Senate Coverage -- (April '05)

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SENATE TRADITION ON JUDICIAL NOMINATIONS -- (Senate - April 27, 2005)

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Mr. SANTORUM. Mr. President, I had the opportunity to listen to the Democratic leader for a few moments talking about the House of Representatives and the compromise the House of Representatives just achieved on their ethics consideration.

Three comments about that compromise: No. 1, it is interesting that ``compromise'' means the Republicans do what the Democrats insisted upon them doing. That is a compromise, No. 1.

No. 2, that compromise meant the House went back to the way the House has always done things when it came to ethics. The compromise was to go back to the precedent and rules of the House they have always used.

Third, that compromise means--and the Senator from Oklahoma has had experience over in the House, as have I--the rules of the House will continue to be that if a Member has an ethics claim filed against them by someone--and the Ethics Committee is equally divided--particularly, if it is a Member where there happens to be political value in having an ethics claim filed against them, if the other side decides, politically, they are simply not going to hear the case, it stays on the docket forever, for as long as the session lasts, with no need to dispose or rule on that. So the ethics charge hangs out there without a decision. It automatically goes forward, in other words, unless there is a decision on the part of a bipartisan majority to end the discussion.

I think what we have seen in the past--and I know Members of the House are concerned about this--is

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that there has been an abuse, a politicization of the ethics process. We all know how damaging it is because the only thing we have in this body and before our constituents is our word and our reputation. They are intangible things that are easily affected and certainly are affected when ethics charges are filed. That does not mean ethics violations have been found but simply that ethics charges have been filed.

The mere fact a charge has been filed is a very damaging thing to the reputation of a Member. To have that out there, without any need for disposition, I think is very dangerous and has proven to be--and I think will continue to be--a bad precedent.

But that is compromise. I make the argument that capitulation is not compromise. But I will agree on the second point I made, that going back to the way we have done things in the past is usually a pretty good idea when you really aren't sure how to deal with things. So I too say I am glad that the speaker, the leader, and others in the House have broken this logjam, and they have done so in a way they can at least move the process forward in the House. I too commend the Republican leadership for trying to move it forward.

I will say the same thing could be done here in the Senate. If we have a sincere disagreement as to how we should proceed with respect to judicial nominations, we could look to the example of the House of Representatives and go back to the way we did things for years and years and years. The way we have done things for years and years and years, 214 years prior to the last session of Congress, was that nominations that came to the floor of the Senate received an up-or-down vote.

It was very interesting. The Senator from Nevada criticized one of our Republican Members who suggested that we would be willing to compromise by not including all executive nominations, just including certain executive nominations. When that was proffered, the Senator from Nevada criticized this compromise and said: It is disingenuous because it is not intellectually consistent. Lots of compromises aren't. But that was for the sake of compromise, to say that we believe--and 214 years of history have shown, and the tradition and the precedent of the Senate is--when executive nominations arrive on the floor of the Senate, they receive an up-or-down vote. That is the precedent. There is not one instance in which someone who had majority support here on the floor of the Senate for a judicial nomination did not receive an up-or-down vote and get confirmed, not one precedent until 2 years ago. Then things changed.

So we have suggested we would like to go back to that 214-year precedent that served this country very well. We didn't have the acrimony we see here today. The Senator from Nevada repeatedly talked about how the public wants us to get things done. Then don't change the rules of the game and then complain the public is angry with the fact that we are not getting things done. Look at the cause of the controversy.

The cause of the controversy lies with the previous leader of the Democrats, who put forward a strategy, a plan, a scheme to fundamentally shift the power away from the President to 41 Members of the Senate to determine what nominees will be confirmed in the Senate. That could have been done. I would agree with the Senator from Nevada and everybody else here. It could have been done 200 years ago. It could have been done 100 years ago. It could have been done 10 years ago. But it never was done. We showed restraint. I showed restraint.

The Senator from Nevada talked about how I could look back at the Clinton administration and see how President Clinton's nominees were disadvantaged. Let's look back to the Clinton administration. I can think of two people I recall very clearly to whom I was adamantly opposed. They had records as judges that were deplorable in my mind. They didn't follow the law. They were activists on the court. They put their interpretation and their views ahead of the law repeatedly. Richard Paez and Marsha Berzon were their names. They were nominated for the circuit court.

I adamantly opposed them. They were bad judges and, in my opinion, this country would be in worse shape by having them on the circuit court. I wanted them defeated. They were against a lot of what I strongly believed was bad for this country. That is what they were for, things which I strongly believed were bad for the country.

There were a lot of groups outside, a lot of conservative groups, just as they are hearing from a lot of liberal groups, who said: Do it, block their nomination. Yes, they have majority support, but block their nomination because they will do so much damage. They are bad. That is what these outside groups were saying: These folks will undermine the judiciary.

There is always a temptation to let the current fury cloud your judgment and to think about the immediate political posture or the next election or the folks who brought you here and do what they ask you to do.

We had a leader, at that time, in Trent Lott, and we had a chairman, in Orrin Hatch, who said: I understand how you feel. I oppose these judges too. But there is something more here in the Senate than the passions of the day. There is something more than the groups who may support your campaigns today. When we do things that change the precedent of the Senate, it ripples, maybe forever, and can fundamentally change the balance of power, the way the judiciary functions, the way the executive functions and, as you have seen in the last 2 years, the way this body functions or ``misfunctions'' as a result.

So for that moment in which I really wanted to block their nominations, when Trent Lott and Orrin Hatch filed cloture on those two nominees to move the vote forward, not to block their nomination, but to move their vote forward, I voted along with 85 of my colleagues. A vast majority of Republicans and all the Democrats voted to allow their vote to come. Richard Paez did not get 60 votes when his confirmation came up. In other words, had we wanted to filibuster Richard Paez, we would have been successful. He would not have gotten 60 votes. He would not be a judge on the circuit today had we wanted to block his nomination.

But my belief is--and the vast majority of Republicans' belief was at that time--as much as we opposed the nomination, we supported the tradition and the precedent of the Senate because we are but stewards of this place. We don't own this institution. Yes, we say we run this institution. We don't run this institution. We are simply stewards. We are passersby. When we crack the foundation of the way things have been done and worked for this country for 200-plus years, we leave behind a foundation that may not sustain us as a people.

To stand before the Senate, as my colleagues on the other side of the aisle have done repeatedly over the last few weeks, and talk about how they are being aggrieved by what the Senate Republicans are trying to do and calling this the nuclear option repeatedly, and suggesting somehow or another this is destroying the filibuster, when it was never used--underscore that, never used--to block a judge on the floor of the Senate prior to the last session of Congress, when the Democratic minority decided they could not resist, they had to put politics over process. They had to put partisanship over the stability of this institution for the long term.

I suspect there are a lot of folks on the other side of the aisle who regret that happening, and they probably regret it today. Where are the statesmen? Where are the folks who quietly whisper to one another that this was wrong? Where are they to stand up and set it straight?

I desperately hope we do not have to cast this vote on the floor of the Senate to return the precedent of the Senate to the way it has been for 214 years because it would show what two sides were able to do for 214 years. I say to the Presiding Officer from Oklahoma, think about all of the conflicts and passions that have occurred through all of the great debates in the Senate. People were shot in the Senate, and there were fisticuffs and beatings. The passions must have been incredible at certain times. But we always were able to understand that there were some things bigger than the passion of the moment. This institution is one of

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them. The way this institution functioned to balance powers was one of them. What the other side of the aisle is doing, I say to the Senator from Illinois, is fracturing the foundation of this institution.

So I hope we don't have a vote. I hope we don't have a vote. I hope there will be some on both sides of the aisle who would look to the 214-year precedent when, in spite of strong disagreements, the Senate was able to find comity to get things done.

We need to get things done. I know the Democratic leader has threatened to shut down the Senate--his words, not mine, ``shut down the Senate''--if they don't get their compromise. What is their compromise? They want to continue to do what they did in the last session of the Congress. That is their compromise. I find it somewhat remarkable that the Senator from Illinois praised the Senator from Nevada for his ``compromise.'' His compromise says if the ten judges they were blocking from the last session--they have successfully blocked three because they have been withdrawn, and now they are suggesting they want to block at least three more. They don't care which ones they are. I know this was all driven by pure concern about each and every one of these, but for some reason they can pick which three. Some might suggest this is less about the individual and more about politics, but now we are sort of in this compromise and, fine, let's compromise. Fine. We will take ten, we get to kill six, and you get to pick the four we move forward with. That is compromise. Oh, and by the way, we reserve the right to continue to do this in the future. This is the great Henry Clay type of statement that we see before the Senate: Of the ten that we have blocked--against every precedent of the Senate--we will take six, and these fine individuals, all well qualified by the ABA--the ``gold standard,'' in Senator Leahy's words, not mine--we will take these fine upstanding people in the community and tarnish their reputations for the rest of their lives.

By the way, you pick the three we are going to tarnish, and we will let you have four nominees. By the way, you can go ahead and expect that we will block others in the future.

That is their compromise. That is the great olive branch: We will continue to abuse 214 years of history.

I ask anyone if you can point out one nominee for the court on the floor of the Senate who had majority support who was blocked by filibuster. Name one who had majority support. It never happened. So what is the compromise? The compromise is that six judges who had majority support on the floor of the Senate will be denied confirmation, and we will do so to others in the future if we so desire. That is the compromise. I don't think most people objectively looking at that would see that as much of a compromise.

The Senator from Illinois said another remarkable thing. I will go back and check the record. I find it hard to believe. He said Senator Frist came to the floor yesterday and said he would not be a party to any negotiation on this issue. That is what the Senator from Illinois said.

Let me review the record. Senator Frist, in the last session of Congress, offered a compromise with Zell Miller called the Frist-Miller approach. It was a compromise. It is still a compromise that is out there. I know for a fact--and I suspect others on the other side of the aisle do, too--that Senator Frist has repeatedly offered compromises to the Democratic leader.

I know also for a fact that the Senate majority leader, Senator Frist, is very much open to negotiation and compromise, to return the precedent of the Senate and find a

way in which we get back to what was just lauded by the other side of the aisle--returning, as the House just did, to the way they have always done things. So, too, would we like to do that--return to the way we have always done things. But that is too much of a reach, I suspect, for some because we have partisan agendas. We have, even more so, I suggest, not just partisan agendas because I think in part it is driven by partisanship, but I think it is mostly driven by ideology.

What I think is sadly true is that the agenda of the other side of the aisle--which we have not seen a whole lot of as far as solutions; we have seen a lot of obstruction, not a whole lot of ideas but a lot of obstruction--is not accomplished in democratic forums anymore. It is accomplished through the courts. So I think what we are seeing is a gasp of saying that we can no longer win elections on our agenda. We can no longer win votes on the floor of the Senate with our agenda--the most radical elements of our agenda, anyway--so we must hold on to the courts. We must hold on and make sure those individuals who are willing to be activists on the court and overturn the will of the Congress, create new rights in the Constitution, bypass the democratic process, amend the Constitution through court edict, as opposed to the traditional way laid out by our Founders, we want to make sure that we still have the ability to enact our agenda on the courts.

Another point I will make is that I am very much for the filibuster. I believe the filibuster is exactly what our Founders intended when it comes to legislation--absolutely what they intended, that the Senate would be a place where the hot tea would be poured into the saucer and cooled. I support it and, in fact, I voted to support it because when I was first elected to the Senate, some Democratic Members offered a change to the rules that would have eliminated the filibuster and gone to a simple majority on all legislative matters.

This was interesting because at the time, as I said, the Republicans were in the majority, and yet Democrats were offering this rather savory morsel out there for those of us who recently came to the Senate and wanted to get a lot of things done and understood how difficult it would be. We had a Contract With America, we may recall--the House was moving forward and wanting to pass a lot of bills. We had a lot of momentum over here. There was a part of me that said: That would be great, we could get rid of this. I said: No, the Founders had it right, the traditions of the Senate are right. We do not need to change this institution because of the whims of the moment, because of the passions of the day, because of the interest groups off Capitol Hill that would want us to do so.

No, we have a higher duty. We have a higher duty. That duty is to this institution because this institution is the bulwark of this democracy that protects us from doing rash and sometimes irrational things in which at times the public gets swept up. No, that is what this institution is for when it comes to legislative passions.

By the way, there were 19 people, 19 Democrats who voted to end the legislative filibuster, but not one Republican. Not one. So the legislative filibuster is important, and it will remain in place as a result of anything we do over the next few weeks with respect to judicial nominations.

I close by saying I am hopeful we can find a compromise, but what I keep hearing from the other side is this incredible spinning that somehow or other what has gone on here in the last 2 years was part of the normal course, and the fact that this was done in previous Congresses, as the Senator from Nevada mentioned, in committee, in committee these nominations were killed.

Were these nominations killed? Some nominations were held and defeated in committee, that is right. By whom? By the majority--by the majority. The majority on the floor of the Senate has defeated nominations. The majority in committee has defeated nominations. But never before has the minority in committee defeated a nomination. Never before has the minority on the floor defeated a nomination. Never before has the minority been able to dictate to a President who they will nominate either for their Cabinet or for some of the most important positions in the judiciary. Never before until now.

This is taking power away from a popularly elected President who, under the Constitution, has the right to nominate people. President Clinton, I believe, had over 350 judges confirmed. I think I voted against maybe 5, 6, something like that; less than 10, I know that. I did not agree ideologically with probably more than 10, but as I went home and had to face some of my constituents who were upset with me for voting for one judge or another because they did not like their politics, I said: You will have to take it up with the American people because President

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Clinton won the election, and he has a right to nominate who he wants as long as they are within the mainstream. That does not mean they are going to agree with me philosophically. There are a lot of people in the mainstream who are center and left of center who have a right to serve, as people who are right of center have a right to serve, and I am not going to impose my ideology on somebody else's nominees.

That is what is going on today. It is an ideological litmus test, and it is now infecting this body to the detriment of the Senate.

I hope cooler heads will prevail, and that those of us who showed restraint and did not vote for filibusters, voted for cloture on nominees we did not like--that there will be those who will stand up and do the same on the other side of the aisle in the future.

Mr. President, I yield the floor, and suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

ETHICS DISCUSSIONS IN WASHINGTON, DC -- (House of Representatives - April 27, 2005)

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The SPEAKER pro tempore. Under a previous order of the House, the gentleman from North Carolina (Mr. McHenry) is recognized for 5 minutes.

Mr. McHENRY. Mr. Speaker, we are hearing a lot about ethics these days, ethical problems, ethical controversies. Why is ethics coming up as a topic of discussion here in Washington, DC? It is because the Democrat leadership has led their party on a campaign against our Republican majority through what I believe is a conspiracy of character assassination and misleading attacks.

Let me quote this week's U.S. News and World Report. Democrat strategists, confident that voters are increasingly fed up with the Republican establishment, are planning an all-out attack on what they call the ``abuse of power'' by Republicans. Democrat strategists, Mr. Speaker. Those folks who live and crawl around the basement of the Democrat National Committee and the DCCC, they see ethics as a way that might be able to gain them a few congressional seats.

I can tell my colleagues why they are doing this. It is because in the last 2 election cycles, Democrats, their agenda, their leaders, their ideas, or lack thereof, are going nowhere. They lost six U.S. Senate seats. They have posted double digit losses in the U.S. House of Representatives races. They are sitting back and trying to obstruct as Republicans pass tax relief. In fact, in just this Congress, we eliminated the death tax, the double taxation of inheritance. They watched as the Republicans passed an energy policy to keep and lower gas prices. They tried to obstruct class action lawsuit reform which Republicans passed to protect small businesses and individuals from the frivolous lawsuits of ambulance-chasing trial lawyers. They sat back as we passed comprehensive bankruptcy reform. And they are losing their own Members on these votes.

Mr. Speaker, over 70 Democrats have abandoned their leadership, their Democrat leadership to support a Republican bill on bankruptcy reform. Forty-two Democrats bolted their leadership, their left-wing leadership to support the permanent repeal of the death tax. Forty-one Democrats abandoned their leadership on energy policy, because they see that our ideas are better than their party's. A whopping 50 members of the Democratic Caucus abandoned their leader, the gentlewoman from California (Ms. Pelosi), on class action lawsuit reform. The Democrat Party is hemorrhaging. They are hemorrhaging.

[Time: 21:00]

So how does the leadership fight back, when they cannot even win their own rank-and-file members? How do they fight back? It is by baseless, senseless attacks and character assassinations, that is how. Let me quote an article that ran in a January issue of the New Republic, a liberal left wing magazine. The article is called ``How the Democrats Can Overthrow the House.'' And I quote: ``Democrats should consider fighting back by extraparliamentary means, going beyond the standard perimeters of legislative debate and attacking Republicans not on issues but on ethics. Character. In other words, it may be time for Democrats to burn down the House in order to save it.''

Not my words, Mr. Speaker. This is the liberal strategy for taking control of this House of Representatives. Burn down the House. Burn down this institution. That is the Democrats' plan. They are willing to tear down this very institution so they can gain raw political power. We have seen this before, and that is why you are hearing all of this about House rules and ethics.

But here is the deal. Democrats want to apply the rules, Mr. Speaker. They do. They just do not want to apply the rules to themselves. Consider the Democratic leader, the gentlewoman from California (Ms. Pelosi). She called for an investigation of the House majority leader, our Republican majority leader, for alleged irregularities for his travel records.

But ABC News reported last night that members of her very own Democrat leadership staff have not properly disclosed their own travel forms. Not just once. Not just twice. But a dozen times. The gentlewoman from Ohio (Mrs. Jones) who is a member of the ethics committee, Mr. Speaker, the gentlewoman is a member of the ethics committee, she went on a trip to Puerto Rico. I do not blame her for wanting to go on a nice trip. The gentlewoman from Ohio went on this with the gentlewoman from California (Ms. Pelosi) herself, as well as a number of other Democrats.

According to ABC News last night, the gentlewoman from Ohio (Mrs. Jones) said the incident was paid for by a registered lobbyist, while the gentlewoman from California (Ms. Pelosi) said it was paid for by a different organization.

Then, the gentlewoman from Ohio (Mrs. Jones) went back and amended her forms to say that the lobbyist did not pay for it. But you know what? Two other Democrats that went on that trip did not even disclose their travel. Did not even disclose it. When asked, one Member told the Washington Times, this happened 4 years ago; I am not sure why this is even relevant. Wow.

Do you hear hypocrisy? This is the pot calling the kettle black.

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The SPEAKER pro tempore (Mr. Carter). The time of the gentleman has expired.

POINT OF ORDER -- (House of Representatives - April 27, 2005)

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Mr. ISRAEL. Mr. Speaker, I make a point of order.

The SPEAKER pro tempore. The gentleman will state his point of order.

Mr. ISRAEL. Mr. Speaker, is the gentleman allowed to make allegations, false allegations about another Member on the floor of the House during this time?

Mr. McHENRY. Mr. Speaker, if I may address this, these are not false allegations

Mr. ISRAEL. Mr. Speaker, I would appreciate a ruling.

Mr. McHENRY. I am reporting what ABC News reported.

The SPEAKER pro tempore. The gentleman will suspend.

Mr. McHENRY. This is reported in the press.

The SPEAKER pro tempore. The Chair will remind all Members to refrain from arraigning official reference to the conduct of other Members. The gentleman's time has expired.

Mr. McHENRY. Mr. Speaker, it is in reference to a reported incident that is covered by ABC News.

The SPEAKER pro tempore. The gentleman's time has expired.

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