Unemployment Compensation Extension Act

Mr. President, I begin by thanking my colleague from Michigan for his comments. I intend to share some similar thoughts this evening.

First of all, let me begin by stating my own views about this process this evening and note--some have chosen to use the word anger--but I rise more in sadness.

We are gathered to engage in this--I do not know what it is properly called--I guess a filibuster. It is unique in that the majority is conducting a filibuster. Normally, a filibuster, for those who are interested in how this works, is conducted by a minority within a minority, but we find ourselves this evening a few short days away from the end of this particular session with a tremendous amount of unfinished business, and we are spending the next 30 hours--or 26 hours, whatever is left--on this particular debate and discussion, which I suppose has some value in the mind of some. As far as this Member is concerned, I regret in some ways even addressing the matters before us this evening. The better approach might have been to protect the rights of the minority but not to engage in this debate.

There may be four votes that will occur on Friday. Three of them involve individuals who are seeking appointment to the Federal judiciary. With all due respect to these particular nominees, putting aside one's views or whether they are for or against them, history will probably little note nor record for any great length of time who they were. That is not in any way to suggest they are not worthy individuals, but in the passage of time, these nominations will not register terribly significantly in the history of the debates of this great Chamber.

I arrived as an employee of the Senate about the age of 17 when I sat on these steps. Lyndon Johnson was the majority leader of the Senate. There was Everett Dirksen and Senator McClellan. It was a sea of giants who served in this body. I tried to imagine this evening whether or not they might proceed in a debate like we are having, but I cannot imagine them doing so, quite candidly.

I am afraid we are diminishing dramatically the incredible historic role of this institution by this process. When I think of all the matters that deserve our attention, when I think of all of the Herculean debates that have occurred in this Chamber throughout the 217-year history of our country, some of the great debates deciding who we were as a society--I sat on that step over there and listened to the all-night debates on civil rights in the early 1960s. I listened to southerners argue vehemently on behalf of their position regarding States rights. They were incredible debates. Never once in all of that process that I watched as a child sitting out there did I ever hear anyone suggest we ought to change the rules of the Senate.

Even among those who were outraged that there were those who were arguing about denying a substantial minority of citizens of this country the right to participate freely in the democratic institutions of America, never once did anyone suggest we ought to somehow curtail the right of a minority to be heard in debate, extended debate. Never once. Yet here we are tonight, having an extended debate over three or four judicial nominations. We may be asked on Friday to cast a ballot about amending the rules of the Senate to fundamentally change what has been a central ingredient of why this institution has been as celebrated and honored throughout the 217-year history of this country. That I find rather appalling, that we would gather at this hour with all of the other issues in front of us.

I spent 2 hours yesterday at Walter Reed Hospital. I took my 2-year- old daughter out to visit with the young men there, many of whom are missing limbs. I saw several of my colleagues out there, by the way. Sam Brownback was out there. I went to spend a quiet couple of hours to express to these young men my great admiration for what they had done for their country.

I would like to think they might think something larger of this institution other than that we would engage in a discussion and debate tonight about three or four judicial nominations. Other of my colleagues have made comments about the numbers that have been approved and not approved. I am not a member of the Judiciary Committee. I have heard my colleagues extol the virtues of these nominees. I have heard others excoriate them. I will leave that debate for others. The vote I am most worried about is the possible fourth vote that may occur on Friday, and that is whether we are going to change the nature of this institution because some of us are disappointed about some outcomes of votes. I would hope whatever else ensues or passes over these next 30 or 40 hours that when it comes to that vote, maybe there will be those who will get up and defend this institution.

It is inappropriate for me to do so, but I will note the fact that there are those watching this debate this evening in this Chamber who are of a younger generation. They are students, I suspect, in some way wanting to participate or witness what some have tried to describe as an historic event. I would hope they take note of the arguments in debate about what is important, why the Founders created this institution, why we are not a unicameral body, as some State legislatures--why

we are a bicameral body, why it is there is down this corridor a House of Representatives at that end of the building and a Senate at this end. What are the fundamental distinctions between these two branches of one House? Why are we different? Why do we exist? What did the Framers have in mind when they created this institution? It is this very debate that gives justice, gives rationale to the existence of the Senate.

One needs only to go back to the Federalist papers, and as I look around this Chamber there are the forebears of those who sit in these seats who made the most eloquent arguments on behalf of the notion, of the idea, of having extended debate and the right and power to amend. Those are the two central ingredients which make this institution so unique.

When we begin to erode those very powers, then the very justification for this institution begins to diminish. We end up creating nothing more, potentially, than a mere image of the body that is at the other end of this hall.

I gave some remarks going back a number of weeks ago in front of the Rules Committee. I am the ranking Democrat of the Rules Committee. As such, I bear a responsibility, along with my colleague from Mississippi, who is the chairman of the committee, to consider such matters. I have great respect for the majority leader, but I would hope as we discuss the idea of amending rule XXII, that we would keep in mind what the Framers had in mind when it came to nominations, particularly nominations of a life tenure.

It is one thing to be talking about nominations during the duration of a given administration, but with judicial nominations it is for life. Depending on how young that person may be, an Federal judicial appointment can go on for decades. And so the Framers, given the experience they had come through, with the tyranny of a king, desired to create a system whereby the third coequal branch of government would have powers delineated between the executive branch to appoint and the legislative branch to approve, to provide its advice and consent.

If the ability of this institution to thoroughly exercise that right of advice and consent is destroyed, then we run the risk of creating a judicial branch, a coequal, that becomes nothing more than the hand servant of the executive. That is what the Founders worried about. It is what Senator Rutledge of South Carolina argued for when he spoke eloquently about the importance of keeping an independent judiciary.

In fact, for many weeks, during the constitutional convention, they argued the President ought to have no rights when it came to judicial nominations, that that right ought to be exclusively contained in the Senate of the United States. As a result of compromise, it was ultimately decided that the power to nominate individuals should reside in the executive, and the power to approve should remain here, thus guaranteeing, to the extent possible, an independent judiciary.

What is being suggested by the fourth vote we may be asked to cast on Friday is that we undermine that very principle which has survived for 217 years. I would hope with a resounding vote, both Democrats and Republicans, whatever strong feelings there may be about these three or four nominees, or whatever the number is, that we would not allow this institution to be diminished, caught up in the passions of these nominations.

History will not record nor remember who these people are, but if we undermine this institution's ability to do what our Founders asked us to do, then history will record forever our shortsightedness.

I regret in a sense having to engage in this debate. I was stunned to learn that in addition to this 30 hours of ``circusry'' going on here, and the three votes that will occur on Friday, there may be a serious effort to vote on whether this institution should give up its right to be able to have extended debate on judicial nominations.

This institution and its history deserve more. The fact that the Senator from Michigan and I have to arise at 10 at night to argue about something as fundamental as a rule change in the Senate and to be asked to vote on it with maybe 5 minutes of deliberation before that ballot is cast on Friday is incredible to this Member. It is incredible we would have to do this.

Does not anyone care about being here? We are only temporary stewards. My colleagues and I are just guaranteed a short amount of time to be a part of this institution. We do not own this. We bear an historical responsibility to those who came before, but an even greater one to those who come afterward, to see to it we maintain the order and the ideals embodied in the creation of this institution. That we would relegate a fundamental change in the rules of the Senate to a debate occurring between 10 and 2 and 3 and 4 and 5 a.m. in the morning, with a vote to that may be cast on Friday without further deliberation, I find stunning in its dimensions.

This is a matter that deserves far more deliberation and thought, whatever one's views may be on these nominations. To find ourselves, with all of these other issues that are in front of us, to have to defend the Senate in the wee hours of the morning about a rule that has sustained us as an institution, is something I regret deeply.

I hope my colleagues, whatever their passions may be about Miguel Estrada, Priscilla Owen, William Pryor, and Charles Pickering--I do not know these individuals. I presume they are good people, whatever differences we may have, as I am sure there have been people who have been nominated in previous administrations who are also good people who were rejected because the majority today disagreed with them. I am sorry that happens to people, but unfortunately, that is one of the aspects of a process such as we have, as imperfect as it is.

The idea that our passions are so wrapped up in these individuals that we are willing to squander the rules of the Senate is disturbing. We should always know that it may only be a short time before roles may be reversed. This party in the minority may be the party of the majority in the future. And in the future, the party of the President may, of course, be different. I would hope we would never suggest changing the rules of the Senate because we are momentarily disappointed that certain individuals, whatever contributions they may have made in their lives and to their communities, are so deserving that they warrant changing the rules of the Senate because they are not getting a position they seek. I hope we have not come to that.

I yield the floor.

Mr. President, parliamentary inquiry: Are we now starting 30 minutes of time on this side of the aisle?

I thank the Chair.

Tonight the Senate is engaging in a proceeding to call the attention of the American people to a very serious matter which exists on the confirmation of Federal judges. It is not a matter which occurs just when there has been a Republican President, but it has occurred also when there has been a President of the Democratic party, when the Republicans controlled the Senate. It has gone back at least to 1987, during the second 2 years of President Reagan's administration.

When the Senator from Illinois calls this theater, he may be right, but it is factual theater, and it is worth the time of the Senate for the American people to focus on this important issue.

It is now a little after 8 o'clock Eastern standard time. Frequently, the Senate Chamber is dark at this time. It is true we could be conducting other business, but there are many days when the Senate has tarried. For example, on Monday, the day before yesterday, when there had been a longstanding expectation that the Senate would not be in session because Veterans Day is traditionally not a day in session, but we came back specially to try to finish our work by the projected date of November 21, unexpectedly we were greeted with a 10-hour filibuster by Senator Reid on the other side of the aisle. He has a right to do that--he is a Senator--under our rules.

It doesn't lie in the mouth of somebody to say we are spending time where we could have been working very hard on the appropriations process. I do hope we finish that process. I have been an appropriator for my 23 years in the Senate, and we should move to complete that work as promptly as possible.

But the subject matter tonight is the confirmation process, and it is a very serious subject. When President Reagan was in office, during the first 6 years where the Republican Party controlled the Senate, President Reagan secured confirmation of 82 percent of his district and circuit court nominees. In 1987 and 1988, when the Democrats were in control, that percentage dropped from 82 percent to slightly above 63 percent. When President George H.W. Bush was in office, all 4 years had the Senate in the control of the Democrats. The Senate confirmed slightly more than 62 percent of President Bush's nominees, and 54 percent of his nominees to both circuit and district courts were still pending in the Senate when his term ended.

President Clinton had about the same experience. In 1993 and 1994, there was an average of 79 percent of his district and circuit court nominees confirmed when his party controlled the Senate. For President Clinton's remaining 6 years, the percentage dropped to 54\1/2\ percent. So that the business of having the President of one party stymied or reduced in effectiveness on confirmation when the Senate is controlled by the other party has been really an apportionment of blame pretty much equally between Democrats and Republicans during the course of the Reagan, first Bush, and Clinton administrations.

The matter has come to a substantial decline, when, for the first time in the history of the Republic, some 216 years, there has been a filibuster of circuit court nominees.

I think it is important to note that we are not seeking tonight to break a filibuster. That would occur when we would seek to have those who were objecting to the judges continue to talk and talk until they ran out of energy or effort and stopped talking so that we could come to a vote. That was what happened in the filibusters on civil rights legislation in the 1960s.

The last time there was a filibuster in the Senate was 1987 when the subject was campaign finance reform. Senator

Byrd was the leader of the Democrats. Senator Dole, the leader of the Republicans, called all of us into the cloakroom behind us in the Senate Chamber at about 2 o'clock one morning and said: I would like all Republican Senators to stay off the floor. The reason Senator Dole asked everyone to stay off the floor was to compel the party in power, the Democrats, to maintain a quorum of 51 Senators because if there are not 51 Senators present, then any Senator may suggest the absence of a quorum, and the Senate conducts no further business.

When Republican Senators, including Arlen Specter, absented ourselves from the floor at Senator Dole's request, Senator Byrd, the leader of the Democrats, countered with a motion to arrest absent Senators. Sergeant at Arms Henry Giugni was then armed with warrants of arrest and started to patrol the halls, and the first Senator he found was Senator Lowell Weicker.

Sergeant at Arms Henry Giugni was a little fellow, about 5 foot 6 inches, 150 pounds. Senator Weicker was a big guy--still is--about 6 foot 4 inches, 240 pounds. This was at about 3:30 in the morning. Sergeant at Arms Giugni decided not to arrest Senator Weicker. I think he made a good judgment. Then he started to go around and knock on Senators' doors.

Senator Packwood foolishly answered his door. Senator Packwood was then carried feet first into the Senate Chamber. This is a true story. You don't get many out of Washington, but this is a true story. That incident attracted a great deal of attention. C-SPAN became the channel of choice instead of Jay Leno.

In having this proceeding, it is more accurately called a marathon than a filibuster because it is not a filibuster. Republicans are doing most of the talking. We seek to attract the attention of the American people to what is going on in the judicial system.

We have at the present time judicial emergencies in four of the circuit courts of appeals in the United States: the Fourth Circuit, the Fifth Circuit, the Sixth Circuit, and the Ninth Circuit. When these judicial emergencies occur, people are denied their day in court, cases languish, the matters are not decided, and the fact of life is that justice delayed is justice denied.

Without burdening the record unduly, it is worth noting that in the Sixth Circuit where there is a judicial emergency, a 50-percent vacancy rate on that court, a death penalty case has been pending for more than 8 years. A plaintiff in a civil case on a job discrimination suit trying to get a job had to wait some 15 months before the case came up. That individual died before the case was ever heard.

The ultimate answer, I suggest, is that cooler heads are going to have to prevail, and we are going to have to establish a principle where it applies regardless of what party controls the White House or what party controls the Senate.

Three years ago, I proposed a judicial protocol to establish a timetable that 60 days after the President submitted a nomination to the Judiciary Committee, there had to be a hearing; 30 days thereafter, there had to be action by the Judiciary Committee on the nomination; 30 days later, the matter had to be brought to the floor of the Senate. Those times could be extended on cause shown by the chairman of the committee with notice to the ranking member or by the majority leader with notice to the minority leader. But those time parameters should be established.

If there were to be a strictly party-line vote in the Judiciary Committee, then that matter ought to be advanced to the Senate floor even without having the customary majority vote to bring it to the floor.

One of the grave problems which may confront the Senate is what is going to happen next when there is a Supreme Court vacancy. The filibusters conducted up until the present time constitute an effort to elevate the confirmation process which under the Senate rules calls for 51 votes, or a majority, to 60 votes which it takes to end a filibuster.

For those who may not know what a filibuster is, that is when one party keeps talking and talking and talking endlessly. But that may be brought to a close under the rules of the Senate with 60 Senators voting to cut off debate. That then leaves 100 more hours to debate, plenty of time even after cloture, even after debate is ended or limited, before the matter comes to a vote.

It does not require a Nostradamus to predict or to understand that the current approach on imposing an ideological test is a precursor for the Supreme Court of the United States. When the Senate is constituted as it is at the present time, it is easy to project that we will find a Supreme Court nominee, who does not satisfy the standards of the other party, subjected to a filibuster and to have a vacancy on the Court. What we are moving toward is deadlock.

Right now, there still remains an aura of some civility in this Chamber, notwithstanding our disagreements on the tactics that one side or the other may use in the Senate. We know that the next vote is the most important vote. Notwithstanding the rancor of the arguments, we do understand that we are here to conduct the business of the people of the United States. The judicial system is limping along--still in motion but limping along.

We face a grave potential problem. If the current course of conduct continues so that when we have a nominee for the Supreme Court of the United States, we have this deadlock, and then with so many 5-to-4 decisions by the Supreme Court deciding the cutting-edge questions in our society, we may look to 4-to-4 decisions, and that means no ruling by the Supreme Court of the United States.

One additional thought. Senator Santorum and I use in Pennsylvania a judicial nominating panel under an arrangement where the President has three nominees and the Democrats have one nominee. During the 24-year period from the time President Nixon was elected until the time President Reagan was elected, Republicans controlled the White House for 20 of those 24 years. It seemed to me it was an undue balance of judicial nominees without having the Democrats with any nominees in the district courts, so an arrangement was made when Senator Heinz and I were the Senators, carried on by Senator Santorum and myself, to allow the party out of power, the Democrats, to have one nominee out of three for the President--one for the party out of power. That has had a very salutary effect in bringing a little bipartisanship into the process.

I do not suggest that for the Supreme Court. I do not press it for the court of appeals. But I think it is an idea worth considering for the U.S. district courts.

In conclusion--the two most popular words of any speech--it is my hope that something constructive will come out of this marathon. It is my hope that there will be some attention attracted to it. When the Senator from Illinois characterizes this as theater, I don't think that is especially derogatory because it is fact theater. The American people would be well advised to watch this theater than some of that which is on the national networks tonight. This is real. Those sitcoms go on and on and are repetitious. More important than the factual theater is that we are on a vital issue.

I hope the Senators hear from the American people. I hope the American people tell us what they would like to have done: Whether you would like to have this kind of projected stalemate where nominees wait endlessly and where it takes 60 votes, a supermajority, to cut off debate and bring it to a vote, or whether you would like us to follow the constitutional mandate of 51 votes in confirmation so that these judges may be confirmed, may take their places to see that justice is done in an equitable way within a reasonable time period.

I thank the Chair and yield the floor.

Mr. President, I ask unanimous consent that the Senate proceed to legislative session and 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 and passed, and the motion to reconsider be laid upon the table.

Mr. President, this is an unfortunate debate, and I regret that all of us are here this evening. This debate will do nothing to speed the confirmation of judges about which this session has been called to consider. It will do nothing for the economy, for health care, for education, to protect the environment, or to advance the interests of our Nation's security.

It will, however, at least in small part, bring this august body, about which we care so much, to additional disrepute with the American people, making us look ineffectual and irrelevant.

In some respects, the Senate is being reduced to something close to a farce. It is becoming rapidly not the world's greatest deliberative body but instead the world's greatest Kabuki theater, a place where speeches are given to which very few people listen, no minds are changed, and votes are then held with complete predictability of results.

The search for principled compromise, which has always been a long and honorable part, distinguishing this body from other legislative bodies, has been abandoned in favor of sterile, ideological warfare, satisfying to only the most fervent of partisans. After this debate, I suspect that the far right will be satisfied, I suspect that the far left will be satisfied, and that the rest of the American people will be left scratching their heads, wondering, what on Earth are they doing?

I am reminded of nothing quite so much as some lines from Shakespeare when he characterized another instance as: Great sound and fury that signifyeth nothing.

That is tonight's debate: Sterile, empty, barren of results.

This debate, unfortunately, is a microcosm of everything the American people have come to not like about both the Congress and Washington, DC, something that is all too often all process and partisanship, with no progress on matters of substance and importance to the American people.

Too often the American people view Washington as totally self- absorbed, indifferent to their real concerns, and ineffectual in accomplishing much of value on the things that do matter in their daily lives: Health care, jobs, education for our children and grandchildren.

We must stop this cycle of constant recrimination, a process in which the minority obstructs to gain power and then turns around and complains about obstruction once power has been obtained. It makes us all look bad.

If hypocrisy had a monetary value, we could easily erase the Federal deficit because of debates such as the one we are engaged in tonight.

What is this all about? What are the facts that the American people deserve to know? Is it true that judges are being obstructed solely because of their partisan affiliation? That obviously cannot be the case. One hundred and sixty-eight of President Bush's judicial nominees have been confirmed. I assume that all of them, if not almost all of them, are good card-carrying Republicans or he would not have nominated them. Obviously, there cannot be some stonewall to object to Republicans being appointed to the Federal judiciary. This simply is not the case.

Are judges being rejected up to a point based solely upon ideological concerns? This also cannot possibly be the case. Of these 168 judges who have been confirmed, I assume that all, if not almost all, are in fact fairly conservative jurists, or hold out the prospect of being fairly conservative jurists. Otherwise, they would not have been nominated by this President.

So up to a point, it is obvious that conservatives are not being denied their place upon the Federal judiciary. This is all about power, the balance of power between the executive and legislative branches and whether the advise and consent function should be abolished whenever the Senate is controlled by the party of the President. It is all about the balance of power between the minority and the majority caucuses in this Senate and whether the right to debate should be limited in the case of judicial nominees, unlike any other business taken up by this body.

It is also about tipping the balance of power within the Federal judiciary and setting the stage for a Supreme Court vacancy to be filled by someone of even the most extreme ideological conviction and views.

Is that possibly what the Constitution had in mind when it established the right of advise and consent in this Senate? Is that something for which we should abrogate the right to unlimited debate in this Senate, selecting judicial nominees in exclusion to all other topics in this regard? Of course it is not.

We are ignoring the issues this evening that are of most importance to the balance of the American people. When I go home, I hear great talk about the economy and job losses. In the last 3 years, we in the State of Indiana have lost approximately one out of every six of our manufacturing jobs. One hundred fifty-nine thousand jobs, nonfarm jobs, have been lost during this period of time. That is what I hear people talking about. Small business men wonder how they are going to compete in the global economy today. Large business men and women wonder how they are going to make ends meet, particularly with the skyrocketing cost of health care. Many people ask how we are going to compete with China, India, and other countries that all too often seek to abuse the rules of international trade to seek unfair economic advantage. Those are the subjects we should be debating tonight.

Those are the topics that are on the minds of Hoosiers to whom I talk. Very rarely am I asked about vacancies in the Federal judiciary.

When I was returning from Indiana just last evening, one of the security guards, a gentleman who looked somewhat advanced in his years, called out to me as I was going through security, saying: Senator, what about the Medicare drug benefit? Is something going to get passed?

I said: I hope so.

He said: Well, it probably will not be structured the way it ought to be anyway.

I said: Well, I hope not. We are going to go back and see if we cannot hammer out a reasonable compromise.

I see some of my colleagues, including Senator Grassley, who are laboring mightily toward that very end, and I salute him for that. That is what we should be debating tonight, how to reconcile our differences on providing drug coverage to senior citizens who are asking about it; how to make health care available to the American people in a way that is accessible and affordable. That is what is on the minds of Hoosiers to whom I talk. That is what we should be debating this evening in this body.

What about our education standards and what about providing our children and grandchildren with access to quality affordable education? When I think about the economy of the future, more than anything else it is going to require advanced levels of education,

skill, and know-how. We are going to prepare my young sons and the rest of our children and grandchildren to have a better standard of living in a prosperous economy. It is going to be based not upon how strong they are but upon how knowledgeable they are, how well trained they are, how skilled they are. That is going to enable us to build a better economy. We are not debating that tonight.

At no point, in my recollection, have we set aside 30 hours to debate quality health care. At no point, in my recollection, have we set aside 30 hours to debate the economy or what we are going to do to create quality jobs. At no point, in my experience in the Senate, have we set aside 30 hours to talk about what we can do to debate quality education in the way we are setting aside these 30 uninterrupted hours in the wee hours of the morning. This is a clear example of misplaced priorities.

I hope this Senate will extricate itself from the morass into which we have sunk and begin to rehabilitate ourselves in the eyes of our countrymen and women. I hope we can once again begin to address the great issues that are of concern to the American people, that press all around us--what our country can do to be more prosperous, more just and more free. Above all, I hope that we as Senators can remember why we are here, and that is not to wage war upon one another but instead to once again renew the struggle against the ancient enemies of man: Ignorance, poverty, disease. That is why we are here, not sterile ideological debates.

I hope we can learn from this experience so that we will not have to repeat it. I hope we can focus on making progress, not dividing this body over the country. This aisle that separates the chairs, Republicans on one side and Democrats upon the other, gives us the opportunity to build bridges of reconciliation and understanding, forging principled compromise which has always been the hallmark of this institution. We have strayed from this heritage for too long. It is a tradition to which we must return if we are to once again recapture the confidence of the American people.

The final thing I will say is that we had an election in Indiana for our mayors this last Tuesday, a week ago yesterday. Something on the order of 20 percent of the people of my State turned out to vote for our mayors. When I had the privilege of being elected to this body in 1998, about 36 percent of the eligible voters in my State took the time to go to the polls. That is barely one out of three. In the closest Presidential election in the history of our country 2 years ago, decided finally by the Supreme Court, barely half of the American people felt connected enough to their institutions of self-governance to take even the most elementary step of citizenship--going to the polls to register their preference.

What has happened to our democracy? What has happened when 20 percent or 36 percent or a bare majority feel invested enough in the cause of shaping their own destiny to take the time to participate in our elections? If we are going to renew our democracy, if we are going to lead this country to meet the great challenges of our time, if there is one thing I am absolutely certain, it is that it will take all of us, each and every one of us from every ethnic group, racial group, gender, and walk of life.

Too many people have become disillusioned. Too many cynical, too many skeptical whether this body and their government can make a difference anymore. Events such as this debate tonight do not help.

We need to get back to the business at hand, putting before the American people an agenda of hope and opportunity so we can once again reenlist them in the cause of making this the greatest democracy known to man. That, at the end of the day, is what has brought us here. I suggest that is the business to which we must once again return.

I yield the floor.

We cannot hear you.

Mr. President, first of all, I want to lay it on the record that Carl Levin, the senior Senator from Michigan, is not inconsistent in any way. We all know what happened to Carl Levin and the Michigan delegation is the fact that there were no hearings on the judges he wanted--no hearings.

That is the reason some 20 percent of the Clinton nominees never made it. They refused to hold hearings. Carl Levin would have welcomed the procedure we are going through because if it had gotten here, and there had been an attempt to filibuster, cloture would have been invoked.

Carl Levin, I say to my friend, the junior Senator from Virginia, is not and has not been inconsistent in any way.

I want to refer to this. We have to understand what we are talking about here. Mr. President, 168 judges have been approved; 4 have been disapproved. For people to continually come on this floor, as if history facts have no bearing on what they are talking about--they believe, on the other side, if they keep saying it long enough, that there have never been filibusters before--that people will believe it.

I show everyone this New York Times headline of September 25, 1968. Headline: ``Critics of Fortas Begin Filibuster, Citing `Property'.'' ``Griffin Attack Lasts 3 Hours. . . .''

Of course, we know that was a filibuster. Senator Byrd participated in it, as we recall. I say to my friends on the other side of the aisle, please do not say this is the first time there has been a filibuster, because it is not true. It is not true.

I also want to refer to the next chart, something that is important to the American people. What do I think we should be dealing with? During the time President Bush has been President, we have lost more than 3 million

jobs in the private sector. I think that is fairly significant.

Also what we should be talking about is my next chart to show what the President of the United States and his administration have done to create jobs in America.

Here is what the President has done to create jobs. Can everyone see this chart? In fact, we can turn it around. It is the same on the other side, isn't it? Let's see what is on the other side. Yes, the same thing. This is what the President has done to create jobs: nothing.

He has lost 3 million jobs. That is what we should be talking about here tonight, not the fact this is the first filibuster we have ever had in the history of the country. You can say it once, twice, 1,000 times--it is not true. Other judges have been filibustered and we have had attempts to invoke cloture. It has been successful sometimes; sometimes it has not been successful.

Let's look at this next chart. It is interesting we are spending 30 hours talking about things we should not be talking about. We are talking about judicial vacancies, which are at the lowest rate in almost 15 years. What we should be talking about are those things that are going up, not the thing that is going down. We should be talking about the 44 million Americans who tonight will go to bed with no health insurance. That is what we should be talking about. We should also be concerned about the millions of Americans who are underinsured.

Mr. President, 44 million people have no health insurance, and we are here spending our time lamenting about the 4 people who want job increases; that is, they want to get better jobs. Miguel Estrada, let's not shed too many tears for him. He makes a half a million dollars a year. I think we should be talking about the people who have no health insurance, about the people who have lost jobs in this administration-- the 9-plus million people who are unemployed, as we speak. Why can't we spend that time, that is, 30 hours dealing with issues that are important to the American people?

We also know, in addition to having 44 million people uninsured, that during the last 3 years those people who are poor in America have increased in numbers. The numbers have ballooned. We have the poor getting poorer and the rich getting richer, and we are squeezing the middle class so it is getting smaller and smaller. Wouldn't it be nice if we talk about poor people? I recognize they do not have lobbyists. Maybe they do not have Gucci shoes and these big limousines, but they still deserve our time.

The poor are getting poorer and the rich are getting richer. Shouldn't we spend part of this 30 hours talking about them? The unemployed: We have talked about that issue. I have talked about it tonight on more than one occasion. But the American people have to recognize that during the administration of George Bush the unemployment rolls have gone up.

The national debt: What has happened to the national debt during the last 3 years? It has gone up, way up. It is interesting to note that during the last 3 years of the Clinton administration, we were spending less money than we were taking in. We were actually paying down the national debt. We were being criticized for paying it down too fast: Be careful; you can't do that.

Well, whoever heard that term really took it in spades because the fact of the matter is, we are now increasing the national debt. This year's budget deficit will be the highest in the history of our great country.

Everything that is going up we are not talking about. We are talking about people who have jobs, and they lost an opportunity to get a promotion.

I ask unanimous consent that the Senate now return to legislative session and 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, passed, and the motion to reconsider be laid on the table.

I am not surprised. I am not surprised. We have the audacity on this side of the aisle to ask that the minimum wage be increased from $5.15 to something more. Why, these people who draw minimum wage, think about it, if they work 40 hours a week, 52 weeks a year, and don't get any time off for vacation, they can make the grand sum, working a whole year, of $10,700. What pigs. They want to get that much money?

I say we should recognize the people drawing minimum wage are not a bunch of high school kids working in a fast food chain. The fact of the matter is 60 percent of the people drawing minimum wage are women. For the majority of those women, that is the only money they get for them and their families. I cannot imagine that we have had such a difficult time bringing up something so important to the American people, the minimum wage, to increase it from $5.15 an hour, maybe increasing it $1, maybe increasing it $1.50.

I know that is pushing the envelope a lot to think this body would take up something as unimportant as people getting an increase in the minimum wage. No. What we should do is worry about four people, four people, one of whom makes a half a million dollars a year downtown. Then we can also worry about other people, those other three who, between them, make about a half a million dollars.

I have no understanding in my heart how the majority can continually deny us the opportunity to do something about the minimum wage.

Remember, the judicial vacancies are at their lowest level in almost 15 years. While we are here talking all night about judges, 44 million people, as I have indicated earlier, will go to sleep tonight with no health insurance, none, and millions of others have insurance that is not very good.

Nine million, almost 10 million people will go to bed tonight wondering if tomorrow they will finally be able to find a job-- recognizing that the average person who loses a job in America today is out of work for 5 months. That is the average, 5 months. And it does not matter. It does not matter what strata we are talking about. People in America have trouble finding jobs. The average is 5 months.

We have tried earlier today, through a unanimous consent request, to spend some of these 30 hours talking about having an extension of unemployment benefits. No.

We have asked tonight to increase the minimum wage, to debate that. No.

I think it pretty well describes what is going on here today.

This is an issue that people think if they talk about how unfair we are, that, yes, what we have done here is so bad--we have approved only 98 percent of the President's requests to become judges. Only 98 percent. If we had it up to 99 percent, would we only be here for 15 hours?

I think this is a travesty. I say that without any question. Others have referred to it as a carnival and a circus. Whatever it is, the unemployed, those people who are poor, those people who have no health insurance are not getting their time in the Senate.

Who is getting time? Four people: Estrada, Owen, Pickering, and Pryor. That is not fair.

I yield to the Senator from New York.

Will the Senator yield for a question?

Does my friend from New York support the unanimous consent requests--plural--that have been entered today on the record and rejected by the majority, first of all to extend up employment benefits? Does the Senator from New York believe we would be better advised to go forward on something like that than on these four people who do have a job?

I ask another question. Does the Senator also agree that rather than going through 30 hours of this--first of all, with all due respect, everybody, including me, everything that has been said so far tonight in these 5 hours has already been said.

And I am sure for the next 25 hours, there will still be nothing new. Having said that, I ask my friend from New York, does he think it would be a good idea that the unanimous consent requests I proffered where I asked to do something about the minimum wage right here on the Senate floor tonight, does the Senator think that would be a good idea to help the American people?

I wish the Senator from Michigan, Mr. Levin, were still on the floor. In his arguments, he cited a quote from Lyndon Baines Johnson as to what would be the best gift that could be given, I believe he said, to the Soviet Union or those behind the Iron Curtain. He thought the best gift would be unlimited debate.

I could think of a lot of other things you would want to give people who are repressed than unlimited debate. Maybe freedom of speech, freedom of expression, freedom of religious beliefs, private property rights, due process, equal protection of the law, maybe even the right to bear arms so they can overthrow the dictatorship.

Unlimited debate--that does not strike me as what is needed in a democracy. What one wants is adherence to the Constitution, accountability and responsible action by those who are elected by the people. And we want fairness, which is being denied here, without potential for filibustering.

This is what Senator Levin said that President Johnson said: ``If I should have the opportunity to send into countries behind the iron curtain one freedom, and only one, my choice would be to send those nations the right of unlimited debate in their legislative chambers.''

I expect they could have had all sorts of unlimited debate but what one wants is adherence to our U.S. Constitution.

Let me share with our distinguished chairman of the Judiciary Committee, Senator Hatch, some words that have been said recently: Judgeships are currently vacant, causing undue delays in justice for citizens served by the court. The candidates for these vacancies deserve to have an up-or-down vote on their nominations. The Senate should not be playing politics with the Federal judiciary.

Guess who said that? Senator Carl Levin in a press release on May 24, 2000.

Then Senator Levin said, on October 3, 2000, in the Congressional Record: I believe the Nation as a whole deserves to have these nominees and other nominees awaiting hearings and votes acted on by this Senate, as well. I believe it is also unfair. Perhaps this is the most important of all to the people who await justice in their courts.

Senator Levin said that on October 3, 2000.

Then Senator Levin also said that leadership had a responsibility to advise and at least vote on judicial nominees.

And parallel to the debates we are having on several of the judges this evening that will go on through tomorrow and into the morning on Friday, he said: Two of the women who we are focusing on today are from Michigan. They are nominees for the court of appeals. The truth of the matter is that the leadership of the Senate has the responsibility to do what the Constitution says we should do which is to advise and at least vote on whether or not to consent to the nomination of nominees for these courts.

That was September 14, 2000, 3 years ago. I wish that Senator Levin were still on the floor so I could ask him whether he was right in 2000, saying the Constitution demanded and required Senators to act and vote on nominees. Or does he really believe that the most important responsibility is for endless debate?

I say to the Senator from Utah, Mr. Hatch, what we have seen is stalling and more stalling and more stalling. They can debate endlessly, but at the end of every debate, at the end of every examination, of everyone's qualifications and capabilities, and whether Miguel Estrada, Priscilla Owen, or any other of the nominees, ultimately the responsibility is, as Senator Levin said 3 years ago, it is our responsibility to act, to vote. The Constitution demands it. Accountability to our constituents and our respective States demands it. And fairness should not continue to be denied to these many nominees because

of the obstruction and also the very inconsistent statements that have been made this year compared to past years.

I ask the chairman of the Judiciary Committee, would you find these statements to be prior inconsistent statements which call into question the desirability of having endless debates in the Senate or in the committee, especially after the committee has decided on a majority vote to report out, favorably, a judicial nominee?

I have a followup question. In view of our friend from the Commonwealth of Pennsylvania and his articulate, passionate statement, Senator Santorum, out of the thousands and thousands of nominations, how many have been filibustered? Zero, is that not correct?

Mr. President, I thank the Senator from Arizona. We have heard some comments about we ought to be talking about jobs and the economy. On this side of the aisle, we are always looking at ways to make our tax laws, our regulatory policies, and our legal system more conducive to more jobs with more investment in this country.

We have heard this evening all sorts of excuses and justifications for filibustering. For example, we heard mentioned earlier by the Senator from Michigan, Mr. Levin, a citation as justification from Lyndon Johnson who said: ``If I should have the opportunity to send into countries behind the iron curtain one freedom and only one, my choice would be to send those nations the right of unlimited debate in their legislative chambers,'' to which my view was, gosh, there are a lot more important rights, such as freedom of expression, freedom of religion, property rights, due process under the rule of law.

When we get to the rule of law and how important that is for the credibility in this country, whether it is people in this country or outside of America to take a risk and invest in this country, the fair adjudication and administration of laws is very important. It is vitally important that we have judges on the courts so that if there are contractual disputes, or if property is being taken, or if there is a dispute, it is as expeditiously handled and decided rather than being delayed because of insufficient judges.

In many of these circuits, we have judicial emergencies. In fact, it is a fundamental principle of the American judicial system that justice should be blind, that people can get a fair hearing regardless of who they are, where they come from, or what they look like. Surely, nominees to the Federal bench deserve the same rights to a fair hearing as any of us.

Our sense of what is right for the country tells us that the most political among us realize that it is imperative that our courts are in working order. Common sense tells us that many of America's highest courtrooms do not have judges to run them and as a result the legal system cannot function.

When it is said that the economy is somehow not doing as well as it should, all of us, on this side of the aisle, President Bush and his Cabinet, are working to make sure that our economy gets stronger and more jobs are created. In fact, the gross domestic product is the best in nearly 20 years. We had negative growth in 2001, obviously because of a variety of factors, including, of course, the terrorist attacks. The gross domestic product has grown every quarter since the passage of the Economic Growth and Tax Relief Reconciliation Act of June of 2001.

It grew our economy by a 7.2-percent annual rate the third quarter of this year. This was the fastest pace of growth since 1984, almost 20 years ago. Employment continues to make gains. Payrolls increased by 126,000 new jobs, net new jobs, in October. The stock market continues to grow. That means more money for people's nest eggs, for their security and retirement.

Business is reacting favorably to tax relief and corresponding economic growth, where businesses are growing, thereby providing more jobs. We also find an increase in disposal household income, where mothers and fathers have more money so they are spending it on their children, which is great for those who are selling whatever products or services that they are purchasing, as well as whoever is packaging, transporting, fabricating, assembling, or manufacturing what they are purchasing.

Dividend relief also is leading to billions of new dividends distributed to shareholders. All of this is going on now. It also is important, though, that we have judges and the fair administration of the rule of law in the laws that we pass.

We cannot have activist judges. Activist judges create uncertainty. Businesses want to know what the laws will be so they can make those strategic long-term decisions. To have judges coming up with activist inventions of new laws that were not written or adopted by the legislative branch is dangerous for security, jobs, and investment in this country.

To put a fine point on judges, look at the Ninth Circuit Court of Appeals. Ask those affected every day by the decisions by our Federal appellate courts whether confirming circuit court nominees is important.

The people of California almost had their constitution gutted by a three-judge panel in the Ninth Circuit only to have a larger panel of the same circuit reinstate their constitutionally authorized gubernatorial recall election. I think it is pretty important who sits on the Ninth Circuit.

I am sure those in circuits where, for example, schoolchildren in Montana, Nevada, Arizona, and Idaho, who cannot say the Pledge of Allegiance because of leftwing activist judges in that circuit, who say that if one person takes offense at some other revering our flag, then the pledge is unconstitutional, would say these judges do matter.

They matter in our everyday lives. They matter in our schools. They matter in our businesses. Let's put in judges who will interpret the law, not invent it.

I am not surprised because what we are about tonight is not the issues families care about. We are about a political script. Senator Reid of Nevada read to us this all-points bulletin that was sent out to the Senators saying: Be sure and get over here exactly at 6 o'clock. It said: The Fox News channel is really excited about this marathon. Britt Hume at 6 would love to open with all of our 51 Senators walking on to the floor. The producer wants to know, will we walk in exactly at 6:02 when the show starts so they can get it live to open Britt Hume's show, or, if not, can we give them an exact time for the walk-in?

That is what this is about: It is about theater. The theater we are witnessing tonight is one where, frankly, the curtain should come down. We ought to start talking about things people really care about across America. I can tell you, it is not about 4 judges out of 172. We have approved for this President 168 of his nominees. I think it is a new record. I do not think any President in that brief a period of time has had 168 nominees approved. Lest you believe the Democrats dragged their feet, we approved 100 of these judges during the 17 months Pat Leahy was chairman of the Senate Judiciary Committee. The remaining 68 came through under Republican Chairman Hatch. I think there has been a concerted and conscientious effort to give the President

his nominees. Then, of course, there were 4 who were not approved--168 to 4. So 98 percent of this President's nominees have been approved. By any reasonable standard, this President is doing very well. Most people would agree, except for the 51 Senators on the other side of the aisle. They believe unless the President gets every nominee, this is a miscarriage of justice.

Sadly, though, they are ignoring the obvious. The obvious is the Constitution of the United States gives this Senate the authority to say yes or no, to advise and consent. Article II, section 2: Advice and consent of the Senate. Some of these Republican Senators would like to see this phrase go away and make their argument at least a little plausible, but it is a fact. We have the authority under the Constitution we swear to uphold to make these decisions; and we have made them.

Of course, not only is the Constitution on our side, but the rules of the Senate are on our side. It reminds me in law school, they told you early in a trial advocacy course--and this a cliche, I know--they used to say: If you have the law on your side in your trial, beat on the law. If you have the facts on your side, beat on the facts. But if you do not have the law or the facts on your side, beat on the table. That is what is happening in this 30-hour marathon. Our Republican colleagues are beating on the table. The law is not on their side.

The Constitution says we have the authority to say no. We have said no 4 times out of 172 opportunities. It is constitutional to do so. Are the facts on our side? Are we being unfair to stop 4 judges, approving 168 and stopping 4? I do not think so.

Frankly, if you look at the record of the Republicans in control of this same committee with a Democratic President, you will find some 63 nominees were never given the decency of a hearing. They never had a chance to even appear and introduce themselves to the committee. The decision was made by the Republican leadership, with a Democratic President, not to even let them in the building.

I have been through this. Three of my nominees that happened to. Do you know what it consisted of? If any one Republican Senator objected to any nominee, end of story. They effectively had a filibuster by one Senator. They stopped these nominees in their tracks.

I can recall going to Senator John Ashcroft, our Attorney General, with one extraordinarily talented nominee, and pleading with him, after the man had waited for a year for a hearing, pleading with him to at least meet the man. Let him come before the committee. No way. The answer was no. End of story. End of nomination.

That was the treatment accorded to three judges from my State during the short period of time when I was here and President Clinton was President, as the Republicans ruled the Senate Judiciary Committee.

I lost 3 nominees. Did I rally my Democratic colleagues: ``Let's all get together and hold our breath and turn blue for 30 hours because I have lost 3 nominees''? No. Maybe I could have. Maybe I should have. But I did not. I understood it. I thought it was fundamentally unfair, and I still do.

What we have done to these four nominees is not unfair. Each and every single one of them has had a hearing. Each and every one of them has been able to come to the committee and present their credentials. That never happened to 63 nominees offered by President Clinton.

This President has a pretty good batting average when it comes to the Senate: 98 percent of his nominees have gotten through. But for the 2 percent, we are meeting this evening.

I might add here, if you take a look at the issues at hand, the Senator from Nevada raised an interesting one. Almost without fail, the majority of the 168 nominees were all members of this Federalist Society. It sounds like a secret handshake society. It is something else. I am not sure exactly what it is. I will tell you why I am not sure.

I do know this. If you are an aspiring law student who one day wants to be a Republican nominee for a judgeship, my recommendation to you is to join the Federalist Society today and do not miss a meeting because, frankly, that is a requirement if you are going to make it into the ranks of judges in the future.

What is it about this society? I don't know. But if you scratch the DNA of all these Republican nominees, you are going to find that Federalist Society chromosome. It is in every one of them. Time and again, I have said to these nominees: What is the Federalist Society? What does it mean to you? Some people say it is a rather extreme organization that views the law and the Constitution in a manner that most Americans do not. But when I ask these nominees--I can remember a Professor Viet Dinh of Georgetown Law School where I went to school many years ago. I said: You belong to the Federalist Society. Why? He said: Because I get a free lunch in Chinatown once a month.

Well, I think it is more than that. If you go to their Web site and ask the Federalist Society what they believe, what they put on their Web site is they talk about how we have lost control of the law and the liberals are taking over--all the stuff you expect. Then when you ask each of these nominees: Well, do you agree with that? ``Oh, no,''--with one exception: Mr. Pryor. William Pryor of Alabama says, yes, he does agree with it. If you got to know Mr. Pryor, you would understand he is rather unabashed in his political beliefs.

The fact of the matter is, the nominees we are receiving from the White House are not mainstream nominees. Sadly, of the 168 we have approved, many could be challenged as outside the mainstream, and that is not what America is looking for.

President Clinton knew if he sent up a real liberal, someone who, frankly, had the credentials of the left, he did not stand a chance before Senator Orrin Hatch's Judiciary Committee. We would strive to find people with extraordinary legal credentials, people who really have made a difference in terms of their practice of law and what they have done; and they, too, suffered before that same committee.

This President has no qualms. The people he sends to us, whether it is Miguel Estrada or whether it is William Pryor or Priscilla Owen, each and every one of them have come back--Charles Pickering--with credentials that just do not pass the middle-of-the-road test.

Why are we doing this for 30 hours? Let's lay it on the line. This memo from Fox News tells you why we are here. We are here to grind raw meat for the Republican rightwing, so television networks like the fair and balanced Fox News network can rail on for days and weeks about this 30-hour tribute to the Republican point of view, so the radio talk show hosts, who blather on every single day from the right, will have much more to talk about. And instead of dealing with real issues, paying for the Veterans' Administration, so we can get that done, and meet our obligations, taking care of the unemployed across America, so they can feed their families and avoid bankruptcy, we do not have time for that. Our time has to be focused and dedicated to this debate.

I will say to my colleagues in the Senate, I think my friends on the Republican side will have to agree with this: Though they do not like the outcome of the four judges we have talked about here, we have given the nominees, even when Senator Leahy was chairman, ample opportunity to explain who they are and what they stand for. I think what we have asked for is reasonable.

What we ask of every judicial nominee, from a Democrat or Republican President, is really basic. They have to be people who are honest, of high integrity. They have to understand the law. They should be people who do not come to this job with an ax to grind. That is not too much to ask. Four have failed that test; 168 have been approved.

Mr. President, I want to focus on a chart that was displayed earlier by the Senator from New York where he proudly displayed the numbers 168 to 4. I think it is important we ask the question: what is that chart designed to prove?

On one hand, our colleagues on the other side of the aisle in the Judiciary Committee and here in the Chamber rail against the President's judicial nominees, calling them out of the mainstream and, even worse, mean-spirited, right wing. But if, in fact, our colleagues on the other side of the aisle have voted to confirm 168 of President

Bush's nominees, it refutes that allegation because they have to agree that at least 168 of those nominees met their definition of mainstream.

I would like to associate myself with the outstanding comments of the Senator from Kentucky, the assistant majority leader, Mr. McConnell. I wonder what their definition of mainstream truly is.

The second number of 4 is a number they want to be congratulated for blocking. I submit that just because you observe a stop sign 168 times and comply with the law, you are not to be rewarded for running that stop sign four times. It is still a violation of law, and you are still likely to get a ticket from the police officer.

This is more than just about breaking the law. This is about violating our Constitution, the fundamental law of this Nation.

We know really, rather than 168 to 4, the true number we ought to be focusing on is 0 to 4, and let me explain.

From 1789 to 2002--that is, for all of our Nation's history up until this year--the number of filibusters against judicial nominees of a President was--you guessed it--zero. But this year alone, because of this tactic that our colleagues have devised, to deny a bipartisan majority of this body its right under the Constitution to vote up or down on a judicial nominee, this number is 4.

So rather than 168 to 4--and as I explained, I think that repudiates and flies in the face of some of their arguments about President Bush's judicial nominees, and I deny that they are to be congratulated for unconstitutionally obstructing only 4. The real number we ought to be focusing on, and I hope the American people are focusing on, is zero to four because never, ever, in the history of this Republic has a minority in the Senate denied the right of the majority the vote up or down on judicial nominees. It is just not right. It is not fair. It has resulted in a degradation and a downward spiral in the judicial confirmation process of which no one should be proud.

I submit that four unconstitutional filibusters of these distinguished nominees is four filibusters too many. If we want to look at maybe a little bit of a history lesson, as this chart demonstrates, when Franklin Delano Roosevelt was President of the United States, 4,473 laws were enacted, 4 civil rights laws were filibustered--hardly something to be proud of. But I guess if our colleagues across the aisle are proud of their four, the argument would be that the people who filibustered these civil rights laws during FDR's term ought to be proud of that number.

When President Truman was in office, 3,414 laws were passed, 3 civil rights laws were filibustered. Is that something to be proud of? What our colleagues across the aisle say, because 3,414 laws were passed and only 3 were filibustered, that these folks who filibustered those three civil rights laws ought to be congratulated. I think not.

Then when President Lyndon Baines Johnson was in office, 1,931 laws were enacted, 3 civil rights laws were filibustered. To this hall of shame, I would add the 168 to 4, which is nothing to be proud of; it is something to be ashamed of.

Unfortunately, some people have lost their sense of shame in this process, which has become so degraded and so destructive. Indeed, I submit that the filibusters we have of the President's nominees are an abuse of the process. How can they justly claim that a 60-vote requirement to close off debate can somehow trump the Constitution?

As we have heard before on this floor, everyone knows, who has studied the Constitution, that there are supermajority requirements for certain things, and they are stated in the Constitution: To ratify a treaty or to pass a constitutional amendment, the Constitution is very clear that it requires a supermajority. Everything else requires majority rule.

Indeed, majority rule is fundamental to the democratic form of government. Majority rules: We fight our best fight; we make our best argument. Then we have a vote up or down. If we lose, well, we come back to fight another day. We try to persuade others that we were right and the majority was wrong. That is what our form of government is all about; not denying a majority their right, as stated in the Constitution, to let majority rule.

Believe it or not, that is what is happening and that is the reason we are standing here tonight trying to let the American people know that a terrible abuse of this process is occurring and an abuse of the Constitution, indeed a violation of the Constitution, is occurring. It is a disgrace. It is nothing to be proud of.

The other thing I would point out in the few minutes I have remaining, before I turn the floor over to the senior Senator from Texas, is this process is not only abusing the Constitution and creating a downward spiral in the judicial confirmation process that is very destructive of relationships in this institution, of our ability to get things done, it has made it too partisan, too bitter, too angry, and it is destructive.

I would also point out that the tactics that are being used against some of these nominees are despicable. Unless we stand up and repudiate the tactics of some of those who are opposing the fine nominees of President Bush, such as Janice Rogers Brown, I believe those who have joined cause with them in opposing this fine nominee ought to examine their conscience. I think they ought to reconsider their tactics. I think they ought to reconsider whom they associate with, whom they are joining cause with to tear down some of the fine nominees of this President, such as Janice Rogers Brown.

This is a cartoon that was posted on The Black Commentator on September 4, 2003, with President Bush, a racist caricature of Janice Rogers Brown with Justice Clarence Thomas, Colin Powell, Secretary of State, and Condoleezza Rice standing there. The caption says: ``Welcome to the Federal bench, Ms. Clarence--I mean, Ms. Rogers Brown. You'll fit right in.''

It is easy to see why this process has gone downhill and needs a wake-up call from all of us, because we need a fresh start. We need to disavow tactics such as this. Those who are opposing Justice Brown and other nominees should not be proud of that association any more than they claim to be proud of an unconstitutional filibuster of four of these nominees, including Justice Brown, because if, in fact, we do not get a fresh start, we do not have a clean break with this destructive process, if we do not quit tearing down people who want nothing more than to offer themselves to the American people by serving in positions of honor, such as Federal judges, who will answer the call? If they know that answering the call of public service means that they are going to have their reputation destroyed, they are going to be besmirched, they are going to be painted into a caricature that bears no resemblance to who they really are, who will answer the call? We will all be poorer for it.

I yield the floor.

Mr. President, Senator Hatch will be on the floor shortly. Before he gets here, I want to talk about one of the nominees who we will be voting on, once again, with cloture votes on Friday. That is Justice Priscilla Owen. Justice Priscilla Owen has had a vote in the Senate. She has had four or five votes in the Senate.

If we were adhering to the Constitution of the United States, she would be sitting on the Fifth Circuit today. There are three vacancies on the Fifth Circuit. They need to fill their bench. She should be sitting there because she has gotten more than 51 votes. But Priscilla Owen is not sitting on the Federal bench today because we have a new standard that has been put in place for the first time since 1789. Last year, we started having a 60-vote standard for Federal judges.

So Priscilla Owen, although she has repeatedly and every time, gotten over the required 51 percent, is not sitting on the Federal bench today. No. Instead, this very qualified supreme court justice of the State of Texas is doing her job, doing it very well, serving as a supreme court justice in the State of Texas, even though she has gotten the requisite number of votes on repeated occasions to be confirmed as a Federal judge by the standards of this Congress from 1789 until 2002, until the rules were changed because we are now filibustering Federal judge nominees.

Priscilla Owen was endorsed by every newspaper in Texas when she ran for reelection. Priscilla Owen made the highest grade--the highest grade--on the bar exam when she took it. She graduated at the top of her class from Baylor Law School. She has had an exemplary record both as a supreme court justice for the State of Texas and as a practicing lawyer. She is experienced. She is qualified. She was rendered qualified by the ABA system, the committee, and she has been endorsed by Democrats and Republicans throughout Texas. She has been endorsed by Democratic supreme court justices with whom she served on the Supreme Court of Texas.

The former chief justice of the supreme court, a Democrat, named John R. Hill, who also was a Democrat attorney general in the State of Texas--a very fine one, a very respected lawyerNOTICE

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in Texas; supreme court chief justice and attorney general of our State--said Priscilla Owen is unqualifiedly the best we could have for this court. She is a person who ought to be on the Federal court.

In fact, he came up here and tried to meet with Democratic Senators to talk about how qualified she is. That Priscilla Owen is not sitting on the Fifth Circuit today is a tragedy, and it is not right.

She is not the only one who has been asked to meet this higher standard. Look at Miguel Estrada, who came to our country as a boy and did not even speak English, who studied so hard that he was able to go to Columbia and become a Phi Beta Kappa, and then to Harvard Law School, where he graduated, again in the top of his class.

Miguel Estrada, the American dream; Miguel Estrada, who sat here since May of 2001, who got the requisite number of votes to be confirmed for the DC Circuit--well over 51--time and time and time again, but he is not sitting on the DC Circuit. He finally said: I can't take this anymore. I have to get on with my life. In September, he said: Take my name off the list.

Why? Why have we set a higher bar for Priscilla Owen and Miguel Estrada--these two perfectly qualified people, with great academic standing, with great records, with experience, everything you would want on the Federal bench?

What are we going to do to the people who would ask for Federal benches in the future? I am very concerned that after watching this process so many of them are going to say: Please, don't throw me in that briar patch.

So, Mr. President, I do not think we should change the Constitution of the United States without going through the process of a constitutional amendment. Have we had a vote on the floor that got a two-thirds majority saying that we will have a 60-vote requirement for confirming Federal judges? Have we done that? That is the process for amending the Constitution of the United States.

But I do not think that since I have been here I have seen a vote that would say: No, it is not a 51-vote margin; it is 60. No, Mr. President, we have not had that vote. But, in fact, the amendment to the Constitution is being put forward without going through the process. Because we now have six people nominated to the circuit court bench who are having to meet a higher standard than 51. And that is not right.

To date, our President, President Bush, has had 63 percent of his nominees to the circuit court confirmed. The previous three Presidents have had 91 percent of their circuit court judges confirmed by this time in their terms.

So I am going to turn the floor over to the distinguished chairman of the Judiciary Committee who has done a wonderful job trying to get these nominations through the process. He has done a magnificent job in trying to bring these great nominees to the floor.

But we are standing here tonight because this is a constitutional issue, and it is important. It is important that these good people, who have submitted themselves for this process to be confirmed as Federal circuit judges, be able to, with dignity, have a vote up or down with the same standard that we have had since 1789; and that is a 51-vote margin.

Thank you, Mr. President. I yield the floor.