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The Tally Ho

Thursday, May 19, 2005

Senate Fight

[Edited by Wells - replaced Kerry's remarks with the actual floor speech]

Mr. Wells is doing a great job covering the ongoing Senate ruckus over the judicial filibuster. Unfortunately for y'all, he's doing it in emails to me rather than posting it here. Fortunately the power of cut and paste allows me to share them with you myself. Bill Gates has truly done more to make my life better than I ever have. Other than convincing a wonderful woman to marry me, I haven't been all that big on self improvement. This idiot-accessible net thing, on the other hand, rocks, and Office allows me to fool older co-workers into thinking I have a work ethic.

Anyway, here's Wells:

Thu, 19 May 2005 12:29:59 -0400 [T]hese are good remarks on the Senate floor today. Sen. Stabenow from Michigan went on after and basically said that if this works then the filibuster everywhere is up for grabs. She talked about how in the not too distant future Great Lake region will not be able to defend itself from the Southwestern and Western states from stealing their natural resources (water) instead of accept the fact that no one should be moving there. That without the filibuster the Great Lake Senators will not be able to protect their state interests. If you think this is crazy, the late Senator Paul Simon (D-IL) predicted as much in the late 90s - and Darren can tell you how it pops up in almost every Michigan election. While this act isn't really about Owens and really about paving the way for a wingnut justice on the Supreme Court, the implications in other areas are a threat to states, as well as a host of other Senate responsibilities.

Remarks as prepared for delivery:

Mr. President, I've addressed the Senate on several recent occasions to set the record straight about Senate history and the rules of this Chamber. I'd much rather address ways to cut health care costs or bring down gas prices. But the Majority Leader has decided that we will spend this week debating radical judges instead. I'm happy to engage in that debate, but I want it to be accurate.

For example, the Majority Leader issued a statement last Friday in which he called the filibuster a "procedural gimmick." I took some time yesterday to correct that assertion. The filibuster is not a gimmick. It has been part of our nation's history for two centuries. It is one of the vital checks and balances established by our Founding Fathers. It is not a gimmick.

Also, Republicans have not been accurate in describing the use of the filibuster. They say the defeat of a handful of President Bush's judicial nominees is unprecedented. In fact, hundreds of judicial nominees in American history have been rejected by the Senate, many by filibuster. Most notably, the nomination of Abe Fortas to be Chief Justice of the United States was successfully filibustered in 1968. And during the Clinton Administration, over 60 judicial nominees were bottled up in the Judiciary Committee and never received floor votes.

In addition, Republicans engaged in explicit filibusters on the floor against a number of Clinton judges, and defeated a number of President Clinton's executive branch nominees by filibuster. It's the same Advice and Consent Clause - why was a Republican filibuster of Surgeon General nominee Henry Foster constitutional, but a Democratic filibuster of Fifth Circuit nominee Priscilla Owen unconstitutional? The Republican argument doesn't add up.

And now, the President of the United States has joined the fray and become the latest to rewrite the Constitution and reinvent reality. Speaking to fellow Republicans on Tuesday night, he said that the Senate "has a duty to promptly consider each...nominee on the Senate floor, discuss and debate their qualifications, and then give them the up or down vote they deserve."

Duty to whom? The radical right wing of the Republican Party who see within their reach the destruction of America's mainstream values?

It's certainly not duty to the tenets of our Constitution or to the American people who are waiting for progress and promise, not partisanship and petty debates.

The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees "an up or down vote." It says appointments shall be made with the Advice and Consent of the Senate. That is very different than saying that every nominee receives a vote.

This fact was even acknowledged by the Majority Leader on this floor last week. Senator Byrd asked the Majority leader if the Constitution accorded "to each nominee an up or down vote on the Senate floor?"

Senator Frist's answer? "No, the language is not there."

Senator Frist is correct. And the President should read the same copy of the Constitution that Senator Frist was referring to.

It is clear that the President misunderstands the meaning of the Advice and Consent Clause. The word "Advice" means "Advice." President Clinton, consulted extensively with then-Judiciary Committee Chairman Hatch. Senator Hatch boasts in his autobiography that he personally convinced President Clinton to nominate Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court instead of more controversial choices.

In contrast, this President has never ever sought or heeded the advice of the Senate. But now he demands our consent.

That's not how America works. The Senate is not a rubber stamp for the Executive branch. Rather, we're the one institution where the Minority has a voice and the ability to check the power of the Majority. Today, in the face of President Bush's power grab, that's more important than ever. Republicans want one-party rule. The Senate is the last place where the President and his Republican colleagues can't have it all. And, now President Bush wants to destroy our checks and balances to ensure that he does get it all.

That check on his power is the right to extended debate. Every Senator can stand up on behalf of the people who have sent them here and say their piece. In the Senate's 200 plus years of history, this has been done hundreds and hundreds of times...to stand up to popular presidents arrogant with power...to block legislation harmful to America's workers...and yes - even to reject the President's judicial nominations.

Who are the nominees now before the Senate?

Priscilla Owen is a Texas Supreme Court Justice nominated to the Fifth Circuit. Justice Owen sides with big business and corporate interests against workers and consumers in case after case, regardless of the law. Her colleagues on the conservative Texas court have written that she legislates from the bench. Her own colleagues have called her opinions "nothing more than inflammatory rhetoric," her interpretation of the law to be "misconceptions," and even rebuked her for second guessing the legislature on vital pieces of legislation. If she wanted to legislate, she should run for Congress. If she wants to interpret and uphold the law, she should be a judge. She can't do both.

In case after case, Justice Owen's record marks her as a judge willing to make law from the bench rather than follow the language and intent of the legislature or judicial precedent. She has demonstrated this tendency most clearly in a series of dissents involving a Texas law providing for a judicial bypass of parental notification requirements for minors seeking abortions. She sought to erect barriers that did not exist in law, such as requiring religious counseling for minors facing a tough choice.

Janice Rogers Brown, a California Supreme Court justice nominated to the D.C. Circuit, is using her seat on the bench to wage an ideological war against America's social safety net. She wants to take America back to the 19th Century and undo the New Deal, which includes Social Security and vital protections for working Americans like the minimum wage. Every Senator in this body should tell the more than 10 million working Americans already living in poverty on minimum wage why someone who wants to make their life harder and destroy their hopes and dreams should be elevated to a lifetime to one of the most powerful courts in the country.

Justice Brown has been nominated to the court that oversees the actions of federal agencies responsible for worker protections, environmental laws, and civil rights and consumer protections. She has made no secret of her disdain for government. According to Justice Brown, government destroys families, takes property, is the cause of a "debased, debauched culture," and threatens civilization.

Moreover, Justice Brown received a "not qualified" rating from the California Judicial Commission when she was nominated for the California Supreme Court in 1996 because of her "tendency to interject her political and philosophical views into her opinions" and complaints that she was insensitive to established legal precedent.

Speaking recently at a church on "Justice Sunday," Brown proclaimed a "war" between religious people and the rest of America. Is this someone we want protecting the constitutional doctrine of separation of church and state, or freedom for all Americans to practice religion?

She has expanded the rights of corporations at the expense of individuals -- arguing to give corporations more leeway against attempts to prevent consumer fraud, to stop the sale of cigarettes to minors, and to prevent discrimination against women and individuals.

Janice Rogers Brown may be the daughter of a sharecropper, but she's never looked back to ensure the legal rights of millions of Americans still fighting to build better lives for their children and children's children.

These are the nominees over which the Republican leadership is waging this fight. And they are prepared to destroy the Senate that has existed for over 200 years to do it.

The Senate is a body of moderation. While the White House is the voice of a single man, and the House of Representatives is the voice of the Majority, the Senate is a forum of the states. It is the saucer that cools the coffee. It is the world's greatest deliberative body.

How will we call this the world's greatest deliberative body after the majority breaks the rules to silence the minority?

This vision of our government - the vision of our Founding Fathers - no longer suits President Bush and the Republicans in the Senate. They don't want consensus or compromise. They don't want advice and consent.

They want absolute power. And to get it, the President and the Majority Leader will do all they can to silence the Minority in the Senate and remove the last check on Republican power in Washington.

The White House is trying to grab power over two separate branches of government - Congress and the Judiciary - and they're enlisting the help of the Republican Senate leadership to do it.

Republicans are demanding a power no president has ever had, and they're willing to break the rules to do it.

And make no mistake Mr. President. This is about more than breaking the rules of the Senate or the future of seven radical judges.

At the end of the day, this about the rights and freedoms of millions of Americans.

The attempt to do away with the filibuster is nothing short of clearing the trees for the confirmation of an unacceptable nominee on the Supreme Court. If the Majority gets its way, George Bush and the far right will have the sole power to put whoever they want on the Supreme Court -- from Pat Robertson to Phylis Schlafley. They don't want someone who represents the values of all Americans, someone who can win bipartisan consensus. They want someone who can skate through with only a bare partisan majority, someone whose beliefs lay in the fringes of our society.

Nobody will be able to stop them from placing these people on the highest court in the land - extremist judges who won't protect our rights and who hold values far outside the mainstream of America.

Here's what's really at stake here:

The civil rights of millions of Americans.

The voting rights of millions of Americans.

The right to clean water to drink and safe air to breathe for millions of Americans.

The right to free speech and religious beliefs.

The right to equality, opportunity and justice.

And, nothing less than the individual rights and liberties of all Americans.

It is up to us in this Chamber to say no to this abuse of power. To stand up for the Constitution and let George Bush and the Republican Party know that the Supreme Court is not theirs to claim.

This debate all comes down to this: will we let George Bush turn the Senate into a rubber stamp to fill the Supreme Court with people from the extreme right's wish list?

Or will we uphold the Constitution and use of advice and consent powers to force the President to look to the mainstream?

Mr. President, I hope it's the latter. I know that is what my fellow Democrats and I will fight for, and I hope the responsible Republicans we've heard from will have the courage to join us.

And Senator Kerry's floor speech:
John Kerry on “Nuclear Option” on Judicial Nominees

“The Constitution didn’t mandate a rubberstamp for George Washington, and the Constitution doesn’t mandate a rubberstamp for George Bush.”

Below are the remarks of Senator John Kerry on the Senate floor this afternoon. Senator John Kerry Time for Profiles in Courage May 19, 2005 Remarks As Prepared for Delivery Senate Floor 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 okay 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 rubberstamp for George Washington, and the Constitution doesn’t mandate a rubberstamp 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 who 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 of, 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.

Thu, 19 May 2005 16:49:37 -0400 F**k, we lost Hagel. He just lost his McCain mav label - probably for Dobson support if he wins the primary against the entire GOP Senate (Frist, Allen, Brownback, Man-on-Dog if he wins reelection)

that leaves it at 50-50. 45 Dems + McCain, Chafee, Snowe crossing the aisle for sure. This leaves the need to get 3 out of Warner, Specter, Sununu, Collins, Voinovich, Graham, Domenici, Luger, and Murkowski that have to be gotten. I thought Hagel was a key as it would give cover to others to cross. Murkowski was just elected, and her father is unpopular. Sununu is in NH, so hes fine. Warner and Specter aren't running again, but Specter could lose his chairmanship if he votes with Reid... . Out of that list, only Graham is volunerable, so I don't know what gives....

Sounds like our boy has been getting a lot of really important work done today, doesn't it?


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