take what occurred during the Senate's two most important previous changes to the filibuster rule: the 1917 creation of cloture and the 1975 lowering of the cloture threshold.

First, let's examine 1917. On the eve of the United States' entry into WWI, with American personnel and vessels in great danger on the high seas, President Wilson asked that Congress authorize the arming of American merchant vessels. Over three-fourths of the Senate agreed with this proposal on the merits, but a tiny minority opposed it. With American lives and property at grave risk, the Senate still took over 2 months to come to the point of determining to change its rules to permit cloture.

When they did so, they did it by virtual consensus, and in a supremely bipartisan manner. A conference committee composed equally of Democrats and Republicans, each named to the committee by their party leadership, drafted and proposed the new rule. It was then adopted by an overwhelming vote of 76-3.

In 1975, I was part of a bipartisan effort to lower the threshold for cloture from two-thirds to three-fifths. Many of us were reacting against the filibustering for so many years of vital civil rights legislation. Civil rights is an issue I feel passionately about and was a strong impetus for me seeking public office in the first place. Don't get me wrong--I was not calling the shots back in 1975; I was a junior Senator having been in the chamber for only 2 years.

But I will make no bones about it--for about two weeks in 1975--I was part of a slim bipartisan majority that supported jettisoning established Senate rules and ending debate on a rules change by a simple majority.

The rule change on the table in 1975 was not to eliminate the filibuster in its entirety, which is what the current ``nuclear option'' would do for judicial nominations; rather it was to change from the then-existing two-thirds cloture requirement to three-fifths. It was a change in degree, not a fundamental restructuring of the Senate to completely do away with minority rights.

The rule change was also attempted at the beginning of the Senate session and applied across the board, as opposed to the change currently on the table, brought up mid-session concerning only a very small subset of the Senate's business. Nonetheless, my decision to support cutting off debate on a rules change by a simple majority vote was misguided.

I carefully listened to the debate in 1975 and learned much from my senior colleagues. In particular, I remember Senator Mansfield being a principled voice against the effort to break the rules to amend the rules.

Senator Mansfield stood on this floor and said the following:

[T]he fact that I can and do support [changing the cloture threshold from 2/3 to 3/5 ] does not mean that I condone or support the route taken or the methods being used to reach the objective of Senate rule 22. The present motion to invoke cloture by a simple majority, if it succeeds would alter the concept of the Senate so drastically that I cannot under any circumstances find any justification for it. The proponents of this motion would disregard the rules which have governed the Senate over the years, over the decades, simply by stating that the rules do not exist. They insist that their position is right and any means used are, therefore, proper. I cannot agree.

Senator Mansfield's eloquent defense of the Senate's institutional character and respect for its rules rings as true today as it did 30 years ago. Senator Mansfield's courage and conviction in that emotionally charged time is further evidence, I believe, of why he is one of the giants of the Senate.

In the end, cooler heads prevailed and the Senate came together in a way only the Senate can. I changed my mind; I along with my Senate colleagues. We reversed ourselves and changed the cloture rule but only by following the rules. Ultimately, over 3/4 of the voting Senators--a bipartisan group--voted to end debate. In fact, the deal that was struck called for reducing the required cloture threshold from 2/3 to 3/5 ; but it retained the higher 2/3 threshold for any future rules changes.

Now I understand that passions today are running high on both sides of the ``nuclear option'' issue, and I can relate to my current Republican colleagues. I agree with my distinguished Judiciary Committee Chairman that neither side has clean hands in the escalating judicial wars.

I also understand the frustration of my Republican colleagues--especially those who are relatively new to this Chamber--that a minority of Senators can have such power in this body.

For me, the lesson from my 1975 experience, which I believe strongly applies to the dispute today, is that the Senate ought not act rashly by changing its rules to satisfy a strong-willed majority acting in the heat of the moment.

Today, as in 1975, the solution to what some have called a potential constitutional crisis lies in the deliberate and thoughtful effort by a bipartisan majority of Senators to heed the wisdom of those who established the carefully crafted system of checks and balances protecting the rights of the minority. It's one thing to change Senate rules at the margins and in degrees, it's quite another to overturn them.

Federalist No. 1 emphasizes that Americans have a unique opportunity--to choose a form of government by ``reflection and choice'':

It has been frequently remarked that it seems to have been reserved to the people of this country ..... to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

We need to understand that this is a question posed at the time of the founding and also a question posed to us today. At the time of the founding, it was a question about whether America would be able to choose well in determining our form of government.

We know from the experience of the last 225 years that the founding generation chose well. As a question posed to citizens and to Senators of today, it is a question about whether we will be able to preserve the form of government they chose.

The Framers created the Senate as a unique legislative body designed to protect against the excesses of any temporary majority, including with respect to judicial nominations; and they left all of us the responsibility of guaranteeing an independent Federal judiciary, one price of which is that it sometimes reaches results Senators do not like.

It is up to us to preserve these precious guarantees. Our history, our American sense of fair play, and our Constitution demand it.

I would ask my colleagues who are considering supporting the ``nuclear option''--those who propose to ``jump off the precipice''--whether they believe that history will judge them favorably.

In so many instances throughout this esteemed body's past, our forefathers came together and stepped back from the cliff. In each case, the actions of those statesmen preserved and strengthened the Senate, to the betterment of the health of our constitutional republic and to all of our advantage.

Our careers in the Senate will one day end--as we are only the Senate's temporary officeholders--but the Senate itself will go on.

Will historians studying the actions taken in the spring of 2005 look upon the current Members of this Senate as statesmen who placed the institution of the United States Senate above party and politics?

Or will historians see us as politicians bending to the will of the Executive and to political exigency?

I, for one, am comfortable with the role I will play in this upcoming historic moment.

I hope all my colleagues feel the same.

Mr. President, on behalf of Senator Byrd, I ask unanimous consent to have printed in the Record a speech against the nuclear option delivered earlier this week by Senator Byrd to the Center for American Progress.

There being no objection, the material was ordered to be printed in the Record, as follows:

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