A resolution to amend rule XXII of the Standing Rules of the Senate relating to the consideration of nominations requiring the advice and consent of the Senate.

Mr. President, Republican partisans are acting as if Senate Democrats were treating President Bush's judicial nominees the way Republicans treated President Clinton's. That is not the case. We have worked hard to repair much of the damage of Republican mistreatment of President Clinton's nominees. When we led the Senate we moved forward at twice the rate that Republicans had and during our leadership 100 of President Bush's judicial nominees were confirmed. This year we have proceeded to consider and confirm another 25 lifetime judicial appointments. I would understand the partisanship if Democrats had held up consideration of 125 judicial nominees and the Senate had only confirmed two, but just the opposite is true.

I understand the frustration that Senator Frist feels regarding the continuing impasse over the nominations of Mr. Estrada and Judge Owen. I am sorry that the White House has chosen confrontation over cooperation with the Senate on these matters. It is too bad that this White House will not work with us, as Senator Bennett and others have indicated was reasonable, in order to provide access to the materials we requested from Mr. Estrada and the Justice Department one year ago today. With respect to the renomination of Judge Owen, I have said that unprecedented renomination of a judicial nominee rejected after a hearing and a fair debate and vote before the Judiciary Committee was ill advised. It remains so.

Along with the other members of the Judiciary Committee, I have voted on the Estrada and Owen nominations. We have not taken the course of prior Republican leadership in which any Senator was allowed to block President Clinton's judicial nominees by use of a secret, anonymous hold. Instead, Democrats acted over the last few years to reform the confirmation process. We have added openness and accountability. What we have not been able to do is obtain a fair level of consultation and cooperation from this White House. We made home State Senators' ``blue slips'' matters of public record. When Republican Senators stymied Judiciary Committee consideration of President Clinton's judicial nominations, they were permitted to do so under the cloak of confidentiality. I changed that in 2001.

The Republican myth of a ``crisis'' in the Senate is punctured by the facts, which show the lowest judicial vacancy rate in 13 years--lower than the national jobless rate of 6 percent.

Court-packing by Presidents of either party is harmful, and I have spoken out often about the need to preserve the independence of our Federal judiciary. The world's emerging democracies envy the judicial independence in the American system, and we should make every effort to defend it, not to undermine it, as the escalating tactics of this administration would do. Just last month the administration and congressional Republicans turned a deaf ear when Chief Justice Rehnquist warned against the assault on the independence of the judiciary when so-called sentencing ``reforms'' were tacked on to a popular bill without hearings or careful consideration.

The White House says it opposes judicial activism, but the President sends the Senate activist nominees. The White House itself pushes results-oriented changes in the rules of the Senate, which is a separate branch of Government. This White House is not satisfied with its subjugation of the House and Senate to its will and removing Congress as a check on the Executive. They also want to pack the independent Federal courts. Republicans are not satisfied with means undermining the independence of the Senate, they are embarked on a course to undermine the independence of the Federal judiciary, as well. They already have convinced Senate Republicans to bend and even break the Judiciary Committee's rules in the handling of judicial nominees. Now they want to change the rules of the Senate itself in a raw bid for unitary government, directed by the White House. The American people and their representatives in the Senate should not let the Senate or the Federal judiciary become mere arms of any political party or any President.

The President's charges about obstruction would be easier to understand if the numbers themselves did not disprove them. The President and some Republicans in the Senate seem to be suffering from confirmation amnesia. The Democratic-led Senate confirmed 100 of his judicial nominees, acting far faster than Republicans did with President Clinton's nominees. We have confirmed another 24 this year for a total so far of 125 and achieved the lowest judicial vacancy rate in 13 years. The vacancy rate on the Federal bench today is 5.3 percent, which is lower than the national jobless rate of 6 percent. Unemployment has soared, the deficit has soared, crime is on the rise for the first time in a decade--about the only thing that has gone down significantly over the last 2 years is Federal judicial vacancies. Yet the White House complains that it has not been able to bully the Senate into rubber-stamping every one of the White House's ideological choices. Democratic Senators have cooperated to improve the process so that it has worked much more smoothly for President Bush's nominees than Republicans allowed for President Clinton's nominees.

The fact is that 125 have been confirmed, and two have been held back. You would not know that by listening to the President's remarks last Friday or to Republican talking points or various attack ads now being broadcast around the country in a partisan effort to intimidate Senators.

Democrats held hearings on more nominees faster than Republicans had and proceeded on controversial nominations. We have cooperated this year in bringing many controversial nominations to the floor for votes. When Republicans controlled the Senate during the last Democratic administration, they blocked more than 60 judicial nominees. And they were blocked not with cloture votes in the light of day, but sometimes by a single, anonymous Republican objection. And yes, there were also Republican filibusters of President Clinton's nominees.

The answer for handling the remaining controversial nominees is not reckless rhetoric or undermining the Senate's independence by changing its rules so that the independence of the Federal judiciary can become a victim to partisan court-packing. The answer has to start with the President, where the process begins. Despite his earlier promises, the President has been a divider and not a uniter in choosing many of his nominees, who would roll back the hard-won rights of workers, women, minorities and consumers, and who would side with the big polluters over communities when it comes to clean air and water. Several of his choices have divided the American people, and they have divided the Senate. We have drawn a line with a few of his most extreme choices. Drawing that line has been the responsible response to this President's divisive nominations for lifetime positions on the Federal courts.

This President campaigned saying he wanted to change the tone in Washington. He has--for the worse. The White House has adopted the rabid partisanship of House Republicans. The President of the United States has sunk to name-calling, extreme rhetoric and partisan campaigning against the Senate and individual Senators, which is not helpful to the process or to the institutions of our government.

The answer is for the administration to work with the Senate, as earlier Presidents have done. The process starts with the President, and the buck stops with the President.

Here on the Senate floor, when Senators have opposed the most divisive of the President's nominees with whom he is seeking to pack the courts and ideologically tilt them, we have done so on the record. We have debated and put forth the considerations and reasons. That, too, was something all too often missing from the years in which Republicans defeated judicial nominees through stealth tactics. We have voted on the record in vote after vote required by Republican cloture petitions.

Unfortunately, in the case of Mr. Estrada, the administration has made no effort to work with us and resolve the impasse. Instead, there has been a series of votes on cloture petitions in which the opposition has grown and from time to time the support has waned. Recently, there have been press reports indicating that Mr. Estrada had asked the White House months ago to withdraw his nomination. I understand his frustration. If this administration is not going to follow the practice of every other administration and share with the Senate the government work papers of the nominee--the very practice this administration followed with an EPA nominee in 2001--then I can understand him not wanting to be used as a political pawn by the administration to score partisan, political points. That the administration has not acceded to his reported request but has plowed ahead to force a succession of unsuccessful cloture votes and to foment division in our Hispanic community for partisan gain is another example of how far this administration is willing to go to politicize the process at the expense of its own nominees.

The frustration with these two difficult nominations should not obscure the work that the Senate leadership has done to correct some of the abuses of power earlier this year and pave the way for votes on the nominations of Jeffrey Sutton and Judge Cook to the Sixth Circuit and John Roberts to the DC Circuit. There were more votes against the Sutton nomination than the number required for a filibuster, but there was no filibuster of that nomination. Just as there was no filibuster of the controversial nomination of Mr. Tymkovich to the Tenth Circuit or of the controversial nomination of Judge Dennis Shedd to the Fourth Circuit. All three of these circuit court nominations were controversial and opposed by many Americans and many Senators.

The President's recent comments took the Republican Chairman of the Judiciary Committee to task for, among other things, not holding a hearing on the nomination of Judge Terry Boyle. I understand that Chairman Hatch is following a longstanding tradition of the Senate in not proceeding with a nomination that is opposed by a home State Senator. After all, it was Senator Helms' opposition to Judge Beaty and Judge Wynn, as well as to Roger Gregory and a number of others, that has led to there being numerous vacancies on the Fourth Circuit. Having honored Senator Helms' objections, Chairman Hatch would be seen as hypocritical and partisan if he were to ignore the concerns of Democratic home State Senators. Among the difficulties the chairman of the Judiciary Committee has faced since 2001 are the high number of judicial nominees of this White House that do not have home State Senator support. So when the President attacks the Senate for not having acted on nominations that the White House knows does not have the support of home State Senators, he is not being fair to the Senate, to the chairman or to the nominees. The White House knows that judicial nominations do not proceed without the support of home State Senators. Yet this administration continues to belittle the role of home State Senators in the advice and consent process and ignore the important role they have long played in Senate consideration of judicial nominees.

Another example is the nomination of Judge Carolyn Kuhl to the Ninth Circuit. This is a nomination that is opposed by both home State Senators. Proceeding on such a nomination is unprecedented. Yet Senate Republicans have forced the nomination out of the Judiciary Committee on a party-line vote after knowing that Senator Feinstein and Senator Boxer both oppose confirmation.

The last time the Senate voted on a nomination opposed by both home State Senators was only because the Republican caucus ambushed the nomination of Judge Ronnie White of Missouri on the Senate floor in 1999 after one of the Missouri Senators switched from supporting the nomination to opposing it the day of the vote. They proceeded without telling the administration, Senate Democrats or the nominee of the change of position and a number of Republican Senators who had previously voted in favor of the nomination changed their positions, as well, and the nomination was defeated on the only party-line vote to defeat a judicial nominee in Senate history of which I am aware.

With respect to Senator Frist's resolution, S. Res. 138, I look forward to the work of the Rules Committee on this proposal. Initially, I would observe that voting on judicial nominations is unlike Senate consideration of legislation in the way that imposing capital punishment is unlike any other criminal sentence. It is final and irrevocable. A bad statute once enacted can be amended or repealed. A bad judge is on the bench for life and will continue to affect American's rights, our freedoms and our environment in case after case for decades to come, long after the President who appointed that judge is gone. Given that dimension, I believe Senator Frist got his proposal upside down by seeking to exempt judicial nominations from Senate debate rules. It is more important that there be a higher level of confidence and certainty that a judicial nomination being considered for a lifetime appointment be the right person for the job, be a person of fairness, impartiality, judgment and someone committed to our constitutional values. The rights of women, minorities, consumers, workers and those concerned about the environment should not be sacrificed to political expediency and the independence of our federal courts should not be lost to ideological court packing by this administration.

Others will no doubt point out that Senator Frist voted against a proposal in 1995 to revise the Senate filibuster rules. I have pointed out in other statements how many Republicans supported the filibusters against President Clinton's executive calendar nominees, including the judicial nominations of Judge Marsha Berzon and Judge Richard Paez, the last most recent double filibuster in 2000, and the nominations of Judge Rosemary Barkett and Judge H. Lee Sarokin. In addition, recent Republican filibusters succeeded in defeating the nominations of Dr. Henry Foster to be Surgeon General and Sam Brown to be an ambassador. Republicans have not been shy about using filibusters to defeat the nominees of the most recent Democratic President or stall legislation some of them oppose. Just last year, in their tributes to Senator Thurmond, Republicans extolled his use of the filibuster and his setting a record for the longest individual filibuster in Senate history. What they left out of their tributes was the fact that Senator Thurmond had filibustered civil rights legislation.

Others may also point out how many Republicans have proposed supermajority requirements. Not only have Republicans abandoned their commitment to fiscal responsibility and their call for a balanced budget, they have forgotten that they insisted in recent years on three-fifths requirements to raise the debt ceiling or have taxes apply retroactively. Senator Craig and Senator Miller currently support a proposal, S.J. Res. 2, to require a balanced Federal budget that includes a three-fifths rollcall vote of each chamber to increase the debt limit. Last year Senator Sessions introduced a measure, S.J. Res. 11, cosponsored by Senators Crapo, Kyl, Fitzgerald, Hagel, Inhofe and Shelby to require a two-thirds vote of each House in order to increase any tax. Of course, in the 105th Congress, along with former Senators Ashcroft and Abraham, who are now Cabinet secretaries in this administration, Senators Allard, Bennett, Bond, Brownback, Burns, Campbell, Cochran, Collins, Craig, DeWine, Domenici, Enzi, Frist, Grassley, Gregg, Hagel, Hutchison, Inhofe, Kyl, Lott, Lugar, McCain, McConnell, Nickles, Roberts, Santorum, Sessions, Shelby, Smith, Snowe, Specter, Stevens, Thomas and Warner all cosponsored S.J. Res. 1 which would have required a three-fifths majority requirement to raise the debt ceiling.

The Senate was not designed by the founders or the Constitution to be a strictly majoritarian institution. To the contrary, the genius of the Framers at the Constitutional Convention was to construct a House of Representatives, structured on majoritarian principles with representatives voting on behalf of relatively equal numbers of constituents, and the Senate using different principles. The Senate has always had two Senators for each State regardless of size. Thus, small States like Vermont and Rhode Island and less populous States like Wyoming, Idaho and Alaska each have equal representation with California, Texas and New York. The Senate and the House are not the same and were not intended to be the same. They were designed to be complimentary institutions of government to form a balanced legislature. I understand why proposals like S. Res. 138 might appeal to newer Republican Senators and to former House Members who are now Republican in the Senate but I fear it would represent another ill- advised step to change the Senate into a second House of Representatives. The Constitution did not assign the advice and consent role to the House but to our distinctive body, the Senate. The Senate has many distinctive traditions including, to me, one of the most significant--that smaller States have a larger role to play in the Senate than in the House.

It is a bit ironic, to say the least, that an administration that was selected with less popular vote than the Democratic Presidential candidate because of a court decision and the workings of the electoral college is now pressing so vociferously to change the Senate rules and allow judicial and executive branch confirmations approved by the barest of ``majorities''--of only those Senators present and voting at the time the Republican Senate majority chooses to call the vote.

In addition, given the Senate's structure, the administration's pretense that somehow the votes of a majority of Senators shows that a majority of Americans favor a nomination may not be factually accurate. For example, Senate Republicans have complained bitterly and resentfully about the Senate's failure to end debate on the nomination of Judge Owen. But the Senators who have voted to end debate represent less than 50 percent of the population of the United States and the Senators who have voted not to end

that debate represent the majority of the American population. Now, put that way, the decision of the Senate on this controversial nominee hardly seem anti-democratic.

I respect the role of the Senate and the ways in which it has traditionally functioned on behalf of the American people. Any rule or practice can be used for ill, of course. For instance, the Senate grants significant authority to committees and to chairs of committees to determine the Senate's agenda and business. Traditionally, when a committee votes down a nominee, that nomination does not go forward. We have made one recent exception for the nomination of Judge Bork to the Supreme Court. That led to a heated battle on the Senate floor that resulted in that nomination ultimately being rejected by the Senate. Never in our history has the Senate or an administration simply overridden the judgment of the Judiciary Committee. That is what this administration chose to do when it renominated Judge Owen after her nomination had been thoroughly and fairly considered last year.

Finally, I am troubled that the administration and Senate Republicans are so intent on changing the rules and procedures and practices of the Senate in so many ways to gerryrig the process in favor of the administration's most extreme, divisive and controversial nominees. That was not the motivation behind the amendment of rule 22 in 1975 that I supported. It used to be rare that judicial nominees would receive so many negative votes and engender so much opposition. In accordance with the consultation and cooperation that prevailed between administrations before this one and Senators from both parties, it was a rarity to have a contested nomination or to have close votes. That this administration is so fixated on forcing through the Senate nominees that do not have the support of more Senators is alarming in itself.

Consensus, mainstream, qualified nominees will get the support of not just a bare majority of Senators voting but the overwhelming majority of Senators. Thus, Judge Prado, and Judge Gregory, and Judge Raggi were confirmed with overwhelming bipartisan support. So, too, I am confident that Judge Consuelo Callahan will be the second Hispanic nominee of this administration to a circuit court to receive the strong support of Democratic Senators, when the leadership decides to schedule a vote on her confirmation. The 125 judicial confirmations to date are by and large conservative nominees but many enjoyed the strong bipartisan vote of Senators from both parties.

Yet Senate Republicans at the behest of the administration want to grant even more power to the administration by encouraging the President to nominate more controversial nominees. I respectfully suggest that the better way to proceed would be for the White House to work more closely with Democrats and Republicans in the Senate to identify consensus nominees who will not generate a close vote and do not need special rules in order to be considered.

I thank the majority leader for working with the Democratic leader and assistant leader to make what he himself recognized as progress over the last weeks. With some cooperation and consideration from the administration we could accomplish so much more.

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, tonight we embark upon an extraordinary session for the next 30 hours. Republicans and Democrats will debate the merits of three judicial nominees. We will be considering the meaning of our constitutional responsibility to advise and consent on nominations. We will discuss whether there is a need to enact filibuster reform so that nominations taken to the floor can get a vote.

At the end of this time, the Senate will either vote on the nominees or we will try to break the minority's filibusters through cloture votes. Our goal is very simple: It is an up-or-down vote on these nominees. People can vote them up or they can vote them down. Just give us a vote.

We hold this extraordinary session for truly extraordinary reasons. In the history of this Senate, through 107 Congresses, the filibuster was never used to block confirmation of judicial nominees enjoying majority support. When the Senate has refused to confirm a nominee brought to the floor, it has done so on an up-or-down vote. Permitting a vote was fair to the nominees and fair to the President who sent them to us. In theory, the filibuster has always been available as a tool to derail a nomination, but until this Congress it has not been successfully used.

On rare occasions, confirmation filibusters were attempted, but the Senate always thwarted them. Up until now, no judicial nominee has ever failed on a filibuster. For the past 200 years, no judicial nominee has ever failed on a filibuster.

This year, in this Congress, those norms have been shattered. A partisan filibuster destroyed the nomination of Miguel Estrada, an immigrant from Honduras. Mr. Estrada is a superb lawyer, a great American success story. He served with distinction in both the Clinton administration and the Bush administration. The American Bar Association gave him its highest rating. Senate confirmation by an ample majority was assured. But a filibuster blocked action and the Senate was denied the opportunity for an up-or-down vote.

The remedy for the filibuster is a cloture vote. Before filing a cloture motion on the Estrada nomination, we waited several weeks. During that time, the nomination was debated on the floor for many hours. On more than 20 occasions we asked unanimous consent for a time certain to vote. Every time we did, the minority objected. They obstructed a simple up-or-down vote. From their standpoint, Mr. Estrada would never get a vote, not in a week, not in a month, not in a month or two, and not even for the whole Congress.

When it became clear that consent was impossible and the filibuster would not voluntarily end, cloture was the only resource left. Until this Congress, the record number of cloture votes on a single judicial nomination was two. On the few occasions a filibuster had gotten that far, bipartisan majorities in both invoked cloture, shut it down, and immediately thereafter those nominees were confirmed. Not so for Miguel Estrada. Seven times--not two, seven times--we initiated cloture; seven times cloture failed. Each time more than a majority in this body voted to end the filibuster but never did we get 60 votes. The minority obstruction did prevail, but Mr. Estrada would never get an up-or-down vote. This body never gave Miguel Estrada an up-or-down vote.

Finally, Mr. Estrada asked the President to withdraw his nomination. Who could blame him? He left the field with dignity. Meanwhile, the Federal courts--indeed, I would argue, therefore, the American people-- were denied the service of a brilliant intellect, and the Senate's confirmation process was tarnished with unfairness.

Sad to say, Miguel Estrada was not an isolated case. Filibusters have also been mounted against Priscilla Owen, William Pryor, and Charles Pickering. In each of these instances, a majority of the Senate will confirm, a majority will confirm, but we cannot get 60 votes for cloture to allow the vote. Under Senate rules, the Presiding Officer cannot put the question to a vote if any Senator holds the floor or seeks to speak. If debate does not end, we cannot vote. To conclude debate, we must secure cloture, but cloture requires 60 votes. If a minority determines to obstruct, they never permit the Chair to put the question, and they withhold the votes for cloture to stop the filibuster.

On Miguel Estrada, on Priscilla Owen, on William Pryor, and on Charles Pickering, the full Senate has been denied the right to vote on confirmation. And no amount of debate and no amount of time is sufficient so the opponents' obstruction thus far has prevailed.

This week, I fear yet two more nominees may fall victim to the filibuster. Carolyn Kuhl and Janice Rogers Brown are able and talented candidates for the Federal bench. Either could be confirmed if they were ever given a vote. Will Senators be able to take those votes or will disciplined obstruction prevail yet again? I would like to be proven wrong, but I am not optimistic.

We will hear in this debate over the next several hours that the Senate has confirmed over 168 Bush nominees, and only 4 have thus far been blocked. Some Senators will argue these numbers demonstrate fairness to the nominees overall and to the President. We hear again and again the Senate is not a rubber stamp.

I am unimpressed with that argument. It uses a scorecard of a sort to mask the real issues. Can Senators vote up or down on a nominee? Or will obstruction by filibuster deny them that right to vote? Will Senators be held accountable for their vote? Will all nominees brought to the floor be treated fairly and get a vote? Will we be denied our right to give advice and consent? If Senators wish to oppose a nominee, that is their right. They may vote against him or her if they wish. If they can command a majority, the nominee simply will not be confirmed. That is how things should be. But that simple logic seems no longer to apply. Because of the filibuster, the majority is allowed to vote only if the minority consents.

Filibustering judicial nominations breaks dangerous new ground. It is unprecedented. These filibusters are not business as usual. Obstructionists have eroded two centuries of Senate tradition. Those who obstruct have changed the ground rules by which the Senate votes on confirmations. Some contend the minority has no choice. These left-wing activists and special interests claim the minority must use every available tool to oppose even if it changes forever how the Senate does business. Only then, they say, can the separation of powers be vindicated.

But let's look to history because history shows us a very different and a better path. For 70 percent of the 20th century the same party controlled the

White House and the Senate. Franklin Roosevelt sent liberal nominees to a Senate dominated by Democrats. So did John Kennedy, Lyndon Johnson, and Jimmy Carter. Ronald Reagan sent conservative nominees to a Senate controlled by Republicans. The Senate confirmed most of those nominees and rejected some others. But nominations brought to the floor got a vote and never died due to a filibuster.

All during those times the Senate had vigorous debate, effective debate. They had vigorous and effective minorities who sometimes filibustered legislation but never filibustered judges. Was Senator Dirksen's minority derelict in some way in not using the filibuster against Kennedy's and Johnson's nominees? What about the minority that served with Senator Baker but did not filibuster Carter judges, the minority that served with Senator Byrd but did not filibuster Reagan judges, or the minority that served with Senator Dole but did not obstruct Clinton judges? Because they did not filibuster judges, did those minorities abdicate their confirmation responsibilities? I think not.

But now a different tradition has been launched. It is the obstruction of judges by a minority. This obstruction sets a novel threshold for confirmation: Nominees who are singled out because they fail someone's ideological test or because they showed general promise must have 60 votes to break a filibuster. The Constitution says that a simple majority is enough to confirm, but somehow that majority is no longer sufficient. Confronted with a filibuster and disciplined obstruction, the majority cannot vote at all. They are being denied a simple up-or-down vote on those nominees.

Under the Constitution, the Senate has a confirmation veto; a majority can vote a nominee down but obstruction by filibuster is veto by a minority. Never did the framers envision that anti-democratic outcome.

The American people are going to learn a lot about cloture over the next 30 hours. Cloture has applied to nominations since 1949 when the rule was expanded to address every debatable question except for motions to proceed to rules changes. The inclusion of cloture was merely incidental to a broader reform. In 1949, the change was controversial. It was well debated but not a word in all of that debate in 1949 was about nominations. The omission is not surprising because nominations simply were not filibustered then.

For three decades thereafter many proposals surfaced to change the cloture rule, and in 1959, 1975, and 1979 major amendments were, in fact, adopted. In all those debates not a word was said about nominations.

Many proposals surfaced to change the cloture rule. Major amendments were adopted. In all those debates, not a word was mentioned about nominations. Why should the debate have focused there? Nominations were not filibustered.

What is happening now breaks sharply with Senate tradition in ways that are corrosive for this institution. To restore those traditions, I have proposed filibuster reform. Along with Senators Zell Miller and nine additional cosponsors, I introduced S. Res. 138 in May. Our proposal was heard, reported by the Rules Committee in June, and now awaits Senate action.

The Frist-Miller proposal will alter the way the Senate concludes debate on nominations. By progressively declining cloture requirements of 60 votes, then 57 votes, then 54 votes, then 51, and finally, with a simple majority of Senators present and voting, we can end the practice of filibustering nominations if the Senate has the will to do so.

Every effort to reform the cloture rule, whether successful or not, has been debated in its entirety. Frist-Miller is different. It reforms the cloture process only for nominations and leaves cloture for the remainder of Senate debate alone. We fix only what is broken.

Mr. President, a nomination filibuster by a minority whenever it may coalesce is different from legislative filibusters. On legislation, there is a potential safety valve that a troubled measure may be offered elsewhere as a nongermane amendment or somehow be addressed by the House or in conference. No such possibility exists on a nomination. There is no safety valve on a nomination. Filibustering nominations is obstruction in its most potent and virulent form. Even if a majority of Senators stand ready to confirm, nomination filibusters are fatal.

Frist-Miller is a narrow remedy that addresses a real problem. It permits substantial debate but allows the full Senate to work its will. The Senate must halt the emerging and unwelcome practice of obstructing nominations. No change in the rules is needed if those who have filibustered will relent and permit the nominations to have a vote. If they do not, then amending the rules is imperative. We have sought consent for a time certain to vote on each of the nominees. Met with objection, we filed for cloture. Without either consent or cloture, the obstruction will continue and incessant demands for reform will grow louder.

These demands will include the exercise of the Senate's constitutional rulemaking power to amend rules or precedents to end filibusters on nominees.

Various proposals go far beyond the Frist-Miller filibuster reform. I would not support these efforts now but I reserve the right to support them later.

During these recent days, the majority has come under vocal criticism from our colleagues on the other side for scheduling this executive session tonight and these cloture votes. The debate is a waste of time, they contend, because the Senate has many urgent matters to address, and we are short on time to address them. Indeed, our agenda is crowded. But the question of how this Senate discharges its constitutional responsibility on nominations is among the most important issues we can discuss. It affects how we relate to two coordinate branches of government. It concerns whether Senate traditions will be upheld or discarded. It involves the meaning and future of the confirmation process. Such deliberations are plainly worth the Senate's time and the close attention of the American people.

In closing, by unanimous consent, time during these 30 hours has been equally divided between the two parties. This will allow for balanced arguments, good debate, a chance to focus on these issues without distraction. We have entered this consent agreement in good faith to foster a serious dialog on a serious subject. This means sticking to the subject and not undermining or trivializing this session by wasting time through meaningless quorum calls and other obstructionist tactics. The debate we launch tonight is fundamental to restoring fairness to our confirmation process and reaffirming two centuries of Senate tradition.

The majority is here, prepared to do business. We want to meet our constitutional responsibility to advise and consent. Whenever the opposition ceases to obstruct, we are ready to vote. What we ask for is to be able to vote, up or down. Just give us a vote.

Mr. President, once I run through these unanimous consent requests, I will yield the floor.

Unanimous Consent Agreement--Executive Calendar

Mr. President, I now ask unanimous consent that the Senate proceed to executive session for the consideration of Calendar No. 86, the nomination of Priscilla Richman Owen to be a United States Circuit Judge for the Fifth Circuit.

Mr. President, responding, through the Chair, there is nobody on the floor of the Senate now--and I do appreciate this many people being here to debate the issue of our judicial nominations and the process, the process that the distinguished Senator from West Virginia probably understands better than anybody; that is cloture and the history of cloture--nobody understands better the challenges to me as majority leader than the distinguished Senator from West Virginia on the scheduling of this body.

I know there are people questioning why we are working tonight, and even through the night. We tried to spend a full day this Monday on the floor of the Senate, which was not a Federal holiday--never has been a Federal holiday--but when I made it clear we were here to do appropriations, a specific appropriations bill, and then, yes, on Veterans Day had us here--and I know the distinguished Senator had wished we were not here on that day, but being here on Veterans Day, and talking about the Department of Defense authorization and military construction and preparing for the bill that we addressed today, we made it very clear we would be using this time from 6 o'clock tonight, a long time ago, weeks ago, to your side and my side--not weeks ago, probably last week--after we try to finish up our business.

I put a huge priority on appropriations, a huge priority. We are going to kill ourselves to finish all these bills. I pledge to you by the end of next week is my goal to fully address all of the appropriations bills because I respect the process, and I have tried to bring every bill out. And as of today, we have brought every single bill to the floor. And for various reasons--not pointing fingers too much to either side--we have not been able to finish several of them.

Thus, I am going to respectfully say that no, I am going to stick with the schedule because we have people here to talk about an issue that many believe equally important, some more important; that is, our responsibility to handle these judicial nominations responsibly, respectfully, and that is what people are here to debate.

Then I would be happy to discuss how we complete this appropriations process with you and with the distinguished Presiding Officer because I am going to need your help to finish these in an orderly way.

But for now, I think we need to progress with addressing another important issue that is the schedule I set out. I would ask your consideration for setting that schedule out and that we can figure out how to do these appropriations bills.

I do. And then we are going to subtract the time from the questions.

That is fine, my 22 minutes apply, or whatever the time was I was actually speaking, to our first-hour agreement.

I still have some unanimous consent requests.

But for the length of my speech, it would be fine to apply that time to the first hour since we will be splitting the hours.

Mr. President, through the Chair, I have had the wonderful opportunity of working in veterans hospitals myself for the last--until I got to this body--for 15 years, every day operating, giving care to veterans in medicine. So I appreciate veterans hospitals. I worked in veterans hospitals. I have probably spent more time than anybody in this Chamber in veterans hospitals--from early in the morning through many nights, just as we are going tonight. I care about hospitals. We are going to address them.

What I would ask, in response, is if the Senator from West Virginia would agree to a 2-hour unanimous consent to finish this bill, VA-HUD, on Friday--on Friday--so we can answer your question. If we can do that, we will be able to do exactly what you want to accomplish, to finish that bill, and it allows me to keep a commitment to a packed Chamber right now where we can debate the issues that people are here to debate. And then, within 48 hours, we have accomplished my objective and your objective. Two hours, we will do it Friday, as soon as we finish the cloture votes?

Yes, sir.

Thank you, sir.

Mr. President, what I would like to do, because it is going to affect everybody's schedule, is to address this. If we can go through the remainder of the unanimous consent request, then try to address it.

I just want to restate I would love to finish this bill, the appropriations bill on VA-HUD, and I would love to be able to work it out if we can on Friday.

Responding, once again through the Chair, I will not be making that request tonight. Tonight we are going to stay on the judicial nominees. But I would like to discuss with you and the managers of the bill, and the Presiding Officer, the chairman of the Appropriations Committee, how we can best resolve that as quickly as we possibly can.

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?

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.