Opening Statement Of Senator Patrick Leahy
On Republican Use Of The Nuclear Option
May 18, 2005

An Abuse Of Power

I trust that everyone understands the significance of this debate and what the Republican leader is doing.  He has decided to trigger the “nuclear option.”  That is what this is. 

The “nuclear option” is something any Senate majority could have done at any time over the last 50 years.  It boils down to the Republican Senate leaders declaring that the Senate rules governing filibusters are out of order.  The nonpartisan Senate Parliamentarian has indicated that would violate the Senate Rules, and it would.  The nonpartisan Congressional Research Service has studied the matter and concluded that this is unprecedented.  It amounts to breaking the Senate Rules.  But with a slim majority and the parliamentary equivalent of brute force, it can be done.   

The American people ought to recognize this for what it is: an abuse of power, to advance a power grab.  It is an effort by the White House through the Republican Senate majority to undercut the checks and balances of the Senate.  They intend to use majority power to override the rights of the minority. 

Nor is this an isolated effort.  It is part of a sustained effort by this Administration and its partisan operatives in the Congress to consolidate power in the Executive.  It undercuts the rights of the minority in the Senate, it undermines the role of the Senate as a check on the Executive, and it will lead to a Republican rubberstamp on a less independent judiciary.  The constitutional protections of the American people are at stake in this debate.  At stake are the protections provided for the American people by the Judicial Branch against overreaching by the political branches, by the Senate against an aggressive Executive Branch, and by the minority against the tyranny of the majority. 

As this debate begins, I urge the American people to be involved.  It is their rights that are at stake.  It is the independence, fairness and nonpartisan protection of the judiciary that protects their rights that is being threatened.  It is the constitutional check that the Senate was intended by the Founders to provide, to keep the Executive from acting like a king, that is being threatened by curtailing the rights of the minority.  This is an exercise in breaking the rules to change the rules.  Note that as this debate begins, it begins in accordance with the Senate Rules, including Senate Rule 22.  That is the longstanding rule that the Republican majority intends to override at this end of this process, by parliamentary brute force.

The Republican Leader

The Senate is now being threatened with a fundamental change through a self-inflicted wound.  In his masterful work, “Master of the Senate,” author Robert Caro recalled an important chapter in the Senate’s and the Nation’s history.  Consider the contrast with what is being threatened today.  

When Senator Lyndon Johnson of Texas left the Senate, he had been the most powerful and successful Majority Leader in history.  When he was elected Vice President with President Kennedy and was preparing to leave the Senate, he told his protégé and successor, Senator Mansfield of Montana, that he would keep attending the Democratic caucus lunches and help his successor as Majority Leader in running the Senate.  Senator Mansfield respectfully said no, Vice President Johnson was no longer a Member of the Senate but an officer of the Executive Branch, who by means of that office was accorded the privilege of presiding over the Senate. What a contrast Senator Mansfield’s respect for the separation of powers and of checks and balances is from those in power today.  This White House took an active role in instituting the present Senate leadership, and this White House regularly sends Vice President Cheney and Karl Rove to Republican caucus lunches to give the Senate Republican majority its marching orders. 

The current Republican Majority Leader has announced that he intends to leave the Senate next year and has made no secret of his intent to run for the Republican nomination for President.  With that in mind, he is apparently prepared to become the first Majority Leader in Senate history whose intended legacy would be a significantly weakened Senate.  Many in the current roster of Senate Republicans are apparently ready to sacrifice the Senate’s role in our constitutional system of checks and balances. 

Republican Senators

It is my hope that our system of checks and balances will be preserved with a handful of Republican Senators voting their conscience and standing up to White House and outside pressures.  I know the zealotry of the narrow special interest leaders who are demanding this mutilation of the Senate’s character.  I am one of many who have been the target of their brutal and spurious personal attacks.  My hope is that a number of the fine women and men with whom I am privileged to serve as a custodian of our Nation’s liberties will act in the finest tradition of the Senate.  One of their number has come to this floor in recent days to remind all Senators of senatorial profiles in courage.  Sadly, that is what it will take to avert the overreaching power grab now underway. 

There have been other recent threats to our system of government.  Republicans partisans in the House, in a standoff with President Clinton, effectively shut down the Government in 1995.  A few years later the House impeached a popularly elected President for the first time in our history.  Fortunately, the Senate functioned as was intended during that trial and rejected those efforts.  In 2000 a divided nation saw an election decided by the successful litigation of the Republican Party and the intervention of a narrow activist decision of the Supreme Court to stop vote counting in Florida.  Thereafter we witnessed Senator Jeffords virtually driven out of the Republican Caucus.  We have seen an aggressive Executive Branch that has been aided by a compliant congressional majority.  If the Senate’s role in our system of coequal branches of the Federal Government is to be honored, it will take Republican Senators joining others in standing up for the American people’s rights, the independence of the judiciary, the rules of the Senate and the rights of the minority. 

During the last several days we have seen the Democratic Leader make offer after offer to head off this showdown.  We have heard stirring speeches from Senator Byrd and Senator Inouye and Senator Kennedy.  Senator Biden, Senator Baucus, Senator Murray, Senator Boxer, Senator Feinstein and others have come to this floor as well to set the record straight.  But this is a setting in which Democratic Senators alone 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 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 know that Republican Senators with whom I have been privileged to serve for anywhere from two years to more than 30 years know better.  I hope that more than six of them will withstand the political pressures being brought upon them and do the right thing and the honorable thing, and that they will put the Senate first, the Constitution first, and the American people first.  History and those who follow us will closely scrutinize these moments and these votes.  Those voting to protect the rights of the minority will be on the right side of history.

Like the Senator from Pennsylvania, I remember President Kennedy’s publication of “Profiles in Courage.”  Along with so many Americans, I remember reading about those Senators who stood up to their party to vote against the conviction of President Andrew Johnson.  More recently I witnessed the strength it took for Senator Mark Hatfield, a distinguished Republican, to cast a vote on conscience against amending the Constitution under intense and unfair pressures.  The Republican Leader is deliberating taking the Senate to another precipice.  It will take the votes of independent and conscientious Republican Senators to prevent the fall.   

Checks and Balances

The Framers of the Constitution warned against the dangers of such “factionalism,” undermining the structural separations of power.  Some in the Senate have been willing to sacrifice the historic role of the Senate as a check on the President in the area of nominations. 

Under pressure from the White House, over the last two years the former Republican Chairman of the Judiciary Committee led Senate Republicans in breaking with longstanding precedent and Senate tradition.  With the Senate and the White House under control of the same political party we have witnessed Committee rule after Committee rule broken or misinterpreted away.  The broken Committee rules and precedents include the way that home-state Senators were treated, the way hearings were scheduled, the way the Committee questionnaire was unilaterally altered, and the way the Judiciary Committee’s own historic protection of the minority by Committee Rule IV was repeatedly violated.  In the last Congress, the Republican majority of the Judiciary Committee destroyed virtually every custom and courtesy that used to help create and enforce cooperation and civility in the confirmation process.  I ask consent to include a recent article from The Wall Street Journal noting some of these developments. We suffered through three years during which Republican staff stole Democratic files off the Judiciary computer servers.  That has not been helpful to the process, the Senate or the country.  It is as if those currently in power believe that they are above our constitutional checks and balances and that they can reinterpret any treaty, law, rule, custom or practice they do not like or they find inconvenient.  It was tragic that the Committee that judges the judges did not follow its own rules but bent or broke them to achieve a predetermined result.

It was through those means that divisive and controversial judicial nominees were repeatedly brought before the Senate in the last Congress.  It was through those abuses of the majority that they acted as handmaidens to the President to create confrontation after confrontation over nominees.  They dragged the judiciary, which should be above politics, into the political thicket and did so for partisan gain. 

I regret that filibusters have been necessary in the last two years.  I wish Republicans would not have followed their years of secret holds and pocket filibusters of more than 60 of President Clinton’s nominees by flipping the script and dismembering the rules and traditions of the Judiciary Committee.  I have urged consultation and cooperation over the last four years.  During the 17 months I chaired the Judiciary Committee, the Senate confirmed 100 of President Bush’s judicial nominees, including a number of controversial nominees.  I proceeded on nominations I did not support.  But the President and his enablers in the Senate would not take yes for an answer.  He rejects our advice but demands our consent.  That is wrong.

208 Bush Judicial Nominees Have Been Confirmed

What the White House ignores is that President Bush completed his first term with the third-highest total of confirmed judges in our history and more federal judges on the courts than at any time in our history.  The truth is that Senate Democrats have cooperated extensively in confirming more than 95 percent of this President’s judicial nominations, 208 of 218.  George Washington, the most popular and powerful President in our history, was not successful in all of his judicial nominations — the Senate rejected his nomination of John Rutledge to be Chief Justice of the Supreme Court, for example. 

The truth is that in President Bush’s first term, the 204 judges confirmed were more than were confirmed in either of  President Clinton’s two terms, more than during the term of this President’s father, and more than in Ronald Reagan’s first term when he was being assisted by a Republican majority in the Senate.  By last December, we had reduced judicial vacancies from the 110 vacancies I inherited in the summer of 2001 to the lowest level, lowest rate and lowest number in decades, since President Ronald Reagan was in office.

Unfortunately, this President has chosen confrontation over cooperation.  It is mid-May and he has sent only one new nomination to the Senate all year.  In connection with that nomination, Democrats on the Judiciary Committee have written to the Chairman urging a prompt hearing.  We expect that with the support of his home-state Senators, one a Democrat and one a Republican, the nomination of Brian Sandoval will be added to the long list of Senate confirmations. 

But that leaves 30 judicial vacancies without nominations.  Back on April 11, the Democratic leader and I wrote to the President urging him to work with Senators of both parties to identify nominees for these vacancies.  I ask consent to include a copy of our April 11 letter in the Record.  To date, he has not responded.  Instead he, his Vice President and his Chief of Staff have prodded the Senate toward triggering the nuclear option.

In this area, perhaps above all others, the President has not acted as a uniter but as a divider.  He has sent the Senate divisive and controversial nominees.  When the Senate debates them and withholds consent, he stubbornly re-nominates them over and over again.  Rather than work with us to find consensus nominees, he disparages us and exploits the issue as a partisan political matter.

Senate Designed To Encourage Consensus

Under our Constitution, the Senate has an important role in the selection of our judiciary.  The brilliant design of our Founders established that the first two branches of government would work together to equip the third branch to serve as an independent arbiter of justice.  As columnist George Will once wrote: “A proper constitution distributes power among legislative, executive and judicial institutions so that the will of the majority can be measured, expressed in policy and, for the protection of minorities, somewhat limited.” 

The structure of our Constitution and our own Senate rules of self-governance are designed to protect minority rights and to encourage consensus.  Despite the razor-thin margin of recent elections, the majority party is not acting in a measured way but in complete disregard for the traditions of bipartisanship that are the hallmark of the Senate.  It has acted to ignore precedents and reinterpret longstanding rules to its advantage.  This practice of might makes right is wrong.  The Senate’s rules should not be toyed with like a playground game of King of the Hill, to be changed at the whim of any current majority.

The Senate Majority Leader seems intent on removing the one Senate protection left for the minority, the protection of debate in accordance with the longstanding tradition of the Senate and its Standing Rules.  In order to remove the last remaining vestige of protection for the minority, the Republican majority is poised to break the Senate Rules and end the filibuster with the votes of the barest of majorities.  They are intent on doing this to force through the Senate this President’s most controversial and divisive judicial nominees. 

As the Reverend Martin Luther King wrote in his famous Letter From A Birmingham Jail:  “Let us consider a more concrete example of just and unjust laws.  An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself.  This is difference made legal.  By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself.  This is sameness made legal.”  Fair process is a fundamental component of the American system of law.  If we cannot have a fair process in these halls or in our courts, how will the resulting decisions be viewed?  If the rule of law is to mean anything, it must mean that it applies to all equally. 

Checks and Balances Protect Against Despotism

No man and no party should be above the law.  That has been one of the strengths of our democracy.  Our country was born in reaction to the autocracy and corruption of King George, and we must not forget our roots as a nation of both law and liberty.  The best guarantee of liberty is the rule of law, meaning that the decisions of government are not arbitrary and that rules are not discretionary or enforced to help one side and then ignored to aid another.  James Madison, one of the Framers of our Constitution, warned in Federalist Number 47 of the very danger that is threatening our great nation, a threat to our freedoms from within:  “[The] accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.”

George Washington, our great first President, reiterated the danger in his famous Farewell Address To the American People:  “The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.”

Our freedoms as Americans are the fruit of too much sacrifice to have the rules broken in the United States Senate in collusion with the White House.  The effort to appoint loyalists to courts in the hope that they will re-interpret precedents and overturn the very laws that have protected our most fundamental rights as Americans is base and wrong.  The American people deserve better than we have seen with the destruction of rule after rule by a majority willing to sacrifice the role of the Senate as a check and balance in order to aid a President determined to pack the federal courts.  It is the courts that serve as a check on the political branches.  Their independence is critical and must be preserved.

The record of 208 confirmations and reduction of judicial vacancies to an historic low provide no basis on which to break the rules of the Senate. The Democratic Leader’s efforts to make additional progress demonstrate that there is no reason for the majority to take the drastic and irreversible step of ending protection of the minority through the tradition of extended debate in the Senate.  The White House and the Senate Republican leadership's campaign for the ``nuclear option'' seeks to end the role of the Senate serving as a check on the Executive is short-sighted and wrong as well as unjustified.  The Constitution intends for the Senate to provide balance and a check.  

I will have more to say about these important matters and about the nomination that the Judiciary Committee previously rejected and that the Senate has previously debated as we proceed over the next several days.  There is one other aspect of this matter that I need to mention.

Injection Of A Religious Test

Supporters of a power-hungry Executive have gone so far as to seek to inject an unconstitutional religious test into the debate and to characterize those who oppose the most extreme of the President's nominees as being ``against people of faith'' and to call for mass impeachments of judges and other measures to intimidate the judiciary.  I commended the President for personally rejecting at least that demagoguery at a recent press conference.  

Pat Robertson says that he believes that federal judges are ``a more serious threat to America than Al Qaeda and the September 11 terrorists'' and ``more serious than a few bearded terrorists who fly into buildings'' and ``the worst threat America has faced in 400 years -- worse than Nazi Germany, Japan and the Civil War.''  This is the sort of incendiary rhetoric that is paving the way to the ``nuclear option.''  It is wrong; it is destructive.

Injecting religion into politics to claim a monopoly on piety and political truth by demonizing those you disagree with is not the American way.

It was Abraham Lincoln who said:  “I know that the Lord is always on the side of the right, but it is my constant anxiety and prayer that I and this nation should be on the Lord’s side.”  He was so right.  We all would do well to spend a little more time wondering whether we’re on God’s side and less time declaring that He is on ours.

Those driving the nuclear option engage in a dangerous and corrosive game of religious McCarthyism, in which anyone daring to oppose one of this President’s judicial nominees is branded as being anti-Christian, or anti-Catholic, or “against people of faith.”  Dr. Dobson of Focus on the Family awhile back said, of me, “I don’t know if he hates God, but he hates God’s people.”   When Senator Hatch was attacked during his presidential campaign, I came to his defense.  When Senator Lott was under attack, Senator Jeffords and Specter spoke up in his defense. 

When they charge us with being “against people of faith” for opposing a handful of the most extreme and controversial judicial nominees, what are they saying about the 208 Bush judicial nominees who have been confirmed with Democratic cooperation and support.  Are they, by definition, people without faith?  These kinds of charges, this virulent religious McCarthyism, is fraudulent on its face.  It is contemptible. 

Chief Justice Rehnquist is right to refer to the federal judiciary as the crown jewel of our system of government.  It is an essential check and balance, a critical source of protection of the rights of all Americans, including our religious freedoms.

Just this morning the Judiciary Committee heard the testimony of Judge Joan Lefkow of Chicago.  She is the federal judge whose mother and husband were murdered in their home.  She asked that we repudiate the gratuitous attacks on the judiciary and I do so, again, here today.  She counsels:  “In this age of mass communication, harsh rhetoric is truly dangerous.  [F]ostering disrespect for judges can only encourage those that are on the edge, or on the fringe, to exact revenge on a judge who ruled against them.”  I remember Justice Sandra Day O’Connor made a similar observation recently.

‘A Republic, If You Can Keep It’

In September 1787, as the Constitutional Convention drew to a close, someone came up to Benjamin Franklin to ask whether all the arduous work of drafting the Constitution had produced a republic, or a monarchy.  Ben Franklin told him, “A republic, if you can keep it."

The checks and balances woven through our constitutional system can be easily unthreaded by the abuse of power.  Let us hope that never happens.  It can happen through steps small or large.  This action that is being proposed to the Senate is a large step, a large abuse of power, and a step whose consequences we can only begin to imagine.  It would be a vote for confrontation over consensus.

I hope each of us will reflect on its consequences, and that, in the end, such a travesty will never befall the Senate.

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