Transportation Equity Act: A Legacy for Users

TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS--Continued -- (Senate - April 28, 2005)

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Mr. REED. Mr. President, I will speak on the issue of the so-called nuclear option.

We are at an important crossroads in our Nation's history today. I believe my Republican colleagues should think long and hard about the long-term effects of what they are proposing on the vitality and utility of this institution that we call the U.S. Senate.

As Thomas Paine once stated:

He that would make his own liberty secure, must guard even his enemy from opposition; for if he violates this duty, he establishes a precedent that will reach himself.

I believe that this so-called crisis is really an artificial crisis. The Senate has confirmed 206 of President Bush's judicial nominees and rejected 10. The Senate has confirmed 95 percent of the President's nominees. We have the lowest court vacancy rate since the administration of Ronald Reagan.

As almost everyone in this body is aware, President Clinton had over 60 judicial nominees and 200 executive branch nominees blocked by the Republicans. Many of these nominees were not even granted the courtesy of a hearing, let alone a vote. We call this ``pocket filibustering'' in the Senate. It was according to the rules, and we followed the rules and did not attempt to change the rules. That is the difference today. The Republicans are trying, through extralegal means perhaps, to change the rules of the Senate.

Senator Frist and many of my other Republican colleagues have been involved in both filibustering and pocket filibustering of judicial nominees, and they did not object to their own actions or purport to suggest that their own actions were

unconstitutional or in any way violated the spirit or the rules of the Senate.

In 2000, Clinton nominee Richard Paez was filibustered by a number of my colleagues, but Democrats and Republicans defeated the filibuster by finding common ground and, under the rules of the Senate, moved to a vote.

Although almost every Senator in this Chamber believes that bipartisan improvements could and should be made to the nomination process, this President and the majority have not made any such attempts.

For example, returning to the tradition of allowing home State Senators and/or home State advisory boards to make recommendations to the President regarding eminent lawyers and jurists he should consider when nominating men and women for lifetime appointments on Federal courts would be one possible way to make this whole process less partisan.

If we want thoughtful, intelligent men and women to even want to take on the job of Federal judge, we would all benefit from depoliticization of the judicial process.

There are many ways President Bush and the Republicans in the Senate could work with Democrats to make the judicial nomination process work more smoothly. But in light of the rejection of the minority leader's proposal and the subsequent proposal made by the majority leader, it is clear this debate is not really about making the process work better. This whole debate should be seen for what it is--a grab for power.

This is not the first time a President, with the help of his own party, has attempted to grab complete and total power over the judicial nomination process.

In 1937, President Franklin Roosevelt, a Democrat, sent a bill to Congress that would have drastically reorganized the judiciary and added up to six more justices on the Supreme Court. Why? Because he didn't like what the Supreme Court was doing to his legislative proposals. Although the Senate Judiciary Committee rejected the bill, finding it, in their words, ``essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of Government,'' the majority leader, Joseph Robinson, supported the bill and brought it to the floor.

A determined group of Senators, using the filibuster for 8 days, defeated this proposal. It was the right to free and open debate that defeated President Roosevelt's attempt to consolidate his power over the judicial branch of Government. It is that same right we are talking about today. It is the right that allows the Senate to play its unique role in our constitutional democracy.

One of the most basic concepts behind the construction of the Constitution is the concept that absolute power corrupts. After fighting a revolution to escape from the tyranny of an absolute monarch, the Founding Fathers were very focused on coming up with a system of government that would prevent one ruler or one faction of people from controlling all of the mechanisms of power.

James Madison believed that ``the causes of faction cannot be removed and that relief is only to be sought in the means of controlling its effects.''

As he stated in Federalist Paper No. 10: ``Among the numerous advantages promised by a well-constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of factions.'' He further goes on to state that ``Complaints are everywhere heard from our most considerate and virtuous citizens ..... that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.''

It was the desire of the Founding Fathers to protect the rights of the minority from ``the superior force of an interested and overbearing majority'' which caused them to create three branches of Government.

Because of the skills and temperament required of a judge, the Founding Fathers decided that judges would not be elected like the other two branches of Government but would be nominated by the President with the advice and consent of the Senate.

Article II, section 2 states that the President:

..... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. .....

In effect, Madison and the Founding Fathers believed that the independence of the judiciary was so important that lifelong judicial appointments needed to be made by consensus between the executive and legislative branches. Alexander Hamilton stated in Federalist Paper No. 78 that:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency in the meantime, to occasion dangerous innovations in the government and serious oppressions of the minor party in the community.

Resonating throughout the Federalist Papers is the notion that the test of this Government is not the success of the majority but the fact that minority rights are protected. Minority rights on this floor could be extinguished if the rules of this Senate are disregarded. This is why I am here today on the floor of the Senate to speak out.

It is important that we do not let another President try to pack the courts. The Senate cannot become merely a rubberstamp for any President. The independence of the courts is critical to protecting the Constitution and the rights of individuals. It is for this reason that preserving the right to open and free debate in the Senate is so important. Indeed, if the Founding Fathers wanted a system of pure majority rule, they would have only created one Chamber.

These decisions should not be made on a political whim. The impact of judicial appointments outlasts party changes in both the executive and legislative branch of Government. Indeed, some Members of the other party have complained about the abuse of power by ``activist'' judges. Frankly, I cannot think of a better way to protect against activist judges than by protecting the current cloture rule. If two-thirds of the Senate believes a nominee is qualified for the position and will do the job well, that candidate is probably not going to be an activist judge on either the right or the left.

Opponents of the filibuster have questioned its constitutionality. However, time and again, the courts have shown a reluctance to interpret the rules of either House of Congress or to review the application of such rules.

The Founding Fathers stated in article I, section 5, clause 2 of the Constitution:

Each House may determine the Rules of its Proceedings.

Much of the current debate around the Republican leadership's proposal to change a 200-year-old Senate tradition regarding the right to unlimited debate revolves around rule XXII of the Standing Rules of the Senate. This rule is clearly constitutional. Rule XXII is about the precedence of motions. The relevant part is as follows:

Is it the sense of the Senate that debate shall be brought to a close? And if that question shall be decided in the affirmative by three-fifths of the Senators duly sworn--except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting--then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

This rule encapsulates an agreement between the majority and minority that an amendment to the Senate rules is so important that it requires a two-thirds vote--the same number of votes required to vote on treaties, overcome a Presidential veto, and impeach a President--to change the Standing Rules of the Senate. And beyond all the current maneuvers on the floor, the real goal of the Republican majority is to change the rules of the Senate.

In addition to the filibuster, the Senate has adopted other practices to protect minority rights, including unanimous consent rules, holding legislation or nominations in committee, and the blue-slip process. When some of these procedures, in addition to the filibuster, have been challenged, the courts have given deference to the Senate to make its own rules on how to deliberate.

Clearly, if the majority party is arguing that the filibuster is unconstitutional, then certainly all other methods of blocking a nomination, including never holding a hearing or vote in committee, would be as well.

I daresay the same individuals arguing for the end of the filibuster because it is unconstitutional would not state that they acted unconstitutionally in blocking 60 of President Clinton's judicial nominees.

In fact, the Constitution is notably silent on what advice and consent means on a Presidential nomination. The majority are interpreting this to mean that each nominee deserves a vote, but the Constitution is actually silent on this issue. It is left to the Senate to determine what advice and consent really means.

I think we are well served by the current rule and 200 years of checks and balances, and we should not give up our right to debate without realizing the serious consequences this will have on our institution, not just today but for decades, in fact, the history of this country going forward. Finally, let me talk briefly about the claim that unlimited debate or the filibuster has never been used against a judicial nominee. That is simply untrue. The first recorded instance occurred in 1881 when Republicans were unable to end the filibuster of Stanley Matthews to the Supreme Court. There were nine other occasions in the 19th century when the Senate held no floor votes on Supreme Court nominations. More recently, the nomination of Associate Justice Abe Fortas to be Chief Justice of the Supreme Court and Homer Thornberry to be an Associate Justice failed when they were filibustered on the Senate floor by Republican Senator Robert Griffen and others.

Our predecessors also believed that certain judicial nominations were too problematic to be approved. If we are focused on improving the judicial nomination process right now, there is much we can do together to make it work better. This should be the issue before us today, not taking away the voice of the minority in one of the most important decisions we are asked to make as Senators, protecting the independence of the judiciary.

I also think we should be talking about real crises on the Senate floor, such as a $422 billion deficit, a historic trade deficit, the devastating budget the majority will be presenting to us this afternoon, and the need to stabilize a country in the Middle East that we have been engaged in for more than two years and has cost us American lives and billions of dollars. I urge the majority to reconsider this ill-advised abuse of power and work with us to forge some solutions to these real crises and to maintain the balance and integrity of our democratic institutions.

I yield the floor.

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