Floor Statements

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 President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. President, I believe the order of business is my second-degree amendment to the amendment of my friend from New Mexico.

When do we expect a vote, Mr. President? What is the order of business here?

Mr. President, I will address this amendment. Let me say, this amendment is one that still requires all the Clean Air standards to be met but removes the ethanol mandate. That is what this amendment does.

The underlying Domenici amendment on ethanol is so wrong. The amendment is a boondoggle. It hurts drivers and it hurts the free market. It is a boondoggle because it takes money out of the pockets of drivers and puts it into the pockets of the big ethanol producers.

The bottom line is very simple. In places where they need ethanol, there is a mandate, and in places where they do not need ethanol, there is a mandate. This is nothing less than an ethanol gas tax levied on every driver: the employee driving to work, the mom driving the kids to school, the truckdriver who earns a living. Gas prices are high enough. It is utterly amazing that in this body we seek to raise the prices even higher than they are now because that is what this amendment will do--particularly if you are on the coasts or in large parts of the South. If you are not in an area that has a lot of ethanol production, make no mistake about it, the underlying amendment will raise your gas prices. The Schumer amendment will make sure that gas prices do not go up any higher because of an ethanol mandate.

The bottom line is this boondoggle not only hurts drivers and puts money in the pockets of the big ethanol producers, but this amendment puts a dagger in the heart of the concept of a free market. We have lots of my friends, particularly on the other side of the aisle, who praise the free market all the time--as they should. But then they fold to the ethanol lobby and vote for one of the most anti-free-market amendments that has come on this floor in decades, because not only do we subsidize ethanol, which we do, and not only do we deal with ethanol in terms of imports, not only do we require ethanol in this amendment whether you need it but, amazingly enough, this amendment says: If you do not use the ethanol, you still have to pay for it.

So somebody driving in New York or Philadelphia or Boston or Bangor, ME, somebody driving in Seattle or Portland or Los Angeles or San Francisco--areas where there is not much ethanol--is going to pay 5 cents, 10 cents, 15 cents more to go into the pockets of the ethanol producers, even when the drivers do not use ethanol.

It is so unfair to do this. It is wrong to do this. If you come from Iowa or Illinois, and ethanol is good for your gasoline and it is the best way to make it cleaner, that is fine. But if there are other ways to do this, then why do we require ethanol?

We know why. Some say it will help the corn grower. When was the last time the little family farmer benefited from a policy where three or four big companies control the show? They do not benefit when it comes to meat, they do not benefit when it comes to milk, they do not benefit when it comes to wheat, they do not benefit when it comes to corn. So to put a few pennies--and that is all it will be--in the pocket of the family farmer, we charge drivers around the country billions of dollars.

Make no mistake about it, most of those billions will not go to the family farmer, they will go to the Archer Daniels Midlands of the world--a company that was once accused of price fixing. There will be no free market here at all.

There could not be an amendment that does more damage--damage to drivers, damage to the free market, damage to the system that says we do not force things on people they do not need. It is hard to believe.

I know the political forces here. We have coalitions. We have big industry and people from the corn-growing States on one side. But if we required every person in New Mexico or Georgia or West Virginia or Montana to buy New York milk, no matter how much it cost and whether they needed it, you would be on your feet hollering. But to require New York drivers and drivers from Maine and Florida and Texas and Arizona and California and Washington to buy Middle Western corn-based ethanol is equally outrageous.

We have had this amendment around for a while. I have been fighting it as long as I have been here. I understand the political forces, but the political forces should not mitigate what is right. If you believe in the free market, if you believe in protecting drivers, do not vote for this amendment. If you would not vote for a gas tax, why vote for an ethanol tax? It is the same thing. It is the same concept. There are many other ways to make the air cleaner.

Talk to refiners on the coasts. They can crack the petroleum to meet the Clean Air standards. They are not going to buy the ethanol, anyway, but they are still going to have to pay for it.

I urge my colleagues to defeat this poorly conceived, unfair amendment that puts a dagger in the heart of anything that we might consider the free market.

I yield the floor.

Mr. President, I rise to offer an amendment which is at the desk.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, I rise today in opposition to the amendment that has been put before the Senate by my good friend and colleague from New Mexico and offer a second-degree amendment to it. Now, I do so not only out of the sincere belief that the provision will hurt consumers in New York, but that it will hurt consumers throughout the country, and that it is anticompetitive and not the way a free market ought to go.

The amendment of my good friend from New Mexico is one of those amendments that, while well-intentioned, could come back to haunt every one of us. I have been in Congress for 23 years, and every so often there is an amendment that people vote for, confident on the surface that it seems like the right thing to do, and a few years later it turns out to be a big disaster. Then our constituents turn to us and say: What the heck have you done? How could you have done this?

This is one of those amendments, like a catastrophic illness. My colleagues, beware. If there was ever an amendment quietly put in a bill that should really have a skull and crossbones label on it, at least to those of us from States without a large amount of ethanol, this amendment is it.

So today I rise to join my colleague from New York, my colleagues from California and elsewhere, mainly on the coasts, but not exclusively so, to debate an unprecedented new ethanol gas tax that would be levied on the American people by the amendment we are now considering.

So many are against any kind of gas tax. I understand that. I have opposed many gas taxes, too. But why, when the gas tax comes in the form of an ethanol mandate but has the same effect--causes the price of gasoline to those under its yoke to rise--do we not oppose it?

The amendment offered by Senator Domenici does accomplish two goals that I consider very worthy and which my amendment would let stand. One is restricting the use of MTBEs, which has resulted in groundwater pollution all over the country. The second is scrapping the oxygenate mandate that led so many States to make such heavy use of MTBE in the first place.

The proposal in the amendment also provides an antibacksliding provision to require continued efforts on clean air. That is another goal that I support. The number of people who are living longer and living better because our air is cleaner is enormous. We all benefit from that. So the antibacksliding proposal is a good measure, and I applaud it.

I believe that eliminating the oxygenate requirement and letting each region meet clean air standards in the way that suits it best is smart energy policy. If that is all my friend from New Mexico did, I would be on the floor supporting his amendment and cheering it on.

But as they say, Mr. President, there is always a catch. This amendment adds an astonishing new anticonsumer, anti-free-market requirement that every refiner in the country, regardless of where they are located, and regardless of whether the State mandates it and whether the State chooses a different path to get to clean air, must use an ever-increasing volume of ethanol.

If they do not use the ethanol--and this is the most amazing part of the bill--they still have to pay for ethanol credits. If your State does not want to use ethanol because it is so expensive to transport it--there are no pipelines--on the barges and on the boats and in the trucks--so let's say it is too expensive to do that--you still have to pay for it.

If there were ever an onerous, anticompetitive, anti-free-market provision, this is it. Where else do we mandate that people pay for something when they do not use it? Why are we saying to the car drivers of America, the motorists of America, You have to pay for this stuff even though you do not use it? It is nothing less than an ethanol gas tax levied on every driver--the employee driving to work, the mom who is driving kids to school, a truck driver earning a living. Every gasoline user in this country will pay.

Now, in 2003, the United States consumed only 2.8 billion gallons of ethanol. Starting in 2006--a mere year away--they would be required to use 4 billion gallons of ethanol. Where are my friends from the free market when we need them? We hear about the free market. Is this a free market? Are we letting everyone decide how to meet a worthy clean air standard? Absolutely not. So 2.8 billion last year; in 2006, you have to use 4 billion; and by 2012, you have to use 8 billion gallons of ethanol and increase it every year by a percentage equivalent to the proportion of ethanol in the entire U.S. gas supply after 2012 in perpetuity.

If production does not happen, if we do not have enough ethanol--I don't know how the sponsors came up with 4 billion or 5 billion or 8 billion--guess what happens. We get a big price spike. At a time when gasoline is expensive enough, do you want to be accused of passing legislation that will raise the price more? I know there are corn growers in some States, and I know that Archer Daniels Midland and all these other ethanol producers are pretty powerful. But what about all the drivers and motorists throughout the country? What about them? There are many more of them than the rest, and every one of them will be at risk. Even in the Middle West where there is plenty of ethanol, if there is not enough to meet the mandate, there is going to be a price spike for everybody.

Now, there are a lot of estimates out there that try to predict what the new mandate is going to cost motorists at the pump. In some of the more conservative estimates, it is a few pennies a gallon. But others have pegged the cost significantly higher. Even though the size of the increase may be open to discussion, it is generally agreed that this mandate is going to cause an increase in the price of gasoline.

Last year when we had a bill, gasoline was about $1.60 or $1.70 a gallon. Now it is $2.25 a gallon. Do we still want to do this? Aren't gas prices high enough? The fact that we do not know how severe the increase is going to be should give us pause. As we have seen time and time again, there is not much more of an effective way to stifle an economy or place burdens on families across America than by causing a price spike, a hike in gasoline prices.

I know the supporters of this ethanol gas tax are going to argue that the claims I am making are not accurate, and the cost of forcing the entire country to use 8 billion gallons of ethanol is a mere pittance. Remember, ethanol is very hard to transport. It cannot be carried through our existing pipeline infrastructure. It must be put on a truck, a barge, sent down the Mississippi, then sent by boat all around the country, then loaded back into a truck, taken to a local refinery, and put into the gasoline. That will be the added expense passed on to the driver. That is why this is a regional proposal more than it is a party proposal.

To forecast how much a 6-year, 8-billion-gallon ethanol mandate is going to cost consumers across the country, you first have to look at the interplay of a host of complex factors--the growth in auto travel, gasoline prices, corn prices, ethanol prices, how many ethanol plants will come on line--and all of these are inextricably linked to how high the price of ethanol is going to go.

If ethanol prices are high and manufacturing ethanol profitable, the private sector will build ethanol plants. If ethanol prices are low, they will not. So I think the numbers my opponents are using make an unrealistic set of assumptions, basically that ethanol prices will be unusually low for the next 10 years, and yet at the same time the private sector will be building new plants all over the country. You can't have it both ways. If the price is high, yes, there will be more ethanol plants. If the price is low, there are not likely to be any, and the price is going to go up either way. But in truth, whether it costs a penny a gallon or a dollar a gallon, consumers should not be forced to pay an ethanol gas tax at all.

There is no sound public policy reason for mandating the use of ethanol, other than political might of the ethanol lobby. The new ethanol tax will contribute to market volatility and price spikes, especially because the ethanol industry is highly concentrated within a few large firms located in the Middle West. In fact, ADM alone controls almost 30 percent of the market, according to CRS.

My opponents also argue that the ethanol gas tax is needed to help family farms. I take these arguments seriously. I know how many of my colleagues from the Middle West want to help family farmers who are struggling. I want to help those farmers, too. I have stood by my Senate colleagues and voted for billions of dollars in agricultural subsidies to help the farmers in the South and West, even though those commodity subsidies don't help my farmers in New York. But as I have said, the ethanol gas tax money will not be going mostly into the pockets of family farmers, it will go into the pockets of ADM and the other big ethanol companies. All of a sudden, are the farmers going to get the big benefit? They don't get it for milk. They don't it for corn. They don't get it for meat. Is the beneficent rule of ADM going to give our corn growers the benefits of this or do you think ADM and the other big companies will take the benefit for themselves?

If you want to help our family farmers, take the money you are using that will cost this and give it to them, and you will spend a lot less money and help the family farmer a lot more without all the middlemen who don't need the help.

The final argument my opponents will make--and this is a cynical one--is that if New York and California and other States want to clean up their water by banning MTBEs and maintaining clean air, they should have to pay the price of an ethanol gas tax, and it is political naivete to think otherwise. My State has already banned MTBE. So have others, such as California, Colorado, Connecticut, Indiana, Illinois, Iowa, Kansas, Kentucky, Maine, Michigan, Minnesota, Missouri, Nebraska, Ohio, South Dakota, and Washington. Every one of these States has enacted its own MTBE bans or taken steps to restrict its use. A number of other States are in the process of taking action as well. Because what we have learned is that MTBEs pollute the ground water.

Every one of those States that has banned MTBE is going to find itself in an impossible dilemma. Their citizens are demanding they ban MTBE, but with the oxygenate requirement in place, they can't do so. Recently, the EPA denied the application of New York and California for a waiver from the oxygenate requirement, putting States with MTBE bans between a rock and a hard place. Our citizens' health and the environment are being held hostage to the desire of the ethanol lobby to make ever larger profits. Why didn't the EPA grant the waiver? It didn't affect clean air or clean water. Raw politics, trying to suck money out of one region and put it in another. That is not fair. That is not right.

Our citizens' health and environment are being held hostage to the desire of the ethanol lobby to make ever larger profits. The administration has already gone along. Will this Senate?

It is an outrage. For Congress to tell Americans across the country that we refuse to clean up the air and water unless they pay off ADM is unconscionable. There is no public policy reason on Earth not to allow States to ban MTBEs and remove the oxygenate requirement and keep clean air standards in place without requiring them to buy ethanol.

In New York, we have been forced to for over a year and a half. Our gasoline prices are too high already, and the unnecessary ethanol requirement we face is not helping.

In conclusion, I ask my colleagues to support my amendment to strike the ethanol mandate. If you believe that Congress has the obligation to protect the health of our citizens and the environment, support banning MTBE, getting rid of the oxygenate requirement, and maintaining clean air standards. Don't support forcing American consumers to pay for ethanol in exchange. If you believe the Congress has an obligation to protect consumers and keep our free market running as efficiently as possible, then, again, I ask Members, please, do not support forcing American consumers to raise their gas prices and to pay for ethanol.

I am happy to yield for a brief question to my good friend from Iowa.

I didn't think I had yet yielded the floor.

I was about to, but I am finished with my statement.

Well, let me answer my friend. The cost of ethanol varies greatly depending on what region of the country the ethanol is produced in. What makes it so expensive for New Yorkers is not the cost of actually making it in Iowa or Illinois or Kansas. What makes it so expensive is there is no cheap way to get it from the cornfields of Iowa to the gas stations of New York and, as a result, the cost of transporting the ethanol. Sure, it can be made out there. We don't have many ethanol plants in New York. They have to put on it barges. They have to ship it slowly down the Mississippi. They have to unload it onto boats. The boats have to go round the gulf coast, go around Key West, up the east coast. They have to dock in New York City. It then has to be loaded onto trucks and sent to gas stations--a lengthy and expensive process.

Let me say in all seriousness to my good friend from Iowa, I have talked to some of the major refiners in the Northeast. They are able to meet the clean air standard more cheaply and better without ethanol than with it. And by our requiring them to put the ethanol in the gasoline is the only reason they do it. If we didn't require them but kept the clean air standard, we would have gasoline that is just as clean but a lot cheaper for constituents.

I want to help your corn farmers, but I don't want the housewife who drives the kids to school or the salesman who has to go door to door to be subsidizing your corn farmers. Let the whole government do it.

I am happy to yield for another question.

We would like to send them to Iowa on vacation to help pick the corn, but, certainly, we hope that this ethanol fight, as fractious as it is--I can state that the citizens of New York will not declare war on the citizens of Iowa.

Although the bill declares economic war on the citizens of New York, Connecticut, California, and other places which don't have the ethanol.

By the way, I say to my good friend from Iowa, I would not make the analogy that what the ethanol producers are doing is the same as what OPEC is doing with the oil, both causing the price to go way up. I don't like the big oil companies in terms of what they do, but I don't think Archer Daniels Midland is much better.

I say to my friend, I would like nothing better than to break the cartel. Some say one of the ways to break the cartel is to put a tax on gasoline. The higher you tax the gasoline, the less you will need OPEC. That is true. But the reason we reject that high tax on gasoline is the burden it puts on average people. Well, if that burden is placed on the average driver in New York to pay a lot more to the ethanol producers rather than OPEC, what have we gained? Fifty cents out of your pocket? If faced with a choice, I would rather have it go to an American company--although there is ExxonMobil and others--I would rather it go to an American producer in the cornfields in Iowa than to the oilfields in Saudi Arabia. But neither is a very good choice. Both of them cause huge hardship on the consumer by raising the price.

So all I say to my friend from Iowa, who I know has the interests of the average worker at heart--all I say to him is, if ethanol is better than gasoline and cheaper for people in Iowa or Illinois, God bless you, use it.

Let me ask my friend a question. Is it fair--because we won't use the ethanol in a lot of instances--to say to us, as this amendment does, you have to pay for it whether you use it or not?

It is $2.25.

If my colleague can get the price of whatever it takes to drive a car down to $1.22 in New York and have the same efficiency-- it is almost as efficient, not quite, at 90 percent--and the same level of cleanliness in the air, I would be all for it. But everyone knows, again, whether it is $1.20 or $1.60, the basic cost for us is the transportation cost.

My colleague from New Mexico has been waiting very patiently. I appreciate the spirit of my good friend from Iowa in this dialog, which we have disagreed on over the years. I don't know if we will ever agree on it.

I am happy to yield the floor so my colleague from New Mexico can make his comments.

Maybe under the chairman's leadership--if the chairman will yield--we should add that wonderful amendment to this bill and pass it right now.

Mr. President, I am here to speak on the nomination of William Pryor to the Eleventh Circuit. Bill Pryor's nomination is the last of the three covered by the deal worked out by 14 of our colleagues to avoid meltdown in the Senate.

Yesterday was the vote on Janice Rogers Brown. It was a sad vote. Not a single Republican Senator broke with his or her party to vote against a nominee whom even the National Review, George Will, and others singled out for her judicial activism and radicalism. It showed again that the other side is willing to march in almost total lockstep with the President. If they had their way, the Senate would be a complete rubberstamp for any nominee the President proposes--totally against what the Founding Fathers intended this Senate to be.

The count is 2,921 to 2. Out of almost 3,000 votes on appellate court nominees, 44 in all, only twice have Republican Senators dared to deviate from the party line. Is that the kind of independent thinking that an up-or-down vote entails? It is a sad day, indeed. For sure, Janice Rogers Brown's views do not mirror those of most of my colleagues or even come close.

In a moment, I will go through all the reasons I am opposed to Judge Pryor's nomination and all the things he said with which I strongly disagree. Here is one I agree with. In his testimony before the Senate in 1997, Judge Pryor told Senators, ``Your role of advice and consent in judicial nominees cannot be overstated.'' On this point, Judge Pryor and I see eye to eye.

As we await a slew of new nominations from the President, as we await the possible retirement of a Supreme Court Justice, and as we vote on the current nominees in the wake of an agreement that specifically urged President Bush to consult the Senate in advance of nominations, I again plead with the President and my colleagues to look to the future. Look to a future where harmony can replace acrimony in the Senate, where bipartisanship can replace one-upmanship, and where discourse can replace demagoguery. How can that be done? It is very simple. The President can, as he said he would in a recent press conference, consult meaningfully with Senators before trying to jam extreme nominees down our throats.

The renomination of Bill Pryor was the most breathtaking example of the President's ignoring checks and balances and bypassing the Senate's role in the nomination and confirmation process. The President stuck a thumb in the eye of bipartisanship when he renominated people like Janice Rogers Brown, Priscilla Owen, and Richard Myers after they were rejected by the Senate.

But the President did not get his way with William Pryor, and then he took the truly extraordinary step of making a recess appointment. While the renomination of rejected judges was a thumb in the eye to bipartisanship, the recent appointment of Bill Pryor was a punch in the face. This was particularly outrageous because not only is Bill Pryor one of the most ideologically driven nominees we have ever seen but also because there were questions about his credibility with the committee, and there was an unfinished investigation regarding the Republican Attorney General Association that he founded.

It is not enough for him or any other nominee to simply say: I will follow the law. His views are too well known. His record is clear about how he will vote as a judge. We all know that judging is not a rote process. We all know our own individual values and thoughts influence how we interpret the law. If it were just by rote, we would have computers on the bench instead of men and women in black robes. There is a degree of subjectivity, especially in close cases and controversies on hot-button issues. It is hard to believe that the incredibly strong ideological bent of this nominee will not have an impact on how he rules.

As my colleagues know, I have no litmus test when it comes to nominees. I am sure most of this President's judicial nominees have been pro-life, but I voted for so many of them because I have been persuaded they are committed to upholding the rule of law. I, for one, believe a judge can be pro-life and yet be fair and balanced and uphold the woman's right to choose. But for a judge to set aside his or her own personal views, the commitment to the rule of law must clearly supersede his or her personal agenda. That is a trick some can pull off. Not everybody can.

Let's take a moment to review some of the more radical remarks William Pryor has made and some of the more polemical positions he has taken. On criminal justice issues, I tend to be conservative. I tend to agree with most

of my Republican colleagues. But there are lines which should not be crossed.

William Pryor defended his State's practice of handcuffing prisoners to hitching posts in the hot Alabama Sun for 7 hours without even giving them a drop of water to drink, and then he criticized the Supreme Court--hardly a liberal court--when it held this practice violated the eighth amendment ban on cruel and unusual punishment. We do have standards. We are not a medieval society, even for those of us who believe in tough punishment. What Pryor did, he goes far, too far, to say the least. In criticizing the Supreme Court's decision, he accused the Justices of applying their own subjective views on appropriate methods of prison discipline. The Supreme Court, which I believe was unanimous--or maybe 8 to 1--in rejecting William Pryor's view, was far more appropriate than he was.

He also called the Supreme Court's decision in Miranda--something that is part of judicially accepted law--one of the worst examples of judicial activism.

He has vigorously opposed the exemption of retarded defendants from being executed. He submitted an amicus brief to the Supreme Court in Atkins v. Virginia, and he argued that mentally retarded individuals should be subjected to the death penalty like anyone else.

When issues have been raised about the fair and just administration of punishment, particularly in some of these cases, Mr. Pryor's reaction has been to scoff.

When asked what steps Alabama would take to ensure that the death penalty was fairly applied--and I have supported the death penalty-- regardless of the defendant's race, he said:

I would hate for us to judge the criminal justice system in

a way where we excuse people from committing crimes because,

well, we have imposed enough punishment on that group this

year, and that's precisely what you are being asked to think

of with that kind of analysis.

It is ridiculous. The analysis simply said, don't take race into account. This is a judge who will be fair and impartial and open to advocates' positions on both sides of an issue?

How about States rights? Mr. Pryor has been one of the staunchest advocates of efforts to roll back the clock, not just to the 1930s but to the 1890s. He is an ardent supporter of an activist Supreme Court agenda cutting back Congress's power to protect women, workers, consumers, the environment, and civil rights.

As Alabama's attorney general, Mr. Pryor filed the only amicus brief from among the 50 States. Only 1 attorney general out of all 50 filed a brief urging the Supreme Court to undo significant portions of the Violence Against Women Act. I am a proud author of that act. I carried the bill in the House when I was a Congressman. And to be so opposed to preventing women from being beaten by their husbands and taking remedies to deal with women who are so beaten makes no sense to me.

In commenting on that law, Pryor said:

One wonders why [VAWA] enjoys such political support,

especially in the Congress.

One wonders why it enjoys such support when, for the first time, we in Washington, hailed by Republicans and Democrats, started trying to help women who were beaten by their husbands? When they used to go to certain police stations, they were told--not out of malice but out of ignorance--go home, it is a family matter; whose children had watched them be hit? And he cannot understand why it enjoys such political support? He is not the kind of man I want on the court of appeals.

How about child welfare? Bill Pryor's ardent support of States rights extends even to the realm of child welfare. At the same time he was conceding that Alabama had failed to fulfill the requirements of a Federal consent decree regarding the operation of a child's welfare system, he was demanding his State be let out of the deal.

On environment, we have more of the same concerns. Pryor was the lone attorney general to file an amicus brief arguing the Constitution does not give the Federal Government power to regulate interstate waters as a habitat for migratory concerns.

When it comes to disabilities, contrast Mr. Pryor's approach with the approach he took in Bush v. Gore. Bill Pryor was the lone State attorney general to file an amicus brief supporting the Supreme Court's intervention in Florida's election dispute. Every other attorney general, Democrat and Republican, had the sense to stay out of this dispute. Not Mr. Pryor.

Yet when it came to the ADA, the disabilities act, Mr. Pryor was the driving force behind the case in which a nurse contracted breast cancer, took time off to deal with her illness, and when she returned-- in violation of the ADA--she found that she was demoted.

In conclusion, Mr. Pryor is extreme. Again, why is he, over and over again, 1 of the 50 attorneys general--there are a lot of conservative attorneys general--to file these briefs? Why is he, on things that are part of the mainstream of American feelings and jurisprudence-- environment, Americans With Disabilities Act--way over?

Why did he say:

I will end with my prayer for the next administration.

Please, God, no more Souters?

That is what he said before the Federalist Society, a Republican appointee to the bench. The man is clearly an ideologue. The man does not respect the rule of law in too many instances.

As I have said before, Bill Pryor is a proud and distinguished ideological warrior. But ideological warriors, whether from the left or from the right, are bad news for the bench. They tend to make law, not interpret law. That is not what any of us should want from our judges. Ideological warriors, whether from the left or the right, do not belong on courts of appeals.

I will suggest that you do not need to take my word for it. Here is what Grant Woods, the former attorney general of Arizona, and a conservative Republican, said of Mr. Pryor: While I would have great question of whether Mr. Pryor has an ability to be nonpartisan, I would say he was probably the most doctrinaire and partisan attorney general I have dealt with in 8 years. So I think people would be wise to question whether or not he is the right person to be nonpartisan on the bench.

I could not have said it better myself.

Mr. President, I yield the floor.

I ask unanimous consent that the time that was allocated to Senator Feinstein from 1:30 to 2 be allocated to me.

Mr. President, I am here once again to debate whether Janice Rogers Brown deserves to be placed on the D.C. Court of Appeals. I have been very actively involved in this issue. I could not feel more strongly about a nominee to the bench. I could not feel more strongly about whether somebody belongs on the bench than Janice Rogers Brown.

We know for a fact that she is intelligent. We know she is articulate. We know she is accomplished and we know she is passionate. I respect every one of those qualities. She has a particular world view. She is not shy about it. It is apparent in her speeches, it is apparent in her opinions, and it is apparent from her testimony before the Judiciary Committee.

Were she to be elected to the Senate, I would relish the opportunity to debate the merits of the various laws she might introduce because if one looks at her writings, it is pretty clear. She well might introduce legislation to repeal Social Security. She well might introduce legislation to erase child labor laws. She well might introduce legislation to eliminate workplace safety laws. She well might introduce a bill to abolish zoning laws because in all of her speeches and opinions she has stood for these things.

Were she a Senator, she would no doubt be a passionate champion of a far right legislative agenda, and that would be her mandate. That is clearly what she believes. That would be her right. She would be free to legislate to her heart's content. That is our job as Senators.

Were she a legislator she could not only continue to fulminate, as she has, about the New Deal being a triumph of our socialist revolution, she could actually introduce legislation to overturn it. Were she a legislator, she could not only vilify, as she has, ``senior citizens who blithely cannibalize their grandchildren because they have a right to get free stuff,'' she could introduce legislation to eliminate benefits for the elderly.

Were she a legislator, she could not only say, as she has, that ``where government moves in, community retreats, and civil society disintegrates,'' she could actually introduce legislation to erase environmental laws, worker protection laws, minimum wage laws and other laws that have protected a wide swath of American people for decades, some even centuries.

Janice Rogers Brown is not a legislator, although sometimes she plays that role. She has been nominated to the bench, not elected to the Senate.

I cannot put it any better than conservative commentator Andrew Sullivan, who said that given her judicial activism, ``Janice Rogers Brown should run for office, not the courts.''

Now, that is a conservative columnist who is hitting the nail on the head. It is not her views he opposes, it is, rather, the means by which she will attempt to impose those views on the American people, through the courts.

So while Janice Rogers Brown is smart, passionate, and articulate, Janice Rogers Brown is also hands down the worst nominee put forward by President Bush. She wants to make law, not interpret law. I thought that was what mainstream Democrats and mainstream Republicans alike wanted to avoid on the bench at all costs.

I have been asking a question on the floor for the last several days. How can moderates, or moderate conservatives, support Janice Rogers Brown when she does not meet any of the criteria they claim a judge must meet? Is she a strict constructionist? No. When it suits her. Is she a judicial activist? Yes, whenever she wants to find a result that meets her world view. Is she

out of the mainstream of even conservative thinking? It seems pretty obvious she is.

I have yet to hear a good answer from my colleagues about why they would vote for her. It should not be her history. It is an admirable history, but that is not why we place people on the bench.

I have heard a lot of rhetoric, I have heard a lot of tortured explanations, I have heard a lot of selective citations, and I have heard a lot of smokescreens. But you know what I have not heard. Little of what I have heard is a real response to the substance of comments made by distinguished conservative thinkers, not statements by Dick Durbin, Ted Kennedy, Harry Reid, or Chuck Schumer but by vocal conservatives, about Janice Rogers Brown.

My friend from Utah, Senator Hatch, said on this floor yesterday: Over the years, I have grown accustomed to talking points of Brown's liberal opposition. I think I have committed some of them to memory now. Some liberal elitists charge she is extreme. Some liberal elitists charge she is out of the mainstream. Some liberal elitists charge she is a radical conservative.

Liberal elitists? Let us take a look at the record of some of the liberal elitists the Senator from Utah so disdains.

Here is National Review writer, Ramesh Ponnuru, a very conservative writer. He says:

Republicans, and their conservative allies, have been

willing to make . . . lame arguments to rescue even nominees

whose jurisprudence is questionable. Janice Rogers Brown . .

. has argued that there is properly an ``extra-constitutional

dimension to constitutional law.'' She has said that judges

should be willing to invoke a higher law than the

Constitution.

That is from the National Review--let me repeat, the National Review. How many liberal elitists make their living writing for the National Review?

Here is more from the National Review: Janice Rogers Brown has said that judicial activism is not troubling per se. What matters is the world view of the judicial activist.

Or how about George Will? Is he a liberal elitist, I ask my friend from Utah? Is he out of the mainstream? Well, he thinks Janice Rogers Brown is. He says that Janice Rogers Brown is out of the mainstream of even conservative jurisprudence. Maybe someone can tell me when George Will became a liberal elitist. Here is what he said:

Janice Rogers Brown is out of that mainstream [of even

conservative jurisprudence] . . . It is a fact. She has

expressed admiration for the Supreme Court's pre-1937 hyper-

activism in declaring unconstitutional many laws and

regulations of the sort that now define the post-New Deal

regulatory State.

Which mainstream was he talking about? George Will wrote that she was out of the mainstream of conservative jurisprudence.

How can somebody who calls the New Deal a socialist revolution be mainstream?

Or listen to the words of conservative writer Andrew Sullivan. He is such a Brown-bashing liberal elitist that he actually agrees with many of Justice Brown's views. He said there is a case to be made for ``the constitutional extremism of one of the President's favorite nominees, Janice Rogers Brown. Whatever else she is, she does not fit the description of a judge who simply applies the law. If she isn't a `judicial activist' I do not know who would be.''

Sullivan also stated: I might add, I am not unsympathetic to her views, but she should run for office, not for the courts.

It is not the liberal elitists but thinking conservatives, remembering the principles that used to guide conservatives in picking judges, who are pointing out Janice Rogers Brown's shortcomings. What we really have on the other side by some is opportunism. Abandon the view of what a judicial activist should be. Abandon the view of what a strict constructionist should be. We like her views. We are supporting her. There has not been anyone like Janice Rogers Brown to come before us in a very long time. A conservative nominee, if the rhetoric from the President and the Republican leaders is to be believed, must be at least three things: a strict constructionist, judicially restrained, and mainstream.

We have not seen a more activist judge nominated than Janice Rogers Brown. We have not seen a judge who believes less in judicial restraint than Janice Rogers Brown. We have not seen a judge nominated more out of the mainstream than Janice Rogers Brown.

She is not a strict constructionist. When it came to proposition 209, she said she should ``look to the analytical and philosophical evolution of the interpretation and application of Title VII to develop the historical context behind'' proposition 209. That is not the legal analysis you would expect from a strict constructionist.

Is Janice Rogers Brown a dependable warrior against the scourge of conservatives everywhere--judicial activism? No, there has not been a nominee to the bench who is more a judicial activist than Janice Rogers Brown. Her own words demonstrate that she is quick to want to reverse precedent, the very definition of an activist judge.

Time and time again, she has jumped at the chance to reshape settled law. She said:

We cannot simply cloak ourselves in the doctrine of stare

decisis.

That was in People v. Braverman in 1998. That is anathema to the whole way judges make law. Stare decisis, looking at previous cases, is the governing principle; strict constructionists believe in it more than anyone else.

Again, I repeat this comment and I will be incredulous if people-- particularly moderates or those who claim to want to uphold conservative judicial principles--can vote for her:

We cannot simply cloak ourselves in the doctrine of stare

decisis.

She also said she was ``disinclined to perpetuate dubious law for no better reason than it exists,'' People v. Williams.

The commercial speech doctrine needs and deserves

reconsideration, and this is as good a place as any to begin.

That was Kasky v. Nike, 2002.

Here is what the California State bar judicial nominees said, who gave her a ``not qualified'' rating when she was nominated to the supreme court in 1996: She was ``insensitive to established legal precedent.''

Again, the record shows the President has not nominated a judge more activist than Janice Rogers Brown. The President has not nominated a judge more out of the mainstream than Janice Rogers Brown. The President has not nominated a judge who has less respect for judicial restraint than Janice Rogers Brown.

Some of her views are so far out of the mainstream that for my colleague to compare Justice Ginsburg to Janice Rogers Brown is laughable. Let's remember how Justice Ginsburg was approved. Senator Hatch was called by Bill Clinton. Senator Hatch researched Justice Ginsburg and said she would be acceptable.

Has President Bush called anyone and asked about Janice Rogers Brown? No. If I were President Bush, I would not want to because the answer they would get back would be clear: She does not belong on the bench.

Let me give another example. If you ask most lawyers to name the worst Supreme Court cases of the 20th century, Lochner would be near the top of every list. But Justice Brown thinks it is correctly decided. That is a decision in 1905. Does that place her in the mainstream?

She described the New Deal as a triumph of America's socialist revolution. Does that place her in the mainstream?

On another occasion, she said:

Today's senior citizens blithely cannibalize their

grandchildren because they have a right to get as much `free'

stuff as the political system will permit them to extract.

Does that place her in the mainstream?

In another instance she wrote:

Where government moves in, community retreats, civil

society disintegrates, and our ability to control our own

destiny atrophies.

Does that place her in the mainstream?

Janice Rogers Brown is so far out of the mainstream she cannot even see the shoreline. Janice Rogers Brown, as George Will has correctly pointed out, may be many things, but she is not even in the mainstream of conservative jurisprudence.

Some of my colleagues on the other side have said, well, she is being unfairly attacked because of a few ``musings'' and ``extra judicial'' comments. At her hearing, Justice Brown herself made the point we should view her speeches separately from her judicial opinions. A little defensive, I would say.

Let's compare her speeches and her judicial opinions. In a speech to the

Federalist Society, Justice Brown compared the end of the Lochner era to a socialist revolution. Her words: ``socialist revolution.''

She distances herself from that comparison by saying that it was part of a speech made to a young audience designed to ``stir the pot.'' I think that is a pretty radical comment for any sitting judge to make in any context, even if it is designed to stir debate.

But I am not satisfied it is just her personal view and has no bearing on her judicial opinions because time and time again what she says in these speeches is repeated in her opinions.

In Santa Monica Beach v. Superior Court she called the demise of the Lochner era the ``revolution of 1937.'' That is nearly identical to what she said in the Federalist Society speech.

Is this what she is going to do when she is on the court? Stir the pot?

It is not the only example. Here is another. She was asked about a speech given to the Institute of Justice where she said:

If we can invoke no ultimate limits on the powers of

government, a democracy is inevitably transformed into a

Kleptocracy--a license to steal, a warrant for oppression.

She dismissed that speech saying it does not reflect necessarily her views as a judge.

But in San Remo v. City and County of San Francisco, she said, regarding a planning ordinance:

Turning a democracy into a Kleptocracy does not enhance the

stature of thieves; it only diminishes the legitimacy of

government.

Her views as a private citizen, and her views as a judge seem to be, unfortunately, quite the same. It couldn't be more obvious. She cannot explain how virtually identical rhetoric that many would call extreme finds its way into both her speeches and her judicial opinions.

I will go back to my friend from Kentucky, Senator McConnell. He drew a comparison in support of Janice Rogers Brown. He said, like Janice Rogers Brown, Ruth Bader Ginsburg had made some provocative comments early in her career, but she was confirmed by her Senate.

I say to my colleague from Texas: Senator, I know Ruth Bader Ginsburg. Ruth Bader Ginsburg is a friend of mine. Janice Rogers Brown is no Ruth Bader Ginsburg.

Justice Ginsburg established such a record of moderation on the D.C. Circuit Court of Appeals that President Clinton was able to nominate her after getting advice from Senator Hatch that she was a mainstream liberal.

No one expects our President to nominate liberal nominees. They are going to be conservative. We have supported these conservatives up and down the line. Now the number is 209 out of 219 because, with the approval of Priscilla Owen, we have no longer blocked 10. When someone is out of the mainstream, that is when we oppose them.

In the end, what does the record show about Janice Rogers Brown? Not the rhetoric, not the smokescreens. Again, I challenge my colleagues to discuss her record, not dismiss it, saying it is just rhetorical. How can anyone justify a record such as this?

Here is what Janice Rogers Brown's record shows. She is not strict in her construction. She is not mainstream in her conservatism. She is not quiet about her activism.

So I am left with the same question: Why is Janice Rogers Brown touted as the model conservative judge when she is anything but conservative in her judicial approach? There are many Senators from across the aisle who would vote against such a candidate because her judicial philosophy could not be more out of sync with theirs. But I worry that there is enormous political pressure from a few way-off-the- top groups, the Senators from the other side.

Here is the chart that shows the pressure. These are the ``yes'' votes for court of appeals nominees and ``yes'' votes for cloture on them compared to the ``no'' votes. Of all my Republican colleagues, every vote tabulated, 2,811 times did our Republican colleagues vote yes; twice did they vote no. One of those was the Presiding Officer who voted against Priscilla Owen the other day. The other was Senator Lott who voted against Mr. Gregory on the Fourth Circuit a few years ago. Otherwise, none.

Senator Frist has spoken in the last few weeks about leader-led filibusters of judges--whatever that means. What I am concerned about is a leader-led rubberstamping of nominees, nominees who have not even convinced noted conservatives they belong on the bench. I continue to believe Judge Brown was one of the worst picks this President has made to our appellate courts. That is based on her record, not on her race or her gender or her background.

I wish my friends across the aisle would look at that record. If my colleagues on the other side ask themselves three simple questions--is the nominee a strict constructionist? Is the nominee a judicial activist? Is the nominee a mainstream conservative?--they would be forced to vote against her.

I could not support Judge Brown's nomination the first time; I cannot support the nomination now. I urge my colleagues, especially my moderate colleagues from the other side of the aisle, to vote against her also.

I yield the floor and suggest the absence of a quorum.

Mr. President, I thank my colleague from Alabama for his remarks. I did not hear them all, but he did say the record of Justice Janice Rogers Brown is compelling, and I agree with that. It is so far off the mainstream that one has to look at it compellingly. It is hard to believe, frankly, that the President nominated someone with these views. I think it shows how far over and out of the mainstream the President's nominees are and, unfortunately, how much in lockstep the majority in the Senate walks with these nominees.

I have no doubt that Justice Brown is smart and accomplished. Her rise from humble beginnings is impressive. That does not make somebody who belongs on the second most powerful court in the land. Someone's rise from humble beginnings is very important, but it does not mean they can run a major company. It does not mean they would be a great lineman or center or linebacker for the New York Giants. It is a wonderful thing, but it does not qualify them for the job.

Judge Janice Rogers Brown's humble rise cannot offset her radical and regressive approach to the law. I would argue that none of the views of the nominees we have had so far are so off the charts as Janice Rogers Brown. None of what she has done in her life can mitigate her hostility to a host of litigants who have appeared before her. If someone is polite and then takes your argument and throws it out, even though the law is behind you, and leaves you hopeless, it does not mean they have done a good job as a judge.

Janice Rogers Brown, on the merits, is the most out of the mainstream, the least deserving of all of the President's appeals court nominees. In a moment, I am going to review those reasons. Before I do, I want to ask a question that has been nagging me for a while: Why are so many self-described conservatives planning to vote for her? She is not conservative, she is a radical. She is the opposite of a conservative. And why are moderate Senators on the other side of the aisle boarding the Brown bandwagon when everything she believes is against what they believe?

Is it that this nominee, more than any other, embodies the conservative ideal for an appellate judge? Let's see what conservatives describe as what a judge ought to be.

This is the President and Republican leaders. They said a model judge should be a strict constructionist, judicially constrained, and mainstreamed. Janice Rogers Brown is none of those, absolutely none. Let's take a look at the record.

Is she a proud and principled strict constructionist? Is that why the President and Republican leaders are pushing her? President Bush has said time and again that he wants judges who will not legislate from the bench. He

said he wants strict constructionists in the mold of Antonin Scalia. But Janice Rogers Brown is no more a strict constructionist than I am a second baseman for the New York Yankees. Anyone who says that the New Deal is a socialist revolution and ought to be undone, when we have had 70 years, seven decades of law based on the construct of the New Deal; where 99 percent of America agrees--does that person belong on the bench? Absolutely not. The New Deal is a socialist revolution and ought to be undone--does anyone on this side of the aisle agree with that?

And then defend for me once, I would like to hear in all the debate we had and will have on Janice Rogers Brown one person defending those comments. The only person I heard is Orrin Hatch: Well, she tries to be inflammatory, or she tries to get people's attention. She has said things such as this over and over.

If you believe the New Deal was a socialist revolution that ought to be undone, you are not a strict constructionist. The legislature, the Congress, and the President, Democrats and Republicans, from 1932 on have said the things we have done in the New Deal and built upon on the basis of the New Deal ought to stay. Should one judge be able to undo that? Then why are we voting for her? That is not strict constructionism. That is not conservatism.

Listen to what a conservative commentator, Ramesh Ponnuru, wrote about her in the National Review some time ago. The National Review is a conservative publication.

Republicans and their conservative allies have been willing

to make lame arguments to rescue even nominees whose juris

prudence is questionable.

He continues to say--this is not my quote:

Janice Rogers Brown has argued there is properly an extra

constitutional dimension to constitutional law.

Those are her words.

She has said that judges should be willing to invoke--

And this is Mr. Ponnuru quoting Janice Rogers Brown, not me--

She has said that judges should be willing to invoke ``a

higher law than the Constitution.''

You can find a higher law to the Constitution if you so believe from the far right, from the far left, maybe from the animal rights people or the vegetarians, but that is not what judges should do.

Take a look at her own words in a dissent involving a California proposition, proposition 209. In that case, which involved affirmative action, Justice Brown did not feel compelled to limit herself strictly to the language of that proposition. Instead, she decided that she should ``look to the analytical and philosophical evolution of the interpretation and application of title VII to develop the historical context behind proposition 209.''

This sounds like Justice Brennan or some of the very liberal judges the conservatives decry. If you are going to make up your own law, are we saying on the other side of the aisle, you are not a strict constructionist if you want to make up your own laws to the left, but you are a strict constructionist if you want to make up your own laws to the right? As somebody who believes deeply in moderation on the bench, I am offended by either side.

So Janice Rogers Brown is not a strict constructionist, but is she otherwise a proven warrior against the scourge of conservatives everywhere--judicial activism? No. She is clearly an activist judge. She takes what comes into her own mind--she is bright, but a lot of her views compared to American law veer way off course--and she writes them in her opinions. Decades of elections, tens of thousands of legislators, executives, and she just throws them out the window because she happens to believe she knows better than everybody else.

That is what a judicial activist is. That is what the conservative movement against judicial activism rebelled against.

Well, conservatives and moderates alike have criticized her for her activism, and her own words show her to be as activist as they come. Her own words demonstrate she is quick to want to reverse precedent, the very definition of an activist judge. When it comes to reversing precedent, one might say Janice Rogers Brown has an itchy trigger finger; she cannot wait to reverse precedent.

Here is what she said in People v. Roberman, 1998: We cannot simply cloak ourselves in the doctrine of stare decisis. Hello? I went to law school. I learned throughout law school, one studies cases because of stare decisis. One is supposed to look at the train of law, and here she is: Forget stare decisis.

If that was said by a liberal who wanted to move things way over to the left--a liberal would not say it; it would be someone further over--what would be heard on that side of the aisle? What does it say about her reluctance to be an activist?

Time and time again she has jumped at the chance to reshape settled law. Listen to a few statements from opinions she has written, not from speeches. Everyone has said, do not judge her speeches--they are inflammatory and intended to be so--but her opinions. Here she says: The commercial speech doctrine, which has been established in our law for decades, needs and deserves reconsideration and this is as good as any place to begin.

She wrote she was disinclined to perpetuate dubious law for no better reason than it exists.

I had a history professor in college. He said his first lesson of history is we are no smarter than our fathers, and people who think they are much smarter than people who came before them and have nothing to learn from them do not belong on the bench. Here she is: disinclined to perpetuate dubious law for no better reason than it exists. Is she saying all the people who wrote those opinions should be ignored?

On other occasions she has talked about ``taking a fresh look'', her words, at settled doctrine under California law. And just listen to the California State Bar Judicial Nominees Convention which gave Justice Brown a not qualified rating when nominated to the California Supreme Court in 1996. The rating in part was because of complaints that she was ``insensitive to established legal precedent.''

Or listen to the words of conservative writer Andrew Sullivan who agrees with many of Justice Brown's views. He said there is a case to be made for ``the constitutional extremism of one of the President's favorite nominees, Janice Rogers Brown. Whatever else she is, she does not fit the description of a judge who simply applies the law.'' This is Andrew Sullivan, conservative commentator, not Chuck Schumer. He said: If she is not a judicial activist, I do not know who would be.

Mr. Sullivan made it a point to say he might agree with some of her views but not her penchant for imposing those views in her position as a judge, and that is the point. God bless her for her views. This is America. We can all have different views. But when one becomes a judge and they take an oath of office to uphold the Constitution, part of that means they uphold the traditions of law that are under the Constitution.

Here is what Sullivan said:

I might add, I am not unsympathetic to her views but she

should run for office, not the courts.

He has it exactly right. Let her run on her views that the New Deal was a socialist revolution. Let her run on her views that there should not be child labor laws. Let her run on her views that there should be no zoning laws so someone who wanted to open a pornographic store next to a high school had a constitutional right to do so or somebody could buy a tract of land right next to your nice suburban house and put in a factory.

How about Mr. Ponnuru, again, a conservative writer from the National Review magazine:

She has said that judicial activism is not troubling per

se. What matters is the world view of the judicial activist.

In other words, one can be a judicial activist if they agree

with her views, not if they do not.

I have to say to my friends on the other side of the aisle, they have lost a lot of the argument on judicial activism when they support Janice Rogers Brown. Judicial activism is not sometimes yes and sometimes no. An activist is somebody who makes his or her own law, it comes out of their own head and supersedes everything we have known, whether it is left, right, center.

It is incredible. It is incredible that we are discussing Janice Rogers Brown. I can imagine the reaction if a Democratic President put forward a nominee

who said all of these things. We would have pandemonium on that side of the aisle. But guess what. President Clinton never would have nominated someone like this. It is only because President Bush is so in the thrall of the hard right that he has to do this. Thank God it is not true of most of the judges he has nominated, conservative though they may be.

So as the record reflects, Janice Rogers Brown does not have the impulses of a restrained judge. She has the passions of a judicial activist and that was the type I thought conservatives wanted to keep off the bench at all costs.

How about this argument: She is not a strict constructionist and she is a judicial activist. But are her judicial views otherwise in the mainstream of conservatism? Is that why people on the other side of the aisle support her? My friend Jeff Sessions said Justice Brown is in the mainstream. Well, let us ask the American people if her views are in the mainstream. Or first let us ask conservative commentator George Will, a very respected man--and I have more respect for him because at least he is calling the shots as he sees them, not like my colleagues who seem to be marching to the tune of Janice Rogers Brown without even thinking. Here is what George Will said, and in fairness to George Will he was first saying that Priscilla Owen, who we opposed, is part of the mainstream, but here is what he said about Brown:

Another of the three, Janice Rogers Brown, is out of that

mainstream. That should not be an automatic disqualification,

but it is a fact . . .

I say to Mr. Will, it surely is a disqualification to me, but that is not the point. Even George Will says Janice Rogers Brown is out of the mainstream. Which mainstream was he talking about? George Will was talking about the mainstream of conservative jurisprudence.

He went on to say, and these are his words:

It is a fact she has expressed admiration for the Supreme

Court's pre-1937 hyperactivism in declaring unconstitutional

many laws and regulations of the sort that now define the

post-New Deal regulatory state.

George Will has the forthrightness, straightforwardness, and courage to admit what Janice Rogers Brown is. When will one of my colleagues from the other side?

What does the record then show about Janice Rogers Brown? She is not strict in her construction. She is not mainstream in her conservatism. Nor is she quiet about her activism. So I am left with the same question: Why is it that Janice Rogers Brown is touted as the model conservative judge when she is anything but conservative in her judicial approach?

I believe there are many Senators across the aisle who would vote against such a candidate because her judicial philosophy could not be more out of sync with theirs, but I worry that there is enormous political pressure, party pressure, on those moderate Senators.

Senator Frist has spoken the last few weeks about leader-led filibusters of judges, whatever that means. Well, is this a leader-led rubberstamping of nominees who have not even convinced noted conservatives that they belong on the bench?

Let me make one other point. If one looks at all the nominees, 45 court of appeals nominees, every measure that was put forward on the other side of the aisle for every one of the court of appeals nominees, whether it is to invoke cloture or to vote for them, there was not a single Republican dissent, except one: Trent Lott on Roger Gregory for the Fourth Circuit. That was the man Jesse Helms blocked, mostly because he did not want a Black man on the Fourth Circuit, which has not had a Black man before, even though the Fourth Circuit, North Carolina, Virginia, has a large Black population.

Let us look at the merits of Justice Brown. Let us look at her views and why I feel she could not have been a worse pick. This has nothing to do with her faith, her race, her gender, or her background. We are being blind to all that. Any nominee who has these views--could be Black, White, Hispanic, Asian, man, woman--you just can't support somebody like this because of their views, not because of who they are and not because of their background. What a record she has.

In case after case, Justice Brown goes through contortions of legal logic that reach results to hurt workers, limit environmental protections, and injure basic rights. Time and time again, when a legal question is presented twice, she takes two polar opposite approaches in order to achieve the outcome she wants. That is judicial activism at its worst.

Judicial activism can be dangerous on any court, but it is especially dangerous on the DC Circuit, which is known, for good reason, as the Nation's second highest court.

Some of the things she said. She said that the Lochner case was decided correctly. The Lochner case says that States cannot pass any laws protecting workers. If you ask most lawyers to name the worst Supreme Court decision of the 20th century, Lochner would be at the top of any list. Fortunately, the Court threw it out a few decades later. Not even Justice Scalia believes States should be prohibited from passing wages and hours laws. But Janice Rogers Brown believes not only is the Federal Government not allowed to, under the commerce clause, but the States themselves cannot do anything. It is confounding. It is just unbelievable.

How about her views in the San Remo case, where she says all zoning laws are a taking of property, an unconstitutional taking of property? Does anyone in America believe that? Does the most conservative Member of this Chamber? I don't know who it might be. We might have a race for that. But does the most conservative Member of this Chamber believe there should be no zoning laws? These are State laws, which has nothing to do with federalism, which Justice Scalia made one of his hallmarks. I disagree with him on those issues, but that is a different argument. These are local zoning laws. Unconstitutional? Is it unconstitutional to say you cannot put poison in the air? Is it unconstitutional to say you can't pollute the water? Is it unconstitutional to say in a residential community you cannot put in a factory or a porno palace? What are we doing here? What is going on here?

I have to tell you, I do not see how anyone on that side of the aisle can look in the mirror and say they really think this woman belongs on the DC Court of Appeals.

If it were just one view, you would say: Well, these guys are just focusing on one view. It is over and over again. Until Santa Monica-- just to go back to Lochner-- v. Superior Court, she called the demise of the Lochner era ``the revolution of 1937.'' That is that socialist revolution, the New Deal. She wants to undo it.

Here is what she said on another occasion:

Today's senior citizens blithely cannibalize their

grandchildren because they have the right to get as much free

stuff as the political system will permit them to extract.

I suppose you read from that that she wants to repeal Social Security. After all, that was part of the socialist revolution. Does anyone here believe we should repeal Social Security? Anyone?

In a dissenting opinion, she wrote:

I would deny the senior citizen plaintiff relief because

she has failed to establish that public policy against age

discrimination inures to the benefit of the public is

fundamental and substantial.

It goes without saying that a nominee who does not agree that public policy against age discrimination benefits the public is far out of any mainstream.

I don't know of a single person on the U.S. courts--and there may be one or two but none that have come to my attention--who is as out of the mainstream, as far over to the right as Janice Rogers Brown.

So my colleagues--and this is really a plea to those on the other side of the aisle--we have already come to an agreement, at least 14 in the middle--God bless them for trying--that we are going to invoke cloture on Janice Rogers Brown, which means there will be an up-or-down vote. But no one here has voted up or down on Janice Rogers Brown before, except Members of the Judiciary Committee.

I urge, plead with my colleagues on the other side of the aisle-- particularly those who are somewhat more moderate--look at the record of this nominee. Look at what she says and what she stands for. If there were ever a time to show some independence, to not march in lockstep, to vote your

convictions because you can't believe that someone of these views belongs on the court, now is that time.

I yield the floor.

Mr. President, let me thank my colleague and friend from Illinois for his incisive comments on a very important topic.

I am here to discuss the vote we will take at noon on the nomination of Priscilla Owen to the U.S. court of appeals. We all know a lot has changed in the last 48 hours. The Senate has stepped back from the precipice of a constitutional crisis. Our robust system of checks and balances has been saved from an unprecedented attack. Fourteen moderates came together and said we are not going to tolerate a nuclear option and that we are asking the President to come and talk to us before he makes a nomination.

While the compromise reached by 14 Senators has dramatically changed the outlook for the Senate, one thing has not changed, the record of Justice Priscilla Owen. I want to spend some time talking about that record, though it speaks for itself.

There is no question that Justice Owen attended fine schools and clearly is a very bright woman. But there is also no question that she is immoderate, she is a judicial activist, and she puts her own views ahead of the law's views. In case after case, Justice Owen comes to conclusions that are simply not justified by the facts or by the law. These decisions consistently come down against consumers, against workers, against women seeking to exercise their constitutional rights.

In choosing judges, in voting for judges, I have one standard and one standard alone. It is not a litmus test on any one issue. It is simply this: Will judges interpret law or not? Will judges do what the Founding Fathers said they should do--because, after all, they are not elected--and interpret what the legislature and the President have wanted and the Constitution requires, not put their own views above the people's views?

If there was ever a judge who would substitute her own views for the law, it is Justice Owen. Her record is a paper trail of case after case where she knows better than 100 years of legal tradition. It does not matter how brilliant a nominee is, or what a great education or career she has had; if she puts her own views above the law's views, she does not belong on the bench. It is as simple as that. In case after case, that is just what Justice Owen has done.

She thinks she knows better than the 100 years of established law tradition. She thinks she knows better than what the people have wanted, as enunciated by their legislators. Her own views take precedence over all other views. That is why she does not belong on the bench.

Let me go over a few cases, a few of many, where she has done this. In one case, In re Jane Doe, Judge Owen's dissent came under fire from her colleagues of the Texas supreme court. They referred to her legal approach as an effort to ``usurp legislative function.''

Even more troubling, Attorney General Alberto Gonzales, who sat on the same court as Judge Owen at the time, wrote a separate opinion. He went out of his way to write a separate opinion to chastise the dissenting judges, including Justice Owen, for attempting to make law, not interpret law from the bench.

Here is what Judge Gonzales said. He said that to construe the law as the dissent--that is what Priscilla Owen did--would be ``an unconscionable act of judicial activism.'' How ironic. The very same conservatives who rail against judicial activism are putting at the top of their pantheon a judge who, by Alberto Gonzales's own testimony, is an activist, somebody who thinks, ``I know better.''

Activism does not mean left or right. Activism means putting your own views above the law. That is not what the Founding Fathers wanted.

Let's look not at my words but at those of Judge Gonzales. They are words of a man who served for 4 years as President Bush's White House counsel. He is now the Attorney General. He is a distinguished conservative. Some of my colleagues have tried to suggest that Mr. Gonzales was not referring to Justice Owen by his caustic comment. Who are we kidding? It was brought up at her hearing originally. He didn't say a peep. Only now that she is controversial, people said: Well, explain yourself. I am sure he was pressured.

I direct my colleagues to a New York Times article by Neil Lewis last week which reported that Attorney General Gonzales specifically admitted he was referring to Justice Owen's dissent, among others, in his written opinion.

Let's take another case, Montgomery Independent School District v. Davis. There the majority, also including Judge Gonzales, ruled in favor of a teacher who had wrongly been dismissed by her employer. Justice Owen dissented, deciding against the employee. That is what she typically does.

The majority, which included Judge Gonzales, ruled in favor of a teacher who had been wrongly dismissed by her employer. Justice Owen dissented, siding against the employee. The majority, including Judge Gonzales once again, wrote that:

Nothing in the statute requires what the dissenters claim.

They went on to say:

The dissenting opinion's misconception stems from its

disregard of the rules that the legislature established. . .

.

And that:

The dissenting opinion not only disregards procedural

limitations in the statute but takes a position even more

extreme than argued by the employer.

There is Justice Owen. She looks very nice. But here is another case where she not only put her own view on the table, but she went further even than the defendant employer did. That is why she does not belong on the bench. She always does that, time and time again.

A third case, Texas Department of Transportation v. Able, again Justice Gonzales took Owen to task for her activism.

I am not going to get into all these cases but they are clear. Justice Owen, yes, she has a good education; yes, she has had a distinguished, long career; and, yes, she just does not belong on the bench because she thinks her views are better, more important, and superseding the views of the law, the views of the legislature, the views of the people.

I want to speak for the few more minutes I have left about the agreement and where we go from there. It is one thing to put on the bench mainstream conservatives, who do not adhere to an extreme agenda. I have voted for many, many of the judges we have confirmed so far. Many of them have views on choice or other things quite different from my own. Where we have a duty is to stand up and oppose

nominees who are outside the mainstream. We have a duty to the Constitution and a duty to the American people not simply to rubberstamp the President's picks. Mark my words, we are going to fulfill those duties as long as we have to. That is our constitutional obligation.

But there is not a single Senator on our side of the aisle who wants these fights. There is not a single Senator on our side of the aisle who wants to oppose even one of the President's nominees. We would be a lot happier if we could all come together. We have done that on the district courts in New York. They are all filled. I consulted with the White House, with the Governor, and we came to agreements. We can do it. If the White House and I can come to an agreement, so can the Senate and the White House on who should be judges.

But there is an important point here. How did we solve the problems in New York? The President and the White House consulted with the Senators and with the Senate. As the compromise of 2005 sets out, President Bush must consult with the Senate in advance of nominating appellate judges to the bench. ``Advise and consent.'' To get the consent, you need the ``advise.''

So I again call on the President, once and for all, to tell him we can solve this problem by coming together, by him consulting. I really believe we can solve this problem. But we are not going to find common ground when we keep seeking nominees who will be activists on the Federal bench. We are not going to solve this problem if the President stands like Zeus on Mt. Olympus and hurtles judicial thunderbolts down to the Senate. He has to consult. He has to ask us, as President Clinton did.

Why did President Clinton's Supreme Court nominees have no trouble in the Senate? I would argue because the President proposed a number of names to Orrin Hatch, hardly his ideological soulmate, and Orrin Hatch said this one won't work and that one won't work, but this one will and this one will. President Clinton heeded Senator Hatch's advice. As a result, Justice Breyer and Justice Ginsburg didn't have much of a fight. Some people may have voted against them, but it didn't get to the temperature that importuned my colleagues to filibuster--which they did on some other judges, although unsuccessfully: Judge Paez, Judge Berson, et cetera.

Mr. President, this is a plea to you. Let us take an example from the group of 14. Please, consult with us. You don't have to do what we say, but at least seek our judgment. If we say this judge would be acceptable and that judge will not--take our views into consideration. What will happen is it will decrease the temperature on an awfully hot issue. But second, and more importantly, it will bring us together so we can choose someone if the Supreme Court should have a vacancy, and we can continue to choose people when the courts of appeal have vacancies, without a real fight.

It can work. It has worked in New York between this White House and this Senator. It has worked at the national level, at the Supreme Court level, when President Clinton consulted with Republicans in the Senate, who were in the majority. It can work now. The ball is in President Bush's court. If he continues to choose to make these judgments completely on his own, if he continues to stand like Zeus on Mt. Olympus and just throw thunderbolts at the Senate, we will not have the comity for which the 14 asked.

A very important part of their agreement was for the President to start paying attention to the advise, in the ``advise and consent.''

Again, the ball is in his court. If the President starts doing that, I am confident this rancor on judges will decline, the public will see us doing the people's business, and the generally low view that the public has had of this body because of the partisan rancor will be greatly ameliorated.

Mr. President, again, you can change the way we have done these things, but only you can. Please, consult the Senate. Bring down hot temperatures that now exist.

I yield the floor and suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, how much time do I have until the time of the Senator from South Dakota begins?

I ask that I be yielded 2 minutes so that the remaining 15 minutes be provided to the Senator from South Dakota.

Mr. President, I thank my colleague from Hawaii for his kind remarks and for his graciousness in yielding. I just want to make a point that we have not heard enough. It is these numbers: 2,703 to 1. This is the number of times Republican Senators have voted for court of appeals nominees either by direct vote or cloture versus the number of times they voted against them--2,703 yes, 1 no. The one ``no'' vote was Trent Lott who voted against Mr. Gregory to the Fourth Circuit who Jesse Helms would never allow to go on the bench. So when we are talking about up-or-down votes, we are really not. We do not have any diversity of opinion on the other side. Nominees who are way off the deep end, every member of the other side votes for them. So there is no great deliberation here. In fact, what 2,703 to 1 means is a rubberstamp.

The reason we are standing for what we believe in is very simple. There should be some input. But when it comes to the other side, the White House says, This is the nominee, and everyone votes for that nominee no matter how extreme.

If there were 40 or 50 or 60 negative votes compared to, say, 2,600, you might say up-or-down votes might mean something. But they do not because, unfortunately, for every single nominee on every single cloture vote, the Members on the other side just do whatever the President wants and vote for whoever the President sends us. That is not deliberation. In my judgment, that is not what the cries for an up- or-down vote call for. They call for honest deliberation. I will have more to say about that later.

I yield the floor.

Mr. President, I just want to get the regular order. I was scheduled to speak at 9 o'clock on our side. Is that time preserved under the order?

All right, then, Mr. President, I ask unanimous consent that immediately after the Senator from Colorado, I be given the 15 minutes I was going to be given at 9 o'clock.

Mr. President, I thank the Chair. I thank all my colleagues. This will go down, hopefully, as a fine night in the Senate, in the U.S. Government. Armageddon has been avoided, and thank God for that. We in the Senate stepped right up to the precipice, but we did not fall in. This Republic works in amazing ways. And just as we were about to fall into an abyss of partisanship, of a destruction of the checks and balances that are the hallmark of this institution and this government, 12 Senators, many Democrats from red States, some Republicans from blue States, came together and created an agreement that I think serves this body well.

Does it have everything that we would have wanted on this side? No. But it takes the nuclear option off the table. It says that filibusters may continue to be used, albeit in a restrained way--although many would argue 10 out of 218 was restrained in itself. It also asks the President to consult and that, to me, would be a key lesson of this agreement. The reason that we came so close to this Armageddon is because, in my judgment, we didn't have the typical consultation that previous Presidents--Clinton, Bush, Reagan--had with the Senate before nominating judges.

The agreement widely states that it is the hope of the Senate--at least of the 12 signatories, but I am sure the other 88 Senators would join--that the President will begin to consult. That will not mean that judges will be so far from his political philosophy. He is the President and he gets to choose them. But it will mean that the kinds of partisan division that we have seen here is gone.

Mr. President, what I most feared about the nuclear option was the destruction of the checks and balances that are the hallmark of this institution. Those checks and balances have been preserved tonight. But make no mistake about it, if we don't all make efforts, we could get right back to this point soon enough. It could be on the issue of judges or on the issue of something else. The poison of too much partisanship is still here, and it is hoped that this agreement will set a model where everyone can pull back, it is hoped that there will be consultation on judges, and it is hoped that this agreement will set the stage for a better Senate, a better Congress, and a better Republic in the future.

Mr. President, this could become a historic night if the agreement that has been created keeps. We must preserve the checks and balances in the Senate. We must preserve the rights of the minority in the Senate. We must understand that a vote of 51 percent on the most major of decisions is not the right vote that is always called for. That has been the tradition in the Senate.

The reason we say that our rules take two-thirds to change is exactly to make it hard to change the rules and force the proposed changer to seek a bipartisan coalition. That bipartisanship is what differentiates us from the other body. Those checks and balances differentiate us from most other governments. We must fight to keep them and tonight we have made a giant step in that direction.

I yield the floor.

Would my colleague yield for a question?

I thank my colleague. I think my colleague was in the Chamber yesterday when Senator Frist first rose to speak and talked about the 214 years of tradition of not doing filibusters of judges. I asked him about his vote on March 8, 2000, 5:51 p.m. He voted to filibuster Judge Paez. In fact, it was clearly a filibuster. The statement of the leader of that filibuster, who was Senator Smith, our former colleague from New Hampshire, is obvious. The Senator ``led a filibuster yesterday on the nomination of Richard Paez.'' You may remember that Senator Frist said he would return to the floor yesterday and answer how he could distinguish between saying there is a grand tradition in the Senate of no filibuster, but he participated in one. Just 5 years ago. My colleague was on the floor--I was not--earlier this morning. I had hoped to get here when Senator Frist spoke. I would just ask my colleague, did he hear any answer to that question which Senator Frist has promised?

So it would be fair to say that he has still not answered the question, even though he said yesterday that he would come back and answer it.

I thank my colleague for yielding for a question.

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

Madam President, I yield myself 7 minutes and then will yield to the Senator from New Mexico 15 minutes immediately after me.

Madam President, as most have said, we believe we have been more than fair. We have confirmed 95 percent of the President's judges. As I have said before, if my daughter came home with a 95 on her report card, I would say, great. What some on the other side want to say is this: Only got a 95? Break the rules and get 100.

We do not believe in that and would like to exhibit in the most graphic way how we have supported 208 of the 218 judges by doing something very simple--by reading the names of the 208 judges the President has nominated and gotten approved by this Senate.

1. Callie Granade, SD AL

2. Consuelo Callahan, 9th Cir.

3. David Bunning, ED KY

4. Dora Irizarry, USDC ED NY

5. Gary Sharpe, USDC ND NY

6. Henry Hudson, ED VA

7. James Gritzner, SD IA

8. Jeffrey Howard, 1st Circuit

9. John Roberts, DC Circuit

10. Julia S. Gibbons, 6th Cir.

11. Kurt Engelhardt, ED LA

12. Leonard Davis, ED TX

13. Margaret Rodgers, ND FL

14. Michael McConnell, 10th Cir

15. Paul Cassell, UT

16. Ralph Erickson, ND

17. Richard Holwell, SD NY

18. Robert Conrad, WD NC

19. Rosemary M. Collyer, DDC

20. Stanley Chesler, NJ

21. Thomas Phillips, ED TN

22. Walter Kelley, ED VA

23. William Smith, RI

24. C. Ashley Royal, MD GA

25. Clay Land, GA

26. Danny Reeves, ED KY

27. Diane S. Sykes; 7th Circuit

28. Frederick Martone, AZ

29. Henry Floyd, SC

30. James Gardner, ED of PA

31. Jay Zainey, ED LA

32. John Houston, SD CA

33. Judith Herrera USDC D NM

34. Kim Gibson, WD PA

35. Legrome Davis, ED PA

36. Marcia Krieger, CO

37. Michael H. Watson, SD OH

38. Paul A. Crotty, SD NY

39. Ralph Beistline, AK

40. Richard E. Dorr WD MO

41. Robert Clive Jones, NV

42. Ronald White, ED OK

43. Sharon Prost, Federal Circuit

44. Thomas Hardiman, WD PA

45. Virginia H. Covington, MD FLO

46. William Riley, 8th Circuit

47. Amy J. St. Eve, ND IL

48. Christopher Boyko, ND OH

49. D. Michael Fisher, 3rd Circuit

50. David Godbey, ND TX

51. F. Dennis Saylor IV, Mass.

52. Gregory Frost, ND OH

53. J. Ronnie Greer, WD TN

54. James Robart, WD WA

55. Joe Heaton, OK

56. Jose Linares, NJ

57. Kathleen Cardone, WD TX

58. Larry Hicks, NV

59. Louise W. Flanagan, ED NC

60. Micaela Alvarez, SD TX

61. Morrison England, ED CA

Madam President, I am illustrating how many judges--208 to 10--we have approved in this Senate, an outstanding 95-percent record, nothing that any President should complain about.

We will continue the reading later.

I yield the floor to my friend and colleague from New Mexico, Senator Bingaman.

Would my colleague yield for a question.

Will my colleague from Tennessee yield for a question?

Mr. President, when I came on the floor, my colleague was talking about the 214 years of tradition of no filibusters. Isn't it correct that on March 8 of 2000, my friend from Tennessee voted to uphold the filibuster of Richard Paez?

I object.

If the Senator wants to arrange to go for the next hour under Republican time, that is just fine.

I would like to accommodate my friend, but we have a set schedule. We come at different times and places and we have stuck by it. We are already 2 or 3 minutes over, so I have to object.

I will accept that.

I believe I now have 30 minutes?

But I have 30 of that, or 31. I yield 3 minutes to my colleague from the State of Washington, and then 1 minute to my colleague from the State of California, and then I will take the remaining 26 minutes.

Mr. President, this debate is not only about Priscilla Owen and whether she should become an appellate judge, but it is about something much more momentous. If the situation in the Senate were not so grave, there might be some humor in the fact my strict constructionist Republican friends who daily claim to be against activist judges are, through the nuclear option, engaging in the most activist reading of the Constitution to seat an activist judge on the appellate court. That is breathtaking hypocrisy.

But we are more profound than that. We are on the precipice of a crisis, a constitutional crisis. The checks and balances which have been at the core of this Republic are about to be evaporated by the nuclear option, the checks and balances which say if you get 51 percent of the vote you do not get your way 100 percent of the time. It is amazing. It is almost a temper tantrum by those on the hard right. They want their way every single time, and they will change the rules, break the rules, misread the Constitution so they will get their way.

That is not becoming of the leadership of the Republican side of the aisle, nor is it becoming of this Republic. That is what we call abuse of power.

There is, unfortunately, a whiff of extremism in the air. In place after place, the groups that were way out of the mainstream with their disproportionate influence on the White House and the Republican leadership in this Senate seem to push people to abuse power.

It happened in the Schiavo case, and there was a revulsion in America. It happened with threats against judges, both made by some of my colleagues in this body and certainly by some well-known activist religious figures. It has happened on Social Security where there is an attempt to undo a very successful government program. And that is why the popularity, the respect that this Republican leadership has in America, goes down every day. I know, as chair of the DSCC, because I keep an eye on those things.

I make a plea. It is to the seven or eight Republicans on that side of the aisle. Every one of them has told us they know the nuclear option is wrong. It is a plea to have the courage to stand up for what is right. There are many others of our colleagues on the other side of the aisle who have already said they know the nuclear option is wrong, but they say they cannot resist the pressure. I understand it. We have had times on the Democratic side where groups on the left extreme have had undue influence. But it is in yours and America's detriment and to our party's detriment.

We are on the precipice of a constitutional crisis. It rests on the shoulders of three or four men or women on the other side of the aisle. We hope we will not fall into the abyss.

Judges are now under siege. Our Constitution is under attack. Our precious system of checks and balances is under assault. Some of my colleagues seem to have forgotten we in the Senate have a constitutional role to play, and we will. The Founding Fathers did not intend us to march lockstep like lemmings behind every Presidential appointee no matter how many times he or she is put before the Senate. The Founding Fathers, whom many of us like to cite, foresaw collaboration between the President and the Senate in the seating of judges. The Founding Fathers expected, because of the advice and consent clause, the President would be judicious, that he would talk to the Senate about nominees.

This President has done none of that. No President has nominated judges more through an ideological spectrum than this President. When he asks why he doesn't get cooperation from the Democrat side, he has reaped what he has sown. No consultation, no discussion, and nominees who tend to be way over at the extreme.

As Hamilton wrote in the Federalist Papers about the importance of the Senate's role in approving judicial nominees, the possibility of rejection of nominees would be a strong motive to use care in proposing. But this President, instead of taking that care that the Founding Fathers sought, has seen some of his nominees--a handful-- rejected, and now instead of accepting that as a consequence of no consultation and of nominating extreme judges,

he seeks to encourage the majority leader and others to change the rules in this hallowed institution.

Why are we at this crisis point? The bottom line is that no President in memory has taken so little care in the proposing of judges.

What about abuse of power? I will talk for a moment, before I talk about Priscilla Owen, about the nuclear option. If there ever was something that signified an abuse of power, a changing of the rules in midstream simply because you could not get your way on every judge, it is this nuclear option. There is now a desperate attempt on the other side of the aisle not to call it the nuclear option, but it was my colleague from Mississippi, the former majority leader, who gave it that name--with justification. You won't change the name. To call it the constitutional option is hypocrisy. There is nothing in the Constitution that talks about filibuster or majority vote when it comes to judges in the Senate.

It is a nuclear option because it will vaporize whatever is left of bipartisanship and comity in the Senate.

Now, let me ask a question: How much power does the Republican leadership need? How much power is it entitled to? Does a 1- or 2- percent point victory in the last election, does a margin of five Senators give them the right to get their way all the time and then to change the rules if they can't?

The American people are understanding this. There are only three branches of Government. The Republican Party has a tight grip on all three. Republicans control the Presidency, they control the House, they control the Senate. They already have control of the courts.

As the chart shows, of all of our judicial circuits, only two have slight Democratic majorities. The sixth is even. And all the others have Republican majorities.

The circuit courts, the courts of last resort, are overwhelmingly Republican already in terms of their appointees. And on the new judges they have been able to fill, they have gotten their way 95 percent of the time. As one of my colleagues said, if your child came home and said they got a 95 on their test, would you pat them on the head and say ``good job'' or would you say ``go change the rules, cheat until you get 100 percent''? That is what the other side is doing.

Ninety-five percent should make this President very happy. And maybe it would if he was left to his own devices. But the group of hard-right extremists, who seem to have disproportionate sway, are not happy unless they have 100 percent.

Now, let me talk a little bit about calling it a ``constitutional option.'' The other side will, with a straight face, either tomorrow or the next day, invoke our democracy's chief charter, the Constitution, in ruling that judicial filibusters are prohibited by the Constitution. There is only one problem. There is nothing in the Constitution that supports the nuclear option. There is nothing in the Constitution that requires a majority vote for every judicial nominee. Republicans know this.

The Senator from Tennessee, our majority leader, who got on the floor earlier today and said for 214 years there have not been filibusters of judges, has a very short memory. I asked him this morning, Did you not, on March 8, 2000, vote in favor of a filibuster of Richard Paez to the Ninth Circuit Court of Appeals? Here is a copy of the vote. Voting no: Frist, Republican of Tennessee. Did he think it was unconstitutional then? He said on the floor, in answer, Well, some are successful, some are not. I have never known the Constitution to say that something is unconstitutional if it fails and constitutional if it succeeds. When we talk about attempted murder or robbery or larceny, it is still a crime.

So I would like to ask my colleague to answer during this debate, How can he distinguish as unconstitutional our votes to block judges, and it is perfectly acceptable, 5 years ago, his vote to block a judge, or the scores of votes by other Republicans in favor of filibusters over the years, including those against Paez and Berzon and Fortas? Were they unconstitutional? I do not think so.

Furthermore, have judges never been blocked? All the time. One out of every five Supreme Court nominees did not make it to the Supreme Court. That is part of the tradition of this country. Should the Senate have majority say? No. Should we have the say the majority of the time? No. Should we have the say some of the time? Yes. And there is the balance. The more a President consults, the more the President nominates moderate nominees, the more likely his nominees will succeed. Bill Clinton had a little trouble, but he consulted Orrin Hatch regularly. Patrick Leahy has not been consulted by the President at all.

Another interesting point. It seems the only people who seem to cling to the nuclear option are those in elected office who are susceptible to the power and sway of these extremist groups. Conservatives who are not in public office, retired elected officials, commentators, have repeatedly said the nuclear option is not constitutional.

How about George Will--hardly a liberal--one of the country's most foremost commentators. Here is what he said:

Some conservatives say the Constitution's framers ``knew

what supermajorities they wanted''--the Constitution requires

various supermajorities, for ratifying treaties, impeachment

convictions, etc.; therefore, other supermajority rules are

unconstitutional. But it stands--

Listen to this.

But it stands conservatism on its head to argue that what

the Constitution does not mandate is not permitted.

Of course. The people who advocate this are the greatest activists of all. And it is an unbelievable turnaround, an unbelievable act of hypocrisy, that all of a sudden activism, which means interpreting things in the Constitution which are not in the writings of the Constitution, is OK when you want to get your way. It is wrong.

Now, let me talk a little bit about Priscilla Owen. She is the nominee before us today. This is the third time we have considered the nomination of Priscilla Owen. Each previous time she got an up-or-down vote. She did not get 60, but she sure got an up-or-down vote. Everyone's vote was on the record. This was not being done, what was done in the Clinton years, which was not even letting judges come up for a vote. Here we are again.

Why are we doing Priscilla Owen again? Because 95 percent is not good enough for the President or for the leadership here in the Senate. On the merits, nothing has changed. There is no question she is immoderate and that she is a judicial activist. I continue to believe Justice Owen will fail my litmus test, my only litmus test in terms of nominating judges; that is, will they interpret law, not make law? Will they not impose their own views and have enough respect for the Constitution and the laws of this land that they will not impose their own views?

Well, do not ask me. Ask the people who served with Justice Owen. They believe that she, time and time again, cast aside decades of legal reasoning, miles of legislation, to impose her own views. If there was ever a judge who would substitute her own views for the law, it is Judge Owen. Her record is a paper trail of case after case where she thinks she knows better than hundreds of years of legal tradition.

In one case, In re Jane Doe, Judge Owen's dissent came under fire from her colleagues in the Texas Supreme Court. They referred to her legal approach as an effort to ``usurp the legislative function.'' That was a very conservative court, and they still said Justice Owen put her views ahead of the law.

Even more troubling, of course, is what Attorney General Alberto Gonzales said. He sat on the same court with Judge Owen. He wrote a separate opinion in which he chastised the dissenting judges, including Justice Owen, for attempting to make law, not interpret the law. These are Judge Gonzales' words, not mine. He said that to construe the law as the dissent did ``would be an unconscionable act of judicial activism.'' Those are not my words. Those are the words of the man the President has appointed as Attorney General.

In another case, Montgomery Independent School District v. Davis, the majority ruled in favor of a teacher who had been wrongly dismissed, and the majority, including Judge Gonzales, wrote that:

the dissenting opinion's misconception . . . stems from its

disregard--

Not its misinterpretation; ``its disregard''--

of the [rules] the Legislature established.

In a third case, Texas Department of Transportation v. Able, Justice Gonzales also took Justice Owen to task for her activism, indicating she had misunderstood the plain intent of the State legislature.

The list goes on and on. And there is nothing to indicate she has backed off from her activist tendencies.

As extreme as Justice Owen is, Justice Janice Rogers Brown is even more so.

The things she has said are unbelievable. She is an activist judge, more committed to advancing her own extreme beliefs and ideas than guaranteeing a fair shake for millions of Americans who would be affected by her decisions on the DC circuit. There was the Lochner case which threw out as unconstitutional a law that said bakery workers could not work a certain number of hours. That was a New York law, so we are not even dealing with federalism. It was decided in 1906 or 1901, close to 100 years ago. If you go to law school, it is called the worst Supreme Court decision of the 20th century.

She said it was decided correctly. Judge Janice Rogers Brown believes that if an employer wanted to employ a child for 80 hours in awful conditions, that would be that employer's constitutional right.

Justice Brown's views on economics make Justice Scalia look very liberal. She doesn't want to roll back the clock to the 1950s or even the 1930s. She wants to go back to the 1800s. She has been nominated to the most important court in the country when it comes to enforcing Government laws and rules--environmental, labor--and yet she abhors Government.

Here is what she once wrote:

Where government moves in, community retreats, civil

society disintegrates, and our ability to control our own

destiny atrophies.

Does the kind of person who thinks that way belong on any court of appeals, and particularly on the DC Court of Appeals? Absolutely not.

For those reasons, the American Bar Association gave her one of the lowest rankings any of this administration's circuit court judges have ever received.

We stand on the edge. This is an amazing time. I wake up in the morning, sometimes with butterflies in my stomach, thinking the Senate might actually attempt to do this. If there was ever a time where the power grab has been so harsh, so real, and so unyielding, it is now. It is not simply that we have a disagreement of ideas and we argue vehemently. It seems much more that the leadership on the other side can't stand the fact that they don't always get their way and that they have to change the rules to do it.

People who hate activist judges are becoming activist themselves in the sense that they read into the Constitution things that are never there. People who say that they respect bipartisanship are going to undo whatever is left of bipartisanship here in the Senate.

Amazingly enough, with all of the smoke pumped by the radical right's media machines, talk radio, the American people have a deep understanding. The only solace I have, as we are on the edge of this crisis and the eve of a great vote in the Senate, is that the American people understand what majority leader Frist is up to. They understand this is a power grab. They understand this is a breaking of the rules. They understand the checks and balances will go by the wayside. What was good enough 4 years ago, votes on filibusters, is not acceptable today.

I believe the nuclear option, even if it should pass on the floor this week or next week, will not stand, that the American people will understand what is attempting to be done, they will rise up and, whether it is at the polls or just in the court of public opinion, cause the nuclear option to be undone.

That is the faith I have in the Government we have and the people who are governed. But let us not go through that. We will stop progress in the Senate. We will ruin bipartisanship, whatever is left of it, and we will be playing with fire when it comes to the constitutional checks and balances that are at the core of our Constitution and our Republic.

I will have plenty more to say in the upcoming weeks, but it is a momentous time. I appeal once again to my colleagues: Think of what you are doing. Think of its consequences. Maybe we won't have to live with this, the greatest undoing of the Constitution that this Senate has seen in decades.

I yield the remaining time to my colleague from California.

Mr. President, first, I compliment my friend and colleague from the great State of Washington for her outstanding remarks and leadership on this issue. She knows, because of her experience and her compassion and humanity, what this nuclear option would mean to this Senate. I thank the Senator for her leadership.

Mr. President, there are so many things to say here. The idea of blowing up the Senate, literally, almost, at least in terms of the rules, at least in terms of comity, and at least in terms of bipartisanship, all because 10 judges have not been approved, is just appalling.

I mentioned earlier today, it seems like a temper tantrum if we do not get our way on every single one, say the hard-right groups, we will show them they cannot stop us on anything. That is how ideologues think. That is how

people who are so sure they have the message from God or from somebody else, that they know better than everyone else, that is how they think. They cannot tolerate the fact that some of these judges, a small handful, have been held up.

We can tell in the debate today where the enthusiasm and the passion is. There is a weariness on the other side of the aisle. My guess is that more than half of those on the other side, if it were a secret ballot, would vote against the nuclear option. They know it is wrong. Ten have said to me: I am under tremendous pressure; I have to vote for it. The reason the majority leader has not called for a vote is because of the courageous handful who have resisted the pressure. Four of them have told me of the pressure on them.

We used to hear about these groups influencing things. Does anyone have any doubt that if not for the small groups, some dealing with social issues because they think America has been torn away from them, some deal with economic issues--they hate the fact that the commerce clause actually can protect workers. Their idea is that self-made businessman should not pay taxes, should be able to discriminate, should be able to pollute the air and water.

Janice Rogers Brown basically stands for the philosophy of the 1890s and said over and over again that we should go back to the days when if you had a lot of money and power, you could do whatever you wanted. It is an abnegation of history, of the knowledge we have learned. It is an abnegation of the free market principles are the best principles.

But we have learned over the years they need some tempering and some moderation. That is why we do not have the booms and busts that characterized America from 1870 to 1935. That is why people live better. Not because corporate America did good for them. They did do some good, and they do more good now. It was through unionization, through government rules that we transformed America from a nation of a very few rich, a small middle class, and a whole lot of poor people, into an America that had more rich people, a large--gigantic, thank God--middle class, and still too many poor people but fewer poor people.

But Janice Rogers Brown believes all government regulation is wrong. She believes the New Deal was a socialist revolution that had to be undone. Do mainstream conservatives believe that? Is it any wonder even the Chamber of Commerce is against the nuclear option? No.

There are so many points I wish to make, and fortunately it seems we will have a lot of time to make these points. I will focus on something that has not been focused on before, and that is this idea of an up-or- down vote.

First, we have had votes. Yes, the other side has needed 60 to prevail on the small number of judges we have chosen to filibuster. Yes, certainly there has not been a removal of cloture, but the bottom line is we have had votes, unlike when Bill Clinton was President and 60 judges were pushed aside and not given a vote.

The other point of the up-or-down vote is let 51 votes decide, let's each come to our own decision as we weigh the judges.

Let me show the independence of the decisions that have been made by those on the other side.

This is a compilation of all the votes taken by Republican Members of the Senate for every one of President Bush's court of appeals nominees. There have been 45. How many times has any Republican voted against any 1 of those 45 at any single vote? If, of course, we were all coming to an independent decision, do you think there would be 100, 200, 300 out of the 2,700-some-odd votes cast? You would think so. Independent thinking, let's have an up-or-down vote. Here is what it is: 2,703 to 1. Let me repeat that because it is astounding: 2,703 ``yes'' votes by Republicans for court of appeals nominees--45 of them--and 1 vote against.

Now, how is that? First, people ask, Well, who is the one vote? Why did one person, at one point, dissent from the marching lockstep to approve every single nominee the President has proposed? Well, I will tell you who it was. It was Trent Lott, the former majority leader. On what judge? On Judge Roger Gregory, who was nominated by Bill Clinton to be the first Black man to sit on the Fourth Circuit, which has a large black population. It is Virginia, North Carolina, South Carolina--I am not sure if it has Georgia in it or not; I think not Georgia.

And when President Bush renominated him, Trent Lott voted against him, maybe to help his friend, Jesse Helms, who blocked every nominee and certainly every African-American nominee on the Fourth Circuit. That is it. That is Trent Lott right there on Roger Gregory. Trent Lott on every other nominee, every other Republican Senator on every nominee: 100 percent of the time they voted for the President's nominee.

So this idea that we are a deliberative body, and we are going to look at each person on the merits, I heard our majority leader say: Let's look. Do you know what this means? Do you know what this spells, these numbers? R-U-B-B-E-R-S-T-A-M-P. This Senate, under Republican leadership, has become a complete rubber stamp to anyone the President nominates. Did maybe one of those nominees strike a single Member of the other side as going too far on a single issue? Did maybe one of those nominees do something that merited they not be on the bench? Did maybe one of those nominees not show judicial temperament? I guess not. Rubber stamp: 2,703 to 1. Once was there a dissent, only once, and on Roger Gregory, the first African-American nominee to the Fourth Circuit.

So what is happening here is very simple. The hard-right groups, way out of the mainstream, not Chambers of Commerce or mainstream churches, but the hard-right groups, as I said, either some who believe, almost in a theocratic way, that their faith--a beautiful thing--should dictate not just their politics but everyone's politics, and some, from an economic point of view, who do not believe there should be any Federal Government involvement in regulating our industries, our commerce, et cetera--these groups are ideologues. They are so certain they are right.

They have some following in this body, but it is not even a majority of the Republican side of the aisle. And they certainly do not represent the majority view of any Americans in any single State. But they have a lot of sway. And until this nuclear option debate occurred, they had very little opposition. People did not know what was going on. And now, of course, this debate allows us to expose the lie.

Let me say another thing about this idea. One out of every five Supreme Court nominees who was nominated by a President in our history never made it to the Supreme Court. The very first nominee, Mr. Rutledge, nominated by George Washington, was rejected by the Senate, in a Senate that had, I believe it was, eight of the Founding Fathers. Eight of the twenty-two people who voted in the Senate had actually signed the Constitution, defining them as Founding Fathers. Did they have votes like this? Of course not because the Founding Fathers, in this Constitution, wanted advice and consent. They say in the Federalist Papers, they wanted the President to come to the Senate and debate and discuss.

Has any Democrat been asked? Has Patrick Leahy, our ranking member of Judiciary, been asked about who should be nominees in these courts? Has there been a give-and-take the way Bill Clinton regularly called Orrin Hatch, chairman of the Judiciary Committee? There is a story, I do not know if it is apocryphal, that Orrin Hatch said: You can't get this guy for the Supreme Court. You can't get this guy, but Breyer will get through. And President Clinton nominated Breyer. Did Stephen Breyer have Orrin Hatch's exact political beliefs? No. Did he have Bill Clinton's exact ones? No. It was a compromise. That is what the Constitution intended.

But when a President nominates judges through an ideological spectrum, when he chooses not moderates, and not even mainstream conservatives, but people who are way over--way over--we have safeguards. One of those safeguards is the filibuster. It says to the President: If you go really far out and do not consult and do not trade off, you can run into trouble.

Well, George Bush did not consult. He did what he said in the campaign,

that he was going to nominate ideologues. He said: I am going to nominate judges in the mold of Scalia and Thomas. There probably should be a few Scalias on our courts. They should not be a majority. And Bush nominates a majority. And he is now sowing what he has reaped--or reaping what he has sown. I come from New York City. We do not have that much agriculture, although I am trying to help the farmers upstate.

So that is the problem. This is not the Democrats' problem. This is the way the President has functioned in terms of judicial appointments. This is the way the Republican Senate, to a person, has been a rubber stamp without giving any independent judgment.

This is the way the Founding Fathers wanted we Democrats and the Senate as a whole to act. And that is what we are doing.

And then, when they do not get their way--quite naturally, we did what we are doing--they throw a temper tantrum. They say: We have to have all 100 percent. I want to repeat this because this was said by someone--I do not remember who--but I think it is worth saying. If your child, your son or daughter, came home and got 95 percent on a test, 95 percent, what would most parents do? They would pat him or her on the head and say: Great job, Johnny. Great job, Jane. Maybe try to do a little better, but you have done great. I am proud of you.

When President Bush gets the 95 percent, he does not do that. President Bush would advise--what he is doing, in effect, is saying to Johnny or Jane: You only got 95 percent?

This is not what President Bush does. It is what the far-right groups do, the hard-line far right. Only 95 percent? Break the rules and get 100 percent. What parent would tell their child that? Yet that is what these narrowminded groups are saying. And wildly enough, the majority leader and most--and thank God, not yet all--of his caucus is agreeing. Break the rules, change the whole balance of power and checks and balances in this great Senate and great country so we don't have 95 percent, but 100 percent.

What is it that is motivating them? Some say it is a nomination on the Supreme Court that might be coming up, that they can't stand the fact that Democrats might filibuster. I can tell you, if the President nominates someone who is a mainstream person, who will interpret the law, not make the law, there won't be a filibuster.

They say: Well, they will have to agree with the Democrats on everything. Bunk. I haven't voted for all 208. I probably voted for about 195. I guarantee you, of those 195, I didn't agree with the views of many. No litmus test have I. I voted for an overwhelming majority who were pro-life even though I am pro-choice. I voted for an overwhelming majority who probably want to cut back on Government activity in areas that I would not cut back. But at least there was a good-faith effort by these nominees, at least as I interviewed them, being ranking Democrat on the Courts Subcommittee, to interpret the law, not to make the law.

There are some the President nominated you can't tolerate, that are unpalatable. I debated Senator Hatch on the Wolf Blitzer show. He keeps bringing up the old saw: You are opposing Janice Rogers Brown because you can't stand having an African-American conservative.

They said that about Pryor in terms of being a Catholic and about Pickering in terms of being a Baptist. It is a cheap argument. I don't care about the race, creed, color, or religion of a nominee. If that nominee believes the New Deal was a socialist revolution, if that nominee believes the case the Supreme Court decided that said wage and hour laws were unconstitutional was decided correctly in 1906, even though it was overturned, I will oppose that nominee. That person should not be on the second most important court in the land. No way. We are doing what the Founding Fathers wanted us to do. We are doing the right thing.

One other point, and it relates to this hallowed document--the Constitution. In the 1960s and 1970s, one of the main bugaboos of the conservative movement was that the courts were going too far. They called them activist judges. They believed--from the left side, not from the right side--that these judges were making law, not interpreting the law. And there are cases where they were right. I remember being in college and being surprised as I studied some of the cases that the Supreme Court would do this.

So they created a counterreaction. Ronald Reagan nominated conservative judges, not as conservative as George Bush's, but the bench had largely been appointed by moderates, whether it be Kennedy, Johnson, Nixon, Ford, or Carter. So when Reagan came in and began to sprinkle some conservatives in there, people didn't make too much of a fuss, especially at the courts of appeal level.

The point I am making is this: So they didn't like activist judges, judges who would sort of read the Constitution and divine what was in it. And they had a movement that said: You only read the Constitution in terms of the words. If it doesn't say it in the Constitution, you don't do it.

I defy any Republican who says they don't believe in activist judges to find the words ``filibuster,'' ``up-or-down vote,'' ``majority rule,'' when it comes to the Senate. I would say that anyone who is now saying the Constitution says there cannot be a filibuster is being just as activist in their interpretation of the Constitution as the judges they condemned in the 1960s and 1970s.

I thank the Chair for the courtesy and yield the floor.

Mr. LEAHY, Mr. President, 3 years ago I first considered the nomination of Priscilla Owen to be a judge on the United States Court of Appeals for the Fifth Circuit. After reviewing her record, hearing her testimony and evaluating her answers I voted against her confirmation and explained at length the strong case against confirmation of this nomination. Nothing about her record or the reasons that led me then to vote against confirmation has changed since then. Unlike the consideration of the nomination of William Myers, on which the Judiciary Committee held another hearing this year before seeking reconsideration, there has been no effort to supplement the record on this nomination. Justice Owen's record failed to justify a favorable reporting of the nomination in 2002 and was inadequate to gain the consent of the Senate during the last 2 years.

In 2001, Justice Owen was nominated to fill a vacancy that had by that time existed for more than 4 years, since January 1997. In the intervening 5 years, President Clinton nominated Jorge Rangel, a distinguished Hispanic attorney from Corpus Christi, to fill that vacancy. Despite his qualifications, and his unanimous rating of well qualified by the ABA, Mr. Rangel never received a hearing from the Judiciary Committee, and his nomination was returned to the President without Senate action at the end of 1998, after a fruitless wait of 15 months.

On September 16, 1999, President Clinton nominated Enrique Moreno, another outstanding Hispanic attorney, to fill that same vacancy. Mr. Moreno did not receive a hearing on his nomination either--over a span of more than 17 months. President Bush withdrew the nomination of Enrique Moreno to the Fifth Circuit and later sent Justice Owen's name in its place. It was not until May of 2002, at a hearing presided over by Senator Schumer, that the Judiciary Committee heard from any of President Clinton's three unsuccessful nominees to the Fifth Circuit. At that time, Mr. Moreno and Mr. Rangel, joined by a number of other Clinton nominees, testified about their treatment by the Republican majority. Thus, Justice Owen's was the third nomination to this vacancy and the first to be accorded a hearing before the committee.

In fact, when the Judiciary Committee held its hearing on the nomination of Judge Edith Clement to the Fifth Circuit in 2001, during the most recent period of Democratic control of the Senate, it was the first hearing on a Fifth Circuit nominee in 7 years. By contrast, Justice Owen was the third nomination to the Fifth Circuit on which the Judiciary Committee held a hearing in less than 1 year. In spite of the treatment by the former Republican majority of so many moderate judicial nominees of the previous President, we proceeded in July of 2001--as I said that we would--with a hearing on Justice Owen.

Justice Owen is one of among 20 Texas nominees who were considered

by the Judiciary Committee while I was chairman. That included nine district court judges, four United States Attorneys, three United States Marshals, and three executive branch appointees from Texas who moved swiftly through the Judiciary Committee.

When Justice Owen was initially nominated, the President changed the confirmation process from that used by Republican and Democratic Presidents for more than 50 years. That resulted in her ABA peer review not being received until later that summer. As a result of a Republican objection to the Democratic leadership's request to retain all judicial nominations pending before the Senate through the August recess in 2001, the initial nomination of Justice Owen was required by Senate rules to be returned to the President without action. The Committee nonetheless took the unprecedented action of proceeding during the August recess to hold two hearings involving judicial nominations, including a nominee to the Court of Appeals for the Federal Circuit.

In my efforts to accommodate a number of Republican Senators-- including the Republican leader, the Judiciary committee's ranking member, and at least four other Republican members of the committee--I scheduled hearings for nominees out of the order in which they were received that year, in accordance with longstanding practice of the committee.

As I consistently indicated, and as any chairman can explain, less controversial nominations are easier to consider and are, by and large, able to be scheduled sooner than more controversial nominations. This is especially important in the circumstances that existed at the time of the change in majority in 2001. At that time we faced what Republicans have now admitted had become a vacancy crisis in the Federal courts. From January 1995, when the Republican majority assumed control of the confirmation process in the Senate, until the shift in majority, vacancies rose from 65 to 110 and vacancies on the courts of appeals more than doubled from 16 to 33. I thought it important to make as much progress as quickly as we could in the time available to us that year, and we did. In fact, through the end of President Bush's first term, we saw those 110 vacancies plummet to 27, the lowest vacancy rate since the Reagan administration.

The responsibility to advise and consent on the President's nominees is one that I take seriously and that the Judiciary Committee takes seriously. Justice Owen's nomination to the court of appeals has been given a fair hearing and a fair process before the Judiciary Committee. I thank all members of the committee for being fair. Those who had concerns had the opportunity to raise them and heard the nominee's response, in private meetings, at her public hearing and in written follow-up questions.

I would particularly like to commend Senator Feinstein, who chaired the hearing for Justice Owen, for managing that hearing so fairly and evenhandedly. It was a long day, where nearly every Senator who is a member of the Committee came to question Justice Owen, and Senator Feinstein handled it with patience and equanimity.

After that hearing, I brought Justice Owen's nomination up for a vote, and following an open debate where her opponents discussed her record and their objections on the merits, the nomination was rejected. Her nomination was fully and openly debated, and it was rejected. That fair treatment stands in sharp contrast to the way Republicans had treated President Clinton's nominees, including several to the Fifth Circuit.

That should have ended things right there. But looking back, we now see that this nomination is emblematic of the ways the White House and Senate Republicans will trample on precedent and do whatever is necessary in order to get every last nominee of this President's confirmed, no matter how extreme he or she may be. Priscilla Owen's nomination was the first judicial nomination ever to be resubmitted after already being debated, voted upon and rejected by the Senate Judiciary Committee.

When the Senate majority shifted, Republicans reconsidered this nomination and sent it to the Senate on a straight, party-line vote. Never before had a President resubmitted a circuit court nominee already rejected by the Senate Judiciary Committee, for the same vacancy. And until Senator Hatch gave Justice Owen a second hearing in 2003, never before had the Judiciary Committee rejected its own decision on such a nominee and granted a second hearing. And at that second hearing we did not learn much more than the obvious fact that, given some time, Justice Owen was able to enlist the help of the talented lawyers working at the White House and the Department of Justice to come up with some new justifications for her record of activism. We learned that given six months to reconsider the severe criticism directed at her by her Republican colleagues, she still admitted no error. Mostly, we learned that the objections expressed originally by the Democrats on the Judiciary Committee were sincerely held when they were made, and no less valid after a second hearing. Nothing Justice Owen said about her record--indeed, nothing anyone else tried to explain about her record--was able to actually change her record. That was true then, and that is true today.

Senators who opposed this nomination did so because Priscilla Owen's record shows her to be an ends-oriented activist judge. I have previously explained my conclusions about Justice Owen's record, but I will summarize my objections again today.

The first area of concern to me is Justice Owen's extremism even among a conservative Supreme Court of Texas. The conservative Republican majority of the Texas Supreme Court has gone out of its way to criticize Justice Owen and the dissents she joined in ways that are highly unusual, and in ways which highlight her ends-oriented activism. A number of Texas Supreme Court Justices have pointed out how far from the language of statute she strays in her attempts to push the law beyond what the legislature intended.

One example is the majority opinion in Weiner v. Wasson, 900 S.W.2d 316, Tex. 1995. In this case, Justice Owen wrote a dissent advocating a ruling against a medical malpractice plaintiff injured while he was still a teenager. The issue was the constitutionality of a State law requiring minors to file medical malpractice actions before reaching the age of majority, or risk being outside the statute of limitations. Of interest is the majority's discussion of the importance of abiding by a prior Texas Supreme Court decision unanimously striking down a previous version of the statute. In what reads as a lecture to the dissent, then-Justice John Cornyn explains on behalf of the majority:

Generally, we adhere to our precedents for reasons of

efficiency, fairness, and legitimacy. First, if we did not

follow our own decisions, no issue could ever be considered

resolved. The potential volume of speculative relitigation

under such circumstances alone ought to persuade us that

stare decisis is a sound policy. Secondly, we should give due

consideration to the settled expectations of litigants like

Emmanuel Wasson, who have justifiably relied on the

principles articulated in [the previous case]. . . . Finally,

under our form of government, the legitimacy of the judiciary

rests in large part upon a stable and predictable

decisionmaking process that differs dramatically from that

properly employed by the political branches of government.

According to the conservative majority on the Texas Supreme Court, Justice Owen went out of her way to ignore precedent and would have ruled for the defendants. The conservative Republican majority, in contrast to Justice Owen, followed precedent and the doctrine of stare decisis. A clear example of Justice Owen's judicial activism.

In Montgomery Independent School District v. Davis, 34 S.W. 3d 559, Tex. 2000, Justice Owen wrote another dissent which drew fire from a conservative Republican majority--this time for her disregard for legislative language. In a challenge by a teacher who did not receive reappointment to her position, the majority found that the school board had exceeded its authority when it disregarded the Texas Education Code and tried to overrule a hearing examiner's decision on the matter. Justice Owen's dissent advocated for an interpretation contrary to the language of the applicable statute. The majority, which included Alberto Gonzales and two other appointees of then-Governor Bush, was quite explicit

about its view that Justice Owen's position disregarded the law:

The dissenting opinion misconceives the hearing examiner's

role in the . . . process by stating that the hearing

examiner `refused' to make findings on the evidence the Board

relies on to support its additional findings. As we explained

above, nothing in the statute requires the hearing examiner

to make findings on matters of which he is unpersuaded. . . .

The majority also noted that:

The dissenting opinion's misconception of the hearing

examiner's role stems from its disregard of the procedural

elements the Legislature established in subchapter F to

ensure that the hearing-examiner process is fair and

efficient for both teachers and school boards. The

Legislature maintained local control by giving school boards

alone the option to choose the hearing-examiner process in

nonrenewal proceedings. . . . By resolving conflicts in

disputed evidence, ignoring credibility issues, and

essentially stepping into the shoes of the factfinder to

reach a specific result, the dissenting opinion not only

disregards the procedural limitations in the statute but

takes a position even more extreme than that argued for by

the board.

Another clear example of Justice Owen's judicial activism.

Collins v. Ison-Newsome, 73 S.W.3d 178, Tex. 2001, is yet another case where a dissent, joined by Justice Owen, was roundly criticized by the Republican majority of the Texas Supreme Court. The Court cogently stated the legal basis for its conclusion that it had no jurisdiction to decide the matter before it, and as in other opinions where Justice Owen was in dissent, took time to explicitly criticize the dissent's positions as contrary to the clear letter of the law.

At issue was whether the Supreme Court had the proper ``conflicts jurisdiction'' to hear the interlocutory appeal of school officials being sued for defamation. The majority explained that it did not because published lower court decisions do not create the necessary conflict between themselves. The arguments put forth by the dissent, in which Justice Owen joined, offended the majority, and they made their views known, writing:

The dissenting opinion agrees that ``because this is an

interlocutory appeal . . . this Court's jurisdiction is

limited,'' but then argues for the exact opposite proposition

. . . This argument defies the Legislature's clear and

express limits on our jurisdiction. . . . The author of the

dissenting opinion has written previously that we should take

a broader approach to the conflicts-jurisdiction standard.

But a majority of the Court continues to abide by the

Legislature's clear limits on our interlocutory-appeal

jurisdiction.

They continue:

[T]he dissenting opinion's reading of Government Code sec.

22.225(c) conflates conflicts jurisdiction with dissent

jurisdiction, thereby erasing any distinction between these

two separate bases for jurisdiction. The Legislature

identified them as distinct bases for jurisdiction in

sections 22.001(a)(1) and (a)(2), and section 22.225(c)

refers specifically to the two separate provisionsn of

section 22.001(a) providing for conflicts and dissent

jurisdiction. . . . [W]e cannot simply ignore the legislative

limits on our jurisdiction, and not even Petitioners argue

that we should do so on this basis.

Again, Justice Owen joined a dissent that the Republican majority described as defiant of legislative intent and in disregard of legislatively drawn limits. Yet another clear example of Justice Owen's judicial activism.

Some of the most striking examples of criticism of Justice Owen's writings, or the dissents and concurrences she joins, come in a series of parental notification cases heard in 2000. They include:

In In re Jane Doe 1, 19 S.W.3d 346, Tex. 2000, where the majority included an extremely unusual section explaining its view of the proper role of judges, admonishing the dissent, joined by Justice Owen, for going beyond its duty to interpret the law in an attempt to fashion policy.

Giving a pointed critique of the dissenters, the majority explained that, ``In reaching the decision to grant Jane Doe's application, we have put aside our personal viewpoints and endeavored to do our job as judges--that is, to interpret and apply the Legislature's will as it has been expressed in the statute.''

In a separate concurrence, Justice Alberto Gonzales wrote that to construe the law as the dissent did, ``would be an unconscionable act of judicial activism.''

A conservative Republican colleague of Justice Owen's, pointing squarely to her judicial activism.

In In re Jane Doe 3, 19 S.W. 3d 300, Tex. 2000, Justice Enoch writes specifically to rebuke Justice Owen and her follow dissenters for misconstruing the legislature's definition of the sort of abuse that may occur when parents are notified of a minor's intent to have an abortion, saying, ``abuse is abuse; it is neither to be trifled with nor its severity to be second guessed.''

In one case that is perhaps the exception that proves the rule, Justice Owen wrote a majority that was bitterly criticized by the dissent for its activism. In In re City of Georgetown, 53 S.W. 3d 328, Tex. 2001, Justice Owen wrote a majority opinion finding that the city did not have to give the Austin American-Statesman a report prepared by a consulting expert in connection with pending and anticipated litigation because such information was expressly made confidential under other law namely, the Texas Rules of Civil Procedure.

The dissent is extremely critical of Justice Owen's opinion, citing the Texas law's strong preference for disclosure and liberal construction. Accusing her of activism, Justice Abbott, joined by Chief Justice Phillips and Justice Baker, notes that the legislature, ``expressly identified eighteen categories of information that are 'public information' and that must be disclosed upon request . . . [sec. (a)] The Legislature attempted to safeguard its policy of open records by adding subsection (b), which limits courts' encroachment on its legislatively established policy decisions.'' The dissent further protests:

[b]ut if this Court has the power to broaden by judicial rule

the categories of information that are ``confidential under

other law,'' then subsection (b) is eviscerated from the

statute. By determining what information falls outside

subsection (a)'s scope, this Court may evade the mandates of

subsection (b) and order information withheld whenever it

sees fit. This not only contradicts the spirit and language

of subsection (b), it guts it.

Finally, the opinion concluded by asserting that Justice Owen's interpretation, ``abandons strict construction and rewrites the statute to eliminate subsection (b)'s restrictions.''

Yet again, her colleagues on the Texas court, citing Justice Owen's judicial activism.

These examples, together with the unusually harsh language directed at Justice Owen's position by the majority in the Doe cases, show a judge out of step with the conservative Republican majority of the Texas Supreme Court, a majority not afraid to explain the danger of her activist views.

I am also greatly concerned about Justice Owen's record of ends- oriented decision making as a Justice on the Texas Supreme Court. As one reads case after case, particularly those in which she was the sole dissenter or dissented with the extreme right wing of the Court, her pattern of activism becomes clear. Her legal views in so many cases involving statutory interpretation simply cannot be reconciled with the plain meaning of the statute, the legislative intent, or the majority's interpretation, leading to the conclusion that she sets out to justify some pre-conceived idea of what the law ought to mean. This is not an appropriate way for a judge to make decisions. This is a judge whose record reflects that she is willing and sometimes eager to make law from the bench.

Justice Owen's activism and extremism is noteworthy in a variety of cases, including those dealing with business interests, malpractice, access to public information, employment discrimination and Texas Supreme Court jurisdiction, in which she writes against individual plaintiffs time and time again, in seeming contradiction of the law as written.

One of the cases where this trend is evident is FM Properties v. City of Austin, 22 S.W. 3d 868, Tex. 1998. I asked Justice Owen about this 1998 environmental case at her hearing. In her dissent from a 6-3 ruling, in which Justice Alberto Gonzales was among the majority, Justice Owen showed her willingness to rule in favor of large private landowners against the clear public interest in maintaining a fair regulatory process and clean water. Her dissent, which the majority characterized as ``nothing more than inflammatory rhetoric,'' was an attempt to favor big landowners.

In this case, the Texas Supreme Court found that a section of the Texas

Water Code allowing certain private owners of large tracts of land to create ``water quality zones,'' and write their own water quality regulations and plans, violated the Texas Constitution because it improperly delegated legislative power to private entities. The Court found that the Water Code section gave the private landowners, ``legislative duties and powers, the exercise of which may adversely affect public interests, including the constitutionally-protected public interest in water quality.'' The Court also found that certain aspects of the Code and the factors surrounding its implementation weighed against the delegation of power, including the lack of meaningful government review, the lack of adequate representation of citizens affected by the private owners' actions, the breadth of the delegation, and the big landowners' obvious interest in maximizing their own profits and minimizing their own costs.

The majority offered a strong opinion, detailing its legal reasoning and explaining the dangers of offering too much legislative power to private entities. By contrast, in her dissent, Justice Owen argued that, ``[w]hile the Constitution certainly permits the Legislature to enact laws that preserve and conserve the State's natural resources, there is nothing in the Constitution that requires the Legislature to exercise that power in any particular manner,'' ignoring entirely the possibility of an unconstitutional delegation of power. Her view strongly favored large business interests to the clear detriment of the public interest, and against the persuasive legal arguments of a majority of the Court.

When I asked her about this case at her hearing, I found her answer perplexing. In a way that she did not argue in her written dissent, at her hearing Justice Owen attempted to cast the FM Properties case not as, ``a fight between and City of Austin and big business, but in all honesty, . . . really a fight about . . . the State of Texas versus the City of Austin.'' In the written dissent however, she began by stating the, ``importance of this case to private property rights and the separation of powers between the judicial and legislative branches . . .'', and went on to decry the Court's decision as one that, ``will impair all manner of property rights.'' 22 S.W. 3d at 889. At the time she wrote her dissent, Justice Owen was certainly clear about the meaning of this case--property rights for corporations.

Another case that concerned me is GTE Southwest, Inc. v. Bruce, 990 S.W.2d 605, where Justice Owen wrote in favor of GTE in a lawsuit by employees for intentional infliction of emotional distress. The rest of the Court held that three employees subjected to what the majority characterized as ``constant humiliating and abusive behavior of their supervisor'' were entitled to the jury verdict in their favor. Despite the Court's recitation of an exhaustive list of sickening behavior by the supervisor, and its clear application of Texas law to those facts, Justice Owen wrote a concurring opinion to explain her difference of opinion on the key legal issue in the case--whether the behavior in evidence met the legal standard for intentional infliction of emotional distress.

Justice Owen contended that the conduct was not, as the standard requires, ``so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . .'' The majority opinion shows Justice Owen's concurrence advocating an inexplicable point of view that ignores the facts in evidence in order to reach a predetermined outcome in the corporation's favor.

Justice Owen's recitation of facts in her concurrence significantly minimizes the evidence as presented by the majority. Among the kinds of behavior to which the employees were subjected--according to the majority opinion--are: Upon his arrival the supervisor, ``began regularly using the harshest vulgarity . . . continued to use the word ``f----'' and ``motherf----r'' frequently when speaking with the employees . . . repeatedly physically and verbally threatened and terrorized them . . . would frequently assault each of the employees by physically charging at them . . . come up fast . . . and get up over (the employee) . . . and yell and scream in her face . . . called (an employee) into his office every day and . . . have her stand in front of him, sometimes for as long as thirty minutes, while (the supervisor) simply stared at her . . . made (an employee) get on her hands and knees and clean the spots (on the carpet) while he stood over her yelling.'' Justice Owen did not believe that such conduct was outrageous or outside the bounds of decency under state law.

At her hearing, in answer to Senator Edwards's questions about this case, Justice Owen again gave an explanation not to be found in her written views. She told him that she agreed with the majority's holding, and wrote separately only to make sure that future litigants would not be confused and think that out of context, any one of the outrages suffered by the plaintiffs would not support a judgment. Looking again at her dissent, I do not see why, if that was what she truly intended, she did not say so in language plain enough to be understood, or why she thought it necessary to write and say it in the first place. It is a somewhat curious distinction to make--to advocate that in a tort case a judge should write a separate concurrence to explain which part of the plaintiff's case, standing alone, would not support a finding of liability. Neither her written concurrence, nor her answers in explanation after the fact, is satisfactory explanation of her position in this case.

In City of Garland v. Dallas Morning News, 22 S.W. 3d 351, Tex. 2000, Justice Owen dissented from a majority opinion and, again, it is difficult to justify her views other than as being based on a desire to reach a particular outcome. The majority upheld a decision giving the newspaper access to a document outlining the reasons why the city's finance director was going to be fired. Justice Owen made two arguments: that because the document was considered a draft it was not subject to disclosure, and that the document was exempt from disclosure because it was part of policy making. Both of these exceptions were so large as to swallow the rule requiring disclosure. The majority rightly points out that if Justice Owen's views prevailed, almost any document could be labeled draft to shield it from public view. Moreover, to call a personnel decision a part of policy making is such an expansive interpretation it would leave little that would not be ``policy.''

Quantum Chemical v. Toennies, 47 S.W. 3d 473, Tex. 2001, is another troubling case where Justice Owen joined a dissent advocating an activist interpretation of a clearly written statute. In this age discrimination suit brought under the Texas civil rights statute, the relevant parts of which were modeled on Title VII of the federal Civil Rights Act--and its amendments--the appeal to the Texas Supreme Court centered on the standard of causation necessary for a finding for the plaintiff. The plaintiff argued, and the five justices in the majority agreed, that the plain meaning of the statute must be followed, and that the plaintiff could prove an unlawful employment practice by showing that discrimination was ``a motivating factor.'' The employer corporation argued, and Justices Hecht and Owen agreed, that the plain meaning could be discarded in favor of a more tortured and unnecessary reading of the statute, and that the plaintiff must show that discrimination was ``the motivating factor,'' in order to recover damages.

The portion of Title VII on which the majority relies for its interpretation was part of Congress's 1991 fix to the United States Supreme Court's opinion in the Price Waterhouse case, which held that an employer could avoid liability if the plaintiff could not show discrimination was ``the'' motivating factor. Congress's fix, in Section 107 of the Civil Rights Act of 1991, does not specify whether the motivating factor standard applies to both sorts of discrimination cases, the so-called ``mixed motive'' cases as well as the ``pretext'' cases.

The Texas majority concluded that they must rely on the plain language of the statute as amended, which could not be any clearer that under Title VII discrimination can be shown to be ``a'' motivating factor. Justice Owen joined Justice Hecht in claiming that federal case law is clear (in favor of their view), and opted for a reading of the statute that would turn it into its polar opposite, forcing plaintiffs into just the situation legislators were trying to avoid. This example of Justice

Owen's desire to change the law from the bench, instead of interpret it, fits President Bush's definition of activism to a ``T''.

Justice Owen has also demonstrated her tendency toward ends-oriented decision making quite clearly in a series of dissents and concurrences in cases involving a Texas law providing for a judicial bypass of parental notification requirements for minors seeking abortions.

The most striking example is Justice Owen's expression of disagreement with the majority's decision on key legal issues in Doe 1. She strongly disagreed with the majority's holding on what a minor would have to show in order to establish that she was, as the statute requires, ``sufficiently well informed'' to make the decision on her own. While the conservative Republican majority laid out a well- reasoned test for this element of the law, based on the plain meaning of the statute and well-cited case law, Justice Owen inserted elements found in neither authority. Specifically, Justice Owen insisted that the majority's requirement that the minor be ``aware of the emotional and psychological aspects of undergoing an abortion'' was not sufficient and that among other requirements with no basis in the law, she, ``would require . . . [that the minor] should . . . indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion.'' In re Jane Doe 1, 19 S.W.3d 249, 256, Tex. 2000.

In her written concurrence, Justice Owen indicated, through legal citation, that support for this proposition could be found in a particular page of the Supreme Court's opinion in Planned Parenthood v. Casey. However, when one looks at that portion of the Casey decision, one finds no mention of requiring a minor to acknowledge religious or moral arguments. The passage talks instead about the ability of a State to ``enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear.'' Justice Owen's reliance on this portion of a United States Supreme Court opinion to rewrite Texas law was simply wrong.

As she did in answer to questions about a couple of other cases at her hearing, Justice Owen tried to explain away this problem with an after-the-fact justification. She told Senator Cantwell that the reference to religion was not to be found in Casey after all, but in another U.S. Supreme Court case, H.L. v. Matheson. She explained that in ``Matheson they talk about that for some people it raises profound moral and religious concerns, and they're talking about the desirability or the State's interest in these kinds of considerations in making an informed decision.'' Transcript at 172. But again, on reading Matheson, one sees that the only mention of religion comes in a quotation meant to explain why the parents of the minor are due notification, not about the contours of what the government may require someone to prove to show she was fully well informed. Her reliance on Matheson for her proposed rewrite of the law is just as faulty as her reliance on Casey. Neither one supports her reading of the law. She simply tries a little bit of legal smoke and mirrors to make it appear as if they did. This is the sort of ends-oriented decision making that destroys the belief of a citizen in a fair legal system. And most troubling of all was her indication to Senator Feinstein that she still views her dissents in the Doe cases as the proper reading and construction of the Texas statute.

At her second, unprecedented hearing in 2003, Justice Owen and her defenders tried hard to recast her record and others' criticism of it. I went to that hearing, I listened to her testimony, and I read her written answers, many newly formulated, that attempt to explain away her very disturbing opinions in the Texas parental notification cases. But her record is still her record, and the record is clear. She did not satisfactorily explain why she infused the words of the Texas legislature with so much more meaning than she can be sure they intended. She adequately describes the precedents of the Supreme Court of the United States, to be sure, but she simply did not justify the leaps in logic and plain meaning she attempted in those decisions.

I read her responses to Senator Hatch's remarks at that second hearing, where he attempted to explain away cases about which I had expressed concern at her first hearing. For example, I heard him explain the opinion she wrote in F.M. Properties v. City of Austin. I read how he recharacterized the dispute in an effort to make it sound innocuous, just a struggle between two jurisdictions over some unimportant regulations. I know how, through a choreographed exchange of leading questions and short answers, they tried to respond to my question from the original hearing, which was never really answered, about why Justice Owen thought it was proper for the legislature to grant large corporate landowners the power to regulate themselves. I remained unconvinced. The majority in this case, which invalidated a state statute favoring corporations, did not describe the case or the issues as Senator Hatch and Justice Owen did. A fair reading of the case shows no evidence of a struggle between governments. This is all an attempt at after-the-fact, revisionist justification where there really is none to be found.

Justice Owen and Chairman Hatch's explanation of the case also lacked even the weakest effort at rebutting the criticism of her by the F.M. Properties majority. In its opinion, the six justice majority said, and I am quoting, that Justice Owen's dissent was ``nothing more than inflammatory rhetoric.'' They explained why her legal objections were mistaken, saying that no matter what the state legislature had the power to do on its own, it was simply unconstitutional to give the big landowners the power they were given. No talk of the City of Austin v. the State of Texas. Just the facts.

Likewise, the few explanations offered for the many other examples of the times her Republican colleagues criticized her were unavailing. The tortured reading of Justice Gonzales' remarks in the Doe case were unconvincing. He clearly said that to construe the law in the way that Justice Owen's dissent construed the law would be activism. Any other interpretation is just not credible.

And no reasons were offered for why her then-colleague, now ours, Justice Cornyn, thought it necessary to explain the principle of stare decisis to her in his opinion in Weiner v. Wasson. Or why in Montgomery Independent School District v. Davis, the majority criticized her for her disregard for legislative language, saying that, ``the dissenting opinion misconceives the hearing examiner's role in the . . . process,'' which it said stemmed from, ``its disregard of the procedural elements the Legislature established . . . to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards.'' Or why, in Collins v. Ison-Newsome, a dissent joined by Justice Owen was so roundly criticized by the Republican majority, which said the dissent agrees with one proposition but then ``argues for the exact opposite proposition . . . [defying] the Legislature's clear and express limits on our jurisdiction.''

I have said it before, but I am forced to say it again. These examples, together with the unusually harsh language directed at Justice Owen's position by the majority in the Doe cases, show a judge out of step with the conservative Republican majority of the Texas Supreme Court, a majority not afraid to explain the danger of her activist views. No good explanation was offered for these critical statements last year, and no good explanation was offered two weeks ago. Politically motivated rationalizations do not negate the plain language used to describe her activism at the time.

When he nominated Priscilla Owen, President Bush said that his standard for judging judicial nominees would be that they ``share a commitment to follow and apply the law, not to make law from the bench.'' He said he is against judicial activism. Yet he has appointed judicial activists like Priscilla Owen and Janice Rogers Brown.

Under President Bush's own standards, Justice Owen's record of ends- oriented judicial activism does not qualify her for a lifetime appointment to the Federal bench.

The President has often spoken of judicial activism without acknowledging

that ends-oriented decision-making can come easily to extreme ideological nominees. In the case of Priscilla Owen, we see a perfect example of such an approach to the law, and I cannot support it. The oath taken by federal judges affirms their commitment to ``administer justice without respect to persons, and do equal right to the poor and to the rich.'' No one who enters a federal courtroom should have to wonder whether he or she will be fairly heard by the judge.

Justice Priscilla Owen's record of judicial activism and ends- oriented decision making leaves me with grave doubt about her ability to be a fair judge. The President says he opposes putting judicial activists on the Federal bench, yet Justice Priscilla Owen unquestionably is a judicial activist. I cannot vote to confirm her for this appointment to one of the highest courts in the land.

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

Mr. President, I will speak on another subject, but as per an agreement with the Senator from Oklahoma, should someone else come to the Senate floor and wish to speak on the subject of the bill at hand, I will yield the floor.

Nuclear Option

Mr. President, I will change the subject to the subject on everyone's mind other than the transportation bill, probably more on our minds than just about anything else, and that is the upcoming nuclear option. Right now, we are on the precipice of a constitutional crisis. We are about to step into the abyss. I want to talk for a few minutes why we are on that precipice and why we are looking into the abyss.

Let me first ask a fundamental question: What is the crisis that calls for the undoing of two centuries of tradition? What is the crisis that requires such an unprecedented parliamentary sleight of hand? What is the crisis that calls for a response that is so controversial and extreme that Senator Lott coined the term ``nuclear option'' to describe it?

Is it that President Bush has had the terrible misfortune of having only 95 percent of his judicial nominees confirmed? That is, 208 out of 218? It can't be that. Every President should have the luck of George Bush and have so many nominees confirmed to the bench. I might also add, in part because of this high confirmation rate, court vacancies at the end of last session were at their lowest rate in 14 years. So it can't be either vacancies on the bench or overwhelming rejection of the President's nominees because neither is the fact.

Is it that the Constitution, as my strict constructionist friends across the aisle like to argue, requires an up-or-down vote on every judicial nominee? Is that the crisis? No, Senator Frist acknowledged as much last week when he conceded, after a question from Senator Byrd, that there was no such language in the Constitution.

In fact, it is a great irony that those on the other side of the aisle who are seeking this nuclear option in the name of strict construction are being activists, as they call it, because they are expanding the Constitution, reading in their own views in the Constitution when the very words do not exist.

It is my understanding that is what the Constitution-in-exile school holds; that is, what the strict constructive school of Justice Scalia holds. If the words are not in the Constitution, you do not read them in.

Is the word ``filibuster'' in the Constitution? No. Are the words ``majority vote,'' ``up-or-down vote'' in the Constitution? Absolutely not. That is not the crisis, either.

Let me ask again, Why are we on the brink of destroying what is good in the Senate and destroying whatever is left of good will in the Senate? Is it that the public, in high dudgeon, is demanding this radical rule change? Are Republican Senators merely doing their jobs as legislators, responding to a generalized public calling for the abolition of the filibuster? Clearly not.

It is not the American people at large who are demanding detonation of the nuclear option. Indeed, in poll after poll, first, people say they do not know what it is when asked, and then when it is described to them, the people have made clear they believe the filibuster is an important check and balance to be preserved, not vaporized. Most recently, for instance, according to a Time magazine poll, the American people are against the nuclear option 59 to 28.

Nor is it rank-and-file Republicans who are clamoring for an end to filibusters on judges. A Wall Street Journal poll showed 41 percent of Republicans support giving the Democrats the right to keep the filibuster going. They, like most Americans, are wondering, and rightly so, why we are talking more about the nuclear option in the Senate than about nuclear proliferation in North Korea.

Nor is it the business establishment--clearly, usually, a conservative constituency--that is calling for a change in the rules. To the contrary, the business community wants the Senate to get busy addressing important issues they believe will get the economy back on track. The Chamber of Commerce and many other business groups have either publicly or privately stated their opposition to invoking the nuclear option.

Is it the ``gray heads'' of the conservative movement who are calling for this? No. By and large, elder statesmen from the conservative movement are not demanding this radical move. Many, including such leading figures as George Will and Ken Starr, have criticized the nuclear option and urge restraint--so have Senators Armstrong and McClure, hardly beacons of a liberal influence in this country or in the Senate.

So if there is no constitutional requirement, and there is no vacancy disaster, and there is no public clamoring for the extinguishing of the minority rights to filibuster, why are we here? Why are we on the edge of the abyss? Why are we--at least the majority--being motivated to plunge this Senate, this city, and this country into a constitutional crisis, into an end of what is ever left of comity in the Senate, which is the body that has at least some comity left?

Well, let me tell you why I fear we are here. We are here, I fear, because the nuclear option is being pushed largely by the radioactive rhetoric of a small band of radicals who hold in their hands the political fortunes of the President and a minority of sitting Senators who would be President. The once conservative Republican Party has, I believe, been hijacked by activist, radical, rightwing ideologues who are exerting too much influence over Senators.

These ideologues have taken to intimidating and even threatening the independent judiciary. They have, among other things, compared judges to the KKK and claimed that the independent judiciary is worse than al- Qaida. Unfortunately, these extreme groups are exerting disproportionate influence on certain Senators from the other side who--because of pure political pressure--are proceeding at pace with the nuclear option.

There is, to be sure, much irony and hypocrisy in this dance. It is particularly perverse that many of my colleagues purport to preserve the principle of majority rule by doing the bidding of a distinct, but politically powerful, minority.

I would like to finish my remarks, and then I would be happy to yield to my colleague.

I probably will need no more than 5 minutes, if that is OK with my colleague.

I thank the Senator. I appreciate that very much.

It seems the only conservatives who are strongly in favor of the nuclear option--who are pushing it--are some Senators who might wish to run for President.

Now, to hear the tirades of those demanding the nuclear option is spine tingling.

Conservative activist James Dobson compared the nine Supreme Court Justices to the Ku Klux Klan's men in robes.

Pat Robertson said the threat posed by judges was ``more serious than a few bearded terrorists who fly into buildings.''

Conservative lawyer-author Edwin Vieira said Justice Kennedy should be impeached and invoked Joseph Stalin's murderous slogan, which he said worked very well for him:

[W]henever he ran into difficulty: ``no man, no problem.''

Do we hear any denunciation of this inflammatory rhetoric? No. Denunciations of heinous characterizations of independent judges? No.

Instead, Senators--some maybe with Presidential ambitions--are kowtowing to these extremists. When the Democratic Party kowtowed to extremists on the left, we paid the price. It is a lesson I think we have learned. It is a lesson that ought to be learned by my colleagues on the other side.

Now, let's try to examine the record. And this is the No. 1 point I want to make. Look what conservatives are saying, conservatives not running for President or running for office, but people whose conservative credentials go unchallenged. These are not moderates. These are not liberals. They are true conservatives, and a chorus of their voices is speaking out against the nuclear option.

True conservatives, independent thinkers who are not under pressure from the likes of Tony Perkins and Pat Robertson and others, have eloquently made the case against the nuclear option. These conservatives have two things in common: They were strongly in favor of George Bush for President, and they are strongly against the nuclear option.

Here are some of the names. Many leading conservative commentators and thinkers are against it, such as George Will and Kenneth Starr. Many former Republican Senators are against it, such as Senator Armstrong, Senator McClure, Senator Wallop, Senator Simpson. Many editorial boards

that endorsed George Bush for President are against it--the Dallas Morning News.

I recognize that in these polarized times maybe the words of a Democratic Senator from New York will have little sway across the aisle, but what about the words of some icons and leaders of the conservative movement?

I urge my colleagues who have not yet made up their minds and been committed to the nuclear option to heed these words. Most of those who have not made up their minds are far more moderate than the voices that we listed here, but they should be listened to in this instance. It is rare that you get so many conservatives--not in office, not under the thumb of these extreme, small-numbered groups--but rarely do you get such a chorus.

Here are the arguments of the conservatives. The conservatives understand that destroying an important tradition of the Senate is not conservative. Conservatism has a long tradition in American politics. I agree with some of its tenets and disagree with many others. But true advocates and students of that tradition recognize better than anyone the violence that the nuclear option does to conservative principles.

Ken Starr said in one leading magazine:

It may prove to have the kind of long-term boomerang

effect, damage on the institution of the Senate, that

thoughtful Senators may come to regret.

How about former Senator Armstrong? He said this:

Having served in the majority and in the minority, I know

that it's worthwhile to have the minority empowered. As a

conservative, I think there is value to having a constraint

on the majority.

Let me repeat that: ``As a conservative, I think there is value to having a constraint on the majority.''

Jim McClure and Malcolm Wallop:

It is disheartening to think that those entrusted with the

Senate's history and future would consider damaging it in

this manner.

Second, these conservatives realize that the Constitution, even in expansive reading, let alone strict constructionism, does not support the nuclear option.

In advocating for the nuclear option, Republicans in the Senate have abandoned conservative principles for convenient propaganda. In doing so, however, they are committing a level of intellectual hypocrisy that we have not seen since Bush v. Gore. To make sure that strict constructionist judges are placed on the bench, the nuclear advocates are reading the Constitution so broadly and elastically that it would make the most activist judge cringe. Do not take my word for it.

Mr. President, I know my colleague is getting ready to speak, and I am almost finished. I appreciate his indulgence.

Here is what George Will said:

Some conservatives say the Constitution's framers ``knew

what supermajorities they wanted''--the Constitution requires

various supermajorities, for ratifying treaties, impeachment

convictions, etc.; therefore, other supermajority rules are

unconstitutional.

These are the words of George Will, not Chuck Schumer.

But it stands conservatism on its head to argue that what

the Constitution does not mandate is not permitted.

Some conservatives say there is a ``constitutional right''

to have an up-or-down vote on nominees. But in whom does this

right inhere: The nominees, the President? This is a perverse

contention, coming from conservatives eager to confirm judges

who will stop the promiscuous discovery by courts of spurious

constitutional rights.

That is George Will, not Chuck Schumer.

Here is what Stephen Moore, founder of the arch conservative Club for Growth says:

Eviscerating the filibuster would violate the spirit of the

Constitution and endanger our rights as individuals against

excessive governmental power.

These conservatives also understand that no party lasts forever in the majority and the nuclear option may come back to haunt Republicans. For short-term political gain, Republican Senators are willing to trash a tradition that will hurt themselves in the long run.

Former Senator Simpson recognizes this:

[T]here isn't a question in my mind that when the

Republicans go out of power and they, they're looking for

protection of minority rights, they're going to be alarmed

and saddened.

Finally, the conservatives also understand that once triggered, there will be no stopping the continued erosion of the filibuster. The legislative filibuster is also at great risk. Listen to former Senators McClure and Wallop:

It is naive to think what is done to the judicial

filibuster will not be done to its legislative counterpart,

whether by a majority leader named Reid, or Clinton, or

Kennedy.

Here is David Hoppe, former chief of staff to Senator Lott:

That's the problem with the nuclear option, because it will

not stop there. The next step when somebody needs it will be

to get rid of the filibuster on legislative issues.

In conclusion, we are here. We are at a defining moment in the world's greatest deliberative body. Now, this week, in the next few weeks, will enough of my colleagues across the aisle act with courage and conviction? Will enough of them resist the extremist entreaties of a tiny but vocal minority who only want their way 100 percent of the time, not 99, not 98, not 97? Will enough of them pay heed to the arguments made by independent conservatives of their own party, whether it is George Will or Bill Armstrong or Ken Starr or so many of the others I mentioned?

Time is running out. Time is running out.

I yield the floor.