NOPEC

Mr. President, I thank my colleague for his kind remarks, and other colleagues as well. I ask unanimous consent that I be given the original half-hour time and that the Democrats be extended an equal amount of time.

Mr. President, I appreciate my colleague from Alabama. He knows about as much as anybody who has ever sat on this side of the aisle. He has the sting of having been rejected by the Judiciary Committee Democrats when he was nominated for a Federal

judgeship years ago. I think that is pretty ironic. They knew he was good and that he could do the job. Now he is a sitting Senator who can no longer be ignored, and he has stood up and triumphed for so many good people through the years. I think it was kind of a God-given thing that he was rejected back then, so he could sit in the Senate and tell people the important aspects of the Federal judiciary we have been discussing. I personally love and appreciate him. He has been a great member of the Judiciary Committee and I have a lot of respect for him.

I have also been told that at the beginning of the session today, one of the leaders offered to discharge a number of judges from the committee, or judgeship nominees. I find that pretty ironic because at the end of the 108th Congress, when I attempted to discharge three nominees to the floor--Tom Griffith, our former counsel, nominated for the DC circuit; J. Michael Seabright, who was from Hawaii and was sponsored very strongly by the two Hawaiian Senators; and Paul Crotty, from New York, who was sponsored strongly by the two New York Senators--the Democrats opposed that and said this was extremely unprecedented, and they prevented me from doing so because they claimed ``proper order'' for all nominees.

Forgive me, Mr. President, if I find the recent Democratic request to discharge people they want to discharge--three Sixth Circuit nominees-- more than a little disingenuous. It is only done to try to make it look as though they are trying to cooperate when in fact they knew that could not be permitted. The leadership in the Senate will decide what judges come to the floor and we want all of them, including the three from Michigan.

Last week when the Judiciary Committee considered the asbestos bill, one of our Democratic colleagues referred to proposed amendments to that bill and said something very important: Let's debate them up or down. He said it the way the American people believe it, and that is debating and voting is what legislators do. Let's debate them and then vote them up or down.

The Senator offering that idea was my colleague from Vermont, Senator Leahy. He was speaking then about legislation, but he and other Democrats once insisted the Senate should follow the same principle as we evaluate the President's judicial nominations.

In October 1997, for example, he said on the Senate floor:

I hope we might reach a point where we as a Senate will

accept our responsibility and vote people up, vote them down.

Bring the names here. If we want to vote against them, vote

against them.

Of course, at that time, a Democratic President was in power. That may have been the difference between then and now.

It is always refreshing to see our fellow citizens from all over this great country coming here to sit up in the galleries and observe their Senate at work. Some of them with us today might actually be asking, Why is the Senator from Utah making such a big deal about something that is so obvious--votes up or down, that is. Many of our fellow citizens may be surprised to learn that some of the Senators they elected and sent to Congress are refusing to vote on nominations. They might share the sentiment of former Democratic leader Senator Tom Daschle when he said in 1999--of course, Clinton was President:

I find it simply baffling that a Senator would vote against

even voting on a judicial nomination.

That is what they are doing. I guess it makes a difference whether your President is President or whether the opposition President is President. I happen to think there are certain virtues that ought to be maintained, no matter what.

Those Senators on the other side are blocking votes because they know they will lose those votes. If we debate these nominees, America would better understand why we need judges who will interpret, not make, the law. Americans will see how these highly qualified judicial nominees meet that standard, and America will see that these nominees, every one of them, have a bipartisan majority support.

What is wrong with giving them a vote up or down? The political forces promoting an activist political judiciary oppose many of these nominees, and their strategy is simple. The Senate cannot confirm nominees if Senators cannot vote on them. We cannot vote if we cannot end debate. These filibusters use Senate rules to prevent ending debate, prevent taking a vote, and prevent confirmation of these judges. That is not only baffling, it is unprecedented. This is not a tangent, an academic issue, or a question that will 1 day be found in the game ``Trivial Pursuit Senate Edition.'' This issue is central to this debate, and our Democratic colleagues know it.

Some are so desperate to claim even one single solitary precedent for what they are doing that they stretch, twist, and morph the word ``filibuster'' beyond all recognition. They want the word ``filibuster'' to mean so many things that it ultimately means virtually nothing at all.

Unfortunately, these mischaracterizations of Senate history, tradition, and rules cynically exploit the fact that many of our fellow citizens have not mastered the particulars of Senate history, the peculiarities of Senate procedure, or the idiosyncrasies of the confirmation process. Misleading, confusing, patently false claims can easily take on a life of their own, echoed and repeated throughout the media, cyberspace, and even here on the Senate floor.

We all know it can take a long time for what is true to catch up with what is false. Judicial filibuster defenders who claimed that when the Senate voted to end debate on past judicial nominations, we were actually filibustering those nominations; that when we voted down debate and confirmed them, we were actually filibustering--poppycock. They want Americans to believe that ending debate then justifies refusing to end debate now. Poppycock. Or they claim that when the Senate voted to confirm judicial nominations in the past, we were actually filibustering those nominations when we voted to confirm them. That is how far they have gone to try and justify these inappropriate actions.

They want Americans to believe that confirming nominations then, as we did, justifies refusing to confirm them now. Those bizarre claims focus on what happens here on the Senate floor at the end of the judicial confirmation process. Sometimes judicial filibuster defenders on the other side have focused instead on what happens in the Judiciary Committee, an earlier phase in the process. Some appear willing to try anything to create a precedent for their filibusters. Some even claim that any nomination which is not audibly confirmed, no matter what the reason, no matter what the step in the process, has been filibustered. Giving a word any meaning you want may help make any argument you want to make, but it does not make that argument legitimate. This gimmick may have some public relations punch. It leads to cliches such as ``pocket filibuster'' or ``one-man filibuster,'' and creates villains, such as me. What kind of campaign would this be without a bogeyman? After all, I was chairman of the Judiciary Committee for 6 years under President Clinton.

Never mind that the Republican Senate confirmed 377 judges for President Clinton, just 5 short of the all-time confirmation record set by President Reagan. Bill Clinton was the second confirmation champion of judges in the history of this country, and he had 6 years when I was chairman. I wonder how that happened if I was so partisan.

Never mind that President Reagan had his own party controlling the Senate for 6 years while President Clinton had the other party, the Republicans, controlling the Senate for 6 of his years. So Reagan had his own party help him for 6 years. President Clinton only had his own party for 2 years, and yet he still came in just five votes shy of President Reagan. And if my recollection serves me correctly, he would have been three ahead of him had it not been for Democratic holds on their side. One Senator was not getting his; therefore, he would not let anybody else get theirs. It happened. Never mind facts such as that.

The assistant minority leader yesterday claimed every Clinton nomination that was not audibly confirmed was filibustered and that I personally buried them. My hand alone held back a confirmation wave of apparently mythic proportions. Look for a moment what it takes to believe every

unconfirmed nominee is a filibustered nominee. It requires believing dozens of nominees President Clinton himself withdrew were filibustered. Preposterous. President Clinton, for example, withdrew one of his court nominees fewer than 6 months after her nomination because of health concerns. Her nomination did not get out of the Judiciary Committee, did not receive a floor vote, and was not confirmed. But was she filibustered? They seem to think so.

Is her situation the same as Justice Priscilla Owen who has been waiting for more than 4 years and cannot get a floor vote because of a Democratic filibuster, a leader-led partisan filibuster, the first time in history?

This line that all unconfirmed nominees are filibustered nominees requires you to believe ill-founded arguments such as that. It also requires believing that the 28 nominations sent too late to be considered or which President Clinton chose not to resubmit were filibustered.

That is how they add, they double count. It is ridiculous. Preposterous is the word.

It requires believing that nominations not given hearings because of opposition by their home State Senators were filibustered. We have had that go on for years, whoever has been in power. Home State Senators have a lot of swat. The Judiciary Committee system that gives extra weight to the views of Senators from a nominee's home State has been in place in various forms for nearly a century. Democrats, as well as Republicans, use it. I do not hear the Democrats who now want to call these situations filibusters also calling to abolish that system of home State senatorial courtesy. They cannot have it both ways.

The majority leader, Senator Frist, recently offered a proposal that would not only address our concerns about the floor by ensuring up-or- down votes, but also address Democrats' concerns about the committee by guaranteeing reporting of nominees. The majority leader tried to do that. Democrats rejected that offer. They are not going to give up their rights in committee anymore than Republicans should give up their rights in committee.

But that is not filibustering, I can guarantee that. Either they think treatment of judicial nominees in the Judiciary Committee is a problem needing a remedy or they do not. They cannot have it both ways. Democrats know that many factors determining whether a nomination is approved by the Judiciary Committee are not simply up to the chairman's unilateral discretion. What galls me is some who have made the argument. One in particular this morning begged me to get his judges through, and I have to say there were real questions about his judges, but I put them through because they were nominated by the President. He came to me and asked that I get it done. I did it for countless Democrats in the 6 years I was chairman of the committee during the Clinton years, and they know it. They do not have any other arguments.

So what do they want to do? They want to vilify the chairman of the Judiciary Committee who has had to put up with all kinds of machinations in the Judiciary Committee from both sides, whoever the chairman is. Democrats know there are procedures in the Judiciary Committee and on the floor for forcing a committee chairman to act if Senators believe the chairman is dragging his feet and that those procedures were never used, never even attempted, while I was chairman. Why? Because they knew darn well I was trying to do the best I could.

They do not have any other arguments. They cannot justify their position. Democrats know these things. They also know that many of our fellow citizens do not. So the spin machine cooks up this tail that all unconfirmed nominees are filibustered nominees, attempting to make people believe there is some precedent, even a totally fictional precedent, for their current filibusters. Saying that ending a debate is the same as not ending a debate did not work. Saying that confirming nominations is the same as not confirming nominations did not work. Saying that President Clinton's near record confirmation total is evidence of unfair treatment by Republicans will not work either.

On Tuesday the distinguished Senator from Wisconsin, Mr. Feingold, was making a few other arguments. He pointed out that the text of the Constitution does not require an up-or-down confirmation vote for a judicial nomination.

Well, many of our colleagues on the other side of the aisle attack judicial nominees when they take the Constitution's text this seriously. But I am glad that the Senator from Wisconsin is doing so.

The word ``filibuster'' is not found in the Constitution, either. Nor are phrases such as ``unlimited debate,'' ``minority rights,'' or even ``checks and balances,'' as misused as those terms have been by the other side.

None of the phrases used by some to try to give these judicial filibusters a constitutional anchor are in the chartered text, the constitutional text. What the Constitution does say, however, is that the President has the power to nominate and appoint judges--not the Senate, the President has that power. Our role of advice and consent is a check on the President's power to appoint.

When the filibuster turns our check on the President's power into a weapon that hijacks the President's power, then, yes, it has indeed violated the design that is most certainly in the text of the Constitution, and that is what they are doing.

The Senator from Wisconsin also said the procedure the majority leader may use to prohibit judicial filibusters will mean changing the Senate rules by fiat. That is a variation on the Democratic mantra that this would break the rules to change the rules. That is a catchy little phrase but neither of its catchy little parts is true.

The Senate operates not only by its written rules but also by parliamentary precedence established when the Presiding Officer rules on questions of procedure asked by the Senators. What we call the constitutional option would seek such a ruling from the Presiding Officer. After sufficient debate, the Senate should vote on a judicial nomination. That is what the ruling would be. Senate precedents and procedures would change, but Senate rules would remain unchanged. No breaking of the rules, no changing of the rules.

Senators use the word ``fiat'' because it sounds bad and fits with the abuse of power theme probably born in some liberal focus group somewhere. The word attempts to give people a bad impression, but it should give them an even worse impression to know that it is patently false.

The Constitution gives authority over Senate rules and procedures to the Senate, not to the Parliamentarian or to the Presiding Officer but to the Senate. If the Presiding Officer rules on the question of procedure, it will not actually change Senate procedures until a majority of the Senators vote to do so.

Just as American self-government is radically different from monarchy, Senate self-government is radically different from fiat.

The Senator from Wisconsin said that whenever the Senate merely takes a cloture vote or a vote to end debate, a filibuster is always underway. That, too, is patently false.

Let me refer to this chart. This is what the Congressional Research Service said on April 22, 2005:

It is erroneous to assume that cases in which cloture is

sought are always the same as those in which a filibuster

occurs.

Let me repeat that.

It is erroneous to assume that cases in which cloture is

sought are always the same as those in which a filibuster

occurs.

Let me use two examples. Among President Clinton's most controversial nominees were Marsha Berzon and Richard Paez nominated to the U.S. Court of Appeals for the Ninth Circuit. Our colleague from New York, Senator Schumer, who has spoken many times on the floor on this issue, in November 2003 called these nominees ``very liberal,'' and, ``quite far to the left.'' Now, that is quite something coming from a Senator who has never been called even a little bit to the right.

On November 10, 1999, the majority leader at the time, Senator Lott, promised that he would bring these controversial nominations up for a confirmation vote no later than March 15, 2000, and that was at my request. He correctly said that I agreed with using the cloture vote to ensure that a confirmation vote occurred. In other words, it was used to get to a vote.

On March 8, 2000, that is exactly what we did. It was of a procedural floor management device. The first two names on the petition for the cloture vote happened to be Senator Lott and myself. We took that cloture vote to prevent a filibuster and to ensure an up-or-down vote. We prevented a filibuster. That vote occurred, and the Senate confirmed both nominees. They are today sitting Federal judges. Otherwise we would have kept going on and on on the Senate floor. We decided that is the way to get to a vote, and we did.

The Senator from Vermont, Mr. Leahy, said on Tuesday that the constitutional option which would use a parliamentary ruling to prohibit judicial filibusters would ``use majority power to override the rights of the minority.'' I have called this parliamentary approach the Byrd option because when Senator Byrd was the majority leader in the late 1970s and early 1980s, Senator Byrd used it to change Senate procedures. He did so regarding legislation and also regarding nomination-related filibusters.

In 1980, for example, then-Majority Leader Byrd wanted to prohibit filibusters with a motion to proceed to nominations, and they could do that back then, just as a confirmation vote cannot happen if debate does not end. Debate cannot start if the Senate cannot vote to proceed to that debate.

Today we hear that any limitation on debate, any restriction of the filibuster, strikes at the very heart of the essence of this institution. Maybe it was a different story back then when they were in control. When the Presiding Officer ruled against what Majority Leader Byrd was trying to do, he then appealed that ruling and the Senate voted to overturn it, effectively terminating those nomination-related filibusters. He knew how the vote was going to turn out in the end.

I remind my colleagues what my good Democratic friend from West Virginia said when he used the procedure to change the filibuster rule, on January 4, 1995, during the Clinton administration. He said:

I have seen filibusters. I have helped to break them. There

are few Senators in this body who were here [in 1977] when I

broke the filibuster on the natural gas bill. . . . I asked

Mr. Mondale, the vice president, to go please sit in the

chair; I wanted to make some points of order and create some

new precedents that would break these filibusters.

Then he said this:

And the filibuster was broken--back, neck, legs, and arms.

. . . So I know something about filibusters. I helped to set

a great many of the precedents that are on the books here.

Well, the Senator was candid. I personally admire him for it. On at least three other occasions, Majority Leader Byrd used a ruling by the Presiding Officer to change Senate procedures without changing the underlying Senate rules.

The Senator from Vermont says that using this very same mechanism today would be an outrageous trashing of minority rights. Yet he voted every time to support Majority leader Byrd's use of that mechanism, including to eliminate nomination related filibusters.

Yesterday, the Senator from Illinois, Senator Durbin, claimed that Senate rules, in his words, from the very beginning, required an extraordinary majority to end debate.

Now that is factual claim, and it is factually false.

The Senate adopted its first rules in 1789. Rule eight allowed a simple majority to proceed to a vote. The men who founded this republic designed this Senate without the minority's ability to filibuster anything.

Over the last few days, many excuses have been offered why some refuse to debate and vote on judicial nominations that reach the Senate floor.

Let me correct that. While these may be their reasons, there are no valid excuses.

When procedural obstructive devices such as the filibuster are kept where they belong, in the legislative process, the debate can properly focus on the merits of these nominees. That is what debating and voting should ultimately be about, the President's nominees.

The debate we have seen here on the Senate floor regarding nominees such as Justices Priscilla Owen and Janice Rogers Brown is typical of what we will see in the future regarding other nominees.

Many of our fellow citizen may know little of the Senate's Byzantine procedures, they may know little about judicial rulings, they may not speak legalese, but I hope they will not be afraid to participate in this process.

Let me offer a few pointers, a few tips, for the road ahead.

Politics is often about results, about winners and losers, and involves politicians asserting their will. Law is about the process of reaching results, about what the law requires, and involves judges using judgment.

Politics and law are two very different things, and our liberty depends on preserving that difference. So if you hear critics of judicial nominees talking only in the language of politics, you know something is wrong.

In the last day or two, for example, critics of the nominees before us have reduced them to sound bites, checklists, and litmus tests.

Senators begin sentences with phrases such as she ruled that . . . or she ruled for. . . .

Mentioning only those results, without exploring how a judge reached those results, amounts to applying political criteria to a judicial nominee, and that is fundamentally wrong. Sometimes the law requires results we may not like, results that may even sound dramatic.

Mentioning the political results without the judicial process leading to those results misleads people about what judges do and how to choose the rights ones.

Or the critics will characterize what a judge said rather than tell us what she actually said.

Or if they do quote the judge, critics will often pluck out only a phrase, or use lots of ellipses.

These are signs that spin may be in the air.

Or the critics will quote other critics. Imagine if the only thing someone knew about you came from what your critics or enemies said about you. That picture would be distorted, incomplete, and just plain false.

So our fellow citizens should not be worried that they do not know the language of lawyers, that they have not read a judicial nominee's writings or rulings, or are not well-versed in the fine points of legal argument.

I hope they will listen critically to the debate here in the Senate about these nominees, their qualifications, and their records.

I hope our fellow citizens will be very skeptical of critics who make a political case against a judicial nominee, skeptical if the case against a nominee is limited to soundbites about results or characterizations by third parties.

Let me conclude my remarks by noting that in September 2000, the Senator from Michigan, Senator Levin, said that the Constitution each of us has sworn to protect and defend requires that we debate and vote on judicial nominations reaching the floor.

I agreed with that principle then, and I agree with it today.

For more than two centuries, we kept the filibuster out of the judicial confirmation process.

It is surely not a good sign about our political culture that we must today formalize by parliamentary ruling a standard we once observed by principle and self-restraint.

But that self-restraint has broken down, and maintaining our tradition of up or down votes for judicial nominations is worth defending. Once we take unprecedented obstruction tactics like the filibuster off the table, we can focus where we should, on the merits and qualifications of nominees.

We must have a standard that binds both political parties. That standard must be fair, it must respect the separation of powers, and it must be consistent with our own Senate tradition.

Between 1789 and 2003, we had a strong consistent tradition of voting on judicial nominations once they reach the Senate floor.

We should return to that principle and practice.

Unfortunately, in 2003, the Democratic leadership broke with this longstanding Senate tradition and took an ill-founded turn down a partisan political path and unwisely changed the confirmation process in an unprecedented fashion.

We must turn back from that path. Once a judicial nomination reaches us here, our course should be clear. Let us debate and then let us vote.

I yield the floor.

Mr. President, at a time when it seems like too often debate on the President's nominees have shed more heat than light, it has been a delight for me to sit here, as the Chair has, and listen to the Senator from Arizona present in comprehensive detail the legal and constitutional framework for the Senate's authority to set its own rules by establishing precedents, passing standing rules, adopting standing orders by unanimous consent, and otherwise. It was an excellent presentation and, indeed, a strong case, and that is exactly why leading Senators on the other side of the aisle, including the former Democratic majority leader, the Senator

from West Virginia, the Senator from Massachusetts, and the junior Senator from New York, have all stated, as recently as 2 years ago, that, of course, a majority of Senators has the power to set rules, precedents, and procedures. Indeed, that is why the power of the Senate majority to set rules, precedents, and procedures is known as the Byrd option or, as some have called it, the constitutional option.

Let me begin my remarks by making one simple point. I would prefer the bipartisan option to the Byrd option every time. America works better, indeed the Senate works better, when we work together in a bipartisan way to try to solve the problems that come before the Congress. I would much prefer to stand up here, after waking each day, and conduct business in a bipartisan manner.

I have done my best to make the most of every opportunity that I have seen to do so since I have been in the Senate. For example, I have enjoyed working with the senior Senator from Vermont on legislation to strengthen the accessibility, accountability, and openness of the Federal Government.

I have worked with the junior Senator from Wisconsin and the senior Senator from Connecticut on the important issue of continuity of Government in the wake of a future terrorist attack.

I have worked with the senior Senator from New York on ways that we together can combat modern day slavery and human trafficking.

And I have worked with the senior Senator from Massachusetts on military citizenship and immigration issues.

I would choose collaboration in this kind of bipartisan cooperation any day of the week. But bipartisanship is a two-way street. Both sides must agree on certain fundamental principles and a fair process that applies no matter who is in power, whether we have a Republican President or a Democratic President, whether we have a Republican majority or a Democratic majority.

The most fundamental principle of all is fairness. Fairness means that the same rules apply regardless of who is President.

Bipartisanship is difficult, however, when long-held understandings and the willingness to abide by basic agreements and principles has unraveled so badly. Where fairness falters, bipartisanship will fail.

So I ask my colleagues, what are we supposed to do when these basic principles, commitments, and understandings have unraveled? What are we to do when nominees are attacked, including being called names, simply for doing their jobs, when they are attacked for following judicial precedents adopted and agreed to by appointees of Presidents Clinton and Carter, when they are singled out for their decision on a particular case even though it was held by a unanimous or near unanimous court?

What are we to do when these nominees are demonized and caricatured beyond recognition to those of us who actually know them; when Senators on the other side of the aisle call them kooks, despicable, Neanderthal, and scary; when nominees are condemned as unqualified or perhaps lacking in judicial temperament, while at the same time they are deemed unanimously well qualified by the American Bar Association, an institution that the Democrats have always revered and held up as the gold standard when it came to qualifications to serve on the Federal judiciary?

What are we to do when Senate and constitutional traditions are abandoned for the first time in more than two centuries, when both sides once agreed that nominees would never be filibustered, and then one side simply denies the existence of that very agreement when it suits them, when their interpretation of Senate tradition changes based on who happens to occupy the Oval Office and who happens to be in the majority in the Senate?

What are we to do when our colleagues boast to their campaign contributors of this ``unprecedented'' obstruction, and then come to the Senate floor and claim that it is someone else who has changed the rules; when our colleagues justify their obstruction by pointing to Clinton nominees, such as their most prominent example, Judge Richard Paez, who was confirmed by standards they now reject for this President's nominees?

What are we to do when our colleagues on the other side of the aisle claim that Justice Owen must cross the threshold of 60 votes, whereas Judge Paez only required 51 votes to be confirmed?

What are we to do when the Democrats' former majority leader, the Senator from West Virginia, claims on 1 day that the filibuster is sacrosanct and sacred to the Founders when in January of 1995 he said:

I have seen filibusters. I have helped to break them . . .

the filibuster was broken--back, neck, legs, arms.

Finally, what are we to do when they claim on 1 day that all they seek is more time to debate a nomination and then claim on another day that there are not enough hours in the universe to debate the nomination?

The new requirement this partisan minority is now imposing, that nominees will not be confirmed without the support of at least 60 Senators, is, by their own admission, wholly unprecedented in Senate history. The reason for this is simple. The case for opposing this fine nominee, Justice Priscilla Owen, is so weak the only way they can attempt to successfully oppose her is by changing the rules, imposing a double standard in an attempt to defeat her nomination.

Different Senators during the course of this debate have come to the floor and criticized judicial decisions that Justice Owen has participated in as a member of the Texas Supreme Court. As Members of this body know, I formerly served on that same court and for 3 years had the distinct pleasure of serving alongside of this able judge and fine and decent human being. I can tell you from the sharp attacks that have been made against her and the mischaracterizations that have been made of the opinions she has written and joined, I doubt that many Senators have actually read those opinions. If they had, they would not be able, with a straight face, to make some of the claims that have been made on this floor.

Rather than reading the opinions of this able jurist and fine and decent human being, it appears the talking points they have been using are written, not based on what these cases actually say, but they are talking points prepared by political consultants who are more concerned with winning a partisan political battle at any cost.

A number of Senators, for example, have mentioned a case called Montgomery Independent School District v. Davis. That is supposed to be an example of Justice Owen being ``out of the mainstream.''

But I ask my colleagues, just read the opinion. The case involved the authority of a local school board to dismiss a poorly performing and abusive teacher. This teacher admitted that she had referred to her students as little blank blank blanks, a four-letter expletive that I will not mention on the floor of the Senate. But when confronted with this, the teacher justified the use of this expletive--to schoolchildren mind you--on the bizarre ground that she used exactly the same language when talking to her own children--clearly unacceptable conduct on the part of any teacher, or any adult who is given the authority to deal so closely with impressionable children.

The Senator from New York says this teacher was wrongly dismissed. Numerous other Senators have likewise characterized Justice Owen's decision in the case the same way.

I have children. Many Senators have children. Are Justice Owen's opponents really arguing that this teacher acted appropriately? That she was wrongly dismissed and that somehow this decision, or this ruling by Justice Owen--I should say in her dissenting opinion--somehow renders her out of the mainstream? Justice Owen simply said the local school board was justified in dismissing this teacher, hardly a decision out of the mainstream. I daresay the vast majority of America would agree with her.

However, in that case the majority of the Texas Supreme Court disagreed and held that the school board could not dismiss the teacher, notwithstanding the fact that she conceded the language that she used. Justice Owen's dissenting opinion simply concluded that the majority ``allows a state hearing examiner to make policy decisions that the Legislature intended local

school boards to make.'' She also noted that the majority ``misinterpreted the Education Code.''

Another case that Senators, particularly the Senator from Massachusetts, attacked Justice Owen for was Texas Farmers Insurance Company v. Murphy. In this case, Justice Owen ruled that neither an arsonist nor his spouse should benefit from his crime by recovering insurance proceeds.

The senior Senator from Massachusetts says this position puts Justice Owen out of the mainstream. I disagree. Do Justice Owen's opponents really believe that it is extreme and out of the mainstream to say that arsonists and their spouses should not benefit from their crime?

I also point out that Justice Owen's ruling in this case followed two unanimous decisions of the Fifth Circuit Court of Appeals, the very court to which she has been nominated. Again, hardly out of the mainstream.

How about the case of FM Properties Operating Company v. the City of Austin, relied upon also by the senior Senator from Massachusetts and other Senators? Justice Owen is criticized for dissenting in this case because she did not want to use a doctrine known as the nondelegation doctrine in order to strike down a Texas law as unconstitutional. Yet just last month, another Senator, this time the senior Senator from Delaware, criticized another judicial nominee, Bill Pryor, for wanting to use the nondelegation doctrine in another situation. So Justice Owen's critics seem to be saying if you support the use of this particular legal doctrine, the nondelegation doctrine, you are out of the mainstream. And if you oppose the nondelegation doctrine, you are somehow out of the mainstream.

I ask them, which one is it? The truth is, this legal doctrine known as nondelegation is a controversial theory that is often harshly criticized by liberals who accuse conservatives of wanting to use it to strike down laws enacted by the legislature. That is fine. Fair enough. But that is exactly what Justice Owen's dissent criticized the majority of the court for doing. She stated the court has seized upon this rarely used nondelegation doctrine to claim the constitutional authority for an unprecedented restriction of the legislature's power, and that the court today exercises raw power to override the will of the legislature and of the people of Texas.

It reminds me of the lyrics of a country and western song: ``Darned If I Do, Danged If I Don't.''

Justice Owen cannot win. She is being whipsawed by Senators who on one hand criticize her for doing one thing, when other Senators criticize some other nominee for doing something else. They really are arguing both sides against the middle and these nominees cannot win, according to that inconsistent, and some might even claim hypocritical test.

The Senator from Illinois has attacked Justice Owen for a ruling in the City of Garland v. Dallas Morning News. In that case Justice Owen followed precedents adopted by three appointees of President Carter to the Federal bench. So Justice Owen is now too conservative and out of the mainstream because she happens to agree with presidential appointees of President Jimmy Carter?

The majority opinion in that case said we should not blindly follow the Federal courts. Justice Owen simply said that the courts should follow Federal precedence because Texas open government laws had originally been modeled after the Federal Freedom of Information Act.

One last example. The Senator from Washington mentioned a case that was discussed in a recent op-ed in Roll Call. She claimed that in Read v. Scott Fetzer Company, Judge Owen would not allow a woman who was raped by a vacuum cleaner salesman to sue the company that had hired him without a background check.

The Senator should check her facts because it is simply not true. The Senator must not have seen my letter published in Roll Call a few days later because I pointed ought there, as I point out here, that the dissenting opinion made clear no one questions that the company that had hired the rapist is, in fact, liable. The justices simply disagreed on whether another company, one that had not hired the rapist and had no relationship with the rapist, should also have been held liable.

Of course, a number of Senators have spoken about the parental notification cases. That is the attempt by the Texas Supreme Court to interpret a new statute which stands for the proposition which I think most Americans would agree with, that when minor girls seek to get an abortion, they should notify their parents or, failing that, seek a bypass of that requirement from a judge. That is what the legislature said they should do, and that is precisely the statute that Justice Owen sought to interpret.

I ask the people across America who may be listening to the debates we are having in the Senate, whom would you trust to judge Justice Own and whether she did a good job in that case? Who was more credible to talk about the quality of Justice Owen's legal analysis in the parental notification cases? Would it be, perhaps, say, the author of the law she was interpreting who supports Justice Owen? Would it be, perhaps, her former colleagues on the court, including former Justices Alberto Gonzales and Greg Abbott, who support Justice Owen's nomination. How about now--Attorney General Alberto Gonzales, who swore under oath that the accusations we are hearing are untrue and that he never accused her of being a judicial activist.

I have seen some of the advertising that has been done by some of the interest groups attacking Justice Owen unfairly who are claiming that Alberto Gonzales accused her of being a judicial activist. As I pointed out, he swore under oath that is not true. It is clear by any reasonable reading of the opinions that he never referred to her by name or was even, in fact, referring to her by implication.

It reminds me of what Mark Twain said: A lie can travel around the world while the truth is still putting on its shoes.

How about the pro-choice Democratic law professor appointed by the Texas Supreme Court to help set up procedures under which parental notification statute. Would critics tend to think she might be a credible person when it comes to whether Justice Owen did a good job if this same Democratic pro-choice law professor supports Justice Owen too? She said in a letter that has been made part of the Congressional Record Justice Owen simply did what good appellate judges do every day. If this is activism, then any judicial interpretation of a statute's terms is judicial activism.

I ask, should we trust the critics who have misconstrued and mischaracterized and painted a picture of this fine person beyond any recognition by those who know her and have worked alongside her or do you trust the people who actually know her, the people who have worked most closely with her? In fact, it is the very same liberal special interest groups who criticize her today who never wanted the legislature to pass this parental notification law in the first place.

It is these same liberal interest groups who literally make their living trashing nominees of this President who are criticizing Justice Owen today.

As a former justice of the Texas Supreme Court myself, I find these cases moderately interesting reading. Most Senators and most Americans probably do not, and that is fine. But we can surely agree on this. If these cases are accurately characterized and understood, they definitively demonstrate that Justice Owen is a capable and well- qualified judge, and that of course is why she enjoys such impressive and wide-ranging endorsements from across the aisle.

We should keep our eye on the ball. Let's remember what judicial activism really means because the American people know a controversial judicial ruling when they see one. Whether it is the radical redefinition of our society's most basic institutions like marriage, or the expulsion of the Pledge of Allegiance from our classrooms, or from the public square, whether it is the elimination of the three strikes and you are out law and other penalties against hardened criminals, or the forced removal of military recruiters from college campuses, Justice Owen's ruling, of course, falls nowhere near this category of cases.

There is a world of difference between struggling to try to interpret the ambiguous expressions of a legislative body and refusing to obey a legislature's directives altogether.

If the Senate today were simply to follow more than 200 years of consistent Senate and Constitutional tradition dating back to our Founding Fathers, there would be no question that Justice Owen would be confirmed today. President after president after president had their judicial nominees confirmed by a majority vote, not a supermajority vote.

By their own admission, at least at one time, Justice Owen's opponents in this body are using unprecedented tactics to block her nomination and prevent a bipartisan majority from casting their vote in favor of her confirmation.

Again, the reason is simple: The case for opposing this fine nominee is simply so weak that only by using a double standard and changing the rules can they hope to defeat her. Legal scholars across the spectrum have long concluded what we in the Senate know instinctively, and that is to change the rules of confirmation, as a partisan minority has done these last 4 years, badly politicizes the confirmation, as a partisan minority has done, and badly politicizes the Judiciary and hands over control of the judicial confirmation process to special interest groups.

I ask unanimous consent a summary of supporting quotes from legal scholars be printed in the Record at the conclusion of my remarks.

Mr. President, the record is clear, notwithstanding what some opponents have said today and in the last 4 years. The Senate tradition has always been a majority vote, and the desire by some to alter that Senate tradition has been roundly condemned by legal experts across the political spectrum.

I will close by simply reinforcing what the Senator from Arizona stated so well in his earlier remarks. To employ the Byrd option is not a radical move at all. It would merely be an act of restoration. In fact, as we have heard time and time again, there is ample precedent to support the use of this point of order.

The senior Senator from West Virginia was then majority leader of this body and used this on four separate occasions--in 1977, in 1979, in 1980 and again in 1987--to establish precedence to change Senate procedure during a session of Congress. Other leading Senators from the other side of the aisle have recognized, time and again, the legitimacy of the Byrd option, including the Senator from Massachusetts, as well as the junior Senator from New York as recently as 2 years ago.

In the end, I believe this debate demonstrates, without a doubt, that it is time to fix our broken judicial confirmation process. It is time to end the blame game, to fix the problem, and to move on and do the American people's business. It is time to end the wasteful and unnecessary delay in the process of selecting judges that hurts our justice system and harms all Americans.

It is simply intolerable for a partisan minority to block a bipartisan majority from conducting the Nation's business. It is intolerable that the standards now change depending on who is in the White House and which party is the majority party in the Senate. And it is simply intolerable that this nominee--this fine and decent human being--an outstanding judge has wasted 4 long years for a simple up-or- down vote.

Yes, we need a fair process for selecting fair judges, after full investigation, full questioning, full debate, and then a vote. Throughout our Nation's more than 200-year history, constitutional rule and Senate tradition for confirming judges has always been a majority vote. And that tradition--broken 4 years ago after this nominee and others were proposed by the President--must be restored. After 4 years of delay, affording Justice Owen a simple up-or-down vote would be an excellent start.

Mr. President, I thank the Chair and yield the floor.

Exhibit 1

Professor Michael Gerhardt, who advises Senate Democrats

about judicial confirmations, has written that a

supermajority requirement for confirming judges would be

``problematic, because it creates a presumption against

confirmation, shifts the balance of power to the Senate, and

enhances the power of the special interests.''

D.C. Circuit Judge Harry Edwards, a respected Carter

appointee, has written that the Constitution forbids the

Senate from imposing a supermajority rule for confirmations.

After all, otherwise, ``[t]he Senate, acting unilaterally,

could thereby increase its own power at the expense of the

President'' and ``essentially take over the appointment

process from the President.'' Edwards thus concluded that

``the Framers never intended for Congress to have such

unchecked authority to impose supermajority voting

requirements that fundamentally change the nature of our

democratic processes.''

Georgetown law professor Mark Tushnet has written that

``[t]he Democrats'' filibuster is . . . a repudiation of a

settled, pre-constitutional understanding.'' He has also

written: ``There's a difference between the use of the

filibuster to derail a nomination and the use of other Senate

rules--on scheduling, on not having a floor vote without

prior committee action, etc.--to do so. All those other rules

. . . can be overridden by a majority vote of the Senate . .

. whereas the filibuster can't be overridden in that way. A

majority of the Senate could ride herd on a rogue Judiciary

Committee chair who refused to hold a hearing on some

nominee; it can't do so with respect to a filibuster.''

And Georgetown law professor Susan Low Bloch has condemned

supermajority voting requirements for confirmation, arguing

that they would allow the Senate to ``upset the I carefully

crafted rules concerning appointment of both executive

officials and judges and to unilaterally limit the power the

Constitution gives to the President in the appointment

process. This, I believe, would allow the Senate to

aggrandize its own role and would unconstitutionally distort

the balance of powers established by the Constitution.'' She

even wrote on March 14, 2005: ``Everyone agrees: Senate

confirmation requires simply a majority. No one in the Senate

or elsewhere disputes that.''

Mr. President, I ask unanimous consent for a couple of minutes to make requests for committees to meet in the Senate and to make just a brief statement, 2 minutes.

I ask unanimous consent for 2 minutes to make a request for committees to meet, which my assumption is the Senator from Iowa will object to, and then just to make a very brief statement, a total of 2 minutes.

Mr. President, I have 10 unanimous consent requests for committees to meet during today's session of the Senate. They have the approval of the majority leader. I ask unanimous consent that these requests be agreed to and be printed in the Record.

If I could reclaim the balance of my brief time, what we have is a further effort to make it impossible to do the people's business in the Senate. The normal way we do business is for action to be going on on the floor, and additional action in committees at the same time. As a result of these objections, we have thwarted progress. We have thwarted progress on an energy bill, on a JOBS bill, on a disaster relief bill. Yesterday, an Intelligence Committee meeting had to be cancelled. Here we are in the middle of the war on terror and the Intelligence Committee was not allowed to meet.

Today's objections will shut down our meetings on the Energy bill, a closed CIA briefing on terrorism and proliferation of weapons in Iran, the Foreign Relations Committee, on strengthening America's workforce over at the Labor Committee, another Intelligence Committee shutdown by this action and, of course, the Judiciary Committee will not be able to continue its markup of the asbestos bill.

We are following the regular order. The majority leader simply called up a

judicial nominee to be considered by the Senate. There is nothing irregular in any way about the procedure that is being followed, and yet our friends on the other side of the aisle are shutting down the business of the Senate by making it impossible for committees to do the work of the American people on everything from intelligence matters to passing an energy bill when gas prices are at record highs. This is an incredibly irresponsible approach to the majority's efforts simply to move the people's business along by following regular order and moving toward a vote on the President's nomination for the court of appeals.

I yield the floor.

Reserving the right to object, and I will object, let me say to my good friend from Illinois, this is a scheduling issue. His party was in the majority for 18 months between 2001 and 2002. Then, Majority Leader Daschle got to decide the order of matters to be considered in the Senate. That is the prerogative of the majority leader.

I am certainly pleased to hear of the enthusiastic support of my good friend from Illinois for the nominee, Griffith. Nevertheless, the majority leader, Senator Frist, is charged with the responsibility of determining the order in the Senate. We are on a nomination that enjoys bipartisan support, a majority of bipartisan support, and that is Texas Supreme Court Judge Priscilla Owen.

I am of the belief that some of the efforts to shut down the activities of the Senate may be coming to a close, and I will seek the floor for the purpose of offering a unanimous consent to allow the Foreign Relations Committee to at least meet, which is good news. Unfortunately, other committees are still shut down by not following the normal procedure in the Senate where committees are busily at work while action is occurring on the Senate floor. As a result of actions in the last 2 days, the Energy bill is thwarted, the JOBS bill is thwarted, disaster relief is thwarted, and a closed intelligence meeting was not held again today. The Energy bill, the HELP Committee is out of action today. Asbestos is not going forward.

All of these efforts to delay activity in the Senate, to shut down the Senate are not necessary. It is routine in the Senate for committees to be doing work while we have debate on the floor. Nothing extraordinary is happening on the floor. We are following regular order. The majority leader, as is his right, had called up a nomination, and we are debating it.

We will get around to Mr. Griffith, and I am certainly pleased to hear that the assistant minority leader is in favor of him. That is good news. That is one, when we turn to him, I look forward to confirming with not a great deal of debate.

With regard to the current consent agreement, I object.

Reserving the right to object, and I will object, once again, it is good news to hear the Senator from Illinois is going to be supportive of three circuit judges from Michigan who have been denied an opportunity to have an up-or-down vote for many years. The majority leader certainly has on his list for very near future consideration all of those judges, and I am pleased to hear they will be in all likelihood approved when they are brought up at a time of the majority leader's designation.

Let me repeat, all we are looking for is an up-or-down vote. We are not looking for a guaranteed outcome. But my friend from Illinois is probably suspicious that there will be success if up-or-down votes are granted because all of the judges who have been pending have bipartisan majority support.

We will look forward to dealing with all of the judges the Senator from Illinois would like to schedule, instead of the majority leader, in the very near future, but in the meantime we are dealing with the nomination of Justice Priscilla Owen to the Fifth Circuit.

Mr. President, I object.

Mr. President, I want to say this to my good friend from Oregon before he leaves the floor. I listened intently to his extremely well-crafted and reasoned arguments, and I congratulate him for his important contribution to this momentous, significant debate we are having in the Senate, trying to get ourselves back to the way we comfortably operated for 214 years. I thank my colleague for his contribution.

Because of the unprecedented obstruction of our Democratic colleagues, the Republican conference intends to restore the principle that, regardless of party, any President's judicial nominees, after full debate, deserve a simple up-or-down vote.

I know that some of our colleagues wish that restoration of this principle were not required. But it is a measured step that my friends on the other side of the aisle have unfortunately made necessary. For the first time in 214 years, they have changed the Senate's ``advise and consent'' responsibilities to ``advise and obstruct.''

Our Democratic friends did not bring us here by accident. For 4 years, they have steered the Senate toward this unfortunate path. In April of 2001, Senate Democrats held a private weekend retreat in Farmington, PA, to hatch a plan of attack against the President's judicial nominees. According to the New York Times, one participant at the meeting said, quote, ``it was important for the Senate to change the ground rules, and there was no obligation to confirm someone just because they are scholarly or erudite.'' And, thus, we embarked on this uncharted course.

Until the last Congress--the 108th Congress--it had been standard procedure not to filibuster judicial nominees. That changed on February 11, 2003. On that day, Senator Hatch, chairman of the Judiciary Committee, sought consent to consider Miguel Estrada's nomination to the DC Circuit Court. My friend, Senator Dodd, refused. Senator Hatch offered to increase the amount of time for debate by 10 hours and was refused again. He offered 20 hours. He offered 40 hours. He offered even 50 hours of debate, an unprecedented amount of time. Senator Dodd said as follows:

This is not about the amount of time.

We have heard the repeated argument on the other side that this is about the right to speak. Senator Dodd said that this is not about the amount of time.

Remember that, Mr. President. The next time you hear any one of our Democratic colleagues complain that when we restore the norms and traditions of the Senate, we will be limiting their right to speak or cutting off debate, they themselves say it is not about that. Such claims actually don't withstand scrutiny. I could not agree more with my friend from Connecticut when he said this current impasse is not about the amount of time available to debate.

The Democratic leader, my friend, Senator Reid from Nevada, also agrees with me. When Senator Bennett requested an agreement to consider the nomination of Justice Priscilla Owen to the Fifth Circuit, Senator Bennett also bent over backward to give the minority whatever number of hours for debate it needed.

Senator Reid responded:

There is not a number in the universe that would be

sufficient.

``There is not a number in the universe that would be sufficient.'' Clearly, it must not have been about getting enough time. Our Democratic friends went on to block several more reasonable requests to consider circuit court nominations.

So it is clear the Democrats do not want more time to debate. The minority leader indicated there was not enough time in the universe for that. Rather, a minority of Senators are rejecting the opportunity to debate because they want to kill qualified judicial nominations with clear majority support.

These nomination have gone for 2, 3, even 4 years--the current justice pending on the calendar has been up for 4 years--without a vote, while vacancies on the Federal bench pile up.

Let's take, for example, Justice Priscilla Owen, who is the pending business of the Senate. She was nominated, as I just indicated, by the President 4 years ago to sit on the Fifth Circuit. Justice Owen has served with honor for 10 years on the Texas Supreme Court. She won reelection with a whopping 84 percent of the vote, far more than most of our colleagues who oppose her. She has the support of both Democrats and Republicans from Texas who know her best. She has endured 4 years of slanderous attacks from partisan groups with grace and poise.

All of that meant nothing once she landed in the crosshairs of the Senate's obstructionist minority. We devoted 17 legislative days to discuss her qualifications--17 days--and we have held four cloture votes on Justice Owen's nomination in order to allow the entire Senate to pronounce its collective judgment on her qualifications. But a minority of Senators is determined to deny the Senate the exercise of its constitutional duty. All four cloture votes have failed.

On May 1, 2003, cloture failed on the Owen nomination by a vote of 52 to 44. One week later, it failed 52 to 45. On July 29 of that year, it failed 53 to 43, and on November 14 of that year, it failed 53 to 42. For every one of those votes, Justice Owen had a clear majority and, in fact, bipartisan support. But some continued to do the unthinkable. They continued to set the precedent that only 41 Senators should have the right to dictate to the President who he or she can and cannot appoint to our Federal courts.

Justice Owen is not the only person they have obstructed. In the 108th Congress, an obstructionist minority blocked the Senate from giving its advice and consent a record 20 times. Twenty votes on judicial nominees were held, and 20 times a minority of Senators refused to let the Senate discharge its constitutional duty to render advice and consent. Twenty times, Mr. President, in the 108th Congress they stopped a judicial nominee who clearly had majority bipartisan support from receiving the courtesy of an up-or-down vote. They filibustered 10 different circuit court nominees within 16 months. This is completely without precedent, and it is also not fair. Any President's judicial nominees should receive careful consideration,

but after that debate, they deserve a simple up-or-down vote.

Despite the Democrats' power grab, we offered them several compromises that allowed for extended debate but still give nominees the courtesy of an up-or-down vote. They rejected every one. For instance, in May 2003, the majority leader, along with Senator Zell Miller of Georgia, a Democrat, proposed S. Res. 138, the Frist-Miller cloture reform proposal.

The Frist-Miller proposal was narrowly tailored after a much broader Democratic proposal from 10 years ago that would have completely eliminated the filibuster in its entirety. The Democratic proposal would have eliminated the filibuster from legislation, to which it has been historically confined, as well as for judicial nominations, where it had not been used until the last Congress.

Interestingly, all Republicans, every single one, voted against the Democratic proposal because it would have eliminated the legislative filibuster. In fact, it was the first vote that Majority Leader Frist cast in the Senate. The only Senators who voted for that proposal were our friends on the other side of the aisle, nine of whom are still serving in this body today, singing a different tune, I might add.

I have heard several of my friends on the other side of the aisle warn ominously that if the Senate votes to reestablish the norms and traditions of this body with respect to judicial nominations, this could somehow lead to the infringement or even abolishment of a filibuster as applied to legislation. What nonsense. That will not happen because certainly nobody on this side is in favor of this, and I gather now nobody on the other side is in favor of it, even though nine of them were for it 10 years ago.

When the Democrats proposed to do away with the legislative filibuster 10 years ago, nobody on this side of the aisle supported it, and I am confident nobody on this side of the aisle would support it today. What is remarkable about that is back in 1995 when our friends on the other side were proposing eliminating the filibuster, it was right after our party came to the majority. We would have been a big winner of that had it passed, but yet not a single one of us voted for it. What did we do? We exercised restraint.

So back to the Frist-Miller proposal which, as I said, was a narrowly focused version of the Democratic--I stress ``Democratic''--bill to eliminate the filibuster altogether. The Frist-Miller proposal was much more moderate, much more measured. It would have applied only to nominations, not to legislation. It would have allowed Senators after 12 hours of debate to file successive cloture motions with declining requirements to achieve cloture. The final cloture threshold would be a majority of Senators present and voting.

The Frist-Miller proposal would have allowed the minority sufficient time for debate while reestablishing the Senate's 214-year history of allowing nominees with majority support to receive the courtesy of an up-or-down vote. It was a good proposal. Unfortunately, our Democratic colleagues rejected it.

In April 2004, a little over a year ago, the majority again reached out to our Democratic colleagues. We suggested another approach to break this impasse on judicial nominations. This time the chairman of the Judiciary Committee, Senator Specter, took the lead by offering S. Res. 327, the Specter protocol. Under the Specter protocol, judicial nominees would receive a committee hearing, a committee vote, and a floor vote within a reasonable amount of time regardless of which party controlled the Senate and the White House.

The chairman of the Judiciary Committee would agree to hold hearings for the nominees within 30 days of the submission of their names by the President. The chairman would set a date for the full committee to vote within 30 days of those hearings. And the majority leader would set an up-or-down vote on the Senate floor within 30 days after the nominee was reported out of committee. It was pretty simple.

As I indicated, these timetables would apply whether Democrats or Republicans were in charge of the Senate, whether the same party controlled the White House and the Senate, or whether the two parties split the control.

I bet to the vast majority of people listening, that sounds like an extremely fair, bipartisan solution. I agree with them. Again, unfortunately, our Democratic friends have not embraced it.

At this point, most people would throw up their hands and give up. We do not have the luxury of doing that, however, because the American people elected all of us to act on these issues that confront the country. Restoring Senate tradition and thereby restoring the proper balance of power between the executive and legislative branches is one of our responsibilities, and we need to do it.

We Republicans redoubled our efforts and patiently tried again. In the interim, though, we had an election. President Bush and several candidates for the Senate, many of whom serve here today, met thousands of mainstream ordinary Americans who were angry at the obstructive attempts to disfigure the filibuster. Thousands of Americans told President Bush and their Republican candidates for the Senate that they do not believe the President's nominees are out of the mainstream, and they do not like a minority of the Senate preventing the Senate from discharging its constitutional duty.

Millions of them turned out to reelect President Bush, giving him more votes than any Presidential candidate in American history. And millions voted to increase the majority's number in this body from 51 to 55.

Given those results, many of us had hoped that the politics of obstruction would have been dumped in the dustbin of history. Regretfully, that did not happen.

Recently, we Republicans tried again to reach an accommodation with our Democratic colleagues. Last month, the majority leader offered a comprehensive, thoughtful, and fair-minded solution. It is called the fairness rule. My Democratic colleagues had repeatedly complained that some of President Clinton's nominees were never reported out of the Judiciary Committee, and that is a valid point. They had a point. So to address the concern, the Frist fairness rule guarantees that every nominee would be reported out of Judiciary--presumably some of them maybe not with majority support--preventing any nominee from getting blocked in committee, which is the principal complaint the Democrats have about how they had been treated when our party controlled the Senate and their party the White House.

The Frist fairness rule guarantees every nominee would be reported out of Judiciary, preventing any nominee from getting blocked in committee. The principal complaint we have heard repeated so often out here is that the Republicans were simply doing in committee under Clinton what the Democrats are doing on the floor under Bush. We will deal with that.

In addition, my Democratic colleagues complain they need to have the right to debate judicial nominees protected.

This complaint is incongruous with Senator Reid's comment that there was not enough debate time ``in the universe'' to allow a vote on Justice Priscilla Owen. It must not have been about time because he said there was not enough time in the universe.

Nevertheless, the Frist fairness rule guarantees up to 100 hours of debate on every nominee, allowing every member to have his or her say. This is more time than has been devoted to most Supreme Court nominees.

Finally, the Frist fairness rule guarantees up-or-down votes for every circuit court or Supreme Court nomination, regardless of which party controls the Senate or the White House. So the fairness rule could not have a more appropriate name. It guarantees a full and comprehensive debate. It guarantees every Senator a constitutional right to cast a fair up-or-down vote for every judicial nominee. It guarantees every President that their judicial nominees will get through committee and get a vote on the Senate floor and, of course, it would not apply to legislation at all.

Once again, our Democratic colleagues quickly rejected this proposal.

To recap, the majority in the Senate has had weeks of debate. We have tried multiple and generous time agreements. We have offered the Frist- Miller proposal. We have suggested the Specter protocols. We have offered the Frist

fairness rule. Unfortunately, our Democratic colleagues have rejected all of these efforts at accommodation.

We have reached the point in this debate where not a lot of new things are being said, but not everybody has yet said it. But I want to make a point that I believe has not been made by anyone today. For 70 percent of the 20th century, the same party controlled both the White House and the Senate. For 70 percent of the 20th century, the same people running the White House were running the Senate. Most of the time, the people in the minority in the Senate were people of my party. Yet Republicans did not filibuster, for example, the judicial nominees of Franklin Delano Roosevelt, even though he appointed eight Justices to the Supreme Court and elevated another to Chief Justice.

More recently, the Republican minority did not filibuster the judicial nominees of Presidents Carter and Clinton because we were in the minority for 2 years under President Clinton and all 4 years under President Carter, even though several of these nominees were extremely controversial and did not enjoy supermajority support.

To be fair, when Senator Byrd was the minority leader, he did not lead his Democratic caucus in the Senate to filibuster President Reagan's judicial nominees either, and Senator Byrd should be commended for that. That was an extraordinary act of statesmanship. He could have done at the time he was in the minority when President Reagan was in the White House what has been done in the previous Congress.

When Senator Byrd was minority leader, he did not lead his Democratic Caucus in the Senate to filibuster President Reagan's judicial nominees. Not until 2 years ago has a Senate minority ever decided to filibuster a President's judicial nominations on a repeated partisan and systematic basis when they clearly enjoyed majority support.

To correct this abuse, the majority in the Senate is prepared to restore the Senate's traditions and precedents to ensure that regardless of party, any President's judicial nominees, after full and fair debate, receive a simple up-or-down vote on the Senate floor. It is time to move away from advise and obstruct and get back to advise and consent.

The stakes are high. The Constitution of the United States is at stake. Article 2, section 2 clearly provides the President and the President alone nominates judges.

The Senate is merely empowered to give advice and consent, but our Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation.

In effect, they would take away the power to nominate from the President and grant it to 41 Members of the Senate. In other words, there would be the distinct possibility and in fact great likelihood, if this continues, that 41 Members of the Senate will dictate to the President of the United States who may be a member of the Supreme Court and other courts.

We have made every effort to reach out and compromise, but our colleagues at least so far have refused. The only choice that remains is to hold a vote to reaffirm the traditions and precedents that have served this body so well for the last 214 years. Let us vote.

I yield the floor.

Mr. President, I think the facts are clear. You have heard this many times. Almost everything has been said, but not everybody has said it. I want to go over some of the facts I think are very important.

For 214 years judicial nominations have come to the Senate floor and have been considered without filibuster. It is a courtesy extended by my fellow Senators to the President. By resorting to filibustering judicial nominees who have the support of a majority of Senators, which began in 2003 by colleagues on the other side of the aisle, they are throwing overboard 214 years of Senate courtesy and tradition.

The Constitution of the United States does not contain a word about filibusters. The Federalist Papers do not contain the word ``filibuster.'' Rather, the Constitution lays out the standards for confirming judges. It does not require a 60-vote majority for confirmation. It requires a majority vote to confirm members of the Federal judiciary.

The Democrats in this Chamber have taken it upon themselves to rewrite the rules for confirming justices. They now demand 60 votes for confirmation to a circuit court or potentially a Supreme Court position.

For the first time, judicial nominations with clear majority support are denied an up-or-down 51-vote, Senate majority vote on the Senate floor through the unprecedented use of the filibuster.

There is no constitutional authority for their demands, and it is an abandonment of the tradition of this Chamber. We are perfectly within our rights and history is on our side as we prepare to take steps to ensure the confirmation of judges with majority support.

In an attempt to cloud these rather clear facts, the Democrats have put forward a parade of dubious arguments to support their filibusters, obfuscation to justify political obstructionism.

One of the facts they overlook is their obligation to check the President--and our very system of checks and balances gives them authority and

demands action. But the Senate has the ability to check the President, not a minority of the Senate willing to pervert the rules of this body. The majority, therefore the Senate as a body, and representing a separate branch of Government, has spoken on these nominations. These nominees enjoy the support of the majority body's Members. The President has made his nominations and made his case for the nominations. Supporters and opponents of the nominees have made their case before the Senate on these nominations. From the votes we have taken we have seen that a majority of the Senate agrees with the President and supports his nominations. Under the system to check the President, as laid out clearly in the Constitution, the President has carried the issue and won the support of the body that has the authority to register its disapproval.

It has not disapproved. The Constitution says nothing on the subject of a filibuster, and it says nothing of the power of a minority to defeat the President's judicial nominations. It is the product of a rule of the Senate passed many years after the ratification of the Constitution. This rule does not derive from the authority of the Constitution. Furthermore, the rule is being used in a manner never used before. It is a perversion of the intent of the Constitution and, if its use in this manner is not abandoned, then we must take steps to wipe it from the books.

Let me go back to statements made about this process. Democrats are trying to change the constitutional standard for confirmation from a simple majority to a 60-vote standard. That is why we see the claim of the distinguished senior Senator from West Virginia that the nominations were rejected because they did not get 60 votes for cloture in the 108th Congress. Senators from Nevada, New York, Wisconsin, and Massachusetts have said they were rejected. A 60-vote standard is contrary to the Constitution. The Constitution spells out clearly where a supermajority is required: For veto overrides, constitutional amendments, treaty ratification, expelling a Member, convictions for impeachment. Judicial confirmation is not one of them.

It is also a double standard based on past treatment of a Democratic President's nominees. For example, Clinton nominees Richard Paez and Susan Molloway and William Fletcher were all confirmed with fewer than 60 votes, as were Carter nominees Abner Mikva and L.T. Senter.

It is said that justice delayed is justice denied. These filibusters of judicial nominations have slowed the consideration of cases in the Federal appeals court, especially in the Sixth Circuit, where Democrats have blocked four qualified nominees. As my colleague from Mississippi has pointed out, these good people who have devoted their life to law and the judiciary have been subject to interminable delays, personal vilification, without giving them the right to an up-or-down vote which this body has already demonstrated they would give them.

Look at what they have said. Back in 1975 in the Congressional Record of February 20:

The filibuster has been the shame of the Senate and the

last resort of special interest groups. Too often, it has

enabled a small minority of the Senate to prevent a strong

majority from working its will and serving the public

interest.

So spoke the senior Senator from Massachusetts.

Then, in 1998, June 18, a statement from the Congressional Record:

I have stated over and over again on this floor that I

would . . . object and fight against any filibuster on a

judge, whether it is somebody I opposed or supported.

That was the senior Senator from Vermont.

He also said:

I do not want to get [to] having to invoke cloture on

judicial nominations. I think it is a bad precedent.

Congressional Record, September 16, 1999.

Another quote:

If we want to vote against somebody, vote against them. I

respect that. State your reasons. I respect that. But don't

hold up a qualified judicial nominee . . . I have stated over

and over again on this floor that I would . . . object and

fight against any filibuster on a judge, whether it is

somebody I opposed or supported; that I felt the Senate

should do its duty.''

Same Senator from Vermont, June 18, 1998.

Here is another one from the Congressional Record March 19, 1997:

But I also respectfully suggest that everyone who is

nominated ought to have a shot, to have a hearing and have a

shot to be heard on the floor and have a vote on the floor .

. . It is totally appropriate for Republicans to reject every

single nominee if they want to. That is within their right.

But it is not, I will respectfully request, Madam President,

appropriate not to have hearings on them, not to bring them

to the floor and not to allow a vote . . .

That was the distinguished senior Senator from Delaware, March 19, 1997.

Here is another good quote:

The Chief Justice of the United States Supreme Court said:

``The Senate is surely under no obligation to confirm any

particular nominee, but after the necessary time for inquiry

it should vote him up or vote him down.'' Which is exactly

what I would like.

The distinguished senior Senator from Massachusetts, Congressional Record, March 7, 2000.

Mr. President, the minority had the opportunity to win their argument long before it reached the Senate. They had a chance to win at the ballot box. They argued that the American people could send Members of the Senate who agreed with their legislative agenda and their view of the role of the judiciary. The American people did not agree with the minority and sent an increased majority of Members to the Senate who agree with the President on the role of the judiciary, the type of individuals who should occupy these positions, and the need to give them an up-or-down vote.

On two occasions, my colleagues on the other side of the aisle had the chance to win the argument on judicial nominations and had a chance to win this argument at the ballot box. They did not. They had a chance to convince a majority of the Members of the Senate that the nominees are unsuitable to sit on the Federal bench. They were unable to do so. So they have resorted to turning a Senate rule on its head and insisting on an application never used before to win a debate they could not win by a simple 51-vote majority.

Now our Democratic colleagues come to the floor and say the view of the majority of the Senate and the view of a President, who won the most votes ever by any President, is out of the mainstream. A minority is now demanding their view--which is the minority opinion in this body, and apparently from the opinion polls and our contacts, the minority opinion in the country--should carry the day as to what is and what is not in the mainstream. Once again, this line of thought would seem to turn logic on its head.

To cloud further the unprecedented nature of their attack on the President's nominations, my Democratic colleagues are blowing their own horn about confirming 208 of the President's nominees versus only defeating 10; a stellar record of cooperation they claim, evidenced by confirming 95 percent of the President's nominees. By confirming the President's district court nominees they are attempting to hide a blatant attack on the President's nominees for higher court, appellate courts, courts of appeal.

The circuit courts of appeals are the second most important courts in the land behind only the Supreme Court of the United States. When it comes to confirmation of the President's nominees, their record is not one of cooperation but one of unprecedented assault. Nearly one in three of President Bush's nominees for the Federal court of appeals has been targeted for defeat. This is not by accident. We know two days after the Senator from Vermont switched parties and changed the balance of the Senate in June of 2001, a number of extreme left-leaning groups met to plot the defeat of circuit court nominees. Their analysis showed a Republican President would surely nominate judges with a philosophy consistent with the President, strict construction of the Constitution, rather than the extreme leftwing judicial legislation views of their own. The left-leaning groups saw their balance on the court decreasing, and their plan was to defeat circuit court nominees. Their plan was not to argue for judges in the mainstream or to defeat district court nominees. Their objective was to defeat, by any means, circuit court nominees of President Bush.

Yesterday we saw this outline in the Washington Times. These groups, in

turn, met with Senate Democrats to target certain nominees. Surprisingly, the nominees the groups decided to target seemed to be neatly in line with those ultimately targeted by Senate Democrats. So, actually, the minority has been outsourcing their decision as to who is and who is not in the mainstream to outside liberal groups such as People for the American Way, which a glance at any of their material reveals they are not exactly in the mainstream.

Here are a couple of excerpts from the Washington Times article yesterday:

In a November 7, 2001, internal memo to Sen. Richard J.

Durbin, who is now the minority whip, an aide described a

meeting that the Illinois Democrats had missed between groups

opposed to Mr. Bush's nominations and Sen. Edward M. Kennedy,

Massachusetts Democrat and member of the Judiciary Committee.

The memo goes on to State:

Based on input from these groups, I would place the

appellate nominees in the categories below . . . listing 19

nominees as ``good,'' ``bad'' or ``ugly.''

Four of the 10 nominees who Democrats have since

filibustered were deemed either ``bad'' or ``ugly.'' None of

those deemed ``good'' by the outside groups was filibustered.

Among those listed as ``ugly,'' was Texas Supreme Court

Justice Priscilla Owen, whose nomination will be brought to

the floor today by Majority Leader Bill Frist, Tennessee

Republican.

In a June 4, 2002, memo to Mr. Kennedy, staffers advised

him that Justice Owen would be ``our next big fight.''

``We agree that she is the right choice--she has had a bad

record on labor, personal injury and choice issues, and a

broad range of national and local Texas groups are ready to

oppose her,'' the aides wrote.

I ask unanimous consent this be printed in the Record after my statement.

As I believe has been stated many times before, Justice Owen has won overwhelming support, more than three-quarters support of the majority of Texas and the endorsement of major leading newspapers, the Bar Association, but the left-leaning groups did not like her.

Our colleagues in the minority want congratulations for the fact that nearly all of the President's trial court judges have been confirmed. I respect greatly the men and women on the Federal district court. In the eyes of the Senate Democrats, however, clearly, all judgeships are not created equal.

We see the contrast between the way the Democrats are conducting business and the way business has been conducted by tradition. Nearly one of three of the President's nominees to the appellate court, the circuit court are being filibustered. Prior to the Democrats embarking on this path, 2,372 nominees were confirmed without a filibuster; 377 of President Clinton's nominees were confirmed without a filibuster. Judges were confirmed for 214 years without there being a filibuster. So the minority has turned over the determination as to who is and who is out of the mainstream to a number of out-of-the-mainstream groups, and they let these groups lead us down the path of destroying Senate tradition of 200 years. Not a record, in my view, that warrants a hardy pat on the back.

In a thoughtful opinion piece in today's Washington Times, majority leader Bob Dole recalls there were a few nominations made by President Clinton that were clearly objectionable to most Republicans. He said:

I recall two judicial nominations of President Clinton's

particularly troubling to me and my fellow Republicans

members when I was the Republican Leader in the Senate.

Despite our objections, both received an up-or-down vote on

the Senate floor. In fact, I voted to end debate on one of

these nominees while voting against his confirmation.

Republicans chose not to filibuster because it was considered

inappropriate for nominations to the federal bench.

Senator Dole goes on to say:

By creating a new 60-vote threshold for confirming judicial

nominees, today's Senate Democrats have abandoned more than

200 years of Senate tradition.

For the first time, judicial nominees with clear majority

support are denied an up-or-down vote on the Senate floor

through an unprecedented use of the filibuster. This is not a

misrepresentation of history; it's a fact.

I ask unanimous consent that be printed in the Record after my remarks.

We have heard a lot of statements and posturing from the other side about the President trying to pack the courts and how this is a nuclear option.

Let me tell you what the nuclear option is. The Democrats say if we go back to the tradition of confirming judges by a 51-vote up-or-down majority in the Senate, they are going to blow up the Senate. They are going to bring everything to a halt. They are going to destroy this body because we insist on what Democrats, prior to 2001, agreed with us; that is, judicial nominations brought to the floor deserve to be confirmed by a 51-vote up-or-down majority.

Already, we have seen the Democrats' stall tactics. ``Stall ball'' is being played. For people not in this body, you may not know that any Senator has a right to object to committee hearings being conducted 2 hours after the Senate goes in session. Even though this is regular order, this is standard procedure, we have had the Democratic side object to holding hearings.

Yesterday, we were scheduled to have a very important meeting in our Intelligence Committee to go over current threats, the intelligence of the dangers that our troops in the field face and the dangers we in the homeland face. That meeting was canceled because the Democrats objected.

The Energy Committee is trying to write a very important bill dealing with energy. We have not had an energy policy in a decade and a half. Gas prices have gone through the roof. We are seeing shortages. We are paying at the pump. We are paying in our home heating bills, paying with jobs going overseas because of the unnatural, artificial restrictions on the development of sources of energy in the United States--natural gas, oil, and even renewable fuel--while demand artificially is being increased for natural gas by the requirement that rules require it be used in electric utilities. And yet by objecting to committee hearings, the Democrats are limiting the Energy Committee to 2 hours a day and a markup.

It is not the President who is distorting rules to forward his nominations. It is not the President who has abandoned tradition and courtesy in forwarding his nomination. It is not the President who is attempting to rewrite the Constitutional standard for confirming judges. The other side of the aisle thinks if they can muster 41 votes, they ought to stop anybody that their leftwing, liberal interest groups target for blocking from confirmation. The President is exercising his constitutional role to appoint members of the Federal judiciary, and he is doing so following his decisive victory last fall after winning more votes than any other president in history, promising to appoint good, well-qualified, highly qualified, highly respected judges and attorneys to the courts of appeal. Who is and who is not in the mainstream of American thought?

I believe it is clear that the President and the majority in the Senate have a right to give these well-qualified nominees an up-or-down 51-vote majority vote on the floor of the Senate.

Mr. President, I thank the Chair and yield the floor.

Exhibit 1

[From the Washington Times, May 19, 2005]

Memos Reveal Strategy Behind Judge Filibusters

(By Charles Hurt)

The ``nuclear'' showdown that is expected to begin

unfolding in the Senate today has its origins in closed-door

discussions more than three years ago between key Senate

Democrats and outside interest groups as they huddled to plot

strategies for blocking President Bush's judicial nominees.

In a Nov. 7, 2001, internal memo to Sen. Richard J. Durbin,

who is now the minority whip, an aide described a meeting

that the Illinois Democrat had missed between groups opposed

to Mr. Bush's nominees and Sen. Edward M. Kennedy,

Massachusetts Democrat and member of the Judiciary Committee.

``Based on input from the groups, I would place the

appellate nominees in the categories below,'' the staffer

wrote, listing 19 nominees as ``good,'' ``bad'' or ``ugly.''

Four of the 10 nominees who Democrats have since

filibustered were deemed either ``bad'' or ``ugly.'' None of

those deemed ``good'' by the outside groups was filibustered.

Among those listed as ``ugly'' was Texas Supreme Court

Justice Priscilla Owen, whose nomination will be brought to

the floor today by Majority Leader Bill Frist, Tennessee

Republican.

The internal Democratic memos, downloaded from Democratic

computer servers in the Judiciary Committee by Republican

staffers, offer a unique look into the early stages of the

filibuster campaign, when Democrats were clearly doubtful

that they could succeed in blocking any of the nominees.

In the 14 memos obtained in November 2003 by the Wall

Street Journal and The Washington Times, Democratic staffers

outlined the concerns held by outside groups about Justice

Owen's ``hostile'' position toward abortion and her ``pro-

business'' attitude.

In a June 4, 2002, memo to Mr. Kennedy, staffers advised

him that Justice Owen would be ``our next big fight.''

``We agree that she is the right choice--she has a bad

record on labor, personal injury and choice issues, and a

broad range of national and local Texas groups are ready to

oppose her,'' the aides wrote.

Another nominee discussed often in the memos is Miguel

Estrada, a Washington lawyer who became the first

filibustered nominee and who withdrew his nomination to the

U.S. Court of Appeals for the D.C. Circuit after waiting two

years for a final vote.

In the 2001 memo to Mr. Durbin, the staffer explained the

concerns that the outside groups had about Mr. Estrada.

``They also identified Miguel Estrada (D.C. Circuit) as

especially dangerous because he had a minimal paper trail, he

is Latino, and the White House seems to be grooming him for a

Supreme Court appointment,'' the aide wrote.

The memos also reveal the close relationship between

Democrats and the outside groups.

In a June 21, 2002, memo to Democrats Mr. Kennedy, Mr.

Durbin, Sen. Charles E. Schumer of New York and Sen. Maria

Cantwell of Washington, a staffer urged delaying a hearing

for Mr. Estrada to ``give the groups time to complete their

research and the committee time to collect additional

information.''

One nominee who wasn't filibustered was Judge Timothy

Tymkovich, who now sits on the U.S. Court of Appeals for the

10th Circuit. But Democrats opposed moving him until all the

groups had given their approval.

``[I]t appears that the groups are willing to let Tymkovich

go through (the core of the coalition made that decision last

night, but they are checking with the gay rights groups),''

staffers wrote Mr. Kennedy in a June 12, 2002, memo.

But even as late as early 2003, Democrats appeared

concerned that they would not succeed in mounting a full-

scale filibuster against their first target.

In a January 2003 meeting between Democrats on the

Judiciary Committee and Democratic leaders in the Senate,

Democrats agreed to attempt a filibuster against Mr. Estrada.

``All in attendance agreed to attempt to filibuster the

nomination of Miguel Estrada, if they have the votes to

defeat cloture,'' the judiciary aides wrote. ``They also

agreed that, if they do not have the votes to defeat cloture,

a contested loss would be worse than no contest.''

Mr. President, I seem to recall that. I thought it was a very statesmanlike and accurate portrayal of the traditions of this body and the requirements of the Constitution, and I once again commend our colleague from Utah, who at that time was in a position where he obviously could have mustered 41 votes to block the nominee. It was the view of those of us who agreed with the Senator from Utah that we should not do that because the people of America elected a President who has--we know and he knows--the power to nominate judges. And it is necessary to maintain a well-staffed judiciary that we give prompt and up-or-down votes to these nominees.

Madam President, I thank the Senator from North Carolina for his excellent statement.

I have been on the floor many times to talk about the issue of judicial nominations, to stand and speak in favor of many nominees to the bench who have been debated over the past couple of years. Last night, I had the opportunity to meet with Justices Janice Rogers Brown and Priscilla Owen. I expressed to them my personal sympathy for them and their families, as I do to all of those who have had their lives, careers, and decisions unjustly dragged and contorted through the streets of debate on the floor of the Senate.

Four years ago now, when Justice Owen was nominated, I am sure that was a very proud day for her. I am sure she looked forward to the challenges of the confirmation process and the challenges of serving in the circuit court. I don't think anyone could possibly have conceived that a person with her judicial standing, having been rated the highest qualified by the American Bar

Association, having served as a supreme court justice in one of the largest States, having been elected in that State with over 80 percent of the vote, having accolades from Democrats and Republicans alike who have served with her on the court, as well as public officials in Texas--I don't think she could have possibly imagined she would be involved as one of the focal points of this maelstrom we see pouring out here over the last few days and, unfortunately, over the last couple years on the floor of the Senate.

These nominees have my respect. They have my respect for their courage and for their perseverance. It has been an act of perseverance on the part of many of them. All of them could have easily walked away--not that they don't have good jobs and great careers, and if not universally respected in the legal community, they are certainly highly respected. They don't get nominated for these positions unless they are highly respected within the community.

So I think it would have been very easy for many to walk away, but they have not. They certainly have earned my respect, no matter what happens here. I think it is a very sad day when we take highly qualified people who are willing to serve, and who have served in the judicial capacity, and treat them this way. We hear so much from the other side about many of us complaining about activist judges, and being critical of judges, and how it is a security threat to judges. Well, I suggest what we have been seeing over the last couple of years in the way these judges and their records have been distorted, they have added to the sense of frustration of the American public as to our judiciary and our system of justice in this country.

We have an opportunity to correct that. We have an opportunity to step away from the mistakes of the past in the next few days and to allow up-or-down votes on the floor of the Senate again. For 214 years, 214 years--in this Chamber and the Chamber just down the hall, and once in a couple other places--in Washington and other places, such as Philadelphia--we had votes by Senators who were elected at very difficult times in our Nation's history, at contentious times, where judges had major roles to play on the issues of the day. Think back to the times of slavery, during the early 1800s, when judges played a huge role in this issue that eventually fractured this country. I am sure there were times when either side, depending on who was the President and who controlled the Senate, felt it would have been unfair to their cause, the Northern cause or the Southern cause, to have a person on the Supreme Court who would vote against their interests. I am confident many felt very much tempted to vote and join a filibuster to block a nomination to require a supermajority vote.

But if you think about it, it is remarkable they withheld from doing that and chose instead something most people would say is much more dramatic, and that is to secede from the Union. But Senators, enduring that very contentious time when there were fights on the floor of the Senate, understood that a very key part, an important part, essential part of the Senate is the process by which we govern ourselves; that the process protects our rights; the process protects the system of Government. They chose to withhold their passions--the passions of the moment for the issue of the day--for the right and controversy to do what was best for the institution of the Senate, the greatest deliberative body in the history of the world, potentially.

And now we have seen this infection that entered into the bloodstream of the Senate. Whether you want to call it a partisan infection or an ideological infection, there certainly is a sickness. I think it is a sickness that, candidly, both sides of the aisle feel. I don't know too many people who feel very good about what we are going through on either side. It is making us all weaker, sicker, and it is so doing to this institution. We need a cure. We had a pretty healthy institution when it came to this issue for 214 years. I think we can look to the prescription that we had for 214 years for a cure to what ails us in this body today.

The Senator from North Carolina accurately said we had an agreement-- he used the term ``gentlemen's agreement''--a handshake, that this was the way we were going to proceed. I argue those in the 1850s had the right to filibuster judges. Those in 2003 had the right to filibuster judges. I had the right, during the Clinton administration, to filibuster his appointments. There were those whom I wanted to filibuster and those whom I desperately didn't want to see on the court, and we stood down because in spite of the passions and in spite of what I thought was a mistake to put a particular person on a particular court, there was something lasting, something more important, something certainly not eternal, but certainly eternal for as long as the United States shall survive, and that is this institution. We should not go mucking around in this institution and changing the way we do things, particularly when it comes to the balance of powers and the independence of one of the branches of our Government, the judiciary.

We must tread very carefully before we go radically changing the way we do business here, which has served this country well. We have radically changed the way we do business here.

Some are suggesting we are trying to change the law, we are trying to break the rules. Remarkable hubris. Imagine, the rule that this is the way we confirm judges has been in place for 214 years, broken by the other side 2 years ago, and the audacity of some Members to stand up and say, How dare you break this rule, it is the equivalent of Adolf Hitler in 1942 saying: I'm in Paris, how dare you invade me, how dare you bomb my city. It's mine. This is no more the rule of the Senate than it was the rule of the Senate before not to filibuster. It was an understanding, an agreement, and it has been abused.

In a sense, what we see on the floor of the Senate is a reflection of what we often see in our society. What we often see in our society is a government that increasingly is passing laws. I get this from some of my constituents sometimes. They say: You guys are always passing more and more laws and more and more laws, and ultimately when you are passing laws, in many cases what you are doing is restricting people's freedom.

The more laws we have on the books, the more laws there are to obey, the more laws you have the ability to break. So why do we do this? Because we respond to problems in society that come about certainly, in many cases, because what we once thought we did not need a law in place to keep people from doing, we now have laws in place to punish people who heretofore understood it simply was not a good thing to do.

We did this recently with the corporate scandals. What did we do? We passed a huge law, Sarbanes-Oxley, in response to what? Activities by a group of people who simply forgot about the handshake, forgot about the duty we have to each other, and pushed the law well beyond what we intended. So we had to pass a new law, and we had to constrain 99 percent of the people in America who never even thought about breaking the law or doing the things that were done by Enron and Tyco and all those people. So we had to pass laws on everybody.

Was it a good thing to do? We had to pass the law because there were some who could not live by the law, could not live civilly, could not live with not just the letter of the law but the spirit of the law.

So we had to pass legislation that restricted freedom, that put burdens on people. That is why I have said many times I am not crazy about having to vote to eliminate the possibility of filibusters on judges. I am not anxious to do this anymore than I was anxious to pass some of the corporate responsibility provisions. One would like to think, particularly here, where we are supposed to be a reflection of what is best in our society, that we can understand what we are doing here is wrong and just step back from the ledge and let civility reign, let the tradition of the Senate be upheld.

I do not want to have to pass a law. I want to see a Senate that can agree to act civilly, to respect tradition in the process of running this place that has worked well for 214 years. That is what I want.

So I have encouraged many to sit down and try to negotiate. I encouraged our leaders to do so. I know our leader has tried diligently. I just spoke with him on the phone a few minutes

ago, and he continues to work to avoid what no one--at least I hope no one in this Chamber--wants to see happen. I certainly do not. But we can no longer live--just like we cannot live with the opportunity of those to cheat shareholders and employees--we can no longer live with the minority trying to cheat those nominated by the President of the United States from a fair up-or-down vote in the Senate. We cannot tolerate that. That is behavior beyond the pale. That is behavior that no Senate, prior to the last one, tolerated. None.

I have repeatedly asked and I know other people have asked repeatedly, Name one judge brought to the floor of the Senate who had majority support who was not confirmed. Name one, prior to 2 years ago. Never happened. Never happened in the entire history of the Senate. Never happened. We have 10, potentially 16 who would have that privilege because of this new precedent.

I cannot understand how Members of the Senate can come here and say what we are doing is breaking the rules. Breaking the rules? I do not know how you can possibly contort the facts of this case around to where the Senate Republicans, by returning to the tradition of the Senate of 214 years, is somehow breaking the rules.

This is truly a sad day. It has been a sad week. If you look and listen to my constituents--and I am sure all of our constituents--they are not happy about this debate. They are not happy a group of 100 leaders--100 leaders--cannot negotiate and find some way of acting civilly, of reflecting to our children and our grandchildren that we know how to play nice and we know how to play by the rules.

But the passions of the moment, the passions of the moment have swept over us, and those groups out there that are fomenting this because of their own ideological agenda are the culprits, or at least the motivation, but the votes are here. The votes are here. I am hopeful there are enough on the other side of the aisle who will come to the realization this is not good for them, this is not good for their ideology, it is not good for their partisanship, this is not good for the institution, and this is not good for the country to continue down this path.

When I came to the Senate, I came from the House, like the Senator from Georgia, from the legislature, like the Presiding Officer. I had never dealt with executive nominations before. So one of the things I looked into is how do I determine what a good judge is. We did a little looking around and determined how do you evaluate a judge.

First, are they qualified? Do they have the educational skills, the experience to do the job? Second, are they ethical, not just did they break any laws, but are they ethical individuals and have a reputation for high ethics? And three, do they have an understanding of the role of a judge? Those are the three things.

You did not hear me say, do I agree with them on this issue, this issue, or that issue, because my feeling is whoever is elected President will appoint people who agree with their philosophy. That is how it works, just as when you appoint a Secretary of Veterans Affairs or a Secretary of Energy, you appoint someone who intellectually agrees with your philosophy.

When President Clinton was elected, I came here, and I supported almost every Clinton nominee. Did I agree with them? Absolutely not. Did I think most of them would be damaging to the court? Absolutely. Did I vote for them? Yes. There are a couple of exceptions. One in particular, I have to tell you, who caused me a lot of heartburn was Judge Richard Paez from California who showed a record of activism on the court that was upsetting to me and showed that he was not someone who understood the role of a judge.

So under that he certainly was qualified, and I had no questions about his ethics, but I did have a question as to whether he understood the role of a judge. From his experience it showed me he did not.

There were many who wanted to filibuster Judge Paez because of that very fact. In my mind, certainly from the standpoint of not wanting someone on the court, it would have been a justifiable filibuster, except for the fact that is not the way we do things in the Senate, because you know what. The President won the election, and he can nominate who he wants. And we in the Senate have had a tradition saying if you can get a majority of votes in the Senate, you get confirmed.

It is about majorities. And by the way, I voted for cloture on Judge Paez and voted against him on the floor when an up-or-down vote came. He did not get 60 votes. Had we filibustered, he would not be on the Ninth Circuit today. We did not. I did not because it was not the right thing to do. It was absolutely not the right thing to do.

I suggest that we have changed the qualifications from highly ethical, highly qualified and understanding the role of a judge to someone who is ``in the mainstream.'' That seems to be the idea now. So we are talking about ideology, in the ideological mainstream.

There were probably--well, Richard Paez, certainly from my view, I would argue, is probably not in the ideological mainstream of America but they all supported Judge Paez.

Probably Justice Harlan, who was the lone dissenter in 1896 in Plessy v. Ferguson, was not in the mainstream at the time.

Thurgood Marshall was confirmed in the Senate to the circuit court back in 1961 with 54 votes. As a lawyer for the NAACP in the 1950s, probably a lot of people in America would not have said he was in the mainstream.

There are a lot of judges who are not ``in the mainstream'' depending on what stream one happens to be swimming in.

Elections have consequences. In 1961, John F. Kennedy was the President. He won the election, and he got the benefit of the doubt on the Senate floor. He got an up-or-down vote. Majorities matter. I do not think my colleagues will hear the Senator from Georgia or any other Senator on this side of the aisle complain because for 18 months Priscilla Owen was held in the Senate Judiciary Committee during the chairmanship of Senator Leahy. I certainly will not complain. It was his right not to report her nomination to the Senate floor. Why? Because they were in the majority. If a majority of that committee did not support her nomination, fine, hold it in committee. Defeat her in committee. That is fine. No problem.

If someone happens to be reported out and a majority defeats, fine, majority rules. This idea that 60, 80 whatever Clinton nominees were held in committee by Republicans during the last few years of the Clinton administration, they were held because the majority opposed them. The majority rules, up-or-down vote on majority vote. That is the 214-year tradition of the Senate.

The idea now is the minority rules. One can lose the presidency, lose four seats in the House and control who is going to be the next circuit and Supreme Court judges in the United States? Very interesting. I guess elections do not matter. I guess who people vote for, for President is of no concern to the minority in the Senate. They are the ones who should dictate who the nominees of this President should be. They are the ones who should dictate who comes to the floor and whether they get a vote or not.

That is not the precedent of 214 years. It has been an up-or-down vote. This is an outrage. This is an abuse of power.

It is interesting we are in the Senate, and we are talking about the minority abusing power. Yes, the minority can abuse power in this case, and in my opinion they certainly have.

One final comment, and I apologize to the Senator from Georgia and I appreciate his patience. I just want to make a comment on one case. Yesterday I heard the Senator from California make a statement with respect to Janice Rogers Brown, one I am particularly concerned about because it deals with the issue of Catholic Charities. I heard the Senator from California in describing Justice Janice Rogers Brown's decision in that case and she used the following words in describing her dissent: She, meaning Justice Brown, was the only member of the court who voted to strike down a State antidiscrimination law that provided a contraceptive drug benefit to women. That is her comment.

Now, she did not go into the fact what this law said. What was this law? Well, it was a law that said that if an employer provided health insurance they must provide contraceptive coverage--must. Now most folks who have

dealt in this area before would say: Is there not an exemption for those religious organizations who do not believe in contraception? The answer is the California legislature did provide such an exception. Let me read the exception. It said that we will exclude from coverage for contraceptive methods that are contrary to their religious tenets. Sounds reasonable. We do that all the time. If it is contrary to religious tenets of a religious organization, they do not have to offer this particular kind of care.

As a Catholic, the tenets of the Catholic Church are that contraceptives are wrong, and therefore they do not want to, according to their religious tenets, offer that service to their employees. Well, this is the California exception for a religious employer: One, the entity whose purpose is the inculcation of religious values. Well, this is Catholic Charities. Is it Catholic Charities' role to inculcate religious values? No. One of the key roles of the Catholic Church is to care for the poor, to care for those who are less fortunate. It is a basic and core value of the church. We hear it repeatedly offered by Members on the other side.

We have discussions about the church and its theology, how core and central helping the poor is. So they do not qualify under that.

Two, that primarily employs persons who share its religious tenets. Well, Catholic Charities does not primarily employ people. They employ people who want to serve the needs of the poor, and they do not ask whether you want to go to church or not at a Catholic Church.

Three, that serves primarily persons who share those religious tenets--in other words, only Catholics. Obviously not. They serve everyone. Mother Teresa is the classic example of a Catholic out on the front lines serving the needs of the poor irrespective of who they are.

Four, and qualifies as a church under a particular section of Federal law. Obviously, Catholic Charities is not a church. Under the religious exception of the California statute, Catholic charities is an arm directly under the control of the bishop, a mission of the church, not a religious organization.

What Justice Brown said was that is an outrage, that is unconstitutional, it is against freedom of religion to suggest that a Catholic organization, Catholic Charities, under that construct, has to offer services in their health care plan. I will agree she was the sole person but that is hardly striking down the rights of women to have contraceptive services. This was an infringement upon the Religious Liberty Protection Act.

I find it very interesting a lot of folks come in here with their scorecards. Well, she voted against consumers this many times, she voted against women this many times, she voted against this, as if judges are supposed to keep a scorecard as to who they vote for and against as opposed to following what the law says.

So if a consumer comes before a judge, they are supposed to be pro- consumer? If a business person comes before a judge, they are supposed to be pro-business? Is that what my colleagues want judges to do, have a scorecard and make sure they are 50-50 on all of these things?

These litmus tests that are being spewed from the other side are a complete undermining of what the rule of law is to be about, about what justice is to be about. They are infusing politics, policy, and partisanship in this process.

We must stop this. We must have up-or-down votes. I hope we do it in a way that does not force us to vote to do that.

Mr. President, how much time do I have?

I wonder how much time the minority will give to me?

I shall proceed.

Mr. President, today I wish to speak about the history of freedom of speech in the Senate, about the cloture rule which, when invoked, limits debate, a bit about the background here that might help all Senators if they care to read or listen, and the people out there who are listening, help them to understand a little more about what this is all about.

It is a matter of very great interest to the country and to the Republicans and to Democrats and to independents, to people from all walks of life. It is in that spirit that I seek to talk just a little while about this subject which is of great concern. I hope to have more to say on another day, but today I will limit myself to talking about the background, what this is all about, and the history that brings us to where we are today.

In recognition that the duty imposed on the President faithfully to execute the law requires persons sympathetic to his program, the Senate traditionally has given the President great leeway in choosing his policymaking subordinates, especially those in his Cabinet and those in sub-Cabinet positions. The Senate has more or less uniformly followed this practice, as a matter of grace and in the spirit of cooperation, to ensure that the executive branch functions as a team in implementing and enforcing the laws.

What has been the fairly general practice with respect to the appointment of executive branch policymakers, however, has not always applied to judicial nominations, and the arguments to the contrary are at odds with the separation of powers doctrine, common sense and history.

The Constitution establishes a Supreme Court and gives Congress the power, in its discretion, to constitute inferior tribunals; nowhere in the blueprint of our Government is it hinted--is it even hinted; nowhere is it even hinted--that the high Court or any other Federal court is the President's court.

Some may say, well, the President should have his own Cabinet. He should have his Cabinet. He should be able to choose his Cabinet. And there is considerable weight to be given to that point of view. But I do not think that any of us should maintain that the President is entitled to have his own court. That is the point.

So nothing in the Constitution suggests that either the Justices or the judges should be the President's men. Let me say that again. Nothing in the Constitution suggests that either the Justices or judges should be the President's men or women, as it were. In fact, the Constitution refutes this notion by granting Federal judges lifetime tenure and by making their compensation inviolable.

The men who met in Philadelphia in that hot summer of 1787 were practical statesmen. They were experienced in politics, statesmen who viewed the principle of separation of powers as a vital check against tyranny. And so I ask, can a rubber stamp be ``a vital check against tyranny''? If the Framers had intended the Senate simply to endorse the President's selections, the Senate could have been left out of the process altogether. Clearly, the men who met at Philadelphia, nearly 219 years ago, had in mind a more substantive role for the Senate.

The Senate has more than once flexed its political muscles to reject a Presidential nominee, including the rejection or withdrawal of 15 Cabinet nominations and 26 Supreme Court nominations. Confirmation power is one of the major constitutional provisions that separates the Senate from

the other body, the House of Representatives. It has been the subject of numerous articles, books, novels, and even motion pictures.

As early as Henry IV, who reigned from 1399 to 1413, English Parliaments effectively controlled the King's royal council and household. Several officials of Henry IV's household were dismissed at the insistence of the House of Commons. Both the household officials and the members of ``the great and continual council'' were named in Parliament.

So I say to the distinguished Senator from Tennessee, who presently presides over the Senate, with a degree of aplomb and grace and dignity that is so rare as a day in June, that the Senate routinely debated nominations in closed session in the beginning.

John Tyler was the first Vice President to become President on the death of the incumbent. Early in the Tyler administration, President Tyler broke with the Whig majority in the Senate, which thereafter frustrated his efforts to appoint his own supporters to office. Nothing in the Senate's history has ever, ever matched the spectacle that occurred on March 3, 1843, the last day of the Senate's session, when President Tyler came to the Capitol, just down the hall, to sign legislation and to submit last-minute nominations.

Tyler nominated Caleb Cushing to be Secretary of the Treasury, not once, not twice, but three times that night. Are you listening? Three times. And each time, the Senate rejected Cushing by an even larger margin than before, the votes being, as recorded in the Senate Executive Journal, 19 for to 27 against, then 10 for to 27 against, and on the third time, 2 for Caleb Cushing and 29 against.

Three times President Tyler named Henry A. Wise to be Minister to France--that same evening--and Wise, too, was thrice rejected.

Senator Thomas Hart Benton reported that ``nominations and rejections flew backwards and forwards in a game of shuttlecock.'' In all--in all--the Senate turned down four of President Tyler's Cabinet nominees: in addition to Cushing, David Henshaw as Secretary of the Navy, James M. Porter as Secretary of War, and James S. Green as Secretary of the Treasury. And that ain't all. The Senate turned down four of President Tyler's nominees to the Supreme Court: John C. Spencer, Reuben H. Walworth, Edward King, and John M. Read. It is a record of rejection unmatched--unmatched--by any other President. What a spectacle.

``History,'' wrote the poet Byron, ``with all her volumes vast, hath but one page.'' Byron was saying there that history does repeat itself, so it only needs one page.

We should do well, then, Mr. President, to look backward into the past where we shall find that due diligence by the Senate in fulfilling its ``advice and consent'' responsibility in the appointment process has been, in Hamilton's words, ``an efficacious source of stability'' in the Government of the Republic.

Mr. President, in his Manual of Parliamentary Practice, Thomas Jefferson quoted ``Mr. Onslow, the ablest among the Speakers of the House of Commons,'' as follows. Here is what Mr. Onslow had to say:

It was a maxim he had often heard when he was a young man,

from old and experienced Members-- like myself--

that nothing tended more to throw power into the hands of

administration, and [into the hands of] those who acted with

the majority of the House of Commons, than a neglect of, or

departure from, the rules--

``the rules''--

of proceeding; that these forms, as instituted by our

ancestors--

yours and mine--

operated as a check and control on the actions of the

majority, and that they were, in many instances, a shelter

and protection to the minority, against the attempts of

power.

Now, Thomas Jefferson himself wrote that whether the rules of a legislative body:

. . . be in all cases the most rational or not is really not

of so great importance. It is much more material that there

should be a rule to go by than what that rule is; that there

may be a uniformity of proceeding in business not subject to

the caprice of the Speaker or captiousness of the members. It

is very material that order, decency and regularity be

preserved in a dignified public body.

Therefore, Mr. President, all legislative bodies need rules to follow if they are to transact business in an orderly fashion, and if they are to operate fairly--I have heard that word used a good bit here-- efficiently, and expeditiously.

On April 7, 1789, the day after a quorum of Senators had appeared--so you see the Senate just goes back to April 6, 1789--a special committee was created to ``prepare a system of rules for conducting business.'' The committee consisted of Senators Oliver Ellsworth of Connecticut, Richard Henry Lee of Virginia, Caleb Strong of Massachusetts, William Maclay of Pennsylvania, and Richard Bassett of Delaware. All five of these committee members were lawyers. Each had served in his State legislature, the procedures of which were indebted to colonial and English experience. Two had served in the Continental Congress, which was also indebted to colonial and English precedents, and three had participated in the Constitutional Convention, whose members had created the Senate.

Obstructive tactics--we have heard a lot about that lately--in a legislative forum, although not always known as filibusters, are of ancient origin. Plutarch reported that when Caesar returned to Rome after his sojourn in Spain, his arrival happened at the time of the election of consuls. ``He applied to the Senate for permission to stand candidate,'' but Cato--Cato the Younger--strongly opposed his request and ``attempted to prevent his success by gaining time; with which view he spun out the debate till it was too late to conclude anything that day.''

The sun went down. That ended the debate.

Filibusters were also a problem in the British Parliament. In 19th century England, even the members of the Cabinet accepted the tactics of obstruction as an appropriate weapon to defeat House of Commons initiatives that were not acceptable to the government.

Now, in this country, I say to the Presiding Officer and the distinguished Senator from Tennessee and my other colleagues, experience with protracted debate began early. In the first session of the First Congress--that is going back quite a ways. I have only lived one-fourth of all the time that has transpired since that First Congress convened. But in the first session of the First Congress, for example, there was a lengthy discussion regarding the permanent site for the location for the capital. How about that. Fisher Ames, a Member of the House from Massachusetts, complained that ``the minority . . . make every exertion to . . . delay the business.'' That is what we are talking about. That sounds like a filibuster, doesn't it? Senator William Maclay of Pennsylvania complained that ``every endeavor was used to waste time.''

That sounds like a filibuster, doesn't it? Well, long speeches and other obstructionist tactics were more characteristic of the House than of the Senate in the early years. So it started over there. But the House, on February 27, 1811, ``decided . . . that after previous question was decided in the affirmative, the main question should not be debated.'' So there you have it. They moved the previous question. That still is done in the other body. The practice of limiting debate dates back to 1604--my, that is over 400 years; that is 401 years--when Sir Henry Vane first introduced the idea in the British Parliament. Known in parliamentary procedure as the ``previous question,'' it is described in section XXXIV of Jefferson's Manual of Parliamentary Practice, as follows. Here is the way Thomas Jefferson explained the previous question:

When any question is before the House, any Member may move

a previous question . . . --

That is the way it is done over in the House, Mr. President: Mr. Speaker, I move the previous question--

whether that question (called the main question) shall now be

put.

Mr. Speaker, they say in the House: I move the previous question.

Jefferson went on to say:

If it pass in the affirmative, then the main question to be

put immediately, and no man may speak anything further to it,

either to add or alter.

That is Thomas Jefferson speaking through his writing. The journals of the Continental Congress record that the previous question was used in 1778. Get that. This is the Continental Congress. When did it first meet? It first

met in 1774, the First Continental Congress. So the journals of the Continental Congress record that the previous question was used in 1778. Section 10 of the rules of the Continental Congress read:

While a question is before the House, no motion shall be

received, unless for an amendment, for the previous question,

to postpone the consideration of the main question, or to

commit to.

The rules adopted by the Senate in April 1789 included a motion for the previous question. According to historian George H. Haynes, when Vice President Aaron Burr delivered his farewell address to the Senate in March 1805--200 years ago--he, Aaron Burr, the Vice President of the United States, ``recommended the discarding of the previous question,'' because in the preceding 4 years during which he had presided over the Senate, it had ``been taken but once, and then upon an amendment.''

So, Mr. President, I say to the Senator from Tennessee, who is presiding, and other Senators, when the rules of the Senate were codified in 1806--that was the first revision of the rules, in 1806-- reference to the previous question was omitted. The previous question allowed the Senate to terminate debate: Mr. President, I move the previous question. Or in the House: Mr. Speaker, I move the previous question. If that gained a majority, no further debate. The previous question will be voted on.

In 1806, when the rules of the Senate were first codified, reference to the previous question was omitted. Since then it had only been used 10 times from the years 1789 to 1806, and it has never--it has never, it has never--been restored.

Henry Clay, in 1841, proposed the introduction of the previous question. Here we have Henry Clay proposing that they bring back the previous question. But he abandoned the idea in the face of opposition. Those Senators did not want the previous question. They did not want to terminate debate. They wanted freedom of speech.

When the Oregon bill was being considered in 1846, a unanimous consent agreement was used as a way to limit debate by setting a date for a vote.

When Senator Stephen Douglas proposed permitting the use of the previous question in 1850, the idea encountered substantial opposition and was dropped--dropped, dropped. They did not want the previous question. They did not want to terminate debate. They wanted to be able to speak on and on and on. A filibuster? Well, perhaps.

An effort to reinstitute the previous question on March 19, 1873, failed by a vote of 25 for to 30 against.

The final impetus for a cloture rule came as a result of a 1917 filibuster, one of the most famous in the Senate annals--against an administration measure permitting the arming of American merchant vessels for the duration of the World War. I believe that was 1915.

On February 26, President Wilson--I was born during one of the administrations of Woodrow Wilson--President Wilson appeared before a joint session of Congress to request legislation authorizing the arming of merchant ships. The President announced that the rules of the Senate would have to be revised--now get this--the rules of the Senate would have to be revised before he would call a special session of the entire Congress to deal with the war emergency. And so, Mr. President, the fate of the unlimited debate was sealed.

The principal responsibility for the cloture resolution rested with the new Democratic majority leader, Thomas Martin of Virginia. Under his guidance, a bipartisan committee of the Senate's leaders drew up a proposal providing that a vote--get this--by two-thirds of those present and voting could invoke cloture on a pending measure. Two- thirds of those present and voting.

By a vote of 76 to 3 on March 8, 1917, after only 6 hours of debate, the Senate adopted its first cloture rule. Mr. President, 1917, that was the year in which I was born.

In 1949 now, President Harry S. Truman sought to clear the way for a broad civil rights program, and his first step was to push for liberalization of the cloture rule. His efforts produced a bitter battle at the beginning of the 81st Congress.

The Senate adopted a compromise measure that proved to be less usable than the one it replaced. It required that two-thirds of this entire Senate vote for cloture rather than two-thirds of those present and voting. That was 1949. The new rule differed from the old in that it allowed cloture to operate on any pending business or motion, with the exception of debate on rules change. This meant that future efforts to change the cloture rule would themselves be subject to extended debate without benefit of the cloture provision.

Now we are getting down into my time. At the beginning of the 86th Congress--I came to Congress during the 83rd Congress when Harry Truman was getting close to the end of his tenure--at the beginning of the 86th Congress, Senate majority leader, Lyndon B. Johnson, offered and the Senate adopted by a 72-to-22 rollcall vote, a resolution to amend Senate rule XXII. Approved on January 12, 1959, after 4 days of debate, the resolution permitted two-thirds of the Senators present and voting--going back to the very beginning of the cloture rule--two- thirds of the Senators present and voting to close debate, even on proposals for rules change. It also added to rule XXII:

The rules of the Senate shall continue from one Congress to

the next Congress unless they are changed and provided in

these rules.

These rules, these rules in this book, the ``Senate Manual.''

On February 28, 1975, I submitted a resolution providing that debate in the Senate be closed by a vote of three-fifths of the Senators duly chosen and sworn, except in the case of a measure or motion to change the rules of the Senate, when a two-thirds vote of Senators present and voting would be required to close debate.

On March 7, 1975, the Senate adopted my substitute providing that three-fifths of all Senators chosen and sworn could invoke cloture. This provision applied to all measures except those amending the rules of the Senate which still required a two-thirds vote of Senators present and voting.

Four years later on February 22, 1979, the Senate agreed to a resolution that I submitted establishing a cap of 100 hours of consideration once cloture had been invoked on a measure.

Under my resolution, each Senator would be entitled to 1 hour of time. Senators could yield their time to the majority or minority floor managers of the bill or to the majority or minority leaders. Except by unanimous consent, none of the designated four Senators could have more than 2 additional hours yielded to him or to her. These Senators in turn could yield their time to other Senators. If all available time expired, a Senator who had not yielded time and who had not yet spoken on the matter on which cloture had been invoked could be recognized for 10 minutes for the sole purpose of debate.

The 1979 resolution made in order only those first-degree amendments submitted by 1 p.m. the day following submission of a cloture motion, with second-degree amendments in order only if submitted in writing 1 hour prior to the beginning of the cloture vote.

The substitute amendment contained the current overall limitation of 30 hours of consideration after cloture has been invoked.

So that brings us up to the present day rules with reference to debate and limitation of debate in the Senate, the current cloture rule. That puts us where we are now, and I thought it would be well just to review briefly the history of unlimited debate in the Senate and then the cloture rule limiting debate--the cloture rule as initially adopted requiring two-thirds of those present and voting; and then in 1949, two-thirds of those elected and sworn; and then again in 1975, two-thirds of those Members present and voting, that is where we are--so that we might have this basis for a better understanding of where we go from here.

I thank you, Mr. President. I thank all Senators, and I yield the floor.

Mr. President, I thank Senator McConnell for his comments and for his leadership in this area. In many respects, I would like to pick up where he left off in the discussion of how did we reach this point. How did the Senate come to where we are going to have to have hours, days, weeks of debate on highly qualified men, women, and minorities for the Federal judiciary?

Most of my colleagues in the Senate know over the years I have been a believer that we should get things done for the American people; that we should have cooperation; that we should vote on these judges up or down and move on; that we need to be working as we did earlier this week to report a highway bill, to get energy legislation, to deal with the very critical and difficult issue of immigration reform, pass appropriations bills, take up other critical issues for the future in our country, the creation of jobs, to promote the continued development in critical high-tech areas such as telecommunications. We have a lot of work to do and yet here we are, stalled out, in my opinion, unnecessarily.

I believe we should reach across the aisle and try to find accommodation. Whether one likes it, that is how the Senate was set up, that is how we work, quite often by consensus. Over the years, when I served in leadership positions, I was quite often criticized by my own colleagues of being too willing to work with the other side to try to find a way to get a result. Then Senator and Minority Leader Tom Daschle and I worked together a lot. At the same time I was being criticized by some of my colleagues, he was being criticized by his colleagues. It is called leadership. It is called dealing with the rules one has and finding a way to work together and move forward.

I have been working for 4 years to figure out what is going on and find a solution that is acceptable to both sides of the aisle.

I worked with Senator Frist and Senator Zell Miller to get a bill out of the Rules Committee some 2 years ago that would set up a process that would get us to a final vote on these nominees. The first vote would be the required 60 and then the second vote 57 and so on down until eventually after about a month we would get a direct vote that I think would have been fair. But, no, the Democrats would not accept that.

So then this year I came back and I started to see if maybe I could work across the aisle with Senators such as Senator Nelson, Senator Pryor, and others to see if we could address some of the legitimate concerns.

This problem did not start 2 years ago or 4 years ago. This has been coming for a long time. I think it began with the nomination of Judge Bork. I think Republicans have retaliated for what they felt was a wrong and then the Democrats retaliated, but always slipping further down this slope of unfairness to these good men and women.

So Senator Nelson and I worked together, and we did come up with a proposal that would guarantee all nominees now and in the future would get reported out of the Judiciary Committee after a specified period of time. In other words, stop the practice, if in fact there was one during the Clinton years, of killing nominations in the Judiciary Committee unless there is clearly justification for it, objection from the in-State Senators, or other reasons, but do not get into the technicalities. Just say we were going to guarantee they would get out of committee, there would be time for full debate up to a week before we could get an up-or-down vote.

Senator Frist actually expanded that and said how about a full 100 hours of debate; every Senator would have an opportunity to talk an hour about any nominee. By the way, I can tell my colleagues, for the majority leader to make a sacrifice of 100 hours of this body's time is a huge sacrifice. It could not be done very much, maybe two or three times a year at the most. So the seven nominees now being held hostage whom we are going to talk about in the next few days, some of them clearly would not make it under that procedure, but it would have gotten to a final vote.

Again, that was rejected by the Democrats because they said, oh, no, we cannot agree to anything that would appear to or in fact give up our right to filibuster these judges. That did not work.

Then, of course, there was the last effort, one that is now still underway, one I am not involved in any longer because I kept feeling we were not going to get an agreement that did not force us to throw over and not even vote or agree to vote down one of these two women, outstanding nominees, for the Federal appellate courts. I will talk more about them individually in a moment.

So again back to the question of how we got here, the debate we find ourselves currently engaged in is a culmination of 4 years of obstructionism by a minority of Senators who refuse to allow the majority of the Senate to fulfill their constitutional responsibilities.

I know we have a lot of people who come to the Senate floor and talk

about the Constitution, pontificate about the forefathers, and that the language is this. I have read the Constitution, I have read the Federalist Papers, I have looked at the history, and clearly these judges should be getting an up-or-down vote.

The Constitution clearly says when they expect a supermajority, and if they do not, then the presumption is a majority would win.

I believe in protecting minority rights. I have been in the minority more in my legislative career of 33 years than I have been in the majority. But there is another little thing: It is called elections and a majority. At some point, we quit talking and we give these people a fair up-or-down vote.

Some people will come to the floor and say, this is the tradition, we must not mess with it; this is something that has been in existence from the very beginning of the history of our country. That is not so. As a matter of fact, filibusters did not get started until World War I.

Oh, people will be surprised at that. You mean we have not had it since the great days of Clay, Webster, and Calhoun? No. As a matter of fact, after a minority of Senators blocked efforts to have an up-or- down vote on a proposal to arm merchant ships during World War I, the Senate adopted its first cloture rule. The cloture rule was later changed on five separate occasions, most recently in 1986.

So these great and hallowed traditions in this institution, if one checks back on them, do not go back very far. This is a living body. Like the Constitution, it is a living, breathing body. It changes. It evolves. We make changes in the rules. That is why when people say, woe is me, doom and gloom, the Senate cannot get through this, whatever we do, it will be cataclysmic--forget it. We have a job to do here. Let us face it like men and women and let us deal with the issue. Let us move on. Let us deal with the substance. Let us deal with the things that matter to people, such as the price of gasoline and the immigration problem, and handle it in a fair way. But this is not something that has been written into the Constitution. No, it is new.

It began, I am sorry to say, with a personal friend of mine, a great man, a great judge named Charles Pickering who had been approved unanimously by the Senate in the past to be a Federal district judge, but when he was nominated for the Fifth Circuit Court of Appeals, we could not get it out of the committee. At that time, the majority, the Democrats, killed his nomination in committee. I was floored. I could not believe it; one of the finest men, one of the finest Christians, one of the finest judges, one of the best unifiers we have ever had in the history of our country probably since LQC Lamar in the 1880s.

He got defeated in committee. I thought at the time it was a shot at me, part of the politics we get around here, and that it would change with time; it was just a gratuitous backhand at me. I can say for sure Senator Daschle, my friend, was not comfortable with what happened there. The majority came back to the Republican side and Judge Pickering came to the floor and he was filibustered. Then it was Miguel Estrada. Then it was Priscilla Owen. Then a pattern developed. That is one reason some people say, look, if there is this option that it only takes 51 votes, why was it not done last year or 2 years ago or 4 years ago? Frankly, because I thought it was an aberration. I thought it was temporary.

I could not believe this institution would besmirch, denigrate, and harass these nominees, turning the Senate not into an august, hallowed body of great deliberation but into a torture chamber, and yet here we are. I have tried to find a way to get out of this. I have tried to accept some of the blame I deserve, but that has already been done.

We have to find a solution now and we have to do it soon. Can a compromise be worked out? Why, of course. They always can, by sundown. That would probably satisfy nobody totally, but everybody a little bit. If it does not happen, we have to get this over with. We have to vote.

So what I thought was going to be an isolated incident now has become extreme. It has become systematic. It has become highly partisan. We have to deal with it. We probably should have already dealt with it.

As majority leader, I worked closely with Senator Daschle to ensure each nominee who reached the Senate floor received an up-or-down vote. Some people said, all the judges did not get out of committee. The leaders do not dictate to the committees. We do not dictate to one Senator, let alone a committee of Senators. But when it came to the floor, through thick or thin and however difficult it was, we got it done, we got them confirmed.

I will give an example. I filed cloture personally on President Clinton's nominee to the Federal district court in Utah, Brian Theodore Stewart. A cloture vote was in fact held to cut off an unnecessary and unfair filibuster on September 21, 1999. I voted for cloture to cut off the filibuster for this nominee because I believed, as I believe now, that it was important to hold an up-or-down vote on a nomination after it reached the Senate floor.

Additionally, I would like to mention two other controversial nominees to the Ninth Circuit Court of Appeals nominated by President Clinton. Marsha Berzon and Richard Paez both had very serious problems that were raised during their nominations and that concerned Senators. Their nominations were certainly highly contentious, and the process was very slow. However, they did eventually come out of the Judiciary Committee and at the appropriate time I rose to file for cloture on both of these nominees in an effort to move the process forward toward a vote, against the wishes of a number of Members of my own caucus. I stood right there and said we are not going to filibuster Federal judicial nominees; we are not going to do it. If they come out of the committee, they are going to get an up-or-down vote. Now, I may vote against them but not on my watch are Republicans going to filibuster these nominees.

On March 8, 2000, the Senate voted 86 to 13 to 1 to invoke cloture to cut off the filibuster on the nomination of Judge Berzon. Her nomination was confirmed the following day by a vote of 64 to 34 to 2.

Also on March 8, 2000, the Senate voted 85 to 14 to 1 to invoke cloture on the nomination of Richard Paez. The next day, March 9, 2000, a motion to postpone indefinitely a vote on Paez was defeated 67 to 31 to 2. By the way, in the interest of full disclosure, I voted to delay it. I do not remember why, and I am embarrassed. I should not have. An indefinite postponement is the same as a filibuster. That was wrong. We should not have done it. He was later approved that very day 59 to 39 to 2.

These two now serve in the Federal judiciary. They had lots of problems, in my mind, which I will not enumerate. There is no use rehashing that. But this is proof of the evidence when Republicans say we did not do it when we could have during the Clinton years, we did not allow filibusters. The number of President Clinton's judges who were blocked by filibusters, zero. Not under my watch or others'.

I think it is time we bring this to conclusion. I think if we could ever get a time out, if we could ever find a way to stop the filibusters, deal with the magnificent seven that are still pending, this would fade away. That is the way it happens in the Senate.

Oh, the clash is mighty and the roar is deafening. ``There is no way out of this valley of death.'' That is when it always seems to happen, that we find a way to stop the craziness and move forward in a responsible way.

I have to talk a little bit about the nominees. I have met with some of them. I direct your attention to this picture. Why does he have a picture? I want to make a point. These are not numbers. These are not seven things. These seven nominees who have been renominated by the President are men and women and minorities who have had their reputations and their lives dragged through the mud--this one, Priscilla Owen, for up to 4 years.

Maybe you could analyze the seven and say, that one has a little problem or that one has a little problem. I don't say they are perfect. None of us are. But I am telling you, you can't get much closer to perfect than this nominee, Priscilla Owen. That is why I could never agree to any deal that did anything but allow this lady to have an up- or-down vote on her nomination.

She is from Texas. Maybe that is part of the problem, I don't know. She serves on the Texas Supreme Court. It seems like a good training ground before you move to the Federal judiciary. She graduated cum laude from Baylor University and cum laude from Baylor University Law School. She was a member of the Baylor Law Review. She was honored as the Baylor Young Lawyer of the Year, Baylor University Outstanding Young Alumna. After graduating from law school, she scored the highest score in the State when she took the Texas bar exam in 1977.

She practiced law with one of the most prestigious law firms in the State of Texas, mostly commercial litigation, for 17 years. She has been on the Supreme Court of Texas for 10\1/2\ years, and the last time she ran she was endorsed by every major newspaper in the State and she received 84 percent of the vote.

She has ruled hundreds of times, not always on the business side, sometimes on the consumer side. She has had to interpret law that has been difficult, but she has done it. She has done it fairly. She has done it most often with the majority of the court.

By the way, even that hallowed American Bar Association--that I used to be a member of, but I dropped my membership for a number of reasons--gave her its highest rating.

When you look at this lady's record, her brilliance, her family-- every way she has conducted herself, there is no justification for her not being confirmed or at least getting a vote.

I am not going to go through the charges that are levied against her, partially because some of them are so bizarre and so ridiculous, but also because I have seen around here that if you repeat a misstatement often enough, it becomes fact. Here is an example. Justice Owen has been accused by some of the people here because of the fact that Justice Alberto Gonzales--now the Attorney General, then a supreme court justice in Texas--accused her of being engaged in an ``unconscionable act of judicial activism'' in one particular parental notice case where abortion was involved and she was interpreting a State law. That happened even though Justice Gonzales said that was not the case, that his words were twisted and misconstrued. When he said that, for him, in his concurring opinion, it would be an ``unconscionable act of judicial activism'' for any judge to bend the statute to advance his or her own personal views, even though ``the ramifications of such law and the results of the court's decision may be personally troubling,'' he was talking about himself.

This is not a gratuitous shot at his colleague sitting on the bench, and he has tried to clarify it. It makes no difference. It continues to be repeated as fact among those who oppose this nomination.

Look at this face. This lady has been through 4 years of hell. Why? I just don't get it.

Somebody said she has a pro-business voting record. Is that something sinister? She has ruled, for instance, that patients who are injured should be able to pursue doctors. She has ruled on occasion for consumers. But, my goodness, is it an indictment if you are pro- business? I am the son of a shipyard pipefitter, union member, but I am pro-business because I figured out, like my daddy knew, if business didn't make a profit, if they went out of business, he was out of a job.

So, there, she deserves a vote up or down. She will make a great Federal judge.

This one is even more hard to explain to me. Janice Rogers Brown. I am not going to give her American dream story, but she has lived it: Born in Alabama, family moved to Sacramento when she was still in elementary school. She grew up in California, got an education, and worked hard. She graduated from California State University at Sacramento, with a bachelor in economics and received a law degree from UCLA Law School. She has served as Legal Affairs Secretary to Pete Wilson, the Governor of the State of California, Deputy Attorney General in the office of the California Attorney General, and she served on an intermediate California appellate court. She has been on the bench long enough where she has been appointed and sought reelection and she got 76 percent of the vote in California on reelection.

That is not exactly a center or a center right constituency. They must have thought she was doing a good job; the first African-American woman in history on the Supreme Court of California. A great record.

The American dream has been lived for this lady. Two days ago, when she came by my office, I apologized to her on behalf of the American people for the way the Senate has treated her. I am ashamed of what we did. What is the criticism?

One of them, she is harsh on criminal defendants. Excuse me? The truth is, she is a conservative African-American woman. This is bad. ``How can we allow that to happen? That can't be.'' She has had some things to say in her remarks off the bench, that some of the Federal programs have had a counter-effect, not a positive effect. But she has been described by others as being brilliant and fair. Even a columnist who was being critical of her recently admitted that her opinions are consistently the most concise, engaging, well organized, and well reasoned.

She wrote the majority of the decisions in 2002 for the California Supreme Court. She is writing with the majority. Again, this face is a human being. This is not a number. This lady has been tangled up in partisan politics for 2 years. This is wrong.

That is why when people say to me, Oh, the institution will be damaged, my colleagues, I think we maybe protest too much, and we puff ourselves up a little bit too much. By the way, there are some things more important than the rules of an institution. I still think right and wrong should apply, just as it should in every other phase of our lives.

What has happened to this lady, and this one, is wrong. I cannot be a part of a process that doesn't give them the vote that they deserve, up or down--now. If they are not confirmed, so be it. I have voted on the winning side and on the losing side. I have voted for judges and against judges. Most often they have been confirmed; occasionally not, and I have been berated by Democrats sometimes when I voted against some of the nominees. But the process used to work. It is broken now. Let's fix it. Let's fix it now. Let's do our job. Let's vote.

Mr. President, I yield the floor.

Mr. President, before I object, I could not hear the Senator.

Mr. President, on behalf of the Democratic leader, myself and, I might add, others on this side, because of the importance of the debate that is taking place on the Senate floor today, the Senate's attention ought to be turned to this and not to committee meetings, and therefore I object.

Mr. President, I yield myself such time as I may consume.

I rise today to speak about the prospect that at some point next week, according to all of the press reports and according to what I have heard on the floor, the majority leader of the Senate will take a course of action that has been dubbed the ``nuclear option.''

The majority leader will take a course of action that will tear down the rules by which we operate in the Senate, rules which have been laid down in some cases for almost 200 years, in some cases over 100 years.

I believe we should be taking our time in the Senate because of the effects that this step by the majority leader could have on how we represent our constituents. It can have such a profound effect that it behooves us all to think very deeply and carefully about it and to come to the floor to express our opinions.

By triggering this nuclear option, the majority leader would unleash forces he would regret and that everyone who loves this great Nation and its system of checks and balances would regret.

There is no question that by breaking the rules--that is what would happen, breaking the rules--the majority party would gain short-term advantage. They would be able to confirm every one of their judicial nominees, no matter how radical or out of the mainstream. But the long- term destructive consequences triggering the nuclear option would be profound for our system of Government.

For more than two centuries, Senate rules and traditions have respected the rights of the minority. That would be destroyed. For more than two centuries, thanks to those minority rights, the Senate has been a force for compromise, moderation, and reason. That would be destroyed.

For more than two centuries, the minority's power in the Senate has been essential to America's system of checks and balances. That would be destroyed. And something else of great importance would be destroyed: Respect for rules.

Playing by the rules is the American way. It is one of our core values. From childhood, we are taught to respect the rules, to follow the rules, to play by the rules. We are taught it is dishonorable to break the rules or to change the rules in the middle of the game, especially to gain an advantage or simply to win. Ask any child, and he or she will say that breaking the rules or changing the rules in the middle of the game is not only unfair, it is wrong.

America is a great country because playing by the rules and respecting rules is a core value. It is a way of life. It is at the heart of our athletics, our business dealings, our way of government. It is no exaggeration to say that if one destroys the idea of playing by the rules, then they invite distrust, disorder, and the disintegration of the American social fabric. They invite chaos, and chaos invites tyranny.

This is exactly why the Republican leadership's plan to resort to the nuclear option is so dangerous. Since 1790, the filibuster has been used in the Senate countless times, and nearly 100 years ago the Senate passed rule XXII, codifying the right of extended debate. We know what that rule says. It says that it takes 67 votes to change the Senate rules and 60 votes to cut off debate. Those are the rules. They are deeply conservative rules, rules that have been respected and honored for nearly a century, until now.

The Republican leadership is unhappy because a small number of judges, all of them I consider far out of the mainstream, have been filibustered by the minority. They are unhappy because they have been able to confirm only 95 percent of the President's judicial nominees and not 100 percent. This compares to only an 80-percent confirmation rate during the Clinton administration. The Republicans blocked 68 Clinton judicial nominees, including, I might add, Bonnie Campbell, from my State of Iowa.

Most of those nominees were blocked in the Judiciary Committee by just one Senator. Now, does the Republican leadership celebrate the fact that by playing by the rules they won 95 percent of the time? Do they now play by the rules and gather the votes necessary to change rule XXII governing filibusters? No.

They are going to employ a trick, a procedure, whereby the rules are overturned by one decision of the Presiding Officer backed by 51 votes. That will destroy the rules of the Senate. Now they say: Well, it only applies to judges now. It can apply to anything else down the pike.

Now, a mere 10 Bush nominees have been blocked, and what is the Republican leadership's response? It is to destroy the rules. Sweep aside more than 200 years of Senate tradition. In its place, they will make up their own rules, a new rule, that will allow them or any majority to change any rule at any time for any reason with only 51 votes. In other words, once the nuclear option is detonated and a new Senate precedent is established, this body will be subject to the whim of any group of 51 Senators who want to impose their will without any provisions for extended debate. Make no mistake, this will be the end of the Senate as we know it.

How ironic that this is being done by Senators who call themselves conservative. The truth is that resort to the nuclear option, breaking the rules, making up new rules convenient to the leadership, is a radical, unprecedented action with consequences that no one can predict. Because once the rules are broken and rules are made up as one goes along, seeds of anarchy, of chaos, are sown. An atmosphere of anything goes is created, and the end justifies the means.

We have already seen this in the actions of House Majority Leader Tom DeLay. We have an honored tradition that congressional redistricting occurs every 10 years after the decennial census, but the majority leader in the House wanted to increase his majority in the House. So what did he do? He tore up the rules and made up new rules, Tom DeLay's rules. But the real Tom DeLay rule is this: Anything goes. The end justifies the means. Situational ethics. I fear we are about to adopt that Tom DeLay rule in the Senate. This is profoundly bad news for this institution.

I am also concerned about the message it sends to businesspeople, to husbands and wives, to our people. The message is if our national leaders can break the rules as a matter of convenience, if they can write their own rules, impose them on others, then maybe it is okay for everyone else to behave just like that.

This is a deeply disturbing prospect. I implore the distinguished majority leader, Senator Frist, to consider the law of unintended consequences. He is threatening to break rule XXII in order to pass 100 percent of the President's judicial nominees. Once the rule is destroyed, and once the majority leader imposes a new rule to his liking, then who is to say where it will lead? It will be like an out- of-control virus. If 51 Senators can change any rule at any time for any reason, then anything is possible. The metaphor Senators are using is a ``nuclear option,'' and I would say that is true, it is nuclear because it does blow up this place. But there may be another metaphor, too: that the majority leader is letting the genie out of the bottle and there will be no putting that genie back once it is out. It will wreak destruction in ways no one now can predict or foresee.

For example, once the Chair can make a determination about the rules and have that ruling upheld by 51 votes of the Senate, what is to say of the time-honored tradition we have in the Senate of a Senator being able to have the right of the floor and being able to speak for as long as he or she wants? That has been our right since the

founding of the Senate. Once a Senator is recognized, that Senator can speak until they drop. I think the record is 24 or 25 hours, by former Senator Strom Thurmond.

Who is to say if, in the future, someone gets up to speak but people want to move on and do something, that after that person speaks for 5 or 10 hours the majority leader would be recognized and make a point of order that the person is speaking unconstitutionally? They have the 51 votes to uphold the motion and that is the end of it. So a Senator's right to have the floor is subject to whatever the Chair wants. We may get it; we may not. We may not be able to speak for an hour or 2 hours or whatever we want. The Chair may say to the Senator from Iowa, You can speak for 3 minutes and then you have to sit down.

They do that in the House of Representatives. They have a 5-minute rule. I know, I served there. But that is not the Senate.

I am just saying who knows what might happen. It is possible. If we go down this road that is the precedent that is set.

I do not know why the majority leader is doing this. Possibly what we are seeing here is an attempt to seize absolute power and unchecked control of all three branches of Government. The Republicans already control the executive branch. A majority of Supreme Court Justices are Republican nominees. So are the majority of judges on our Courts of Appeal, the circuit courts. Indeed, there is a Republican majority on 10 of the 12 circuits. Republicans have an iron grip on the House of Representatives. They have a 55-seat majority here in the Senate. Only one barrier now stands in the way of the Republican Party seizing absolute control of every aspect of our Government, all three branches, and that is the right of the minority in the Senate to filibuster.

By unleashing the nuclear option, the Republican leadership would crush this last remaining check on its power. The filibuster is a more than 200-year-old tradition in the Senate; it has withstood the test of time.

I do not believe the nuclear option reflects the desires or values of the American people. Americans are extremely wary of one-party dominance and control. This is a prime reason why so many voters split their ballots In the election last November. Republicans won the White House with less than 51 percent of the popular vote. The Republicans have a 52-percent majority in the House. They have a 55-percent majority here in the Senate. But they want to seize 100-percent control of the Government, including the third branch, the judicial branch.

It is not healthy for our country. It is not healthy for our democracy. I do not believe for 1 minute this power grab reflects the wishes of the American people. When it comes to government, there are certain values and principles that the vast majority of Americans share. We prize our system of checks and balances. We respect minority rights and dissent. We want to ensure that minorities are protected. We understand the danger of majorities acting without check or restraint, running roughshod over those who would disagree.

As a well-known minister once said:

Democracy exists not just when the majority rules, but when

the minority is absolutely safe.

The rules of the Senate and the rule of extended debate

give the minority that absolute safety. You take that away

and you take away the minority rights in the Senate. Most

Americans understand that checks and balances are the key to

preserving our liberty.

James Madison wrote:

The accumulation of all powers, legislative, executive and

judiciary, in the same hands may justly be pronounced the

very definition of tyranny.

But that is exactly the goal of the Republican leadership today. They seek the accumulation of all power--legislative, executive, and judiciary--in the same hands, their hands. This is profoundly dangerous. By resorting to the nuclear option, the majority would break the rules in order to change the rules. Under the rules of the Senate, it takes 67 votes to change the rules, 60 votes to end debate on a judicial nominee. But by resorting to this parliamentary gimmick, this nuclear option, the majority would change this rule with only 51 votes. The result would be to destroy any check or restraining influence on the power of the majority. This is not the American way. It is certainly not the wishes of the American people.

In debate in the Constitutional Convention in Philadelphia, James Madison said the Senate would have two roles:

first, to protect the people against their rulers,

secondly, to protect the people against the transient

impressions into which they themselves might be led.

By attacking the filibuster, the Republican leaders would destroy the ability of the Senate to ``protect the people against their rulers.'' The Senate would lose its capacity to stand up to an out-of-control majority. Instead, the Senate would be turned into a rubberstamp for the majority's agenda, just as the House is a rubberstamp for the majority's agenda right now. That would be a betrayal of the Senate's traditional role as envisioned by the Founding Fathers.

The Constitution gave Senators 6-year terms so they would not bend to the political passions of the moment. I remind my colleagues of the famous exchange between Thomas Jefferson and George Washington. On his return from France, Jefferson asked Washington at the breakfast table why he favored the creation of a second Chamber, the Senate.

Washington replied with the question, ``Why did you pour that coffee into your saucer?''

Jefferson said, ``To cool it.''

To which Washington reportedly said: ``Even so we pour legislation into the senatorial saucer to cool it.''

For two centuries that is exactly how the Senate has worked. Because of the tradition of free speech and minority rights, specifically because of the threat of filibuster, Senators have a strong incentive to act with moderation and restraint, to make compromises, to accommodate the legitimate concerns of the minority. That is exactly what the nuclear option would demolish.

The majority party in the Senate, whether Democratic or Republican, has always been frustrated by the minority's use of the filibuster. But I submit that frustration is the necessary byproduct of an effective system of checks and balances. It is the price we pay to safeguard minority rights.

For decades, a determined conservative minority used the filibuster to block civil rights legislation and deny an up-or-down vote to a liberal Supreme Court nominee, Abe Fortas. Progressives were extremely frustrated by this exercise of minority rights and minority power.

Now it is the Republicans' turn to be frustrated by the filibuster. They are frustrated because they can't get their way on judges 100 percent of the time. They have gotten their way on 95 percent of judicial nominees, but not 100 percent, and they believe this justifies breaking the rules, to get rid of the filibuster.

I submit the Republicans' very frustration is evidence that the system of checks and balances here in the Senate is healthy and working, working exactly as it should.

In 1995, I proposed to modify rule XXII in a way that would have given the minority an incentive to limit the use of the filibuster. It would not have taken it away. However, my proposal bore no resemblance to the nuclear option. First, I did not propose to break the Senate rules. I played strictly by the rules. I pursued my rule change through normal Senate procedures as a floor amendment. It would have taken the requisite 67 votes to pass on the floor, which is entirely appropriate when changing a time-honored Senate rule. By contrast, this nuclear option discards the rules. It would impose the Republicans' radical change with only 51 votes.

Ten years ago I proposed to modify the filibuster rule as a matter of principle. Today the Republican leadership wants to modify the filibuster as a matter of political expedience, to make it possible to stack the courts with radical judges. They are pursuing unchecked power, the absolute control of all three branches of Government. In this context, the filibuster takes on even new importance.

It is all that remains to check the majority's quest for absolute power.

By the way, I might note parenthetically that 24 current Republican Senators actually voted against my proposed change to the filibuster back in 1995. The distinguished majority leader, Mr. Frist, was one of those Republicans opposing any change to the filibuster. Indeed, as has been noted time and time again, the majority leader voted in the year 2000, 5 years ago, to sustain a filibuster of a Clinton nominee, as did many other Republicans.

Those same Republicans, who now say President Bush's judicial nominees have a constitutional right to an up-or-down vote on the Senate floor, denied that alleged right to scores and scores of President Clinton's judicial nominees, including, as I said earlier, a distinguished Iowan, Bonnie Campbell. Ms. Campbell, a former Iowa attorney general, respected Justice Department official, was nominated for the Eighth U.S. Circuit Court, but her nomination was blocked in committee.

Let's be clear. If the issue is denying nominees an up-or-down vote by the full Senate, there is no practical difference whatsoever between blocking a nominee in committee or by filibuster on the floor. During the Clinton years, Republicans blocked judicial nominees again and again and again. They did it in committee, they did it by blue slip, or they blocked them on the floor. It didn't matter. But the nominees were denied an up-or-down vote on the floor of the Senate.

The nuclear option is a flagrant abuse of power. The minority party, the Democrats, will resist it vigorously within the rules of the Senate. We have a responsibility, an oath of office to defend our constitutional system of checks and balances. We have a responsibility to defend the Senate's unique function as the last bastion of minority rights, as the last check on an abusive, out-of-control majority.

But this should not be just the responsibility of the minority party. It should be the responsibility of all Senators who respect the rules and traditions of this body. It should be the duty of all Senators who value our democratic principles, our system of checks and balances, protection of minority rights.

The very nature of the Senate as an institution is at stake. More than that, the very nature of how we operate as a government is at stake. As I said, when you destroy the rules by not following the rules, you invite chaos. Chaos invites tyranny. This is the time to look beyond party, to look beyond short-term partisan advantage.

I have every hope there will be enough Senators, Democrats and Republicans alike, to disarm this destructive nuclear option. I have every hope that a critical mass of Senators will be true to the rules and traditions of this body and that we will act to preserve the integrity and independence of this great institution.

I yield the floor.