Published May 18, 2005
WASHINGTON – Senate Minority Leader Harry Reid is leading the effort to oppose a series of President Bush's judicial nominations. Following is a transcript of the Nevada Democrat's remarks Thursday as the Senate began a debate that could lead to the abolishment of judicial filibusters.
Mr. President, the majority leader said that during the Dole years that the Clinton nominees were treated fairly. Sixty-nine Clinton nominees didn't even — they weren't even given the decency of a hearing. They never saw the light of day.
We have participated in hearings; the matter has come to the floor.
For my friend to say that Clinton was treated fairly under the Dole proposition years was simply untrue.
And I would say, everyone should know that Priscilla Owen, Janice Rogers Brown have had votes right here on the Senate floor in compliance with the rules of the United States Senate. They've had votes.
You know, it's as if we're retreating 50, 60 years, where you keep telling these falsehoods enough people start believing them. The American people aren't believing this.
These two women about which my friend speaks have had votes.
My friend from Massachusetts asked a question. The president's lawyer, Alberto Gonzales — and now the attorney general of the United States and previously a member of the Texas Supreme Court — said on multiple occasions that Priscilla Owen's activism was unconscionable.
Alberto Gonzales is a smart man. He knows what the word "unconscionable" means. But in case someone doesn't, let me read what it does mean. "Unconscionable: shockingly unjust and unscrupulous."
Now, Mr. President, that is what the attorney general of the United States of America says about Priscilla Owen.
Mainstream? I think not.
Now, Mr. President, shockingly unjust or unscrupulous: that's what Priscilla Owen is in the minds of the attorney general of the United States.
I would ask consent that my time, Mr. President — I have your attention? — I would ask that my time be charged against the Democrats' time when we take that approximately an hour from now.
(UNKNOWN): Without objection.
REID: So there will be a lot more said about Janice Rogers Brown. But I think a fairly good indication of the kind of judge she is should come from the attorney general of the United States, who says that her unconscionable activism is replete through her opinions — I assume that he knows what it means; I'm confident he does, he's a brilliant man — shockingly unjust, unscrupulous.
Those are not the words of the Senate Judiciary Committee, not some special interest group, but those are the words of the attorney general of the United States about Priscilla Owen. And she's had a vote here on the Senate floor.
Janice Rogers Brown — I'm sure she's had — she's come from nothing to something, and I'm very — I think that's good. That's the way America should be.
But before anyone starts crowing about the vote in California, she didn't have an opponent. It's a Missouri system. She had no opponent.
Now, her opinions, if they weren't on such serious matters, they would be laughable — seriously, laughable.
The California Supreme Court is made up of — I don't know the breakdown. There's one Democrat — I don't know if they have nine, I think they have nine supreme court — seven supreme court justices. Six of them are Republicans.
She has dissented in the last six years alone 31 different times. Among other things, she has said Supreme Court decisions upholding New Deal protections like minimum wage and the 40-hour work week are, in her words, "the triumph of our own socialist revolution."
Tell someone working at General Motors, tell someone working at Titanium Metals in Henderson, Nevada, that the 40-hour week is part of the socialist revolution. Tell somebody working on nights and weekends and holidays that they can't get time and a half. Or tell somebody working at McDonald's or in a plastics factory in Fallon, Nevada, that they aren't entitled to minimum wage.
That's Janice Rogers Brown, who has had a vote on the Senate floor.
Yesterday, I spoke here about a statement the majority leader made calling the filibuster a procedural gimmick.
Again, going to the dictionary, it defines gimmick as — I quote — "an ingenious new scheme or angle."
The filibuster is not a scheme and it certainly isn't new.
The filibuster is far from a procedural gimmick. It's part of the fabric of this institution we call the Senate. It was well-known in colonial legislatures before we became a country, and it's an integral part of our country's 214-year history.
The first filibuster in the United States Congress happened in 1790. It was used by lawmakers from Virginia and South Carolina who were trying to prevent Philadelphia from hosting the first Congress.
Since then, the filibuster has been employed hundreds and hundreds and hundreds of times. It's been employed on legislative matters, it's been employed on procedural matters relating to the president's nominations for Cabinet and sub-Cabinet posts, and it's been used on judges for all those years.
One scholar estimates that 20 percent of the judges nominated by presidents have fallen by the wayside, most of them as a result of filibusters.
Senators have used the filibuster to stand up to popular presidents, to block legislation, and, yes, even, as I've stated, to stall executive nominees.
The roots of the filibuster are found in the Constitution and in our own rules. In establishing each house of Congress, Article 1, Section 5, of the Constitution states that each house may determine its rules.
In crafting the rules of the Senate, senators established the right to extended debate. And they formalized it with Rule 22 more than a hundred years ago — I should say about a hundred years ago. This rule codified the practice that senators could debate extensively.
Under Rule 22, debate may be cut off under limited circumstances: 67 votes to end a filibuster of a motion to amend the Senate rule. That is what is being attempted here.
But, no, we are not going to follow the Senate rules. No. Because of the arrogance of power of this Republican administration who controls the Supreme Court, the House, and the Senate. It's not enough that they come to the people's body and say, "Let's take our chances by a fair ball game."
They're going to change the rules in the middle of the ball game.
To talk about people having votes, these nominees, all 10 of them, have had votes. And it's really unfair for the majority to continually say, "It's 10." Three of them either retired or withdrew and we've agreed for votes on two others.
It's five. Five people who are not in the mainstream — not in the mainstream.
Janice Rogers Brown accuses senior citizens of blithely cannibalizing their grandchildren. That's in the mainstream?
Priscilla Owen in the mainstream?
This administration is unwilling to play by the rules. It takes, to change a Senate rule when there is a filibuster in progress, 67 votes. But we're going to have Cheney, the vice president, come to where the presiding officer is sitting now and say it only takes 51.
This great paragon of virtue is going to say that it only takes a simple majority.
Sixty votes may end a rule — we need 60 votes to end a filibuster against legislative business. And we know, we've read — it doesn't take the legal scholar, we've read newspapers — that this is a slippery slope.
Once you have a rule changed illegally, then you can do it again. There's a precedent on the books. Maybe in the future it will be able to be changed. If we decide we don't like Bolton — the man who was chasing people down the hall, throwing papers at them — to be our representative at the United Nations, if we decide that we want to filibuster him, "Oh, change the rules. He's the president's man. He's entitled to a simple majority here. You can't do this."
Or it may be an issue of importance to the president or the majority leader on a legislative matter. Just change the rules. The precedent will have been set: Simple majority is all that's necessary.
In a conversation between Thomas Jefferson and George Washington, I believe, Mr. President, describes the United States Senate and our founding fathers' vision of this body we're so fortunate to serve in.
Jefferson asked Washington: "What is the purpose of the Senate?"
Washington responded with a question of his own: "Why did you pour that coffee into your saucer?"
"To cool it," Jefferson replied.
To which Washington said, "Even so, we pour legislation in the senatorial saucer to cool it."
And this is exactly what the filibuster does. It encourages moderation and consensus. It gives voice to the minority so that cooler heads may prevail.
It also separates us from the House of Representatives, where there the majority rules, through the speaker appointing the Rules Committee. And it's very much in keeping with the spirit of the government established by the framers of our Constitution: limited government, separation of powers, checks and balances.
The filibuster is a critical tool in keeping the majority in check.
And the presiding officer, who is a new member of the Senate, someday will be in the minority. That's the way it works.
This central fact has been acknowledged and even praised by senators from both parties, that the filibuster is a critical tool in keeping the majority in check.
In fact, another freshman senator, my colleague from Georgia Senator Isakson, recently shared a conversation that he had with an Iraqi government official.
Senator Isakson had asked this official if he was worried about the majority in Iraq overrunning the minority.
The official replied, "No, we have the secret weapon called the filibuster."
In recalling the conversation, Senator Isakson remarked, "If there ever were reason for optimism, it is one of the Iraq minority leaders proudly stating one of the pillars and principles of our government" — that is the Iraqi government — "as a way they would ensure that the majority never overran the minority."
They were comparing what they were going to experience in Iraq to what we now have, the filibuster.
And, of course, he was right.
I spoke here yesterday about Senator Holt and his 1939 filibuster to protect worker's wages and hours. There are recent examples of the filibuster achieving good. 1985 senators from rural states, even though there were few of them, used the filibuster to force Congress to address a major crisis in which thousands of farmers were on the brink of bankruptcy.
In 1995, 10 years later, the filibuster was d by senators to protect the rights of workers to a fair wage and safe workplace.
Now, Mr. President, I can't stand here and say that the filibuster has always been used for positive purposes; it hasn't. Just as it has been used to bring about social change, it was also used to stall progress this country needed to make.
It is often shown that the filibuster was used against civil rights legislation. But civil rights legislation passed. Civil rights advocates met the burden.
And it's noteworthy that today, as I speak, the Congressional Black Caucus is opposed to the nuclear option — unanimously opposed to it.
For further analysis, let's look at Robert Caro's book: a noted historian, Pulitzer Prize winner. Let's not look at his book, let's look at what he said at a meeting I attended with other senators.
He spoke about the history of the filibuster. He made a point about its legacy that was important.
He noted that when legislation is supported by the majority of Americans, it eventually overcomes a filibuster's delay, as public protests far outweigh any senator's appetite for filibuster. But when legislation only has the support of the minority, the filibuster slows the legislation, prevents a senator from ramming it through and gives the American people enough time to join the opposition.
Mr. President, the right to extended debate is never more important than when one party controls Congress and the White House. In these cases, the filibuster serves as a check on power and preserves our limited government.
Right now, the only check on President Bush is the Democrats' ability to voice their concern in this body, the Senate. If Republicans roll back our rights in this chamber, there will be no check on their power: The radical right wing will be free to pursue any agenda they want. And not just on judges: Their power will be unchecked on Supreme Court nominees, the president's nominees in general, and legislation like Social Security privatization.
Of course, the president would like the power to name anyone he wants to lifetime seats on the Supreme Court and other federal courts.
It's interesting to note the statistics used by the majority leader doesn't take into consideration the nominees who we've been willing to clear. Sure you get statistics like that when they won't bring them forward.
And basically, that's why the White House has been aggressively lobbying Senate Republicans to change Senate rules in a way that would hand dangerous new powers to the president over two separate branches, the Congress and the judiciary. And he's lobbying the Senate, he and his people, to break the rules to change the rules.
I'm sorry to say this is part of a disturbing pattern of behavior by this White House and Republicans here in Washington, especially the leadership.
From Dick Cheney's fight to slam the doors of the White House so that the American people are kept in the dark about energy policy or the White House has the lights turned on, the public interest or the corporate interest, it's always the corporate interest; to the president's refusal to cooperate with the 9/11 Commission; to Senate Republicans' attempt to destroy the last check in Washington on Republican power; to the House majority's quest to silence the minority in the House; Republicans have sought to destroy the balance of power in our government by grabbing power for the presidency, silencing the minority and weakening our democracy.
America does not work that way. The radical right wing should not be allowed to dictate to the president and to the Republican Senate leaders, as they are trying to do.
For 200 years we've had the right to extended debate. It's not some procedural gimmick. It's within the vision of the founding fathers of our country. They did it; we didn't do it. They established a government so that no one person and no single party could have total control.
Some in this chamber want to throw out 214 years of Senate history in the quest for absolute power. They want to do away with Mr. Smith, as depicted in that great movie, being able to come to Washington. They want to do away with the filibuster. They think they're wiser than our founding fathers. I doubt that that's true.
Mr. President, would the chair notify us as to how much time the Republicans have in the first wave of statements and how much time the Democrats have when they are allowed to make statements? ... Thank you, Mr. President.