Executive Session

EXECUTIVE SESSION

Mr. SCHUMER. I said, we have had some misstatements repeatedly by the Senator from Virginia and the Senator from Minnesota about how many have been filibustered. There have been a bunch who have been filibustered, it is just that we happened to succeed. Isn't that correct?

Mr. HATCH. I am not going to yield at this time to the distinguished Senator. I will yield to the distinguished Senator from Tennessee.

BREAK IN TRANSCRIPT

Mr. SCHUMER. I thank the Chair.

Mr. President, I listened to the debate, and I would say basically, kindly, it is just a repetition of arguments we have heard over and over again. A little less kindly, sound and fury signifying nothing.

I tried to ask some questions of the other side a few minutes ago and was rebuffed. It is no wonder because we are not having a coming together here. We are not having an elucidation. What we are having is a rehash of arguments we have heard over and over again.

It is not going to change anything, I say to my colleagues. It is not going to change a thing. There is only one way to change things, and that is for the President and the other side to follow the Constitution and take the words "advise and consent" seriously. If they think we can be bludgeoned, if they think more talk radio makes a difference, it is not going to make a difference. In fact, I would argue to my colleagues, this debate is helping us because the hard-right media, the talk radio, and the others don't mention this fact.

This chart is worth 30 hours of palaver, of gibberish. The Wall Street Journal today has an editorial with the pictures of the six. Do they mention how many have been approved? They don't dare. They have had editorial after editorial and some of them criticize me. I write letters, and they don't publish them. You would think if they are going to do a whole editorial being critical of someone, they would give them the courtesy of publishing a letter. They are not interested in the debate of facts. No.

At least we are getting a chance to show this. One picture is worth a thousand words; one chart is equal to all the talk we have heard. Nothing will change that.

This is actually going to help our side. It is backfiring. I know many of you on the other side didn't really want to do this, but I guess I have to say to those of you who argued for it, thanks.

I heard from a constituent earlier tonight. They were watching the debate. I said: Did you know about 168 to 4? No. Most people don't because the big storm on this has come from a small narrow band on the hard right. We know the other side has to pay attention to them. They accuse us of being subject to beltway liberal groups. There are groups on both sides. They both feel as passionately.

I don't know why one group is any better than the other, but the group on that side has made this an issue. They just can't stand the fact that four have been rejected-four.

I begin by saying, better be careful about what you wish for because this at least is an even airing of the facts. What I would like this to be is a real debate. I would like us to ask each other questions. I would like us to challenge each other's assumptions and misstatements. But it is obviously not happening. Obviously not at all.

Mr. CORNYN. Will the Senator yield for a question?

Mr. SCHUMER. I will be happy to yield for a question. I give the Senator from Texas the courtesy I was not given.

Mr. CORNYN. I would like to ask the Senator from New York, of the individuals he has listed on his chart, isn't it true that all but Judge Fortas were ultimately confirmed to the positions to which the President appointed them?

Mr. SCHUMER. Yes, reclaiming my time, that is exactly the point. I haven't gotten up to this chart, but I will go to it now.

Mr. CORNYN. If I may-

Mr. SCHUMER. Let me please answer my colleague's question. The bottom line is the other side has said-and in the chart of the Senator from Pennsylvania, he was careful. He said "successfully filibustered, none." Then when it was repeated by many of the other colleagues, they said there has never been a filibuster.

As my good colleague from Nevada pointed out, there have been filibusters. Here are some of the judges who have been filibustered.

Don't claim there has never been a filibuster. In fact, I would ask anyone on the other side, when you filibustered just 3 years ago, did anybody object and say the Constitution is being defiled? Judge Berzon was filibustered in 2000. Judge Paez was filibustered in 2000. Judge Sarokin was filibustered in 1994.

I didn't hear the outcries from the Senator from Pennsylvania or others that filibuster is constitutionally wrong. Oh, no. Oh, no. So the one difference-

Mr. CORNYN. Will the Senator yield?

Mr. SCHUMER. Let me finish-the one difference-and then I will be happy to yield for a question-is this. We succeeded. Do you know why we succeeded? I will tell you why. Because President Clinton made an effort to nominate moderate judges, by and large; because President Clinton did far more of the advise-and-consent process than President Bush, and President Clinton was able to persuade 15 or 20 Members from the other side to finally vote for these judges.

We have had no advice, meaning consultation. I am consulted in New York, and we have filled every vacancy. On the main court of appeals nominees, there is no advise, and that means there isn't consent.

I would argue this to my good friend from Texas: No President has chosen judges through an ideological prism more than President Bush. He said it when he ran, to his credit. He was going to appoint judges in the mold of Scalia and Thomas, two of the most conservative judges we have. Some of them are to the right of Scalia and Thomas. Clearly, Justice Brown is. I believe Miguel Estrada was. He has appointed judges ideologically. Then we are supposed to not challenge that ideology? It is two-faced. It is hypocritical.

Most of President Clinton's nominees-not all, but most-were not legal aid lawyers or ACLU attorneys. They were partners in law firms; they were prosecutors. Anyone who has followed this knows President Clinton decided to nominate, by and large, decidedly moderate judges. That is why the filibusters were not successful.

Our filibusters are successful, frankly, not because of any of us. It is because President Bush has decided to nominate people from the hard right so that he gives us no choice. Nothing would please me more-and I am one of the leaders in this-nothing would please me more than for Counsel Gonzales to call some of us in and say: How do we come to some kind of
comity? Guess what, the same thing that happened in New York and a few other States will happen nationally.

Will most of the judges be far more conservative than me? Yes. Will many of the judges disagree with my view on choice or affirmative action or anything else? Yes. But at least we will feel they will interpret the law, not make law.

As my good friends know on the other side, the Constitution requires interpretation of the law, and ideologues, far left or far right-I don't like far-left judges, either-want to make law because they feel they are so right and the country is so wrong, and so they try to make law.

Mr. CORNYN. Will the Senator yield-

Mr. SCHUMER. The Founding Fathers in their wisdom-I will yield in a minute, and maybe the Senator would ask the others on their time to yield to us as well. Then we can get some debate here and maybe make a little progress instead of just talking past one another.

The bottom line is this: We are defending the Constitution. We are saying there should be some balance. President Bush didn't win by a landslide. This Senate is not 62 to 38 or 70 to 30. This country is narrowly divided, and that means when laws are made, they tend to move to the middle. The prescription drug law is an example right now. But judges don't have to move to the middle. Once they are appointed, they are there for life, and they have virtually absolute power over cases. All we have is the constraints within their own heads.

My good, learned friend from Texas knows that in the "Federalist Papers," Alexander Hamilton said ideology should play a role. My good friend from Texas-he is a student of history-knows one of the first nominees of George Washington, John Rutledge, was rejected because of his views on the Jay Treaty. My good friend knows in that Senate that rejected John Rutledge were a good number of the Founding Fathers. So this is not new. This is not made up. In fact, what is new is the view on the other side that if they don't get their whole way, they want to change the rules. If there had been for 20 years protests from many of my colleagues who sat in those seats in 2000 and 2000 and 1994 and 1994 when there were filibusters, maybe we could feel there was some genuine feeling here, some genuine fidelity. Instead, I would argue most of those who study logic know that things can be made; that the weakest arguments are outcome determinant. In other words, you look for the outcome you want and then you make the argument. That, I would argue, with all due respect, is what my colleagues are doing.

The bottom line is filibusters were not an abomination to the Constitution when President Clinton nominated. And, by the way, in the inverse case, holding back judges from even getting a vote in the Judiciary Committee was perfectly OK. That didn't unbalance the Constitution.

What my colleagues have done is taken the result they want, which is 172 to 0, and then come up with an argument that all of a sudden filibusters are bad. Blocking judges can't be bad because look at all these judges the other side blocked and didn't even allow to come up for a vote. So it can't be that blocking judges is wrong. But it also can't be that filibusters are wrong because they did them in recent history. They just didn't succeed.

Now they have this twisted logic that only a successful filibuster is bad. That doesn't make much sense. I am sure my good colleague from Alabama wishes his filibuster had succeeded. He felt it passionately. He felt Judge Berzon and Judge Paez were too far over, maybe.

Mr. SESSIONS. Will the Senator yield for a question?

Mr. SCHUMER. I will be happy to yield since I mentioned the Senator's name.

Mr. SESSIONS. Did the Senator know that although the Senator from Alabama strongly opposed Berzon and Paez and voted against both those nominees, that there were holds on those nominees, and the Republican leader, Trent Lott, moved for cloture to move the nominations forward, and this Senator, as did Trent Lott, voted for cloture to bring an up-or-down vote and voted against the nomination although we-

Mr. SCHUMER. Let me reclaim my time.

Mr. SESSIONS. That is not the kind of filibuster we have going on today.

Mr. SCHUMER. I simply say to my colleague-

The PRESIDING OFFICER. The Senator from New York controls the time.

Mr. SCHUMER. Thank you, Mr. President.

What I said before was, and I say it again, I did not hear an outcry about filibustering being wrong or being unconstitutional or being evil when these judges came up. I didn't see people get on the floor for 30 hours. There were four of them in the last 6 years. I didn't even hear people get on the floor for 3 hours and take up time to say why filibustering is bad.

Do you know why they say it is bad now? Because we have succeeded. Again, why have we succeeded? Because President Bush has changed the way people are appointed to the judiciary. He has nominated judges through an ideological prism to a far greater extent than any President in history.

I say to my colleagues, do you want to get it to be 172 to 0? Tell the President to sit down with us, to advise, to come to some compromise, and then you will probably get 172 to 0. But as long as this process continues where there is no advise and consent, as long as this process continues where certain judges who believe decisions that have been discredited 50 and 100 years ago should be law, we have no alternative but to do what we are doing.

Mr. REID. Will the Senator yield for a question?

Mr. SCHUMER. I will be happy to yield to my colleague for a question.

Mr. REID. Does my friend from New York support the unanimous consent requests-plural-that have been entered today on the record and rejected by the majority, first of all to extend up employment benefits? Does the Senator from New York
believe we would be better advised to go forward on something like that than on these four people who do have a job?

Mr. SCHUMER. I say to my colleague, most definitely, because, first, not only do these people have a job, but they shouldn't be on the bench.

Mr. REID. I ask another question. Does the Senator also agree that rather than going through 30 hours of this-first of all, with all due respect, everybody, including me, everything that has been said so far tonight in these 5 hours has already been said.

Mr. SCHUMER. More than once.

Mr. REID. And I am sure for the next 25 hours, there will still be nothing new. Having said that, I ask my friend from New York, does he think it would be a good idea that the unanimous consent requests I proffered where I asked to do something about the minimum wage right here on the Senate floor tonight, does the Senator think that would be a good idea to help the American people?

Mr. SCHUMER. I say to my colleague, it would be an excellent idea. This debate, as I mentioned earlier, is not going to accomplish a thing. In fact, if it accomplishes anything, since we haven't had the media drumbeat on our side the way the others have, it is going to help us; it is going to get this very fact out. Why not have a debate on something we haven't debated, such as minimum wage, such as health care, such as energy policy, instead of having two people decide energy policy. Nobody knows what the conference report will be. Let's have a debate about that.

Here we are repeating over and over and over and over again the arguments that have been made and made and made.

The bottom line, I say to my good colleague from Nevada, is there are 100, 200, 300 better ways to spend 30 hours in the Senate than redebate these issues. If this is frustration on the other side because 4 of the 172 have been blocked, the solution is not to repeat the same arguments which we regard as specious. The solution is to come to the middle and compromise and talk to us, as we have done in certain States.

I say this to my colleagues: Stop using outcome-determinative arguments. Filibusters are fine when you do them. Only when we do them successfully are they no good. And blocking judges? That is just fine. You blocked so many more than we have. This argument is like trying to thread a needle: Blocking judges is OK; filibustering is OK; only successful filibustering is unconstitutional.

I doubt many legal scholars of any political persuasion would be able to sustain the contradictions in my friends' arguments from across the aisle.

The bottom line is simple: We believe advise and consent really means what it says.

The PRESIDING OFFICER (Mr. ENZI). The Senator has consumed his time.

Mr. SCHUMER. We believe keeping judges in the mainstream is within what the Founding Fathers wished us to do. I will have more to say in the next hour.

BREAK IN TRANSCRIPT

Mr. SCHUMER. Thank you, Mr. President.

First, I thank my colleague from California. She is feisty any time of the day but, not only feisty, on target. I very much appreciate her great work, particularly in bringing to our caucus's attention the problems with Judge Kuhl.

Now, I would like to review the bidding so far. First, we have had a lot of talking, virtually none of it new. Second, there have been repeated refusals to go on to issues that we do not talk about, such as minimum wage, loss of jobs, health care. Third, we believe this debate is helping us because the rightwing radio and the rightwing groups have talked about their argument.

I mentioned the Wall Street Journal editorials that never mention this number, what anything fair would be. We are getting this number out: 168 to 4.

When I go to parades in upstate New York, conservative areas, they say: Why are you stopping the President's judges? I say: It is 168 to 4. They say: Never mind. Well, that is what this debate is doing. The American people are going to say: Never mind.

Finally, I think we have revealed how our colleagues' arguments are outcome-determinative. Lawyers will tell you they are the weakest arguments. You pick your outcome and then you determine it.

Are they against filibusters? No. Again, I will repeat my challenge: Let a Senator on the other side show me that they got up and demanded 30 hours or 3 hours or 5 hours when Members on their side attempted to filibuster Judge Barkett, Judge Sarokin, Judge Marsha Berzon, Judge Paez. Did anyone get up and complain? No.

So you are not against filibusters and you are not against blocking judges. Here they are. You have blocked a whole lot of judges. You did not use filibuster. You refused to give them a vote. But they were blocked-same effect. The only thing you seem to object to is a successful filibuster. Where is the logic there?

Finally, you want to have viewer-successful filibusters? Talk to us. Come and meet with us. Nominate judges who may be conservative but are not so far out of the mainstream, such as Justice Brown who believes that Government is evil. She is against all zoning laws, at least according to her speech to the Federalist Society. And she thinks the Lochner decision, one of the most discredited decisions which said the State government could not regulate the number of 60 hours-New York State said 60 hours is when a bakery worker could not work any longer. They can't do that.

So nominate some people who are conservative but not so far out that they want to make law, not interpret law. That is the bidding so far.

Now, one other point that was made since I last spoke. My good friend from Idaho, I love him. He is a fine guy. We even worked together on a gun control bill, so it shows you anything is possible around here. But he is saying Judge Abe Fortas was not filibustered? What is this argument? A cloture vote is not a filibuster? As my daughter would say: "Hello."

Why do we have a cloture vote? Because there is a filibuster. Here is the headline in the New York Times: "Critics of Fortas Begin Filibuster. . . ." Why is that not a filibuster? But the New York Times, they are one of those wacky, liberal publications, and this is one of these slanted liberal headlines.

So let's take the U.S. Senate Web site. What is the headline? October 1, 1968: "Filibuster Derails Supreme Court Appointment." I am paraphrasing: In June 1968, Chief Justice Earl Warren informed President Lyndon Johnson that he planned to retire because of a filibuster.

Mr. President, I ask unanimous consent to have a document from the Senate's own Web page printed in the RECORD. I would ask all of my colleagues who believe that Abe Fortas was not filibustered to make a motion to correct the Web site.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

FILIBUSTER DERAILS SUPREME COURT APPOINTMENT

In June 1968, Chief Justice Earl Warren informed President Lyndon Johnson that he planned to retire from the Supreme Court. Concern that Richard Nixon might win the presidency later that year and get to choose his successor dictated Warren's timing.

In the final months of his presidency, Johnson shared Warren's concerns about Nixon and welcomed the opportunity to add his third appointee to the Court. To replace Warren, he nominated Associate Justice Abe Fortas, his longtime confidant. Anticipating Senate concerns about the prospective chief justice's liberal opinions, Johnson simultaneously declared his intention to fill the vacancy created by Fortas' elevation with Appeals Court Judge Homer Thornberry. The president believed that Thornberry, a Texan, would mollify skeptical southern senators.

A seasoned Senate vote-counter, Johnson concluded that despite filibuster warnings he just barely had the support to confirm Fortas. The president took encouragement from indications that his former Senate mentor, Richard Russell, and Republican Minority Leader Everett Dirksen would support Fortas, whose legal brilliance both men respected.

The president soon lost Russell's support, however, because of administration delays in nominating the senator's candidate to a Georgia federal judgeship. Johnson urged Senate leaders to waste no time in convening Fortas' confirmation hearings. Responding to staff assurances of Dirksen's continued support, Johnson told an aide, "Just take my word for it. I know [Dirksen]. I know the Senate. If they get this thing drug out very long, we're going to get beat. Dirksen will leave us."

Fortas became the first sitting associate justice, nominated for chief justice, to testify as his own confirmation hearing. Those hearings reinforced what some senators already knew about the nominee. As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.

On October 1, 1968, the Senate failed to invoke cloture. Johnson then withdrew the nomination, privately observing that if he had another term, "the Fortas appointment would have been different."

Mr. SCHUMER. I thank you, Mr. President. So I guess I have caught a little of the feistiness of my friend from California.

Now, Senators, this is a serious issue. Many of my colleagues have done a great job of bringing up the issue of jobs and health care and all of that. I think we should do that because we have heard these arguments over and over and over and over again. We have not talked about the minimum wage once or for providing health care for the uninsured or many other issues. But so be it.

Let me again go over what our Constitution says. Does our Constitution say, "Do not filibuster"? It does not say that. In fact, our Constitution says the Senate ought to be the cooling saucer.

We all know the story. James Madison was explaining, I believe it was to Thomas Jefferson, why there was a Senate. Jefferson thought it looked too much like the House of Lords. He had been over in Paris. And he had not written the Constitution.

He came back and he goes over to James Madison's house and Madison is pouring tea. He says: You see. He pours the boiling water into a cup, and he says: You see the boiling water in the cup? That is the House of Representatives, where the people's passion bubbles over. Then he poured some of the water into the saucer, and he said: The Senate is the cooling saucer.

Well, James Madison, we have been, by stopping these four nominees, a little bit of that cooling saucer. Our job, when the President goes too far, as he has with some of these nominees, is to be the cooling saucer.

Now, unfortunately, our being the cooling saucer gets some of the others on the other side very hot. But we are defending the Constitution. The idea that a successful filibuster is bad has nothing to do with the Constitution. That comes from a few of my colleagues' view that they want to get every nominee. So let's make an argument. Because if a successful filibuster is bad and an unsuccessful filibuster is OK-and we have been through that before-then you cannot make any argument about a filibuster.

Again, I would like my colleagues to read this over and over and over again. There is nothing in there that says: No filibuster. There is nothing in the Constitution that says: A majority will decide judges, a 51-to-49 majority. It says the President must seek the Senate's "Advice and Consent."

Constitutional scholars will tell us that the reason we have these rules in the Senate-unlimited debate, two-thirds to change the rules, the idea that 60 have to close off debate-is embodied in the spirit and rule of the Constitution.

Yes, my colleagues, we are the cooling saucer. When the President's passion for hot rightwing judges who might make law rather than interpret law gets overwhelming, we will cool the President's passion. That is what the Constitution is all about, and we all know it.

By the way, when, again, my colleagues thought President Clinton was nominating a few judges too far left, what did they do? What did you do over there? You filibustered. Paez and Berzon were very liberal, no question about it. But because President Clinton had, by and large, nominated moderate nominees, nominated moderate people, your filibuster could not last.

Let me say something to my colleagues. We did not want to undertake a filibuster. Many of us on the Judiciary pleaded with Chairman Hatch to go to the White House and say: Meet with us. No. Many of us pleaded with Counsel Gonzales to come meet us a little bit of the way. No.

So we had no choice. Either we could be a rubberstamp or we could use the only means we had at our disposal to stop the President from getting every nominee, and that was the filibuster. Again, it is in keeping with the Constitution. We believe we are fulfilling our constitutional obligation.

Again, I see my colleague from Pennsylvania brought up his chart: No successful filibusters. Did my colleague object to the unsuccessful filibusters of Barkett, Sarokin, Berzon, and Paez? Did my colleague say he wanted 30 hours on the floor because a filibuster was wrong?

Mr. WARNER. Will the Senator yield for a question?

Mr. SCHUMER. I am happy to yield. I want to finish my point and then I will yield to my friend from Virginia, who is one of the most respected and erudite Members of this body, and I consider him a friend of mine.

I would simply say that the argument that filibusters are OK but successful filibusters are not OK just melts under even the sunshine of a distant logic.

I yield to my colleague from Virginia.

BREAK IN TRANSCRIPT

Mr. SESSIONS. The Senator from New York was not here during the Clinton years in the Senate; he was in the House.

Mr. SCHUMER. Will my colleague yield? I was here the last 2 years of the Clinton years. I was here for Berzon and Paez.

Mr. SESSIONS. Let's talk, then, about Berzon and Paez and get this straight. That is real good to remember. I just assumed the Senator couldn't have been here or he might have understood a little differently.

Holds are placed on legislation by Senators. Holds are placed on nominees by Senators. One way to break that hold is to file for cloture which guarantees an up-or-down vote. Holds were placed on Berzon and Paez. President Clinton was President of the United States. These were two of his most liberal nominations to the most liberal circuit in America; the one that struck down the death penalty, struck down the Pledge of Allegiance, struck down the "three strikes and you're out" law in California, and Berzon and Paez participated in all those opinions.

Anyway, when they were up for nomination, I strongly believed those were not good nominees and opposed them. We discussed these nominations within the Republican ranks. Somebody said: Why don't we filibuster? The chairman of the Judiciary Committee, Senator ORRIN HATCH, said: No, filibusters are not appropriate for judges. We should not enter a filibuster.

A Democrat said: We want a vote on Berzon and Paez. We have waited long enough. So we got to the point where TRENT LOTT, the Republican majority leader, the equivalent of TOM DASCHLE in this circumstance, filed for cloture. He said: Let's bring these two nominations up for a vote.

I and a whole lot of others did not support the Berzon and Paez nominations but did not believe in filibusters. The Senator from New York suggested we were unprincipled. He suggested that we are now opposing filibusters which we then favored. But when TRENT LOTT moved for cloture, I voted for cloture. Only half a dozen or so voted against cloture, and the nominees came up, and they got an up-or-down vote. TRENT LOTT voted against the nominees. I voted against the nominees. They had an up-or-down vote, and they were confirmed.

You can say that is a filibuster, but it is not the same thing as a filibuster organized by the Democratic leader and unified Democratic ranks to block now six nominees from even getting an up-or-down vote. It is not the same. I don't think there is any doubt about it, it is the first time a filibuster has been used systematically under these circumstances.

Mr. SCHUMER. If I might respond to my colleague from Alabama, let me say to everyone here, I have great respect for my colleague from Alabama. We work together on the Judiciary Committee quite well. We have had some legislation together. Let me make a few points.

First, I don't disagree that Paez and Berzon were very liberal. There could be made an argument-I didn't agree with it-that they may have been out of the mainstream and maybe should have been blocked. Certainly, that is what our former colleague, Mr. Smith from New Hampshire, believed.

In fact, I agree with the Senator from Alabama. I think the Ninth Circuit is a very liberal circuit. I voted for Jay Bybee, who is far to the right of me, because I thought the Ninth Circuit could use some balance. I don't have a problem with people saying Paez and Berzon were very liberal and we ought to try to block them.

Let me make two points in reference to what is a hold. A hold is saying "I am going to filibuster."

Mr. SESSIONS. No.

Mr. SCHUMER. If I might finish. That is why the hold is able to hold things. There is nothing in the rules about one
Senator can hold things up, but the way things work around here, you say: If you bring this to the floor at this point, I am going to keep talking and you are going to need 60 votes. I don't know it to be any different than a filibuster. It is certainly not a difference that makes a difference. One may call it a hold rather than a filibuster, but it is a filibuster.

Second, I say, in all due respect to my colleague, again, let's not get semantical here. It is true that my good friend from Alabama opposed cloture. How many Senators voted for cloture? How many voted against? Thirty-one? I don't think there was a Democrat among them-maybe; maybe one. I don't recall if Senator Miller was here then. Thirteen voted against Judge Berzon.

But immediately after on the vote for Paez, my colleague from Alabama got up and made a motion to "indefinitely postpone the nomination."

Let's not get semantical here. If you are indefinitely postponing the nomination, you are seeking to do what we are seeking to do, which is block a nomination you thought was ideologically incompatible.

The bottom line is this: I will make this argument and then yield-I defer to our great whip here-we have divided up all our time and I am taking somebody else's time; maybe my friend from Minnesota, and I don't know who the other Senator was-Senator Boxer. So I don't want to take too much of it.

I simply say, again, these arguments sort of, a little bit, contain a bit of sophistry. Blocking a judge is the goal-successful filibuster, unsuccessful filibuster, a motion to indefinitely postpone, not allowing a judge to come to a vote. When either side has thought a judge out of the mainstream, they have used the device that was available to them to allow the Senate, I would argue, to do what the Founding Fathers wanted us to do, which is to be the cooling saucer. Sometimes it was successful, sometimes it wasn't, but it is not a difference that makes a difference, as the law professors used to say.

I yield the floor.

BREAK IN TRANSCRIPT

Mr. SCHUMER. Mr. President, I thank my colleague from New Mexico for, as usual, his thoughtful, balanced, and fair remarks.

We have, I guess, now been debating 13 hours 45 minutes here. I don't think too many new arguments have come out. I don't think we have accomplished anything. But let's proceed, although I couldn't agree more with my colleagues that we could have devoted some of this time to speaking about issues we have not debated on the floor at length-jobs, the yearning of the average American to have a secure and good job; health care, and the millions who are not covered and millions more who are covered and cannot afford health care; even a debate on the war in Iraq, where we are going and what we should be doing. It would be far more instructive and illuminating to the American people than what we have done here.

But we are here, and I think we should be talking about the judicial nominations. One point I make, just before getting into the substance: We heard some paeans to Miguel Estrada; Horatio Alger, we heard. He is a bright man of accomplishment, but let's be fair here. His father was a banker in Honduras. He came from a privileged background. America welcomes people of all backgrounds. That is wonderful. But the bottom line is he was not typical of an American immigrant. His father was a banker, they were part of the Honduran elite. The Senator from the other side said he didn't speak English when he came here. We think he probably did.

But Horatio Alger? No. Horatio Alger was somebody who started off poor. There are indeed, I would like to inform my colleague from Virginia, millions of immigrants who came here poor as church mice and struggled and worked their way up. It is sort of interesting that the hero to those on the other side is a wealthy Honduran who became a wealthy American-that is the modern-day Horatio Alger story. So let's be straight here.

Miguel Estrada, to be fair, is a very bright man. But just because he is bright and just because he came from a good background doesn't give him carte blanche to become a judge. He didn't answer any of our questions. How many Americans would get a job if they told the boss: I refuse to fill out the questionnaire. I don't want to answer that question.

These were not esoteric questions; these were not demeaning questions; they were very simple questions: What is your view of the first amendment and how expansive it ought to be? What is your view of the commerce clause? The very things on which he would opine as a judge.

These have been regarded as legitimate questions from the day of the founding of the Republic. Let me say, why are my colleagues so appalled that we would ask such questions? I will tell you why. It is very simple. Because this President, George Bush, despite his wanting his image to be moderate, on the issue of judicial nominations has been the most hard right President we have seen. His nominees are not mainstream, many of them.

People on this side of the aisle have voted for many of them with whom we do not agree. But when some go so far, we believe the Founding Fathers almost importune us to question them thoroughly, and to block them if necessary.

Again, this chart, I would say to the American people, says more than all the words and rhetoric and name calling we have heard from the other side: 168 to 4.

Is the process broken down? No. Is the process so much so that a reasonable judge can't get through? Obviously not, unless you think George Bush is not nominating any reasonable judges.

What has happened here? There is such anger on the hard right that they can't get every single judge they are pushing many on the other side, against their own will, to engage in performances like we have seen over the last 14 hours. We want every single judge approved. That is their goal. That is the goal. And then we come up with the arguments.

So we went through this last night. Filibusters are OK, as long as they fail. That makes no sense. We have had filibusters in the past. We have had six of them, four by the Congresses in the 1990s and 2000. If a filibuster is wrong, it should be wrong whether it passes or it fails.

But then look at the other argument. Over 50 judges were blocked by the other side. We didn't hear any speeches about Constitution in crisis. They weren't even giving hearings.

The logic defies me: It is OK to block judges by not giving them hearings, and it is OK to filibuster as long as you fail; the only thing that is wrong is to have a filibuster succeed and that brings the Constitution in disrepute and brings the Republic to its knees.

My colleagues, that argument does not hold up in first year law school. It is just totally hypocritical and contradictory. It is saying, I want my results so I am making whatever argument it takes. Sort of like the judges we don't want. A little like Justice Brown's way of arguing-of deciding cases. Blocking is not bad because they blocked 50 of them and there was no outcry. Filibusters aren't bad because they filibustered six of them, or four of them, and that was just fine.

So let's be honest here. For some reason, there is white hot anger among a small, narrow group of people that they can't get every judge. Again, I welcomed-I don't think this serves our time well-but I welcome it, in the sense that all of those talk shows and all of those radio programs and all of those editorial boards leave out the one overwhelming fact, which is 168 to 4.

I will march in parades in conservative parts of my State and once in a blue moon-most people don't care about this issue, to be honest, compared to the things that make their lives better, compared to the relief American families want when they sit down at the dinner table on Friday night to figure out how to pay these bills. But the occasional time somebody called out, "Why are you blocking the President's judges?" because they listen to the radio or read a biased article in the editorial pages, I would say: "We approved 168 to 4," whatever the number is, and they say, "Oh, OK."

You can do all the sophistic arguments you want, how many angels are on the head of a pin, say this way to block judges is OK.

By the way, I would like one of my colleagues to defend, in the 30 hours we have, was it all right to block the 50 judges of President Clinton? Was that OK? Do we ignore that fact? It is not ancient history; it was in the last decade. Was that OK? I would ask any of my colleagues to answer that.

Then I would ask them to point out to me when Senators on the Republican side of the aisle launched filibusters, who got up and complained and said the Constitution was being violated?

No, no, no. The arguments here, again, are outcome determined. There is no internally consistent logic. It just says: We want all the judges; we will take whatever argument it takes. When they originally put forward Miguel Estrada, they said he was a rags-to-riches case, and then of course the facts came out. Now he is Horatio Alger: Honduran banker's son becomes successful American lawyer. I don't know if that is going to tug at the heartstrings of most Americans. Most, I think, would say Horatio Alger is the person who came here penniless and worked in a factory, who tried to struggle to provide for his family, who started a small business and struggled, the whole family worked in it and then they got a little money, and they got richer and God bless America. That is what is wonderful about this country.

But again, whatever argument fits. Is there a solution to this conundrum? Obviously, there is. There is. It is to follow the Constitution, not to come up with this idea that somehow, buried in the Constitution-by the way, that is not being literalist. When my colleagues say the Constitution says you can't filibuster a judge, they are reading words into the Constitution. I believe in a flexible Constitution. I think most people do in the 21st century. But if you want literal reading of the Constitution, find the word "filibuster." Find me the number 60. Find me the sentence that says everything in the House and Senate, or just the Senate, should be supported by majority rule.

If majority rule were so important, then we should not have committees because when committees block judges, as they did, we don't even know what the majority thinks. The Senate has a very important function in this Republic. It has had for 200-some-odd years. It is to be, as Madison put it, the cooling saucer.

As I mentioned last night, I didn't have qualms about some of my colleagues trying to stop Judges Paez and Berzon. The Ninth Circuit is a very liberal circuit. It is too liberal for my taste. To put more liberal judges on there probably didn't increase the balance. That is why this year I supported the nomination of Judge Bybee, Jay Bybee. I don't agree with him on almost anything, but on the Ninth Circuit to have a hard right conservative is probably a good thing.

My view is there ought to be moderation on the courts. And probably it is great to have one Justice Scalia on the Supreme Court and one Justice Brennan. You should not have five of either. Judges should not be at the extremes because they are the ones who tend to make law.

We have a nominee coming up Friday, Justice Brown, who wants to go back and reratify the Lochner decision that has been in disrepute for 70 years. Is that justice, someone who is interpreting the law? Lochner, which said a State couldn't pass a law that said bakery workers could work only 60 hours a week? We have come a long way since then.

But it is true, there are some in America who say: We don't want the Government doing anything. If I am a businessman, I should be able to do whatever I want. I should be able to pollute the air. I am a self-made person. Or I should be able to take my property and do exactly what I want with it-no zoning.

That is a view, certainly a view that can be argued in this Chamber or anywhere else. It is not the view close to the mainstream of the American people.

So the bottom line is a very simple one. We believe-it may drive some crazy, but we believe we are defending the Constitution. We believe that through whatever sophistry and sophistic arguments we hear that every one of the President's judges should be approved does not do justice to this wonderful document, this living, breathing document, the Constitution. We believe that if the only way you were to reject a judge was because the judge didn't have high enough grades in law school or because they smoked marijuana when they were in college, it would demean the process. We believe that asking questions about a judge's judicial philosophy-that is what is at the core of what makes a good judge. We believe that when a President brings ideology into the nominating process-we didn't, he did, and he said it. To his credit, he was honest. He said he is appointing judges in the mold of Scalia and Thomas. That wasn't about their law school grades or diversity; it was about a philosophy: Let's take the courts and change the way they view things.

We believe that our examination of these nominees and their views, and what they do as judges, is not only appropriate but obligatory.

I say this to the American people, to those of you who may be watching here at 7 in the morning. Judges have a tremendous effect on all of our lives. It is hard to see because it is not like a debate here in the Senate, this wonderful institution, or the President deciding a policy. It is done on a case-by-case basis. That is the beauty of this country. But that can determine, if you are a woman or a minority or disabled, what kind of discrimination might be allowed to exist against you. They can determine, if you are a worker, what kind of structure there is to protect your rights.

The PRESIDING OFFICER. The time of the minority has expired.

Mr. SCHUMER. Thank you, Mr. President.