Fair Minimum Wage Act of 2003

Will the Senator yield?

Would my colleague from Utah yield for a question?

We have had some misstatements on the floor about how many filibusters we have had.

I said, we have had some misstatements repeatedly by the Senator from Virginia and the Senator from Minnesota about how many have been filibustered. There have been a bunch who have been filibustered, it is just that we happened to succeed. Isn't that correct?

I thank the Chair.

Mr. President, I listened to the debate, and I would say basically, kindly, it is just a repetition of arguments we have heard over and over again. A little less kindly, sound and fury signifying nothing.

I tried to ask some questions of the other side a few minutes ago and was rebuffed. It is no wonder because we are not having a coming together here. We are not having an elucidation. What we are having is a rehash of arguments we have heard over and over again.

It is not going to change anything, I say to my colleagues. It is not going to change a thing. There is only one way to change things, and that is for the President and the other side to follow the Constitution and take the words ``advise and consent'' seriously. If they think we can be bludgeoned, if they think more talk radio makes a difference, it is not going to make a difference. In fact, I would argue to my colleagues, this debate is helping us because the hard-right media, the talk radio, and the others don't mention this fact.

This chart is worth 30 hours of palaver, of gibberish. The Wall Street

Journal today has an editorial with the pictures of the six. Do they mention how many have been approved? They don't dare. They have had editorial after editorial and some of them criticize me. I write letters, and they don't publish them. You would think if they are going to do a whole editorial being critical of someone, they would give them the courtesy of publishing a letter. They are not interested in the debate of facts. No.

At least we are getting a chance to show this. One picture is worth a thousand words; one chart is equal to all the talk we have heard. Nothing will change that.

This is actually going to help our side. It is backfiring. I know many of you on the other side didn't really want to do this, but I guess I have to say to those of you who argued for it, thanks.

I heard from a constituent earlier tonight. They were watching the debate. I said: Did you know about 168 to 4? No. Most people don't because the big storm on this has come from a small narrow band on the hard right. We know the other side has to pay attention to them. They accuse us of being subject to beltway liberal groups. There are groups on both sides. They both feel as passionately.

I don't know why one group is any better than the other, but the group on that side has made this an issue. They just can't stand the fact that four have been rejected--four.

I begin by saying, better be careful about what you wish for because this at least is an even airing of the facts. What I would like this to be is a real debate. I would like us to ask each other questions. I would like us to challenge each other's assumptions and misstatements. But it is obviously not happening. Obviously not at all.

I will be happy to yield for a question. I give the Senator from Texas the courtesy I was not given.

Yes, reclaiming my time, that is exactly the point. I haven't gotten up to this chart, but I will go to it now.

Let me please answer my colleague's question. The bottom line is the other side has said--and in the chart of the Senator from Pennsylvania, he was careful. He said ``successfully filibustered, none.'' Then when it was repeated by many of the other colleagues, they said there has never been a filibuster.

As my good colleague from Nevada pointed out, there have been filibusters. Here are some of the judges who have been filibustered.

Don't claim there has never been a filibuster. In fact, I would ask anyone on the other side, when you filibustered just 3 years ago, did anybody object and say the Constitution is being defiled? Judge Berzon was filibustered in 2000. Judge Paez was filibustered in 2000. Judge Sarokin was filibustered in 1994.

I didn't hear the outcries from the Senator from Pennsylvania or others that filibuster is constitutionally wrong. Oh, no. Oh, no. So the one difference----

Let me finish--the one difference--and then I will be happy to yield for a question--is this. We succeeded. Do you know why we succeeded? I will tell you why. Because President Clinton made an effort to nominate moderate judges, by and large; because President Clinton did far more of the advise-and-consent process than President Bush, and President Clinton was able to persuade 15 or 20 Members from the other side to finally vote for these judges.

We have had no advice, meaning consultation. I am consulted in New York, and we have filled every vacancy. On the main court of appeals nominees, there is no advise, and that means there isn't consent.

I would argue this to my good friend from Texas: No President has chosen judges through an ideological prism more than President Bush. He said it when he ran, to his credit. He was going to appoint judges in the mold of Scalia and Thomas, two of the most conservative judges we have. Some of them are to the right of Scalia and Thomas. Clearly, Justice Brown is. I believe Miguel Estrada was. He has appointed judges ideologically. Then we are supposed to not challenge that ideology? It is two-faced. It is hypocritical.

Most of President Clinton's nominees--not all, but most--were not legal aid lawyers or ACLU attorneys. They were partners in law firms; they were prosecutors. Anyone who has followed this knows President Clinton decided to nominate, by and large, decidedly moderate judges. That is why the filibusters were not successful.

Our filibusters are successful, frankly, not because of any of us. It is because President Bush has decided to nominate people from the hard right so that he gives us no choice. Nothing would please me more--and I am one of the leaders in this--nothing would please me more than for Counsel Gonzales to call some of us in and say: How do we come to some kind of comity? Guess what, the same thing that happened in New York and a few other States will happen nationally.

Will most of the judges be far more conservative than me? Yes. Will many of the judges disagree with my view on choice or affirmative action or anything else? Yes. But at least we will feel they will interpret the law, not make law.

As my good friends know on the other side, the Constitution requires interpretation of the law, and ideologues, far left or far right--I don't like far-left judges, either--want to make law because they feel they are so right and the country is so wrong, and so they try to make law.

The Founding Fathers in their wisdom--I will yield in a minute, and maybe the Senator would ask the others on their time to yield to us as well. Then we can get some debate here and maybe make a little progress instead of just talking past one another.

The bottom line is this: We are defending the Constitution. We are saying there should be some balance. President Bush didn't win by a landslide. This Senate is not 62 to 38 or 70 to 30. This country is narrowly divided, and that means when laws are made, they tend to move to the middle. The prescription drug law is an example right now. But judges don't have to move to the middle. Once they are appointed, they are there for life, and they have virtually absolute power over cases. All we have is the constraints within their own heads.

My good, learned friend from Texas knows that in the ``Federalist Papers,'' Alexander Hamilton said ideology should play a role. My good friend from Texas--he is a student of history--knows one of the first nominees of George Washington, John Rutledge, was rejected because of his views on the Jay Treaty. My good friend knows in that Senate that rejected John Rutledge were a good number of the Founding Fathers. So this is not new. This is not made up. In fact, what is new is the view on the other side that if they don't get their whole way, they want to change the rules. If there had been for 20 years protests from many of my colleagues who sat in those seats in 2000 and 2000 and 1994 and 1994 when there were filibusters, maybe we could feel there was some genuine feeling here, some genuine fidelity. Instead, I would argue most of those who study logic know that things can be made; that the weakest arguments are outcome determinant. In other words, you look for the outcome you want and then you make the argument. That, I would argue, with all due respect, is what my colleagues are doing.

The bottom line is filibusters were not an abomination to the Constitution when President Clinton nominated. And, by the way, in the inverse case, holding back judges from even getting a vote in the Judiciary Committee was perfectly OK. That didn't unbalance the Constitution.

What my colleagues have done is taken the result they want, which is 172 to 0, and then come up with an argument that all of a sudden filibusters are bad. Blocking judges can't be bad because look at all these judges the other side blocked and didn't even

allow to come up for a vote. So it can't be that blocking judges is wrong. But it also can't be that filibusters are wrong because they did them in recent history. They just didn't succeed.

Now they have this twisted logic that only a successful filibuster is bad. That doesn't make much sense. I am sure my good colleague from Alabama wishes his filibuster had succeeded. He felt it passionately. He felt Judge Berzon and Judge Paez were too far over, maybe.

I will be happy to yield since I mentioned the Senator's name.

Let me reclaim my time.

I simply say to my colleague----

Thank you, Mr. President.

What I said before was, and I say it again, I did not hear an outcry about filibustering being wrong or being unconstitutional or being evil when these judges came up. I didn't see people get on the floor for 30 hours. There were four of them in the last 6 years. I didn't even hear people get on the floor for 3 hours and take up time to say why filibustering is bad.

Do you know why they say it is bad now? Because we have succeeded. Again, why have we succeeded? Because President Bush has changed the way people are appointed to the judiciary. He has nominated judges through an ideological prism to a far greater extent than any President in history.

I say to my colleagues, do you want to get it to be 172 to 0? Tell the President to sit down with us, to advise, to come to some compromise, and then you will probably get 172 to 0. But as long as this process continues where there is no advise and consent, as long as this process continues where certain judges who believe decisions that have been discredited 50 and 100 years ago should be law, we have no alternative but to do what we are doing.

I will be happy to yield to my colleague for a question.

I say to my colleague, most definitely, because, first, not only do these people have a job, but they shouldn't be on the bench.

More than once.

I say to my colleague, it would be an excellent idea. This debate, as I mentioned earlier, is not going to accomplish a thing. In fact, if it accomplishes anything, since we haven't had the media drumbeat on our side the way the others have, it is going to help us; it is going to get this very fact out. Why not have a debate on something we haven't debated, such as minimum wage, such as health care, such as energy policy, instead of having two people decide energy policy. Nobody knows what the conference report will be. Let's have a debate about that.

Here we are repeating over and over and over and over again the arguments that have been made and made and made.

The bottom line, I say to my good colleague from Nevada, is there are 100, 200, 300 better ways to spend 30 hours in the Senate than redebate these issues. If this is frustration on the other side because 4 of the 172 have been blocked, the solution is not to repeat the same arguments which we regard as specious. The solution is to come to the middle and compromise and talk to us, as we have done in certain States.

I say this to my colleagues: Stop using outcome-determinative arguments. Filibusters are fine when you do them. Only when we do them successfully are they no good. And blocking judges? That is just fine. You blocked so many more than we have. This argument is like trying to thread a needle: Blocking judges is OK; filibustering is OK; only successful filibustering is unconstitutional.

I doubt many legal scholars of any political persuasion would be able to sustain the contradictions in my friends' arguments from across the aisle.

The bottom line is simple: We believe advise and consent really means what it says.

We believe keeping judges in the mainstream is within what the Founding Fathers wished us to do. I will have more to say in the next hour.

Will my colleague yield for a question?

I yield a minute to my colleague from California.

Thank you, Mr. President.

First, I thank my colleague from California. She is feisty any time of the day but, not only feisty, on target. I very much appreciate her great work, particularly in bringing to our caucus's attention the problems with Judge Kuhl.

Now, I would like to review the bidding so far. First, we have had a lot of talking, virtually none of it new. Second, there have been repeated refusals to go on to issues that we do not talk about, such as minimum wage, loss of jobs, health care. Third, we believe this debate is helping us because the rightwing radio and the rightwing groups have talked about their argument.

I mentioned the Wall Street Journal editorials that never mention this number, what anything fair would be. We are getting this number out: 168 to 4.

When I go to parades in upstate New York, conservative areas, they say: Why are you stopping the President's judges? I say: It is 168 to 4. They say: Never mind. Well, that is what this debate is doing. The American people are going to say: Never mind.

Finally, I think we have revealed how our colleagues' arguments are outcome-determinative. Lawyers will tell you they are the weakest arguments. You pick your outcome and then you determine it.

Are they against filibusters? No. Again, I will repeat my challenge: Let a Senator on the other side show me that they got up and demanded 30 hours or 3 hours or 5 hours when Members on their side attempted to filibuster Judge Barkett, Judge Sarokin, Judge Marsha Berzon, Judge Paez. Did anyone get up and complain? No.

So you are not against filibusters and you are not against blocking judges. Here they are. You have blocked a whole lot of judges. You did not use filibuster. You refused to give them a vote. But they were blocked--same effect. The only thing you seem to object to is a successful filibuster. Where is the logic there?

Finally, you want to have viewer-successful filibusters? Talk to us. Come and meet with us. Nominate judges who may be conservative but are not so far out of the mainstream, such as Justice Brown who believes that Government is evil. She is against all zoning laws, at least according to her speech to the Federalist Society. And she thinks the Lochner decision, one of the most discredited decisions which said the State government could not regulate the number of 60 hours--New York State said 60 hours is when a bakery worker could not work any longer. They can't do that.

So nominate some people who are conservative but not so far out that they want to make law, not interpret law. That is the bidding so far.

Now, one other point that was made since I last spoke. My good friend from Idaho, I love him. He is a fine guy. We even worked together on a gun control bill, so it shows you anything is possible around here. But he is saying Judge Abe Fortas was not filibustered? What is this argument? A cloture vote is not a filibuster? As my daughter would say: ``Hello.''

Why do we have a cloture vote? Because there is a filibuster. Here is the headline in the New York Times: ``Critics of Fortas Begin Filibuster. . . .'' Why is that not a filibuster? But the New York Times, they are one of those wacky, liberal publications, and this is one of these slanted liberal headlines.

So let's take the U.S. Senate Web site. What is the headline? October 1, 1968: ``Filibuster Derails Supreme Court Appointment.'' I am paraphrasing: In June 1968, Chief Justice Earl Warren informed President Lyndon Johnson that he planned to retire because of a filibuster.

Mr. President, I ask unanimous consent to have a document from the Senate's own Web page printed in the Record. I would ask all of my colleagues who believe that Abe Fortas was not filibustered to make a motion to correct the Web site.

I thank you, Mr. President. So I guess I have caught a little of the feistiness of my friend from California.

Now, Senators, this is a serious issue. Many of my colleagues have done a great job of bringing up the issue of jobs and health care and all of that. I think we should do that because we have heard these arguments over and over and over and over again. We have not talked about the minimum wage once or for providing health care for the uninsured or many other issues. But so be it.

Let me again go over what our Constitution says. Does our Constitution say, ``Do not filibuster''? It does not say that. In fact, our Constitution says the Senate ought to be the cooling saucer.

We all know the story. James Madison was explaining, I believe it was to Thomas Jefferson, why there was a Senate. Jefferson thought it looked too much like the House of Lords. He had been over in Paris. And he had not written the Constitution.

He came back and he goes over to James Madison's house and Madison is pouring tea. He says: You see. He pours the boiling water into a cup, and he says: You see the boiling water in the cup? That is the House of Representatives, where the people's passion bubbles over. Then he poured some of the water into the saucer, and he said: The Senate is the cooling saucer.

Well, James Madison, we have been, by stopping these four nominees, a little bit of that cooling saucer. Our job, when the President goes too far, as he has with some of these nominees, is to be the cooling saucer.

Now, unfortunately, our being the cooling saucer gets some of the others on the other side very hot. But we are defending the Constitution. The idea that a successful filibuster is bad has nothing to do with the Constitution. That comes from a few of my colleagues' view that they want to get every nominee. So let's make an argument. Because if a successful filibuster is bad and an unsuccessful filibuster is OK--and we have been through that before--then you cannot make any argument about a filibuster.

Again, I would like my colleagues to read this over and over and over again. There is nothing in there that says: No filibuster. There is nothing in the Constitution that says: A majority will decide judges, a 51-to-49 majority. It says the President must seek the Senate's ``Advice and Consent.''

Constitutional scholars will tell us that the reason we have these rules in the Senate--unlimited debate, two-thirds to change the rules, the idea that 60 have to close off debate--is embodied in the spirit and rule of the Constitution.

Yes, my colleagues, we are the cooling saucer. When the President's passion for hot rightwing judges who might make law rather than interpret law gets overwhelming, we will cool the President's passion. That is what the Constitution is all about, and we all know it.

By the way, when, again, my colleagues thought President Clinton was nominating a few judges too far left, what did they do? What did you do over there? You filibustered. Paez and Berzon were very liberal, no question about it. But because President Clinton had, by and large, nominated moderate nominees, nominated moderate people, your filibuster could not last.

Let me say something to my colleagues. We did not want to undertake a filibuster. Many of us on the Judiciary pleaded with Chairman Hatch to go to the White House and say: Meet with us. No. Many of us pleaded with Counsel Gonzales to come meet us a little bit of the way. No.

So we had no choice. Either we could be a rubberstamp or we could use the only means we had at our disposal to stop the President from getting every nominee, and that was the filibuster. Again, it is in keeping with the Constitution. We believe we are fulfilling our constitutional obligation.

Again, I see my colleague from Pennsylvania brought up his chart: No successful filibusters. Did my colleague object to the unsuccessful filibusters of Barkett, Sarokin, Berzon, and Paez? Did my colleague say he wanted 30 hours on the floor because a filibuster was wrong?

I am happy to yield. I want to finish my point and then I will yield to my friend from Virginia, who is one of the most respected and erudite Members of this body, and I consider him a friend of mine.

I would simply say that the argument that filibusters are OK but successful filibusters are not OK just melts under even the sunshine of a distant logic.

I yield to my colleague from Virginia.

I thank my colleague from Virginia for that excellent inter--I do not mean interruption--I mean it in the classical sense, trying to bring us together.

I will be happy to yield to either of my colleagues from Alabama or Pennsylvania and ask them, because I would like to have debate here instead of each of us getting up and making speeches. I asked a few times and my colleagues were not on the floor.

Mr. President, I have been listening to this debate and the populist arguments being made by Democrats who seem to think that having Federal judgeship nominees treated fairly, as they always have been in the past, once they have been brought to the floor, seems to be not right because they think we ought to do something about jobs.

Well, why haven't they? This recession began in the last year of the Clinton administration. I went through just some of the things that show they have had a pattern of obstruction from day 1 around here since we have taken over control of the Senate.

The pattern of obstruction was set on the first day of the 108th Congress when the motion to adjourn was forced to a rollcall vote, something that is usually never done. The long overdue 2003 appropriations bills were finally enacted after we became the majority in 2003, on February 20.

For the first time in history, filibusters were used to defeat the President's circuit court nominees. I have mentioned upwards of 15 that some Democrats have told me they are going to filibuster. They are not going to filibuster all of them, but they are certainly filibustering already more than four. There are six right now by the time you get through with Friday.

I can tell you, there are a whole raft of others they are planning on filibustering. First time in history, treating a President like dirt, and these nominees, which is even more important in this sense, because these nominees--we are going to find that we cannot get the top people in the country to take these positions, especially if they are very liberal or very conservative, even though they are in the mainstream. And that is a big phony shibboleth. Every time they say: Well, they are outside the mainstream of American jurisprudence. They were saying that about Bill Pryor, criticizing the cases that he won as the Alabama attorney general before the Supreme Court. So who is out of the mainstream? It certainly is not Bill Pryor, nor is it any of these other nominees.

Like I say, Priscilla Owen, who has been held up for 3 years now-- better than 3 years--Priscilla Owen is on the Texas Supreme Court. She was one of the first women partners in this country. She broke through the ``glass ceiling'' for women. They ought to be giving her a medal instead of treating her in this despicable fashion, and they are only doing it because these inside-the-beltway groups control, in many respects, what they do. It all comes down to abortion.

Now, there are sincere people on both sides of that issue. That is why I did not allow the issue of abortion to stop otherwise qualified candidates from getting a vote up or down on the floor, even though I am personally pro-life and cannot imagine why anybody would want to go for a regime of abortion on demand. There were 1.6 million abortions a year at one time. Forty million abortions in this country--the barbaric practice of partial-birth abortion, which many of my colleagues voted for, even some on this side.

Let me go down a few further here: Needed legal reforms, I mentioned, to stop lawsuit abuse against doctors, businesses, and industries have been virtually banned by the tactics of the minority.

Jobs have been lost right and left because of their refusal to allow decent laws to be passed. Medical liability, class action reform, gun liability, and asbestos lawsuit reforms have all been subject to delays or filibusters by our colleagues on the other side.

As I said, we spent 22 days on an Energy bill last year, and then we had to spend 18 days on an Energy bill this year, when we basically enacted the same bill we did last year.

Bioshield legislation is very important for those of us who work heavily in the area of health care and antiterrorism. Bioshield legislation is necessary to ensure proper vaccines and medicines to counter bioterrorism attacks has still not cleared objections.

The State Department reauthorization was stalled by Democrats insisting upon unrelated poison-pill amendments being voted on prior to passage.

The District of Columbia appropriations bill is subject to a rolling filibuster threat over a provision giving low-income students school choice, where we spend over $11,000 per student and have the lousiest school system in the country.

Last year Senate Democrats failed to pass a budget resolution for the first time since the Budget Act was written in 1974, and they have the gall to come in here and say: Well, we ought to be taking care of jobs.

We are going to take care of jobs if we can get some cooperation from them. But all the taking care of jobs in the world may not amount to much if we do not have a good Federal judiciary to make this system work, to make sure our constitutional way of life continues.

They passed no welfare reform. They took no action to ban cloning. They passed no Medicare prescription drug plan. They confirmed a record low number of judges. They enacted only 2 of the 13 appropriations bills and delayed enactment of a Homeland Security Department for months. It is this

dismal record of inaction that Democrats hope to repeat.

Now, we are committed to delivering the Healthy Forests bill and the CARE Act to the President's desk. The Democrats are refusing to name conferees to the bill that passed with strong bipartisan support. I could go on and on.

But my friend from Nevada--it is kind of interesting to me that he would take 10 hours out of the Senate's time on Monday to filibuster, when we all came here prepared to vote on appropriations bills.

I think it is pretty bad to come in here and say that we should not do what we should for judges, when they themselves have been filibustering not just judges but virtually everything else with a slow walk.

I am glad to yield, without losing my right to the floor.

Sure.

That is correct.

That is correct. These are the most confidential private papers of the Solicitor General's Office, the lawyer who represents all of the public.

That is correct. Four of the seven former Solicitors General were leading Democrats, who said that what the Democrats are doing is wrong.

Right.

That is right.

They both worked there. They both were excellent appellate lawyers. By the way, Estrada worked not only with the Bush administration but with the Clinton administration. And he had high marks.

A unanimous voice vote on the floor, but only after waiting 12 years through three nominations by two different Presidents.

John Roberts, who was one of the finest appellate lawyers in the country, as was Miguel Estrada, was treated completely differently once the Judiciary Committee considered him. And I had to force them to consider him. Yet he passed this body by unanimous consent.

That is exactly right. They treated Miguel Estrada differently from John Roberts.

Not a legitimate reason. The only reason was they believed him to be pro-life. I don't know whether he is to this day because we do not ask those questions.

The phony reason.

The phony reason they hid behind.

But let me make this point. Miguel Estrada, as great an attorney as he is, having argued 15 cases before the Supreme Court, having the highest recommendation of the American Bar Association, their gold standard, they did not want him to come through this process because they knew, or at least they perceived, that he was on the fast track to become the first Hispanic on the Supreme Court and they just cannot tolerate having a conservative Hispanic on the Circuit Court of Appeals for the District of Columbia, let alone on the Supreme Court.

That is absolutely right. But even Roberts had to go through a lot of pain to get there--12 years waiting, nominated three times by two different Presidents.

We put him out of the committee after a 12-hour hearing. You hardly have that much for Supreme Court nominees. There were two others on that list. They complained because there were three on one day's hearing. They ignored the fact that Ted Kennedy, when he was chairman, had seven circuit nominees one day, and another four. We had at least 10 other times when we had three.

Then once we put him out of the committee, I had to bring him back in the committee so they could have another crack at him. They could not touch him. He was that good. So he had to go through an inordinate process to get there. But they knew they did not have anything on him. They know they didn't have anything on Miguel Estrada.

It was a double standard.

Absolutely right. Roberts was treated like all other nominees during the Reagan years, Bush 1 years, and the Clinton years. He was not asked to give his opinions on future issues that might come before the Circuit Court for the District of Columbia.

Because Miguel Estrada answered the same way basically as all the other people who had passed in prior years, they held that against him. The big phony issue was knowing that the Solicitor General's Office did not give the most privileged, private documents in that department without making that department unworkable.

That is right. They did treat Roberts differently, no question about it. They gave him a rough time, too. Miguel Estrada is in a league of his own in the way he was mistreated, but Roberts was mistreated, too. Roberts sits on the Circuit Court of Appeals for the District of Columbia after having been unanimously approved here.

Let's talk about how important that is. We have had 40 rollcall votes on the floor. You talk about delays. You talk about fouling up this body. We have had 40 rollcall votes on people who got unanimously confirmed. Can you imagine what it takes to go through 40 rollcall votes? It slows down the Senate like you can't believe, and muscles up the Senate like you can't believe. It is all a big game to try and make this President not successful. But Miguel Estrada had to go through that as well.

And, by the way, was never applied to any nominee, to my knowledge, in the past. Miguel Estrada was singled out with a double standard for the sole purpose of defeating his nomination and getting him to withdraw.

Their gold standard.

Very few people even argue one case.

It shows the lengths they would go to on that side--at least the leaders on that side--to screw up a nomination of a very good person.

Take Janice Rogers Brown. She is a terrific African-American justice on the California Supreme Court. She wrote the majority of the majority opinions on that court last year, and yet they come here and say she is outside the mainstream. They are outside the mainstream when they make arguments such as that.

There is only one reason they are against Janice Rogers Brown and filibuster her: because she is an African-American woman who is conservative and pro-life. For these inside-the-beltway groups, that is their single issue.

I had friends on the other side tell me, when I asked, ``Why are you doing this,'' say, ``Well, the groups will score this as a vote, and then they will come against whoever votes that way in the next election.'' These guys don't have the guts to take on the groups.

Better than that. She got 76 percent of the vote. She was the top vote-getter among four supreme court nominees.

I think the Senator makes a very good point.

It certainly is. I went to one of my friends on the other side--and I won't mention the name because I don't think that would be proper--and I said: What did you think of Janice Rogers Brown? His answer was: She's terrific--which she was in front of the committee. Yet every Democrat went against her in committee and I think cited horrendously bad arguments to do it.

They can point to 8 or 10 cases with which they didn't agree, but with which a lot of people do agree, and then they say she is outside the mainstream when she has tried hundreds of cases and decided, as a majority opinion writer, the most majority opinions in that court last year and I think in prior years as well.

It is really unseemly, and that is why we are so upset here. Let me tell you, if we continue down this course, we are going to severely harm the Federal judiciary and get only people who really are not only outside the mainstream, but are Milquetoast, who can't make a decision to save their lives. Once you get to the Federal bench, you have to be able to make tough decisions.

That is a frequent argument. I think the best illustration of that happens to be Bill Pryor.

They criticized him for cases he won before the Supreme Court, saying he is outside the mainstream because they disagreed with the cases. In fact, they think Rehnquist is out of the mainstream. They think Scalia is out of the mainstream. They certainly think Clarence Thomas is out of the mainstream because they want a single approach, a minority approach to everything that has to be liberal, and if you are not liberal, you are outside the mainstream, even though some of the greatest judges ever to sit on the Federal courts and Supreme Court were conservatives. Some of the great ones were liberals, too, but understood the role of judges.

Bill Pryor is getting savaged by the rightwing because he basically sued to have the chief justice removed for not following the rule of law.

That is absolutely correct. Just fast forward to this week. As the Atlanta Journal Constitution reported this week, Bill Pryor filed a pretrial brief asking the Alabama Court of the Judiciary to remove Judge Moore from the Alabama Supreme Court because of Moore's defiance of the Federal court order to remove the Ten Commandments display. Bill Pryor's brief stated, quoting from the Atlanta Journal Constitution article: Moore should be removed because ``he intentionally engaged in misconduct and because he remains unrepentant for his behavior.''

I could go on about Bill Pryor. During his hearing--a lengthy hearing--he was asked over and over by virtually every Democrat who showed up about his deeply held personal beliefs. He answered every question the way a judicial nominee should. Even though he had deeply held beliefs, he would obey the law.

I thank the Senator for his excellent questions.

Mr. President, I enjoyed the stirring remarks of my colleague. However, I think he completely ignores the fact that the filibuster rule did not even begin until 1917, and it did not come into fruition until the 1940s. Nevertheless, we have changed the rules in this body many times. But we are not asking for a change of the rules. We are asking for a recognition. There is a difference between the Executive Calendar, where the precise meaning of the Constitution is advise and consent under section 2, clause 2 of the Constitution, and the legislative calendar where we do have a right to filibuster. So that distinction needs to be made.

I yield 5 minutes to the distinguished Senator from Pennsylvania, and then I will be happy to take questions on this side.

I yield without losing my right to the floor a question of the Senator from----

I yield to the Senator from Colorado without losing my right to the floor.

I have laryngitis. What a time to have laryngitis. But that is the way it is. I apologize for my voice.

I sure do. The paper got it just right. I have seen three major editorials from the Chieftain and from the Rocky Mountain News calling the Democratic filibuster an irresponsible escalation of the judicial nominating war.

I agree with both. The Denver Post said ``a change in Senate procedure is long overdue.'' ``[T]here is no good reason to oppose a supermajority of the Senate that was not contemplated in the Constitution.''

They got it just right.

I yield to the distinguished Senator from Virginia without losing my right to the floor.

That is a good question because it seems as if our friends on the other side forget when they were in the majority and they had the Presidency and they all wanted votes up and down and all of a sudden they do not.

The Senator is right in pointing out these disparities. All of a sudden when the worm is turned, they do not want to live up to their own words. I am not sure that Senator Levin does not want to live up to his own words, but if he does want to live up to his own words, then he should not be voting with the Democrats. He should be voting for cloture.

Zero. Until this.

I will yield to the distinguished Senator from Virginia for a question and then I will yield to the distinguished Senator from Minnesota without losing my right to the floor.

The Senator will have his half hour in about 15 or 20 minutes.

That is the way I view it. I have to say this is a very dangerous thing the Democrats are doing for the first time in history. It has caused a tremendous amount of angst on everyone's part and awful partisanship because it has never been done before. It is time to move on.

I yield to the distinguished Senator from Minnesota.

I certainly do. That is what is behind this. I think the Senator points it out very well. So did George Will.

Not on my time.

About what? I did not hear the Senator.

I am not going to yield at this time to the distinguished Senator. I will yield to the distinguished Senator from Tennessee.

Yes.

That is right, in the history of the Senate. Absolutely, Will was right, because that same commentary was pointed out by Alexander Hamilton. He wrote in Federalist Paper 76 the Senate's role is to refuse nominations only for ``special and strong reasons'' having to do with ``unfit characters.'' That is not what our Democratic colleagues are doing. What they are doing here is denying up-and-down votes to very qualified people, who by their own gold standard, the American Bar Association, are proven to be qualified.

I believe it is abysmal that has happened. I think Senators have pointed out here this evening this is a very important debate that has to occur.

The American people need to know a militant minority, 45 Democrats, basically, is thwarting the will of the majority and taking away the dignity of an up-and-down vote to qualified judicial nominees by this President, which has never happened, once they hit the floor, which has never happened before.

In the Clinton years, all 377 judges were confirmed--only one was rejected, but he got an up-and-down vote, which is more than our people are getting.

I yield to the distinguished Senator from Tennessee, without losing my right to the floor.

Well, to be honest with you, it all comes down to abortion, according to some of my top Democrat friends. That has become a litmus test issue for Democrats because the inside-the-beltway groups the Democrats talk about do not want people on the courts who are pro- life, even though they are committed to upholding Roe v. Wade because that is the law of the land.

In the case of Judge Pickering, Judge Pickering was unanimously confirmed as a Federal district court judge in 1990. He has served well. He is one of the people who brought about racial conciliation in the State of Mississippi and was treated in a despicable fashion here.

In the case of Bill Pryor, I do not think anybody who looks at his record can say he will not uphold the law, no matter how much he disagrees with it, because that is what a judge will have to do.

That is right. If I recall it correctly, it had to do with partial-birth abortion, even though he hates partial-birth abortion, as anybody who looks at it carefully. It is a barbaric practice, at the very least. He upheld the law.

I do not know you can ask anything more of anybody than that. Plus, this is a fellow who graduated No. 1 in his class from Tulane University School of Law, who is very bright and was very candid and open with the committee, and yet being filibustered for no good reason. It really is unseemly.

The distinguished Senator raises some good points. There is no question the filibuster rule was despicably used during that time. But I still believe most of us would agree that rule XXII, the filibuster rule, can and should apply to the legislative calendar. We have a right to set our own rules through the legislative calendar. But the Executive Calendar is a calendar that is subject to our right to advise and consent, which under article II, section 2 is a majority vote, and it is being distorted by our friends on the other side.

Mr. President, it is my understanding that there is a rough sense between the Democratic and Republican sides that the next hour, at least on our schedule, had been designated, that the Republican time would take half an hour and the Democratic side half an hour. If there is a different point of view on that side, perhaps that could be expressed. Otherwise, we would go forward. If there is not, then what I would like to do at this time is yield 5 minutes to the Senator from Idaho.

Mr. President, I yield 5 minutes to the Senator from Virginia.

Mr. President, I thank the gentleman for his comments, both on the status of our economy and the great economic growth that we are now enjoying, but also the last point about the importance of confirming judges.

I hope people around America are watching tonight so they will understand why we are talking about the importance of confirming judges nominated by the President to the Federal bench.

We have all heard the phrase, ``justice delayed is justice denied.'' The

reason that is a common phrase is because there is a lot of truth to it. What we are seeing around the country today is delay in justice because the Senate is denying the President a mere up-or-down vote on some of his nominees to the bench.

While it is possible for minority members, along with some in the majority, to defeat a judge on an up-or-down vote, that has only happened one time, a few years ago, since I have been in the Senate.

The judges who are being denied confirmation would all pass with a majority vote, but the minority is holding them up through the mechanism of the filibuster. I will have more to say about that mechanism in a moment.

The key point the Senator from Virginia made was that it is important we confirm these judges, as important as many of our other functions.

Let us reflect for a moment. The Senate was given some very unique responsibilities by the Framers of our Constitution. Among those unique responsibilities is the sole ability to ratify treaties and confirm nominations of the President. Advice and consent of the Senate is the way the Constitution refers to it.

The House of Representatives, with all of the great responsibilities of that body, does not have this authority. This is alone the job of the Senate, and it is a job that the Senate, throughout its entire history, has taken very seriously. Never, in the history of the Senate, has there been a successful filibuster of a nominee to the bench by the President. That is what is so striking, what is so important, what is so significant, about the activity of the minority party during the course of the last couple of years, and it is why we are here tonight talking about this and trying to move America to move our Democratic colleagues to recognize that it is only fair to provide an up-or-down vote for these candidates. That is all we are asking.

We have talked about the fairness to the nominees themselves. Miguel Estrada, one of the most competent attorneys in the country, after more than 2 years, finally withdrew his name from consideration because he had to move on with his career. We could talk about the fairness to these nominees of having to languish for months, for years, without even the courtesy of an up-or-down vote. We could talk to the fairness of the President. We could talk to the fairness of the majority in the Senate.

What I want to address briefly is the fairness to the American people in denying justice by the delay in filling vacancies, vacancies which are emergency vacancies.

What is an emergency vacancy? An emergency vacancy is one which has been determined by the Judicial Conference, which is a nonpartisan entity that acts as the principal policymaking body for the administration of the U.S. courts, that there are so many cases per judge in a particular circuit or district that an emergency exists; there are not enough judges to take care of the cases in any reasonable timeframe, as a result of which litigants suffer.

Perhaps the clearest way to make this point is, every schoolchild knows that the Constitution of the United States guarantees a criminal defendant a speedy trial, but they cannot get a speedy trial if there is no judge. So what happens is that all of the other litigants in the courts have to go to the back of the line and stay there until all of the criminal defendants have had their speedy trial.

In some cases, that means the civil cases languish for 3, 4, 5, 6 years. That is justice denied in the case of those litigants whose justice has been delayed.

What are these judicial emergencies? There are 12 judicial emergencies on the circuit court of appeals including the Ninth Circuit, the Fifth Circuit, the Sixth Circuit, and the Fourth Circuit. Democrats are obstructing nominees for every one of those circuits. For all three of the nominations who have already been filibustered-- Priscilla Owen, nominated to fill one of the two Fifth Circuit judicial emergencies; Charles Pickering to fill one of the Fifth Circuit judicial emergencies; and Bill Pryor, nominated to fill an Eleventh Circuit judicial emergency--in each case, the filibuster is preventing us from filling a seat which has been declared a judicial emergency.

This is not some theoretical exercise. This is a problem that has to be dealt with, and the Senate is falling down in its responsibility to fill these emergencies.

Democrats have also threatened to filibuster other nominees who have been named to fill judicial emergencies in other circuits, by name, Carolyn Kuhl, who I would like to speak about a little later, nominated to fill a Ninth Circuit judicial emergency, Henry Saad for the Sixth Circuit, Susan Neilson for the Sixth Circuit, Richard Griffin for the Sixth Circuit, David McKeague for the Sixth Circuit, and Claude Allen to fill a judicial emergency in the Fourth Circuit.

The cost of judicial vacancies to litigants in civil rights cases not being able to vindicate their civil rights in commercial disputes, in contract disputes, in regulatory cases involving Federal regulations, in every kind of case one can mention, there are cases languishing and litigants who are not being given their rights because there are not sufficient judges to hear their cases.

I mentioned the Ninth Circuit. That is the circuit in which my home State of Arizona is located. I am very familiar with the delays in that circuit. It is hurting the economies of our States. It is hurting the rights of litigants in our States. I will mention a couple of details to make the point.

The Ninth Circuit is the largest circuit in the country. It hears appeals from California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska, and Hawaii. There are over 5,200 cases pending in the Ninth Circuit. It has the largest civil docket in the Nation, more than 1,500 cases. Since early 2001, cases filed in the district court of the Ninth Circuit and that make their way through the court of appeals take longer to resolve than they did 2 years ago. In 2001, it took 30 months for a case to go from original filing to a final decision on appeal. By June 2003, it took 31 months. This 1-month increase in delay may seem small but the delay adds up across the circuit. There are more than 4,100 cases in the Ninth Circuit affected by this delay.

That means there are more than 123,000 extra days that have been spent by both parties waiting for a decision. It takes 5 months longer to resolve a case in the Ninth Circuit than the national average of courts of appeal, 31 months versus 36 months. That is what has affected my State and other States in the United States Court of Appeals. The filibuster that has been conducted by the Democrats is responsible for the inability to fill these vacancies. Not just vacancies, but judicial emergencies.

The last point I make before yielding time, if the Senator from Alabama is still here and would like to speak briefly, to answer a question that has been asked of me by constituents in Arizona. They remember the movie ``Mr. Smith Goes to Washington'' with Jimmy Stewart. A couple of them have read in the history books about the great filibuster Strom Thurmond conducted over 24 hours. They asked me, if the Democrats are filibustering these judges, why can't you make them talk all night? The answer to that question is, that is not the nature of a modern filibuster. When Jimmy Stewart and Strom Thurmond were speaking that long, they were trying to hold the floor, as our colleague from Nevada did a couple of nights ago when I think he spoke over 8\1/2\ hours. He did not want to give up the floor because he did not want business to be conducted.

In the case of Strom Thurmond and Jimmy Stewart, in the movie, they did not dare give up the floor because they were a one-man band for their cause. They may have had one or two colleagues with them, but basically they were it. They knew as soon as they gave up the floor, the leader would say: I ask unanimous consent we now vote on the matter they were arguing about. They would object and say, I object, and under Senate rules that is enough. It only takes one person to object to go to the next stage. The next stage is filing a cloture motion and then a vote occurs. If 60 Senators say, ``We are ready to vote,'' you take the vote on whatever matter it is. In this case, it would be the nomination of these judicial nominees. They might pass by 51 votes, but you cannot take the vote until 60 Senators agree.

That is the rule that applies on the legislative calendar. Up until now no one thought it would be a rule that would be abused with respect to the Executive Calendar, the calendar on which the judicial nominees are considered.

The Democrats have decided to seek to apply that 60-vote rule so if more than 40 of them vote no to take a vote, we would not have the 60 votes necessary to take that vote and the majority rule would never be permitted to prevail. That is the way it has been for the last several months. We have taken a cloture vote several times and each time there are 44, 45 Democrats who vote against cloture. They vote against taking the final vote. That means there may be 55 or 56 on the other side with some Democrat support, obviously, willing to take the vote. But we cannot get that number up to 60.

Up until now, in the interpretation that has prevailed, we cannot take the final vote which would pass for all of these nominees; 51 votes would be secured for every one of the nominees that have been filibustered. That is why we cannot make someone talk all night. If our colleagues on the Democrat side wished, they could have one person on the floor all night tonight and simply object to our request to go to these votes. But they would not have to talk if they did not want to.

I am pleased they are joining in this debate so we can actually have a discussion about these candidates. In that sense, I guess we have forced an all-night discussion. It is a discussion that should have occurred a long time ago. It is a useful discussion, but it is not a discussion at the end of the day that I suspect will change any of their minds, as a result of which, as long as we adhere to the 60-vote rule that has always been the rule in the past, we cannot get to a vote where the majority would be able to prevail. That is what the Senate rules are.

On Friday, we will have a vote to change the rules. That vote requires a two-thirds majority to pass. It is unlikely that will occur, either.

That is the state of play right now. That is why, to answer the question, ``Can you make somebody talk all night,'' the answer is no, not if they have 40 friends, because if they have 40 friends, all they have to do is vote ``no'' when you have a cloture vote and you cannot go on to your final vote. That rule may sound arcane, but I also say on legislative matters, it has been used by both parties to defeat legislation that did not have a 60-vote majority. It is a right Senators have always felt important, for important matters to require 60 votes. To pass a treaty, it takes two-thirds. The Constitution explicitly spells that out. But to confirm a judge, the Constitution has no supermajority requirement.

There are a lot of people who believe the real intent of the Framers was that a simple majority should apply. Perhaps one day that issue will be tested. Until then, we are with the proposition that as long as any Senator objects, it takes 60 votes to get to a final vote in which a simple majority would prevail. As of right now, that is what is being applied in the case of these judicial nominees.

The important point for Americans to understand is the minority has thwarted the will of the majority; that the consequences are significant for the country; that emergency judicial vacancies are not being filled; and while this is unfair to nominees themselves, it is even more unfair to the American people because the judicial vacancies remain vacant.

It is a solemn responsibility of the Senate to act on the President's nominees. We are not fulfilling that responsibility. It is for that reason the Republican majority decided to take this time tonight and tomorrow to try to bring this matter to the attention of the American people to urge our colleagues to reconsider their position in opposition to even taking a vote on these nominees so eventually we can get to the point where we can simply have an up-or-down vote on the nominees President Bush has made for these important positions.

I reserve the balance of the time allotted to the Republican side during this hour. If there is another Republican wishing to speak, I am happy to recognize that person. If not, I am happy to yield the floor to colleagues on the Democrat side for whatever time is remaining and pick that up a little bit later.

I yield the floor.

Mr. President, I inquire how much time remains of the half hour?

If either Democrat who is on the floor would like to speak, fine. Otherwise I will go ahead and use that time.

I am happy to follow the precedent we have established and use the remaining 2\1/2\ minutes.

I wanted to speak to the qualifications of some of these nominees. Obviously, during the short period of time I have, I am not going to be able to do that except that I said I wanted to mention the qualifications of one of these nominees, Judge Carolyn Kuhl, nominated to the Ninth Circuit Court of Appeals, a judge who would be sitting on cases I might argue to the Ninth Circuit Court.

She has been a judge in a State trial court in Los Angeles since 1995. The American Bar Association rated her ``well qualified,'' their top rating for the Ninth Circuit Court of Appeals. She has served as a superior court judge in Los Angeles County in both the criminal and civil divisions and supervising judge of the civil division, the first woman to hold that position. Before that, she was a partner in a prestigious law firm in California. Before that, she served in the Department of Justice. She worked as a deputy solicitor general of the United States and argued cases before the United States Supreme Court in that capacity. She has extraordinary bipartisan support. A bipartisan group of 23 women judges on the superior court who serve with Judge Kuhl have written to our Judiciary Committee and said, ``As sitting judges, we, more than anyone, appreciate the importance of an independent, fair-minded and principled Judiciary. We believe that Carolyn Kuhl represents the best values of such a Judiciary.'' That is from a bipartisan group of judges.

A bipartisan group of nearly 100 judges who serve with her said: We believe her elevation to the Ninth Circuit Court of Appeals will bring credit to all of us. As an appellate judge, she will serve the people of our country with distinction, as she has done as a trial judge.

There are a variety of other endorsements that have been made of this fine candidate. The bottom line is we reviewed her record, we heard her testimony. She made a tremendous impression on all of us on the committee. The worst a couple of people on the other side can say is they disagreed with a couple of her decisions. I daresay if that was the test of every one of us as Senators, we would be in a sorry position because we cannot go very long without people disagreeing with us philosophically on positions.

Judge Carolyn Kuhl, it is plain, will follow the Constitution. She is one of the candidates we need to act upon. I urge my colleagues to consider these remarks in consideration of her nomination.

Mr. President, I ask the time of the half hour allotted to this side be divided between myself and Senator Dodd and that I may proceed for 15 minutes.

Mr. President, what I wish the majority would be allowing tonight is consideration of legislation that addresses the loss of over 3 million jobs in this country during the last few

years, most of them manufacturing jobs.

What I wish the majority would be allowing us to do tonight is to consider legislation to extend the unemployment benefits to those Americans who have lost their jobs in this recession, the way we have extended unemployment benefits in previous downturns.

Those needs of the American people and a dozen other needs are what we ought to be spending our time on tonight and every day until those issues, and many other critical issues, are addressed.

Instead, those on the other side of the aisle decided to spend 30 hours rehashing the reasons that 4 out of the 172 of President Bush's judicial nominees have not been confirmed by the Senate. That is their right, but it is wrong.

In my home State of Michigan, the unemployment rate is 7.4 percent. In fact, Michigan has lost and continues to lose more manufacturing jobs than almost any other State in the Nation. Mr. President, 2.5 million of the 3.3 million jobs which the U.S. economy has lost since January 1, 2001, were in manufacturing. We lost over 160,000 of those jobs in Michigan alone. Other States face large job losses, but what we should be doing is helping people who lost jobs, acting to stop the currency manipulation by China, Japan, and other countries, and the one-way street in trade which has been such a large part of the loss of jobs in this country.

The first act of this Congress last January was to extend unemployment benefits through the end of this year because Congress did not act last year. That made the 2002 holiday season mighty grim for those workers whose benefits had expired. Current law provides 13 weeks of additional Federal aid to laid-off workers who have exhausted their 26 weeks of regular State benefits. However, this administration has shown no interest in either extending the deadline for the program or authorizing new benefits. The trust fund that is to be used for unemployment benefits currently has over $20 billion in it. Why this administration balks at extending unemployment benefits is beyond me since that is what the money in that fund is for.

I, along with a number of our colleagues, propose we extend the December 31 deadline for another 6 months so newly unemployed workers can receive Federal assistance, but also making available an additional 13 weeks of Federal unemployment benefits for a total of 26 weeks. That is what we have done in prior recessions. We responded during the 1974 recession. Federal benefits were extended to 29 weeks.

In the 1981 recession, Congress extended benefits to 26 weeks. In the 1990 recession, 26 weeks were provided, 33 weeks to States with high unemployment.

While the unemployment numbers released last week were somewhat of an improvement, in terms of manufacturing jobs, that loss continues, and the long-term economic forecast continues to be pessimistic.

On this track, this administration will be the first administration to lose private sector jobs since Herbert Hoover.

In one moment I am going to propound a unanimous consent request that I know my Republican colleagues will want to hear, and I want to alert them of the fact I will be propounding that request in a moment. I hope our Republican colleagues will give us consent to take up unemployment insurance extension legislation this evening. Perhaps then this 30-hour exercise will be fruitful.

I think I have alerted the Republicans that we would be making this unanimous consent request.

Unanimous Consent Request--S. 1853

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

Mr. President, since the majority has now determined we will spend 30 hours of the time of the Senate rehashing 4 of the 172 judicial nominations that haven't been confirmed, I want to address what is an even deeper issue than the majority's effort to weaken and water down the role of the Senate in exercising its advice-and-consent responsibility.

That even more fundamental issue is our Nation's historic and constitutional system of checks and balances. Those checks and balances are an integral part of the unique design of our founding document in restraining the potential excesses and extremes of the executive branch. We share the obligation and responsibility with the judicial branch.

Our rules in the Senate are aimed at restraining the potential abuse of the rights of the minority by the majority within the legislative branch itself.

In June of this year, Robert Caro, the eminent Pulitzer Prize winning historian and author of ``Master of the Senate,'' his great biography of former President and Senate majority leader Lyndon Johnson, wrote to our Senate Rules Committee addressing this subject and quoting from his book. Here is what he said:

. . . in creating this new nation, its Founding Fathers,

the Framers of its Constitution, gave its legislature . . .

not only its own powers, specified and sweeping . . . but

also the powers designed to make the Congress independent of

the President and to restrain and act as a check on his

authority, [including the] power to approve his appointments,

even the appointments he made within his own Administration .

. . and . . . 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.''

Robert Caro goes on to say:

The Framers wanted to check and restrain not only the

people's rulers, but also the possibility that the majority

will be used in Madison's words ``to oppress the minority.''

The Framers, he [Madison] said, established the Senate as the

body ``first to protect the people against their

rulers; secondly to protect the people against the

transient impressions into which they themselves might be

led . . . The use of the Senate is to consist in its

proceeding with more coolness, with more system. . . .

One of the historical tools for the protection of the minority which is developed in the Senate from its earliest days is the principle of extended debate. The exercise of this right of Senators, particularly when it is used to block actions which the majority fervently wishes to take, is embodied in our Senate rule that you must have a supermajority of 60 percent of the Senate on matters where there is strong opposition.

Filibusters have played an important role in moderating action in the Senate. It is widely recognized the Senate is a less partisan place-- you may not be able to discern that tonight, but generally this is a less partisan place than the other body in our Congress or virtually any other democratically elected legislative body anywhere in the world.

As Senator Byrd said in his series of scholarly addresses on the floor of the Senate about Senate history:

Arguments against filibusters have largely centered around

the principle that the majority should rule in a democratic

society. The very existence of the Senate, however, embodies

an equally valid tenet in American democracy: the principle

that minorities have rights.

Senator Byrd goes on to say in his study:

The most important argument supporting extended debate in

the Senate, and even the right to filibuster, is the system

of checks and balances. The Senate operates as the balance

wheel in that system, because it provides the greatest check

against an all powerful executive through the privilege that

Senators have to discuss without hindrance what they please

for as long as they please . . . Without the potential for

filibusters, that power to check a Senate majority or an

imperial presidency would be destroyed. It is a power too

sacred to be trifled with.

Lyndon Baines Johnson said in 1949:

. . . If I should have the opportunity to send into the

countries behind the iron curtain one freedom and only one, I

know what my choice would be . . . I would send those nations

the right of unlimited debate in their legislative chambers.

If we now, in haste and irritation, shut off this freedom,

we shall be cutting off the most vital safeguard which

minorities possess against the tyranny of momentary

majorities.

In May of 1994, when the Republican minority blocked Senator Clinton's nomination of Sam Brown to be ambassador, one of our Republican colleagues said the following:

In considering the nomination of Mr. Samuel W. Brown to be

the Ambassador to CSCE, I have reflected on the latitude

which ought to be accorded the President in making this

decision for the ambassadorship, reflecting as well on the

constitutional responsibility of the Senate for advice and

consent as a check. . . . . I am troubled by a situation

where the only pressure point Republicans have in the U.S.

Government is on cloture. Once cloture is obtained, there are

more than enough votes on the other side of the aisle to

cover the day. While the House is not involved in this

matter, the House is overwhelmingly Democratic; there is a

Democrat in the White House. The only place Republicans can

assert any effective, decisive action is by stopping somebody

from coming up. We have 44 votes, and we have more than

enough, if there is unity among the Republicans, to do that.

I think Mr. Brown's nomination and the responsibilities at

the Conference on Security and Cooperation in Europe are

sufficiently important to preclude his nomination.

The filibuster succeeded in blocking this nomination.

There are many reasons to at least consider modification to the Senate rules regarding the procedures for ending debate, the process we call cloture. Those rules have been modified a number of times before, but one of the reasons to consider modifying our rules is not the reason which is motivating our current majority in the Senate: irritation with the fact that only 98 percent of President Bush's judicial nominees have been confirmed by the Senate. That irritation that a substantial minority of Senators would stand in the way of getting their way 100 percent of the time has led to this 30-hour talkathon and their apparent desire to amend the Senate rules to let them get their way 100 percent of the time.

We find ourselves tonight debating not whether unemployment insurance should be extended for Americans who have lost their jobs, not how to create more jobs in our economy, not how to better provide for the education of our children, or to strengthen our homeland security, or reduce the cost and increase the availability of prescription drugs, but, rather, listening to the re-argument of the case for the 4 nominees out of 172 nominees the Senate has not confirmed.

They want a 100 percent confirmation success record, and they appear to be willing to throw over the very essence of the Senate and its check-and-balance role to accomplish it. The Constitution says the President shall nominate, and, by and with the consent of the Senate, shall appoint ambassadors and judges.

William Maclay, one of the first two Senators from Pennsylvania, wrote the following:

Whoever attends strictly to the Constitution of the United

States will readily observe that the part assigned to the

Senate was an important one, no less than that of being the

great check, the regulator and corrector, or, if I may so

speak, the balance of this Government. . . . . The

approbation of the Senate was certainly meant to guard

against the mistakes of the President in his appointments to

office [and] the depriving power should be the same as the

appointing power.

I thank the Chair, and I yield the floor to my friend from Connecticut.

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.