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Press Release

"Amending the Constitution Without the People’s Assent"


Statement of William H. Frist, M.D.
Majority Leader
United States Senate

On the Nominations of Priscilla Owen, Carolyn Kuhl,
and Janice Rogers Brown to serve on the Circuit Courts of Appeal.

Mr. President, over the past two days, the Senate has sustained an extraordinary all-hours debate on judicial confirmations and on the nature of each Senator’s duty and right to give “advice and consent” to the President’s nominees as the Constitution requires.

We have placed our differences, to paraphrase Justice Brandeis, in the disinfectant sunshine of public opinion.

The continuous debate has been framed by the bipartisan effort to get honest, up or down votes for Fifth Circuit Court nominee Justice Priscilla Owen of Texas, already denied a vote on three previous occasions, and for two new circuit court nominees from California; Judge Carolyn Kuhl, nominated to the 9th Circuit Court of Appeal; and Justice Janice Rogers Brown, nominated to the D.C. Circuit Court of Appeals.

We also debated my bipartisan proposal, co-sponsored with Democrat Senator Zell Miller of Georgia and others, to limit the use of the filibuster as to all nominations - a proposal that I believe will change the all-too-rancorous way that Washington does business. This proposal is based on one previously supported by Senators Kennedy, Lieberman, Kerry, and many other Democrats. They would have ended the filibuster as to all matters.

As the American people now know, the Minority met my announcement with a range of responses – including the obstruction of major appropriations bills through yet another legislative filibuster.

Democrat leaders complained that the debate over judges would take too much time. Regrettably, the Minority is saying one thing but doing another. This year they have found new and different ways, -- large and small -- to delay, to deny, and to obstruct.

More substantively, the Minority has repeatedly contended that the Senate could be spending time doing more valuable things for the nation’s economy -- even while they obstructed major appropriations bills. This, of course, is not surprising.

It is a common debate tactic to change the subject when you cannot win on the substance. In this case, the subject was the Minority’s partisan abuse of the Constitution and their corrosion of Senate tradition over judicial confirmations.

I am certain, however, that when the American people review the record of our legislative accomplishments this year they will conclude that we did not slouch. While the Minority used the debate on judges to further attack the President and the Senate’s leadership with distorted facts and figures, the facts of our continuing economic recovery was also told by our side.

But most to the point, I do not believe that the Senate’s stewardship of the third branch of government is the least of our duties, as trivial as the Minority has argued. On the contrary, the Senate’s stewardship of the independent judiciary is perhaps the Senate’s single most important task since we do not share that responsibility with the House of Representatives.

George Washington understood this. He believed the judiciary was the most important of the three branches because the courts would protect our liberties. But America’s courts do more than that. Our independent judiciary provides the anchor for America’s economic strength. The stability and confidence that our courts provide make America the safest location for foreign and domestic investment, industry and commerce – that means more jobs and greater prosperity for all Americans.

Our courts guard the rule of law, -- and to the extent that they are free of results-oriented politics and other forms of corruption – they are one of the foundation stones that have allowed America’s history to unfold differently than our sister republics to the south.

In this past year, Americans have come to understand the influence of the courts over our daily lives and our national culture in ways the framers could not have imagined.

Of course, Democrat complaints about too much debate were strained given that it is they who are maintaining or threatening filibusters on judicial nominees, and the filibuster rule, when not abused, is intended to allow the Minority more time to debate.

Despite, their complaints I give credit to my Democrat colleagues for collegially joining the debate. I am enormously proud of my Republican colleagues. I believe both sides should feel a certain satisfaction with how this historic debate was conducted.

In the past two days, we have debated three nominees that the American Bar Association considers qualified to serve on the appellate court but who a Democrat minority considers out of the American mainstream. I do not believe the Minority has effectively explained persuasively how Justice Owen, who was elected to the Texas Supreme Court by 83 per cent of Texas voters, is out of the mainstream. They have not proven how Justice Brown, retained to serve by 76 per cent of California voters, is out of the mainstream. They have not convinced any fair minded person how it is that Judge Carolyn Kuhl, who has the support of over 100 California judges and labor unions across the political spectrum and even trial lawyers, cannot serve on the worrisome 9th Circuit Court that declared the Pledge of Allegiance unconstitutional.

Mr. President, over the past year, the Minority has used the filibuster for the first time in history to deny a bipartisan majority of Senators their right to vote on judicial nominees. While majorities have delayed judges in the past, through the majority’s delegation to the Judiciary Committee, votes on judges have never before been blocked by a minority.

Of course, this debate was more than about mere Senate procedure. The Minority is amending the people’s Constitution without the people’s assent. The reason for this is now well known. Senate liberals have sought, with increasing intensity, to politicize not just the confirmation process but the courts themselves.

In pursuing this course, liberal Democrats are threatening the legitimacy of America’s courts. That legitimacy comes from much more than black robes and a high bench. It comes from the people=s belief that judges will apply the law or the Constitution without regard to personal politics.

Rather than seeking to determine the judiciousness of a nominee and whether a nominee will be able to rule without bias, liberal Democrats are out to guarantee that our judges are in fact biased against some and in favor of others. In the America that would result, citizens will have to worry about the personal politics of the judge to whom they come for justice.
I say judiciousness. Why? Well, Mr. President, like many Senators this year, faced with the question of what is required by the Constitution’s mandate that the Senate give the President “advice and consent,” I have turned for guidance to the founding fathers, and especially to the father of the independent judiciary, John Adams, to find the correct standard by which to give our “advice and consent” on a judicial nominee.
President Adams, the father of our independent judiciary, memorialized for us what the standard should be for confirming our judges. He wrote that they should be: “Men [and women] of experience on the laws, of exemplary morals, invincible patience, unruffled calmness and indefatigable application” who will be appointed for life and “subservient to none.

And President Adams understood well enough the challenge of being judicious, despite one’s own opinions, and even in the face of unforgiving popular opinion. Few people remember that it was John Adams who defended the British soldiers who, on March 5, 1770, shot into a crowd on the streets of Boston.

Our children study this episode today as the Boston Massacre. It is a history lesson we can learn from in the Senate in our work on judicial nominations.

John Adams defended the British soldiers before a Boston court, with angry mobs in the streets. I have to wonder, Mr. President, if today John Adams would be obstructed by filibuster today because an out-of-touch Minority urged on by liberal special interest groups -- questions John Adams’ qualifications based on his past advocacies – simply for being a good lawyer defending a client, however politically unpopular.

Mr. President, tomorrow the filibustering Minority will have another opportunity to stand in the light of the Senate floor and do the right thing. I say to the Minority: Give these nominees a vote. Vote them up, or vote them down, but just give them an honest up or down vote.