Swing State Project

SENATOR HARRY REID’S FLOOR STATEMENT ON “ADVICE & CONSENT”

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.

Let's see who has the courage in them.