Thank you. Thank you very much. Thank you very much. Thank you. I really appreciate that. Thank you very much.I want to thank (Sarah) and her daughter (Madeline) for that wonderful introduction and for (Sarah’s) commitment to the agenda that she cares so deeply about.
And to all of you for joining with her in fighting for what you believe in in this country and doing it according to the rules and within the American system.
I want to thank also Ben Brandzel for being the emcee and for all the work he has done. Adam Ruben and Justin Ruben have also done a tremendous amount of work on this event. And Tom Matzzie, the Washington director and Eli Pariser is not here, but I want to thank him as well.
Four years and four months ago, the Supreme Court of the United States, in a bitterly divided five to four decisions, issued an unsigned opinion that the majority caution should never be used as a precedent for any subsequent case anywhere in the federal court system. Their ruling conferred the presidency on a candidate who had lost the popular vote and it inflamed partisan passions that had already been aroused by the long and hard fought election campaign.
I could not have possibly disagreed more strongly with the opinion that I read shortly before midnight that evening, December 12, 2000. But I knew what course of action best served our Republic.
And even though many of my supporters said they were unwilling to accept a ruling which they suspected was brazenly partisan in its motivation and simply not entitled to their respect.
Nevertheless, less than 24 hours later, I went before the American people to reaffirm the bedrock principle that we are a nation of laws not men. There is a higher duty than the one we owe to a political party, I said on that occasion, “This is America and we put country before party.”
The demonstrators and counter-demonstrators left the streets and the nation moved on as it should have to accept the inauguration of George W. Bush as our 43rd president.
Having gone through that experience, I can tell you, without any doubt whatsoever, that if the justices who form the majority in Bush versus Gore had not only all been nominated to the court by a Republican President but had also been all confirmed by only Republican Senators and party line votes, America would not have accepted that court decision.
Moreover, if the confirmation of those justices in the majority had been forced through by running a rough shod over 200 years of Senate precedents and have been engineered by craft partisans’ decisions on narrow party line votes to break the Senate’s rule to procedure, then no feat imaginable could have calmed the passion arousing our country.
As Aristotle once said of virtue, respect for the rule of law is one thing, it is indivisible. And so long as it remains indivisible, so will our country. But if either major political party is ever so beguiled by a lust for power, then it abandons this unifying principle, then the fabric of our democracy will be torn.
The survival of freedom depends upon the rule of law. The rule of law depends in turn upon the respect each generation of Americans has for the integrity with which our laws are written, interpreted, and enforced.
That necessary respect depends not only the representative nature of our legislative branch but also on the deliberative character of its proceeding.
As James Madison envisioned, ours is a deliberative democracy. Indeed, its deliberative nature is fundamental to the integrity of our social compact. Because the essential alchemy of democracy whereby just power is derived from the consent of the governed can only occur in a process that is genuinely deliberative.
Moreover, it is the unique role of the United Sates Senate, much more than the House of Representative to provide a forum for deliberation, to give adequate and full consideration to the strongly held views of the minority. In this case, the minority is made up of 44 Democratic senators and one independent senator.
And it is no accident that our founders gave the senate the power to pass judgment on the fitness of nominees to the judicial branch because they knew that respect for the law, also depends upon the perceived independence and integrity of our judges.
And they wanted those qualities to be reviewed by the more reflective of our two bodies of congress.
Our founders gave no role to the House of Representatives in confirming Federal Judges if they had believed that a simple majority was all that might be needed to safeguard the nation against unwise choices for the judiciary by a partisan present, they might well have given the house as well as the senate the power to vote on judges.
But they gave the power instead to the senate, a body of equal. Each of whom was given a term of office three times longer than that of a representative precisely in order to encourage a reflective frame of mind, a distance from the passions of the voters and the capacity for deliberative consideration.
They knew that the judges, sent to the senate would have confirmed serve for life. And that therefore their confirmation should follow a period of advice and consent in which the senate served as an equal partner with the executive.
Alexander Hamilton in Federalist number 78 wrote that the independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effect of those ill-humors, which in the art of designing men, have a tendency in the meantime to occasions, dangerous innovations in the government, and serious oppressions of the minority party in the community.
When James Madison introduced the Bill of Rights for consideration, he explains, independent tribunals of justice will consider themselves the guardians of our rights, an impenetrable bulwark against every assumption of power in the legislature or executive.
So, it is not as a democrat but as an American that I appeal today to the leadership of the majority in the senate to halt their efforts to break the senate rules and instead protect a meaningful role in the confirmation of judges and justices for senators of both political party, in the American tradition, not in a partisan, mean-spirited proposal.
I say to them respectfully, remember that you will not always be in the majority.
But, much more importantly, remember what is best for our country regardless of which party is temporarily in the majority.
Many of us do know what it feels like to be disappointed with decisions made by the court but instead of attacking the judges with whose opinions we disagree, we live by the rule of law and maintain respect for the court.
As a result, I am genuinely dismayed and deeply concerned by the recent actions and statements of some Republican leaders to undermine the rule of law by demanding that the Senate be stripped of its right to unlimited debate where the confirmation of judges is concerned.
And on the part of some of them, even to engage in outright threats and intimidations against federal judges with whose philosophy they disagree even after a judge was murdered in Atlanta while presiding in his court room.
Even after the husband and mother of a federal judge were murdered in Chicago in retaliation by a disgruntled party to a failed lawsuit.
Even then, the Republican leader of the House of Representatives responded to rulings in the Terry Schiavo case by saying ominously, “The time will come for the men responsible for this to pay for their behavior.”
When the outrage following this comment worsened, Representative DeLay’s problems during the house ethic scandal, he claims that his words had been chosen badly but in the very next breath, he issued new threats against the same court when he said, “We set the courts, we can unset the courts, we have the power of the purse.”
In previous remarks on the subject, congressman DeLay had said and I quote “Judges need to be intimidated.” Adding that if they don’t behave and I quote “We’re going to go after them in a big way.”
Moreover, a whole host of prominent republicans have been making similar threats on a regular basis.
A Republican Congressman from Iowa added and I quote “Once their budget starts to dry up, we’ll get their attention. If we’re going to preserve the constitution” he went on, “we must get them in line.”
A Republican Senator from Texas directly connected what he calls the state of court house violence lately to his view that the – that unpopular decisions in his mind might be the explanation and he said in these words “I wonder whether there maybe some connection between the perception and some quarters on some occasions where judges are making political decisions yet are unaccountable to the public that it builds and builds to the point where some people engage in violence” end quote.
What a disgraceful comment.
One of the best known conservative political commentators openly recommended and I quote “Liberals should be physically intimidated” end quote.
The spokesman for the Republican Chairman of the House Judiciary Committee said and I quote “There just seem to be this misunderstanding there that our system was created with a completely independent judiciary.”
The Chief of Staff for another Republican Senator cried for mass impeachment by using the bizarre right wing theory, that the president can simply declare that any particular judge is no longer exhibiting good behavior in the present judgment and quoting again “Then the judge’s term has simply come to an end.” This official said. The president gives him a call and said “Clean out your desk, the capital police will be in to help you find your way home.” End quote.
The elected and appointed Republican officials who made these dangerous statements are reflecting an even more broadly held belief system on the part of some grassroots extremist organizations that have made the destruction of judicial independence the centerpiece of their political agenda.
The man who heads this family research council, the group that hosted that speech by the Senate Majority Leader last Sunday said and I quote “There’s more than one way to skin a cat and there’s more than one way to take a black robe off the bench.”
He had claimed that he’d had the meetings with Republican leaders and during those meetings, they discuss openly stripping the funding from certain courts whose rulings they didn’t like. And this man went on to say of the Republican leaders and I quote “What they’re thinking of is not only the fact of just making these courts go away and then recreating them” — in a different form I think he meant — “the next day but also de-funding them. Congress could use its appropriations authority he said to just take away the bench, all of its staff and he is just sitting out there with nothing to do.” End quote.
This is an un-American view. Another influential leader of one of these grassroots organization James Dobson who heads the Focus on the Family Group, focused his anger on the Ninth Circuit Court of Appeals and he said this, and I quote “Very few people know this, but the Congress can simply disenfranchise a court. They don’t have to fire anybody or impeach them or go through that battle, all they have to do is say the Ninth Circuit doesn’t exist anymore and it’s gone.”
Edwin Vieira, a speaker at their Conference on Confronting the so called Judicial War on Faith said that his bottom line for dealing with the Supreme Court came from Stalin. I’m not making this up. He said, and I quote “He (Stalin) had a slogan and it worked pretty well for him whenever he ran into difficulty: no man no problem.”
If we are a nation of laws not men, that Stalinist approach is so deeply antithetical to what our country is all about, it should be repudiated unanimously in both parties.
But through their word and threat, many of these Republicans are creating an atmosphere in which judges might well hesitate to exercise their independence for fear of congressional retribution or work.
It is no accident that this assault on the integrity of our constitutional design has been fueled by a small group claiming special knowledge of God’s will in American politics.
They even claim that those of us who disagree with their point of view are waging war against people of faith.
How dare they. How dare they.
Long before our founders met in Philadelphia in a convention, their forebearers and ours first came to these shores in order to escape oppression at the hands of Jesuits in the old world who mix religion with politics and claims dominion over both their pocketbook and their soul.
This aggressive new strain of right wing religious idolatry is actually a throwback to the intolerance that led to the creation of America in the first place.
James Madison warned us in Federalists Number 10 that sometimes, a religious sect may degenerate into a political factor.
Unfortunately the virulent factions now have submitted to changing the basic design of American Democracy. Evidently, wills enough political power within the Republican Party, to the dismay of men like Jack Danforth that they have a major influence over who secures the Republican nomination of president in the 2008 election.
It appears painfully obvious that some of those who have their eyes on that nomination are falling all over themselves to curry favor with this faction.
And they are the ones in this faction who are demanding the destructive constitutional confrontation now pending in the Senate. They are the ones willfully slicing the senate leadership to dance to their tune, forcing them to drive democracy to the (prejudice) that now lies before us.
I remember a time, not too long ago when senate leaders in both parties saw it as part of their natural responsibility to protect the senate against the destructive designs of demagogues who would subordinate the workings of our democracy to their narrow factional agenda.
Our founders understood that the way you protect and defend people of faith — and I am one, is by preventing any one sect from dominating. Most people of faith that I know in both parties have been getting a belly full of this extremist push to cope their political agenda in the religiosity and mix it up in their version of religion and politics and force it on everyone else.
They should learn that religious space is a precious freedom and not a tool with which to divide and conquer politically. It is a dangerous mixture.
I think it’s important to expose the fundamental flaw in the basic arguments of these zealots. The unifying theme now being pushed by this coalition is actually an American heritage, a highly developed political philosophy that is fundamentally at odds with the founding principles of the United Sates of America.
We began as a nation with a clear formulation of the basic relationships between God, our rights as individuals, the government we created in order to secure those rights, and the prerequisite for any power exercised by our government.
We hold these truths to be self-evident, our founders declared that all men are created equal, that they are endowed by their creator with certain inalienable rights.
But while our rights come from God, as our founders added governments are instituted among men, deriving their just power from the consent of the governed.
So unlike our inalienable rights, our laws are human creations that derive their moral authority from our consent to their enactment, informed consent given freely with in the deliberative processes of our self-governance.
Any who seeks to wield the powers of government without the consent of the people acts unjustly.
Over 60 years ago, in the middle of the Second World War, Justice Jackson wrote and I quote ” if there is any big star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” His words are no less true today.
The historic vulnerability of religious zealots to subordinate the importance of the rule of law to their ideological fervor is perhaps captured best in words given by the author of “A Man for all Seasons” Sir Thomas Moore, when Moore’s zealous son-in-law proposed that he would cut down any law in England that served as an obstacle through his hot pursuit of the devil.
Moore replied; “And when the last law was just shot down and the devil turns around on you, where would you hide? The law’s all being cut flat, this country is planted thick with laws, from coast-to-coast, man’s laws, not God’s. And if you cut them down, and you’re just the man to do it, do you really think you could stand up right in the winds that would blow then?”
The Senate Majority Leader reminds me of Moore’s son-in-law. They are now proposing to cut down a rule that has stood for more than two centuries as a protection for unlimited debate. That rule has been used for devilish purposes on occasion in American history, but far more frequently it has been used to protect the rights of a minority to make it safe. Indeed, it has often been sighted as a model for other nations struggling to reconcile the majoritarian features of democracy with a respectful constitutional role for minority rights.
Ironically a freshman Republican Senator who supports the party line opposition to the filibuster enforced by his party here at home recently returned from Iraq with an inspiring story about the formation of multi-ethnic democracy there.
He reported that he had asked a Kurdish leader in Iraq, is he worried that the majority Shiite would overrun the minority curve? And this senator proudly reported that the Kurdish leader responded, “Oh no, we have a secret weapon, the filibuster.”
Well, the Senate’s tradition of unlimited debate has been a secret weapon in America’s arsenal of democracy as well. It has frequently served to push the senate and the nation as a whole towards a compromise between conflicting points of view, to breathe life into ancient advice of the prophet Isaiah to come let us reason together.
To illuminate the argument for which the crowded busy House of Representative has no time or patience.
To afford any senator an opportunity to stand in the finest American tradition in support of a principle that he or she believes to be important enough to bring to the full attention of the entire nation.
In order to cut down this occasional refuge of a scoundrel, the leadership would cut down the dignity of the Senate itself, diminish the independence of the Legislative branch, reduce its power and accelerate a decline in its stature that is already far advanced.
Two-thirds of the American people reject their argument. The notion – the nation is overwhelmingly opposed to this dangerous breaking of the Senate’s rules. And so the leadership and the White House have decided to call it a fight.
The truth is that the United States Senate has confirmed 205, or over 95% of President Bush’s nominees, Democrats that held up, only 10 — less than 5%. Compare that with just 60 Clinton nominees who were blocked by Republican oppression between 2005 and between 1995 and 2000.
In fact, under the procedures used by Republicans during the Clinton-Gore Administration, far fewer than the 41 senators necessary to sustain a filibuster were able to routinely block the Senate from voting on judges nominated by the President.
They allowed Republican Senators to wave shadow filibuster to prevent some nominees from even getting a hearing before the Judiciary Committee. Other nominees were victims of shadow filibustering after receiving a hearing and were not allowed a voting committee. Still others, reported out of this committee, were filibustered in a shadow procedure and not allowed a vote on the Senate floor.
To put the matter in perspective, when President Clinton and I left office, there were more than 100 vacant judge seats largely due to Republican (obstructionist passion). Ironically, near the end of the Clinton-Gore Administration, the Republican Chairman of the Senate Judiciary Committee said, and I quote, “There is no vacancy crisis. And a little perspective clearly belies the assertion that 103 vacancies represent a systematic crisis.” End quote.
Comically, soon after President Bush gets office, when a number of vacancies had already been meaningfully reduced, the same Republican Committee Chairman sounded a shrill alarm. “Because of the outstanding vacancies,” he said, and again, I quote “we’re reaching a crisis in our Federal Courts.”
Now, the number of vacancies today is lower than it has been in many years. Forty-seven out of 877 judges and for the majority of those vacancies, the President has not even sent a nominee to the Senate.
And yet still, the Republican drive for one-party control leads them to cry over and over again, “Crisis, crisis in the courts.” It hypocritical and it is simply false.
Republicans have also claimed (partisans) generously. The filibustering of judicial nominees is unprecedented. History, however, belies their claim.
I served in the Senate for 8 of my 16 years in Congress and had presided over the Senate for 8 more years in my capacity as Vice President. Moreover, my impressions of the Senate go back even farther because when I was growing up, my Father was a Senator.
And from that perspective, I had listened with real curiosity to some of the statements made during the current debate. For example, I have heard the Senate Majority Leader, who’s from my home state and didn’t know better, say that “No court nominee has even been filibustered before.”
But I vividly remember. Not only the dozens of nominees sent to the Senate by President Clinton who were denied a vote and filibustered by various means, I also remember in 1968 when my father was the principal sponsor of another Tennessean, Abe Fortas, who was nominated to be Chief Justice of the Supreme Court by President Lyndon Johnson, Fortas was filibustered and denied an up or down vote; the cloture vote was on October 1, 1968. It failed 45 to 43. President Johnson was forced by the filibusters to withdraw the nomination. Never before in history? Hello?
Repeating it doesn’t make it so. My father – my father’s Senate colleague and friend from Tennessee, Howard Baker, said during that filibuster, and I quote “On any issue, the majority of any given moment is not always right.” End quote.
And no Democrat would take issue with that statement then or now. It is part of the essence of the United States Senate; it is part of the American way. This fight is not about responding to a fight; it is about the desire of the Administration and the Senate leadership to stifle debate to get what they want when they want. It is – what is involved here is a power grab, pure and simple.
It’s pretty obvious. And what makes it so dangerous for our country is their willingness to do serious damage to our American democracy in order to satisfy their lust for a one-party domination of all three branches of Government. They speak nothing less than absolute power. Their grand design is an all-powerful Executive using a weakened Legislature to fashion a compliant Judiciary in its own image.
They envision a breakdown of the separation of powers. And in its place, they want to establish a system in which power is unified in the service of a narrow ideology serving a narrow set of interests. Their coalition of supporters include both right-wing religious extremists and exceptionally greedy economic special interests, both groups seeking more and more power for their own separate purposes.
If they were to achieve their ambition and exercise the power they seek, America would face the dwindling of an economic blueprint that eliminated most all of the safeguards and protections established for middle-class families throughout the 20th century and the complete revision of this historic installation of the role – of the rule of law from sectarian dogma.
One of the first casualties would be the civil liberties that
Americans have come to take or granted. Indeed, the first nominee they sent to be on that circle has argued throughout their legal career that America’s self government is the root of all social evils. Their radical view of the social security system for example, which she believes to be unconstitutional, is that it has created the situation where, in her own word, “Today’s senior citizens blithely cannibalize their grandchildren.” End quote.
The extreme language reflects an extreme philosophy. This family of seven judicial fanatics is now stopped at Democracy’s gates by 44 Democratic Senators, led by Senator Harry Reid, and a small but growing number of Republican Senators who have more independence than fear of their party’s disciplinarians.
If the rules of the Senate are broken and if these nominees should ever be confirmed, they would as a group, intervene in your families’ medical decisions and put a narrow version of religious doctrine above, not within, the Constitution.
They have shown by their prior record and statement that they would weaken the right to privacy and consistently favor special interests at the expense of middle-class America by threatening the minimum wage worker and consumer protection — your 48-hour workweek, your right to sue your HMO, and your right to clean air and water.
Because of the unique rights on tenure of Federal judges, their legitimacy normally requires that they be representatives of a broad consensus of the American people. Extremist judges, so unacceptable to a large minority of the Senate and, I believe, where their view is fully known to a large majority of the country, clearly fall outside this consensus.
And yet, today, Republican majorities in the Senate (repel them) and question the ability of the minority in this country to express dissent. This is in keeping with other Republican actions to undercut the legislative process. And in the filibuster side, they’re doing it with utter disregard for the rule of law so central to our democracy.
There is, of course, a way to change to the rules if they so choose. And that is to follow the rules. When they decide instead to break the rules and switch our democracy into uncharted, uncertain terrain, it was also often not to the liking of the American people. That’s what happened when they (approached) the President to pass special legislation in the Terry Schiavo case, playing politics with this Schiavo family tragedy. And the overwhelming majority of Americans in both political parties told the President and the majority in the Congress that they strongly disagree with their extremist approach.
And now, all of the new public opinion polls show an overwhelming majority of the American people are opposed to this current effort to cripple the Unites States Senate, (this vision) in our constitutional framework and destroy the principle of unlimited debate.
But the Congressional Republican leadership and the White House are so evidently beholden to the extremist ideals that they feel like they have to give them what they want and do what they say.
One reason that the American people are upset about what the leadership is doing is that while they’re wasting time on this extremist agenda and doing acts of (unintelligible), they are neglecting issues such as crisis in the cost and unavailability of healthcare, the state of our environment, the difficulty middle-class families are having making ends meet.
Our founders understood that there is in all human beings, a natural instinct for power. The revolution they led was precisely to defeat the all-encompassing power of a tyrant thousand of miles away.
They knew that what – they knew then what Lord Atkins summarized so eloquently a hundred years later that power tends to corrupt and corrupt – and absolute power corrupts absolutely.
They knew that when the role of the (liberated) Democracy is diminished, passion are less contained, less (counts) within the carefully-balanced and separated powers of our Constitution.
Let’s check by the safeguards inherent and our founders design. And the vacuum left is immediately filled by new forms of power more arbitrary in their exercise and derives less from the concern on the governed and more from the unbridled passion of ideology, ultranationalist sentiments, racists, tribal, and sectarian fervor, and most of all, by those who claim a unique authority granted directly to them individually by the Almighty.
That is precisely – that is precisely why our founders established a system of checks and balances — to prevent the accretion of power in any one set of hands, either in an individual or a group, because they were wary of what Madison famously called factions. Yet today, that is precisely what a group of radical Republicans is trying to do. And they threaten a fundamental break with a system that has served us well for 230 years and served as a model for the rest of the world.
In the words of columnist, George Will, and I quote “The filibuster is an important dissent of minority rights, enabling a democratic government to measure and respect not merely numbers but also intensity in public controversy. Filibusters enable intense minorities to slow down the governmental juggernaut. Conservatives who do not think Government is sufficiently inhibited should cherish this blocking mechanism.”
Senator John McCain echoed George Will’s sentiments, reminding his conservative colleagues that they won’t always be in the majority. And he added, “Do we want a bunch of liberal judges approved by the Senate of the United States with 51-50 votes if the Democrats are in the majority? Well, the rules and traditions of the Senate all derive from the desire to ensure that the voice of the minority can be heard. The filibuster has been at the heart of this position for more than two centuries and yet never before has anyone felt compelled as I to eliminate it.”
The proposal from the Senate Majority Leader to abolish the right of unlimited debate is a poison pill for America’s Democracy.
It is the stalking horse for a dangerous American heresy that would substitute persuasion on the merits with bullying and an effort at partisan domination.
My friends, I call upon every Senator and especially those Republican moderates, who are even now considering what is right and what is wrong, looking to the Constitution and looking to their conscience, weighing all factors against the history of our great Republic, to vote down the majority leader’s proposal to eliminate unlimited debate in the United States Senate.