Full Statement Of Senator Patrick Leahy
Thursday Address
During The Republican ‘Filibuster’ On Judicial Nominees
Congressional Record
November 13, 2003
The
Essential Question
Let us boil the issue down to its essence,
applying the Socratic method.
Have filibusters been used before on Executive
Calendar nominees, including judicial nominees to the lower courts
as well as to the Supreme Court?
Yes, they have. Of course they have. The
Congressional Record is open for all to read. Three years ago,
there were even two simultaneous Republican filibusters on this
Senate Floor against Richard Paez and Marsha Berzon, two of
President Clinton’s judicial nominees. And do we really have to
remind our friends on the other side of the aisle about the dozens
more who were blocked NOT through votes, in the open, on the Senate
Floor, but through holds by anonymous, Republican Senators. Those
nominees did not even get committee hearings or committee votes.
Sixty-three of President Clinton’s nominees were blocked, in all.
Sixty-three.
So the next question is: Then, and now, have
filibusters of Executive Branch nominees, including judicial
nominees, been rare?
Yes, they have. The Senate’s rules are
intended to protect against abuses by the majority that at any given
time controls the Senate. And in this case, the Senate’s rules also
protect against abuses of power and of our system of checks and
balances by a White House that is so bent on controlling all the
levers of power that they would even prevail on the Senate to change
its own rules.
And should filibusters be used
sparingly?
My own view is that yes, they should be used
sparingly. And they have been used sparingly. And today, unlike
the times of the recent Republican filibusters used against a
Democratic President’s judicial nominees, the White House and the
Senate’s current majority have colluded to run roughshod over other
safeguards built into our system of government and into the very
rules and practices of the Senate and its committees.
This year, with breathtaking arrogance, we have
seen the systematic dismantling of the Judiciary Committee’s own
rules. One by one, the majority has changed, bent and even broken
the longstanding rules and practices that were intended to protect
the rights of Senators to defend the rights of their States and
their constituents. These are the very rules and practices that
Republican Senators themselves used – and many would say, abused –
when a Democratic President’s judicial nominees were before the
Senate.
Would filibusters be necessary at all if the
President lived up to the Constitution’s injunction that he seek not
only the Senate’s consent but also its advice in selecting
candidates for the independent federal judiciary?
Ah, and this is the real question before us.
This is what this entire debate boils down to. Is there a clear way
forward without the need to prevent confirmation of any judicial
nominee? And the answer is that the President has the ability to
prevent impasses over any of his nominees. None of this
would be necessary if the President were not provoking it. This
process begins with the President. Like other Presidents of both
parties have, this President could work with the Senate in naming
mainstream nominees to our courts. But he has chosen instead to try
to politicize the courts. He and his aides have unabashedly
declared that they are out to remake the federal judiciary in the
image of ideological activism. Our courts are foundational to our
system. Our independent judiciary is the envy of the entire world.
We were not meant to have Republican courts or Democratic courts,
but independent courts.
It is no small irony that a President who
declares his disdain for what he calls “judicial activism” has
nominated several of the most committed and opinionated and
ends-oriented judicial activists ever nominated to our
independent federal courts.
The President said he wanted to be a uniter and
not a divider. But in deference to groups on the far right, he has
nominated judicial activists who cannot help but raise questions
about their abilities to act impartially, with justice for all, as
we need in our independent judiciary.
Time and time and time again, Democratic
Senators have acted in good faith to fill vacancies that Republicans
kept vacant by blocking a Democratic President’s judicial nominees.
And time and time again, this White House has responded instead with
arrogance.
We have stood up for our principles, and for
the independence of the Senate in its constitutional role in the
judicial confirmation process.
The process begins with the President, and once
again we ask him to work with the Senate in filling judicial
vacancies.
The
Public’s Priorities v. The Republican Leadership’s Priorities
During this 30-hour talkathon, the Republican
leadership of the Senate again is following a script laid out for it
by a White House intent on bending all other branches of government
to its will. This is a White House intent on establishing some sort
of unitary government and intent on removing the checks and balances
among our three branches of government that are a foundation of the
American system. In furtherance of this script, in these rare final
hours of this year’s legislative session, the Republican leadership
has decided to abandon work on the real priorities of the American
people. They are obstructing those priorities, in favor of
repetitive speeches about promoting these four controversial
nominees to lifetime positions as federal judges -- four people who
already have good, well-paying jobs -- is more important than the
three million Americans who have been struggling to find any jobs at
all.
The Republican leadership has already overshot
the Senate’s adjournment date by more than a month. We have already
had to enact three continuing resolutions to keep the Federal
Government operating because the appropriations bills that the
Congress needs to pass have not been enacted. It is now more than
five weeks after the fiscal year began and we should have completed
all 13 appropriations bills, but the Republican Congress has enacted
a total of only four out of 13.
The remaining annual appropriations bills
include the funds that go to improve our schools. The funds that
NIH uses to advance our medical knowledge in fighting disease and
illness. The resources used by EPA to enforce our clean air and
water laws. They include appropriations for our veterans and for
law enforcement.
Yesterday evening as the Republicans gathered
to accommodate the programming requests of a certain television
network, the senior Senator from West Virginia was trying to get the
Senate to do its work. Senator Byrd, as the ranking Democrat on the
Appropriations Committee, was searching for the Republican leader
and urging the Senate to complete its work on the appropriations
bill that funds services for our military veterans. He asked that
the Senate continue that work so that we could finish Senate
consideration of this important bill and proposed that we do so in
just two hours. The Republican leadership objected. He renewed his
request when the Republican leader did appear on the floor but was,
again, rebuffed by Republican objection. Those few minutes may turn
out to be the most telling of this entire so-called debate.
Republicans chose to sacrifice the work of the Senate, the
priorities of the American people and the interests of our veterans
to a partisan political stunt.
In one of their many press conferences on this
diversion, on November 6, the Republican leader committed to
“complete the appropriations process” before beginning this
charade. Even the junior Senator from Pennsylvania, agreed with
that and said: “The leader’s right. What we’re about to embark in
next week, after the appropriations process has run its course, is
to enter into a debate . . . .” Well, when given the chance to
honor that commitment last night, the Republican caucus chose
partisan theater over the work of the Senate.
There is the unfinished business of providing a
real prescription drug benefit for seniors. There is the Nation’s
unemployment and lack of job opportunities that confound so many
American families. With millions of Americans having lost their
jobs in the last three years, the Republican Senate is, instead,
insisting on spending these final days of this session on a handful
of highly controversial judicial nominations that divide the Senate
and the American people and ignoring the needs of the almost 10
million Americans who are out of work, including those more than
three million Americans who have lost their jobs since President
Bush took office.
There are the corporate and Wall Street
scandals that concern so many of those who have invested and placed
their trust and financial security at risk in our securities
markets. While we are listening to Republicans pontificate about a
handful of highly controversial judicial nominees, some Republican
has an anonymous hold on S.1293, the Criminal Spam Act of 2003.
This is a bipartisan bill that can do something about the worst spam
abuses. Earlier this week, the Washington Times reported
that spam is doing more damage to our economy than hackers or
viruses. A few weeks ago the entire Senate joined in adopting a
version of S.1293 to the Burns-Wyden bill and we joined to pass that
bill. Now some Republican has turned around and under cover of
anonymity is holding up the bipartisan bill that can be enacted
before adjournment this year that can stem the tide against the
worst abuses and fraudulent conduct that is gumming up our internet
economy and communications. This is the type of anonymous
Republican hold that was likewise responsible for holding up more
than 60 of President Clinton’s qualified nominees to the federal
judiciary from 1995 through 2001.
There is the need for Congress to continue the
federal highway programs that build and repair our roads and
highways and bridges. There is the need to perform real oversight
of the USA PATRIOT Act and to provide real oversight for the war in
Iraq. Just as Republicans objected to the Senate Judiciary
Committee investigating the factors that led to September 11,
Republicans are now objecting and preventing a full investigation by
the Select Intelligence Committee of what led the Bush
Administration to contend that Saddam Hussein had weapons of mass
destruction and was about to use them against the United States and
that we had to embark earlier this year on a preemptive war.
Nor has the Senate taken any action on the
misrepresentations made to us by Bush Administration officials about
their efforts to gut Clean Air Act enforcement. When they appeared
and testified before us, they declared that their policies would not
affect enforcement of the Clean Air Act and ongoing cases. Over the
last two weeks we have seen how far from the truth that testimony
was.
For the last three years this Administration
has run roughshod over environmental protection and the Republican
Senate has done nothing to stem the tide. They have catered to
special interests in rolling back protections for clean water, clean
air, toxic cleanups and public health. The Senate should be
focusing attention on these attacks upon the environment and these
rollbacks, but nothing could be farther from the agenda of the
Republican Senate leadership.
Forty-two environmental rollbacks by the Bush
Administration that have been announced on Fridays is the number the
Senate should be working on. There have now been more environmental
rollbacks than there are vacancies throughout the entire federal
judiciary. The Bush administration’s announcement that they are
halting enforcement actions against industrial polluters under the
New Source Review provision of the Clean Air Act flatly contradicts
the assurances by Justice and EPA officials to the Senate last
year. The toxic pollutants that will cause asthma and heart disease
for our children and grandchildren is apparently of little interest
to the Republican leadership of the Senate. That would be worthy of
serious inquiry, debate and Senate action.
Last week the House passed by an overwhelming
bipartisan margin the Advancing Justice through DNA Technology Act
of 2003, H.R. 3214. This landmark legislation provides law
enforcement with the training and equipment required to effectively,
and accurately, fight crime in the 21st Century. More
specifically, the bill would enact the President’s DNA Initiative,
which authorizes more than $1 billion over the next five years to
eliminate the backlog crisis in the nation’s crime labs, and to fund
other DNA-related programs. It also includes the Innocence
Protection Act, a death penalty reform effort I launched three years
ago with Senators and Congressmen on both sides of the aisle.
The House vote was a major breakthrough in
finding solutions to the flaws in our justice system. I understand
that Republican Senators are now blocking action on the bill in the
Senate. This bill is the result of extensive, exhaustive
negotiations among Democratic and Republican leaders in the House
and the Senate. It has broad support, both in the Congress and
across the country and deserves the Senate’s immediate attention and
passage.
We have shown that the death penalty system is
broken, we know that the reforms in this bill will help, and we know
that every day we delay action may be another day on death row for
some innocent people. These mistakes in our system of justice carry
a high personal and social price. They undermine the public’s
confidence in our judicial system, they produce unbearable anguish
for innocent people and their families and for the victims of these
crimes, and they compromise public safety because for every wrongly
convicted person, there is a real criminal who may still be roaming
the streets. This matter is also being stalled by Senate Republican
inaction.
The Senate has yet to take up the Anthrax
Victims Fund Fairness Act of 2003, S.1740, which Senator Daschle and
I introduced with a number of other Senators because we are
concerned that the citizens harmed by the anthrax letters addressed
to Senator Daschle and to me in October 2001 are the forgotten
victims of the aftermath of September 11. They, too, should have
access to the Victim Compensation Fund. The Senate has yet to
consider the September 11th Victim Compensation Fund
Extension Act, S.1602, which must be passed before we adjourn or
hundreds of families who suffered on 9/11 will likely be left out in
the cold without the compensation Congress and the American people
intended to provide. Nothing will take away the pain and loss of
September 11 and its aftermath for the victims but we owe them the
Senate’s attention before we adjourn.
New
Rules For Republican Nominees
Rather than consider those important matters,
why would the Republican leadership insist on rehashing the debate
on the handful of judicial nominees on which further Senate action
is unlikely? When they were considering the judicial nominees of a
Democratic President in the years 1995 through 2000, they showed no
concern about stranding more than 60 of President Clinton’s judicial
nominations without hearings or votes. They did not demand an up or
down vote on every nominee but were content to use anonymous holds
to scuttle scores of qualified nominees. Indeed, they stood
cavalierly by while vacancies rose from 65 in January 1995 to 110
when Democrats assumed Senate leadership in the summer of 2001.
They presided over the doubling of circuit court vacancies from 16
to 33 during that time.
Indeed, the Republican leader at that time
famously came to the Senate floor to defiantly declare that the
Senate had confirmed too many of President Clinton’s judicial
nominees as far as he was concerned. That was when the Senate was
considering less than half as many judicial nominees and had more
than twice as many judicial vacancies as there are today. During
those days the Republican leader said he only had one regret, one
apology regarding his obstruction of President Clinton’s judicial
nominees: “I probably moved too many already.” Four years ago,
toward the end of the third year of President Clinton’s term, a year
in which only 34 judges were confirmed, the Republican leader left
no doubt that Republicans and the Republican leadership were
unrepentant about their delays and obstruction of scores of
qualified judicial nominees when he proclaimed: “Getting more
federal judges is not what I came here to do.” That Republican
leader would not schedule votes on President Clinton’s judicial
nominees when vacancies were much higher and growing in the summer
of 2000 and, ironically, sought to use appropriations bills as an
excuse. The Senator from Mississippi said: “[S]pending bills must
move first . . . . Until we get 12 appropriations bills done, there
is no way any judge, of any kind, or any stripe, will be
confirmed.” Of course, now the Republican caucus shows little
interest in completing the Senate’s work on appropriation bills,
even though we are no longer in the summer but four months later in
the year, well past the deadline and already into the next fiscal
year without having even had the Senate initially consider these
fundamental legislative matters. As I have noted, just last evening
the Republican leadership rebuffed Democratic efforts to complete
action on appropriations for our veterans, which could have been
done in two hours.
In those years, the Republican chair of the
Senate Judiciary Committee repeatedly argued that 67 vacancies in
the federal judiciary was “full employment” as far as he was
concerned. He wrote in USA Today in September 1997, when there were
more than 100 judicial vacancies, that there was no judicial vacancy
crisis and that the 742 active judges were sufficient. Over the
last three years, Democrats have cooperated in confirming 168 judges
nominated by this President, including 68 this year; we have reduced
judicial vacancies on an expanded federal judiciary to 40; and we
have 837 active judges, the most in U.S. history. We have 40
percent fewer vacancies than what Republicans used to call “full
employment” for the federal judiciary and almost 100 more active
judges than just a few years ago when Republicans were content to
delay and obstruct President Clinton’s nominees and argue that there
was no problem.
So why do Republican partisans insist that the
Senate now devote its time to rehashing the debate on some of this
President’s most controversial nominees to the independent federal
judiciary? Is it merely coincidence that the Republican leadership
has chosen to schedule these proceedings for the week of the
Federalist Society’s National Convention in Washington? Perhaps
this is to give Republicans the opportunity to preen and posture
while such an important segment of their base activists are in
town. Perhaps it is to give the Republican leadership another
chance to make false arguments about judicial nominations. Perhaps
it is to give some a platform for baseless and McCarthyite
accusations against Democratic Senators. Or perhaps it is to
distract from the real concerns that affect Americans every day.
Newspapers this week report that this exercise is precipitated
because of a “brewing rebellion by conservative activists.”
Reportedly partisan diehards “are accusing the Senate GOP leaders of
going too easy” and apparently when Republicans appear on
conservative radio talk shows “they are often barraged with
questions” about why the GOP is not successfully ramming every
judicial nominee through the Senate that they control. Apparently
this dissatisfaction has even begun to affect Republican fundraising
and, according to the Washington Post, “a recent mailing [by
a conservative group] to raise money for candidates yielded empty
envelopes” from those who had formerly contributed. Let us hope
that this is not the real reason for this grandstanding. Let us
hope that when something begins to affect Republican fundraising, it
is elevated to the top of the agenda -- the public, the
responsibilities of the Senate be dashed.
168
Nominees Confirmed
If the Republican leadership has staged this
vote in order to try to persuade the American people that Democrats
are obstructing the President’s judicial nominees, they are going to
have to stray far from the facts, because the facts show that Senate
has made dramatic progress on judicial vacancies when and where the
Administration has been willing to work with the Senate. Indeed,
last week the Senate confirmed the 168th of this
President’s judicial nominees – 100 of them, confirmed by the
previous Democratic-controlled Senate, in just 17 months. We could
confirm several more if the Republican leadership would just
schedule the votes. There are other nominees who were reported
unanimously by the Judiciary Committee and are just waiting to be
confirmed. The number of confirmations could easily total 170 or
more if the Republican leadership were truly interested in filling
vacancies. Of course, more progress might undercut the partisan
message that some are trying to peddle. Maybe that is why for weeks
at a time the Republican leadership in the Senate has repeatedly
refused to schedule votes on judicial nominees who will be approved,
and have chosen, instead, to focus on the handful of the President’s
most extreme and divisive nominees.
The truth is that in less than three years’
time, the number of President Bush’s judicial nominees the Senate
has confirmed has exceeded the number of judicial nominees confirmed
for President Reagan, the “all time champ” at getting federal judges
confirmed, in all four years of his first term in office. A handful
of the most extreme and controversial nominations have been denied
consent by this Senate in the proper exercise of its duties under
the rules. Only four. One-hundred-sixty-eight to four. That is in
stark contrast to the more than 60 judicial nominees from President
Clinton who were blocked by a Republican-led Senate.
McCarthyite Smears
If this show is being staged to give some a
platform for repulsive smears that Democrats are opposing nominees
because of their religion, Republicans will have entered a realm of
demagoguery, repeating false allegations and innuendo often enough
to hope that some of their mud will stick.
Of course, substantive concerns about what
activist judges would do to undercut individual rights,
environmental protection and the separation of powers will not do
much to help raise money for the Republican Party, seem provocative
in a flyer placed on windshields late on the day before an election,
get a mention on the evening news, or satisfy strident right-wing
extremists. So some Republican partisans will be putting the truth
to one side. They dismiss the views of Democratic Senators doing
their duty under the Constitution to examine the fitness of every
nominee to a lifetime position on the federal bench and choose,
instead, to use smears and the ugliest accusations they could dream
up.
This week rumor is that the Republican public
relations machine will be cranking overtime to try to make
Democratic Senators appear anti-woman. Led by Senators Mikulski,
Feinstein, Boxer, Murray, Landrieu, Lincoln, Cantwell, Clinton, and
Stabenow, it is hard to see how Democrats can be subjected to such
allegations with a straight face, but that is what the rumor is.
The facts are that under Democratic leadership,
the Senate confirmed 100 judicial nominees, including 21 women,
nominated by President Bush in just 17 months, including four to our
Courts of Appeal. During the 107th Congress, President Bush
nominated only 18 women to district court seats, out of 98 district
court nominees (18 percent), and only 8 women to circuit courts out
of 32 circuit court nominees (25 percent). This year Democrats have
supported the confirmation of 12 additional women nominated to the
federal bench, including three to our Courts of Appeal. This
President’s nominees have included only one woman in each five
judicial nominees. The 33 women judges confirmed represent 20
percent of the 168 judges confirmed.
By contrast, nearly one of every three of
President Clinton’s judges are women. Of course, the Republicans
who controlled the Senate and the Judiciary Committee during the
Clinton Administration also blocked 18 women nominated to federal
judgeships by President Clinton. Women who were blocked from
getting Senate action on their judicial nominations include Kathleen
McCree-Lewis, Elena Kagen, Elizabeth Gibson, Helen White, Christine
Arguello, and Bonnie Campbell, all of whom were nominated to the
circuit courts. These six outstanding women lawyers were not
extreme or ideologues. They were outstandingly qualified women
lawyers whose nominations were blocked anonymously by Republican
Senators, without explanation, without a vote, without
accountability.
Abusing Religion For Wedge Politics
Slanderous accusations have already been made
by Republican Senators, and ads run by a group headed by the
President’s father’s former White House counsel and a group whose
funding includes money raised by Republican Senators and even by the
President’s family when they falsely claimed that judicial nominees
were being opposed because of their religion. These contentions are
despicable and unfounded. Other Republican members of the Judiciary
Committee and of the Senate have either stood mute in the face of
these McCarthyite charges, or, worse, have fed the flames. Such
accusations are harmful to the Senate and to the Nation and have no
place in this debate or anywhere else.
Just a few weeks ago, President Bush rightly
told the Prime Minister of Malaysia that his inflammatory remarks
about religion were “wrong and divisive.” He should say the same to
members of his own party. Today, Republican Senators have another
chance to do what they have not yet done and what this
Administration has not yet done: Disavow this campaign of division
waged by those who would misuse religion, race and gender by playing
wedge politics with it. I hope that the Republican leadership of
the Senate will finally disavow the contention that any Senator is
being motivated in any way by religious bigotry or for racial or
gender-based reasons.
Records Of Activism
On important issues to the American people --
the environment, voting rights, women’s rights, gay rights,
federalism, privacy rights, equal rights, civil rights and more –
too many of this President’s nominees have records of activism and
advocacy. That is their right as American citizens, but that does
not make them qualified to be judges. As a judge it would be their
duty to impartially hear and weigh the evidence and to impart just
and fair decisions to all who come before the court. In their
hands, we entrust to the judges in our independent federal judiciary
the rights that all of us are entitled to enjoy through our
birthright as Americans.
The President has said he is against what he
calls “judicial activism.” How ironic, then, that he has chosen
several of the most committed and opinionated judicial activists
ever to be nominated to our courts.
The question posed by his controversial
nominations is not whether they are skilled and capable advocates.
The question is whether -- not for a two year term, or a six year
term, but for a lifetime -- they would be fair and impartial
judges. Could every person whose rights or whose life, liberty or
livelihood were at issue before their courts, have faith in being
fairly heard? The President has chosen to divide the American
people and the Senate with his highly controversial nominations. If
Republicans want to clean the slate and start fresh, we should do so
with nominees who unite the American people, nominees who can be
supported by a strong bipartisan majority in the Senate.
We are also hearing the claim by Republicans
that the filibuster of a judicial nomination in unprecedented.
Republicans themselves filibustered the nominations of Judge Richard
Paez and Marsha Berzon as recently as 2000. They previously
filibustered the nominations of Judge Rosemary Barkett and Judge H.
Lee Sarokin. Of course, while in the majority, Republicans took
full advantage of the secret hold and of their control of the agenda
to prevent a vote on 63 nominations by not scheduling hearings and
votes on them. Many of those now claiming that Senate filibusters
are unprecedented participated in them and voted against cloture
just a few years ago.
Indeed, as the Senate’s own website notes in an
articled entitled “Filibuster Derails Supreme Court Appointment,”
the 1968 nomination of Abe Fortas to be Chief Justice was
filibustered with the help of Republicans: “Although the committee
recommended confirmation, floor consideration sparked the first
filibuster in Senate history on a Supreme Court nomination.” The
attempt at cloture on the Fortas nomination was rejected by the
Senate.
In addition, Republican Senators turned the
filibuster of President Clinton’s nominees and of legislation into a
destructive art form. A nomination to be Surgeon General, Dr. Henry
Foster, was defeated by a Republican filibuster, ambassadorial
nominations were filibustered and bill and bill was filibustered as
Republicans obstructed the work of the Senate and the legislative
agenda. For Republicans to claim foul now, after their use of the
filibuster tactic, may earn them the political equivalent of an
Oscar, Tony or Grammy.
For three years I have asked the President and
Senate Republicans to join with us to fill the vacancies on the
federal courts with qualified, fair, nonideological judges.
Democrats have bent over backwards to support a record number of
nominees. When the White House will work with all Senators, we have
been able to identify and confirm judges quickly and by consensus.
When the President has chosen to select ideological activists and
try to pack the courts, we have opposed a handful of his most
extreme nominees.
The federal courts should not be an arm of the
Republican Party, nor should they be an arm of the Democratic
Party. The Senate should continue to honor its constitutional
responsibilities to this third branch of our federal government and
to the American people whose rights are protected by our federal
courts. No President, with or without the complicity of any current
majority in the Senate, can be allowed to relegate the Senate to the
role of rubber stamp.
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