“Mr. President, we are here at a remarkable moment of confrontation. This is a great institution – at least it always has been – and is looked up to by people all over the world. But caught up as we are now in this moment of partisan, ideological quest for power, the Congress itself is dropping lower and lower in the view of the public.
Rather than reaching across the aisle to grapple with real crises, the Republican leadership moves unilaterally, shutting Senators out of Conference Committees, wasting energy and countless hours to change the rules by breaking the rules.
It’s a stunning moment. Words spoken in this chamber have trouble don’t fully convey the full importance of this moment. This is in fact one of those times that the founding fathers and countless other statesmen in history warned us against.
Henry Clay: “The arts of power and its minions are the same in all countries and in all ages. It marks its victim; denounces it; and excites the public odium and the public hatred, to conceal its own abuses and encroachments.”
James Madison: “Where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted.” … “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Lord Acton: “All power corrupts; absolute power corrupts absolutely.
Thomas Jefferson: “I hope our wisdom will grow with our power, and teach us, that the less we use our power the greater it will be.”
We are a nation that listened to remarkable men in remarkable debates argue how we as a nation would be different in balancing power and protecting the people and the institutions we set up to protect them. Now, in 2005, feeling the flush of victory in controlling two branches of government, elected officials are prepared to serve the moment – not to serve history – not precedent – not common sense – not the real interests of the American people.
The real interests of Americans are served by remembering that the greatest strength and virtue of our democracy is the protection it provides to the minority. That’s what’s special about America. That’s what make’s us different. That’s what makes our democracy so respected and even awesome to people all around the world.
So, this is a dangerous time for our democracy. What’s at stake here is something far greater than the confirmation of these judges. No matter how much time is spent on the life story of Priscilla Owen, we all know it’s nothing more than a smoke screen for what this is really about. It’s not about these few judges. We could have confirmed four judges this morning, but Republican leadership is determined to deny the minority the right to hold the executive accountable for lifetime appointments to the judiciary. It’s about George Bush and Karl Rove and the Republican leadership and their quest for absolute power over the Supreme Court and this Congress. It’s about the gratification of immediate ideological goals and the pursuit of power regardless of the long-term consequences for the Senate – Congress – or our Constitution.
To get what they want the leadership has acquiesced to outside forces. John Danforth, a greatly respected former Republican Senator, George Bush’s choice as UN Ambassador, and most importantly a respected minister and leader in his church, wrote: “The problem is not with people or churches that are politically active. It is with a party that has gone so far in adopting a sectarian agenda that it has become the political extension of a religious movement.”
Yet despite Senator Danforth’s warning most of my colleagues stay on script in this fight for history, for principle, for rights. They allow our cherished principles to be abused and glossed over as the debate devolves into a competition of hollow sound-bytes. But script and sound-byte should not dictate what happens here. Not here in the United States Senate. Conscience and principle should dictate what happens here. There must be Senators prepared to stand up and do their duty as Senators of the United States, not Senators of their Party.
My distinguished colleague, Senator Voinovich, recently showed such courage, but such acts, sadly, are increasingly rare. And now Senator Voinovich is being vilified on talk radio and the Internet for having the audacity to vote with his conscience. That doesn’t seem so controversial, but my distinguished colleague, Senator Chafee said he had never seen such an act as Senator Voinovich’s in his four years in Washington . That’s a sad statement about our Senate, and how ironic that Senator Voinovich is subjected to widespread denigration in partisan circles, when Americans should be admiring and respecting his independence.
And independence is what this is about. Independence of the Senate and Judiciary from an Administration bent on getting its way – bent on gaining total control notwithstanding the rules. And members of Republican leadership who know what’s at stake work with the Administration to spread mistruths. But none of leadership’s arguments stand up to Constitutional scrutiny. None of them. None of these hollow, tortured, poll-tested statements like “up or down votes” or “unprecedented” are valid. They sound good, but they’re not true, and we all know it. Yet Senators continue to fall in line, turning this into a debate about twisted terminology, not the Constitution, history, and rights of Senators.
And I think there would be more outrage if the value of truth had not been so diminished by this Administration. We have a budget that comes trillions short of counting every dollar we plan to spend. We had a Medicare actuary forced to fudge the numbers and lie to Congress to keep his job. We had falsified numbers in Iraq on everything from the cost of the war to the number of trained Iraqi troops to a “slam dunk” case for weapons of mass destruction. We have an Administration that continues to want to fund fake newscasts to mislead people all across America.
The Administration’s willingness to consistently abandon the truth has done great damage. Americans are less willing to listen – less likely to trust or take anything that is said in Washington seriously. They know, as many of us have said, that we ought to be wrestling with a crisis in healthcare and nuclear proliferation in North Korea. The people know what’s wrong with our politics, and sadly here in the Senate the leadership isn’t listening.
So now we find ourselves in a struggle between a great political tradition in the United States that seeks common ground so we can do the common good – and a new ethic that, on any given issue, will use any means to justify the end of absolute victory over whatever and whoever stands in the way.
The new view says if you don’t like the facts, just change them; if you can’t win playing by the rules, just rewrite them. The new view says if you can’t win a debate on the strength of your argument, demonize your opponents. The new view says it’s ok to ignore the overwhelming public interest as long as you can get away with it.
And this time the Republican leadership has gone farthest of all to get away with it, hoping to convince Americans that by breaking the Senate rules they are acting to defend the Constitution, honor the words of our Founding Fathers, and avert a judicial crisis.
But we all know this debate is fueled by ideology, not by defense of democratic principle or some shortage of judges on the bench. The facts have been repeated clearly again and again, and are repeatedly brushed aside and ignored. But with over 95% of the judges already approved, we all know this is nothing more than a power grab by an Administration bent on controlling every aspect of our government, even if that means weakening it.
The Bush Administration and their allies in Congress hope to get away with it by playing with words to sell the public on a scheme the public would never buy if we had an honest debate. Words with great meaning – Constitution – Founding Fathers – Votes – History – Precedent – are being twisted and robbed of their meaning. The Administration underestimates the American people on this. Americans value the Constitution. They understand its intent. They understand that the strength of our democracy is best judged by the enduring strength of the minority.
When people heard the term “nuclear option” they rightfully recoiled. They were confident that dismantling the filibuster and silencing the minority would have as catastrophic an effect on their democracy as a nuclear blast would on our security. But the majority’s reaction was not to play by the rules, but rather to change slogans. So in an act of transparent hypocrisy, the majority changed the slogan to “constitutional option” and embarked on a series of hollow arguments based on mythical constitutional provisions – confident in their belief that if you speak an untruth enough eventually you’ll confuse enough people. Well, you can change the slogan, but you can’t change the fact that diminishing the rights of the minority diminishes the spirit of our Constitution
The Bush-Republican leadership arguments are false. I have heard it argued that our Constitution mandates specific voting protocol for all judges. They’ve used their new catch phrase “up or down votes” hundreds of times in recent days. Those words don’t appear once in our Constitution. No one should be fooled. It doesn’t mean constitutional. It doesn’t mean democratic and it doesn’t mean fair. It’s code for dissent-proof, minority-proof and filibuster-proof. And there is nothing in our Constitution or our history to suggest that the nominee of any president is so special as to be excused from the scrutiny of the minority – or granted immunity from the tools of democracy that protect that minority.
My colleagues are well aware that the power of advice and consent is granted to the Senate, and that the Constitution says nothing about how the Senate shall provide that advise and consent. They know the Senate is free to make its own rules, as the Constitution clearly states. They know the Senate’s role in the nominating process was designed to be active and decisive.
Benjamin Franklin was so concerned about ceding excessive power to the executive that he advocated that nominations originate in the Senate. He was not alone. At our Constitutional Convention the process for appointments was one of the last and most difficult accords reached by our Founding Fathers.
And it did not take long before the new Congress exercised its Constitutional powers. In 1795, Senators who were friends and colleagues of the founders themselves, and who surely knew their intent, defeated George Washington’s nomination of John Rutledge to be Chief Justice of the Supreme Court.
In 1968, Republican Senator Robert Griffin captured the spirit of this event when he said: “That action in 1795 said to the President then in office and to future Presidents: ‘Don’t expect the Senate to be a rubberstamp. We have an independent and coequal responsibility in the appointing process; and we intend to exercise that responsibility, as those who drafted the Constitution so clearly intended.’”
The Constitution didn’t mandate a rubber stamp for George Washington, and the Constitution doesn’t mandate a rubber stamp for George Bush. In 1795, the rejection of Washington’s nominee was heralded as the Constitution working, not failing. There is no doubt that an active, coequal partnership was intended.
This resounding rejection of George Washington, our revolutionary leader, helped seal the death of monarchy in this country. The genius of empowering the Senate and the minority was that, by limiting the executive, the Senate legitimized the executive.
So when I hear my colleagues arguing that the Constitution mandates that the will of the majority always trump the minority, I don’t hear the wisdom of our Founding Fathers - I hear the same blind activism that characterizes the judges they intend to force on the federal bench. The actions of some Senators come closer to rewriting the Constitution than defending it.
Another argument we have heard is that the filibuster itself is unconstitutional. That argument is also deeply flawed. The Constitution, in Article I, Section V, grants each house the power to “determine the Rules of its proceedings.” The framers deferred rule-making responsibility to us.
Over the past 200 hundred years, our predecessors in the Senate have taken the role of consent very seriously, and created time-tested rules to assure the rights of the minority and balance the power of government.
With a “hold” a single Senator can delay a presidential nominee. A single committee chairman can block a nomination by simply refusing to hold hearings. Until recently the Blue Slip process allowed Senators to reject nominees from their home state. And the right to extended debate, or the filibuster, is granted to any group of more than two-fifths of the Senate – making it more inclusive than any of these other accepted and oft-used practices.
These rules were not created by the Democratic Party when George Bush was elected. The filibuster was used as early as 1790 when Senators from Virginia and South Carolina filibustered against a bill to locate the first Congress in Philadelphia. That was a filibuster of one, because in 1790 unanimous consent was needed to end debate. Think about that. Those legislators, who were friends and even founders themselves, permitted a filibuster of one. Knowing that, today’s activist arguments buckle under the weight of history.
The unfortunate truth is that some Senators have fashioned themselves activist legal scholars, using a false reading of the Constitution to paint their opponents as obstructionists while pursuing their political agenda at the expense of our democracy. I think some of my colleagues forget the Senate was designed specifically to be a moderating check on the President, not a rubberstamp for executive will.
My colleagues also forget, as they demonize the filibuster, that it has been a force for good. But farmers don’t forget. Farmers don’t forget when Senators from rural states used the filibuster to force Congress to respond to a crisis that left thousands of farmers on the brink of bankruptcy in 1985. The big oil companies don’t forget. The big oil companies don’t forget when Senators used the filibuster to defeat massive tax giveaways they lobbied for in 1981. And I don’t forget when 10 years ago I came to the floor and filibustered to prevent a bill that would have gutted public health, safety, consumer and environmental protections. That bill never passed, and we know the country is better for it.
Some Senators come to the floor with a practical argument about our courts. They claim that because we have not rubberstamped each and every one of George Bush’s nominees, the nation faces a crisis because of a shortage of judges on the bench. They ignore that over 95% of the president’s nominees have already been confirmed. They ignore the fact that our courts have the lowest vacancy rate in decades.
What is threatened is a delicately balanced system that for 214 years successfully prevented the Executive from usurping power granted in good faith by the American people. And that threat manifests itself in a nuclear option that threatens the character of this Senate. The integrity of this Senate is threatened when the majority attempts to change the rules by breaking the rules. The balance of power is threatened when the power of advice and consent is gutted. Our democracy is threatened when we set the dangerous precedent that minority rights can be silenced whenever they inconvenience the majority. And I believe that our courts and the justice they are meant to deliver are threatened by some of the judges President Bush has nominated.
But some of my colleagues have argued that Democrats filibuster these judges because we simply dislike them, or disagree on ideology or policy. That’s couldn’t be farther from the truth. We have confirmed countless judges who we disagree with, but respect as responsible, impartial arbiters of the law. It is these activist judges that we seek to keep off the federal bench. It is these judges who want to rewrite our laws from the bench that we believe are unqualified for lifetime appointments. And we stand against them in defense, not as a threat to the Constitution.
We have also been accused of unprecedented acts with respect to these nominations. Surely my colleagues have not forgotten that 69 of President Clinton’s judges were buried in Committee. Was it fair? Maybe not… Did you hear the minority hiding behind mythical constitutional values in a short-sighted attempt to break the rules? Of course not…
The Majority Leader himself has voted to filibuster a nominee, yet now he tells us he is moved by deeply held constitutional principles.
President Johnson’s nominee to Chief Justice of the Supreme Court, Abe Fortas, was defeated in a filibuster. Tennessee Republican Howard Baker articulated the minority’s position, saying, “The majority is not always right all of the time. And it is clear and predictable that the people of America, in their compassionate wisdom, require the protection of the rights of the minority as well as the implementation of the will of the majority.”
Throughout our history Presidents and majorities have always had to govern a nation where minority rights were protected. Until this day Presidents and majorities have respected that tradition. They were humbled and inspired by lessons from history that some of my colleagues seem to have forgotten.
In 1937, President Roosevelt attempted a court-packing scheme to assert his influence on the courts. His own party said no. Thomas Jefferson once attempted to impeach a Supreme Court Justice who disagreed with his political agenda. His own party said no.
When my colleagues complain of lack of precedent, remember these precedents. They were fair. They were just. They affirmed the rights of the minority. And they did it all in respect of the Constitution and in defense of the judiciary. Our predecessors stood up to their own Party leaders because they valued the real strength of this democracy more than the short-term success of their partisan agenda. The question is – will we live up to that test?
Recent predecessors of Senate Republicans have repeatedly urged respect for this legacy. Former Republican Senate Majority Leader Howard Baker said destroying the right to filibuster “would topple one of the pillars of American Democracy: the protection of minority rights from majority rule.” Former Republican Senator Charles Mathias said, “The Senate is not a parliamentary speedway. Nor should it be.” Former Republican Senator Bill Armstrong said, “Having served in the majority and in the minority, I know it’s worthwhile to have the minority empowered. As a conservative, I think there is a value to having a constraint on the majority.”
My colleagues should defend their judges, but defend them without tearing down our Constitution and our Founding Fathers, or destroying the rules and character of the United States Senate. Defend your judges without ceding dangerous and corruptive levels of power to this Administration. Defend your judges without erasing 214 years of wisdom and sacrifice that raised this nation from tyranny and spread freedom across the globe.
Our Founding Fathers would shudder to see how easily forces outside the mainstream now seem to effortlessly push some Senate leaders toward conduct the American people don't want from their elected leaders: Abusing power…Inserting the government into our private lives…Injecting religion into debates about public policy…Jumping through hoops to ingratiate themselves to their party’s base, while step by step, day by day, real problems that keep American families up at night fall by the wayside here in Washington.
Congress, Washington , and our democracy itself are being tested. We each have to ask ourselves, will we let this continue? To those in this chamber who have reservations about the choices their leadership has made, and who worry about the possible repercussions on our Constitution and democracy, look at history and find the courage to do what’s right. History has always remembered those who are courageous, and will remember the courageous few who lived up to their responsibility and spoke truth to power when the Senate was tested – so that power did not go unchecked.
The Senate and the country need Senators of courage who are prepared to make their mark on history by standing with past profiles in courage, and defending not party, not partisanship, but defending principle and democracy itself.”