Anthrax Victims Fund Fairness Act of 2003

Mr. President, this has been interesting, and I think for the public who might be watching, they may want to know what they are getting for their $100,000 to $150,000 of taxpayer's money that is being spent in this filibuster and those staff members who have lost any ability to have time for themselves and their families.

So I thought I might boil this down to its essence. Have filibusters been used before on Executive Calendar nominees, including judicial nominees to the lower courts, as well as to the

Supreme Court? Of course they have. No matter how much my friends on the other side say no, of course they have. They know that.

The Congressional Record is open for all to read, and we do not even have to go back to ancient history for this. Three years ago, there were even two simultaneous Republican filibusters on the Senate floor against Richard Paez and Marsha Berzon, two of President Clinton's nominees. In fact, here is a list of Republican filibusters of nominees. It is a pretty long list.

I do not think we have to remind our friends on the other side of the aisle about the dozens more that were blocked not through votes in the open, on the Senate floor, but through holds by anonymous Republican Senators. In fact, these were filibusters by one or more anonymous Republicans. If one or more Republicans objected to one of President Clinton's nominees, they never got a vote. They never got on the floor. They never got out of committee. One actually did get out, and then by a party line vote he was voted down. That was the African-American chief justice of the Missouri Supreme Court.

So what happened in these one-person anonymous filibusters by the Republicans? Not 4 people being held up, it was 63 of President Clinton's nominees. Sixty-three of President Clinton's nominees were blocked by the Republicans by a one-person anonymous filibuster.

So are filibusters, including judicial nominees, rare? Sure, they are. And, incidentally, these are the Clinton circuit court nominees blocked by the Republicans during 1995 to the year 2000. As we can see, it is a pretty large number: James Beatty, Rich Leonard, Jorge Rangel, Robert Raymar, Barry Goode, Alston Johnson, James Duffy, Elena Kagen, James Wynn, Kathleen McCree Lewis, Enrique Moreno, James Lyons, Allen Snyder, Kent Markus, Robert Cindrich, Stephen Orlofsky, Roger Gregory, Christine Arguello, Elizabeth Gibson, Bonnie Campbell, Andre Davis, Richard Paez, Marsha Berzon, H. Lee Sarokin, and Rosemary Barkett.

The Senate's rules are intended to protect against abuses by the majority that at any given time controls the Senate. I have been here eight times in the majority, eight times in the minority. So the majority and minority go back and forth all the time. In this case, the Senate's rules protect against abuses of power--we have a system of checks and balance--especially by a White House that is so bent on controlling all the levels of power. They even want the Senate to change their rules, rules that have governed this body for over 200 years.

Now, should filibusters be used sparingly? Of course. And they have been used sparingly. But unlike the times of the recent Republican filibusters where 63 of President Clinton's nominees were stopped, we have used this very sparingly against a President who wants to run roughshod over other safeguards built into our system of government and into the very rules and practices of the Senate and its committees.

By using it sparingly, all this talk--you know, it is almost ironic to see my Republican friends with a straight face say how terrible this is and spend $150,000 or so of the taxpayers' money to tell us how terrible this is, after they stopped, by using 1-person filibusters, 63 of President Clinton's nominees.

Let us put the chart up there, if we might. Here is what we have done. We did not stop 63, as they did. We have stopped four. We have confirmed 168, and we stopped 4. There is even a T-shirt floating around which says: We confirmed 168 of President Bush's nominees and what did we get for it? When you look at the back, it says: All I got was this lousy T-shirt.

So this year, with breathtaking arrogance and a certain disdain for the past and certainly an unwillingness to be honest about the history of the Senate, we have seen a systematic dismantling of the Judiciary Committee's own rules. One by one, Republican majorities have changed, bent, and even broken the longstanding rules and practices that are intended to protect the rights of Senators to defend the rights of their States and their constituencies. These are the very same rules they used--some would say abused--when there was a Democratic President.

Would filibusters be necessary at all if the President lived up to the Constitution's injunction that he seek not only the Senate's consent but also its advice in selecting candidates for the independent Federal judiciary? Remember, the Federal judiciary is not supposed to be an arm of the Republican Party or the Democratic Party. Of course, it is supposed to be independent. It is a real question: Is there a clear way forward without the need to prevent the confirmation of any judicial nominee? The President has the ability to stop all of this. None of this impasse would be necessary if the President actually followed advice and consent.

If the President did what other Presidents of both parties have done, where they have tried to be a uniter, not a divider, if the President, who has declared his disdain for what he calls judicial activism, had nominated people who were not judicial activists, if he had tried to unite and not divide, none of this would be happening.

Instead of working with the Senate to name mainstream nominees to our courts, he has chosen instead to try to politicize the courts. He and his aides have unabashedly declared that they are out to remake the federal judiciary in the image of ideological activism. Our courts are foundational to our system. Our independent judiciary is the envy of the entire world.

In deference to groups on the far right, he has nominated judicial activists who cannot help but raise questions about their impartiality and their capability to administer justice for all.

What we need is an independent judiciary. Time and again, Democratic Senators have acted in good faith to fill vacancies that Republicans kept open for years when there was a Democratic President. Time and again they have blocked, by one or two anonymous Republican holds, Democratic nominees of President Clinton's from going forward.

We have filled those. That is why we are able to get 168 of the President's nominees through. We have stopped four. Come on. Is this worth spending the taxpayers' money? Perhaps not. Maybe, though, they believe it is worth it to send out fundraising letters.

The public's priorities v. the Republican leadership's priorities: During this 30-hour talkathon, the Republican leadership of the Senate again is following a script laid out for it by a White House intent on bending all other branches of government to its will. This is a White House intent on establishing some sort of unitary government and intent on removing the checks and balances among our three branches of government that are a foundation of the American system. In furtherance of this script, in these rare final hours of this year's legislative session, the Republican leadership has decided to abandon work on the real priorities of the American people. They are obstructing those priorities, in favor of repetitive speeches about promoting these four controversial nominees to lifetime positions as federal judges--four people who already have good, well-paying jobs--is more important than the three million Americans who have been struggling to find any jobs at all.

The Republican leadership has already overshot the Senate's adjournment date by more than a month. We have already had to enact three continuing resolutions to keep the Federal Government operating because the appropriations bills that the Congress needs to pass have not been enacted. It is now more than five weeks after the fiscal year began and we should have completed all 13 appropriations bills, but the Republican Congress has enacted a total of only four out of 13.

The remaining annual appropriations bills include the funds that go to improve our schools. The funds that NIH uses to advance our medical knowledge in fighting disease and illness. The resources used by EPA to enforce our clean air and water laws. They include appropriations for our veterans and for law enforcement.

Yesterday evening as the Republicans gathered to accommodate the programming requests of a certain television network, the senior Senator from West Virginia was trying to get the Senate to do its work. Senator Byrd, as the ranking Democrat on the

Appropriations Committee, was searching for the Republican leader and urging the Senate to complete its work on the appropriations bill that funds services for our military veterans. He asked that the Senate continue that work so that we could finish Senate consideration of this important bill and proposed that we do so in just two hours. The Republican leadership objected. He renewed his request when the Republican leader did appear on the floor but was, again, rebuffed by Republican objection. Those few minutes may turn out to be the most telling of this entire so-called debate. Republicans chose to sacrifice the work of the Senate, the priorities of the American people and the interests of our veterans to a partisan political stunt.

In one of their many press conferences on this diversion, on November 6, the Republican leader committed to ``complete the appropriations process'' before beginning this charade. Even the junior Senator from Pennsylvania, agreed with that and said: ``The leader's right. What we're about to embark in next week, after the appropriations process has run its course, is to enter into a debate. . . .'' Well, when given the chance to honor that commitment last night, the Republican caucus chose partisan theater over the work of the Senate.

There is the unfinished business of providing a real prescription drug benefit for seniors. There is the Nation's unemployment and lack of job opportunities that confound so many American families. With millions of Americans having lost their jobs in the last three years, the Republican Senate is, instead, insisting on spending these final days of this session on a handful of highly controversial judicial nominations that divide the Senate and the American people and ignoring the needs of the almost 10 million Americans who are out of work, including those more than three million Americans who have lost their jobs since President Bush took office.

There are the corporate and Wall Street scandals that concern so many of those who have invested and placed their trust and financial security at risk in our securities markets. While we are listening to Republicans pontificate about a handful of highly controversial judicial nominees, some Republican has an anonymous hold on S. 1293, the Criminal Spam Act of 2003. This is a bipartisan bill that can do something about the worst spam abuses. Earlier this week, the Washington Times reported that spam is doing more damage to our economy than hackers or viruses. A few weeks ago the entire Senate joined in adopting a version of S. 1293 to the Burns-Wyden bill and we joined to pass that bill. Now some Republican has turned around and under cover of anonymity is holding up the bipartisan bill that can be enacted before adjournment this year that can stem the tide against the worst abuses and fraudulent conduct that is gumming up our internet economy and communications. This is the type of anonymous Republican hold that was likewise responsible for holding up more than 60 of President Clinton's qualified nominees to the federal judiciary from 1995 through 2001.

There is the need for Congress to continue the federal highway programs that build and repair our roads and highways and bridges. There is the need to perform real oversight of the U.S.A. PATRIOT Act and to provide real oversight for the war in Iraq. Just as Republicans objected to the Senate Judiciary Committee investigating the factors that led to September 11, Republicans are now objecting and preventing a full investigation by the Select Intelligence Committee of what led the Bush administration to contend that Saddam Hussein had weapons of mass destruction and was about to use them against the United States and that we had to embark earlier this year on a preemptive war.

Nor has the Senate taken any action on the misrepresentations made to us by Bush administration officials about their efforts to gut Clean Air Act enforcement. When they appeared and testified before us, they declared that their policies would not affect enforcement of the Clean Air Act and ongoing cases. Over the last two weeks we have seen how far from the truth that testimony was.

For the last three years this Administration has run roughshod over environmental protection and the Republican Senate has done nothing to stem the tide. They have catered to special interests in rolling back protections for clean water, clean air, toxic cleanups and public health. The Senate should be focusing attention on these attacks upon the environment and these rollbacks, but nothing could be farther from the agenda of the Republican Senate leadership.

Forty-two environmental rollbacks by the Bush administration that have been announced on Friday is the number the Senate should be working on. There have now been more environmental rollbacks than there are vacancies throughout the entire federal judiciary. The Bush administration's announcement that they are halting enforcement actions against industrial polluters under the New Source Review provision of the Clean Air Act flatly contradicts the assurances by Justice and EPA officials to the Senate last year. The toxic pollutants that will cause asthma and heart disease for our children and grandchildren is apparently of little interest to the Republican leadership of the Senate. That would be worthy of serious inquiry, debate and Senate action.

Last week the House passed by an overwhelming bipartisan margin the Advancing Justice through DNA Technology Act of 2003, H.R. 3214. This landmark legislation provides law enforcement with the training and equipment required to effectively, and accurately, fight crime in the 21st Century. More specifically, the bill would enact the President's DNA Initiative, which authorizes more than $1 billion over the next five years to eliminate the backlog crisis in the nation's crime labs, and to fund other DNA-related programs. It also includes the Innocence Protection Act, a death penalty reform effort I launched three years ago with Senators and Congressmen on both sides of the aisle.

The House vote was a major breakthrough in finding solutions to the flaws in our justice system. I understand that Republican Senators are now blocking action on the bill in the Senate. This bill is the result of extensive, exhaustive negotiations among Democratic and Republican leaders in the House and the Senate. It has broad support, both in the Congress and across the country and deserves the Senate's immediate attention and passage.

We have shown that the death penalty system is broken, we know that the reforms in this bill will help, and we know that every day we delay action may be another day on death row for some innocent people. These mistakes in our system of justice carry a high personal and social price. They undermine the public's confidence in our judicial system, they produce unbearable anguish for innocent people and their families and for the victims of these crimes, and they compromise public safety because for every wrongly convicted person, there is a real criminal who may still be roaming the streets. This matter is also being stalled by Senate Republican inaction.

The Senate has yet to take up the Anthrax Victims Fund Fairness Act of 2003, S. 1740, which Senator Daschle and I introduced with a number of other Senators because we are concerned that the citizens harmed by the anthrax letters addressed to Senator Daschle and to me in October 2001 are the forgotten victims of the aftermath of September 11. They, too, should have access to the Victim Compensation Fund. The Senate has yet to consider the September 11th Victim Compensation Fund Extension Act, S. 1602, which must be passed before we adjourn or hundreds of families who suffered on 9/11 will likely be left out in the cold without the compensation Congress and the American people intended to provide. Nothing will take away the pain and loss of September 11 and its aftermath for the victims but we owe them the Senate's attention before we adjourn.

New rules for Republican nominees: Rather than consider those important matters, why would the Republican leadership insist on rehashing the debate on the handful of judicial nominees on which further Senate action is unlikely? When they were considering the judicial nominees of a Democratic President in the years 1995 through 2000, they showed no concern about stranding more than 60 of President

Clinton's judicial nominations without hearings or votes. They did not demand an up or down vote on every nominee but were content to use anonymous holds to scuttle scores of qualified nominees. Indeed, they stood cavalierly by while vacancies rose from 65 in January 1995 to 110 when Democrats assumed Senate leadership in the summer of 2001. They presided over the doubling of circuit court vacancies from 16 to 33 during that time.

Indeed, the Republican leader at that time famously came to the Senate floor to defiantly declare that the Senate had confirmed too many of President Clinton's judicial nominees as far as he was concerned. That was when the Senate was considering less than half as many judicial nominees and had more than twice as many judicial vacancies as there are today. During those days the Republican leader said he only had one regret, one apology regarding his obstruction of President Clinton's judicial nominees: ``I probably moved too many already.'' Four years ago, toward the end of the third year of President Clinton's term, a year in which only 34 judges were confirmed, the Republican leader left no doubt that Republicans and the Republican leadership were unrepentant about their delays and obstruction of scores of qualified judicial nominees when he proclaimed: ``Getting more federal judges is not what I came here to do.'' That Republican leader would not schedule votes on President Clinton's judicial nominees when vacancies were much higher and growing in the summer of 2000 and, ironically, sought to use appropriations bills as an excuse. The Senator from Mississippi said: ``[S]pending bills must move first. . . . . Until we get 12 appropriations bills done, there is no way any judge, of any kind, or any stripe, will be confirmed.'' Of course, now the Republican caucus shows little interest in completing the Senate's work on appropriation bills, even though we are no longer in the summer but four months later in the year, well past the deadline and already into the next fiscal year without having even had the Senate initially consider these fundamental legislative matters. As I have noted, just last evening the Republican leadership rebuffed Democratic efforts to complete action on appropriations for our veterans, which could have been done in two hours.

In those years, the Republican chair of the Senate Judiciary Committee repeatedly argued that 67 vacancies in the federal judiciary was ``full employment'' as far as he was concerned. He wrote in USA Today in September 1997, when there were more than 100 judicial vacancies, that there was no judicial vacancy crisis and that the 742 active judges were sufficient. Over the last three years, Democrats have cooperated in confirming 168 judges nominated by this President, including 68 this year; we have reduced judicial vacancies on an expanded federal judiciary to 40; and we have 837 active judges, the most in U.S. history. We have 40 percent fewer vacancies than what Republicans used to call ``full employment'' for the federal judiciary and almost 100 more active judges than just a few years ago when Republicans were content to delay and obstruct President Clinton's nominees and argue that there was no problem.

So why do Republican partisans insist that the Senate now devote its time to rehashing the debate on some of this President's most controversial nominees to the independent federal judiciary? Is it merely coincidence that the Republican leadership has chosen to schedule these proceedings for the week of the Federalist Society's National Convention in Washington? Perhaps this is to give Republicans the opportunity to preen and posture while such an important segment of their base activists are in town. Perhaps it is to give the Republican leadership another chance to make false arguments about judicial nominations. Perhaps it is to give some a platform for baseless and McCarthyite accusations against Democratic Senators. Or perhaps it is to distract from the real concerns that affect Americans every day. Newspapers this week report that this exercise is precipitated because of a ``brewing rebellion by conservative activists.'' Reportedly partisan diehards ``are accusing the Senate GOP leaders of going too easy'' and apparently when Republicans appear on conservative radio talk shows ``they are often barraged with questions'' about why the GOP is not successfully ramming every judicial nominee through the Senate that they control. Apparently this dissatisfaction has even begun to affect Republican fundraising and, according to the Washington Post, ``a recent mailing [by a conservative group] to raise money for candidates yielded empty envelopes'' from those who had formerly contributed. Let us hope that this is not the real reason for this grandstanding. Let us hope that when something begins to affect Republican fundraising, it is elevated to the top of the agenda--the public, the responsibilities of the Senate be dashed.

Mr. President, 168 nominees have been confirmed. If the Republican leadership has staged this vote in order to try to persuade the American people that Democrats are obstructing the President's judicial nominees, they are going to have to stray far from the facts, because the facts show that the Senate has made dramatic progress on judicial vacancies when and where the Administration has been willing to work with the Senate. Indeed, last week the Senate confirmed the 168th of this President's judicial nominees 100 of them, confirmed by the previous Democratic-controlled Senate, in just 17 months. We could confirm several more if the Republican leadership would just schedule the votes. There are other nominees who were reported unanimously by the Judiciary Committee and are just waiting to be confirmed. The number of confirmations could easily total 170 or more if the Republican leadership were truly interested in filling vacancies. Of course, more progress might undercut the partisan message that some are trying to peddle. Maybe that is why for weeks at a time the Republican leadership in the Senate has repeatedly refused to schedule votes on judicial nominees who will be approved, and have chosen is choosing, instead, to focus on the handful of the President's most extreme and divisive nominees.

The truth is that in less than three years' time, the number of President Bush's judicial nominees the Senate has confirmed has exceeded the number of judicial nominees confirmed for President Reagan, the ``all time champ'' at getting Federal judges confirmed, in all 4 years of his first term in office. A handful of the most extreme and controversial nominations have been denied consent by this Senate in the proper exercise of its duties under the rules. Only four. One- hundred-sixty-eight to four. That is in stark contrast to the more than 60 judicial nominees from President Clinton who were blocked by a Republican-led Senate.

McCarthyite smears: If this show is being staged to give some a platform for repulsive smears that Democrats are opposing nominees because of their religion, Republicans will have entered a realm of demagoguery, repeating false allegations and innuendo often enough to hope that some of their mud will stick.

Before they do that again, I would refer them to what the distinguished Senator from Louisiana, Ms. Landrieu, said this morning, because if this was not almost ridiculously contrary to the facts, there is one part in this whole debate that should be troublesome to both Republican and Democratic Senators, and that is the religious McCarthyism that has crept into this debate. The distinguished predecessor of mine, Ralph Flanders of Vermont, stood up on this floor and brought a halt to a member of his own party, Senator Joseph McCarthy, because of the smears he was making, the unsubstantiated smears he was making on people. Now, some of my friends on the right and some of my friends in the Republican Party have been making this smear. They are saying if you are opposed to these people, you are anti-Catholic or anti-Christian. If it was not so hurtful it would be humorous.

I first heard this when a radio talk show said I was anti-family, anti-Catholic. On Sunday morning, they asked my press secretary about it. He said: The Senator did not hear it because he was at mass with his wife of 41 years.

We should not sink to something that we know is not so. Slanderous accusations have already been made by Republican Senators, and ads run by a group headed by the President's father's former White House counsel and

a group whose funding includes money raised by Republican Senators and even by the President's family when they falsely claimed that judicial nominees were being opposed because of their religion. These contentions are despicable and unfounded. Other Republican members of the Judiciary Committee and of the Senate have either stood mute in the face of these McCarthyite charges, or, worse, have fed the flames. Such accusations are harmful to the Senate and to the Nation and have no place in this debate or anywhere else.

Just a few weeks ago, President Bush rightly told the Prime Minister of Malaysia that his inflammatory remarks about religion were ``wrong and divisive.'' He should say the same to members of his own party. Today, Republican Senators have another chance to do what they have not yet done and what this Administration has not yet done: Disavow this campaign of division waged by those who would misuse religion, race and gender by playing wedge politics with it. I hope that the Republican leadership of the Senate will finally disavow the contention that any Senator is being motivated in any way by religious bigotry or for racial or gender-based reasons.

This week rumor is that the Republican public relations machine will be cranking overtime to try to make Democratic Senators appear anti- woman. Led by Senators Mikulski, Feinstein, Boxer, Murray, Landrieu, Lincoln, Cantwell, Clinton, and Stabenow, it is hard to see how Democrats can be subjected to such allegations with a straight face, but that is what the rumor is.

The facts are that under Democratic leadership, the Senate confirmed 100 judicial nominees, including 21 women, nominated by President Bush in just 17 months, including four to our Courts of Appeal. During the 107th Congress, President Bush nominated only 18 women to district court seats, out of 98 district court nominees (18 percent), and only 8 women to circuit courts out of 32 circuit court nominees (25 percent). This year Democrats have supported the confirmation of 12 additional women nominated to the Federal bench, including three to our Courts of Appeal. This President's nominees have included only one woman in each five judicial nominees. The 33 women judges confirmed represent 20 percent of the 168 judges confirmed.

By contrast, nearly one of every three of President Clinton's judges are women. Of course, the Republicans who controlled the Senate and the Judiciary Committee during the Clinton Administration also blocked 18 women nominated to Federal judgeships by President Clinton. Women who were blocked from getting Senate action on their judicial nominations include Kathleen McCree-Lewis, Elena Kagen, Elizabeth Gibson, Helen White, Christine Arguello, and Bonnie Campbell, all of whom were nominated to the circuit courts. These six outstanding women lawyers were not extreme or ideologues. They were outstandingly qualified women lawyers whose nominations were blocked anonymously by Republican Senators, without explanation, without a vote, without accountability.

Records of activism: On important issues to the American people--the environment, voting rights, women's rights, gay rights, Federalism, privacy rights, equal rights, civil rights and more--too many of this President's nominees have records of activism and advocacy. That is their right as American citizens, but that does not make them qualified to be judges. As a judge it would be their duty to impartially hear and weigh the evidence and to impart just and fair decisions to all who come before the court. In their hands, we entrust to the judges in our independent Federal judiciary the rights that all of us are entitled to enjoy through our birthright as Americans.

The President has said he is against what he calls ``judicial activism.'' How ironic, then, that he has chosen several of the most committed and opinionated judicial activists ever to be nominated to our courts.

The question posed by his controversial nominations is not whether they are skilled and capable advocates. The question is whether--not for a 2 year term, or a 6 year term, but for a lifetime--they would be fair and impartial judges. Could every person whose rights or whose life, liberty or livelihood were at issue before their courts, have faith in being fairly heard? The President has chosen to divide the American people and the Senate with his highly controversial nominations. If Republicans want to clean the slate and start fresh, we should do so with nominees who unite the American people, nominees who can be supported by a strong bipartisan majority in the Senate.

We are also hearing the claim by Republicans that the filibuster of a judicial nomination in unprecedented. Republicans themselves filibustered the nominations of Judge Richard Paez and Marsha Berzon as recently as 2000. They previously filibustered the nominations of Judge Rosemary Barkett and Judge H. Lee Sarokin. Of course, while in the majority, Republicans took full advantage of the secret hold and of their control of the agenda to prevent a vote on 63 nominations by not scheduling hearings and votes on them. Many of those now claiming that Senate filibusters are unprecedented participated in them and voted against cloture just a few years ago.

Indeed, as the Senate's own website notes in an articled entitled ``Filibuster Derails Supreme Court Appointment,'' the 1968 nomination of Abe Fortas to be Chief Justice was filibustered with the help of Republicans: ``Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.'' The attempt at cloture on the Fortas nomination was rejected by the Senate.

In addition, Republican Senators turned the filibuster of President Clinton's nominees and of legislation into a destructive art form. A nomination to be Surgeon General, Dr. Henry Foster, was defeated by a Republican filibuster, ambassadorial nominations were filibustered and bill and bill was filibustered as Republicans obstructed the work of the Senate and the legislative agenda. For Republicans to claim foul now, after their use of the filibuster tactic, may earn them the political equivalent of an Oscar, Tony or Grammy.

For 3 years I have asked the President and Senate Republicans to join with us to fill the vacancies on the Federal courts with qualified, fair, nonideological judges. Democrats have bent over backwards to support a record number of nominees. When the White House will work with all Senators, we have been able to identify and confirm judges quickly and by consensus. When the President has chosen to select ideological activists and try to pack the courts, we have opposed a handful of his most extreme nominees.

The Federal courts should not be an arm of the Republican Party, nor should they be an arm of the Democratic Party. The Senate should continue to honor its constitutional responsibilities to this third branch of our Federal government and to the American people whose rights are protected by our Federal courts. No President, with or without the complicity of any current majority in the Senate, can be allowed to relegate the Senate to the role of rubber stamp.

Regular order, Madam President.

Parliamentary inquiry, Mr. President: I believe there will now be another hour, 30 minutes to the Republican side of the aisle, followed by 30 minutes to the Democratic side of the aisle.

Under that agreement, I am glad to yield such time as he may consume to the distinguished senior Senator from my great State of Mississippi, Mr. Cochran.

Mr. President, I thank my distinguished colleague from Mississippi for his comments. He has

shown, once again, he is a student of the Constitution and of the law. I hope our colleagues found his speech to be informative, and I keep hoping and praying that there will be a change of heart and mind in how we deal with this issue.

Mr. President, the debate that has been taking place for nearly 24 hours is the culmination of 9 months of obstructionism by a minority of Senators who have subverted the Constitution's advice and consent provisions and undermined the very fundamental tenets of democracy.

It is an elementary principle of democratic government that the majority determines the outcome of political questions. Certainly the minority has a right to state it's case and have input into the issues. But at the end of the day, when the final decision is at hand, a majority decides the outcome.

Yet in the 108th Congress we have seen an unprecedented attack on this core principle of democracy. Instead of majority rule as our governing principle, we have the rule of the minority. Four nominees to the Courts of Appeal are supported by a clear majority of Senators. Yet a minority of Senators refuses to allow the Senate to vote on these nominations.

The Founding Fathers well recognized the dangers inherent in granting a minority a veto over the will of the majority. James Madison, in Federalist 58 pointed out that the Constitutional Convention explicitly rejected the idea that Congress be required to adopt a supermajority quorum to transact business. He warned that the ``fundamental principle of free government would be reversed,'' if we allowed a minority to overrule the majority.

Why is majority rule the ``fundamental principle of free government?'' Simply stated, Mr. President, if the will of the majority is not the prevailing principle, then it is legitimate for one person, whether a king, or autocrat, to determine the fate of political society. Our Founding Fathers rejected that idea and all of American society has rejected that concept since 1776.

Unfortunately, what we have witnessed over the past 9 months in connection with the nominations of Miguel Estrada, Priscilla Owen, William Pryor, and Charles Pickering is a hijacking of the Senate's constitutional responsibility to advise and consent on the President's nomination and to accept the idea of majority rule.

A minority of Senators have literally rewritten the Constitution to engraft a supermajority rule into the confirmation process, a requirement that completely contradicts the intent, spirit and language of the Constitution.

The Founding Fathers believed there were a few extraordinary instances where supermajorities are necessary and they spelled them out in the Constitution: Ratification of a Treaty; override of a presidential veto; conviction in a case of impeachment; passage of a constitution amendment; and expulsion of a Member.

Amendments to the Constitution have added two other supermajority requirements--one, a post-Civil War disqualification rule for serving in Congress; and another regarding a determination of whether a President is disabled.

But now a minority in the Senate has effectively rewritten the Constitution to demand a supermajority vote on some Presidential nominations. That completely contravenes the Constitution.

When the members of the Constitutional Convention considered the appointment power, they first debated placing the appointment power in the Senate. However, that idea was rejected because the members of the Convention believed the Senate was ``too numerous and too little// personally responsible, to ensure a good choice,'' according to Madison.

The convention also considered giving the President the sole authority of appointment. In an effort at compromise, Madison suggested that the power of appointment be given to the President with the Senate able to veto the choice only if two-thirds of Senators opposed the nomination. Ultimately, the Convention allowed for a simple majority vote on the President's nominations.

The Founders were so confident that the power of judicial appointment is primarily an executive function that they wrote into the Constitution a provision that allowed Congress to pass a law giving the President exclusive authority to appoint all judges below the Supreme Court. In addition, the President was granted the power to make temporary appointments when the Senate is in recess.

You can search the historical record and not find a single shred of evidence to suggest that the Framers of the Constitution ever envisioned a scenario where a minority of the Senate could cause the rejection of a Presidential nominee. But that is exactly the situation we face today.

On 7 different occasions, as many as 55 of 100 Senators voted in favor of ending debate on the nomination of Miguel Estrada. But the minority obstructing his nomination refused to allow an up or down vote and ultimately Mr. Estrada withdrew his nomination.

Fifty three Senators voted to end debate on the nomination of Priscilla Owen. But the minority refused to allow an up or down vote.

Fifty three Senators voted to end debate on the nomination of William Pryor. Again, the minority refused to allow an up or down vote.

And just 2 weeks ago, a majority of 54 Senators voted to end debate on the nomination of Charles Pickering. And once again, the minority prevented us from bringing this vote to a conclusion.

This undemocratic obstructionism threatens to destroy the integrity of this institution.

I have heard it said by some who are blocking the President's nominations, that there is nothing wrong with the confirmation process. They say we've confirmed 168 of the President's nominees; why is there a problem just because we block four nominees? 168-4 is a pretty good record, they say.

I would like to bring to the Senate's attention another statistic: The number of President Clinton's judges that were blocked by Senate filibusters. 0. No a single Clinton nominee who was brought to the floor was blocked by a filibuster.

Cloture petitions were filed on 5 of President Clinton's nominees. But every single one of those nominees was given a straight up or down vote. Every one of them. So if we are comparing records, here is the record that matters: Four of President Bush's nominations blocked by filibuster and none of President Clinton's nominees blocked by filibuster.

This is not baseball or basketball; this is the responsibility of the Senate to live up to its Constitutional responsibilities. And what a minority of Senators have done is to create a double standard for judicial nominations. They say for some judges, we accept the constitutional mandate of a majority vote. But for other nominees, we have created an extra-constitutional higher standard.

For nominees Miguel Estrada, Priscilla Owen, William Pryor, and Charles Pickering, a constitutional majority is not good enough. You have to garner a supermajority.

That's a standard that is not fair, yet that is precisely what a group of Senators in the minority have demanded. And as a result, they are failing to fulfill their constitutional responsibility to provide advice and consent.

For those who say there is nothing wrong with the confirmation process, I say look at this chart.

Up until 1968 there was never a filibuster of a judicial nominee. In some instances, cloture was filed twice and even when cloture was not invoked, every single nominee whose name had not been withdrawn was given an up or down vote.

We have had an unprecedented 7 cloture votes on Miguel Estrada and 3 on Priscilla Owen. In both cases, a majority of the Senate voted in support of the nominees. But a minority of Senators refuse to give these nominees straight up or down votes as required by the Constitution.

I believe that establishing a rule that if a nominee cannot garner a supermajority of 60, the nominee will not be entitled to a vote is a very dangerous precedent that will haunt this chamber for decades to come.

We have never in 214 years established such a rule. Even in the case of the most controversial nominees in recent memory--Robert Bork and Clarence Thomas--the Senate carried out its constitutional responsibility by giving each of them an up or down vote.

In June, I chaired a Rules Committee hearing on judicial nominations where one of the witnesses claimed that in the 19th Century, there were several instances where a minority of Senators prevented the Senate from considering judicial nominees. I would like to take a few moments to clarify the record on this issue.

In December, 1828, lame duck President John Quincy Adams nominated John Crittenden to the Supreme Court. In February 1829, a month before Andrew Jackson was to be sworn is as President, the Senate voted 23-17 to postpone the nomination until Jackson came into office. Clearly, in this instance a minority was not blocking the will of the majority.

In June, 1844, President John Tyler nominated Ruben Walworth and Edward King to fill Supreme Court vacancies. The Senate, by votes of 27-20 and 29-18, voted to postpone the nominations. After Tyler was defeated in the 1844 election, he resubmitted the Walworth and King nominations. The Senate refused to vote on the nominations submitted by the lame duck.

John Meredith Read was also nominated by lame duck President Tyler. A month before Tyler's successor was to be sworn into office, the Senate voted to adjourn rather than consider the Read nomination. Obviously, the will of the majority was not thwarted by the minority when the Senate voted to adjourn.

In the summer of 1852, President Millard Fillmore nominated Edward Bradford to the Supreme Court. The nomination was made just before the Senate was already planning to adjourn. It adjourned before considering Bradford's nomination. When the Senate reconvened, Franklin Pierce had won the 1852 Presidential election. And Fillmore did not renominate Bradford.

Instead, in early 1853, lame duck Fillmore nominated George Badger to the Supreme Court. The Senate voted 26-25 to postpone consideration of Badger's nomination. Fillmore then nominated William Micou, but the Senate refused to act on the lame duck nomination. There is no evidence that a majority supported Micou.

Finally, Mr. President, in January 1881, the lame duck President, Rutherford B. Hayes, nominated Stanley Matthews to fill a vacancy on the Supreme Court. The nomination never was reported from the Judiciary Committee. When President Garfield took office in March, he renominated Matthews. After 2 months of debate, Matthews was confirmed by a vote of 24-23.

I have taken the Senate's time to provide details of these 19th century nominations to make the point that there is no evidence that any of the controversial justices nominated in those years was blocked by a minority of Senators.

In every instance, a majority voted to delay or defer consideration. And in most of these instances, they involved nominations made after a sitting President was defeated for re-election. They have absolutely no relationship to the situation that has confronted President Bush throughout this year.

As my colleagues are well aware, historically, the Senate has demonstrated a great reluctance to tamper with the Rules that govern this body, especially the rules that govern debate. However, when a minority of Senators have repeatedly abused the filibuster, the Senate has acted to change its rules.

After a minority of Senators blocked efforts to have an up or down vote on a proposal to arm merchant ships during World War I, the Senate adopted its first cloture rule. The cloture rule was larger changed in 5 separate occasions, most recently in 1986.

The last attempt to change the cloture rule occurred in 1995 when Senators Harkin and Lieberman proposed a cloture rule nearly identical to the majority leader's proposal, but broader in scope because it applied to legislation as well as nominations. On a motion to table, that effort failed by a vote of 76-15.

I voted against that proposal because I agreed with Senator Byrd that the biggest abuse of the filibuster had occurred in connection with Motions to Proceed and that the Rules of the Senate, in particular Paragraph 2 of rule VIII, provided an adequate remedy to address this problem.

However, it has become apparent that there is no remedy in the current Senate rules to address the obstructive practices of a minority of Senators to block Presidential nominations. And that is why I cosponsored the majority leader's resolution, S. Res. 138. This resolution was reported favorably from the Committee on Rules on June 26, of this year.

The majority leader's resolution that will return the advice and consent responsibility to what the founding fathers intended. Our resolution would give the opponents of a nomination more than a fair opportunity to express their reasons for opposing a nominee. But it would not allow a minority of members to avoid their constitutional responsibility to have a final yes or no vote on a nomination.

Under our approach, cloture on a nomination could not be filed until the Senate has considered the nomination for at least 12 hours. On the first cloture vote, 60 votes would be necessary to invoke cloture. On a second vote, cloture could be invoked by 57 votes. If a third vote was necessary, 54 votes could bring cloture. And if a fourth cloture vote was necessary, then, and only then, a majority of Senators voting and present would be all that is needed to invoke cloture.

What our proposal does is give the opponents of a nomination 12 hours to first express their opposition. And then they will have as many as 8 days to speak against a nomination. And then, if cloture is invoked on the fourth cloture vote, the opponents will still have 30 hours in which to speak.

In other words, Senators would have as many as 234 hours to speak for or against any Presidential nomination. I think that is more than enough time for the Senate to fully consider a President's nominations.

The Republican cosponsors of this resolution are making a very simple statement--no matter whether the occupant of the White House is a Republican or a Democrat, we believe that a nominee reported from committee is entitled to a confirmation vote on the Senate floor.

We believe it is unconscionable and constitutionally infirm for a minority of Senators to have the capacity to prevent the Senate from carrying out it's advice and consent functions.

Filibusters by a minority of members to prevent a vote on a nomination should have no place in the Senate. Whether a cabinet choice, a district court judge or a Supreme Court Justice, Presidential nominees are entitled to a vote. That is what the founding fathers anticipated and that is what our resolution would achieve.

I would prefer that we could break this impasse without changing Senate Rules. But if this action stands, if a minority of Senators can obstruct the will of the majority and prevent the President's nominees from having a vote, the Rules of the Senate must be changed.

I wish to talk about how I feel personally touched and involved in what we are dealing with here.

In my 15 years in the Senate in a variety of positions as a new Member, as a member of the leadership, both as secretary of the conference and as whip and leader, I have experienced a lot of what has gone on with confirmations personally and firsthand. I have been involved in a lot of them.

I must say, without it being aimed at just one party or the other, this process has been on a slippery slope down that whole time. I believe it goes back to the nomination of Judge Bork before I actually got to the Senate. The pattern continued with John Tower who was nominated to be Secretary of Defense in my first year in the Senate, and it continued to slide down with the nomination of Justice Clarence Thomas. And throughout the Clinton years, we had difficulty in this area.

I just wonder how much further downward can it go. I think we have reached the bottom. We are trying now to abuse the rules of the Senate, to ignore the Constitution, and set in place a new precedent to block good, qualified men, women, and minorities to the Federal judiciary. We have to stop it. We should stop it here and begin to go back up into a more positive approach in how we deal with Presidential nominees.

I was involved with President Clinton's first Cabinet. I was selected by then-minority leader Bob Dole to work through the nominations and see if there were problems. As a matter of fact, I want the record to show that we

confirmed every one of his nominees by the day he was inaugurated. It was not easy. Some nominees had some problems. We got the job done. He was the President. These were his Cabinet selectees. They deserved to be confirmed.

During my years as majority leader, we had a lot of discussions back and forth over how the process worked, how judicial nominees were treated when they got to committee, and when they got to the floor. I remember a lot of those debates. I remember the Senator from Maryland was involved in those debates in March and in December of 1997. I didn't always like the process. I wasn't always proud of how we treated these nominees. But I will tell you this: On my watch, not one Clinton nominee was filibustered. Zero. None.

If you want to use the numbers game--this is not baseball or basketball, but that is an important statistic--during the Clinton years, from 1993 to 2001, no judge was defeated by a filibuster. By the way, it was attempted a few times. I had to file cloture several times, but usually we were able to set it aside and, in every instance, we confirmed the nominee.

On one occasion, I remember late in the afternoon--actually the Senate voted not to invoke cloture, not to cut off the filibuster on a judge--I took this spot in the Senate and said we cannot let that stand. Senator Orrin Hatch, chairman of the Judiciary Committee, said the same thing. And before the night was over, we backed away from that position. Zero in the Clinton years; 4 already in the Bush years.

It has been just this year that this new abuse of procedure has started--the American people understand that. The American people understand there is something innately unfair about dragging out an up- or-down vote on these men, women, and minorities. So four already, and at least two more are threatened.

I don't know where it is going to end, but I do think that it is important the people understand this is not insignificant. This is very important. We are about to set this precedent, something the Senate did not do before this year. We did not do it in the 214-year history of this country, and now we are about to set this new precedent.

What do my colleagues on the other side of the aisle think is going to happen if the tables are reversed? What if there should be in some far off, distant future time a Democratic President and a Republican majority? Do they think if this precedent has been set that the tables won't be turned and there won't be filibusters of liberal judges on the other side? I will be opposed to that if I am here, as I have been in the past.

That is another number we ought to look at: 214 years, and no judges were defeated by a filibuster. I feel very personal about this point. I have gone back, in addition to looking at the number of years, and looked at occasions when there were attempted filibusters, when Presidents late in their terms made nominations and there were subsequent votes. I want to show you the list of what has happened over the years where there have been attempted filibusters.

This shows what happened in 1968, 1971, through the eighties and nineties. We can see there were some attempted filibusters, and cloture motions to cut off this extended debate were filed. But in every case but one, they were all confirmed. Justice Fortas, in 1969, had his nomination withdrawn by President Johnson when it was revealed that he did have some serious ethical problems.

Over all these years, even though there were filibusters and cloture motions, they were all confirmed. There are a couple of nominations on this chart about which I feel very strongly.

There was an attempt to hold up in a variety of ways two nominees to the Ninth Circuit Court of Appeals--Richard Paez and Marsha Berzon. Their filibusters were offered. I had great concerns about these judges, but I voted against the filibusters. I voted to invoke cloture, and they went to a straight up-or-down vote. I voted against them, but they were confirmed.

I was under intense pressure to not let that happen, but I refused to let that precedent be set on my watch because I didn't think it was fair at all.

I also feel personally and, I admit, emotionally involved because of the very unfair treatment that Judge Charles Pickering of Mississippi received over the last 2\1/2\ years. This is a good man, a good judge. He has had his reputation besmirched. This is a man who was confirmed unanimously by the Senate 13 years ago. Now he is being filibustered by the Senate. It is so unfair.

I hear a lot of talk about the human aspects of unemployment. What about the human aspects that these men, women, and minorities have had to go through? Their career is in limbo. They don't know whether they should stay with their law firm, stay on a State supreme court; are they going to be confirmed; how do they explain, how do they answer questions from the press? They have a very personal problem, too.

In the limited time we have, I don't want to just complain about what is going on here, I want to talk about the solution, how we get out of this situation, how we get off this limb onto which we have worked ourselves. We know this is wrong. Both sides of the aisle know this is wrong, and there has to be some concern about what the long-term impact will be. It has contributed to the overall atmosphere we are now dealing with in the Senate.

Here is what we can do. First of all, we can bring up the nominations of these good people. Justice Owen from Texas is a brilliant, impressive woman on the Texas Supreme Court. She is being filibustered. Why? Is she not qualified? Does she not have the proper education? Does she not have impressive credentials in her experience? Is she not sitting on the highest court in Texas? What is the problem?

The answer is that she is a conservative woman, that is all, a mainstream conservative woman. They try to let on there is something wrong with her philosophy and how she has ruled. I looked at a lot of these rulings. This is an eminently qualified woman. Yet she is being blocked by a filibuster. How do we get out of this situation? First of all, we try to give our colleagues on the other side of the aisle an opportunity to stop doing this filibustering. We bring up nominations of the judges. Apparently, they are not going to stop. At the end of this week, we will probably have three men and three women, including minorities, all blocked by filibusters--Hispanic, African American, women, men, it doesn't make any difference. I don't understand what is happening here.

What do we do next? We have a debate like we are doing now. Some people say: Why are you doing this? The Federal judiciary has a huge influence in what happens in this country. So these lifetime appointments are very important. We are trying to put the American people on notice as to how dangerous this is and what is going on, and it is getting some additional coverage. People are now calling in and saying: I didn't know that was going on. Why are you doing this?

Give us an opportunity to highlight the unfairness and the precedent we are setting and allow the people to weigh in a little bit. That is step 2.

Step 3: As chairman of the Rules Committee, I worked with the majority leader, Bill Frist, and Senator Zell Miller of Georgia, and we came up with a process that could stop these filibusters. It is an elongated process, but one to which surely nobody could object.

After 12 hours of debate, we would have a cloture vote. It would require 60 votes. Then after a period of time, there would be a second vote. Fifty-seven votes would be required. A third vote would then occur with 54 votes required, and finally, only on the fourth cloture vote, would we get down to 51. We would have the 12 hours initially. Then we would have 30 hours after the fourth cloture vote to speak. All total, it could take as long as 234 hours. It is not a perfect process, but at least it is a process.

A similar proposal was made a few years ago by two current Senators on the Democratic side of the aisle. We should perhaps have a vote on that proposal.

Last but not least, at some point I feel very strongly we are going to have to make it clear through some process--and I won't go through it now--that says judges will be confirmed with 51 votes--only 51 votes. That is what the Founding Fathers intended. Senator Cochran made the historical point, and so have I. That is what it should be.

We can go back and vote on these nominees. They might not be confirmed, but I think the American people understand the fairness of voting them up or voting them down. Justice for judges. Do whatever the Senate's will is, but don't use a procedural technique requiring 60 votes to defeat these good men, women, and minorities.

This is an important issue. It is worth taking time to debate. I am very pleased we are debating this issue. I see Senator Sarbanes on the floor of the Senate. He has been on the House Judiciary Committee. I was on the Judiciary Committee with him way back in the seventies. He is a lawyer. He has looked at these issues. I know he has been involved in them. We have had some discussion back and forth over the years.

In March 1997, he rose on the floor of the Senate and spoke in support of the nomination of Merrick Garland to be on the district court. He said:

It is not whether you let the President have his nominees

confirmed. You will not even let them be considered by the

Senate for an up-or-down vote. That is the problem today. In

other words, the other side--

The Republicans--

will not let the process work so these nominees can come

before the Senate for judgment. Some may come before the

Senate for judgment and be rejected. That is OK. But at least

let the process work so the nominees have an opportunity and

the judiciary has an opportunity to have these vacant

positions filled so the court system does not break down

because of the failure to confirm new judges. . . .

These judges along the way were being slow-walked or they had problems or they got to the floor and we had other legislation we wanted to consider. We did not always get them up, but here is an important point: During that time I was the majority leader, we confirmed Merrick Garland. It happened. He got confirmed. He is on the bench today.

Senator Sarbanes was right, give them an up-or-down vote, and that is what we are calling for today.

I see Senator Graham of South Carolina is in the Chamber and prepared to speak. I may want to have a final statement later on today, but before I yield to Senator Graham, let me wrap it up this way: I plead with my colleagues in the Senate. This is not a good thing for us. It is not good for the institution. It is not good for our country. It is not good for our relationships. It is not good in terms of getting our work done and making sure we have a judiciary that is occupied by good men and women.

We should stop rejecting these judges just on the basis of their philosophy. I voted for Justice Ruth Bader Ginsburg. I knew I would not agree with her decisions. I did not agree with her philosophically across the board, but by education, demeanor, qualifications, and experience, she should have been confirmed. I voted for her. I ask no less of my colleagues on the Democratic side of the aisle.

Let's stop this, and then let's get back to making sure we pass energy legislation, pass aviation legislation, get a prescription drug plan for our elderly people. This discussion is not delaying that. Work is being done on it right now. We can get this process corrected and then we can pass these substantive bills.

I yield the remainder of my time to the Senator from South Carolina.

I object.

Reserving the right to object, I ask consent that the Senator modify his request so that just prior to proceeding the requested 3 cloture votes be vitiated and the Senate immediately proceed to three consecutive votes on the confirmation of the nominations, with no intervening action or debate.

Does the Senator object to the modification?

In view of that, I object.

Mr. President, as I understand under the agreed procedure, the Senator from Hawaii and myself will have a half hour; is that correct?

I yield myself 15 minutes.

Mr. President, I have listened with interest over the last 24 hours to those who have taken exception to the action that has not taken place in the Senate with regard to judges. I listened very carefully. Many of our colleagues have been extremely eloquent in their presentations.

As we are reaching the 24-hour point, it is important to understand exactly what our responsibility is in the Senate with regard to the appointment power, what our Founding Fathers expect of the Senate, and whether we are measuring up to the test which they established at the Constitutional Convention.

I draw the attention of our colleagues once more to the raw statistic, which I think effectively rebuts so many of the allegations and the presentation that has been made, where we have actually confirmed 168 of the nominees, and only 4 have not been affirmatively approved. That is 98 percent. We ought to think about what has been said on the other side about the abuse of those who have expressed opposition to these nominees, whether there has been an abuse of the system itself, when we find out they have gotten 98 percent of their way over this Congress. My good friend from Vermont has gone through the statistics in great detail.

I listened a little earlier to one of my colleagues on that side of the aisle say there never has been an instance where a circuit court judge was filibustered by the other side. I am a member of the Judiciary Committee, and I would be glad to sit down with my colleague and go over the 23 well-qualified nominees who never emerged from the Judiciary Committee to be considered on the floor of the Senate.

Nonetheless there are those who are listening tonight who may say, ``My goodness, we have these nominees and they are not being considered. Isn't this a one-way street, where now Democrats, perhaps a few Republicans, are not permitting the vote on particular nominees?''

I can remember very well the other side using the same rules to their own advantage with regard to judicial nominees, and history demonstrates that, as has been pointed out by our colleagues.

Rather than dwelling on that, I think it is instructive once more to think about what our Founding Fathers expected of this body with regard to the appointment process. When we look at that, we will see that they expected us to exercise our own good, independent judgment. There are those on the other side who say, if the President sends someone up to the Senate, you better find a good reason not to vote for him or otherwise the President is entitled to that individual. That is not the case. That has been repeated time and time again.

To the contrary, if you look at the debates in the Constitutional Convention, our Founding Fathers weighed their debates and discussions believing that we in the Senate should have the heavy hand in terms of the final judgment with regard to nominees. I will take a few moments to review that because it is instructive.

The Constitutional Convention met in Philadelphia from late May until mid-September of 1787. On May 29, 1787, the Convention began its work on the Constitution, and when the Virginia Plan was introduced by Governor Randolph, it provided that a National Judiciary be established to be chosen by the National Legislature.

Under this plan, the President had no role--no role--in the selection of Federal judges. When this provision came before the Convention on June 5, several Members were concerned that having the Congress as a whole select judges was too unwieldy.

James Wilson of Pennsylvania suggested an alternative: that the President be given the sole power to appoint judges. The idea had no support. John Rutledge of South Carolina said he ``was by no means disposed to grant too great a power to a single person.'' James Madison agreed that the legislature was too large a body, and stated that he was ``rather inclined to give the appointment power to the Senatorial branch.'' This is the debate of our Founding Fathers, a group sufficiently stable and independent, as James Madison pointed out, to provide ``deliberate judgments'' on judges.

A week later, Madison offered a formal motion to give the Senate--the U.S. Senate--the sole power to appoint judges, and this motion was adopted without a single objection.

On June 19, the Convention formally adopted a working draft of the Constitution, and it gave the Senate the exclusive power to appoint judges. This was the thinking of our Founding Fathers.

We learn in that debate on the floor of the Senate, the Founding Fathers intended the Senate of the United States to be a principal partner, obviously, in the consideration of these judges.

On July 18, the Convention reaffirmed its decision to grant the Senate the exclusive power. Wilson again proposed ``that judges be appointed by the executive,'' and again his motion was defeated. The issue was considered again on July 21 and in the Convention for the fourth time and again agreed to the exclusive Senate appointment of judges. In a debate on the provision, George Mason of Virginia called the idea of executive appointment of Federal judges a ``dangerous precedent.''

Not until the final days of the Convention was a compromise suggested. On September 4, 2 weeks before the Convention work was completed, the committee proposed that the President should have a role in selecting judges. It stated: ``The President shall nominate and, by and with the Advice and Consent of the Senate, shall appoint judges of the Supreme Court.''

The debate made clear, Mr. President, however, that while the President had the power to nominate the judges, the Senate still had a central role. Gouverneur Morris of Pennsylvania actually described the provision of giving the Senate the power ``to appoint judges nominated to them by the President.''

It's clear that the Constitutional Convention, which had repeatedly rejected the proposal to let the President alone select the judges, did not intend the Senate to be a rubberstamp for the President. And it is equally clear that, especially when the Senate is controlled by the President's own party, the Founders did not intend the Senate to roll over and play dead whenever the President tells them to.

We have approved 168. And only 4 have been rejected. That is a pretty good record for this President.

On the contrary, it is clear what the Founders would say to us today. They would say, ``We gave you this power to use it whenever you think the President proposes judges who will not be beneficial to the Nation. We did not tell you what rules to use to exercise that power. We gave you the right to set your own rules.''

And they did. And the Founders did not say, and did not mean that ``the President can appoint whomever he wants to the Federal courts, as long as he gets a bare Senate majority to consent.'' If we did adopt a rule that allowed the President to do so, the Founding Fathers would look down on us and say, ``Shame!''

``You are the Senate. If we wanted the President alone to be able to pick the judges, we would not have given you the power that we did in the Constitutional Convention. For 214 years, you have used that power wisely, and under the power we gave you, you have the authority to set your own rules.'' That is what the Founding Fathers said.

As Senators, we have the obligation to say no to the President when we think he is wrong. We should not abdicate the powers the Founding Fathers gave us. If we are true to our oath of office as Members of the Senate, we cannot abdicate the powers the Founders gave us.

We should not erase the rules which give us the ability to be the Senate and protect the independence of the Federal courts.

We exercise different judgments on Presidential nominees. The independence of the Senate and the courts is the essence of our Constitutional system of checks and balances that has served us so well throughout our history.

The Senate has never hesitated to exercise its advice and consent power. During the first 100 years after ratification of the Constitution, 21 of 81 Supreme Court nominations one out of four were rejected, withdrawn or not acted on. During these confirmation debates, ideology often mattered. John Rutledge, nominated by George Washington, failed to win Senate confirmation as Chief Justice in 1795. Alexander Hamilton and other Federalists strongly opposed him because of his position on the controversial Jay Treaty with Great Britain. A nominees of President James Polk was rejected because of his anti-immigration position. A nominee of President Herbert Hoover was rejected because of his anti-labor view.

When a President makes the request for a member of the Cabinet, it is time limited to the 4 years that President is going to be there. The President has the heavy presumption that he is entitled to his own advisers, and that is why the overwhelming majority of nominees by the Presidents for their Cabinet are approved. We have some for the regulatory agencies that may be a little bit longer, or go past a particular administration, and perhaps we apply a somewhat tighter and more stringent test, but we are talking about lifetime tenure on important courts of this land.

The DC Circuit Court has really been called another supreme court because they have the appellate jurisdiction on so many of the regulatory agencies. These appeals that come before that DC Circuit involve the rights of working men and women. They make the decision in terms of whether the workplace is going to be safe for all of those who go in and work in their plants and factories. They are going to interpret whether the various legislation dealing with the environment is adequately enforced, along with a whole range of different issues that affect the health and safety and well-being of the people of this country.

Our friends on the other side say, ``If the President nominates someone, why are you not rubberstamping it?'' That is not what our Founding Fathers said or agreed to or instructed us to do. They said we should make our own independent judgment and decision, and the fair judgment and decision, I believe, is whether these individuals who are nominated demonstrate a core commitment to the fundamental teachings of the Constitution of the United States. That is what this Senator looks for with a nominee.

When they will not answer the questions--but the administration knows what those answers are--or they have demonstrated over a lifetime by statements and deeds that they will not abide by the fundamental teachings of the Constitution, why in the world should we take a chance, in representing the people we do, to think they deserve a promotion to serve in these high courts? It should not be that way. The Founding Fathers never expected us to be that way, and we will not have it that way.

Recently, we had a very distinguished historian who wrote a magnificent book. It is called ``Master of the Senate'' by Robert Caro. In that book, he did an enormous amount of reading and studying of the views of our Founding Fathers and also of the early years of the Senate in order to put his historical figure, President Johnson, then-Majority Leader Johnson, into some perspective. I will just mention these lines which I think are very insightful about the Founding Fathers and what they believed this institution was really all about:

``The writings of the framers of the Constitution make clear that Senators, whether acting alone or in concert with like-minded colleagues, are entitled to use whatever means the Senate rules provide to vigorously contest a President's assertion of authority with which they strongly disagree.

One could say, in fact, that under the fundamental concept of the Senate as envisioned by the Founding Fathers, it is not merely the right, but the duty of the Senators to do that, no matter how popular the President or how strongly the public opinion polls of the moment

support the President's stand on the issues involved.''

Then he continues:

`` . . . in creating the new nation, its Founding Fathers, the Framers of the Constitution, gave its legislature . . . not only its own powers, specified and sweeping . . . but also powers designed to make the Congress independent of the President to restrain and act as a check on his authority, (including) power to approve his appointments, even the appointments made within his own administration . . . ''

And the most potent of these restraining powers the Framers gave to the Senate is:

`` . . . the power to approve Presidential appointments was given to the Senate alone; a President could nominate and appoint ambassadors, Supreme Court Justices, and other officers of the United States, but only 'with the Advice and Consent of the Senate.'''

`` . . . the Founders, in their wisdom, also gave the Senate the power to establish for itself the rules governing exercise of its powers. Unlike the unwieldy House, which had to adopt rules that inhibited debate, the Senate became the true deliberative body that the framers had envisioned by maintaining the ability of its members to debate as long as necessary to reach a just result. For more than a century, the Senate required unanimous agreement to close off debate. The adoption fo Rule XXII in 1917 allowed a two-thirds cloture vote on 'measures,' but nominations were not brought under the rule until 1949.''

In short, two centuries of history rebut any suggestion that either the language or the intent of the Constitution prohibits or counsels against the use of extended debate to resist Presidential authority. To the contrary, the nations's Founders depended on the Senate's Members to stand up to a popular and powerful President. In the case of judicial appointments, the Founders specifically mandated the Senate to play an active role, providing both advice and consent to the President. That shared authority was basic to the balance of powers among the branches.

Surrendering such authority is not something which should be done just because of a Senator's point of view on the particular issues of the moment--because much more than the particular issue is involved.

Republican Senators are wrong when they say, ``The President is entitled to have his own people on the courts.'' We know that history tells us the opposite. The Senate usually chooses to give the President broad leeway in appointing members of his cabinet and filling other positions in the Executive Branch. Je is politically responsible for these appointees. They generally serve at his pleasure, and their appointments end at the end of his term in office. But appointments to the federal courts are lifetime appointments. Federal judges are able to fulfill their own constitutional responsibility because they are independent of both Congress and the White House.

The Founding Fathers wanted the checks and balances, the independent government agencies: The Presidential and the executive, the Congress with the House and the Senate, and an independent judiciary. It does not belong to the President. It does not belong to the Congress. It belongs to the American people, and both the President and the Senate have an important responsibility to make sure it remains independent.

I yield the remaining time to the Senator from Hawaii.

How much time do we have remaining?

I thank my colleague and friend. He mentioned the increase in the minimum wage. It has been 7 years since we have increased the minimum wage. In that time, we have also increased the pay for Members of the Senate five times, but we are denied the opportunity to increase the minimum wage for working families in this country. I think it would not take us very long. If the Senator would agree with me, it would take us about half an hour before we are prepared to go ahead and vote on a minimum wage, and here we have just used 30 hours or are going to be using 30 hours of discussion that is not related to that or to education, overtime, unemployment compensation, jobs, or education funding.

I thank the Senator for an excellent presentation. I believe our time is just about up.

Madam President, as I understand the allocation of time, we have the remaining time, am I correct?

We have 15\1/2\ minutes.

As my friend and colleague from Maryland pointed out, we have been listening to our friends on the other side of the aisle for at least half of the past 24 hours. After we have listened to that, we still come back to the fact that 98 percent of their judges have been approved and 4 have not, and the Constitutional Convention never expected us to be a rubberstamp. We are faced on the other side by the prospect, at least, of changing the rules of the game even though those on the other side have used the system and refused to permit consideration of a number of judges. They did that in the Judiciary Committee of which I have been a member for many years.

It is interesting to me as we have gone over that ground so many times, our friends on the other side would be so interested and concerned about four individuals who have lost their jobs when we are facing so many other Americans out there who have lost their jobs and are really suffering.

We were talking about numbers. I mentioned the recent figures of the Department of Agriculture that say tonight there are 13 million children who

are going hungry. That is Department of Agriculture statistics. Have we heard over the period of the last 24 hours ideas or suggestions or recommendations about how we are going to deal with the problems of hunger in children? That is happening tonight, 13 million.

The other side is talking about four judges--four individuals who make more than $100,000 a year. What about the 13 million hungry children? Have we talked about that?

How much have we talked about the 9 million Americans who are unemployed? There are 1.4 million who have already lost their unemployment compensation, with all the implications of that. They can't buy health insurance, they can't put food on the table, they can't pay the mortgage, they can't buy a birthday present for their children, they can't celebrate any kind of holiday for any of the members of their family. They are hard-put and hard-pressed. Have we talked about that for those individuals?

How about the millions of Americans who do not have health insurance tonight? How about the millions of Americans who do not have health insurance tonight, the hundreds who lost their health insurance today, and all of their concerns for their families? How are they going to be able to deal with medical bills? Have we talked about that?

The escalation of the cost of health care--have we talked about that and what that means to families? Have we talked about families who have gone into bankruptcy because they can't pay their medical bills? That affects 2 million Americans every year. We talk about four judges; we don't talk about 2 million Americans who go bankrupt every year because of health care costs. We don't talk about that.

We haven't talked a great deal about the 80,000 workers who have contributed to the unemployment compensation fund, and starting the end of next month--and we are in the final moments and hours of this session--80,000 a week are going to lose their unemployment. This is at a time when the unemployment fund has $20 billion in surplus.

We are in the final hours, as the Senator from Maryland has pointed out. Have we talked about what is going to happen to them? Don't you think they are concerned about whether the Senate is going to take any action in the final hours? Do we demonstrate any anxiety about what is going to happen to their families? I haven't heard a great deal about it from our friends on the other side. I haven't heard a great deal about it.

We haven't heard a word from the other side about doing anything about increasing the minimum wage. It has been 7 years since we have increased the minimum wage; 7 years have gone by, and we can't get a vote on it in the Senate. The other side brings up a bill like the State Department reauthorization and I offer the minimum wage as an amendment and the majority Republicans pull the bill to deny us the opportunity to vote on it. I mean, if we are going to get indignant about the rules of the Senate, come on. Come on. Let's vote on an increase in the minimum wage. All of those on the other side who said, ``Let the majority have a chance, let's have a vote on an issue, let's have a vote on this, let's have a vote on that,'' we say, ``Let's have a vote on the increase in the minimum wage.'' Oh, no, we can't do that. We can't have a vote on the increase in the minimum wage. We couldn't even get a vote now on the question of extending unemployment compensation. Oh, no, we can't do that. No, no, we are not going to be able to do that. We can't get a vote on hate crimes. No, no, we can't. We have to study that some more.

I mean, come on. Twenty-four hours and you are going to continue for another 6 hours pontificating about the injustice that is being perpetrated when you have all this taking place across this country? The anxiety and tremendous frustration and the sense of hopelessness that takes place across this country, and you refuse to let us have a vote on the increase in the minimum wage?

This is the chart on the minimum wage. This is what is happening to the minimum wage in the United States of America.

This blue line indicates the purchasing power. It was almost $8.50 back in 1968. It is now down to, without the increase, $4.95 in purchasing power this year, without any increase. It will be just about the lowest it has ever been.

Who are the minimum wage recipients? Here we go. Here is another chart that shows the minimum wage no longer lifts a family out of poverty--from 1972 through 1982, there were 2 years when it was just at the poverty line. We said people who want to work and can work will work 40 hours a week, they will be able to get out of poverty. Look what has happened in the 1980s, 1990s. We were able to get a little blip in early 1992 and again in 1998. It was basically the same legislation. Now, since 1998 to 2003, we are unable to get a vote to increase it $1.50 over 2 years.

Can you imagine the amount of money we have seen returned to American taxpayers, $2 trillion over the past 2 years, and we can't get an increase in the minimum wage for working men and women? And the other side is trying to be indignant about the fact four individuals who are making over $100,000 are being put upon and we are going to have to listen to them for 6 more hours?

What is the increase in the minimum wage? It is the equivalent of $3,000. It might not seem like a lot to people, but it is 7 months of rent, 11 months of groceries, 14.5 months of utilities, full tuition for a community college degree. That is what that represents. That is real money for working families who are at the bottom end of the economic ladder.

Our Republican friends refuse to give us at least the opportunity to vote. Understand, vote. We heard that word used a great deal on the floor of the Senate. Let's get a vote on this issue.

Let me review as well about jobs. We talked about four jobs. What we are facing here is 3 million Americans who have lost their jobs. Let's think, besides the statistics, exactly what it means in terms of financial hardships of the unemployed. Look at this. Half the unemployed adults have had to postpone medical treatment--that is 57 percent--or cut back on spending for food. I have just given the figures and the statistics of the Department of Agriculture that have 13 million children hungry tonight. Thirteen million children are hungry tonight.

One out of 4, 26 percent, has had to move to other housing. Imagine that. We have 3 million people who have lost their jobs and 1 out of 4 had to move out--move in with friends or relatives. There is a problem that deserves debate, discussion, and ideas and solutions and resolution and determination and accountability here. There are 38 percent who have lost their telephone service, 22 percent are worried about losing their phones, more than a third, 36 percent, have trouble paying the gas or electric bill--things that are absolutely assumed around here.

People are really hurting. We are not talking about 4 people, we are talking about hundreds of thousands of people, and we have occupied the time of the Senate to talk about 4 judges who are not qualified, I don't believe, to serve on the Supreme Court. We are not expected to be rubberstamps. Our Founding Fathers never intended that.

I want to mention one other item that is now in the conference. It would be pretty worthwhile if we had engaged our friends on the other side to tell us what is happening in the conference on the issue of overtime pay. When people work overtime, something that for some 60 years has been in our law, it ensures people who work longer than 40 hours a week are going to be fairly treated. We have the proposal by the administration to deny that to 8 million Americans. It was defeated here on the floor of the Senate, defeated in the House of Representatives, and now it is in a conference.

Why don't we hear from the other side what has happened to that conference? Why don't we hear where they are on the issues of overtime? That makes an enormous difference to people. It makes a big difference in their lives. It is not 4 people and their livelihood, it is hundreds of thousands, tens of thousands, millions of people whose lives are going to be affected.

Right off the top of the list are firefighters, policemen, nurses. Does that ring a bell to anyone around here? They are the backbone of Homeland security. We are cutting back on their income.

We have had a bipartisan determination on that issue here. Do we hear anyone on the other side, when they are talking about 4 jobs, talk about all these numbers of Americans who are losing out?

Madam President, how much time do I have remaining?

I would have liked to have gone on. Maybe we will have time later.

Unanimous Consent Request--S. 224

In the meantime, I ask unanimous consent the Senate return to legislative session, proceed to the consideration of Calendar No. 3, S. 224, the bill to increase the minimum wage, that the bill be read a third time and passed, and the motion to reconsider be laid on the table.

Madam President, I withdraw my consent request because it is quite clear there is objection by the Republicans to the consideration of an increase in the minimum wage.

Unanimous Consent Request--S. 1853

I ask unanimous consent the Senate proceed to legislative session, the Finance Committee be discharged from further consideration of S. 1853, a bill to extend unemployment insurance benefits for displaced workers, that the Senate proceed to its immediate consideration, the bill be read a third time, passed, and the motion to reconsider be laid on the table.

I withdraw my request and let the Record indicate the Republicans have objected to the extension of the minimum wage and have objected to the extension of unemployment compensation for hard-working Americans who have paid into that fund.

Do I have the floor?

Mr. President, first, I thank my colleague from Michigan not only for her work today but her tremendous contribution in the relatively short time she has been a Member of this body. We thank her immensely for her very balanced and deliberate approach. I thank her particularly for raising the issue she has today.

While the subject matter defined by the majority is the question of judicial nominations, I think the point she has raised, that there are an awful lot of people all across this country who are--while they may be interested from an intellectual standpoint, even some maybe on a more passionate level on the question of judicial nominations, there are a significant number, the overwhelming majority, I think, of people, if asked how they would like to see the Senate of the United States allocate its time and resources, the Senator from Michigan has identified a subject matter that is of far more compelling interest to a larger number of people in this country, the issue of putting people back to work; what has happened to the closure of so many small manufacturing firms all across the United States that have seen their products no longer marketable in this country and elsewhere because of the onslaught of foreign products that have come in through misguided and failed

trading agreements we have reached, particularly with the People's Republic of China and elsewhere.

So I thank her. I suspect there are an awful lot of people across this country who appreciated the fact that she took 15 or 20 minutes to talk about the 3 million people who over the last 29 months have lost their jobs in this country and who are sitting there today wondering whether or not they are going to be able to keep that home, whether or not they are going to be able to afford their children going on to college, whether or not if they get sick they will be able to pay for that illness, if they had a job that provided health insurance for them.

So I thank her and I suspect there are an awful lot of people across this country who appreciate immensely her determination to see that those jobs, not just the jobs of some people who were unable to have a vote on the Senate floor to confirm them for a judicial nomination, will be the consideration of this institution.

I must say as well, I appreciate my colleague's kind comments about my efforts as a legislator. I try to take some pride in that. I think my colleagues on the other side know this. I work very hard to maintain my relationships with every Member. Regardless of what battle may ensue today, tomorrow is a new day and I always reach across the aisle wherever I can because I have never seen an issue in my 24 years here that had any value and merit be accomplished without it being bipartisan, ever. I defy any Member to mention a single issue of any significance that was ever adopted by this body that was not bipartisan in nature.

When we lose our ability to do that, we not only suffer as an institution but the people we seek to represent suffer terribly. So it is critically important that we make those efforts.

I have spent a lot of time over this last number of weeks trying to get something done on asbestos reform. My colleague from Michigan and my colleague from Oregon know of the efforts we made in this regard. It is terribly worrying to me that we are about to end this session. We have 700,000 lawsuits that have been filed for people who were exposed or could get ill from exposure to asbestos. Seventy thousand cases are being filed a year. There are major companies that have gone bankrupt because of the problems with exposure and the liabilities as a result of the asbestos issue. I would have hoped, maybe vainly, that we might spend some time on an issue such as that, candidly. I noticed to my colleagues the other day that while I voted against cloture on the class action reform issue, I immediately took the floor to say I am very interested in a class action reform bill and I am prepared to support one. There were issues that needed to be worked out.

I know there are businesses all across this country that would like very much to see us address the issue of class action reform. There is nothing like 30 hours' worth of debate on class action reform. There will be no 30 hours of debate on asbestos issues here, unfortunately.

So I say with all due respect--and I do respect my colleagues, all of them--that it is a reflection to some degree of what your sense of priorities is. There are a lot of issues that deserve attention, but I would ask any average American to identify for me, when given the choices to debate, whether or not we ought to do something about class action reform, something about asbestos legislation, something about joblessness, something about Medicare reform, prescription drug benefits. I have seen nothing even remotely close to 30 hours of debate in this Chamber on any of those issues at all--none, absolutely none.

So while we in the minority cannot set the agenda, the power of the majority is the power to be recognized, and the power to be recognized means you set the agenda. Even though our ranks are only separated by two Members, the division of two Members makes it possible for the majority to decide what this Chamber will do, what this institution does, on a daily basis, on an hourly basis.

The majority, in their judgment, have decided that this issue, the issue involving four judicial nominations, is far more important than anything else on which this Congress, this session, with hours away from terminating it, should spend its time and efforts.

I do not disagree that this is an important issue. I think it is an important issue, particularly where we may be asked to vote on changing the rules of the Senate to either eliminate or virtually eliminate the right to filibuster judicial nominations. That is a profound question, and I just regret that it ends up being debated at 2, 3, 4, and 5 o'clock in the morning and not something that ought to consume a serious debate in this Chamber as to the wisdom of such a potential move. I am not sure that amendment is going to be offered, or that idea will be suggested to us by tomorrow, but I have been told it will. I will come to that in a minute.

I do think it is important that people wonder whether or not this body, or politics or Congress, ever gets it. One of the questions we all face from time to time when we conduct our town meetings is: Do you have any idea, Senator, what it is like to raise a family today, with all the pressures we are under? Do any of you in Congress--I do not care whether you are Democrats or Republicans--do you have any idea what we are going through out here?

When we conduct 30 hours of debate about four judicial nominations, I sometimes think that question has a lot of merit, unfortunately.

So I wish we were spending some more time on some of these other issues. Maybe we will get to them. Hope springs eternal, and I will keep trying to work on it. I have been asked to come and spend some time to protect our interests on the floor and so I will utilize some time, as I did last night, to talk about the issue at hand.

I am terribly disappointed that we are spending the time of this institution on something such as this when we need to be spending our time, what little time we have, on so many other questions, that so many people in this country want to see us address and try to come up with some answer for. They know it is difficult.

Look, what we love about this institution is also what galls us the most about it. The beauty of the Senate is not only the manner in which we do things but also the frustrations that are evoked as a result of how we do things. Had the Founders of this great Republic sought efficiencies, they never ever would have set up this system. The last system you would ever set up, if you were trying to get the job done expeditiously, is the one we have lived with for 217 years. This is a terribly frustrating system. It will drive you to madness watching it happen, particularly this institution of the Senate.

When the Framers were debating the existence of a legislative branch--in fact, the idea was pretty much to have a unicameral system I think in the early discussions: One house, simple majority rules. I sit in the seat of a man by the name of Roger Sherman, from the State of Connecticut, who was one of those Framers of the Constitution, the only one of the Framers, by the way, to ever have signed all four of the cornerstone documents of the United States. He signed the Articles of Confederation, the Declaration of Independence, the Constitution of the United States, and the Bill of Rights. I am very proud to sit in his seat in the Senate, after 217 years.

In that Constitutional Convention, it was Roger Sherman, my forbearer in this job, who suggested, along with Oliver Ellsworth from Connecticut as well, the creation of a separate body in the Congress of the United States that we have come to know as the Senate.

The argument was about small States and large States. The fear was, for people who came from smaller States, that in the House of Representatives, since it would be determined by population, large States by population would so dominate the Congress of the United States that those who lived in smaller States would be overwhelmed. They were about to vote against the Constitution when Sherman and Ellsworth came up with the idea of a Senate, where every State, regardless of size, would have equal representation--two Senators from every State.

My colleague from New Hampshire and I from Connecticut, small States, we have two Senators; my colleague from Michigan, a large State, and from California, two Senators. It is a rather beautiful system in a way. They went beyond the idea of just small States

and large States. The seed of the notion that there ought to be a place where the rights of a minority get protected was also included in this concept.

In the House of Representatives, in which I had the privilege of serving for 6 years before coming to this body 24 years ago, the majority rules. If you are in the minority in the House--I do not know if my colleague from New Hampshire ever served in the minority in the House, but I certainly did not; I was always in the majority there-- being in the minority in the House is painful because it can roll right through you. What the majority wants to do happens. That is it.

In this body, the idea was to create a place where the minority interests, including a minority of one, would have rights that you would never get in the House of Representatives. Hence the right of one Senator, if they stand up and can stand long enough and do not leave the floor, to have the right not to be interrupted, extended debate; the right to amend. It has been a wonderful balance. The rights of a majority are down the hall. The rights of a minority are here in this Chamber. We have tried over the years to see to it that those unique rights give us a sense of balance, what one of the Framers called the saucer--the Senate--in which the passions would cool, because the tyranny of a majority can be overwhelming. So the Senate was a place to say let's stop, let's take a look, let's think again about whether or not this is the right way to go.

Now, if we go back and look at the genesis of the thought process that was involved in the creation of the Constitution in this Republic, a unique event in the history of mankind, certainly they had been through an experience where a king had been overbearing. Remember, two- thirds of the population of this country in 1776 was not terribly enthusiastic about a revolution. Only about a third of the population thought that was necessary. As the tyranny of a king grew larger and people's rights were being deprived, taxations levied without their ability to be heard, they decided: We need to move away from that.

So as this system evolved and a discussion of what it would look like, the last thing the Founders wanted to do was create an executive without some checks and balances on it, an unlimited tyranny of an executive. In fact, as I pointed out last night, there is ample evidence, of course, that when it came to judicial nominations, the Framers did not want to give the right to nominate to the President. It was only an afterthought that said, on judicial nominations, they ought to go to the President, and then the Senate would provide its advice and consent.

I carry with me every day a copy of the U.S. Constitution. It was given to me by my seatmate Robert C. Byrd many years ago. It is a rather worn-out copy of this wonderful document, but I carry it with me 7 days a week. I read it constantly. As I get older, my appreciation for the wisdom of these people grows deeper.

It is very clear article III of the Constitution lays out judicial power, the judicial part of it. It says that people are appointed to the courts, supreme and inferior courts, and they will serve for life, during good behavior for life. It is unique. It is the only office in the country where one gets a lifetime appointment. The President does not. Members of Congress do not. A Federal judge gets a lifetime appointment. If you are appointed when you are 35 years of age and you live to be 85--50 years--unless you do something terribly wrong, you are there; you are not going anywhere.

Of course, in article II, they lay out in section 2: He--speaking of the President--shall have the power, by and with the advice and consent of the United States Senate, to make treaties, and so forth. It goes on. And by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers, and so forth, judges of the Supreme Court, and all other officers of the United States.

Does anyone really believe for a single moment that the Framers of this unique document intended that the President, the executive branch, would appoint and that it was then the duty of this body to just rubberstamp that choice? Of course not. In fact, they did not even want to give him the power to appoint to begin with because they were uneasy about someone having too much power in their own hands.

I suspect our predecessors probably had in mind what some of the more recent predecessors did with postmasterships.

I remember my father talking about the postmastership appointment. He used to say that this was a dreadful idea, to give Senators the right to appoint postmasters, because he said inevitably you would have about 100 applicants for the job. Of course, once they were confirmed, they could never get involved in politics again. So he used to say you would end up with 99 enemies who did not get the job and 1 ingrate who did who could never talk to you again.

I suspect that may have been true as well about Federal judgeships, that our colleagues in the Senate, in the earliest days, probably said: Look, we do not want the business of having to nominate these guys because inevitably we are going to pick someone and the other guys are people who are going to be upset with us. So why do we not give that to the President, let him appoint them, and then we will decide whether or not they deserve to be confirmed.

The notion somehow that one has a constitutional right to a vote--I have read this document; I read it every day--there is nowhere in this document one gets a constitutional right to a vote on anything, any more than the American people have a right to a constitutional vote on the minimum wage or on Medicare reform or any other matter I want to bring up. There is no constitutional right to that. There is certainly no constitutional right that if one gets nominated to be a judge, they have a constitutional right to be voted on. Nowhere does the Constitution give someone that, in any area whatsoever.

The idea somehow that we would only apply a filibuster to legislative matters and not judicial nominations, so one can filibuster a sense-of- the-Senate resolution----

I thank the Chair very much. I apologize to my colleagues for going a little bit. I appreciate the indulgence of the Chair.

I thank my friend from Wisconsin, Mr. President, and I was very interested in what he had to say. I thought it was right on the mark.

The fact is, this is a clear example of misplaced priorities, those of the Republican leadership and the White House. It is hard to understand why there is such outrage on the other side of the aisle about these four people being denied a spot on the Federal bench.

If they are worried--and I heard it requested here: Give these people a break. Be fair with them.

They are worried about these four people being denied their opportunity, but there is an expense to putting them on the bench that is going to be felt by Americans across this country.

What about the 3 million people who are denied jobs? What about the millions of jobless being denied unemployment benefits? What about the White House's attempt to deny millions of workers their overtime pay? What about lower income, working Americans being denied an increase in the minimum wage? What about the millions of women being denied their right to reproductive freedom by nine men surrounding the President when he signed the new anti-choice law? They took away a woman's right to make a decision, in concert with their doctor, about their health because these nine men--the male oligarchy--decided that it was appropriate that they take away a woman's rights.

There was not one woman on the floor to defend that decision. Not one woman spoke about it. Not one woman in this picture or even in the other picture that was shown in the top newspapers across the country. Not one woman, but they are making decisions about women.

I said the other day on the Senate floor, and I repeat it, I have three daughters, and I respect their judgment about how they ought to conduct their pregnancies and how they ought to live their lives to make sure they are healthy to take care of the nine grandchildren I have been blessed with, and not run any risk--my middle daughter is on her fourth pregnancy right now--not to run any risk that anything was amiss with her health that she couldn't take care of her three children.

What about the administration's attempts to deny our troops their imminent danger pay?

I just came from Walter Reed Hospital with other Senators, and I met a couple of people there. One was a young double amputee from Rockland, MA. He was in Iraq 3 weeks. He has no hands. Part of one arm is still in place. Most of the other arm is missing. It is a tragedy.

My guess is he was somewhere in his early twenties. He had been a member of the National Guard a few months and was called up from Rockland, MA.

By the way, two of our Senators--one former and one present, amputees themselves; one with three limbs missing--went to Walter Reed to console this young man and encourage his spirit and his belief that life can be functional. Senator Cleland, now out of office, and Senator Inouye with an arm missing that he lost in southern Italy, went to cheer up this young man.

What about them? We are using time here to talk about these choices when they are not choices. They are not qualified by the judgment of many. But why carry on this battle? Why this stick in the eye to the public at large when there are so many other issues about which to talk?

I had a chance to be on TV this morning with one of our Republican colleagues. We talked about what was going on. He said: We are not losing any time. My duty was at 5 o'clock in the morning. What time did we lose? It occurred to me, what a foolish response. If it is important enough to be here at 5 o'clock in the morning, then why isn't it important enough for us to be taking care of what we have to in Iraq and getting those kids home and making sure we get as many allies as we can to pick up this burden we have and share it.

Why can't we talk about that at 2 o'clock in the morning or 3 o'clock in the morning or 4 o'clock in the morning? I don't get it. Why can't we talk about 3 million jobs lost and talk about a way to adjust that situation--jobs lost.

What about the administration denying photographers the right to honor our fallen heroes coming back in flag-draped coffins? When do we say the public doesn't have a right to honor them and remember that these people gave their lives on behalf of our country? Why is that not permitted? Why is it so obscure? We can't see them. They don't show the people what has really happened in the war. Maybe they won't think it is such a bad idea that we don't have the kind of partnership we ought to have over there fighting the battle.

On Monday, I went to a funeral in Newark, NJ, of a young man named Joel Perez. He was a sergeant. He was on the Chinook helicopter, as was the man we visited this morning. There are bones broken all over his body, but he is glad to be alive. He is very happy to be alive. He knows what happened to the 16 others. They lost their lives.

Since May 1, the President has found time for 36 fundraisers. How many families did he visit to console, to tell them he is sorry and acknowledge their bravery in serving? No, the debate is on four judge nominees. What do the American people think about that?

Look at the majority leader's own Web site. He said he did a poll. The poll said: Should the President's nominees to the Federal bench be allowed an up-or-down vote on confirmation as specified in the Constitution?

First error, ``as specified in the Constitution.'' I will talk about that in a minute. The poll answers came in: 60 percent said no, the President's nominees to the Federal bench ought not be allowed an up- or-down vote if the opposition doesn't want to give it to them--60 percent. But they quickly changed this Web site because they didn't like the answer they got. So they changed it to a more mealy-mouth kind of thing: Should we do it or shouldn't we do it? The Constitution says ``advise and consent.'' It doesn't say consent and then advise, which is what they would like to see us do here. They would like to see us go ahead and say: Mr. President, that is what you asked for; that is what we are giving you. No, our responsibility in the minority and in the majority is to stand up for what we believe and what the people who sent us here want us to say, and if they don't want us to say it, then they will reject it at the appropriate time.

This Senate spending 30 hours to talk about four judicious--judicial; they are not judicious at all--judicial nominees? Meanwhile, 3 million have lost their jobs since this President took office.

I ask my colleagues to listen closely to this fact. In the private sector, two Americans have lost their jobs every minute that George W. Bush has been President. Two families without an income; two families where there may be some humiliation about an inability to go to work.

I remember my late father who finally, in the desperate days of the Depression, had to take a job with the WPA. He was embarrassed about doing it because it looked like welfare. It was a job. The Government had created jobs. He was humiliated having to take that job, but he did it because he wanted to provide for me, my mother, and my little sister. He had to do it.

What about those 3 million people? What are we doing to help them go to work? The latest survey shows there are a total of 8.8 million Americans currently unemployed; 3 million have lost their jobs since this administration took office; and the reality is this administration doesn't have a jobs plan. Not surprising. It has a bad record on jobs.

Let's look at this chart of the last 80 years. It shows jobs gained or lost during administrations, in the millions. We have two administrations identified in red. By the way, those in green were Harding, Coolidge, Roosevelt, Truman--a variety. None of them, except President Herbert Hoover and George W. Bush, have lost jobs during their administrations. It is a sad commentary.

The chart shows actual jobs gained or lost in the millions, and here we see there are 3 million lost.

The two blobs on this chart are the administrations of Herbert Hoover and the current administration. When we look at this chart, there are only two administrations in the last 80 years that have resulted in a net job loss: this administration and Herbert Hoover's administration. I don't remember thinking about it during Hoover's time, but I was there at the time. I knew it was a disaster in my house.

I would think the Bush administration doesn't enjoy sharing this kind of company, but the inaction of this administration on this issue makes me wonder if they understand the damage they are causing to the economy and families across the country. But we are taking 30 hours of time. The 30 hours don't belong to us. They belong to the people of the country. It belongs to our constituents.

Taking 30 hours of the time of the Senate not to pass a jobs creation bill, not to pass incentives for companies to continue manufacturing in the United States, not to extend the unemployment benefits for people victimized by this economy--none of that. We are here to discuss a couple of extremist judicial nominees the President wants to force down our throats.

President George W. Bush presented himself in the beginning days of his campaign and in the early days of his administration as being a uniter, not a divider, except that is far from the truth. I have never seen a more ideologically partisan White House, and I served with Ronald Reagan when he was President. I served with George Bush, Sr., when he was President. I served with President Bill Clinton. I have never seen a more ideologically partisan White House. This administration and my colleagues across the aisle are driven ideologically to the point that I think there is kind of an impaired vision to the simple, clear, and irrefutable facts.

The Senator from Wisconsin said it. As of today, the Senate has confirmed 168 judicial nominees recommended by President Bush and blocked 4 in 3 years. President George W. Bush has gained more confirmations than President Reagan did in his first full term. Mr. President, 168 confirmed judicial nominees is particularly impressive because 100 nominees were confirmed when Democrats still controlled the Senate in the last Congress. We did our share, and we will continue to do our share, but we will not let the judicial system and the citizens of this country be taken advantage of, not if we can help it.

This is a 98-percent rate of confirmation for President Bush's judicial nominees. That is an impressive rate. As I said before, the Constitution says that the Senate must advise and consent, not consent and then advise, which is what we would like to see happen here. It is the Senate's job to put a check on the President's appointments. If it were not, then the Founding Fathers would not have written the consent requirement into the Constitution.

I think it is instructive to look back at the treatment of President Clinton's judges by the Senate. During the Clinton administration, 248 Clinton judicial nominees were confirmed, and 63 were blocked from getting votes. That is 20 percent of all President Clinton's nominees, and now there are complaints from the other side because President Bush is not getting just 2 percent of his choices.

During the Clinton administration, Republicans placed secret holds on judicial and executive nominees preventing many fine Americans from even having a hearing in the Senate Judiciary Committee.

The Senator from Wisconsin is on the Judiciary Committee. He knows and everybody in this room knows that you don't have to have a talkathon to kill nominees. All you have to do is just not bring it before the committee, or if they go before the committee, not bring them before the Senate. That is the control of the majority.

We did it differently when we were in charge. We processed most of the administration's recommendations.

In total, 63 Clinton judicial nominees and more than 2,200 Clinton executive nominees were defeated by delay or no votes. These numbers are unchallengeable. We see it here: Clinton nominees from 1995 to 2000, number confirmed, 248; nominees blocked, 63, 20 percent of the total. Of the Bush nominees, we processed 168; nominees blocked, 4; total, 2 percent. That is what is happening. And now to have this circus taking place with the crocodile tears about how we treated these nominees, and not one word about how we are treating the public. No, no.

No, I would like to finish, Mr. President. I am sorry. At such time as the floor shifts hands, I will be happy to answer any questions.

The fact is, Democrats have used the filibuster only to block nominees with records of extremism. Americans deserve an independent judiciary with fair judges who will enforce their rights and uphold the law. Republicans want Democrats to blindly confirm result-oriented, agenda-driven judges whose rules of judicial interpretation change to meet their ideological agenda.

It is pretty obvious, I guess, to the American people, we are not consenting. That is the choice and the right that the Founding Fathers gave us as Senators. I am not about to give up that right.

I ask the Chair, how much time do I have remaining?

I will.

I say to my friend from Nevada, I hear two principal concerns from the people in New Jersey: One, jobs; having to get to work because not only is it the deprivation of funds and the shortage of being able to afford, many times, the necessities, but it is the humiliation of not being able to provide for your family. That is what they talk about.

Do you know what else they talk about in New Jersey? They talk about health care. They talk about prescription drugs. People in the senior community--and I happen to fit, thankfully, in that community--are concerned about the prescription drugs they can't get to sustain themselves.

We saw things in the paper today--I read these with great interest-- about the successful effects of a drug that is called Lipitor. I am not advertising any medication, but look in the paper and you will see that it has reduced the possibility of heart attack. People want those drugs. We have got to live this long because, A, we were lucky and, B, maybe because we had the right doctors and the right prescription drugs to keep us going. So that is what they think about.

I have yet to have a call, that I am aware of, that said: Senator, for crying out loud, pass those four judges and, by the way, I am jobless, in case you should think about it; or: Pass those four judges and do not worry about the environment because we can stand some more toxic waste in our skies or on our ground. No, do not worry about those things. Senator, you just take care of getting those four people the job that the President and the Republican Party want them to have.

To answer the question the Senator from Nevada asked--and I am reminded about this constantly--3\1/2\ million people, since January 2001, have lost their jobs in manufacturing. It also breaks the economic structure that we desperately need. We need manufacturing jobs because those are decent-paying jobs. One does not have to have a college education there, or a master's degree, or anything like that for most of those jobs. It is for the people who want to go to work who have not had the advantage of getting the extended education.

That is what they want us to talk about. They want us to talk about what is happening: Where are these jobs going that are leaving our shores? What should we do about it?

Well, we do not have time for that debate. I have to remember to tell them that when they call up. Sorry, we cannot discuss jobs or prescription drugs, or your kid's schooling. We do not have time for it. We are busy, very busy, and we are under the gun, and that is to get our appropriations bills done and things of that nature. We have to get it done so that we can end this session and we can get back to our communities and talk to our people and do what we have to, to stay in touch. No, we do not have time for that.

Mr. President, I reluctantly yield.