Hi! It's Crystal from Senator Kennedy's office again.
Senator Kennedy just made a fantastic speech on the floor about the nuclear option and the nominees President Bush has put before the Senate. I put some of his comments after the jump - he went through how the Republicans will be breaking Senate rules if they move forward with the nuclear option, and why the Republicans are even attempting such a bold maneuver. He also goes back to that important question - is this the best we can do?
Please recommend this diary so that others will see what the Senator had to say, and CONTACT YOUR SENATOR to let him/ her know you oppose this assault on Senate Rules and tradition.
To read the speech in its entirety, click here.
Certainly, this is no time to reduce the ability of the Senate as a whole, or individual Senators, to assure judicial independence. We need independent courts more than ever. We know that activist groups and their supporters in Congress are putting heavy and well-organized pressure on the courts:
- They want to restrict rights and liberties in the name of national security,
- They want to subordinate individual interests to powerful economic interests,
- They want to intrude government into sacrosanct areas of family and religion.
- They want to reverse longstanding precedents that allow the nation to realize its full potential.
When one party controls the levers of power in both the White House and Congress, and that party feels beholden to a narrow ideological portion of its base, the independence of the courts is crucial. Despite its razor-thin victory last year, following its especially narrow victory in the election in 2000, which was decided by a 5-4 vote by the Supreme Court, the Republican party evidently believes it has absolute power. House Republicans yield to the White House, bending House rules to the breaking point to give the President his way. The President personally picked the Senate majority leader and through him seeks to impose unprecedented strict party discipline on Republican Senators.
Now the President wants to pack key appellate courts, in a trial run for doing the same to the Supreme Court, with activist ideological judges he knows could not possibly command a bipartisan consensus in the Senate. It is clear from their records and their resumes that they have been selected precisely because the most radical forces on the Republican right believe they will advance their ideological agenda on the bench.
- The Republican argument to the contrary is irrational, incomprehensible and hypocritical:
- They say that if we dare to use the well-established Senate rules to preserve the independence of the courts, then they are entitled to break the Senate rules to stop us.
- They assert - and this is the keystone of their argument -- that we are abusing the filibuster by actually using it, even on a very few nominations.
- They seem to say it's permissible to filibuster if you already have a majority of Senators with you - that is, if you don't need to filibuster. But it's not permissible to filibuster if you are in the minority - which is, of course, the only time you need to filibuster.
- They say you are permitted to filibuster if you don't have the votes to prevent cloture, but are not permitted to do so if you do have the votes to prevent cloture.
- In short, their argument seems to be that you are allowed to filibuster only when you don't need it or can't make it stick. In a word, their argument is absurd.
- Whenever President Bush decides he'd rather pick a fight than pick a judge, then he is likely to be creating the need to filibuster. There is no need for a filibuster if the President takes the "advice" of the Senate seriously, under the "advice and consent" clause of the constitution, when he nominates lifetime judges for important courts. President Clinton did so with Senator Hatch, the Republican chairman of the Senate Judiciary Committee at the time, on his nominations of Justice Ginsburg and Justice Breyer in the 1990's, and other Presidents have done so throughout history.
The recent compromise suggested by Senator Frist would allow the practice to continue for legislation, and for all cabinet and other executive branch appointments, and even for lifetime federal district judges. None of these categories is constitutionally distinguishable from federal appellate court nominations and Supreme Court nominations under the Senate rules. If anything, Article III lifetime appellate judges deserve the filibuster's extra insulation from executive abuse even more than short-term cabinet and diplomatic appointments, let alone legislative actions that can be reversed by future legislation.
In short, neither the Constitution, nor Senate Rules, nor Senate precedents, nor American history, provide any justification for selectively nullifying the use of the filibuster. Equally important, neither the Constitution nor the Rules nor the precedents nor history provide any permissible means for a bare majority of the Senate to take that radical step without breaking or ignoring clear provisions of applicable Senate Rules and unquestioned precedents.
Here are some of the rules and precedents that the executive will have to ask its allies in the Senate to break or ignore, in order to turn the Senate into a rubber stamp for nominations:
- First, they will have to see that the Vice President himself is presiding over the Senate, so that no real Senator needs to endure the embarrassment of publicly violating the Senate's rules and precedents and overriding the Senate Parliamentarian, the way our presiding officer will have to do;
- Next, they will have to break Paragraph 1 of Rule V, which requires 1 day's specific written notice if a Senator intends to try to suspend or change any rule;
- Then they will have to break paragraph 2 of Rule V, which provides that the Senate Rules remain in force from Congress to Congress, unless they are changed in accordance with the existing rules;
- Then they will have to break paragraph 2 of Rule XXII, which requires a motion signed by 16 Senators, a two-day wait and a 3/5 vote to close debate on the nomination itself;
- They will also have to break Rule XXII's requirement of a petition, a wait, and a 2/3 vote to stop debate on a Rules change;
- Then, since they pretend to be proceeding on a constitutional basis, they will have to break the invariable rule of practice that constitutional issues must not be decided by the presiding officer but must be referred by the Presiding officer to the entire Senate for full debate and decision;
- Throughout the process they will have to ignore, or intentionally give incorrect answers to, proper parliamentary inquiries which, if answered in good faith and in accordance with the expert advice of the parliamentarian, would make clear that they are breaking the rules;
- Eventually, when their repeated rule-breaking is called into question, they will blatantly, and in dire violation of the norms and mutuality of the Senate, try to ignore the Minority Leader and other Senators who are seeking recognition to make lawful motions or pose legitimate inquiries or make proper objections.
By this time, all pretense of comity, all sense of mutual respect and fairness, all of the normal courtesies that allow the Senate to proceed expeditiously on any business at all will have been destroyed by the pre-emptive Republican nuclear strike on the Senate floor.
To accomplish their goal of using a bare majority vote to escape the rule requiring 60 votes to cut off debate, those participating in this charade will, even before the vote, already have terminated the normal functioning of the Senate. They will have broken the Senate compact of comity, and will have launched a preemptive nuclear war. The battle begins when the perpetrators openly, intentionally and repeatedly, break clear rules and precedents of the Senate, refuse to follow the advice of the Parliamentarian, and commit the unpardonable sin of refusing to recognize the minority leader.
Their hollow defenses to all these points demonstrate the weakness of their case: They claim, "We are only breaking the rules with respect to judicial nominations; we promise not to do so on other nominations or on legislation." No one seriously believes that.
Having used the nuclear option to salvage a handful of activist judges, they will not hesitate to use it to salvage some bill vital to the credit card industry, or the oil industry or the pharmaceutical industry, or Wall Street, or any other special interest. In other words, the Senate majority will always be able to get its way, and the Senate our founders created will no longer exist. It will be an echo chamber to the House, where the tyranny of the majority is so rampant today.
Our Republican colleagues also claim that "Senate Democrats have previously used majority votes to change the rules", so they can do it too. That spurious claim depends entirely on a pseudo-scholarly article by two Republican staffers, who happen, unintentionally to have provided enough facts to rebut the claim. As Senator Byrd and other experts on the rules have shown, the instances they rely on do not involve breaking the rules or changing the rules. They were narrow and minor interpretations to fill gaps in existing rules, but always consistent with the underlying rules and their purposes, and always in keeping with the regular procedures of the Senate. They never allowed debate on any nomination or bill to be cut off without the required cloture vote.
The Nuclear Option, in contrast, involves major changes in the essence of key rules, without following the required procedures for changing the rules.
Why would our Republican colleagues try to do this? The simplest answer is that they will do it because they think they can get away with it.