Reid, Frist Prepare to Go Nuclear in the Senate
Truthout Editor's Note: The information below is an analysis of the facts produced by the office of Senate Democratic
Minority Leader Harry Reid. Tomorrow TO will publish a response from the office of Senate Majority Leader Bill Frist.
Democratic Leader Harry Reid's Letter to Bill Frist
By Senator Harry Reid
Democratic Minority Leader
Tuesday 15 March 2005
Dear Majority Leader Frist:
During President Bush's first four years in office, the Senate confirmed 204 judicial nominees and withheld its consent
to only 10 nominations, a confirmation rate of over 95%. Last year the federal court vacancy rate reached its lowest
level in 15 years. Nonetheless, in recent press reports you have threatened to use extraordinary parliamentary tactics
allowing the Republican majority to rubberstamp the handful of nominees already rejected and all future Bush nominees.
On behalf of every Democratic Senator, I urge you and your colleagues to reconsider this course of action, which would
remove one of the constitutional checks and balances that has served our country so well for over two centuries. I also
want to describe the likely effect of this so-called "nuclear option" on the operation of the Senate.
The role of the Senate in the confirmation of presidential nominees is a central element of our democracy. The Framers
of the Constitution created a system of checks and balances to limit the power of each branch of government, and in that
way to protect the rights of the American people. The Senate's review of judicial nominees is especially important
because federal judges are the only government officials to receive lifetime appointments. These men and women will
serve on the federal bench for decades, making far-reaching decisions that affect all Americans.
Every citizen has an enormous stake in this debate. Federal judges apply the laws that Congress passes to protect the
environment, guard against discrimination and punish criminals. They give life to the First Amendment guarantee of free
speech, the free exercise of religion and other vital constitutional rights. The Senate's role in the confirmation of
judges is as important as any of our duties.
The power to confirm judges includes the right to use well-established Senate rules to reject nominees. No one has
seriously doubted that right in over 200 years, and Senators have exercised it in recent times. Of course that right
should be exercised responsibly - while Republicans are concerned about the treatment of President Bush's judicial
nominees, Democrats were concerned about the Senate's treatment of President Clinton's judicial nominees, more than 60
of whom were denied a vote by the full Senate.
I am willing to work with you to improve the procedures by which the President seeks the advice of Senators with regard
to nominations and the procedures by which the Senate considers whether to grant its consent, consistent with
constitutional checks and balances. But to alter these procedures unilaterally would be an unprecedented abuse of power.
The Senate should not become like the House of Representatives, where the majority manipulates the rules to accommodate
its momentary needs.
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Democrats in the Senate may be in the minority, but we represent millions of American citizens. The nuclear option would
deny these Americans their rightful voice in the governance of the nation. Moreover, we will not always be in the
minority. The nuclear option would trample on the rights of whichever group of Americans - Republicans or Democrats -
happen to be represented by the Senate minority at any given time.
Listen to the words of two of our great Senate Leaders: Former Republican Leader Howard Baker wrote in 1993 that
limiting the right to extended debate "would topple one of the pillars of American Democracy: the protection of minority
rights from majority rule. The Senate is the only body in the federal government where these minority rights are fully
and specifically protected." And half a century earlier, Democratic Leader and later President Lyndon Johnson said: "In
this country, a majority may govern but it does not rule. The genius of our constitutional and representative government
is the multitude of safeguards provided to protect minority interests."
The Senate conducts most of its business by cooperation and consent. The minority provides that consent with the
expectation that the courtesies it extends to the majority will be met with respect for minority rights. And no Senate
right is more fundamental than the right to debate. Should the majority choose to break the rules that give us that
right, the majority should not expect to receive cooperation from the minority in the conduct of Senate business.
Of course Democrats would never block legislation vital to our troops or other national security interests, and we will
help ensure that critical government services continue to function for the American people. Beyond that very limited
scope, however, we will be reluctant to enter into any consent agreement that facilitates Senate activities, even on
routine matters. Just this year we passed the class action and bankruptcy bills under procedures negotiated in good
faith between the majority and the minority. We would decline to provide such cooperation in the future if you implement
the nuclear option.
There is a better way. Working together, I believe we can discharge the Senate's constitutional duty to consider
judicial nominees in a fair and sensible manner. If you abandon the nuclear option, I can assure you that Senate
Democrats will cooperate with you to consider legislation and nominations. We will exercise our procedural rights in a
responsible fashion, cognizant of the President's prerogatives. We will do our part to preserve the bipartisanship that
defines the Senate and that serves the nation so well.
Sincerely,
Harry Reid Democratic Leader
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Preserving Checks and Balances
By Democratic Minority Leader Harry Reid
Delivered on The Steps of the Capitol
t r u t h o u t | Address
Tuesday 15 March 2005
"On a late September day in 1787, the Constitutional Convention finished its work. As Benjamin Franklin walked down the
steps of Independence Hall, a Philadelphia woman named Elizabeth Powell stopped him and asked, "Well, Doctor, what have
we got: a republic or a monarchy?"
He responded, "A republic. If you can keep it."
For more than two centuries, we have kept our republic because Americans have understood that our liberty is protected
by our laws and by a government of limited powers.
Our Constitution provides for checks and balances so that no one person in power - so that no one political party - can
hold total control over the course of our nation.
But now, in order to break down the separation of powers and ram through their appointees to the judicial branch,
President Bush and the Republican leadership want to eliminate a two-hundred-year-old American rule saying that every
member of the Senate can rise to say their piece and speak on behalf of the people that sent them here.
The fact is that this President has a better record of having his judicial nominees approved than any President in the
past twenty-five years. Only ten of 214 nominations have been turned down.
So it is clear that this attempt to strip away these important checks and balances is not about judges. It is about the
desire for absolute power.
But our nation's basic rules are there for the moments when the eyes of the powerful grow large and hungry; when their
willfulness makes them determined to do whatever it takes to win, and prevail at whatever the cost.
Presidents and parties have grown drunk with power before. Two Presidents of my own party - Thomas Jefferson and
Franklin Roosevelt - began their second terms of office with majorities in Congress and then tried to change the rules
governing judges so that they could stack the court with those who would do their bidding. They were wrong to try to
change our basic American rules - and Americans, and Senators of both parties, stood up to tell them so.
Today, another attempt is being considered to rewrite the rules so that those in power can get their way.
It would mean that the U.S. Senate becomes merely a rubber stamp for the Executive Branch.
It would mean that one political party - be it Republicans today or Democrats tomorrow - gets to have all the say.
It would mean that one man, sitting in the White House, has the practical ability to personally hand out lifetime jobs
to judges whose rulings can last forever.
That's not how America works.
Here, in America, the people rule - and all the people have a voice
We pledge allegiance to "one nation, under God, with liberty and justice for all." Not liberty and justice for whoever
may be in the majority of the moment. Liberty and justice for all. In America, everyone gets their say and their due.
Today, we say to the American people: if you believe in liberty and in limited government, set aside your partisan views
and oppose this arrogant abuse of power.
Our freedom as a people was purchased by soldiers and Senators, by those who fell for our country and those who rose to
speak for it, even when they stood alone.
The courage of patriots has given us a republic. Now, it is our task - and our test - to show that we can keep it.
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Myth: There is precedent for the "Nuclear Option."
• During Senator Specter's press conference accepting the Chairmanship of the Judiciary Committee he claimed that "if a
rule change is necessary to avoid filibusters, there are relevant recent precedents to secure rule changes with 51
votes." He also asserted that "Senator Byrd had four rule changes in 1977, '79, '80 and '87, where, as a master
parliamentarian, he moved them through the body on a ruling of the chair and 51 votes. And one of those was a filibuster
by amendment." Right-wing pundit Bob Novak has reiterated these claims.
Reality: There is no precedent for overriding the rules of the Senate and forcing majority cloture. To do so would
radically alter rights protected for 200+ years.
• The examples cited by Sen. Specter and Mr. Novak furnish no precedent for the imposition of majority cloture in the
Senate. While they are procedural "precedents" for incremental clarifications of Senate Rules, they do not in any way
serve as precedent for the radical deletion of the Senate's long-standing Rules allowing filibusters and providing for
cloture.
• By analogy, Miranda v. Arizona is Supreme Court precedent but it furnishes no binding or persuasive precedent for Bush
v. Gore. Similarly, the examples cited by Sen. Specter and Mr. Novak do not justify or support the Republican effort to
remove one of the pillars of the Senate.
• There is no language in the Constitution prohibiting filibusters.
• The Constitution protects Members' rights to speech and debate. As Joseph Story noted in his 1833 Commentaries on the
Constitution: "[A] great and vital privilege is the freedom of speech and debate, without which all other privileges
would be comparatively unimportant, or ineffectual."
• The Framers of the Constitution were well aware of filibusters and other parliamentary tactics to delay. There was a
filibuster over the location of the U.S. Capitol in the First Congress following the drafting of the Constitution.
• Over fifty law professors wrote to the Senate last year to make clear that "[b]oth the text of the Constitution and
historical practices strongly support the constitutionality of the filibuster."
• The Constitution does not require a vote on every nominee proposed or piece of legislation introduced, no matter how
ill advised or deserving.
• Since our earliest days, nominees were defeated by blocking confirmation votes. See, e.g., G. H. Haynes, The Senate of
the United States (1938).
• Out of the 24 Supreme Court nominees who were never confirmed, more than half (14) were defeated by delay and not by
confirmation votes, including Justice Abe Fortas, who was successfully filibustered by conservative Senators in 1968.
Reality: The examples cited by Sen. Specter and Mr. Novak are inapposite.
Each of the four examples cited is qualitatively different from the nuclear option in both order and magnitude. If it
were so easy to get rid of the filibuster, it would have been eliminated by a thwarted majority decades if not centuries
ago.
Democrats Confirmed 95% of Bush Judges
204 judges have been confirmed during the Bush Administration.
Democrats have confirmed 35 circuit court nominees, more than in the first term of Reagan or Clinton.
Republicans Create False Crisis to Pack the Courts and Rollback Rights
At the end of the last Congress, the federal court vacancy rate hit its lowest point in 14 years.
Democrats rejected 10 of Bush's nominees because they lacked a commitment to protecting the constitutional rights and
liberties of every American.
Rejected nominations include:
William Pryor, who believes federal protections for voting rights, the environment, equal rights, education and privacy
are illegal. Pryor has argued for the politicization of picking extreme Supreme Court justices, stating "Please God, no
more Souters."
Janice Rogers Brown, who has likened federal protections for the elderly to "senior citizens – cannibaliz [ing] their
grandchildren" and that policies against age discrimination don't benefit the public. As a state court judge, she has
worked to deny the rights of victims of discrimination, consumers and workers.
Priscilla Owen, a Texas Supreme Court justice who has been hostile to the rights of workers, women seeking to exercise
their right to choose, consumers, and injured individuals. Even Attorney General Alberto Gonzales wrote that one of her
opinions was "unconscionable judicial activism."
Republicans pocket-filibustered more than 60 nominees.
More than 60 judicial nominees and 200 executive branch nominees of Clinton were defeated by calculated delay by
Republicans, not by votes."
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