Floor Statements

Mr. President, I rise today to speak at some length, if time will permit me, about the same subject my friend from Washington State so eloquently addressed. My colleagues know that although when I speak, I sometimes get very passionate, I have not very often, in past years, risen to the floor for any extended period of time. I do that today because so much is at stake.

For over 200 years, the Senate has embodied the brilliance of our Founding Fathers in creating an intricate system of checks and balances among the three branches of Government. This system has served two critical purposes, both allowing the Senate to act as an independent, restraining force on the excesses of the executive branch, and protecting minority rights within the Senate itself. The Framers used this dual system of checks and balances to underscore the independent nature of the Senate and its members.

The Framers sought not to ensure simple majority rule, but to allow minority views--whether they are conservative, liberal, or moderate--to have an enduring role in the Senate in order to check the excesses of the majority. This system is now being tested in the extreme.

I believe the proposed course of action we are hearing about these days is one that has the potential to do more damage to this system than anything that has occurred since I have become a Senator.

History will judge us harshly, in my view, if we eliminate over 200 years of precedent and procedure in this body and, I might add, doing it by breaking a second rule of the Senate, and that is changing the rules of the Senate by a mere majority vote.

When examining the Senate's proper role in our system of Government generally and in the process of judicial nominations specifically, we should begin, in my view, but not end with our Founding Fathers. As any grade school student knows, our Government is one that was infused by the Framers with checks and balances.

I should have said at the outset that I owe special thanks--and I will list them--to a group of constitutional scholars and law professors in some of our great universities and law schools for editing this speech for me and for helping me write this speech because I think it may be one of the most important speeches for historical purposes that I will have given in the 32 years since I have been in the Senate.

When examining the Senate's proper role in our system of Government and in the process of judicial nominations, as I said, we have to look at what our Founders thought about when they talked about checks and balances.

The theoretical underpinning of this system can be found in Federalist 51 where the architect of our Constitution, James Madison, advanced his famous theory that the Constitution set up a system in which ``ambition must be made to counteract ambition.''

``Ambition must be made to counteract ambition.'' As Madison notes, this is because ``[The] great security against a gradual concentration of the several powers in the same department consists in giving those who administer each department the necessary constitutional means and personal motives to resist encroachments by the other.''

Our Founders made the conscious decision to set up a system of government that was different from the English parliamentary system-- the system, by the way, with which they were the most familiar. The Founders reacted viscerally to the aggrandizement of power in any one branch or any person, even in a person or body elected by the majority of the citizens of this country.

Under the system the Founders created, they made sure that no longer would any one person or one body be able to run roughshod over everyone else. They wanted to allow the sovereign people--not the sovereign Government, the sovereign people--to pursue a strategy of divide and conquer and, in the process, to protect the few against the excesses of the many which they would witness in the French Revolution.

The independence of the judiciary was vital to the success of that venture. As Federalist 78 notes:

The complete independence of the courts of justice is

peculiarly essential in a limited Constitution.

Our Founders felt strongly that judges should exercise independent judgment and not be beholden to any one person or one body. John Adams, in 1776, stated:

The dignity and stability of government in all its

branches, the morals of the people,

and every blessing of society, depend so much upon an upright

and skillful administration of justice, that the judicial

power ought to be distinct from both the legislative and

executive, and independent upon both, that so it may be a

check upon both, as both should be checks upon that.

Adams continues:

The judges, therefore, should always be men of learning and

experience in the laws, of exemplary morals, great patience,

calmness and attention; their minds should not be distracted

with jarring interests; they should not be dependent upon any

one man or any body of men.

In order to ensure that judicial independence, the very independence of which Adams spoke, the Founders did not give the appointment power to any one person or body, although it is instructive for us, as we debate this issue in determining the respective authority of the Senate and the Executive, it is important to note that for much of the Constitutional Convention, the power of judicial appointment was solely--solely--vested in the hands of the legislature. For the numerous votes taken about how to resolve this issue, never did the Founders conclude that it should start with the Executive and be within the power of the Executive. James Madison, for instance, was ``not satisfied with referring the appointment to the Executive;'' instead, he was ``rather inclined to give it to the Senatorial branch'' which he envisioned as a group ``sufficiently stable and independent'' to provide ``deliberative judgments.''

It was widely agreed that the Senate ``would be composed of men nearly equal to the Executive and would, of course, have on the whole more wisdom'' than the Executive. It is very important to point out that they felt ``it would be less easy for candidates''--referring to candidates to the bench--``to intrigue with [the Senators], more than with the Executive.''

In fact, during the drafting of the Constitution, four separate attempts were made to include Presidential involvement in judicial appointments, but because of the widespread fear of Presidential power, they all failed. There continued to be proponents of Presidential involvement, however, and finally, at the eleventh hour, the appointment power was divided and shared, as a consequence of the Connecticut Compromise I will speak to in a minute, between the two institutions, the President and the Senate.

In the end, the Founders set up a system in which the President nominates and the Senate has the power to give or withhold--or withhold--its ``advice and consent.'' The role of ``advice and consent'' was not understood to be purely formal. The Framers clearly contemplated a substantive role on the part of the Senate in checking the President.

This bifurcation of roles makes a lot of sense, for how best can we ensure that an independent judiciary is beholden to no one man or no one group than by requiring two separate and wholly independent entities to sign off before a judge takes the bench?

There is a Latin proverb which translates to ``Who will guard the guardians?'' Our judges guard our rights, and our Founders were smart enough to put both the President and the Senate, acting independently, in charge of guarding our judicial guardians. Who will guard the guardians?

As a Senator, I regard this not as just a right but as a solemn duty and responsibility, one that transcends the partisan disputes of any day or any decade. The importance of multiple checks in determining who our judges would be was not lost on our Founders, even on those who were very much in favor of a strong Executive.

For example, Alexander Hamilton, probably the strongest advocate for a stronger Executive, wrote:

The possibility of rejection [by the Senate] would be a

strong motive to [take] care in proposing [nominations. The

President] . . . would be both ashamed and afraid to bring

forward . . . candidates who had no other merit, than that .

. . of being in some way or other personally allied to him,

or of possessing the necessary insignificance and pliancy to

render them the obsequious instrument of his pleasure.

Hamilton also rebutted the argument that the Senate's rejection of nominees would give it an improper influence over the President, as some here have suggested, by stating:

If by influencing the President be meant restraining him,

this is precisely what must have been intended. And it has

been shown that the restraint would be salutary.

The end result of our Founders was a system in which both the President and the Senate had significant roles, a system in which the Senate was constitutionally required to exercise independent judgment, not simply to rubberstamp the President's desires.

As Senator William Maclay said:

[W]hoever attends strictly to the Constitution of the

United States will readily observe that the part assigned to

the Senate was an important one--no less that of being the

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

speak, the balance of this government. . . .The approbation

of the Senate was certainly meant to guard against the

mistakes of the President in his appointments to office . . .

The depriving power should be the same as the appointing

power.

The Founders gave us a system in which the Senate was to play a significant and substantive role in judicial nominations. They also provided us guidance on what type of legislative body they envisioned. In this new type of governance system they set up in 1789 where power would be separated and would check other power, the Founders envisioned a special unique role for the Senate that does not exist anywhere else in governance or in any parliamentary system.

There is the oft-repeated discussion between two of our most distinguished Founding Fathers, Thomas Jefferson and George Washington. Reportedly, at a breakfast that Jefferson was having with Washington upon returning from Paris, because he was not here when the Constitution was written, Jefferson was somewhat upset that there was a bicameral legislative body, that a Senate was set up. He asked Washington: Why did you do this, set up a Senate? And Washington looked at Jefferson as they were having tea and said: Why did you pour that tea into your saucer? And Jefferson responded: To cool it.

I might note parenthetically that was the purpose of a saucer originally. It was not to keep the tablecloth clean.

Jefferson responded: To cool it, and Washington then sagely stated: Even so, we pour legislation into the senatorial saucer to cool it.

The Senate was designed to play this independent and, I might emphasize, moderating--a word not heard here very often--moderating and reflective role in our Government. But what aspects of the Senate led it to become this saucer, cooling the passions of the day for the betterment of America's long-term future? First, the Founders certainly did not envision the Senate as a body of unadulterated majoritarianism. In fact, James Madison and other Founders were amply concerned about the majority's ability, as they put it, ``to oppress the minority.'' It was in this vein the Senate was set up ``first to protect the people against their rulers; secondly, to protect the people against the transient impressions into which they themselves might be led. . . .The use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.''

Structurally, the Founders set up a ``different type of legislature'' by ensuring that each citizen--now here is an important point, and if anybody in this Chamber understands this, the Presiding Officer does-- the Founders set up this different type of legislative body by ensuring that each citizen did not have an equal say in the functioning of the Senate--that sounds outrageous, to ensure they did not have an equal say--but that each State did have an equal say. In fact, for over a century, Senators were not originally chosen by the people, as the Presiding Officer knows, and it was not until 1913 that they were elected by the people as opposed to selected by their State legislative bodies.

Today, Mr. President, you and I do stand directly before the people of our State for election, but the Senate remains to this day a legislative body that does not reflect the simple popular majority because representation is by States.

That means someone from Maine has over 25 times as much effective voting power in this body as the Senator from California. An interesting little fact, and I do not say this to say anything other than how the system works, there are more desks on that side of the aisle. That side has 55. Does that side of the aisle realize this side of the aisle, with 45 desks, represents more

Americans than they do? If we add up all the people represented by the Republican Party in the Senate, they add up to fewer people than the Democratic Party represents in the Senate. We represent the majority of the American people, but in this Chamber it is irrelevant and it should be because this was never intended in any sense to be a majoritarian institution.

This distinctive quality of the Senate was part of that Great Compromise without which we would not have a Constitution referred to as the Connecticut Compromise. Edmund Randolph, who served as the first Attorney General of the United States and would later be Secretary of State, represented Virginia at the Constitutional Convention, and in that context he argued for fully proportionate representation in the debates over the proper form of the legislative branch, but ultimately he agreed to the Connecticut Compromise. After reflection, that so seldom happens among our colleagues, myself included, he realized his first position was incorrect and he stated:

The general object was to provide a cure for the evils

under which the United States labored; that in tracing these

evils to their origin every man--

Referring to every man who agreed to the compromise--

had found it in the turbulence and follies of democracy;

that some check therefore was to be sought against this

tendency of our Governments; and that a good Senate seemed

most likely to answer this purpose.

So the Founders quite intentionally designed the Senate with these distinctive features.

Specifically, article 1, section 5 of the Constitution states that each House may determine its own rules for its own proceedings. Precisely: ``Each House may determine the Rules of its Proceedings.'' The text contains no limitations or conditions. This clause plainly vests the Senate with plenary power to devise its internal rules as it sees fit, and the filibuster was just one of those procedural rules of the many rules that vest a minority within the Senate with the potential to have a final say over the Senate's business.

It was clear from the start that the Senate would be a different type of legislative body; it would be a consensus body that respects the rights of minorities, even the extreme minority power of a single Senator because that single Senator can represent a single and whole State. The way it is played out in practice was through the right of unlimited debate.

I find it fascinating, we are talking about the limitation of a right that has already limited the original right of the Founding Fathers. The fact was there was no way to cut off debate for the first decades of this Republic.

Joseph Story, famous justice and probably one of the best known arbiters of the Constitution in American history, his remark about the importance of the right of debate was ``the next great and vital privilege is the freedom of speech and debate, without which all other privileges would be comparatively unimportant, or ineffectual.'' And that goes to the very heart of what made the Senate different.

In the Senate, each individual Senator was more than a number to be counted on the way to a majority vote, something I think some of us have forgotten. Daniel Webster put it this way:

This is a Senate of equals, of men of individual honor and

personal character, and of absolute independence. We know no

masters, we acknowledge no dictators. This is a hall for

mutual consultation and discussion; not an arena for the

exhibition of champions.

Extended debate, the filibuster, was a means to reach a more modest and moderate result to achieve compromise and common ground to allow Senators, as Webster had put it, to be men--and now men and women--of absolute independence.

Until 1917, there was no method to cut off debate in the Senate, to bring any measure to a vote, legislative or nomination--none, except unanimous consent. Unanimous consent was required up until 1917 to get a vote on a judge, on a bill, on anything on the Executive Calendar. The Senate was a place where minority rights flourished completely, totally unchecked, a place for unlimited rights of debate for each and every Senator.

In part this can be understood as a recognition of our federal system of government in which we were not just a community of individuals but we were also a community of sovereign States. Through the Senate, each State, through their two Senators, had a right to extensive debate and full consideration of its views.

For much of the Senate's history, until less than 100 years ago, to close off debate required not just two-thirds of the votes, but it required all of the votes. The Senate's history is replete with examples of situations in which a committed minority flexed its ``right to debate'' muscles. In fact, there was a filibuster over the location of the Capitol of the United States in the First Congress. But what about how this tradition of allowing unlimited debate and respect for minority rights played out in the nomination context, as opposed to the legislative process?

First, the text of the Constitution makes no distinction whatsoever between nominations and legislation. Nonetheless, those who are pushing the nuclear option seem to suggest that while respect for minority rights has a long and respected tradition on the legislative side of our business, things were somehow completely different when it came to considering nominations. In fact, it is the exact opposite.

The history of the Senate shows, and I will point to it now, that previous Senates certainly did not view that to be the case. While it is my personal belief that the Senate should be more judicious in the use of the filibuster, that is not how it has always been. For example, a number of President Monroe's nominations never reached the floor by the end of his administration and were defeated by delay, in spite of his popularity and his party's control of the Senate.

Furthermore, President Adams had a number of judicial nominations blocked from getting to the floor. More than 1,300 appointments by President Taft were filibustered. President Wilson also suffered from the filibusters of his nominees.

Not only does past practice show no distinction between legislation and judicial nominations in regards to the recognition of minority rights, the formal rules of the Senate have never recognized such a distinction, except for a 30-year stretch in the Senate history, 1917 to 1949, when legislation was made subject to cloture but nominations were not. Do my colleagues hear this? All of those who think a judge is more entitled to a vote than legislation, in 1917 it was decided that absolute unlimited debate should be curtailed, and there needs to be a two-thirds vote to cut off debate in order to bring legislation to the floor.

But there was no change with regard to judicial nominees. There was a requirement of unanimous consent to get a nominee voted on. So much for the argument that the Constitution leans toward demanding a vote on nominations more than on legislation. It flies in the face of the facts, the history of America and the intent of our Framers. This fact in itself certainly undercuts the claim that there has been, by tradition, the insulating of judicial nominees from filibusters.

In both its rules and its practices, the Senate has long recognized the exercise of minority rights with respect to nominations. And it should come as no surprise that in periods where the electorate is split very evenly, as it is now, the filibustering of nominations was used extensively. For example, my good friend Senator Hatch who is on the Senate floor--as my mother would say, God love him, because she likes him so much, and I like him, too--he may remember when I was chairman of the Judiciary Committee back in the bad old days when the Democrats controlled the Senate during President Clinton's first 2 years in office, a time when the Democrats controlled both the Presidency and the Senate but nonetheless the country remained very divided, numerous filibusters resulted, even in cases not involving the judiciary.

I remind my friends, for example, that the nomination of Dr. Henry Foster for Surgeon General, Sam Brown to be ambassador to the Conference on Cooperation and Security in Europe, Janet Napolitano to be U.S. attorney in the District of Arizona, and Ricki Tigert for the Federal Deposit Insurance Corporation head, were all filibustered. We controlled the Senate, the House, the Presidency, but the Nation was nonetheless divided.

Some may counter that there should be a difference between how judicial

nominees should be treated versus the treatment accorded executive branch nominees, the Cabinet, and the rest. Constitutional text, historical practice and principle all run contrary to that proposition.

On the textual point, we only have one appointments clause. It is also instructive to look at a few historical examples. In 1881, Republican President Rutherford B. Hayes nominated Stanley Matthews to the Supreme Court. A filibuster was mounted, but the Republican majority in the Senate was unable to break the filibuster, and Stanley Matthews' Supreme Court nomination failed without getting a vote.

In 1968, the filibuster to block both Justice Abe Fortas from becoming Chief Justice and Fifth Circuit Court Judge Homer Thornberry to occupy the seat that Justice Fortas was vacating was one where the Democrats controlled the Senate, and the Republicans filibustered. The leader of that successful filibuster effort against Justice Fortas was Republican Senator Robert Griffin from Michigan. In commenting on the Senate's rejection of President George Washington's nomination of John Rutledge to be Chief Justice of the Supreme Court, the Republican Senator who mounted a successful filibuster against Fortas on the floor-- translated, Fortas never got a vote, even though he was a sitting Supreme Court Justice about to be elevated to Chief Justice-- what did the Senator from Michigan who led that fight say about the first fight in the Senate?

That action in 1795 said to the President then in office

and to future Presidents: ``Don't expect the Senate to be a

rubberstamp. We have an independent coequal responsibility in

the appointing process; and we intend to exercise that

responsibility, as those who drafted the Constitution so

clearly intended.''

There is also a very important difference between judicial and executive nominees that argued for greater Senate scrutiny of judicial nominees. It should be noted that legislation is not forever. Judicial appointments are for the life of the candidate.

Of course, no President has unlimited authority, even related to his own Cabinet. But when you look at judges, they serve for life.

An interesting fact that differentiates us from the 1800s, when these filibusters took place, and 1968, when they took place: The average time a Federal judge spends on the bench, if appointed in the last 10 years from today, has increased from 15 years to 24 years. That means that on average, every judge we vote for will be on that bench for a quarter century. Since the impeachment clause is fortunately not often used, the only opportunity the Senate has to have its say is in this process.

The nuclear option was so named because it would cause widespread bedlam and dysfunction throughout the Senate, as the minority party, my party, has pledged to render its vigorous protest. But I do not want to dwell on those immediate consequences which, I agree with my Senate Judiciary Committee chairman, would be dramatic. He said:

If we come to the nuclear option the Senate will be in

turmoil and the Judiciary Committee will be in hell.

However serious the immediate consequences may be, and however much such dysfunction would make both parties look juvenile and incompetent, the more important consequence is the long-term deterioration of the Senate. Put simply, the nuclear option threatens the fundamental bulwark of the constitutional design. Specifically, the nuclear option is a double-barreled assault on this institution. First, requiring only a bare majority of Senators to confirm a judicial nominee is completely contrary to the history and intent of the Senate. The nuclear option also upsets a tradition and history that says we are not going to change the rules of the Senate by a majority vote. It breaks the rule to change the rule. If we go down this path of the nuclear option, we will be left with a much different system from what our Founders intended and from how the Senate has functioned throughout its history.

The Senate has always been a place where the structure and rules permit fast-moving partisan agendas to be slowed down; where hotheads could cool and where consensus was given a second chance, if not a third and a fourth.

While 90 percent of the business is conducted by unanimous consent in this body, those items that do involve a difference of opinion, including judicial nominations, must at least gain the consent of 60 percent of its Members in order to have that item become law. This is not a procedural quirk. It is not an accident of history. It is what differentiates the Senate from the House of Representatives and the English Parliament.

President Lyndon Johnson, the ``Master of the Senate,'' put it this way:

In this country, a majority may govern but it does not

rule. The genius of our constitutional and representative

government is the multitude of safeguards provided to protect

minority interests.

And it is not just leaders from the Democratic Party who understand the importance of protecting minority rights. Former Senate Majority Leader Howard Baker wrote in 1993 that compromising the filibuster:

would topple one of the pillars of American Democracy: the

protection of minority rights from majority rule. The Senate

is the only body in the federal government where these

minority rights are fully and specifically protected.

Put simply, the nuclear option'' would eviscerate the Senate and turn it into the House of Representatives. It is not only a bad idea, it upsets the Constitutional design and it disserves the country. No longer would the Senate be that different kind of legislative body'' that the Founders intended. No longer would the Senate be the saucer'' to cool the passions of the immediate majority.

Without the filibuster, more than 40 Senators would lack the means by which to encourage compromise in the process of appointing judges. Without the filibuster, the majority would transform this body into nothing more than a rubber stamp for every judicial nomination.

The Senate needs the threat of filibuster to force a President to appoint judges who will occupy the sensible center rather than those who cater to the whim of a temporary majority. And here is why--it is a yes or no vote; you can't amend a nomination.

With legislation, you can tinker around the edges and modify a bill to make it more palatable. You can't do that with a judge. You either vote for all of him or her, or none. So only by the threat of filibuster can we obtain compromise when it comes to judges.

We, as Senators, collectively need to remember that it is our institutional duty to check any Presidential attempt to take over the Judiciary. As the Congressional Research Service, the independent and non-partisan research arm of Congress, stated, the ``nuclear option'' would:

. . . strengthen the executive branch's hand in the

selection of federal judges.

This shouldn't be a partisan issue, but an institutional one. Will the Senate aid and abet in the erosion of its Article I power by conceding to another branch greater influence over our courts? As Senator Stennis once said to me in the face of an audacious claim by President Nixon:

Are we the President's men or the Senate's?

He resolved that in a caucus by speaking to us as only John Stennis could, saying:

I am a Senate man, not the President's man.

Too many people here forget that.

Earlier, I explained that for much of the Senate's history, a single Senator could stop legislation or a nomination dead in its tracks. More recent changes to the Senate Rules now require only \3/5\ of the Senate, rather than all of its Members, to end debate. Proponents of the ``nuclear option'' argue that their proposal is simply the latest iteration of a growing trend towards majoritarianism in the Senate. God save us from that fate, if it is true.

I strongly disagree. Even a cursory review of these previous changes to the Senate Rules on unlimited debate show that these previous mechanisms to invoke cloture always respected minority rights.

The ``nuclear option'' completely eviscerates minority rights. It is not simply a change in degree but a change in kind. It is a discontinuous action that is a sea change, fundamentally restructuring what the Senate is all about.

It would change the Senate from a body that protects minority rights to one that is purely majoritarian. Thus, rather than simply being the next logical step in accommodating the Senate Rules to the demands of legislative and policy modernity, the ``nuclear option'' is a leap off the institutional precipice.

And so here we collectively stand--on the edge of the most important procedural change during my 32-year Senate career, and one of the most important ever considered in the Senate; a change that would effectively destroy the Senate's independence in providing advice and consent.

I ask unanimous consent to be able to continue for another 15 minutes.

The PRESIDNG OFFICER. Without objection, it is so ordered.

Mr. President, I ask unanimous consent that I and then, after me, Senators Leahy and Peters be allowed to complete our remarks in their entirety before the scheduled vote.

Mr. President, the debate about the legislative filibuster is not a debate about S. 1 or S. 101 or S. 901. No, this is a debate about nothing less than the nature and durability of American self- government. Quite apart from the wrestling over which particular bill was filibustered 8 years ago or 4 years ago or 2 years ago or tomorrow, the decision about whether or not to eliminate the filibuster is the Senate's most important policy debate in decades.

Eliminating the filibuster would obviously have all kinds of policy consequences, from tax rates and labor law to energy and infrastructure. But that is not why the debate is so important. This isn't fundamentally a debate about this or that policy.

The debate about the filibuster is deeper than that because it is a debate about how and whether we debate at all. This matters a whole lot in a country this big, in a continental nation, because it is right at the heart of how peaceable self-government works at all. If we just blow that up, if we act as if it is just a matter of time before the filibuster goes away and all we really have is red-versus-blue jerseys anyway, if we just end the Senate's rules as they have existed for 240 years, we will dramatically alter not just this institution but our entire form of self-government, and in the process we will dramatically escalate the fevered pitch of America's recent arguing.

We shouldn't ignore the deep and long-term significance of what setting the Senate's rules on fire would mean simply because terms like ``supermajority requirement'' don't fit really neatly into our modern, made-for-cable-TV, soap-opera variety of politics as entertainment, politics as sport, even politics as religion. ``Supermajority requirements'' are a whole bunch of syllables, and it just doesn't make for great sound bites.

But make no mistake. If we set the Senate's rules on fire, we are going to cause dramatic, horrible consequences in American civic life.

Almost every single Member of the newly minted Democratic majority in the Senate has resolved in recent weeks that the legislative filibuster needs to be abolished, or, in their most recent focus group term, to be ``reformed'' out of existence.

This move would be directly contrary to over two centuries of tradition in this country and in this body. It would be directly contrary to the Founders' explicit purposes for why this institution was created at all, and it would be directly contrary to the words of dozens and dozens of the majority Senators--their words just in the last 48 months.

This is no mere procedural change. If they go through with this, an already sick Senate would be committing institutional suicide. There really is no reason to be a U.S. Senator if the Senate doesn't exist to foster real debate that is bigger than simple majority power.

This nuclear trigger would all but destroy the principle of consensus-building that the Senate demands and, thereby, all but ensure that minority rights in this country would become subject to more and more fickle, more and more power hungry, and, inevitably, more and more abusive simple majorities.

America is built on a number of seemingly small, but actually quite grand, ideas. One of the very best of those ideas, one that is just elegantly simple--so simple that we regularly don't pause to reflect on it together and to teach it to our kids--is the simple idea that whenever possible, groups of different people should be allowed to make different rules for themselves. This is what our system of federalism is about. This is why we divide power both vertically and horizontally between legislative, executive, and judicial branches, and then also across the 50 States and versus the Federal Government.

It is not actually an extravagant thought. Children on a playground kind of instinctively understand that if you can't get one giant game of kickball together, it is OK to let the playground divide up into a few different games of kickball and dodgeball. It is a grand American tradition that when we don't have to agree, we don't have to agree about everything. It is OK to allow some diversity. It is OK for not all workplace regulations to be exactly the same everywhere in the country.

As it happens, America is a really big country, a continental nation, and we regularly don't agree. Californians don't always agree with Nebraskans. Virginians don't always agree with New Yorkers. People in regularly sunny Miami don't always see the world exactly the same as folks in regularly wintry Boston do. Ohio State fans don't have to wear the blue and gold of Michigan.

It is a big country full of disagreements, and so our principle is, regularly, that wherever we can protect and respect differences, we should. We don't force folks to wear the jerseys of the teams they don't support. There is no reason to.

I feel like there is some joke I should make about Oral Roberts versus Harbaugh--I know relative competitions against Ohio State--but prudence recommends skipping that.

There are also circumstances, obviously, where we need to make big wide-ranging monopolistic government decisions. There are times when we have to have one-size-fits-all rules, but those one-size-fits-all obligations are not for everything. Even in those moments when they are required, we still want to work hard to protect the rights of minorities and dissenters.

So how do we respect their rights and abilities to make rules for varying communities across a nation of 330 million people from shore to shore? How do we allow as many people as possible to make divergent rules as they see fit? One of the ways we have done that traditionally in the Senate is we have always made sure, here, where we come from all across the country--east to west, north to south--that we would be required to pass legislation not by 50 plus 1 but by 50 plus 10.

What that means is that, most all of the time, even if you are in the majority, you can't just do everything you want. You can't just pass one, big, compulsory law immediately without lots of debate, because you rarely have 50 plus 10. You have to bring some people from across the aisle over to your side. If you are in the majority, it means that you have to learn the habit of sitting down with Members of the minority. You have to talk to them. As importantly, you have to listen to them.

When this process of compromise works and a bill is passed, you are then guaranteed that the new law has the stamp of approval of at least some representatives of the minority on that issue, and it means that they will become your allies against quickly undoing that law next year. They will become your allies because the process of compromise has led you to listen to each other and say: Instead of doing the 51- percent thing, what harder work might be required to get to the 60- percent thing?

If the process of compromise breaks down, that is a pretty important signal as well. When you are forced to make rules that are binding on diverse groups of people, it is in everyone's interest that you get as much buy-in as possible. That makes it more likely that the new rule will be respected and followed beyond just this 2-year Congress. Yet, if you shove a rule change

through with a bare-knuckle majority, you ensure that 49 percent of the country is going to resent not just the rule but you. Pass laws today with a 50-plus-1 majority, and watch them be repealed tomorrow with a 50-plus-1 majority. Our Nation would just pinball from one policy agenda to another. It makes politics too central in the lives of the American people to allow a fickle 51-and-49-percent majority to change the whole direction of the Nation. Each election would become more do or die, more Flight 93ish than the last one. Each campaign would descend further and further into tribal ugliness.

In a big and diverse country, the Senate exists to force lawmakers to build a healthy consensus before we try to make sweeping national, legal changes. The Senate exists precisely to force this kind of consensus-building. That is really why this institution exists. It is how we guarantee that we do not have laws on the books that are respected by half of the country and resented and hated or ignored by the other half of the country. The Senate's supermajority requirement has helped to ensure that big changes are not impulsive and narrow and instant but, rather, deliberate and broadly accepted.

But there is an alarming trend in our time. Let's be clear: It is in both parties. It is not just the Democrats, who are now in the majority, who are interested in this kind of new, more instant, more urgent, more winner-take-all kind of politics. There is a new trend toward a bare-knuckles belief that this is the only kind of politics that works, that it is the only kind of way you can go forward.

So my colleagues--again, in both parties--have decided that if you have the power, you should wield it, and you should wield all of it with no constraint. They might use this or that particular bill as a stalking horse for the attempted power grab, but let's be clear: Any particular bill is beside the point; it is about the new ``ends justify the means'' principle, which is the principle that there are no principles except that of flexing your power as vigorously and as brutally and as instantly as you can for as long as you can cling to power.

Some of the Republicans who have already spoken on the floor this last week have warned the Democrats that they might very soon rue the day they made this decision. There is an age-old self-delusion in power that says: If you are in the majority, you will never have to be in the minority again, so why would you want to respect any rules that have traditionally protected minorities? You will always be driving the bulldozer and never be in its path.

This debate isn't about policy. It isn't about any specific bill. You can listen to the activists on the outside who are advocating for it. They have been transparent about their purposes for the better part of a year that they would use whatever bill they think most politicall opportune at the moment to try to end the filibuster. Books published on this topic in the last 60 days haven't come about in the last 60 days.

We should remember that if this happens, if a simple majoritarianism--a mere raw exercise of power--becomes what this body is about, we will have taken a step down a path toward the exercise of naked power that will be absolutely permanent. It cannot and will not ever be undone. Once the supermajority rules, once the filibuster is gone, it will be gone forever because no one--it is self-evident to make this argument--is ever going to voluntarily surrender power when the other party has just used a simple-majority power against them. No one will ever restore supermajority requirements when they have a simple majority and a simple majority has just become the rule against them.

If you want to see American politics become more brutal, if you want to see American politics become more crude, if you want to see American politics become more demagogic, then stripping away the mechanisms that have forced us to work together would be the perfect recipe for bringing about this dystopian reality. If you want to see a politics that favors more candidates running for office with claims that they will be strongmen and tyrants, then make politics nothing more than a contest of wills between people who spend their campaigns promising to spend the next 2 or 4 years simply making the other side pay. If you want to see the rights and interests of minority groups scorned, dismissed, and trampled, then establish a legislative process where minority voices don't need to be heard at all. That is what would happen if we end the supermajority requirements that have always dominated the Senate from its first day. If you want lame, meme politics that aims only to ``own the libs'' or ``drink conservative tears,'' this is how you bring that crap show about. You would set the Senate on fire.

All of you know this, though. Many of you have spoken in private about this being a rash move. Many of you have spoken in public about having been opposed to this before.

I think of my friend Brian Schatz--and I am going to name him precisely because he is a real friend, not a Washington friend, where you claim someone is your friend right before you try to rip his face off. I actually like the guy a lot. I like working with the guy, and I would like to keep working with the guy. But it turns out, if you make the Senate into the House of Representatives, there is going to be almost no working together across the aisle because there will no longer be any incentive for it. All the politics that matter will happen during the private caucus lunches where 51 percent will try to keep their 51 percent to do whatever they want.

The Senate is, obviously, not the greatest deliberative body in the world, but it still has a chance to recover. Set it on fire by ending supermajority requirements, and no one should ever utter the phrase ``great deliberative body'' again because there will be no more deliberation in this body again.

Brian recently said that the filibuster is ``stupid and paralyzing.'' He also said: ``It is time to trash the Jim Crow filibuster.'' Yet, just 4 years ago, when Donald Trump was elected and the House Republicans were itching to have the Senate eliminate the filibuster because the Republicans controlled the House, the Senate, and the White House, Senator Schatz and a bunch of his colleagues actually penned a public letter that defended the filibuster and all of its ``existing rules, practices, and traditions'' precisely because it advanced the deliberative purposes of the Senate. I don't remember Senator Schatz then calling it the ``Jim Crow filibuster'' when he wrote that letter or when he was blocking Tim Scott's police reform legislation last year by pointing to the Senate's supermajority requirement rules. I don't remember Senator Schatz calling it ``stupid'' when he filibustered COVID relief in September and again in October under the Senate's current rules.

Look, I want to be clear. I am not picking on Brian; I am naming him precisely because I like him, and afterward, we can argue about this. With other people I have maybe less of a relationship with, it would be less useful to cite them than the people with whom I actually have a lot of comity and good will. I do want to keep working with Brian, but in a simple majoritarian body, there won't be bipartisan cooperation anymore. There isn't much right now, but there is still a chance for the reform of this institution. Ending the filibuster is to end this institution.

To be clear, this isn't about Senator Schatz. I could give an hours'- and-hours'-long speech and go through all the flip-floppers in this Chamber who had one position 48 months ago and now have a completely different position. I don't need to name all of them. We should just ask, what changed? We know what changed. The only thing that has changed in the last 2 years is who is i power.

When the Democrats were in the minority, you were fierce defenders of this indispensable Senate prerogative. That was the language that was used. The filibuster was standing between America and fascism, we heard. But now, when you have the slimmest majority--actually, it is just 50-50, and you need the VP's motorcade to break a tie--the filibuster is standing between you and some of your legislative goals; therefore, it needs to be tossed out. When you were using the filibuster to halt Senator Scott's police reform bill, the filibuster was an essential American institution that forced compromise. Now that it can be occasionally used to resist a 51-50 straight

majoritarian exercise of power, it is supposedly exclusively a relic of slavery and a tool of Jim Crow. It is nonsense, and the people saying it know that it is nonsense. You used the same rule last year, and you were not racist when you used it last year.

This is B.S. that has been focus-grouped, and particular bills are being used as the excuses to grab power that won't just be for this bill; it will be forever. It will be the end of the Senate.

Was the filibuster really a tool of Jim Crow when it was used against Tim Scott last year? I don't think so, and I don't think any of you think so. If somebody wants to come to the floor and repent of their racism for having used the filibuster last year, please do, but that isn't what was happening, so stop with the nonsense rhetoric that is just for an MSNBC sound bite tonight.

It is sad to watch so many of my colleagues who know better be bullied into this position of shortsightedness, and they do know better, because many of you say it in private, and you are being bullied by the fringes of your party. But part of the responsibility of being a U.S. Senator is standing up to the extreme fringes of your party. Part of the responsibility of being a U.S. Senator is to say: I know that people are angry. I know that people are yelling. I know that there are hotheads. But one of the jobs of a Senator and surely the job of this body is to try to find a way to allow cooler heads to prevail.

We already have an institution that is instantly responsive to majorities--you only have to walk 200 yards to see it--and there is nobody who serves in this body who wishes they served in that body. We know what it looks like to have a simple majoritarian body, and the House was designed to do that. It is a good thing. The House was designed to reflect the energy of the people. When the people are hotheaded and they want something done fast and they want their majority to act, they call on the House and get a hearing, but the Senate's job, the Senate's purpose, is different.

The House is actually allowed to act with a hothead precisely because the Senate exists to cool those passions. The Senate exists to act with a cool head. Our job is not to cater to sudden and instant majorities and to changes in the wind; the Senate's job is to enlarge and refine the House's judgments and to try to build a consensus that can last so that the majority's will can be advanced while the minority's rights are also protected.

The bullies who want to permanently upend the way our legislature works don't understand that their short-term gain of this or that bill will come at a long-term cost of the entire structure of the rights and interests of our constitutional balance.

It doesn't take a lot of courage to go with the current of a mob, but a lot of Senators who quietly want to resist this change--and there are many on that side of the aisle who want to resist this change--are worried that going against the tide means watching dollars and votes flow away. It means getting screamed at in restaurants. It means that your self-interest is to avoid the short-term pain and ride the short- term wave.

Let me tell you, this feels pretty familiar. When I ran for this seat in 2014--it was the first time I had ever run for anything in my life-- one of the fundamental reasons I ran, in my having never sought any office of any kind, was that I thought the Senate had a chance to still be restored to its deliberative place in American life.

We are living through a digital revolution that is disrupting the future of work, the future of war, the nature of local community, the neuron, synapse, and frontal lobe formations of our teens. The digital revolution is transforming American life everywhere, and this institution has a chance to help shape some of that for good instead of to just allow the tide to flow at full speed and consume this institution as well.

So I said, I pledged--and when I said it to a largely red State in 2014, most people apparently didn't think I meant it--that I wasn't running just because I disagreed with a lot of President Obama's policies but because I would defend the constitutional system of limited government and a Senate that exists for a deliberative process even if someone in my own party came to power and urged instant, radical changes that disrespected large portions of America.

I literally made the centerpiece of why I was running that I would resist someone in my own party who tried to do majoritarian, instant stuff. And I can tell you, I can introduce you to a whole bunch of Republicans on the ground in Nebraska who are really mad that, when I said that, I didn't precisely say it 17 different ways, where I named every person that they might later want to have all of that instant power.

After the 2016 election, people started looking back at what I said the whole 2014 campaign and got more uncomfortable with what they voted for. So nobody has to tell me how unpleasant it is to stand up and say things that are unpopular in your own party.

Over the course of the last 5 years, I have been smeared and censured many times. I have been cussed out by lots of people who once supported me and called me a friend. None of that was particularly fun, but so what?

The oath I took and the duty I swore was related to the point of being a U.S. Senator, which is that if you are not willing to stand up to your own side every now and again, there is really no point in having this job. And the thing is, a lot of you know that.

I am not going to say it is the consensus position on your side of the aisle, but there are a whole bunch of people going along publicly with the rhetoric of ending the filibuster and ending supermajority requirements, even as, at the exact same time, you tell me how much you regret the summer of 2013 decision to allow Harry Reid to end a much smaller Senate tradition about supermajority confirmations.

Supermajoritarian confirmations are a small item compared to the change that is being considered here. Harry Reid's take-no-prisoners strategy of 2013 was something that was moved unanimously by the then- majority party, and many, many, many of you have talked to me in private about how much you regret it. Please consider the costs because this would be a much larger change.

Whenever anyone, Republican or Democrat, has threatened to blow up the Senate supermajority requirements, they always have to tell themselves three lies. The first lie is that might makes right. The second lie is that the other side politically is your enemy, and they must simply be beaten down; they can never possibly be persuaded. And the third lie is that the Federal Government is the only government we have. None of these things is true.

I resisted a President, nominally of my own party, when he beat me up, both in private and in public, for defending the filibuster when my party was in the majority.

Republican Senate leaders stood up to him as well, despite lots of ridicule from House Republicans. A lot of people in the House Republican caucus wanted much faster politics, but their passions were a poor guide to long-term wisdom for a nation this big and diverse. It is better for America's hardest debates to be decided in a deliberative Senate rather than in the thunderdome.

Republicans in the majority held firm against blowing up this central structural pillar of this institution, even when it would have benefited us politically. In other words, we faced the same choice then that you face now, and we decided that it was better to choose long- term stability over short-term legislative victories. It was the right choice for a nation this big and this diverse.

A lot of Republicans think that decision was naive. Their argument was the other side hates us. They will definitely use all power against us whenever they can. And I know that many Democratic strategists on the outside, many people raising money, small-dollar fundraising online, they are making the exact same argument, but this isn't war, and we are not supposed to be permanent enemies.

We want a politics of debate and of verbal jousting rather than of physical violence. And one of the most urgent political tasks we face today is to demonstrate that it is possible for people who deeply disagree and who are polarized in our division--we can still work together for the common good.

We urgently need to protect and strengthen, not weaken and destroy, the norms that force us to come together and cooperate.

But we don't need to be naive. We don't need to believe that that means we would always sing ``Kumbaya.'' We obviously don't in this body, but that doesn't mean we are free to be naive in the other direction as well.

For every step we take that further divides, further infuriates, and further inflames half the country, it makes it far likelier that we will set a fire that we cannot put out.

The American Founders understood the problem that we are facing. They were not naive about how politics worked and what it took, what kind of labor and sweat and relational hand-wringing and bread-breaking it takes to be able to work together amicably. They were working from a personal experience of repression, tyranny, and violence. And so they set out some basic principles of federalism, localism, and consensus building, of supporting majorities but without sacrificing minorities. And so they established a framework in which these principles could be balanced in a way that is responsive to changing conditions and needs.

The Founders' concerns are still our concerns, but guess what. They built the Senate for this exact moment. We are constantly tussling over how to make sure that every voice is heard and every person has a place. We live in a divided time. We live in a divided nation. But they lived in a divided time and in a divided nation, and so they created the Senate to be a place that could deescalate red-hot anger, to take a deep breath rather than just assuming that a runaway majority of 50 percent plus 1 should advance whatever it wanted.

Friends, colleagues, you know after the summer of 2013, the dominoes were worse than you had expected, and many of you--I don't know if it is most, but many of you hav talked about how much you regret the summer of 2013 decision. This decision is 100 times larger.

Friends, please consider whether or not it is prudent to set the Senate on fire. It is the only deliberative structure we have in our government, and at a time when institutions are being consumed, let us not consume another.

I ask unanimous consent that the order for the quorum call be rescinded.

I ask unanimous consent for the Record to note that the junior Senator from New Jersey is very dramatic in the Chair.

I ask unanimous consent to begin the vote now.

I ask for the yeas and nays.

Senator Schatz and I add up to 22.

Mr. President, I call up my amendment No. 192 and ask that it be reported by number, please.

Mr. President, we are doing a lot of red versus blue jersey stuff today. Until about 2 a.m., it is going to be mostly straight partisan votes. It would be good for us to find some common ground, and this amendment is an opportunity to do that.

This amendment, modeled on the Born-Alive Abortion Survivors Protection Act, is an opportunity to come together and to defend babies. It is pretty simple, actually. Every baby, whether she is born in a state-of-the-art hospital with a NICU unit or whether she is born in an abortion clinic in a strip mall, every baby is born with dignity and is created in God's image, and she deserves care. This amendment is aimed at making sure that babies who survive abortions get the same degree of care that any other newborn would. There is nothing partisan about that. That is why my Democratic colleagues, Joe Manchin and Bob Casey, both voted for this last year as legislation. We disagree on a bunch of stuff, but not this.

There is a lot of complicated debate in this Chamber, but this isn't actually one of them. Here is a chance for 100 Senators to come together and support every baby. Every baby deserves a fighting chance.

Pursuant to section 904 of the Congressional Budget Act of 1974 and the waiver provisions of applicable budget resolutions, I move to waive all applicable sections of that act and applicable budget resolutions for the purposes of Senate amendment No. 192, and I ask for the yeas and nays.

Mr. Vice President, I want to say, before we begin, thank you for the way you have fulfilled your constitutional duties and your oath of

office today. Obviously, it hasn't been easy.

Colleagues, today has been ugly. When I came to the floor this morning, I planned to talk about the lesson of 1801 because I am kind of a history nerd, and I wanted to celebrate the glories of the peaceful transition of power across our Nation's history. It feels a little naive now to talk about ways that American civics might be something that could unite us and bring us back together.

Now, 1801 blew everybody's mind all over the world, by the way. John Adams loses to Thomas Jefferson, and Adams willingly leaves the Executive mansion and moves back to Massachusetts, and Jefferson peacefully assumes power. People all over Europe said: That must be fake news. Those must be bad reports. There is no way any Executive would ever willingly lay down power. Yet Adams, in defeat, did something glorious to give all of us a gift.

I wanted to celebrate that, and it feels a little bit harder now. This building has been desecrated. Blood has been spilled in the hallways. I was with octogenarian Members of this Chamber who needed to have troops and police stabilize them to get down the stairs at a time when a lot of our staffs were panicked and under their desks and not knowing what was going to happen to them.

It was ugly today. But you know what? It turns out that when something is ugly, talking about beauty isn't just permissible; talking about beauty is obligatory in a time like that. Why? Why would we talk about beauty after the ugliness of today? Because our kids need to know that this isn't what America is. What happened today isn't what America is.

They have been given a glorious inheritance for the 59th Presidential election. If the Vice President wasn't in the Chair and if the President pro tempore was, I would have made some joke that Chuck Grassley has voted in two-thirds of those 59 Presidential elections. He is laughing. It is not as good as ``hit deer, deer dead,'' but it still got a Grassley laugh.

I don't think we want to tell the Americans that come after us that this republic is broken, that this is just a banana republic, that our institutions can't be trusted. I don't think we want that. We don't want that in this body, and we don't want that in our hometowns. I don't think we want to tell our kids that America's best days are behind us--because it is not true. That is not who we are. America isn't Hatfields' and McCoys' blood feud forever. America is a union.

There is a lot that is broken in this country but not anything that is so big that the American people can't rebuild it, that freedom and community and entrepreneurial effort and that neighborhoods can't rebuild. Nothing that is broken is so big that we can't fix it.

Generations of our forefathers and our foremothers--probably not a word--and our ancestors have spilled blood to defend the glories of this republic. Why would they do that? Because America is the most exceptional nation in the history of the world and because the Constitution is the greatest political document that has ever been written. Most governments in the past have said might makes right, and we saw some of that hooligan nuttery today. Might makes right. No, it doesn't.

God gives us rights by nature, and government is just our shared project to secure those rights. America has always been about what we choose to do together, the way we reaffirm our constitutional system. We have some governmental tasks, and we all in this body could do better at those governmental tasks, but the heart of America is not government. The center of America is not Washington, DC.

The center of America is the neighborhoods where 330 million Americans are raising their kids and trying to put food on the table and trying to love their neighbor. That is the center of America.

We are not supposed to be the most important people in America. We are supposed to be servant leaders who try to maintain a framework for ordered liberty so that there is a structure that, back home where they live, they can get from the silver-framed structure and order to the golden apple at the center, as Washington would have said, which is the things that they build together, the places where they coach little league, the places where they invite people to synagogue or church.

Sometimes, the biggest things we do together are governmental, like kicking Hitler's ass or like going to the moon. Sometimes, there is governmental stuff. But the heart of America is about places where moms and dads are raising kids, and we are supposed to serve them by maintaining order and by rejecting violence. You can't do big things like that if you hate your neighbors. You can't do big things together as Americans if you think other Americans are the enemy

Look, there is a lot of uncertainty about the future. I get it. There is a lot that does need to be rebuilt. But if you are angry--I want to beg you--don't let the screamers who monetize hate have the final word. Don't let needlists become your drug dealers. There are some who want to burn it all down. We met some of them today.

But they aren't going to win. Don't let them be your prophets-- instead, organize, persuade, but most importantly, love your neighbor. Visit the widower down the street who is lonely and doesn't want to tell anybody that his wife died and he doesn't have a lot of friends. Shovel somebody's driveway. You can't hate somebody who just shoveled your driveway.

The heart of life is about community and neighborhood, and we are supposed to be servant leaders. The constitutional system is still the greatest order for any government ever, and it is our job to steward it and protect it.

Let's remember that today when we vote.

Mr. President, we are just a few days away from the first official Democratic Presidential debate of the campaign season in Miami, but for anyone paying close attention, the first meaningful debate is actually about only 48 hours away in South Carolina.

On Saturday, 11 Democrats, including 4 of the top 5 in the current polls, are going to take part in a candidate forum hosted by the Planned Parenthood Action Fund.

What is Planned Parenthood? Planned Parenthood is the country's largest abortion business. That is their mainstay of operation. Last year, Planned Parenthood reported committing more than 330,000 abortions--somewhere between one-third and one-half of all abortions committed in America last year. Planned Parenthood's president has said that providing, protecting, and expanding access to abortion is part of the organization's ``core mission.'' It does this work with the help of more than $500 million in annual subsidies from the Federal Government; that is, from taxpayers across this country, many of whom believe that abortion is immoral. Yet the position of Planned Parenthood is and has long been abortion at any time, anywhere, for any reason for free. That used to represent the most extreme position anywhere in the Democratic Party. It was shared by only a very small, hard-fringe portion of its elected leaders.

Just to review some history, in 2008, Hillary Clinton was still calling for safe, legal, and rare abortion access, and as she would regularly emphasize, ``by rare, I mean rare.'' Yet, today, the radical things that the Nation's largest abortion business wants are basically indistinguishable from the position of every Democrat who is now running for President--abortion at any time, anywhere, for any reason for free.

In fact, it is actually worse than this because the position of every Senator who is currently running for the Democratic nomination and of at least one Governor is that a living, breathing baby who survives an abortion procedure can still be left to die after birth. All seven Senators who are currently running for the Democratic Presidential nomination voted against the Born-Alive Abortion Survivors Protection Act earlier this year, and Governor Bullock of Montana vetoed a State- level version of that bill just before he entered the race.

As things currently stand, it is entirely possible that the next Democratic nominee for the highest office in our land will be publicly agnostic about the moral status of post-abortion infanticide--morally agnostic about post-abortion infanticide.

Let's be clear. These candidates are wildly and spectacularly out of the mainstream in American life. Over the last two decades, Gallup polling has consistently shown that a majority of Americans are opposed to unrestricted abortion access beyond the first trimester. The Gallup numbers actually show that well under one-third of Americans support abortion beyond the first 3 months, and a new NBC/PBS/Marist poll finds that fully four out of five Americans are opposed to all abortion in the third trimester. That includes a majority of self-identifying pro- choice voters. I want to say that again. A majority of self-identified pro-choice voters in America are opposed to abortion in the third trimester. So the polling of Americans is actually quite different than what the Democrats are going to pretend it to be over the next 2 days when they talk into their echo chamber.

What is even more important than anything about public opinion is that the Democrats are also out of step with our fundamental American conviction that all men are created equal--all men and women and babies. Instead, they are increasingly committed to the proposition that some people are less than human and are, therefore, disposable. Sadly, though, the most radical leftwing voices are winning in their party's echo chamber, and Democratic candidates have now decided that they must prostrate themselves before the ``flush with cash'' abortion industry. This has consequences well beyond policy. As Democrats' abortion positions have become more extreme, they have no longer sought to even persuade fellow citizens with whom they disagree. Rather, they have become openly hostile to Americans who disagree on this great moral challenge.

My colleague from New York, for instance, Senator Gillibrand, who will be attending this weekend's forum in South Carolina, made her feelings clear earlier this month in an interview with the Des Moines Register. In promising that she would appoint only judges who would uphold Roe v. Wade, here is what she said. Listen to this quote:

I think there [are] some issues that have such moral

clarity that we have as a society decided that the other side

is not acceptable.

Imagine saying that it's OK to appoint a judge who is

racist or anti-Semitic or homophobic.

[This is not an issue where] there is a fair ``other

side.'' There is no moral equivalency when you come to

racism, and I do not believe there is a moral equivalency

when it comes to changing laws that deny women reproductive

freedom.

What? What are we talking about here? Are you kidding me? Did you catch what she just said?

According to a sitting U.S. Senator and a candidate for the Democratic nomination to be President of the United States, holding pro-life views in America is no longer acceptable. It is not a fair position, she tells us. It is the moral equivalency of racism or anti- Semitism. Perhaps in the Senator's next interview she will suggest that pro-life Americans belong in a basket of deplorables.

There is so much wrong with this statement that it is difficult to know where to begin. We could note the plain, simple fact that it is not pro-lifers who have an ugly link to racism. Rather, since the very beginning, the American abortion industry has been intimately connected to eugenics. This is the origin of the movement.

As Planned Parenthood founder Margaret Sanger put it herself--and think about this quote--``the unbalance between the birth rate of the `unfit' and

the `fit' [is] the greatest present menace to civilization.''

Sanger's racial opinions are a matter of some dispute, but this part is clear--that she intentionally targeted efforts at Black neighborhoods in Harlem and in the Deep South. Many of the people involved in her efforts took things a step further--going so far as to forcibly sterilize African-American women whom they deemed to be unfit to procreate.

We can also note that it is, in part, because of this ugly history that, today, Black women in America are 3\1/2\ times more likely to have abortions than White women, and in some parts of Senator Gillibrand's home State, Black children are actually more likely to be aborted than to be carried to term.

We could also point to the continued eugenic use of abortion--for example, to kill children who have nonlife-threatening diseases. In the United States today, two-thirds of all babies in the womb who are found to have Down syndrome are aborted, and in some parts of Europe, the rate is pushing 100 percent. There are public ad campaigns in two nations in Europe that celebrate the fact that they have gotten rid of all of their Down syndrome babies.

Instead of going point by point, I will just recommend that anyone who wants to better understand this disturbing history read Justice Clarence Thomas's concurring opinion last month in Box v. Planned Parenthood of Indiana and Kentucky. Yet, according to my Senate colleague, perhaps Justice Thomas is one of those racists--you know, one of those notorious pro-life racists who is stalking America.

In their leftward lurch to become the Planned Parenthood candidate, it is not just that the Democrats who seek this office are losing touch with where Americans actually are on the hard questions of abortion or with our fundamental American convictions, it is also, as my colleague from the State of New York has shown, that we are losing touch with even how to do politics like Americans, where you respect the dignity of people you differ with and argue about the ideas. You don't declare them an unfit and an unworthy, unacceptable other side. Americans have always had a genius for talking to each other. In our constitutional system, we set up debate fora like this to be able to facilitate, channel, and elevate debate--even heated, feverish debate about really sensitive topics.

Our Framers held firmly to the principle that men and women in their exercise of reason could come to agreements by persuasion and by dialogue even if it took a long time and even if the topics were difficult. Anything less than that would be a violation of the basic dignity of our fellow citizens. Our Founders knew that hard political issues should not be resolved at gunpoint; they should be resolved by debate, which starts by assuming the dignity of your counterparty in that debate.

We are watching that conviction go by the wayside right now. Slandering pro-life Americans as being, in effect, Klan members and Nazis is just a way to crush debate, not to persuade. It is a way of saying that these people--people like my mom, who prays outside abortion clinics; people like my daughters and my wife, who have spent a lot of hours volunteering at crisis pregnancy centers; and people like the overwhelming majority of Nebraskans, whom I get to represent, or Indianans, whom the Presiding Officer now gets to represent--are so morally repugnant that they don't deserve a voice, that they don't deserve to be treated like human beings, that they don't deserve to be engaged in debate, that they are not people you could possibly have a reasonable conversation with.

This is crazy talk.

It is not difficult to imagine where this approach leads. When we lose sight of the intrinsic and inexhaustible dignity of unborn children, we open the door to abortion's violence, and when we lose sight of the dignity of our fellow citizens in debate, we open the door to yet other kinds of violence.

I have spent a lot of time with pro-lifers in my life, probably a lot more time than most of my colleagues who are going to be at the Planned Parenthood debate in South Carolina on Saturday. I will tell you what you will not find among these people is partisan caricature. What you will find are people who are passionately devoted to the dignity of every human being no matter how small or how vulnerable or what disease one might have been diagnosed with. You will find a lot of Americans, young and old, in the pro-life movement who care deeply about women who are in need. You will also find a lot of enthusiasm for promising in vitro surgeries and for scientific developments in ultrasound and neonatal technology. You will find fellow citizens who are ready to advance the basic American commitment to life through the tools of dialogue, persuasion, and respect.

The dehumanization of our friends and neighbors, whether they are in the opposite party or in the womb, destroys our national life together and our national conversation. On both sides, we need to be constantly stitching back together that fabric that has been torn asunder.

I suggest to the Democrats who are heading to the South Carolina debate this weekend to spend less time wrestling with each other in order to say more ridiculously extreme, clickbait things for high- propensity primary voters and spend more time listening to the voices of their pro-life fellow citizens. My guess is they will learn something, and our national debate will be the better for it.

Thank you.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I ask unanimous consent that the Senate stand in recess until noon today.

Madam President, I thank my senior Senator, Deb Fischer, for her leadership and drawing attention to the 150th anniversary of the University of Nebraska. Senator Fischer is a tireless champion of our State and of this special university, her alma mater.

I am sad to admit in public that I am not a graduate of the University of Nebraska, but I had lied about my age for many, many years to be able to vend and sell concessions at Huskers sporting events before I was old enough to do it so that I could be deeply affiliated with this institution, even though I didn't graduate from there.

I salute my senior Senator and her leadership in drawing attention to this. I want to tell stories about Coach Osborne, who was my boyhood hero, about crying as a 12-year-old after the January 2, 1984, national championship game in Miami, about Scott Frost and how he is going to soon lead us back to the promised land, but I have already been warned by the Presiding Officer that the Senate has some informal unwritten rules that actually prohibit football evangelism on the floor.

I will move along to celebrate, with my senior Senator, our volleyball national championships, our bowling national championships, and the fact that Nebraska is or was once known as the Great American Desert, and we are now the most trade-dependent, export-dependent State per capita in the Union precisely because we live on the great Ogallala Aquifer, the most productive land anywhere on Earth and at any point in the history of the Earth.

We grow so much more food than we can ever conceivably consume that we feed the world from Nebraska, and a huge part of that is because of the ag extension programs of the University of Nebraska-Lincoln. There are a lot of great Americans and great patriots who serve at the University of Nebraska on the faculty, in the administration, and donors and alumni and our current students, and the 150th anniversary is a great moment for our State. All 50 States have colleges and universities they are proud of, but there is no State that is more identified with its university than Nebraska. I would like to join my senior Senator and applaud her for her leadership in bringing this resolution today.

Madam President, I ask unanimous consent that the time until 5:30 p.m. today, including quorum calls, be equally divided between the two leaders or their designees.

Madam President, I just listened to the senior Senator from New York--my friend from the gym and the minority leader--deliver some summaries of what he said was in the bill before us, and he implored this body and implored the people watching on C-SPAN to read the bill, stating they would find that all of these terrible things are in the bill.

I see the minority leader has to leave the floor now, but, humbly, I would urge him to come back and show us where any of what he just said is in this bill. What he said wasn't true.

I rise today for a simple purpose. I want to ask each and every one of our colleagues whether we are OK with infanticide. This language is blunt. I recognize that, and it is too blunt for many people in this body, but, frankly, that is what we are talking about here today.

Infanticide is what the abortion survivors--Born-Alive Abortion Survivors Protection Act is actually about.

Are we a country that protects babies who are alive, born outside the womb after having survived a botched abortion? That is what this is about.

Are we a country that says it is OK to actively allow that baby to die, which is the current position of Federal law? That is the question before us, plain and simple.

Here are the facts. We know that some babies, especially late in gestation, survive attempted abortions. We know, too, that some of these babies are left to die--left to die. No further protections exist today to shield them from this ugly fate, and only some States have protections on their books. We have seen in our national discourse over the last month and a half a few States moving in different ways to undo protections that some of these babies have had at the State level.

The Born-Alive Abortion Survivors Protection Act is trying to right this obvious wrong. The bill's terms are simple: A child born alive during a botched abortion would be given the same level of care that would be provided to any other baby born at that same gestational age. That is it.

This bill isn't about abortion. I am pro-life--unapologetically pro- life--but this bill is not about anything that limits abortion. This bill doesn't have anything to do with Roe v. Wade. This bill is about something else. What this bill does is try to secure basic rights, equal rights for babies who are born and are outside the womb. That is what we are talking about.

Over the course of the next hour, as this is debated on the floor, people are going to say a whole bunch of other things. I would ask them to please bring the text of the bill to the floor when they do it and show us whether there is anything about limiting abortion in this bill.

This bill is exclusively about protecting babies who have already been born and are outside of the womb. Every baby deserves a fighting chance, whether that 24-week old baby, fighting for air and fighting for life, having just taken her first breaths, is at an abortion clinic where she survived a botched abortion or she is in a delivery room at the local hospital. Both of those babies are equally deserving of care, protection, and humane treatment, and our laws should treat both of these human beings as babies because they are babies. They have been born, and they are outside of the womb.

This really should not be controversial. In fact, my colleagues actually talk this way all of the time. This place feels like about one-third of the people here are currently running for President, so I would like to quote a few of them over the course of the last couple months.

We ought to ``build a country where no one is forgotten, and no one is left behind.'' Amen to that. Amen to that.

``The people in our society who are most often targeted by predators are also often the voiceless and the vulnerable.''

That is true.

Another offered a promise to ``fight for other people's kids as hard as I fight for my own kids.''

Last week, our colleague from Vermont announced his campaign by saying: ``The mark of a great Nation is . . . how it treats its most vulnerable people.'' Bernie Sanders was right.

Now is the chance, in this body, to make good on that promise. Now is the chance to protect one of the most vulnerable populations on the land imaginable--tiny, defenseless, little babies, just having taken their first breath--or was that claptrap for the campaign trail or sound-bites? Or do people mean the stuff they say around here?

Let's put it another way. Today's vote asks whether or not you want to take the side of people like Virginia's disgraced Governor Ralph Northam?

Last month, before the news of his hideous yearbook broke, Governor Northam made clear that a baby born alive during an abortion could and maybe ought to be killed if that is what the parents and doctors decided they wanted to do after a debate. That was his position: You should make the baby ``comfortable,'' and then there could be a discussion about whether or not you throw that little baby into the trash can. That is what he actually talked about on the radio for a day and a half last month.

Governor Northam is disgraceful for a whole host of reasons, but unlike some other people, he actually told the truth about what he wants. He wants a society where some people count more than others, and other people are worth less than others. He wants a society where some people can be pushed aside if they are inconvenient. In reality, that is what we are voting on today.

Some of my colleagues want to write into our law a kind of permanent exception: ``Every human being should be protected from cruel and inhuman treatment--unless that human being came into the world through a botched abortion.'' Then, you can decide later if you want to kill them.

Tonight, what we are going to vote on in the Born-Alive Abortion Survivors Protection Act is a chance to see whether we are serious when people around here say they want to protect the innocent, speak up for the voiceless, and defend the defenseless. Tonight, we are going to have the opportunity to do exactly that. We can come to the aid of innocent, voiceless, defenseless little babies who have just taken their first breaths by protecting him and her from mistreatment and neglect.

This should be, frankly, the easiest vote we ever cast in this body, but the prospect of what we are voting on here is threatening to one of the most powerful interest groups in America. The abortion industry has taken to attacking this bill wildly over the course of the last 2 weeks, even though, as we made clear repeatedly and as the text of this bill makes indisputably clear, this bill has nothing to do with abortion itself. Nothing in this bill changes the slightest letter of Roe v. Wade. Nothing touches abortion access in this bill.

This bill is about living and breathing babies who are alive outside the womb. That is all that the text of this bill does, but Planned Parenthood and NARAL and their allies feel threatened by a bill to protect alive, out-of-the-womb babies. In other words, unlike this legislation, Planned Parenthood and others refuse to draw any line between abortion and infanticide. That is what their lobbying the last week has shown. That should tell us something about what these groups are really about. What they are about is a society built on power--the power of some people to decide whether other people get to live or die.

This bill is a stumbling block to anyone who thinks that some lives are less valuable than others. This bill is a stumbling block to anyone who thinks that certain human beings should be disposable. This bill is a stumbling block to anyone who thinks that we should be able to quietly rid ourselves of little people who were ``inconvenient'' or supposedly ``unwanted.''

They are not unwanted. There are lots of people in every single State in this Union lined up waiting to adopt, including kids who have lots of hard life circumstances. In every State there are waiting lists of people who will take so-called unwanted babies.

America is a country built on a different principle. Ours is a country dedicated to the proposition that all men and women--all boys and girls--are created equal, even the littlest--even if they happen to come into the world under the most horrible circumstances, even if they are crippled or inconvenient, or, apparently, for a moment, unwanted. Ours is a country that recognizes the fundamental indistinguishable dignity of every human being, regardless of race, or sex, or creed, or ability. As a country, we have struggled for 2 centuries--sometimes at enormous cost--to extend those basic human rights to more and more of our fellow citizens. Today's vote is simply an opportunity to continue that work.

Let me say by way of closing that despite oppositions and setbacks and despite some strange rhetoric about this bill over the course of the last week, I am hopeful in the long term. Deep down, each of us knows that every member of our human family ought to be protected and deserves to be cherished and loved. The love we see every day in the eyes of moms and dads for their newborn babies is an inescapable reminder of that fundamental truth. Love is stronger than power.

Thank you, Madam President.

Mr. President, I ask unanimous consent to speak for less than 1 minute.

Mr. President, over the course of this afternoon, we have heard a whole bunch of things about what is supposedly in this bill. I know that a lot of people who are opposed to this bill, the Born-Alive Abortion Survivors Protection Act, sincerely believe the talking points that they read from their staffs, but, humbly, we have heard speech after speech after speech about things that have absolutely nothing to do with what is actually in this bill.

So as you get ready to cast this vote, I urge my colleagues to picture a baby who has already been born, who is outside the womb, and who is gasping for air. That is the only thing that today's vote is actually about. We are talking about babies who have already been born. Nothing in this bill touches abortion access.

Thank you.

Cloture Motion

Mr. President, thank you.

In a few minutes, the U.S. Senate is going to have an opportunity to condemn infanticide. One hundred U.S. Senators are going to have an opportunity to unanimously say the most basic thing imaginable, and that is that it is wrong to kill a little newborn baby. Every Senator will have the opportunity to stand for human dignity, to stand for the belief that in this country all of us are created equal, because if that equality means anything, surely it means that infanticide is wrong.

Frankly, this shouldn't be hard. Politicians come to this floor every single day and talk about how they care for the poorest or the weakest or the most marginalized members of our society. In recent weeks, I have heard it stated this way in powerful, eloquent, and, from some ambitious Senators, very clear terms about human dignity.

One of my distinguished colleagues recently on the campaign trail declared rightly ``that the people in our society who are the most often targeted by predators are also most often the voiceless and the vulnerable.'' Amen to that.

Another Democratic Senator seeking the Presidency said they seek to ``build a country where no one is forgotten, no one is left behind.'' Amen to that.

Giving words of hope and encouragement, a third Senator reminded us that ``no matter where you live in America . . . you deserve a path to opportunity.'' Amen to that.

A fourth continued that this individual was committed ``to fight for other people's kids as hard as I would fight for my own.'' Yet again, Amen.

But, sadly, in the last week, these beautiful and inspiring words have been choked out by the ugliness and the cruelty from another public official. In Virginia, disgraced Governor Ralph Northam tarnished the American idea of equality under law. He betrayed the universal truth of human dignity, and he turned the stomachs of civilized people, not just in this country but in every country on Earth.

Governor Northam endorsed infanticide. He said:

The infant would be kept comfortable. The infant would be

resuscitated if that's what the mother and the family

desired, and then a discussion would ensue between the

physicians and the mother.

This was the quote--that the infant would be kept comfortable and resuscitated if that is what the mom and doctors wanted to do, and then they could have a debate about what to do next. He was literally talking about allowing space and time for a discussion about infanticide--no euphemisms or weasel words there. Infants can be kept comfortable and resuscitated, and baby girls could be left cold and alone to die.

Just a few years ago, the abortion lobby was really clear in its talk about hoping that abortion would be safe and legal, but rare. This was the slogan. Abortion would be ``safe, legal, and rare.'' Now we are talking about keeping a baby comfortable while the doctors have a debate about infanticide. That is what we are talking about here on the floor tonight. We are not talking about second-trimester abortion. We are not having some big, complicated discussion about a mother's reproductive freedom. As important as all of those debates are, we are actually talking about babies that have been born.

The only debate on the floor tonight is about infanticide. The abortion industry's PR army couldn't defend this. Many in the national media decided to overlook it, but none of us in this body can escape it. What we are talking about on the Senate floor tonight is infanticide.

Instead of saying he misspoke and instead of offering an apology, the Governor of Virginia decided to double down on the ugliness and cruelty. This is not about a clump of cells. This is about fourth- trimester abortion. That is actually what we are talking about here tonight.

Governor Northam is a disgraced coward, and he has such an abysmally low belief of human dignity that he couldn't say this basic truth: It is wrong to let babies who have been born die. He couldn't say it.

This isn't about Republicans and Democrats. We are way beyond that. Everyone in the Senate ought to be able to say unequivocally that the little baby deserves life, that she has rights, and that killing her is wrong. Tonight every Member of this body has that chance.

The Born-Alive Abortion Survivors Protection Act prohibits exactly the kind of infanticide Governor Northam was endorsing. That is it. It is based on the simple idea that every baby deserves a fighting chance. It is a simple idea that every human being is an image bearer. Even the weakest and most marginalized among us is no less human, and every one of us has a moral obligation to defend the defenseless.

It is my understanding that some of my Democratic colleagues are prepared to object tonight. I humbly say that I don't understand why, and I beg you from the bottom of my heart not to do so.

Please don't betray the ideals that have been so eloquently expressed. Please don't reduce truths to an empty campaign slogan, and please don't take the principle of dignity and equality this cheaply.

There are two sides of the debate on the floor tonight. You are either for babies or you are defending infanticide. That is actually what the legislation is before us.

Please don't block this legislation. Please don't let Governor Northam define you. Don't let an extremist pro-abortion lobby and pledge hold you hostage. Please don't protect infanticide.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be discharged from further consideration of S. 130 and that the Senate proceed to its immediate consideration. I ask unanimous consent that the bill be considered read a third time and passed and that the motion to reconsider be considered made and laid upon the table.

With all due respect, Mr. President----

To the Senator from Washington, the bill we are talking about before this body tonight is because New York and Virginia--New York already and Virginia in debate--are having a conversation about removing exactly these protections. This debate is about infanticide and infanticide only, and this is a sad day for this body.

It shouldn't be controversial to say that a newborn child deserves to be treated with dignity and humanity. It shouldn't be difficult to say that babies who survive an abortion shouldn't be left to die cold and alone on that table.

I am sad, but I am not discouraged. I am actually encouraged by the strong group of Senators who cosponsored this legislation and who have come to the floor to support it tonight, and I am encouraged by the millions and millions and millions of pro-life Americans who continue to speak the truth in love. There is legislative work we need to do, but, far more importantly, in the movement for love and life and science and little babies, what we need to have happen is a lot more persuasion and a lot more conversation with our neighbors. A number of my colleagues on the floor tonight are prepared to do just that, and I look forward to listening to their eloquent and love-based, science- based speech.

Thank you.

Mr. President, this is gross, what has happened here tonight. We should pass this by unanimous consent. If we continue being unable to pass it by unanimous consent, a lot of us are going to continue to fight for a rollcall vote because it is the right thing to do. Those little babies aren't Republicans or Democrats; they are babies. They need protection from all of us.

I thank the Presiding Officer.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of H. Con. Res. 9, which was received from the House.

I ask unanimous consent that the concurrent resolution be agreed to and the motion to reconsider be considered made and laid upon the table with no intervening action or debate.

Mr. President, I ask unanimous consent that notwithstanding the provisions of rule XXII, all time postcloture on S. 1 be considered expired at 3:30 p.m. on Tuesday, February 5.