- The Washington Times - Thursday, May 26, 2005

The following are excerpts from the speech given by Senate Majority Leader Bill Frist at Wednesday evening’s GOPAC dinner:

“The confrontation over judicial filibusters is the single greatest constitutional issue the Senate will debate in our lifetimes. The outcome will determine who is appointed to dozens of vacancies on appeals courts. It will also affect the appointment of one or two or as many as three justices to the Supreme Court.

Those are high stakes. The judges who fill those seats will have a major impact on American jurisprudence for the next 20, 30, 40 years. They will profoundly shape our nation’s body of laws.

But as consequential as that is, as much as we are a nation of laws, we also have a system of government. It is a system of government that has been the world’s envy for more than two centuries. That too is at stake in this debate.

Let me explain. This debate involves the relationship between the Senate and the presidency, and the relationship between the Senate and the courts. It also involves the relationship between the majority and minority parties within the Senate itself.

The Senate debates many consequential issues every year. But no other debate touches upon the grand institutions of American democracy like this one.

The president has the constitutional duty to nominate — and with the advice and consent of the Senate — appoint judges. The confirmation of a judicial nominee requires the support of a majority of senators — usually 51 votes. That is not a partisan statement. It is a statement of fact. It is clear in the Constitution. And it is the practice the Senate followed for 214 years.

But the Democrats decided to abandon that practice in the last Congress. They decided to rewrite the Constitution. They demanded a super majority vote — not 51 votes, but 60 votes — to confirm a judicial nominee. And they launched a leadership-led, partisan campaign of judicial obstruction by filibuster.

Their goal was to deny nominees who didn’t ascribe to a liberal activist agenda. With the judicial filibuster as their tool, a minority of senators vetoed 10 of the President’s judicial nominees. This judicial obstruction was unprecedented.

It was a radical and dangerous departure. It realigned the separation of powers between our three branches of government. It undermined the checks and balances as designed in the Constitution. It denied 100 senators their right to advise and consent. It threatened the fairness and independence of the federal judiciary. And it thwarted the democratically expressed will of the American people.

No leader of principle — regardless of party — can let such obstruction stand. And let me say: no matter the price I pay, I won’t let judicial obstruction stand.

I will stand on principle. And I will hold to it.

The principle is simple. It’s straight forward. It’s unequivocal. It doesn’t require a cartoon character named Phil A. Buster to explain it. It is the principle that every judicial nominee that comes to the Senate floor deserves a fair up-or-down vote.

Debate the nominee. Then vote. Vote yes. Vote no. Confirm the nominee. Reject the nominee. But give the nominee the courtesy ? the respect ? the decency ? the dignity ? the fairness of a vote. That’s it.

It is so crystal clear to me. That’s the way the Framers designed the Senate to work. That’s the way the Senate worked for 214 years. That’s the way the Senate should work today and in the future. And I know this may not be the right time to say this. And I know some of you may disagree. But judicial nominees that come to the floor deserve up-or-down votes regardless of which party controls the White House or the Senate.

I love my party. I’m loyal to it. But I put my hand on the Bible and took an oath to the Constitution.

The overwhelming majority of my Republican colleagues have held to this principle of an up-or-down vote. And I’m so proud of them. They showed such courage. Because we defined the Constitutional Option ? Because we said we would use it ? Because we set a date to use it ? Because we were determined to use it ?

We exposed the judicial filibuster for what it is — an utterly ideological power grab by the other party. We exposed it as a tool for the minority to deny judicial nominees who don’t fit their liberal activist agenda. We exposed it as a tyranny of the minority.

Now a few of my Republican colleagues — 7 to be exact — felt that not changing the institution in any way was more important than ending judicial filibusters. Never mind the minority in the last Congress radically altered the institution with its judicial filibusters. Still, it is their right as individual and independent senators to come together on their own terms. But I was not a part of, nor do I endorse, their memorandum of understanding. It falls far short of the principle of up-or-down votes.

Priscilla Owen waited 4 years, 2 weeks, and 2 days for an up-or-down vote. She endured a brutal campaign of character assassination. Democrats called her “the worst of the worst” ? a “judicial activist” ? “immoderate” ? on the “far fringes of legal thinking” ? and a jurist “who will turn back the clock on protecting important constitutional rights.”

I know Priscilla Owen. I know her qualifications. She is a kind, gentle, smart, qualified, highly capable jurist.

And I take great pride that today ? at 12:30 p.m. ? on the floor of the United States Senate ? she got an up-or-down vote.

Tonight ? Priscilla Owen is in Texas, and she’s a federal judge. That’s progress.

But it doesn’t guarantee the principle of fair up-or-down votes for future nominees. The Democrats still reserve the right to filibuster what they determine to be “extraordinary circumstances.” My question is: how will they determine “extraordinary circumstances?”

Will Harry Reid and Dick Durbin and Chuck Schumer sit in the Democratic Cloak Room and take turns reading a Magic Eight Ball? Will Brett Kavanaugh get an up-or-down vote? The Magic Eight Ball says: “Don’t count on it.” Will Henry Saad get an up-or-down vote? The Magic Eight Ball says: “Not very likely.” Will William Myers get an up-or-down vote? The Magic Eight Ball says: “Better not tell you.”

So let me say this: Senate Republicans reserve the right to use the Constitutional Option. And we’ve demonstrated, if necessary, we will not hesitate to use it. We have the votes to use the Constitutional Option.

If the Democrats’ campaign of judicial obstruction returns, we will not allow the Constitution to be sacrificed. We will hold to principle and ensure up-or-down votes for judicial nominees.

The Senate is an extraordinary place. There is no legislative body like it in the world. And I appreciate those who want to keep the institution just as is it. Like them, I honor the institution. Like them, I respect the institution. Like them, I love the institution. But senators serve the American people. We take an oath to the Constitution. If the Senate must change to protect the Constitution ? If the Senate must change to uphold the will of American people ? If the Senate must change to meet the challenges of the times in which we live ? Then the Senate must change.

It has, after all, changed often in its history. Democratic Senator Robert Byrd, when he was majority leader, used the Constitutional Option, not once, not twice, not three times, but four times.

So what have we learned during the last week? In what direction has the mere prospect of the Constitutional Option led us?

Without the Constitutional Option ? Without the willingness to use it ? Without the courage to hold to principle ? Judicial filibusters would have become a standard instrument of minority party policy. The minority would have adhered to the path it was on and the deal brokers would have had no deal to broker. And, most importantly, Priscilla Owen would not be a federal judge.”

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