[Congressional Record Volume 151, Number 49 (Thursday, April 21, 2005)]
[Senate]
[Pages S4049-S4052]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXTENSION OF MORNING BUSINESS
Mr. DURBIN. Madam President, I ask unanimous consent that the period
for morning business be extended until 12 noon, with 45 minutes under
the control of Senator Specter.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. SPECTER. Mr. President, I thank the floor schedulers for
reserving time for me this morning. I had hoped to be here at 11:15,
but I have been chairing an executive business meeting of the Judiciary
Committee where we voted on the nominations of Justice Owen and Justice
Brown. Not unexpectedly, it went over the planned 11:15 conclusion, but
I do appreciate the allocation of time. I asked for 45 minutes for a
presentation, which I am about to make.
Mr. SPECTER. Mr. President, I seek recognition today to address the
subject of Senators' independence and dissent. As members of political
parties,
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we owe loyalty to the party that helped get us elected and which
enables us to join together to achieve broad policy objectives.
Historically, we have found our system of Government functions best
with a two-party system. But as part of that historical perspective, we
have simultaneously seen loyalty to our Nation take precedence to
loyalty to party. At certain junctures of American history, the fate of
our system of Government has rested on the ability of Members of this
body to transcend party loyalty for the national interest. I believe
the Senate currently faces such a challenge between party line voting
on filibusters and potential voting on the constitutional, or so-called
nuclear option.
I have watched the issue on confirmation of Federal judges fester and
become exacerbated as each party has racheted up the ante beginning
with the last 2 years of President Reagan's administration when
Democrats took control of the Senate and continuing to the present day.
In 1987, upon gaining control of the Senate and the Judiciary
Committee, on which I have served since being elected in 1980, the
Democrats denied hearings to seven of President Reagan's circuit court
nominees and denied floor votes to two additional circuit court
nominees. As a result, the confirmation rate for Reagan's circuit
nominees fell from 89 percent prior to the Democratic takeover to 65
percent afterwards. While the confirmation rate decreased, the length
of time it took to confirm judges increased. From the Carter
administration through the first 6 years of the Reagan administration,
the length of the confirmation process for both district and circuit
court seats consistently hovered at approximately 50 days. For
President Reagan's final Congress, after the Democrats took control,
the number doubled to an average of 120 days for these nominees to be
confirmed.
The pattern of delay and denial continued through 4 years of
President George H.W. Bush's administration. President Bush's lower
court nominees waited, on average, 100 days to be confirmed, which was
about twice as long as had historically been the case. The Democrats
also denied committee hearings for more nominees. President Carter had
10 nominees who did not receive hearings. For President Reagan, the
number was 30. In the Bush Sr. administration, the number jumped to 58.
When we Republicans won the 1994 election and gained the Senate
majority, we exacerbated the pattern of delaying and blocking nominees.
Over the course of President Clinton's presidency, the average number
of days for the Senate to confirm judicial nominees increased even
further to 192 days for district court nominees and 262 days for
circuit court nominees. Through blue slips and holds, 70 of President
Clinton's nominees were blocked. When it became clear that the
Republican-controlled Senate would not allow the nominations to move
forward, President Clinton withdrew 12 of those nominations and chose
not to renominate 16.
During that time I urged my Republican colleagues on the Judiciary
Committee to confirm well-qualified Democratic nominees. For example, I
broke ranks with many of my colleagues on the Republican side to speak
and vote in favor of the confirmation of Marsha Berzon and Richard
Paez, both to the Ninth Circuit Court of Appeals. While many of my
Republican colleagues criticized me for voting for Berzon and Paez, I
thoroughly reviewed their records and determined that both were
qualified for the positions to which they had been nominated. While I
did not agree with Ms. Berzon and Mr. Paez on every issue, I realized
the importance of working toward solutions when the Senate is at an
impasse on a nomination.
After the 2002 elections with control of the Senate returning to
Republicans, the Democrats resorted to the filibuster on ten circuit
court nominations, which was the most extensive use of the tactic in
the Nation's history. The filibusters started with Miguel Estrada, one
of the most talented and competent appellate lawyers in the country.
The Democrats followed with filibusters against nine other circuit
court nominees. During the 108th Congress, there were 20 cloture
motions on ten nominations. All 20 failed.
To this unprecedented move, President Bush responded by making for
the first time in the Nation's history two recess appointments of
nominees who had been successfully filibustered by the Democrats. That
impasse was broken when President Bush agreed to refrain from further
recess appointments.
Against this background of bitter and angry recriminations with each
party serially trumping the other party to ``get even'' or, really, to
dominate, the Senate now faces dual threats, one called the filibuster
and the other the ``constitutional'' or ``nuclear'' option, which rival
the US/USSR confrontation of mutual assured destruction. Both
situations are accurately described by the acronym ``MAD'', which was
used for the confrontation between our Nation and the Soviet Union.
We Republicans are threatening to employ the ``constitutional'' or
``nuclear'' option to require only a majority vote to end filibusters.
The Democrats are threatening to retaliate by stopping the Senate
agenda on all matters except national security and homeland defense.
Each ascribes to the other the responsibility for ``blowing the place
up.''
The gridlock occurs at a time when we expect a U.S. Supreme Court
vacancy within the next few months. If a filibuster would leave an 8-
person court, we could expect many 4-to-4 votes since the Court now
often decides cases with 5-to-4 votes. A Supreme Court tie vote would
render the Court dysfunctional, leaving in effect the circuit court
decision with many splits among the circuits, so the rule of law would
be suspended on many major issues.
On these critical issues with these cataclysmic consequences, I urge
my colleagues on both sides of the aisle to study the issues and to
vote their consciences independent of party dictation. I have not
rendered a decision on how I would vote on the constitutional/nuclear
option, but instead have been working to break the impasse by
confirming or rejecting the previously filibustered nominees by up or
down votes.
As Chairman of the Judiciary Committee, I selected William Myers as
the first of the filibustered judges to be reported out of Committee
for Senate floor action. Two Democrats, Senator Joe Biden and Senator
Ben Nelson, had voted in the 108th Congress to end the filibuster on
Mr. Myers, and Senator Ken Salazar made a campaign promise to support
an end to the Myers filibuster, although he has since equivocated on
that commitment. Being only 2 or 3 votes shy of 60, 55 Republicans plus
presumably two or three Democrats, I thought Myers had a realistic
chance for confirmation.
With any judicial nominee, or any Senators for that matter, opponents
can pick at their record. On the totality of his record, as
demonstrated at two hearings and the Judiciary Committee Executive
session, Myers is qualified for confirmation. Beyond the issue of his
own qualifications, his conservative credentials would lend some
balance to the Ninth Circuit.
The Democrats have signaled their intent not to filibuster Thomas
Griffith or Judge Terrence Boyle which may help to diffuse the
situation. In addition, intensive efforts are being made to clear three
of President Bush's nominees for the 6th Circuit. If enough of the
President's nominees can be confirmed, we may be able to deflate the
controversy without a vote on the constitutional/nuclear option. That
is what I am trying to do in my capacity as chairman of the Judiciary
Committee.
In due course, I will have more to say about the other pending Bush
nominees; but for now, I only urge my colleagues to be independent and
to examine the nominees' records on the merits without having their
votes determined by party loyalty.
The fact is that all, or almost all, Senators want to avoid the
crisis. I have had many conversations with my Democrat colleagues about
the filibuster of judicial nominees. Many of them have told me that
they do not personally believe it is a good idea to filibuster
President Bush's judicial nominees. They believe that this
unprecedented use of the filibuster does damage to this institution and
to the prerogatives of the President. Yet despite their concerns, they
gave in to
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party loyalty and voted repeatedly to filibuster Federal judges in the
last Congress.
Likewise, there are many Republicans in this body who question the
wisdom of the constitutional or nuclear option. They recognize that
such a step would be a serious blow to the rights of the minority that
have always distinguished this body from the House of Representatives.
Knowing that the Senate is a body that depends upon collegiality and
compromise to pass even the smallest resolution, they worry that the
rule change will impair the ability of this institution to function.
The importance of independence was noted on November 3, 1774 in a
speech of historical importance to the Electors of Bristol by Edmund
Burke, a Member of the British Parliament:
``. . . his (the legislators) unbiased opinion, his mature
judgment, his enlightened conscience, he ought not to
sacrifice to you, to any man, or to any set of men living.
Your representative owes you, not his industry only, but his
judgment; and he betrays, instead of serving you, if he
sacrifices it to your opinion.''
President John F. Kennedy, while a member of this body, wrote
Profiles in Courage which cities the roles of courageous Senators who
chose the national good over party loyalty. He summed it up on one of
his famous quotations: ``Sometimes party loyalty asks too much.''
As President Kennedy wrote in the introduction to his book:
Of course, both major parties today seek to serve the
national interest. They would do so in order to obtain the
broadest base of support, if for no nobler reason. But when
party and officeholder differ as to how the national interest
is to be served, we must place first the responsibility we
owe not to our party or even to our constituents but to our
individual consciences.
Kennedy further noted, in words which ring as true today as they did
decades ago:
Today the challenge of political courage looms larger than
ever before. For our everyday life is becoming so saturated
with the tremendous power of mass communications that any
unpopular or unorthodox course arouses a storm of protests
such as John Quincy Adams--under attack in 1807--could never
have envisioned. Our political life is becoming so expensive,
so mechanized and so dominated by professional politicians
and public relations men that the idealist who dreams of
independent statesmanship is rudely awakened by the
necessities of election and accomplishment.
Continuing, Kennedy wrote:
Of course, it would be much easier if we could all continue
to think in traditional political patters--of liberalism and
conservatism, as Republicans and Democrats, from the
viewpoint of North and South, management and labor, business
and consumer or some equally narrow framework. It would be
more comfortable to continue to move and vote in platoons,
joining whomever of our colleagues are equally enslaved by
some current fashion, raging prejudice or popular
movement. But today this nation cannot tolerate the luxury
of such lazy political habits. Only the strength and
progress and peaceful change that come from independent
judgment and individual ideas--and even from the
unorthodox, and the eccentric--can enable us to surpass
that foreign ideology that fears free thought more than it
fears hydrogen bombs.
Beyond his stirring words, Kennedy provides us examples. John Quincy
Adams' faced such a controversy when English ships seized American
ships and conscripted American sailors who could not ``prove'' that
they were not British subjects. Adams, a Federalist, was incensed.
Ultimately, he voted with President Jefferson and the Republicans to
enact an embargo against Great Britain. Yet most other Federalists,
including those in Adams' home state of Massachusetts, preferred to
make excuses for the British behavior and urge caution. Realizing the
political suicide he was committing, Adams remarked to a friend, ``This
measure will cost you and me our seats but private interest must not be
put in opposition to public good.'' His prediction was right. He lost
his seat.
Kennedy recounts further in ``Profiles in Courage,'' how Senator
Thomas Hart Benton, a Democrat from the slave-holding state of
Missouri, elevated his love of the Union and his belief in manifest
destiny over populist notions of secessionist Southern states. Though
Benton owned slaves and was one of the few Senators to bring them with
him to his Washington home, he refused to speak in favor of or against
slavery in emergent states such as California and New Mexico, as they
were added to the Union. Benton was known for his fiery rhetoric and
independent streak throughout his thirty years in the Senate. In a
prescient, foreboding statement, one of Benton's Missouri
contemporaries remarked, ``[a]t an early period of [Benton's]
existence, while reading Plutarch, he determined that if it should ever
become necessary for the good of his country, he would sacrifice his
own political existence.'' Senator Benton did exactly that.
Courageous Senators and this institution as a whole resisted great
political pressure to reject steps that would have threatened the
separation of judicial powers and the independence of the President.
These instances were the 1804-1805 impeachment and trial of Associate
Justice Samuel Chase and the 1868 impeachment of President Andrew
Johnson.
Republicans under Thomas Jefferson sought to have Associate Justice
Samuel Chase of the United States Supreme Court impeached in 1804. The
outcome of Justice Chase's trial would largely determine whether the
judiciary could remain independent or become a subordinate branch of
government where justices looked to the legislature for patronage and
job security.
It was Justice Chase's penchant for politicking and expressing
Federalist views from the bench that got him in trouble.
Justice Chase was tried before the Senate. Aaron Burr, the
controversial Vice President who was wanted in two states for his
dueling homicide of Alexander Hamilton, presided at the hearing. During
closing arguments, Justice Chase's counsel, Luther Martin, a Maryland
delegate to the Constitutional Convention, predicted the outcome and
noted the wisdom of the Founding Fathers in the constitutional
provision giving the Senate the power to try and decide cases of
impeachment. There were Senators in the Chase impeachment proceeding
who transcended the pressures of their party, and bravely cast votes of
``not guilty'' for Justice Chase, thereby protecting the independence
of the U.S. Judiciary.
A similar great example of Senate independence occurred in the
impeachment trial of President Andrew Johnson. President Johnson
achieved the ire of the Congress, and the public generally, when he
suspended the Secretary of War, Edwin Stanton, in violation of the 10-
year Oath-of-Office Act which passed over the President's veto. That
legislation prevented the President from removing, without the consent
of the Senate, all new officeholders whose appointments require
confirmation of that body. Public opinion ran very high against
President Johnson.
In ``Profiles in Courage,'' Senator Kennedy again described the
unfolding drama:
To their dismay, at a preliminary Republican caucus, six
courageous Republicans indicated that the evidence produced
so far was not in their opinion sufficient to convict Johnson
. . .
There were public outcries and party outcries against the deviation
from their party loyalty. The party said: ``All must stand together!''
All but one Republican Senator announced their opinions. One who would
not was Edmond G. Ross of Kansas.
The Radicals were outraged that a Senator from such an
anti-Johnson stronghold as Kansas could be doubtful. Indeed,
despite public clamor and partisan outcry against him,
Senator Ross was resolute in his unwillingness to signal his
thoughts in advance of the ultimate vote on the Articles of
Impeachment. As the impeachment trial droned on, he remained
the only unknown voter among Republican Senators.
Ross ultimately voted not guilty, in defiance of party loyalty.
Reflecting on what colored his odd voting pattern, given his disdain
for President Johnson, and his near mechanical party loyalty until that
single moment, Ross said, in historic words:
In a large sense, the independence of the executive office
as a coordinate branch of government was on trial. . . . If .
. . the President must step down . . . a disgraced man and a
political outcast . . . upon insufficient proofs and from
partisan considerations, the office of President would be
degraded, cease to be a coordinate branch of the government,
and ever after subordinated to the legislative will. It would
practically have revolutionized our splendid political fabric
into a partisan Congressional autocracy. . . . This
government had never faced so insidious a danger . . .
control by the worst element of American politics.
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Ross went on to say:
If Andrew Johnson were acquitted by a nonpartisan vote . .
. America would pass the danger point of partisan rule and
that intolerance which so often characterizes the sway of
great majorities and makes them dangerous.
Mr. President, I know morning business has expired. But in the
absence of any other Senator seeking recognition, I ask unanimous
consent to proceed for an additional 10 minutes.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. SPECTER. Mr. President, independence and dissent from the
majority view has a great tradition in our country, further exemplified
by independent, thoughtful U.S. Supreme Court Justices who formulated
important legal principles which were later embraced as the law of the
land.
In a series of powerful and famous dissents, Justice Oliver Wendell
Holmes and Justice Louis Brandeis, articulated a logic so compelling
that it became the majority view within a generation. Their examples
serve as a reminder of the importance of dissent and independence.
As a law student, I was inspired by Justice Holmes's dissent in
Abrams v. United States, when he wrote:
But when men have realized that time has upset many
fighting faiths, they may come to believe even more than they
believe the very foundations of their own conduct that the
ultimate good desired is better reached by free trade in
ideas--that the best test of truth is the power of the
thought to get itself accepted in the competition of the
market, and that truth is the only ground upon which their
wishes can be successfully carried out. That, at any rate, is
the theory of our constitution.
The theme of free-thought and independence, so artfully articulated
by Justice Holmes, is also the foundation of ``Profiles in Courage.'' I
think the essence of that theme was best summarized by then-Senator
John Kennedy, when he said:
Foreign ideology . . . fears free thought more than it
fears hydrogen bombs.
Free thought is the ultimate road to truth. Free thought is the
energy that drives the political machine that leads to good public
policy in our society. Free thought, and its companion, freedom of
speech and assembly and press, are the core attributes of democracy
that are today taking root around the world.
``Free trade in ideas'' cannot flourish when Senators are constrained
to follow a political party's edict. When the merits of individual
judicial nominees are debated and considered, without the counter-
marjoritarian filibuster preventing resolution, only then do we achieve
Holmes's ``best test of truth.'' Similarly, if the constitutional/
nuclear option is debated and considered without adherence to the party
line, we will pursue the tested process to find the truth that is ``the
only ground upon which [our] wishes can be successfully carried out.''
The value of independence, expressed in the dissenting opinions of
Holmes and Brandeis, called public attention to values which later
became the pillars of our democracy. Dissenting in Olmstead v. United
States, Justice Brandeis said:
The makers of our Constitution conferred, as against the
Government, the right to be let alone--the most comprehensive
of rights and the right most valued by civilized men. To
protect that right, every unjustifiable intrusion by the
Government upon the privacy of the individual, whatever the
means employed, must be deemed a violation of the
[Constitution].
That view of the most basic ``right to be let alone'' later became
the pillar of civil rights in our society in many contexts. It is the
foundation of today's debate on the Patriot Act where representatives
of the political right and the political left reference that value as
the barometer of the balance of governmental power to provide for our
Nation's security.
The Holmes/Brandeis independent views, expressed in Supreme Court
dissents, later became the law of the land on such important issues as
freedom of speech, prohibiting child labor, limiting working hours, and
peremptory challenges in criminal cases.
These illustrations of Senatorial and judicial independence
demonstrate the value of free thinking in deciding what is best for our
Nation's long-range interests. Central to the definition of
deliberation is thought. And we pride ourselves on being the world's
greatest deliberative body. And thought requires independence--not
response to party loyalty or any other form of dictation. The lessons
of our best days as a nation should serve as a model today for Senators
to vote their consciences on the confirmation of judges and on the
constitutional/nuclear option.
If we fail, then I fear this Senate will descend the staircase of
political gamesmanship and division. But if we succeed, our Senate will
regain its place as the world's preeminent deliberative body.
I thank the Chair and thank my colleagues and yield the floor.
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