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Judicial Nominations : Nuclear Option

Guest Senator Patrick Leahy

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Guest Senator Patrick Leahy

"The Constitution requires that the President seek the Senate’s advice and consent in making appointments to the federal courts. As a senator and as the Democratic leader of the Senate Judiciary Committee, I take this responsibility very seriously." -- Senator Patrick Leahy, Ranking Democratic Member, Senate Judiciary Committee


Mr. President, today we continue to debate the Republican Leader’s bid for one-party rule through his insistence to trigger the “nuclear option.” I have spoken during the last several days about this misguided effort to undercut the checks and balances that the Senate provides in our system of government, and about the need to protect the rights of the American people, the independence and fairness of the federal courts, and minority rights here in the Senate.


Yesterday I urged that we get on with the business of the American people. I spoke about a number of specific items of legislation, including the bipartisan NOPEC bill, S. 555, that sits idle. That bill would provide the Justice Department with clearer tools to challenge the cartel price-setting activity of OPEC and help to lower gas prices for working Americans. I mentioned defense and law enforcement measures, as well. The Democratic leader, Senator Corzine and others made similar points about important legislative priorities. Senator Carper and I talked about the effect this extended debate is having on the bipartisan asbestos compensation bill. On Wednesday the Chairman cancelled a markup of the bill and on Thursday our markup was limited to two hours and many Senators were unavailable due to this floor debate.


Rather than bringing us together to make progress on matters that could help the American people, the Republican majority insists that the Senate debate at length a nomination that has been debated at length over the last three years after being voted down by the Judiciary Committee in 2002. A couple of years ago the Republican majority staged a 40-hour talkathon on judicial nominees. It was at the conclusion of that political exercise orchestrated by the Republican majority that we discovered that Republican staff had been stealing files from the Judiciary computer servers for at least three years. That extended debate, also staged by this Republican majority amounted to significant lost opportunities for progress on matters including, ironically, asbestos reform. At that time the tally was 168-4. The Senate, with Democratic cooperation, had already confirmed 168 of President Bush’s judicial nominations by November 2003 and balked with regard to a handful. In fact, I chaired the Judiciary Committee for the 17 months during which we approved the first 100 of those judges. We have proceeded from 168-4 to 204 judges by the end of last year and reduced judicial vacancies to their lowest level since President Reagan. We are now at 208 confirmations and with the efforts of the Democratic leader, we have kept the number of most problematic nominees to a minimum, so the current working tally is 208-5.


I thank the Senators who joined in the debate yesterday for their contributions: Senator Byrd, Senator Kennedy, Senator Kerry, Senator Baucus, Senator Bingaman, Senator Lautenberg, Senator Mikulski, Senator Harkin, Senator Carper, and Senator Nelson of Florida.


If the vote on the Republican leader’s nuclear option were by secret ballot, we all know that it would fail overwhelmingly. That is because Senators know that it is wrong—wrong in terms of protecting the rights of the American people, wrong in terms of undercutting our fundamental system of checks and balances, and wrong in destroying minority protection in the Senate in favor of a one-party rule system. Democratic Senators will not be able to rescue the Senate and our system of checks and balances from the breaking of the Senate rules that the Republican leader is planning to demand. If the rights of the minority are to be preserved, if the Senate’s unique role in our system of government is to be preserved, it will take at least six Republicans standing up for fairness and for checks and balances. I believe that a number of Republican Senators know in their hearts that this nuclear option is the wrong way to go. I have to believe that enough Republican Senators will put the Senate first, the Constitution first, and the American people first, and withstand the momentary political pressures when they cast their votes.


The Lessons of Democracy Around the World


I have spoken to Senator Isakson regarding his comment earlier this year about the effort to bring democracy to Iraq. I know he sought to clarify his comments yesterday. The Senator observed that a Kurdish leader in the middle of Iraq said he had a “secret weapon” to instill democracy. According to the Senator: “He said that secret weapon is one word: ‘Filibuster.’” The Senator went on to observe: “If there were ever a reason for optimism about what this supplemental provides for the people of Iraq and their stability and security, it is one of their minority leaders proudly stating one of the pillars and principles of our Government as the way they would ensure that the majority never overran the minority.” Senator Isakson was right. I would add that protection of the minority remains an important pillar of our democracy, as well.


The recently constituted Iraqi National Assembly was elected in January. In April it acted pursuant to its governing law to select a presidency council by the required vote of two-thirds of the Assembly, a supermajority. More recently cabinet ministers from a number of political parties and religious and ethnic groups were announced. Use of the “nuclear option” in the Senate is akin to Iraqis in the majority political party of the Assembly saying that they have decided to disregard their governing law and to pick only members of their own party for the government and to do so by a simple majority vote. They might feel justified in acting contrary to law because the Kurds and the Sunni were driving a hard bargain. Governing through consensus is not as easy as ruling unilaterally. It is not supposed to be. That is why our system of government is the world’s example.


If Iraqi Shiites, Sunni and Kurds can cooperate in their new government to make democratic decisions, so can Republicans and Democrats in the United States Senate. If the Iraqi law and Assembly can protect minority rights and participation, so can our rules and the United States Senate. That has been the defining characteristic of the Senate and one of the principal ways in which it was designed to be distinct from the House or Representatives.


Recently the Senate passed an emergency supplemental appropriations bill to fund the war efforts in Iraq and Afghanistan. The justification for these billions of dollars being spent each week is that we are seeking to establish democracies. How ironic that at the same time we are undertaking these efforts, at great cost to so many American families, the Republican majority in the United States Senate is seeking to undermine the protection of minority rights and checks and balances.


Let me also mention some of the recent statements by the President as he has discussed democracy in other countries. Earlier this month President Bush met with President Putin of Russia. At his press conference in Latvia, President Bush noted: “The promise of democracy is fulfilled by minority rights, and equal justice under the rule of law, and an inclusive society in which every person belongs.” The promise of democracy in this country likewise requires protection of minority rights.


On that same recent, foreign trip the President correctly observed: “A true democracy is one that says minorities are important and that the will of the majority can’t trample the minority.” That which is necessary to constitute a true democracy in Eastern Europe is needed, as well, here in the cradle of democracy.


Earlier this year in another press conference with his good friend, President Putin, President Bush said: “Democracies always reflect a country’s customs and culture, and I know that. But democracies have certain things in common: They have a rule of law and protection of minorities, a free press and a viable political opposition.” I agree with his observations. I comment them to all Senators. Let us uphold the rule of law and the rules of the Senate that protect the minority as a viable political opposition.


In addition to the President, others have spoken recently about the fundamentals of democracy. Secretary of State Rice said recently while overseas: “It is not easy to build democracy . . . . It means having a strong legislative branch. It means having a strong independent judiciary . . . along with freedom of speech, freedom of worship and protection of minority rights, that’s how you build a democracy.” I agree with Secretary Rice, those are the components of a democracy. We need to maintain the Senate as a strong legislative branch to serve as a check on the Executive. We need a strong independent judiciary to serve as a check on the political branches. We need to protect free speech and freedom of religion. And to maintain our democracy here in the United States we need to protect minority rights.


On her way to Moscow recently, the Secretary of State said: “[T]he centralization of state power in the presidency at the expense of countervailing institutions like the Duma or an independent judiciary is clearly very wrong.” Just as those developments undercut democracy in Russia, so, too, our American democracy is undercut by the concentration of power in the executive, removing checks and balances, and undermining the independence of the federal judiciary.


It is ironic given that President Bush and Secretary of State Rice speak so eloquently about the fundamental requirements of a democratic society when they meet with world leaders, but the Bush Administration and Senate Republicans are intent on employing the “nuclear option” to consolidate power in this presidency in this country. They know, as all Americans know, that democracy relies on the sharing of power, on checks and balances, on an independent court system, on the protection of minority rights, and on safeguarding human rights and human dignity. The “nuclear option” is in direct contradiction to maintaining those values and those components of our democracy. Just as Abu Ghraib and other abuses make it more difficult for our country effectively to condemn torture and abuse when we speak to the rest of the world, the “nuclear option” used as a partisan effort to consolidate power in a single political party and institution will make all the lectures on democracy we give to leaders of other countries ring hollow.


I have spoken of a group of Russian parliamentarians who came to see me to talk about our federal judiciary. Like other representatives of emerging democracies around the world, they asked, “Is it true that in the United States the government might be a party in a lawsuit and that the government could lose?” I said, “Absolutely right.” They said, “People would dare to sue the government?” I said, “We have an independent judiciary, yes, they could.” They said, “Well, if the government lost, you fire the judges, of course?” I said, “No, they are an independent judiciary.” This amazes people in other parts of the world, that people who disagreed with the government could actually go to court, bring a challenge and seek redress even if it meant the government lost. Chief Justice Rehnquist is right to refer to our independent judiciary as the crown jewel of our democracy. It is dazzling.


Judicial fairness and independent are also essential if we are to maintain our freedoms. And we must stop the dangerous and irresponsible rhetoric slamming the federal judiciary. We do not have to agree with every one of their opinions, but let us respect their independence. Let no one say things that might bring about further threats against our judges as they endeavor to do their jobs of serving justice. Justice O’Connor was right to condemn such virulent talk. Judge Lefkow has sacrificed too much for us not to heed her words. We ought to be protecting them physically and institutionally. Do not take the easy rhetorical pot shots that put judges in real danger and that attack the very independence of our federal judiciary.


When the United States Supreme Court decided the presidential election in 2000, I thought that the 5-4 majority engaged in an incredible overreaching act of judicial activism. I, nonetheless, called for Americans to respect the opinion of the Court. I attended the argument of Bush v. Gore with my Republican counterpart, in order to show the country that we had to get along and work together. Democrats did not impeach Justice Scalia when we wholeheartedly disagreed with his action.


Part of upholding the Constitution is upholding the independence of the third branch of government. One political party or the other will control the presidency. One party or the other will control Congress; no political party should control the judiciary. It should be independent of all political parties. That was the genius of the founders of this country. It is the genius that has protected our liberties and our rights for well over 200 years. It is the genius of this country that will continue to protect us unless we allow some to destroy it for short-term political gain. It would be a terrible diminution of our rights if we were to remove the independence of our federal judiciary. That would do things that no armies that have marched against us have ever been able to do. If you take away the independence of our federal judiciary, then our whole constitutional fabric unravels.


That is what the minority is striving to protect. That is what we are defending. The nuclear option is a threat to the protection of the minority, the independence of our judiciary, the protection of Americans’ rights and to our democracy. It must be rejected.


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The "nuclear option" is an expression used in American politics in 2005 referring to a proposed change in the interpretation of the rules of the U.S. Senate. The new interpretation would allow a simple majority of Senators present and voting to end any filibuster blocking a judicial nomination. Under current Senate rules, a vote of three-fifths of the total membership of the Senate is required to break the filibuster (this is called a cloture motion). Once a filibuster has ended, a direct up-or-down vote on a judicial nomination can take place.

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Guest Human

"It should be independent of all political parties"


The judges don't get there by being nonpolitical.


In a perfect world your argument would hold water, but this aint a perfect world, and considering that the Democrats held power for 40 YEARS, It's understandable in why they "democrats" would like to keep on holding the judiciary.

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Guest Laura Capps for Senator Kennedy

"Our principal goal was to preserve the Senate's ability to protect the independence of the federal courts including the Supreme Court, and we have succeeded in doing so.


This agreement sends a strong message to the President that, if he wants to gets his judicial nominees confirmed, his selections need to have broad support from the American people." -


Yesterday was a day that will live in American history.


Our grandchildren and their grandchildren will discuss what happened yesterday. They will do so with much more insight than we can today, because they will know what the results of yesterday's agreements actually turn out to be.


I hope that history will judge us well as an institution. We came close to having a vote that threatened the essence of the Senate and of our government. It risked destruction of the checks and balances among the branches that the framers so carefully constructed. It risked destruction of the independence of the judiciary. It risked an accumulation of power in the President that might have turned back the clock toward the days when we were subjects instead of citizens.


We have avoided that confrontation, and have done so within the traditions of the Senate: discussion, debate, negotiation, compromise. Moderation and reason have prevailed. As in any compromise, some of us on each side are very unhappy with specific aspects of the result. But the essence is clear: a majority of this body does not want to break its rules and traditions, and those rules and traditions will be preserved.


This body's self-regulating mechanisms will continue to be a moderating influence not only within the body but also on the other House and the other Branches.


Once again the Senate has reminded the Chief Executive that we are not merely the occupants of a beautiful building at the other end of Pennsylvania Avenue. We taught George Washington that lesson when we rejected one of his Supreme Court nominations. We taught Thomas Jefferson that lesson when we refused to convict an impeached Justice whose opinions Jefferson did not like. We taught Franklin Roosevelt that lesson when he tried to pack the Supreme Court. We taught Richard Nixon that lesson when he sent us an even worse nominee after we defeated his first nominee for a Supreme Court position.


As even the Republicans in the Agreement Group said, this agreement should persuade the President to take more seriously the "advice" portion of "advice and consent." If the President understands the message and takes it to heart, his nominees will be better off, the courts will be better off, and the nation will be better off.


Our principal goal was to preserve the ability of the Senate to protect the independence of the federal courts including the Supreme Court, and we have succeeded in doing so. And we have sent a strong message to the President that, if he wants to get his judicial nominees confirmed, his selections must have broad support from the American people.


And as a result of this agreement, we can hope that no Senator will ever again pretend that the Constitution commands a final vote on every executive nominee, for it has not ever done so, and does not do so now.


We can hope that no one will again pretend that there has never been a filibuster of a judicial nominee, when they can look across the Senate floor at three Democratic Senators who witnessed the Republican filibuster against Justice Fortas, and at Republican Senators who participated in other judicial filibusters.


We can hope that no one will again pretend that it is possible to break the fundamental Senate rule on ending a filibuster, without shattering the basic bonds of trust that make this institution the world's greatest deliberative body.


I believe that history will judge that we have not failed those who created America two centuries ago by what we have done here. We have fought off those who would have destroyed this institution and its vital role in our government for shameful partisan advantage.


By rejecting the "nuclear option" the Senate has lived up to its responsibility as a separate and equal branch of government.


But I say to my colleagues on both sides of the aisle, the agreement does not change the serious objections to the nominations that have been debated in the past days. Those of us who care about the judiciary, who respect mainstream values, and who reject the notion that judgeships are spoils to be awarded to political fringe groups, will continue to oppose the nominations of Priscilla Owen, Janice Rogers Brown, and William Pryor, because they would roll back rights and freedoms important to the American people.


Now that these nominees are slated to get a vote on the floor, I hope that courageous and reasonable Republicans will show their independence from the White House and thoroughly examine the records of each of them. If they do, I hope they will agree that these nominees should not be given life-time appointments to the nation's courts, where they would wield enormous power over the lives of all Americans.


Those of us who opposed the nomination of Priscilla Owen have done so with good cause, because her record makes clear that she puts her own ideology above laws that protect the American people.


Priscilla Owen has written opinions to limit the rights of minors in medical malpractice cases. She has tried to cut back on people's right to relief when insurance company claims are unreasonably denied, even in cases of bad faith. Her frequent dissents show a pattern of limiting remedies for workers, consumers, and victims of discrimination or personal injury.


Some of her supporters state that several Texas newspapers endorsed Justice Owen when she ran for a spot on the Texas Supreme Court. But they never mention that many of these same home state newspapers changed their view after seeing how she ruled on that court and now oppose her nomination.


The Houston Chronicle wrote that her "record shows less interest in impartially interpreting the law than in pushing an agenda," and that she "too often contorts rulings to conform to her particular conservative outlook."


The Austin American-Statesman wrote that Priscilla Owen "is so conservative, she places herself outside of the broad mainstream of jurisprudence," and that she "seems all too willing to bend the law to fit her views."


The San Antonio Express News said she "always voted with a small court minority that consistently tries to bypass the law as written by the Legislature."


She dissented in a case interpreting a key Texas civil rights law that protects against discrimination based on age, race, gender, religion, ethnic background, and disability. Justice Owen's opinion would have required employees to prove discrimination was the only reason for the actions taken against them -- even though the law clearly states that workers need only prove that discrimination was one of the motivating factors. Justice Owen's view would have changed the plain meaning of the law to make it almost impossible for victims of discrimination to prevail in civil rights cases. It's precisely this tendency to write new requirements into the law that makes her unfit to serve on the federal courts.


She also joined an opinion that would have reversed a jury award to a woman whose insurance company had denied her claim for coverage of heart surgery bills.


She dissented in a case involving three women who sought relief for intentional infliction of emotional distress on the job because of constant humiliating and abusive behavior by their supervisor. The supervisor harassed and intimidated employees by the daily use of profanity; by screaming and cursing at employees; by charging at employees and physically threatening them; and by humiliating employees, including making an employee stand in front of him in his office for as long as thirty minutes while he stared at her.


Eight Justices on the Texas Court agreed that the actions, viewed as a whole, were extreme and outrageous enough to justify the jury's verdict of intentional infliction of emotional distress. Justice Owen wrote a separate opinion, stating that while she agreed that there was evidence to support the women's case, she thought most of it was "legally insufficient to support the verdict."


Some have said that those who raise questions about Justice Owen's record are somehow criticizing her personally. That's untrue and unfair. Each of us has a responsibility to review her record and to take seriously the problems we find. That means taking seriously the rights of persons like Ralf Toennies, who was fired at age 55, and found that Justice Owen's wanted to impose obstacles to his age discrimination claim that were nowhere in the statute. We must take seriously the rights of the women employees criticized by Justice Owen for their testimony on workplace harassment. We can't ignore the rights of the millions of families who live in the Fifth Circuit states of Texas, Louisiana, and Mississippi.


I urge my colleagues to reject the nomination of Priscilla Owen to the Court of Appeals for the Fifth Circuit.


This week, the American people are saying loud and clear that they are tired of the misplaced priorities and abuse of power of the right wing. They are saying it with this agreement on judges. They are saying it on stem cell research. They are saying it in rejecting the President's efforts to privatize Social Security and cut your benefits.


But more broadly, they are saying it's high time to get on with the issues that affect their families and their lives and open the doors of opportunity ever wider -- the high cost of health care and education, protecting their jobs, securing their neighborhoods, cleaning their water and their air.


The real question this week is this: Are the President and the Republican leadership in Congress listening? Will we see the White House and Congress reject the grip of the right wing and finally focus on what really matters to the American people?

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Guest Human

Hummm? Interesting.


Both sides got what they wanted, hence both can claim victory. The democrats of course will say that (the Zealous Republican were put in check, and the Republicans will claim that the Democrats can't filibuster Moderate Republican Judges.)




Some times calling it a draw is Good Enough. :)

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Guest Rahm Emanuel

This week, the Senate overcame a veto threat from the President and fierce opposition from Tom DeLay to pass an expansion of stem cell research through the House. Combined with the victory in the Senate, where a handful of reasonable Republicans joined Democrats in a compromise that rescued the principle of checks and balances from an unflinching Republican extremism, we have demonstrated what we can do when we stand together.


But the reaction from the right wing fringe, which almost universally condemned the bipartisan compromise as a "betrayal," shows just how necessary it is that we stand united. Their grip is so firm that already there are rumors that Senator Frist will soon try to undermine the compromise and reignite the battle over the "nuclear option."

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