Transportation Equity Act: A Legacy for Users - II

TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS -- (Senate - May 16, 2005)

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NUCLEAR OPTION

Mr. President, I will change the subject to the subject on everyone's mind other than the transportation bill, probably more on our minds than just about anything else, and that is the upcoming nuclear option. Right now, we are on the precipice of a constitutional crisis. We are about to step into the abyss. I want to talk for a few minutes why we are on that precipice and why we are looking into the abyss.

Let me first ask a fundamental question: What is the crisis that calls for the undoing of two centuries of tradition? What is the crisis that requires such an unprecedented parliamentary sleight of hand? What is the crisis that calls for a response that is so controversial and extreme that Senator Lott coined the term ``nuclear option'' to describe it?

Is it that President Bush has had the terrible misfortune of having only 95 percent of his judicial nominees confirmed? That is, 208 out of 218? It can't be that. Every President should have the luck of George Bush and have so many nominees confirmed to the bench. I might also add, in part because of this high confirmation rate, court vacancies at the end of last session were at their lowest rate in 14 years. So it can't be either vacancies on the bench or overwhelming rejection of the President's nominees because neither is the fact.

Is it that the Constitution, as my strict constructionist friends across the aisle like to argue, requires an up-or-down vote on every judicial nominee? Is that the crisis? No, Senator Frist acknowledged as much last week when he conceded, after a question from Senator Byrd, that there was no such language in the Constitution.

In fact, it is a great irony that those on the other side of the aisle who are seeking this nuclear option in the name of strict construction are being activists, as they call it, because they are expanding the Constitution, reading in their own views in the Constitution when the very words do not exist.

It is my understanding that is what the Constitution-in-exile school holds; that is, what the strict constructive school of Justice Scalia holds. If the words are not in the Constitution, you do not read them in.

Is the word ``filibuster'' in the Constitution? No. Are the words ``majority vote,'' ``up-or-down vote'' in the Constitution? Absolutely not. That is not the crisis, either.

Let me ask again, Why are we on the brink of destroying what is good in the Senate and destroying whatever is left of good will in the Senate? Is it that the public, in high dudgeon, is demanding this radical rule change? Are Republican Senators merely doing their jobs as legislators, responding to a generalized public calling for the abolition of the filibuster? Clearly not.

It is not the American people at large who are demanding detonation of the nuclear option. Indeed, in poll after poll, first, people say they do not know what it is when asked, and then when it is described to them, the people have made clear they believe the filibuster is an important check and balance to be preserved, not vaporized.

Most recently, for instance, according to a Time magazine poll, the American people are against the nuclear option 59 to 28.

Nor is it rank-and-file Republicans who are clamoring for an end to filibusters on judges. A Wall Street Journal poll showed 41 percent of Republicans support giving the Democrats the right to keep the filibuster going. They, like most Americans, are wondering, and rightly so, why we are talking more about the nuclear option in the Senate than about nuclear proliferation in North Korea.

Nor is it the business establishment--clearly, usually, a conservative constituency--that is calling for a change in the rules. To the contrary, the business community wants the Senate to get busy addressing important issues they believe will get the economy back on track. The Chamber of Commerce and many other business groups have either publicly or privately stated their opposition to invoking the nuclear option.

Is it the ``gray heads'' of the conservative movement who are calling for this? No. By and large, elder statesmen from the conservative movement are not demanding this radical move. Many, including such leading figures as George Will and Ken Starr, have criticized the nuclear option and urge restraint--so have Senators Armstrong and McClure, hardly beacons of a liberal influence in this country or in the Senate.

So if there is no constitutional requirement, and there is no vacancy disaster, and there is no public clamoring for the extinguishing of the minority rights to filibuster, why are we here? Why are we on the edge of the abyss? Why are we--at least the majority--being motivated to plunge this Senate, this city, and this country into a constitutional crisis, into an end of what is ever left of comity in the Senate, which is the body that has at least some comity left?

Well, let me tell you why I fear we are here. We are here, I fear, because the nuclear option is being pushed largely by the radioactive rhetoric of a small band of radicals who hold in their hands the political fortunes of the President and a minority of sitting Senators who would be President. The once conservative Republican Party has, I believe, been hijacked by activist, radical, rightwing ideologues who are exerting too much influence over Senators.

These ideologues have taken to intimidating and even threatening the independent judiciary. They have, among other things, compared judges to the KKK and claimed that the independent judiciary is worse than al-Qaida. Unfortunately, these extreme groups are exerting disproportionate influence on certain Senators from the other side who--because of pure political pressure--are proceeding at pace with the nuclear option.

There is, to be sure, much irony and hypocrisy in this dance. It is particularly perverse that many of my colleagues purport to preserve the principle of majority rule by doing the bidding of a distinct, but politically powerful, minority.

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It seems the only conservatives who are strongly in favor of the nuclear option--who are pushing it--are some Senators who might wish to run for President.

Now, to hear the tirades of those demanding the nuclear option is spine tingling.

Conservative activist James Dobson compared the nine Supreme Court Justices to the Ku Klux Klan's men in robes.

Pat Robertson said the threat posed by judges was ``more serious than a few bearded terrorists who fly into buildings.''

Conservative lawyer-author Edwin Vieira said Justice Kennedy should be impeached and invoked Joseph Stalin's murderous slogan, which he said worked very well for him:

[W]henever he ran into difficulty: ``no man, no problem.''

Do we hear any denunciation of this inflammatory rhetoric? No. Denunciations of heinous characterizations of independent judges? No.

Instead, Senators--some maybe with Presidential ambitions--are kowtowing to these extremists. When the Democratic Party kowtowed to extremists on the left, we paid the price. It is a lesson I think we have learned. It is a lesson that ought to be learned by my colleagues on the other side.

Now, let's try to examine the record. And this is the

No. 1 point I want to make. Look what conservatives are saying, conservatives not running for President or running for office, but people whose conservative credentials go unchallenged. These are not moderates. These are not liberals. They are true conservatives, and a chorus of their voices is speaking out against the nuclear option.

True conservatives, independent thinkers who are not under pressure from the likes of Tony Perkins and Pat Robertson and others, have eloquently made the case against the nuclear option. These conservatives have two things in common: They were strongly in favor of George Bush for President, and they are strongly against the nuclear option.

Here are some of the names. Many leading conservative commentators and thinkers are against it, such as George Will and Kenneth Starr. Many former Republican Senators are against it, such as Senator Armstrong, Senator McClure, Senator Wallop, Senator Simpson. Many editorial boards that endorsed George Bush for President are against it--the Dallas Morning News.

I recognize that in these polarized times maybe the words of a Democratic Senator from New York will have little sway across the aisle, but what about the words of some icons and leaders of the conservative movement?

I urge my colleagues who have not yet made up their minds and been committed to the nuclear option to heed these words. Most of those who have not made up their minds are far more moderate than the voices that we listed here, but they should be listened to in this instance. It is rare that you get so many conservatives--not in office, not under the thumb of these extreme, small-numbered groups--but rarely do you get such a chorus.

Here are the arguments of the conservatives. The conservatives understand that destroying an important tradition of the Senate is not conservative. Conservatism has a long tradition in American politics. I agree with some of its tenets and disagree with many others. But true advocates and students of that tradition recognize better than anyone the violence that the nuclear option does to conservative principles.

Ken Starr said in one leading magazine:

It may prove to have the kind of long-term boomerang effect, damage on the institution of the Senate, that thoughtful Senators may come to regret.

How about former Senator Armstrong? He said this:

Having served in the majority and in the minority, I know that it's worthwhile to have the minority empowered. As a conservative, I think there is value to having a constraint on the majority.

Let me repeat that: ``As a conservative, I think there is value to having a constraint on the majority.''

Jim McClure and Malcolm Wallop:

It is disheartening to think that those entrusted with the Senate's history and future would consider damaging it in this manner.

Second, these conservatives realize that the Constitution, even in expansive reading, let alone strict constructionism, does not support the nuclear option.

In advocating for the nuclear option, Republicans in the Senate have abandoned conservative principles for convenient propaganda. In doing so, however, they are committing a level of intellectual hypocrisy that we have not seen since Bush v. Gore. To make sure that strict constructionist judges are placed on the bench, the nuclear advocates are reading the Constitution so broadly and elastically that it would make the most activist judge cringe. Do not take my word for it.

Mr. President, I know my colleague is getting ready to speak, and I am almost finished. I appreciate his indulgence.

Here is what George Will said:

Some conservatives say the Constitution's framers ``knew what supermajorities they wanted''--the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc.; therefore, other supermajority rules are unconstitutional.

These are the words of George Will, not CHUCK SCHUMER.

But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted.

Some conservatives say there is a ``constitutional right'' to have an up-or-down vote on nominees. But in whom does this right inhere: The nominees, the President? This is a perverse contention, coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights.

That is George Will, not CHUCK SCHUMER.

Here is what Stephen Moore, founder of the arch conservative Club for Growth says:

Eviscerating the filibuster would violate the spirit of the Constitution and endanger our rights as individuals against excessive governmental power.

These conservatives also understand that no party lasts forever in the majority and the nuclear option may come back to haunt Republicans. For short-term political gain, Republican Senators are willing to trash a tradition that will hurt themselves in the long run.

Former Senator Simpson recognizes this:

[T]here isn't a question in my mind that when the Republicans go out of power and they, they're looking for protection of minority rights, they're going to be alarmed and saddened.

Finally, the conservatives also understand that once triggered, there will be no stopping the continued erosion of the filibuster. The legislative filibuster is also at great risk. Listen to former Senators McClure and Wallop:

It is naive to think what is done to the judicial filibuster will not be done to its legislative counterpart, whether by a majority leader named Reid, or Clinton, or Kennedy.

Here is David Hoppe, former chief of staff to Senator Lott:

That's the problem with the nuclear option, because it will not stop there. The next step when somebody needs it will be to get rid of the filibuster on legislative issues.

In conclusion, we are here. We are at a defining moment in the world's greatest deliberative body. Now, this week, in the next few weeks, will enough of my colleagues across the aisle act with courage and conviction? Will enough of them resist the extremist entreaties of a tiny but vocal minority who only want their way 100 percent of the time, not 99, not 98, not 97? Will enough of them pay heed to the arguments made by independent conservatives of their own party, whether it is George Will or Bill Armstrong or Ken Starr or so many of the others I mentioned?

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