Executive Session
EXECUTIVE SESSION -- (Senate - May 20, 2005)
NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT--RESUMED
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Mr. ALEXANDER. Mr. President, the issue before us is pretty simple. It is this, shall we continue the two-century tradition of voting up or down each President's judicial nominations? That is it. That is all we are talking about.
Making your way through all the histrionics--and there have been a lot of them on both sides--that is absolutely all we are talking about. Shall we continue the two-century tradition of voting up or down, eventually, on this President's or any President's judicial nominees?
The Democrats have decided they will use the Senate rules to prevent an up-and-down vote on some of President Bush's judicial nominees by using this as a consistent tactic for the last 2 years to block a vote on nominees a majority of us want to confirm. They are using the Senate rules in a way they have never before been used. They know that. Everyone knows that. There is no disputing that. They had a meeting. They decided to do it. And they are doing it.
Now, they may have past grievances such as the practice used by both parties to allow a single Senator to block a nominee in a committee. I know all about that grievance. In 1991, the first President Bush nominated me to be the U.S. Education Secretary. I was enthusiastic about it. I had been the Governor of my State. I was President of the University of Tennessee. I came up and sold my house, moved my family up, put my kids into school, and then one Senator from Ohio put a hold on my nomination. So I sat there in the committee for about 3 months, not even knowing who it was, or knowing what the problem was.
After a while, that Senator, who happened to be a Democrat--they were in the majority then--said in a public hearing with me: Governor Alexander, we have heard some disturbing things about you, but I don't want to bring them up now, here, with the lights all around, and all the people and your family here.
I said: Please, Senator, bring them all up. I would rather have them out here.
That went on for 3 months. I didn't know what to do, so I went to see Senator Warren Rudman who most people would say is one of the most respected Members of this body over the last 30 years. I said: Senator Rudman, what can I do? A Democrat Senator has, by himself, blocked my possibility to be the Education Secretary. I moved my family up here, I sold my house, my kids are in school, what do I do? He said: Keep your mouth shut.
I said: What do you mean, keep my mouth shut? This is unjust.
He said: Let me tell you a story. In 1976, President Ford nominated me to be on the Federal Communications Commission, and the Democrat Senator from New Hampshire put a hold on my nomination.
I said: What happened?
He said: Well, I just swung there. Nobody knew what was going on. Pretty soon back in New Hampshire they were saying: What is wrong with Warren? Has he done something wrong? Did he beat his wife? Did he steal something? Why won't the Senate consider him and confirm him? After 4 or 5 months I was so embarrassed I just asked the President to withdraw my nomination.
I said: Is that the end of it?
He said: No, then I ran against the so and so who put a block on me, and I was elected to the Senate in his place.
So that is how Warren Rudman got over being blocked.
JEFF SESSIONS, our distinguished colleague from Alabama, ran into a nearly similar situation. He was rejected by the committee. He was the U.S. attorney from Mobile, Alabama and the committee would not send his nomination to the floor. They held him up in the committee.
Senator Sessions got over that. He even got himself elected to the Senate. So Senator Rudman got over it, I got over it, Senator Sessions got over it. I didn't like it, and I still don't like it. But I got over it.
There are various ways to get over whatever grievous injustices were done to the Democrats before the distinguished Senator from Texas, who is presiding, and I were elected to the Senate in 2002.
Senator Frist, the majority leader, has repeatedly offered to fix the problem I just described. He has said let all the nominees from a Democrat President or Republican President, let them eventually all come out of committee. He has said if there is not enough debate--and I respect the idea of extended debate in the Senate--let there be 100 hours of debate on every single nominee. Then Senator Frist has said, let there eventually be a vote, an up-or-down vote, as there has always been.
Now, it is not believable for my friends on the other side to suggest, as they are, that they are doing nothing new. They know they are. I will give one example.
Everyone remembers the Senate debate about Clarence Thomas. Among other things, it made Dave Barry's career when he wrote columns about the Senate hearings. Everyone remembers those hearings. Everyone remembers how passionate they were and how much information came out. There was a new saga every day. No television drama approached it. There was never more passion in recent times in a Supreme Court nomination than when the first President Bush nominated Justice Clarence Thomas.
He was nominated in July of 1991 by President Bush. This Senate completed those hearings that were on television, that we all remember, and there was a vote in October of 1991, up or down. In that case, it was up, he was confirmed 52 to 48.
I have yet to find one single person who even remembers anyone suggesting 14 years ago that the Senate should not vote on Clarence Thomas. Everyone knew that after all the histrionics, all the debates, that the greatest deliberative body in the world would eventually vote.
So we are standing on the Senate floor conjuring up our own versions of history, inventing nuclear analogies, shouting at each other while gas prices go up and illegal immigrants run across our border. The Democrats are using the rules to block the President's nomination in a way they have never used before in 200 years. So we Republicans are now threatening to change the rules to prevent the Democrats from manipulating the rules in a way that has never occurred before.
That is what this is all about.
I have a simple solution for the unnecessary pickle in which we find ourselves in this body. I offered it 2 years ago. I have offered it several times this year. This is it. I have pledged and I still pledge to give up my right to filibuster any President's nominee for the appellate courts, including the Supreme Court of the United States. If five more Republicans and six Democrats did that, there could be no filibuster and there would be no need for a rules change.
For the past 2 weeks, perhaps two dozen different Senators have flirted with variations of this formula. But they have not been successful because they have insisted on including exceptions. I hope these Senators who are still having this discussion succeed. I expect 80 percent of the Senate hopes they succeed. This oncoming train wreck is bad for the Senate, it is bad for the country, it is bad for the Democrats, and it is bad for the Republicans.
We look pretty silly lecturing Iraq on how to set up a government when we cannot agree on having an up-or-down vote on President Bush's judicial nominees. My suggestion is forget the exceptions. Twelve of us should just give up our right to filibuster, period. Let's do it. Let's get on with it. That ends the train wreck.
We have a war in Iraq. We have natural gas prices at $7--these are record levels.
We have highways to build. We have deficits to get under control. We have a health care system that needs transformation. We have judicial vacancies to fill.
I have said I will never filibuster a President's judicial nominees. I said it 2 years ago when JOHN KERRY might have been President. For me, that meant then--and it means today, and tomorrow--that if a President Kerry or a President Clinton nominates some liberal I do not like, I may talk for a long time about it, I may vote against the person, but I will insist that we eventually vote up or down, as the Senate has for two centuries.
If 11 colleagues would join me in this simple solution, then we could get down to business, then we might look once again like the world's greatest deliberative body.
I say to the Presiding Officer, when you and I came to the Senate a little over 2 years ago, we talked about what our maiden addresses would be. We still call our first major speech our ``maiden address.'' I say to the Presiding Officer, remember, we were sitting next to each other in the front row, anxiously looking forward to hearing ourselves give our maiden addresses. I wanted to make mine about putting the teaching of American history and civics back in its rightful place in our schools so our children could grow up knowing what it means to be an American.
But as I sat here listening to the debate on Miguel Estrada, I was so surprised and so disappointed in what I heard that I found myself getting up one night and making a speech on Miguel Estrada, which I had no intention of doing.
During the debate, I was listening to this story of the American dream: This young man from Honduras coming here, speaking no English, going to Columbia, Harvard Law School, being in the Solicitor General's Office. He is the kind of person who when the Presiding Officer and I were in law school, and we would hear about people like that, we would say there are just a handful of people that talented, that able. We were envious, at least I was. He is exactly the kind of person who should have been nominated. Yet we could not even get a vote.
I thought about my time as Governor, for 8 years, of Tennessee. I appointed about 50 judges, and I remember what I looked for when I made those appointments. I looked for good character. I looked for good intelligence. I looked for good temperament. I looked for a good understanding of the law and for the duties of judges. And I especially looked to see if this nominee had an aspect of courtesy toward those who might come before him or her on the bench. I appointed some Democrats. I appointed the first women appeals judges and the first African-American judges in Tennessee. I thought it was unethical and unnecessary for me to ask questions of those judges about how they might decide cases that might come before them.
I still feel the same way about the Federal judges we nominate. I am distressed that we have turned this process into an election instead of a confirmation. It has become an election about the political issues instead of a confirmation about the character and intelligence and temperament of fair-minded men and women who might be placed on the bench.
I remember when I came to this body for the first time, not as a Senator, but as a staff member to Howard Baker, later the majority leader. It was 1967. The ones worrying about protecting the minority's rights at that time were the Republicans. There were only 36 Republicans. I came back in 1977 to help Senator Baker set up his office when he was elected Republican leader, and there were only 38 Republicans. So most of us in this body understand that we may be in the minority one day. But that does not mean there should be an abuse of minority rights.
The best way I can think of to stay in the minority for any party, whether the Democratic Party or Republican Party, is to say what the Senator from New York said in December, in the Washington Post. He said that if the Republicans decide to change the rules to make sure the Senate continues the 200-year tradition of voting on the nominees the President sends to us, that it ``would make the Senate look like a banana republic ..... and cause us to shut it down in every way.''
Mr. President, shut down the Senate in every way? During a war? During illegal immigration? During a time of deficit spending, with a highway bill pending, with gas prices at record levels, with natural gas at $7? Shut the Senate down in every way?
I can promise you I know what the American people would think of that. Any group they can fix the responsibility on for shutting this body down and not doing its business will be in the minority or stay in the minority. Even now, they are beginning to shut us down. We are not allowed to hold hearings in the afternoon because of objections by the other side. The American people need to know that. It is the wrong thing to do.
I had the privilege of hearing, yesterday, when I was presiding, a very helpful speech by our leading historian in the Senate, Senator Byrd. He talked about how extended debate has always been a part of the Senate's tradition. I know that is true. I value that. I respect that. And I do not want the Senate to become like the House. I know that George Washington said, or is alleged to have said, that the Senate serves like the saucer for a cup of tea or a cup of coffee. The House heats it up, and you pour it in a saucer to cool it in the Senate. But I do not ever remember George Washington saying it ought to stay in the saucer long enough to evaporate. I think he said just to cool it.
The Constitution and our Founding Fathers have made it very clear that they always intended for Presidents' judicial nominees to be given an up-or-down vote. I have studied very carefully, and I will submit, in my full remarks to the RECORD, my understanding of those founding documents. The language of article II, section 2, in the clause immediately before the nominations clause, for example, specifically calls for two-thirds of the Senate to concur, but in the nominations clause there is no such provision. I do not believe that is an inadvertent omission.
During the drafting of the Constitution, Roger Sherman of Connecticut argued at great length for the insertion of a comma instead of a semicolon at one point to make a section on congressional powers crystal clear.
Shortly after the Constitutional Convention, Justice Joseph Story, appointed to the Supreme Court by President James Madison, wrote his Commentaries on the Constitution, and he stated explicitly:
The president is to nominate, and thereby has the sole power to select for office; but his nomination cannot confer office, unless approved by a majority of the Senate.
This was Justice Joseph Story.
In some ways, what Members of the other side are doing would gradually erode the President's power to, in the words of our Founders, send to us ``the object of his preference'' for us then to consider. I trust the President, elected by a vote of the entire nation, to find the right men and women to send up here to be considered for judge or justice and sent back to him then to be appointed. Our advice and consent is in the middle of that process.
I suppose the Founders could have allowed the Congress to appoint the justices or the judges, but they did not. Gradually, however, the Senate has inserted itself more and more prominently in that process. I am not sure that the instances I know about suggest that if we were doing it all over again, we would trust the Senate to do a better job than our Presidents, Democratic or Republican, in picking the men and women to serve on our courts.
Here is an example from my own experience. Back in the 1960s, I was a law clerk to the Honorable John Minor Wisdom of the Fifth Circuit Court of Appeals in New Orleans. Actually, I wasn't a law clerk; I was a messenger. He had already hired a Harvard law clerk, and he told me he could only pay me as a messenger, but if I would come, he would treat me as a law clerk. So I did. The reason I did it was because even at that time, 1965, Judge Wisdom was considered by my law professors at New York University Law School to be the leading civil rights judge in America and one of the finest appellate judges in America.
This is what I found when I got there. We were in the midst of school desegregation across the South. It was a time of great turmoil. Judge Wisdom, for example, ordered Mississippi to admit James Meredith to the University of Mississippi. And what was going on during that time was that the district judges across the South were basically upholding segregation and the Fifth Circuit appellate judges were overruling them and desegregating the South.
At that time, the Senate was not as intrusive in the appointment of judges as it is today because the President, President Eisenhower, only had to confer by custom with Senators of his own party in the appointment of circuit judges. Well, he didn't have any Republicans to confer with in the 1960s. All of the Senators were Democrats. They approved district judges who, in case after case after case, upheld segregation. But President Eisenhower nominated for the appellate bench Republican judges, John Minor Wisdom, Elbert Tuttle for whom Senator Bond of Missouri was law clerk, and John R. Brown of Texas. Those three judges, who would have been blocked, if the present policies of the Senate were in place, by Senators from their home States, were able to preside over the peaceful desegregation of the South.
I have seen no evidence in history that the Senate's increased involvement in the coappointment of appellate judges or justices improves the selection of those judges.
These are qualified men and women the President has sent here who deserve an up-or-down vote. I have mentioned Miguel Estrada. I have spoken about Charles Pickering, former judge, now retired, a graceful man who hasn't had a word of recrimination to say about what was done to him. He was battered for his record on civil rights when, in fact, he should have been given a medal for his record on civil rights: For testifying against the founder of the White Knights of the Ku Klux Klan, who had been called America's most violent living racist in the middle of the 1960s; for putting his children in public schools at a time when many families in Mississippi were putting their children in segregated schools. He was a leader in civil rights, as well as a good judge.
And Bill Pryor's credentials on civil rights have been questioned. He was a law clerk, not a messenger, a law clerk to Judge John Minor Wisdom, who had enormous pride in Bill Pryor, who was elected attorney general of the State of Alabama and repeatedly has shown that he separated his conservative personal views from interpreting the law. He was going right down the line in following the Supreme Court in school prayer cases, abortion cases, and reapportionment cases.
And Priscilla Owen, about whom we have been talking, graduated cum laude from Baylor Law School, justice of the Supreme Court of Texas, reelected to the Texas Supreme Court with 84 percent of the vote, has bipartisan support from other Texas Supreme Court justices. And Janice Rogers Brown, 9 years on the California Supreme Court, appointed in 1996, the first African-American woman to sit on the court, approved by 76 percent of the voters.
Let me end my remarks where I began. Make your way through all the discussion, all of the analogies to nuclear war, and the issue before us is pretty simple--shall we continue the two-century tradition of voting up or down on the President's judicial nominees? I believe we should. I have suggested a way we can remove ourselves from this pickle in which we find ourselves.
I have said, as I did 2 years ago, regardless of who is President, I will never vote to filibuster that President's judicial nominees. If five other Republicans and six other Democrats would say the same thing, we could then get on about our business of confirming or rejecting the President's nominees, of tackling the big deficits, passing the highway bill, trying to lower gas prices, spreading freedom around the world, supporting our troops in Iraq and Afghanistan and around the world, and in reestablishing ourselves, in the eyes of America and the rest of the world, as truly the world's greatest deliberative body.
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