[Mb-civic] Democratic Leader Harry Reid's Letter to Bill Frist

[Michael Butler]

    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.

Also see below:    
Preserving Checks and Balances    €

    Go to Original

    Democratic Leader Harry Reid's Letter to Bill Frist
    By Senator Harry Reid
    Democratic Minority Leader

    Tuesday 15 March 2005


    
Electronic image of Senator Reid's letter;
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Electronic image of Senator Reids letter;
page 2
    
    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.

    -2-

    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

 

    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

    
Video of this speech
(Real Player Required)
    
    "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.

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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