Joe Biden

Mr. BIDEN

Mr. BIDEN. Mr. President, I will answer the question. Let me say to my friend that regarding Federalist No. 76, I suffer from teaching the subject. For the last 16 years, I have taught a course in the separation of powers. I wrote a treatise, an entire book, on this subject. There is another phrase in Federalist No. 76 the Senator didn't read that I think is appropriate to mention. Federalist No. 76 was about the issue--remember, the Federalist Papers were trying to convince a public that didn't have a television set or a radio that their legislative body should ratify the Constitution. It was sort of pamphleteering. That is what they were doing. They were taking arguments against the Constitution and framing them, setting them up, knocking them down, and making the case. The issue in Federalist No. 76 was whether the President would have undue influence on the Senate. Would he not be able to pressure the Senate because he was chief executive officer? Hamilton said: Don't worry about that. He went on to explain that there could be no better system than the one that was arrived at. The compromise he is talking about, by the way, is the Connecticut Compromise. It was not until shortly before that the Founders decided-- this is the only reason this got resolved--that the great State of Virginia with, I think, the first or second largest population at the time, could only have two Senators, and the small State of Delaware would have two Senators. That was the Connecticut Compromise. That is what it was about. The reason it came about was that is they wanted to make sure that the minority would be able to be protected. He used the phrase--and I compliment and associate myself with my friend from Virginia; I know that is not why he sought recognition and why he asked the question, but what he did yesterday with Senator Byrd is what Alexander Hamilton was talking about--Alexander Hamilton in Federalist 76 used the following phrase in rebutting the argument that the President would be able to pressure the Senate. He said there will always be a sufficient number of men of rectitude to prevent that from happening. The Senator from Virginia demonstrated yesterday that there always is a sufficient number of men of rectitude--he and Senator Byrd--in averting a showdown that may have literally, not figuratively----

Mr. BIDEN. It is true.

Mr. BIDEN. The Senator from Virginia, Mr. Warner, and Senator Byrd were the catalyst that came along and rescued something that had been attempted and written off, at least by the six Democrats with whom I had been talking, as failed until the two of them came along. This in no way is to denigrate the significant efforts of the others.

Mr. BIDEN. The reason I say this is that, in the debates in the Constitutional Convention on this nominating process, on three occasions I believe it was Governor Wilson of Pennsylvania--I am not positive of that--proposed a motion that the President of the United States should have the power alone to appoint his Cabinet and inferior officers in the court. It never got, to the best of my knowledge, more than seven votes. The only consideration that almost passed twice was that only the Senate, without the President even in on the deal, could make those appointments. If we look at the constitutional history, the President was an afterthought in the nominating process. That is what Madison's notes show. That is what the history of the debate in the State legislative bodies shows. So here we are, the Connecticut Compromise comes along guaranteeing that small States will be able to have an impact on these choices, but go back and look, and I think it is Federalist 77--do not hold me to that--but it is Hamilton's treatise on why there was a need to have the Senate involved in choosing not only judges but appointments to the Federal Government. There was the fear that what happened in the British Parliament would be repeated; that, in fact, the King and the leaders of the majority would appoint incompetent people, such as their brothers-in-law, their friends, to be surrounding them in their Cabinets, in the lesser offices of the Federal Government. So it was a genuine concern and a clear understanding--I think the phrase in Federalist 76 is; this is off the top of my head--if by this we are limiting the President, so be it; that is our intention. To the specific question, yes, there is more deference given to the President of the United States in the appointment of his Cabinet than there is to his appointments to the Supreme Court, district court, any lower court, or any other appointed office in the Government. But the single exception that was intended by the Framers, if you read what they said, in terms of even appointing those around him, if the persons he would pick, notwithstanding that they would reflect the President's political views, if the appointment inures to the detriment of the United States, they should be opposed. There have not been many occasions when I have opposed nominees to the President's Cabinet or Cabinet-level positions, and I imagine there have not been many my friend from Virginia has opposed. But I opposed two in the Clinton administration. I opposed one in the Carter administration. I think I opposed two in the Reagan administration. In each case, my opposition--and this would be only the second one I have opposed in this administration--is because the appointment of that individual, notwithstanding the fact that he or she is the choice of the President, would have the effect of negatively affecting the standing, security, or well-being of the United States. So there are exceptions, and I would argue Mr. Bolton, as my friend from Ohio, I suspect, is going to make a compelling case, falls into the category of, yes, the President gets who he wants, unless the appointment of that person would inure to the detriment of the United States. That is the central point I am trying to make. I understand my friend does not agree with me, but I honestly believe Mr. Bolton going to the U.N. will inure to the detriment of the United States, notwithstanding the President's judgment that it would not do that.

Mr. BIDEN. That is right; I acknowledge that.

Mr. BIDEN. If the Senator will yield, I am confident that is true about the Senator.

Mr. BIDEN

Mr. BIDEN. Mr. President, today I am submitting a resolution designating October 21, 2005, as ``National Mammography Day.'' I might note that I have submitted a similar resolution each year since 1993, and on each occasion the Senate has shown its support for the fight against breast cancer by approving the resolution. Each year, as I prepare to submit this resolution, I review the latest information from the American Cancer Society about breast cancer. For the year 2005, it is estimated that slightly more than 211,000 women will be diagnosed with breast cancer and slightly more than 40,000 women will die of this disease. In past years, I have often commented on how gloomy these statistics were. But as I review how these numbers are changing over time, I have come to the realization that it is really more appropriate to be optimistic. The number of deaths from breast cancer is actually stable or falling from year to year. Early detection of breast cancer continues to result in extremely favorable outcomes: 97 percent of women with localized breast cancer will survive 5 years or longer. New digital techniques make the process of mammography much more rapid and precise than before. Government programs will provide free mammograms to those who can't afford them, as well as Medicaid eligibility for treatment if breast cancer is diagnosed. Just a few weeks ago, the headline on the front page of the Washington Post trumpeted a major improvement in survival of patients with early breast cancer following use of modern treatment regimens involving chemotherapy and hormone therapy. Information about treatment of breast cancer with surgery, chemotherapy, and radiation therapy has exploded, reflecting enormous research advances in this disease. So I am feeling quite positive about our battle against breast cancer. A diagnosis of breast cancer is not a death sentence, and I encounter long-term survivors of breast cancer nearly daily. In recent times, the newspapers have been filled with discussion over whether the scientific evidence actually supports the conclusion that periodic screening mammography saves lives. It seems that much of this controversy relates to new interpretations of old studies, and the relatively few recent studies of this matter have not clarified this issue. Most sources seem to agree that all of the existing scientific studies have some weaknesses, but it is far from clear whether the very large and truly unambiguous study needed to settle this matter definitively can ever be done. So what is a woman to do? I do not claim any expertise in this highly technical area, so I rely on the experts. The American Cancer Society, the National Cancer Institute, and the U.S. Preventive Services Task Force all continue to recommend periodic screening mammography, and I endorse the statements of these distinguished bodies. On the other hand, I recognize that some women who examine these research studies are unconvinced of the need for periodic screening mammography. However, even those scientists who do not support periodic mammography for all women believe that it is appropriate for some groups of women with particular risk factors. In agreement with these experts, I encourage all women who have doubts about the usefulness of screening mammography in general to discuss with their individual physicians whether this test is appropriate in their specific situations. So my message to women is: have a periodic mammogram, or at the very least discuss this option with your own physician. I know that some women don't have annual mammograms because of either fear or forgetfulness. It is only human nature for some women to avoid mammograms because they are afraid of what they will find. To those who are fearful, I would say that if you have periodic routine mammograms, and the latest one comes out positive, even before you have any symptoms or have found a lump on self-examination, you have reason to be optimistic, not pessimistic. Such early-detected breast cancers are highly treatable. Then there is forgetfulness. I certainly understand how difficult it is to remember to do something that only comes around once each year. I would suggest that this is where ``National Mammography Day'' comes in. On that day, let's make sure that each woman we know picks a specific date on which to get a mammogram each year, a date that she won't forget: a child's birthday, an anniversary, perhaps even the day her taxes are due. On National Mammography Day, let's ask our loved ones: pick one of these dates, fix it in your mind along with a picture of your child, your wedding, or another symbol of that date, and promise yourself to get a mammogram on that date every year. Do it for yourself and for the others that love you and want you to be part of their lives for as long as possible. And to those women who are reluctant to have a mammogram, I say let National Mammography Day serve as a reminder to discuss this question each year with your physician. New scientific studies that are published and new mammography techniques that are developed may affect your decision on this matter from one year to the next. I encourage you to keep an open mind and not to feel that a decision at one point in time commits you irrevocably to a particular course of action for the indefinite future. I urge my colleagues to join me in the ongoing fight against breast cancer by cosponsoring and voting for this resolution to designate October 21, 2005, as ``National Mammography Day.''

Mr. BIDEN

Mr. BIDEN. Mr. President, today I am submitting a resolution expressing the sense of the Senate that the week that includes Veterans' Day, corresponding this year to November 6-12, 2005, be designated as ``National Veterans Awareness Week''. This marks the sixth year in a row that I have submitted such a resolution, which has been adopted unanimously by the Senate on all previous occasions. The purpose of National Veterans Awareness Week is to serve as a focus for educational programs designed to make students in elementary and secondary schools aware of the contributions of veterans and their importance in preserving American peace and prosperity. This goal takes on particular importance and immediacy this year as we find ourselves again with uniformed men and women in harm's way in foreign lands. Why do we need such an educational effort? In a sense, this action has become necessary because we are victims of our own success with regard to the superior performance of our armed forces. The plain fact is that there are just fewer people around now who have had any connection with military service. For example, as a result of tremendous advances in military technology and the resultant productivity increases, our current armed forces now operate effectively with a personnel roster that is one-third less in size than just 15 years ago. In addition, the success of the all-volunteer career-oriented force has led to much lower turnover of personnel in today's military than in previous eras when conscription was in place. Finally, the number of veterans who served during previous conflicts, such as World War II, when our military was many times larger than today, is inevitably declining. The net result of these changes is that the percentage of the entire population that has served in the Armed Forces is dropping rapidly, a change that can be seen in all segments of society. Whereas during World War II it was extremely uncommon to find a family in America that did not have one of its members on active duty, now there are numerous families that include no military veterans at all. Even though the Iraqi war has been prominently discussed on television and in the newspapers, many of our children are much more preoccupied with the usual concerns of young people than with keeping up with the events of the day. As a consequence, many of our youth still have little or no connection with or knowledge about the important historical and ongoing role of men and women who have served in the military. This omission seems to have persisted despite ongoing educational efforts by the Department of Veterans Affairs and the veterans service organizations. This lack of understanding about military veterans' important role in our society can have potentially serious repercussions. In our country, civilian control of the armed forces is the key tenet of military governance. A citizenry that is oblivious to the capabilities and limitations of the armed forces, and to its critical role throughout our history, can make decisions regarding our military involvement that may have unexpected and unwanted consequences. Even more important, general recognition of the importance of those individual character traits that are essential for military success, such as patriotism, selflessness, sacrifice, and heroism, is vital to maintaining these key aspects of citizenship in the armed forces and even throughout the population at large. The failure of our children to understand why a military is important, why our society continues to depend on it for ultimate survival, and why a successful military requires integrity and sacrifice, will have predictable consequences as these youngsters become of voting age. Even though military service is a responsibility that is no longer shared by a large segment of the population, as it has been in the past, knowledge of the contributions of those who have served in the Armed Forces is as important as it has ever been. To the extent that many of us will not have the opportunity to serve our country in uniform, we must still remain cognizant of our responsibility as citizens to fulfill the obligations we owe, both tangible and intangible, to those who do serve and who do sacrifice on our behalf. The importance of this issue was brought home to me several years ago by Samuel I. Cashdollar, who was then a 13-year-old seventh grader at Lewes Middle School in Lewes, DE. Samuel won the Delaware VFW's Youth Essay Contest that year with a powerful presentation titled ``How Should We Honor America's Veterans''? Samuel's essay pointed out that we have Nurses' Week, Secretaries' Week, and Teachers' Week, to rightly emphasize the importance of these occupations, but the contributions of those in uniform tend to be overlooked. We don't want our children growing up to think that Veterans Day has simply become a synonym for a department store sale, and we don't want to become a nation where more high school seniors recognize the name Britney Spears than the name Dwight Eisenhower. National Veterans Awareness Week complements Veterans Day by focusing on education as well as commemoration, on the contributions of the many in addition to the heroism and service of the individual. National Veterans Awareness Week also presents an opportunity to remind ourselves of the contributions and sacrifices of those who have served in peacetime as well as in conflict; both groups work unending hours and spend long periods away from their families under conditions of great discomfort so that we all can live in a land of freedom and plenty. Last year, my Resolution designating National Veterans Awareness Week was approved in the Senate by unanimous consent. Responding to that Resolution, President Bush issued a proclamation urging our citizenry to observe National Veterans Awareness Week. I ask my colleagues to continue this trend of support for our veterans by endorsing this resolution again this year. Our children and our children's children will need to be well informed about what veterans have accomplished in order to make appropriate decisions as they confront the numerous worldwide challenges that they are sure to face in the future.

Mr. BIDEN

Mr. BIDEN. Mr. President, how much time remains on the minority?

Mr. BIDEN. Mr. President, my friends and colleagues, I have not been here as long as Senator Byrd, and no one fully understands the Senate as well as Senator Byrd, but I have been here for over three decades. This is the single most significant vote any one of us will cast in my 32 years in the Senate. I suspect the Senator would agree with that. We should make no mistake. This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power grab by the majority party, propelled by its extreme right and designed to change the reading of the Constitution, particularly as it relates to individual rights and property rights. It is nothing more or nothing less. Let me take a few moments to explain that. Folks who want to see this change want to eliminate one of the procedural mechanisms designed for the express purpose of guaranteeing individual rights, and they also have a consequence, and would undermine the protections of a minority point of view in the heat of majority excess. We have been through these periods before in American history but never, to the best of my knowledge, has any party been so bold as to fundamentally attempt to change the structure of this body. Why else would the majority party attempt one of the most fundamental changes in the 216-year history of this Senate on the grounds that they are being denied ten of 218 Federal judges, three of whom have stepped down? What shortsightedness, and what a price history will exact on those who support this radical move. It is important we state frankly, if for no other reason than the historical record, why this is being done. The extreme right of the Republican Party is attempting to hijack the Federal courts by emasculating the courts' independence and changing one of the unique foundations of the Senate; that is, the requirement for the protection of the right of individual Senators to guarantee the independence of the Federal Judiciary. This is being done in the name of fairness? Quite frankly, it is the ultimate act of unfairness to alter the unique responsibility of the Senate and to do so by breaking the very rules of the Senate. Mark my words, what is at stake here is not the politics of 2005, but the Federal Judiciary in the country in the year 2025. This is the single most significant vote, as I said earlier, that I will have cast in my 32 years in the Senate. The extreme Republican right has made Federal appellate Judge Douglas Ginsburg's ``Constitution in Exile'' framework their top priority. It is their purpose to reshape the Federal courts so as to guarantee a reading of the Constitution consistent with Judge Ginsburg's radical views of the fifth amendment's taking clause, the nondelegation doctrine, the 11th amendment, and the 10th amendment. I suspect some listening to me and some of the press will think I am exaggerating. I respectfully suggest they read Judge Ginsburg's ideas about the ``Constitution in Exile.'' Read it and understand what is at work here. If anyone doubts what I am saying, I suggest you ask yourself the rhetorical question, Why, for the first time since 1789, is the Republican-controlled Senate attempting to change the rule of unlimited debate, eliminate it, as it relates to Federal judges for the circuit court or the Supreme Court? If you doubt what I said, please read what Judge Ginsburg has written and listen to what Michael Greve of the American Enterprise Institute has said: I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice. We want to withdraw judicial support for the entire modern welfare state. Read: Social Security, workmen's comp. Read: National Labor Relations Board. Read: FDA. Read: What all the byproduct of that shift in constitutional philosophy that took place in the 1930s meant. We are going to hear more about what I characterize as radical view-- maybe it is unfair to say radical--a fundamental view and what, at the least, must be characterized as a stark departure from current constitutional jurisprudence. Click on to American Enterprise Institute Web site www.aei.org. Read what they say. Read what the purpose is. It is not about seeking a conservative court or placing conservative Justices on the bench. The courts are already conservative. Seven of the nine Supreme Court Justices appointed by Republican Presidents Nixon, Ford, Reagan, and Bush 1--seven of nine. Ten of 13 Federal circuit courts of appeal dominated by Republican appointees, appointed by Presidents Nixon, Ford, Reagan, Bush 1, and Bush 2; 58 percent of the circuit court judges appointed by Presidents Nixon, Ford, Reagan, Bush 1, or Bush 2. No, my friends and colleagues, this is not about building a conservative court. We already have a conservative court. This is about guaranteeing a Supreme Court made up of men and women such as those who sat on the Court in 1910 and 1920. Those who believe, as Justice Janice Rogers Brown of California does, that the Constitution has been in exile since the New Deal. My friends and colleagues, the nuclear option is not an isolated instance. It is part of a broader plan to pack the court with fundamentalist judges and to cower existing conservative judges to toe the extreme party line. You all heard what Tom DeLay said after the Federal courts refused to bend to the whip of the radical right in the Schiavo case. Mr. DeLay declared: ``The time will come for men responsible for this to answer for their behavior.'' Even current conservative Supreme Court Justices are looking over their shoulder, with one extremist recalling the despicable slogan of Joseph Stalin--and I am not making this up--in reference to a Reagan Republican appointee, Justice Kennedy, when he said: ``No man, no problem''--absent his presence, we have no problem. Let me remind you, as I said, Justice Kennedy was appointed by President Reagan. Have they never heard of the independence of the judiciary--as fundamental a part of our constitutional system of checks and balances as there is today; which is literally the envy of the entire world, and the fear of the extremist part of the world? An independent judiciary is their greatest fear. Why are radicals focusing on the court? Well, first of all, it is their time to be in absolute political control. It is like, why did Willy Sutton rob banks? He said: Because that is where the money is. Why try it now--for the first time in history--to eliminate extended debate? Well, because they control every lever of the Federal Government. That is the very reason why we have the filibuster rule. So when one party, when one interest controls all levers of Government, one man or one woman can stand on the floor of the Senate and resist, if need be, the passions of the moment. But there is a second reason why they are focusing on the courts. That is because they have been unable to get their agenda passed through the legislative bodies. Think about it. With all the talk about how they represent the majority of the American people, none of their agenda has passed as it relates to the fifth amendment, as it relates to zoning laws, as it relates to the ability of Federal agencies, such as the Food and Drug Administration, the Environmental Protection Agency, to do their jobs. Read what they write when they write about the nondelegation doctrine. That simply means, we in the Congress, as they read the Constitution, cannot delegate to the Environmental Protection Agency the authority to set limits on how much of a percentage of carcinogens can be admitted into the air or admitted into the water. They insist that we, the Senate, have to vote on every one of those rules, that we, the Senate and the House, with the ability of the President to veto, would have to vote on any and all drugs that are approved or not approved. If you think I am exaggerating, look at these Web sites. These are not a bunch of wackos. These are a bunch of very bright, very smart, very well-educated intellectuals who see these Federal restraints as a restraint upon competition, a restraint upon growth, a restraint upon the powerful. The American people see what is going on. They are too smart, and they are too practical. They might not know the meaning of the nondelegation doctrine, they might not know the clause of the fifth amendment relating to property, they may not know the meaning of the tenth and eleventh amendments as interpreted by Judge Ginsburg and others, but they know that the strength of our country lies in common sense and our common pragmatism, which is antithetical to the poisons of the extremes on either side. The American people will soon learn that Justice Janice Rogers Brown--one of the nominees who we are not allowing to be confirmed, one of the ostensible reasons for this nuclear option being employed--has decried the Supreme Court's ``socialist revolution of 1937.'' Read Social Security. Read what they write and listen to what they say. The very year that a 5-to-4 Court upheld the constitutionality of Social Security against a strong challenge--1937--Social Security almost failed by one vote. It was challenged in the Supreme Court as being confiscatory. People argued then that a Government has no right to demand that everyone pay into the system, no right to demand that every employer pay into the system. Some of you may agree with that. It is a legitimate argument, but one rejected by the Supreme Court in 1937, that Justice Brown refers to as the ``socialist revolution of 1937.'' If it had not been for some of the things they had already done, nobody would believe what I am saying here. These guys mean what they say. The American people are going to soon learn that one of the leaders of the constitutional exile school, the group that wants to reinstate the Constitution as it existed in 1920, said of another filibustered judge, William Pryor that ``Pryor is the key to this puzzle. There's nobody like him. I think he's sensational. He gets almost all of it.'' That is the reason why I oppose him. He gets all of it. And you are about to get all of it if they prevail. We will not have to debate about Social Security on this floor. So the radical right makes its power play now when they control all political centers of power, however temporary. The radical push through the nuclear option and then pack the courts with unimpeded judges who, by current estimations, will serve an average of 25 years. The right is focused on packing the courts because their agenda is so radical that they are unwilling to come directly to you, the American people, and tell you what they intend. Without the filibuster, President Bush will send over more and more judges of this nature, with perhaps three or four Supreme Court nominations. And there will be nothing--nothing--that any moderate Republican friends and I will be able to do about it. Judges who will influence the rights of average Americans: The ability to sue your HMO that denies you your rights; the ability to keep strip clubs out of your neighborhood--because they make zoning laws unconstitutional--without you paying to keep the person from building; the ability to protect the land your kids play on, the water they drink, the air they breathe, and the privacy of your family in your own home. Remember, many of my colleagues say there is no such thing as a right to privacy in any iteration under the Constitution of the United States of America. Fortunately, we have had a majority of judges who disagreed with that over the past 70 years. But hang on, folks. The fight over judges, at bottom, is not about abortion and not about God, it is about giving greater power to the already powerful. The fight is about maintaining our civil rights protections, about workplace safety and worker protections, about effective oversight of financial markets, and protecting against insider trading. It is about Social Security. What is really at stake in this debate is, point blank, the shape of our constitutional system for the next generation. The nuclear option is a twofer. It excises, friends, our courts and, at the same time, emasculates the Senate. Put simply, the nuclear option would transform the Senate from the so-called cooling saucer our Founding Fathers talked about to cool the passions of the day to a pure majoritarian body like a Parliament. We have heard a lot in recent weeks about the rights of the majority and obstructionism. But the Senate is not meant to be a place of pure majoritarianism. Is majority rule what you really want? Do my Republican colleagues really want majority rule in this Senate? Let me remind you, 44 of us Democrats represent 161 million people. One hundred sixty-one million Americans voted for these 44 Democrats. Do you know how many Americans voted for the 55 of you? One hundred thirty-one million. If this were about pure majorities, my party represents more people in America than the Republican Party does. But that is not what it is about. Wyoming, the home State of the Vice President, the President of this body, gets one Senator for every 246,000 citizens; California, gets one Senator for 17 million Americans. More Americans voted for Vice President Gore than they did Governor Bush. By majoritarian logic, Vice President Gore won the election. Republicans control the Senate, and they have decided they are going to change the rule. At its core, the filibuster is not about stopping a nominee or a bill, it is about compromise and moderation. That is why the Founders put unlimited debate in. When you have to--and I have never conducted a filibuster--but if I did, the purpose would be that you have to deal with me as one Senator. It does not mean I get my way. It means you may have to compromise. You may have to see my side of the argument. That is what it is about, engendering compromise and moderation. Ladies and gentlemen, the nuclear option extinguishes the power of Independents and moderates in this Senate. That is it. They are done. Moderates are important only if you need to get 60 votes to satisfy cloture. They are much less important if you need only 50 votes. I understand the frustration of our Republican colleagues. I have been here 32 years, most of the time in the majority. Whenever you are in the majority, it is frustrating to see the other side block a bill or a nominee you support. I have walked in your shoes, and I get it. I get it so much that what brought me to the Senate was the fight for civil rights. My State, to its great shame, was segregated by law, was a slave State. I came here to fight it. But even I understood, with all the passion I felt as a 29-year-old kid running for the Senate, the purpose--the purpose--of extended debate. Getting rid of the filibuster has long-term consequences. If there is one thing I have learned in my years here, once you change the rules and surrender the Senate's institutional power, you never get it back. And we are about to break the rules to change the rules. I do not want to hear about ``fair play'' from my friends. Under our rules, you are required to get 2/3 of the votes to change the rules. Watch what happens when the majority leader stands up and says to the Vice President--if we go forward with this--he calls the question. One of us, I expect our leader, on the Democratic side will stand up and say: Parliamentary inquiry, Mr. President. Is this parliamentarily appropriate? In every other case since I have been here, for 32 years, the Presiding Officer leans down to the Parliamentarian and says: What is the rule, Mr. Parliamentarian? The Parliamentarian turns and tells them. Hold your breath, Parliamentarian. He is not going to look to you because he knows what you would say. He would say: This is not parliamentarily appropriate. You cannot change the Senate rules by a pure majority vote. So if any of you think I am exaggerating, watch on television, watch when this happens, and watch the Vice President ignore--he is not required to look to an unelected officer, but that has been the practice for 218 years. He will not look down and say: What is the ruling? He will make the ruling, which is a lie, a lie about the rule. Isn't what is really going on here that the majority does not want to hear what others have to say, even if it is the truth? Senator Moynihan, my good friend who I served with for years, said: You are entitled to your own opinion but not your own facts. The nuclear option abandons America's sense of fair play. It is the one thing this country stands for: Not tilting the playing field on the side of those who control and own the field. I say to my friends on the Republican side: You may own the field right now, but you won't own it forever. I pray God when the Democrats take back control, we don't make the kind of naked power grab you are doing. But I am afraid you will teach my new colleagues the wrong lessons. We are the only Senate in the Senate as temporary custodians of the Senate. The Senate will go on. Mark my words, history will judge this Republican majority harshly, if it makes this catastrophic move. Mr. President, I ask unanimous consent that the full text of my statement as written be printed in the Record.

Mr. BIDEN. I yield the floor and suggest the absence of a quorum.

Mr. BIDEN

Mr. BIDEN. Mr. President, today, I rise to introduce legislation to reauthorize the Department of Justice's Office of Community Oriented Policing Services (COPS). This program has achieved what my colleagues and I hoped for back when we were debating the 1994 Crime Bill. Prior to the final vote, in August of 1994, I stated that ``I will vote for this bill, because, as much as anything I have ever voted on in 22 years in the U.S. Senate, I truly believe that passage of this legislation will make a difference in the lives of the American people. I believe with every fiber in my being that if this bill passes, fewer people will be murdered, fewer people will be victims, fewer women will be senselessly beaten, fewer people will continue on the drug path, and fewer children will become criminals.'' Fortunately, with the creation of the COPS program, we were able to form a partnership amongst Federal, State, and local law enforcement and create programs that helped drive down crime rates for eight consecutive years. In 1994 we had historically high rates of violent crimes, such as murders, forcible rapes, and aggravated assaults. We were able to reduce these to the lowest levels in a generation. We reduced the murder rate by 37.8 percent; we reduced forcible rapes by 19.1 percent; and we reduced aggravated assaults by 25.5 percent. Property crimes, including auto thefts also were reduced from historical highs to the lowest levels in decades. How were we able to achieve such great results? Well, we all know it was a combination of factors, but most law enforcement officials credit the Office of Community Oriented Policing with a pivotal role. Indeed, in the words of Attorney General Ashcroft the Community Oriented Policing program (``COPS'') has been ``a miraculous success.'' Just a few months ago, Attorney General Gonzalez reached the same conclusion, stating that ``we put additional officers on the street and now we have crime at an all-time low.'' In addition, this program has been endorsed by every major law enforcement group in the Nation, including the International Association of Chiefs of Police (IACP), the National Association of Police Organizations (NAPO), the National Sheriffs Association (NSA), the International Brotherhood of Police Organizations, the National Organization of Black Law Enforcement Officials (NOBLE), the International Union of Police Associations (IUPA), the Fraternal Order of Police, and others. The bottom line is that from the Top Cop in the United States to the beat officer patrolling a local community, the impact of this program is clear. Rather than support this program, the Bush Administration and Republican leadership is set on eliminating it. President Bush has proposed cuts each year he has been in office, and while we have fought to maintain funding for COPS, we are fighting an uphill battle. Funding for State and local law enforcement programs run out of the Department of Justice is down 75.6 percent since fiscal year 2002. This year, funding for State and local law enforcement is at $118 million for the entire Nation, with no funding for hiring. These cuts are coming at the worst possible time. Local law enforcement is facing what I have called a perfect storm. The FBI is reprogramming its field agents from local crime to terrorism. Undoubtedly, this is necessary given the threats facing our Nation. But, this means that there will be less Federal assistance for drug cases, bank robberies, and violent crime. Local law enforcement will be required to fill the gap left by the FBI in addition to performing more and more homeland security duties. Due to budget restraints at the local level and the unprecedented cuts in Federal assistance they will be less able to do either. Articles in the USA Today and the New York Times highlighted the fact that many cities are being forced to eliminate officers because of local budgets woes. In fact, New York City has lost over 3,000 officers in the last few years. Other cities, such as Cleveland, Minnesota, and Houston, TX, are facing similar shortages. As a result, local police chiefs are reluctantly pulling officers from the proactive policing activities that were so successful in the nineties, and they are unable to provide sufficient numbers of officers for Federal task forces. These choices are not made lightly. Police chiefs understand the value of proactive policing and the need to be involved in homeland security task forces; however, they simply don't have the manpower to do it all. Responding to emergency calls must take precedence over proactive programs and task forces, and I fear that we will see the impact in our national crime rates soon. Local chiefs and sheriffs are reporting increased gang activity. And, murder rates and auto thefts--two very accurate indicators of crime trends--have gone up for three consecutive years. To me, cutting assistance for State and local law enforcement is inexplicable, particularly because the need for Federal assistance remains so pressing. In fact, last month I offered an amendment to restore funding for the COPS program in the sum of $1 billion. This amount would have provided enough funding to eliminate the backlog of pending officer requests of 10,000 from 3,700 jurisdictions throughout the Nation. And, it would have provided funding to support on-going needs this year. Unfortunately, this amendment was voted down on a party-line vote. The Bush Administration's response to these criticisms about its budget is that funding for the Department of Homeland Security is up. Undoubtedly, these are critical, necessary expenditures, and I believe that the Administration has not invested enough for homeland security. We have an obligation to do both. We must fund homeland security and invest in the programs that help reduce traditional crime and prevent terrorism. As terrorism and security experts have pointed out, funding additional officers through the COPS program can help do both. The legislation that I am introducing today provides $1.5 billion per year for six years for the COPS program. This includes $600 million per year for officer hiring grants, $350 million per year for technology grants, and $200 million per year to help local district attorneys hire community prosecutors. This funding will help keep faith with our State and local law enforcement officers who put their lives on the line every day to keep our communities safe from crime and terrorism. I would ask all of my colleagues to go to their local police chief or sheriff and ask them if they should support this legislation, and I hope that they will, because if they did, it would be passed 100-0. I ask unanimous consent that the text of this legislation be printed in the Record.

Mr. BIDEN

Mr. BIDEN. Mr. President, today, I rise to introduce legislation to reauthorize the Department of Justice's Office of Community Oriented Policing Services (COPS). This program has achieved what my colleagues and I hoped for back when we were debating the 1994 Crime Bill. Prior to the final vote, in August of 1994, I stated that ``I will vote for this bill, because, as much as anything I have ever voted on in 22 years in the U.S. Senate, I truly believe that passage of this legislation will make a difference in the lives of the American people. I believe with every fiber in my being that if this bill passes, fewer people will be murdered, fewer people will be victims, fewer women will be senselessly beaten, fewer people will continue on the drug path, and fewer children will become criminals.'' Fortunately, with the creation of the COPS program, we were able to form a partnership amongst Federal, State, and local law enforcement and create programs that helped drive down crime rates for eight consecutive years. In 1994 we had historically high rates of violent crimes, such as murders, forcible rapes, and aggravated assaults. We were able to reduce these to the lowest levels in a generation. We reduced the murder rate by 37.8 percent; we reduced forcible rapes by 19.1 percent; and we reduced aggravated assaults by 25.5 percent. Property crimes, including auto thefts also were reduced from historical highs to the lowest levels in decades. How were we able to achieve such great results? Well, we all know it was a combination of factors, but most law enforcement officials credit the Office of Community Oriented Policing with a pivotal role. Indeed, in the words of Attorney General Ashcroft the Community Oriented Policing program (``COPS'') has been ``a miraculous success.'' Just a few months ago, Attorney General Gonzalez reached the same conclusion, stating that ``we put additional officers on the street and now we have crime at an all-time low.'' In addition, this program has been endorsed by every major law enforcement group in the Nation, including the International Association of Chiefs of Police (IACP), the National Association of Police Organizations (NAPO), the National Sheriffs Association (NSA), the International Brotherhood of Police Organizations, the National Organization of Black Law Enforcement Officials (NOBLE), the International Union of Police Associations (IUPA), the Fraternal Order of Police, and others. The bottom line is that from the Top Cop in the United States to the beat officer patrolling a local community, the impact of this program is clear. Rather than support this program, the Bush Administration and Republican leadership is set on eliminating it. President Bush has proposed cuts each year he has been in office, and while we have fought to maintain funding for COPS, we are fighting an uphill battle. Funding for State and local law enforcement programs run out of the Department of Justice is down 75.6 percent since fiscal year 2002. This year, funding for State and local law enforcement is at $118 million for the entire Nation, with no funding for hiring. These cuts are coming at the worst possible time. Local law enforcement is facing what I have called a perfect storm. The FBI is reprogramming its field agents from local crime to terrorism. Undoubtedly, this is necessary given the threats facing our Nation. But, this means that there will be less Federal assistance for drug cases, bank robberies, and violent crime. Local law enforcement will be required to fill the gap left by the FBI in addition to performing more and more homeland security duties. Due to budget restraints at the local level and the unprecedented cuts in Federal assistance they will be less able to do either. Articles in the USA Today and the New York Times highlighted the fact that many cities are being forced to eliminate officers because of local budgets woes. In fact, New York City has lost over 3,000 officers in the last few years. Other cities, such as Cleveland, Minnesota, and Houston, TX, are facing similar shortages. As a result, local police chiefs are reluctantly pulling officers from the proactive policing activities that were so successful in the nineties, and they are unable to provide sufficient numbers of officers for Federal task forces. These choices are not made lightly. Police chiefs understand the value of proactive policing and the need to be involved in homeland security task forces; however, they simply don't have the manpower to do it all. Responding to emergency calls must take precedence over proactive programs and task forces, and I fear that we will see the impact in our national crime rates soon. Local chiefs and sheriffs are reporting increased gang activity. And, murder rates and auto thefts--two very accurate indicators of crime trends--have gone up for three consecutive years. To me, cutting assistance for State and local law enforcement is inexplicable, particularly because the need for Federal assistance remains so pressing. In fact, last month I offered an amendment to restore funding for the COPS program in the sum of $1 billion. This amount would have provided enough funding to eliminate the backlog of pending officer requests of 10,000 from 3,700 jurisdictions throughout the Nation. And, it would have provided funding to support on-going needs this year. Unfortunately, this amendment was voted down on a party-line vote. The Bush Administration's response to these criticisms about its budget is that funding for the Department of Homeland Security is up. Undoubtedly, these are critical, necessary expenditures, and I believe that the Administration has not invested enough for homeland security. We have an obligation to do both. We must fund homeland security and invest in the programs that help reduce traditional crime and prevent terrorism. As terrorism and security experts have pointed out, funding additional officers through the COPS program can help do both. The legislation that I am introducing today provides $1.5 billion per year for six years for the COPS program. This includes $600 million per year for officer hiring grants, $350 million per year for technology grants, and $200 million per year to help local district attorneys hire community prosecutors. This funding will help keep faith with our State and local law enforcement officers who put their lives on the line every day to keep our communities safe from crime and terrorism. I would ask all of my colleagues to go to their local police chief or sheriff and ask them if they should support this legislation, and I hope that they will, because if they did, it would be passed 100-0. I ask unanimous consent that the text of this legislation be printed in the Record.

Mr. BIDEN

Mr. BIDEN. Mr. President, I rise today to speak at some length, if time will permit me, about the same subject my friend from Washington State so eloquently addressed. My colleagues know that although when I speak, I sometimes get very passionate, I have not very often, in past years, risen to the floor for any extended period of time. I do that today because so much is at stake. For over 200 years, the Senate has embodied the brilliance of our Founding Fathers in creating an intricate system of checks and balances among the three branches of Government. This system has served two critical purposes, both allowing the Senate to act as an independent, restraining force on the excesses of the executive branch, and protecting minority rights within the Senate itself. The Framers used this dual system of checks and balances to underscore the independent nature of the Senate and its members. The Framers sought not to ensure simple majority rule, but to allow minority views--whether they are conservative, liberal, or moderate--to have an enduring role in the Senate in order to check the excesses of the majority. This system is now being tested in the extreme. I believe the proposed course of action we are hearing about these days is one that has the potential to do more damage to this system than anything that has occurred since I have become a Senator. History will judge us harshly, in my view, if we eliminate over 200 years of precedent and procedure in this body and, I might add, doing it by breaking a second rule of the Senate, and that is changing the rules of the Senate by a mere majority vote. When examining the Senate's proper role in our system of Government generally and in the process of judicial nominations specifically, we should begin, in my view, but not end with our Founding Fathers. As any grade school student knows, our Government is one that was infused by the Framers with checks and balances. I should have said at the outset that I owe special thanks--and I will list them--to a group of constitutional scholars and law professors in some of our great universities and law schools for editing this speech for me and for helping me write this speech because I think it may be one of the most important speeches for historical purposes that I will have given in the 32 years since I have been in the Senate. When examining the Senate's proper role in our system of Government and in the process of judicial nominations, as I said, we have to look at what our Founders thought about when they talked about checks and balances. The theoretical underpinning of this system can be found in Federalist 51 where the architect of our Constitution, James Madison, advanced his famous theory that the Constitution set up a system in which ``ambition must be made to counteract ambition.'' ``Ambition must be made to counteract ambition.'' As Madison notes, this is because ``[The] great security against a gradual concentration of the several powers in the same department consists in giving those who administer each department the necessary constitutional means and personal motives to resist encroachments by the other.'' Our Founders made the conscious decision to set up a system of government that was different from the English parliamentary system-- the system, by the way, with which they were the most familiar. The Founders reacted viscerally to the aggrandizement of power in any one branch or any person, even in a person or body elected by the majority of the citizens of this country. Under the system the Founders created, they made sure that no longer would any one person or one body be able to run roughshod over everyone else. They wanted to allow the sovereign people--not the sovereign Government, the sovereign people--to pursue a strategy of divide and conquer and, in the process, to protect the few against the excesses of the many which they would witness in the French Revolution. The independence of the judiciary was vital to the success of that venture. As Federalist 78 notes: The complete independence of the courts of justice is peculiarly essential in a limited Constitution. Our Founders felt strongly that judges should exercise independent judgment and not be beholden to any one person or one body. John Adams, in 1776, stated: The dignity and stability of government in all its branches, the morals of the people, and every blessing of society, depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. Adams continues: The judges, therefore, should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness and attention; their minds should not be distracted with jarring interests; they should not be dependent upon any one man or any body of men. In order to ensure that judicial independence, the very independence of which Adams spoke, the Founders did not give the appointment power to any one person or body, although it is instructive for us, as we debate this issue in determining the respective authority of the Senate and the Executive, it is important to note that for much of the Constitutional Convention, the power of judicial appointment was solely--solely--vested in the hands of the legislature. For the numerous votes taken about how to resolve this issue, never did the Founders conclude that it should start with the Executive and be within the power of the Executive. James Madison, for instance, was ``not satisfied with referring the appointment to the Executive;'' instead, he was ``rather inclined to give it to the Senatorial branch'' which he envisioned as a group ``sufficiently stable and independent'' to provide ``deliberative judgments.'' It was widely agreed that the Senate ``would be composed of men nearly equal to the Executive and would, of course, have on the whole more wisdom'' than the Executive. It is very important to point out that they felt ``it would be less easy for candidates''--referring to candidates to the bench--``to intrigue with [the Senators], more than with the Executive.'' In fact, during the drafting of the Constitution, four separate attempts were made to include Presidential involvement in judicial appointments, but because of the widespread fear of Presidential power, they all failed. There continued to be proponents of Presidential involvement, however, and finally, at the eleventh hour, the appointment power was divided and shared, as a consequence of the Connecticut Compromise I will speak to in a minute, between the two institutions, the President and the Senate. In the end, the Founders set up a system in which the President nominates and the Senate has the power to give or withhold--or withhold--its ``advice and consent.'' The role of ``advice and consent'' was not understood to be purely formal. The Framers clearly contemplated a substantive role on the part of the Senate in checking the President. This bifurcation of roles makes a lot of sense, for how best can we ensure that an independent judiciary is beholden to no one man or no one group than by requiring two separate and wholly independent entities to sign off before a judge takes the bench? There is a Latin proverb which translates to ``Who will guard the guardians?'' Our judges guard our rights, and our Founders were smart enough to put both the President and the Senate, acting independently, in charge of guarding our judicial guardians. Who will guard the guardians? As a Senator, I regard this not as just a right but as a solemn duty and responsibility, one that transcends the partisan disputes of any day or any decade. The importance of multiple checks in determining who our judges would be was not lost on our Founders, even on those who were very much in favor of a strong Executive. For example, Alexander Hamilton, probably the strongest advocate for a stronger Executive, wrote: The possibility of rejection [by the Senate] would be a strong motive to [take] care in proposing [nominations. The President] . . . would be both ashamed and afraid to bring forward . . . candidates who had no other merit, than that . . . of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instrument of his pleasure. Hamilton also rebutted the argument that the Senate's rejection of nominees would give it an improper influence over the President, as some here have suggested, by stating: If by influencing the President be meant restraining him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary. The end result of our Founders was a system in which both the President and the Senate had significant roles, a system in which the Senate was constitutionally required to exercise independent judgment, not simply to rubberstamp the President's desires. As Senator William Maclay said: [W]hoever attends strictly to the Constitution of the United States will readily observe that the part assigned to the Senate was an important one--no less that of being the great check, the regulator and corrector, or, if I may so speak, the balance of this government. . . .The approbation of the Senate was certainly meant to guard against the mistakes of the President in his appointments to office . . . The depriving power should be the same as the appointing power. The Founders gave us a system in which the Senate was to play a significant and substantive role in judicial nominations. They also provided us guidance on what type of legislative body they envisioned. In this new type of governance system they set up in 1789 where power would be separated and would check other power, the Founders envisioned a special unique role for the Senate that does not exist anywhere else in governance or in any parliamentary system. There is the oft-repeated discussion between two of our most distinguished Founding Fathers, Thomas Jefferson and George Washington. Reportedly, at a breakfast that Jefferson was having with Washington upon returning from Paris, because he was not here when the Constitution was written, Jefferson was somewhat upset that there was a bicameral legislative body, that a Senate was set up. He asked Washington: Why did you do this, set up a Senate? And Washington looked at Jefferson as they were having tea and said: Why did you pour that tea into your saucer? And Jefferson responded: To cool it. I might note parenthetically that was the purpose of a saucer originally. It was not to keep the tablecloth clean. Jefferson responded: To cool it, and Washington then sagely stated: Even so, we pour legislation into the senatorial saucer to cool it. The Senate was designed to play this independent and, I might emphasize, moderating--a word not heard here very often--moderating and reflective role in our Government. But what aspects of the Senate led it to become this saucer, cooling the passions of the day for the betterment of America's long-term future? First, the Founders certainly did not envision the Senate as a body of unadulterated majoritarianism. In fact, James Madison and other Founders were amply concerned about the majority's ability, as they put it, ``to oppress the minority.'' It was in this vein the Senate was set up ``first to protect the people against their rulers; secondly, to protect the people against the transient impressions into which they themselves might be led. . . .The use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.'' Structurally, the Founders set up a ``different type of legislature'' by ensuring that each citizen--now here is an important point, and if anybody in this Chamber understands this, the Presiding Officer does-- the Founders set up this different type of legislative body by ensuring that each citizen did not have an equal say in the functioning of the Senate--that sounds outrageous, to ensure they did not have an equal say--but that each State did have an equal say. In fact, for over a century, Senators were not originally chosen by the people, as the Presiding Officer knows, and it was not until 1913 that they were elected by the people as opposed to selected by their State legislative bodies. Today, Mr. President, you and I do stand directly before the people of our State for election, but the Senate remains to this day a legislative body that does not reflect the simple popular majority because representation is by States. That means someone from Maine has over 25 times as much effective voting power in this body as the Senator from California. An interesting little fact, and I do not say this to say anything other than how the system works, there are more desks on that side of the aisle. That side has 55. Does that side of the aisle realize this side of the aisle, with 45 desks, represents more Americans than they do? If we add up all the people represented by the Republican Party in the Senate, they add up to fewer people than the Democratic Party represents in the Senate. We represent the majority of the American people, but in this Chamber it is irrelevant and it should be because this was never intended in any sense to be a majoritarian institution. This distinctive quality of the Senate was part of that Great Compromise without which we would not have a Constitution referred to as the Connecticut Compromise. Edmund Randolph, who served as the first Attorney General of the United States and would later be Secretary of State, represented Virginia at the Constitutional Convention, and in that context he argued for fully proportionate representation in the debates over the proper form of the legislative branch, but ultimately he agreed to the Connecticut Compromise. After reflection, that so seldom happens among our colleagues, myself included, he realized his first position was incorrect and he stated: The general object was to provide a cure for the evils under which the United States labored; that in tracing these evils to their origin every man-- Referring to every man who agreed to the compromise-- had found it in the turbulence and follies of democracy; that some check therefore was to be sought against this tendency of our Governments; and that a good Senate seemed most likely to answer this purpose. So the Founders quite intentionally designed the Senate with these distinctive features. Specifically, article 1, section 5 of the Constitution states that each House may determine its own rules for its own proceedings. Precisely: ``Each House may determine the Rules of its Proceedings.'' The text contains no limitations or conditions. This clause plainly vests the Senate with plenary power to devise its internal rules as it sees fit, and the filibuster was just one of those procedural rules of the many rules that vest a minority within the Senate with the potential to have a final say over the Senate's business. It was clear from the start that the Senate would be a different type of legislative body; it would be a consensus body that respects the rights of minorities, even the extreme minority power of a single Senator because that single Senator can represent a single and whole State. The way it is played out in practice was through the right of unlimited debate. I find it fascinating, we are talking about the limitation of a right that has already limited the original right of the Founding Fathers. The fact was there was no way to cut off debate for the first decades of this Republic. Joseph Story, famous justice and probably one of the best known arbiters of the Constitution in American history, his remark about the importance of the right of debate was ``the next great and vital privilege is the freedom of speech and debate, without which all other privileges would be comparatively unimportant, or ineffectual.'' And that goes to the very heart of what made the Senate different. In the Senate, each individual Senator was more than a number to be counted on the way to a majority vote, something I think some of us have forgotten. Daniel Webster put it this way: This is a Senate of equals, of men of individual honor and personal character, and of absolute independence. We know no masters, we acknowledge no dictators. This is a hall for mutual consultation and discussion; not an arena for the exhibition of champions. Extended debate, the filibuster, was a means to reach a more modest and moderate result to achieve compromise and common ground to allow Senators, as Webster had put it, to be men--and now men and women--of absolute independence. Until 1917, there was no method to cut off debate in the Senate, to bring any measure to a vote, legislative or nomination--none, except unanimous consent. Unanimous consent was required up until 1917 to get a vote on a judge, on a bill, on anything on the Executive Calendar. The Senate was a place where minority rights flourished completely, totally unchecked, a place for unlimited rights of debate for each and every Senator. In part this can be understood as a recognition of our federal system of government in which we were not just a community of individuals but we were also a community of sovereign States. Through the Senate, each State, through their two Senators, had a right to extensive debate and full consideration of its views. For much of the Senate's history, until less than 100 years ago, to close off debate required not just two-thirds of the votes, but it required all of the votes. The Senate's history is replete with examples of situations in which a committed minority flexed its ``right to debate'' muscles. In fact, there was a filibuster over the location of the Capitol of the United States in the First Congress. But what about how this tradition of allowing unlimited debate and respect for minority rights played out in the nomination context, as opposed to the legislative process? First, the text of the Constitution makes no distinction whatsoever between nominations and legislation. Nonetheless, those who are pushing the nuclear option seem to suggest that while respect for minority rights has a long and respected tradition on the legislative side of our business, things were somehow completely different when it came to considering nominations. In fact, it is the exact opposite. The history of the Senate shows, and I will point to it now, that previous Senates certainly did not view that to be the case. While it is my personal belief that the Senate should be more judicious in the use of the filibuster, that is not how it has always been. For example, a number of President Monroe's nominations never reached the floor by the end of his administration and were defeated by delay, in spite of his popularity and his party's control of the Senate. Furthermore, President Adams had a number of judicial nominations blocked from getting to the floor. More than 1,300 appointments by President Taft were filibustered. President Wilson also suffered from the filibusters of his nominees. Not only does past practice show no distinction between legislation and judicial nominations in regards to the recognition of minority rights, the formal rules of the Senate have never recognized such a distinction, except for a 30-year stretch in the Senate history, 1917 to 1949, when legislation was made subject to cloture but nominations were not. Do my colleagues hear this? All of those who think a judge is more entitled to a vote than legislation, in 1917 it was decided that absolute unlimited debate should be curtailed, and there needs to be a two-thirds vote to cut off debate in order to bring legislation to the floor. But there was no change with regard to judicial nominees. There was a requirement of unanimous consent to get a nominee voted on. So much for the argument that the Constitution leans toward demanding a vote on nominations more than on legislation. It flies in the face of the facts, the history of America and the intent of our Framers. This fact in itself certainly undercuts the claim that there has been, by tradition, the insulating of judicial nominees from filibusters. In both its rules and its practices, the Senate has long recognized the exercise of minority rights with respect to nominations. And it should come as no surprise that in periods where the electorate is split very evenly, as it is now, the filibustering of nominations was used extensively. For example, my good friend Senator Hatch who is on the Senate floor--as my mother would say, God love him, because she likes him so much, and I like him, too--he may remember when I was chairman of the Judiciary Committee back in the bad old days when the Democrats controlled the Senate during President Clinton's first 2 years in office, a time when the Democrats controlled both the Presidency and the Senate but nonetheless the country remained very divided, numerous filibusters resulted, even in cases not involving the judiciary. I remind my friends, for example, that the nomination of Dr. Henry Foster for Surgeon General, Sam Brown to be ambassador to the Conference on Cooperation and Security in Europe, Janet Napolitano to be U.S. attorney in the District of Arizona, and Ricki Tigert for the Federal Deposit Insurance Corporation head, were all filibustered. We controlled the Senate, the House, the Presidency, but the Nation was nonetheless divided. Some may counter that there should be a difference between how judicial nominees should be treated versus the treatment accorded executive branch nominees, the Cabinet, and the rest. Constitutional text, historical practice and principle all run contrary to that proposition. On the textual point, we only have one appointments clause. It is also instructive to look at a few historical examples. In 1881, Republican President Rutherford B. Hayes nominated Stanley Matthews to the Supreme Court. A filibuster was mounted, but the Republican majority in the Senate was unable to break the filibuster, and Stanley Matthews' Supreme Court nomination failed without getting a vote. In 1968, the filibuster to block both Justice Abe Fortas from becoming Chief Justice and Fifth Circuit Court Judge Homer Thornberry to occupy the seat that Justice Fortas was vacating was one where the Democrats controlled the Senate, and the Republicans filibustered. The leader of that successful filibuster effort against Justice Fortas was Republican Senator Robert Griffin from Michigan. In commenting on the Senate's rejection of President George Washington's nomination of John Rutledge to be Chief Justice of the Supreme Court, the Republican Senator who mounted a successful filibuster against Fortas on the floor--translated, Fortas never got a vote, even though he was a sitting Supreme Court Justice about to be elevated to Chief Justice-- what did the Senator from Michigan who led that fight say about the first fight in the Senate? That action in 1795 said to the President then in office and to future Presidents: ``Don't expect the Senate to be a rubberstamp. We have an independent coequal responsibility in the appointing process; and we intend to exercise that responsibility, as those who drafted the Constitution so clearly intended.'' There is also a very important difference between judicial and executive nominees that argued for greater Senate scrutiny of judicial nominees. It should be noted that legislation is not forever. Judicial appointments are for the life of the candidate. Of course, no President has unlimited authority, even related to his own Cabinet. But when you look at judges, they serve for life. An interesting fact that differentiates us from the 1800s, when these filibusters took place, and 1968, when they took place: The average time a Federal judge spends on the bench, if appointed in the last 10 years from today, has increased from 15 years to 24 years. That means that on average, every judge we vote for will be on that bench for a quarter century. Since the impeachment clause is fortunately not often used, the only opportunity the Senate has to have its say is in this process. The nuclear option was so named because it would cause widespread bedlam and dysfunction throughout the Senate, as the minority party, my party, has pledged to render its vigorous protest. But I do not want to dwell on those immediate consequences which, I agree with my Senate Judiciary Committee chairman, would be dramatic. He said: If we come to the nuclear option the Senate will be in turmoil and the Judiciary Committee will be in hell. However serious the immediate consequences may be, and however much such dysfunction would make both parties look juvenile and incompetent, the more important consequence is the long-term deterioration of the Senate. Put simply, the nuclear option threatens the fundamental bulwark of the constitutional design. Specifically, the nuclear option is a double-barreled assault on this institution. First, requiring only a bare majority of Senators to confirm a judicial nominee is completely contrary to the history and intent of the Senate. The nuclear option also upsets a tradition and history that says we are not going to change the rules of the Senate by a majority vote. It breaks the rule to change the rule. If we go down this path of the nuclear option, we will be left with a much different system from what our Founders intended and from how the Senate has functioned throughout its history. The Senate has always been a place where the structure and rules permit fast-moving partisan agendas to be slowed down; where hotheads could cool and where consensus was given a second chance, if not a third and a fourth. While 90 percent of the business is conducted by unanimous consent in this body, those items that do involve a difference of opinion, including judicial nominations, must at least gain the consent of 60 percent of its Members in order to have that item become law. This is not a procedural quirk. It is not an accident of history. It is what differentiates the Senate from the House of Representatives and the English Parliament. President Lyndon Johnson, the ``Master of the Senate,'' put it this way: 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. And it is not just leaders from the Democratic Party who understand the importance of protecting minority rights. Former Senate Majority Leader Howard Baker wrote in 1993 that compromising the filibuster: 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. Put simply, the ``nuclear option'' would eviscerate the Senate and turn it into the House of Representatives. It is not only a bad idea, it upsets the Constitutional design and it disserves the country. No longer would the Senate be that ``different kind of legislative body'' that the Founders intended. No longer would the Senate be the ``saucer'' to cool the passions of the immediate majority. Without the filibuster, more than 40 Senators would lack the means by which to encourage compromise in the process of appointing judges. Without the filibuster, the majority would transform this body into nothing more than a rubber stamp for every judicial nomination. The Senate needs the threat of filibuster to force a President to appoint judges who will occupy the sensible center rather than those who cater to the whim of a temporary majority. And here is why--it is a yes or no vote; you can't amend a nomination. With legislation, you can tinker around the edges and modify a bill to make it more palatable. You can't do that with a judge. You either vote for all of him or her, or none. So only by the threat of filibuster can we obtain compromise when it comes to judges. We, as Senators, collectively need to remember that it is our institutional duty to check any Presidential attempt to take over the Judiciary. As the Congressional Research Service, the independent and non-partisan research arm of Congress, stated, the ``nuclear option'' would: . . . strengthen the executive branch's hand in the selection of federal judges. This shouldn't be a partisan issue, but an institutional one. Will the Senate aid and abet in the erosion of its Article I power by conceding to another branch greater influence over our courts? As Senator Stennis once said to me in the face of an audacious claim by President Nixon: Are we the President's men or the Senate's? He resolved that in a caucus by speaking to us as only John Stennis could, saying: I am a Senate man, not the President's man. Too many people here forget that. Earlier, I explained that for much of the Senate's history, a single Senator could stop legislation or a nomination dead in its tracks. More recent changes to the Senate Rules now require only \3/5\ of the Senate, rather than all of its Members, to end debate. Proponents of the ``nuclear option'' argue that their proposal is simply the latest iteration of a growing trend towards majoritarianism in the Senate. God save us from that fate, if it is true. I strongly disagree. Even a cursory review of these previous changes to the Senate Rules on unlimited debate show that these previous mechanisms to invoke cloture always respected minority rights. The ``nuclear option'' completely eviscerates minority rights. It is not simply a change in degree but a change in kind. It is a discontinuous action that is a sea change, fundamentally restructuring what the Senate is all about. It would change the Senate from a body that protects minority rights to one that is purely majoritarian. Thus, rather than simply being the next logical step in accommodating the Senate Rules to the demands of legislative and policy modernity, the ``nuclear option'' is a leap off the institutional precipice. And so here we collectively stand--on the edge of the most important procedural change during my 32-year Senate career, and one of the most important ever considered in the Senate; a change that would effectively destroy the Senate's independence in providing advice and consent. I ask unanimous consent to be able to continue for another 15 minutes. The PRESIDNG OFFICER. Without objection, it is so ordered.

Mr. BIDEN. The ``nuclear option'' would gut the very essence and core of what the Senate is about as an institution--flying directly in the face of our Founders who deliberately rejected a parliamentary system. A current debate, over a particular set of issues, should not be permitted to destroy what history has bestowed on us. And the stakes are much, much higher than the contemporary controversy over the judiciary. Robert Caro, the noted author on Senate history, wrote the following in a letter to the Chairman and Ranking Member of the Senate Committee on Rules and Administration: [I]n considering any modification [to the right of extended debate in the Senate Senators should realize they are dealing not with the particular dispute of the moment, but with the fundamental character of the Senate of the United States, and with the deeper issue of the balance between majority and minority rights . . ., you need only look at what happened when the Senate gradually surrendered more and more of its power over international affairs to learn the lesson that once you surrender power, you never get it back. The fight over the nuclear option is not just about the procedure for confirming judges. It is also, fundamentally, about the integrity of the Senate. Put simply, the ``nuclear option'' changes the rules midstream. Once the Senate starts changing the rules outside of its own rules, which is what the nuclear option does, there is nothing to stop a temporary majority from doing so whenever a particular rule would pose an obstacle. It is a little akin to us agreeing to work together on a field. I don't have to sit down and agree with you that we are going to divide up this field, but I say, OK, I will share my rights in this field with you. But here is the deal we agree to at the start. Any change in the agreements we make about how to run this field have to be by a supermajority. OK? Because that way I am giving up rights--which all the Founders did in this body, this Constitution--rights of my people, for a whole government. But if you are going to change those rules with a pure majority vote, then I would have never gotten into the deal in the first place. I suffer from teaching constitutional law for the last 13 years, an advanced class on constitutional law at Widener University, a seminar on Saturday morning, and I teach this clause. I point out the essence of our limited constitutional government, which is so different than every other, is that it is based on the consent of the governed. The governed would never have given consent in 1789 if they knew the outfit they were giving the consent to would be able, by a simple majority, to alter their say in their governance. The Senate is a continuing body, meaning the rules of the Senate continue from one session to the next. Specifically, rule V provides: The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules. I say to my colleague from North Carolina, on the floor, I say to my colleague from South Carolina, I say to my colleague from Utah: If you vote for this ``nuclear option'' you are about to break faith with the American people and the sacred commitment that was made on how to change the rules. Senate rule XXII allows only a rule change with two-thirds votes. The ``continuing body'' system is unlike many other legislative bodies and is part of what makes the Senate different and allows it to avoid being captured by the temporary passions of the moment. It makes it different from the House of Representatives, which comes up with new rules each and every Congress from scratch. The ``nuclear option'' doesn't propose to change the judicial filibuster rule by securing a two-thirds vote, as required under the existing rules. It would change the rule with only a bare majority. In fact, as pointed out recently by a group of legal scholars: On at least 3 separate occasions, the Senate has expressly rejected the argument that a simple majority has the authority claimed by the proponents of the [nuclear option]. One historical incident is particularly enlightening. In 1925, the Senate overwhelmingly refused to agree to then-Vice President Dawes' suggestion that the Senate adopt a proposal for amending its rules identical to the nuclear option. On this occasion, an informal poll was taken of the Senate. It indicated over 80 percent of the Senators were opposed to such a radical step. Let me be very clear. Never before have Senate rules been changed except by following the procedures laid out in the Senate rules. Never once in the history of the Senate. The Congressional Research Service directly points out that there is no previous precedent for changing the Senate rules in this way. The ``nuclear option'' uses an ultra-vires mechanism that has never before been used in the Senate--``Employment of the [nuclear option] would require the chair to overturn previous precedent. The Senate Parliamentarian, the nonpartisan expert on the Senate's procedural rules--who is hired by the majority--has reportedly said that Republicans will have to overrule him to employ the ``nuclear option''. Adopting the ``nuclear option'' would send a terrible message about the malleability of Senate rules. No longer would they be the framework that each party works within. I've been in the Senate for a long time, and there are plenty of times I would have loved to change this rule or that rule to pass a bill or to confirm a nominee I felt strongly about. But I didn't, and it was understood that the option of doing so just wasn't on the table. You fought political battles; you fought hard; but you fought them within the strictures and requirements of the Senate rules. Despite the short-term pain, that understanding has served both parties well, and provided long-term gain. Adopting the ``nuclear option'' would change this fundamental understanding and unbroken practice of what the Senate is all about. Senators would start thinking about changing other rules when they became ``inconvienent.'' Instead of two- thirds of the vote to change a rule, you'd now have precedent that it only takes a bare majority. Altering Senate rules to help in one political fight or another could become standard operating procedure, which, in my view, would be disastrous. The Congressional Research Service has stated that adopting the ``nuclear option'' would set a precedent that could apply to virtually all Senate business. It would ultimately threaten both parties, not just one. The Service report states: The presence of such a precedent might, in principle, enable a voting majority of the Senate to alter any procedure at-will by raising a point of order . . . by such means, a voting majority might subsequently impose limitations on the consideration of any item of business, prohibiting debate or amendment to any desired degree. Such a majority might even alter applicable procedures from one item of business to the next, from one form of proceeding to a contrary one, depending on immediate objects. Just as the struggle over the ``nuclear option'' is about constitutional law and Senate history, it is also about something much more simple and fundamental--playing by the rules. I reiterate that I think Senator Frist and his allies think they are acting on the basis of principle and commitment, but I regret to say they are also threatening to unilaterally change the rules in the middle of the game. Imagine a baseball team with a five-run lead after eight innings unilaterally declaring that the ninth inning will consist of one out per team. Would the fans--for either side--stand for that? If there is one thing this country stands for it's fair play--not tilting the playing field in favor of one side or the other, not changing the rules unilaterally. We play by the rules, and we win or lose by the rules. That quintessentially American trait is abandoned in the ``nuclear option.'' Republican Senators as well as Democratic ones have benefited from minority protections. Much more importantly, American citizens have benefited from the Senate's check on the excesses of the majority. But this is not just about games, and playing them the right way. This is about a more ethereal concept--justice. In his groundbreaking philosophical treatise, A Theory of Justice, the philosopher John Rawls points to the importance of what he calls procedural justice. Relying on this predecessors such as Immanuel Kant, Thomas Hobbes, Jean Jacques Rousseau, and John Locke, Rawls argues that, in activities as diverse as cutting a birthday cake and conducting a criminal trial, it is the procedure that makes the outcome just. An outcome is just if it has been arrived at through a fair procedure. This principle undergirds our legal system, including criminal and civil trials. Moreover it is at the very core of our Constitution. The term ``due process of law'' appears not once but twice in our Constitution, because our predecessors recognized the vital importance of setting proper procedures--proper rules--and abiding by them. It is also the bedrock principle we Senators rely on in accepting outcomes with which we may disagree. We know the debate was conducted fairly--the game was played by the rules. A decision to change the Senate's rules in violation of those very same rules abandons the procedural justice that legitimates everything we do. It is interesting to ask ourselves what's different about now, why are we at this precipice where the ``nuclear option'' is actually being seriously debated and very well might be utilized? Why have we reached this point when such a seemingly radical rule change is being seriously considered by a majority of Senators? It's a good question, and I don't have an easy answer. We have avoided such fights in the past largely because cooler heads have prevailed and accommodation was the watchword. As Senator Sam Ervin used to say--the separation of powers should not, as President Woodrow Wilson warned, become an invitation for warfare between the two branches. Throughout this country's history--whether during times of war or political division, for example--Presidents have sometimes extended an olive branch across the aisle. Past Presidents have in these circumstances made bipartisan appointments, selecting nominees who were consensus candidates and often members of the other party. President Clinton had two Supreme Court nominees, and the left was pushing us as hard as the right is pushing you. What did he do? I spent several hours with him consulting on it. He picked two people on his watch who got 90 or so votes. Moderate, mainstream appointments. He did not appoint Scalias. He did not appoint Thomases. He appointed people acceptable to the Republicans because he was wise enough to know, even though he was President, we were still a divided Nation. History provides ample examples. During the midst of the Civil War, President Lincoln selected members of the opposition Democratic party for key positions, naming Stephen Field to the Supreme Court in 1863 and Andrew Johnson as his Vice Presidential candidate in 1864. On the brink of American entrance into WWII, President Roosevelt likewise selected members of the opposition Republican party, elevating Harlan Fiske Stone to be Chief Justice and naming Henry Stimson as Secretary of War. Other 20th Century Presidents followed suit. In 1945, President Truman named Republican Senator Harold Burton to the Supreme Court. In 1956, President Eisenhower named Democrat William Brennan to the Supreme Court. What has happened to us? What have we become? Does anyone not understand this Nation is divided red and blue and what it needs is a purple heart and not a red heart or a blue heart. Lest any of my colleagues think these examples are merely culled from the dusty pages of history, let me remind them that the Senate has witnessed recent examples of consensus appointments during times of close political division. As I already mentioned, President Clinton followed this historic practice during vacancies to the Supreme Court a decade ago. As explained by my friend, the Senior Senator from Utah, who was then the ranking member of the Senate Judiciary Committee, President Clinton consulted with him and the Republican Caucus during the High Court vacancies in 1993 and 1994. The result was President Clinton's selection of two outstanding and consensus nominees--Ruth Bader Ginsburg and Stephen Breyer--both of whom were confirmed overwhelmingly by the Senate, by votes of 97-3 and 87-9, respectively. Indeed, the last two vacancies to the Supreme Court are text book examples of the executive branch working in cooperative and collegial fashion with its Senate counterpart to secure consensus appointments, thus averting an ideological showdown. The two constitutional partners given roles in the nomination process engaged in a consultative process that respected the rights and obligations of both branches as an institutional matter, while also producing outstanding nominees who were highly respected by both parties. To be sure, a careful review of our Nation's history does not always provide the examples of consultation, comity, or consensus in the nomination process. Presidents of both parties have at times attempted to appoint nominees--or remove them once confirmed--over the objections of the Senate, including in some instances where the Senate was composed of a majority of the President's own party. And sometimes the Senate has had to stand strong and toe the line against imperialist Presidential leanings. Our first President, George Washington, saw one of his nominees to the Supreme Court rejected by this Senate in 1795. The Senate voted 14 to 10 to reject the nomination of John Rutledge of South Carolina to be Chief Justice. What is historically instructive, I believe, is that while the Senate was dominated by the Federalists, President Washington's party, 13 of the 14 Senators who rejected the Rutledge nomination were Federalists. The Senate also stood firm in the 1805 impeachment of Supreme Court Justice Samuel Chase. President Jefferson's party had majorities in both the House and the Senate, and Jefferson set his sights on the Supreme Court. Specifically, he wanted to remove Justice Chase, a committed Federalist and frequent Jefferson critic, from the Court. Jefferson was able to convince the House to impeach Justice Chase on a party-line vote, and the President had enough members of his party in the Senate to convict him. But members of the President's own party stood up to their President; the Senate as an institution stood up against executive overreaching. Justice Chase was not convicted, and the independence of the judiciary was preserved. The Senate again stood firm in the 1937 court-packing plan by President Franklin Roosevelt. This particular example of Senate resolve is instructive for today's debates, so let me describe it in some detail. It was the summer of 1937 and President Roosevelt had just come off a landslide victory over Alf Landon, and he had a Congress made up of solid New Dealers. But the ``nine old men'' of the Supreme Court were thwarting his economic agenda, overturning law after law overwhelmingly passed by the Congress and from statehouses across the country. In this environment, President Roosevelt unveiled his court-packing plan--he wanted to increase the number of Justices on the court to 15, allowing himself to nominate these additional judges. In an act of great courage, Roosevelt's own party stood up against this institutional power grab. They did not agree with the judicial activism of the Supreme Court, but they believed that Roosevelt was wrong to seek to defy established traditions as a way of stopping that activism. In May 1937, the Senate Judiciary Committee--a committee controlled by the Democrats and supportive of his political ends--issued a stinging rebuke. They put out a report condemning Roosevelt's plan, arguing it was an effort ``to punish the justices'' and that executive branch attempts to dominate the judiciary lead inevitably to autocratic dominance, ``the very thing against which the American Colonies revolted, and to prevent which the Constitution was in every particular framed.'' Our predecessors in the Senate showed courage that day and stood up to their President as a coequal institution. And they did so not to thwart the agenda of the President, which in fact many agreed with; they did it to preserve our system's checks and balances; they did it to ensure the integrity of the system. When the Founders created a ``different kind of legislative body'' in the Senate, they envisioned a bulwark against unilateral power--it worked back then and I hope that it works now. The noted historian Arthur Schlesinger, Jr., has argued that in a parliamentary system President Roosevelt's effort to pack the court would have succeeded. Schlesinger writes: ``The court bill couldn't have failed if we had had a parliamentary system in 1937.'' A parliamentary legislature would have gone ahead with their President, that's what they do, but the Founders envisioned a different kind of legislature, an independent institution that would think for itself. In the end, Roosevelt's plan failed because Democrats in Congress thought court-packing was dangerous, even if they would have supported the newly-constituted court's rulings. The institution acted as an institution. In summary, then, what do the Senate's action of 1795, 1805, and 1937 share in common? I believe they are examples of this body acting at its finest, demonstrating its constitutional role as an independent check on the President, even popularly elected Presidents of the same political party. One final note from our Senate history. Even when the Senate's rules have been changed in the past to limit extended debate, it has been done with great care, remarkable hesitancy, and by virtual consensus. Take what occurred during the Senate's two most important previous changes to the filibuster rule: the 1917 creation of cloture and the 1975 lowering of the cloture threshold. First, let's examine 1917. On the eve of the United States' entry into WWI, with American personnel and vessels in great danger on the high seas, President Wilson asked that Congress authorize the arming of American merchant vessels. Over three-fourths of the Senate agreed with this proposal on the merits, but a tiny minority opposed it. With American lives and property at grave risk, the Senate still took over 2 months to come to the point of determining to change its rules to permit cloture. When they did so, they did it by virtual consensus, and in a supremely bipartisan manner. A conference committee composed equally of Democrats and Republicans, each named to the committee by their party leadership, drafted and proposed the new rule. It was then adopted by an overwhelming vote of 76-3. In 1975, I was part of a bipartisan effort to lower the threshold for cloture from two-thirds to three-fifths. Many of us were reacting against the filibustering for so many years of vital civil rights legislation. Civil rights is an issue I feel passionately about and was a strong impetus for me seeking public office in the first place. Don't get me wrong--I was not calling the shots back in 1975; I was a junior Senator having been in the chamber for only 2 years. But I will make no bones about it--for about two weeks in 1975--I was part of a slim bipartisan majority that supported jettisoning established Senate rules and ending debate on a rules change by a simple majority. The rule change on the table in 1975 was not to eliminate the filibuster in its entirety, which is what the current ``nuclear option'' would do for judicial nominations; rather it was to change from the then-existing two-thirds cloture requirement to three-fifths. It was a change in degree, not a fundamental restructuring of the Senate to completely do away with minority rights. The rule change was also attempted at the beginning of the Senate session and applied across the board, as opposed to the change currently on the table, brought up mid-session concerning only a very small subset of the Senate's business. Nonetheless, my decision to support cutting off debate on a rules change by a simple majority vote was misguided. I carefully listened to the debate in 1975 and learned much from my senior colleagues. In particular, I remember Senator Mansfield being a principled voice against the effort to break the rules to amend the rules. Senator Mansfield stood on this floor and said the following: [T]he fact that I can and do support [changing the cloture threshold from \2/3\ to \3/5\] does not mean that I condone or support the route taken or the methods being used to reach the objective of Senate rule 22. The present motion to invoke cloture by a simple majority, if it succeeds would alter the concept of the Senate so drastically that I cannot under any circumstances find any justification for it. The proponents of this motion would disregard the rules which have governed the Senate over the years, over the decades, simply by stating that the rules do not exist. They insist that their position is right and any means used are, therefore, proper. I cannot agree. Senator Mansfield's eloquent defense of the Senate's institutional character and respect for its rules rings as true today as it did 30 years ago. Senator Mansfield's courage and conviction in that emotionally charged time is further evidence, I believe, of why he is one of the giants of the Senate. In the end, cooler heads prevailed and the Senate came together in a way only the Senate can. I changed my mind; I along with my Senate colleagues. We reversed ourselves and changed the cloture rule but only by following the rules. Ultimately, over \3/4\ of the voting Senators-- a bipartisan group--voted to end debate. In fact, the deal that was struck called for reducing the required cloture threshold from \2/3\ to \3/5\; but it retained the higher \2/3\ threshold for any future rules changes. Now I understand that passions today are running high on both sides of the ``nuclear option'' issue, and I can relate to my current Republican colleagues. I agree with my distinguished Judiciary Committee Chairman that neither side has clean hands in the escalating judicial wars. I also understand the frustration of my Republican colleagues-- especially those who are relatively new to this Chamber--that a minority of Senators can have such power in this body. For me, the lesson from my 1975 experience, which I believe strongly applies to the dispute today, is that the Senate ought not act rashly by changing its rules to satisfy a strong-willed majority acting in the heat of the moment. Today, as in 1975, the solution to what some have called a potential constitutional crisis lies in the deliberate and thoughtful effort by a bipartisan majority of Senators to heed the wisdom of those who established the carefully crafted system of checks and balances protecting the rights of the minority. It's one thing to change Senate rules at the margins and in degrees, it's quite another to overturn them. Federalist No. 1 emphasizes that Americans have a unique opportunity--to choose a form of government by ``reflection and choice'': It has been frequently remarked that it seems to have been reserved to the people of this country . . . to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. We need to understand that this is a question posed at the time of the founding and also a question posed to us today. At the time of the founding, it was a question about whether America would be able to choose well in determining our form of government. We know from the experience of the last 225 years that the founding generation chose well. As a question posed to citizens and to Senators of today, it is a question about whether we will be able to preserve the form of government they chose. The Framers created the Senate as a unique legislative body designed to protect against the excesses of any temporary majority, including with respect to judicial nominations; and they left all of us the responsibility of guaranteeing an independent Federal judiciary, one price of which is that it sometimes reaches results Senators do not like. It is up to us to preserve these precious guarantees. Our history, our American sense of fair play, and our Constitution demand it. I would ask my colleagues who are considering supporting the ``nuclear option''--those who propose to ``jump off the precipice''-- whether they believe that history will judge them favorably. In so many instances throughout this esteemed body's past, our forefathers came together and stepped back from the cliff. In each case, the actions of those statesmen preserved and strengthened the Senate, to the betterment of the health of our constitutional republic and to all of our advantage. Our careers in the Senate will one day end--as we are only the Senate's temporary officeholders--but the Senate itself will go on. Will historians studying the actions taken in the spring of 2005 look upon the current Members of this Senate as statesmen who placed the institution of the United States Senate above party and politics? Or will historians see us as politicians bending to the will of the Executive and to political exigency? I, for one, am comfortable with the role I will play in this upcoming historic moment. I hope all my colleagues feel the same. Mr. President, on behalf of Senator Byrd, I ask unanimous consent to have printed in the Record a speech against the nuclear option delivered earlier this week by Senator Byrd to the Center for American Progress.

Mr. BIDEN

Mr. BIDEN. Mr. President, I rise to offer amendment No. 440 on behalf of myself, Senator Bingaman, and Senator Carper to fully protect the health of our military personnel. Let me explain. The military regularly protects our troops by vaccinating them. There are vaccines to keep personnel healthy in the face of common illnesses like the flu and to protect them from biological warfare agents such as anthrax or smallpox. These force protection measures are important. Equally important is the recognition that not every person will react positively to a vaccination. Vaccines, even those generally considered safe, are still drugs put into the body. There will always be a small number of personnel whose bodies have an adverse reaction to a safe vaccine. In order to deal with this, the Vaccine Health Care Centers Network was established in 2001. The centers act as a specialized medical unit that can provide the best possible clinical care to any military member, active duty, Guard or Reserve, or their family that has a severe reaction. They also advise the Department of Defense regarding vaccine administration policies and educate military health care professionals regarding the safest and best practices for vaccine administration. Their overall mission is to promote vaccine safety and provide expert knowledge to patients and physicians. Why is this so important? As many of my colleagues know, the number of adults who get regular vaccines is fairly small. While we have specialists who deal with childhood vaccinations and problems that might develop, the population of adults regularly vaccinated with anything more than the flu vaccine is small. In the military, the reverse is true. Military personnel are regularly vaccinated for travel, for threats relating to their theater of operation, and for thinks such as the flu. For this reason, it is essential that the military have a centralized place to capture the information on those who experience severe problems. In particular, because serious problems are rare, it is difficult for the average base physician to develop the expertise needed to provide the best treatment. Let me give my colleagues more specifics. In fiscal year 2004, the centers responded to over 120,000 emails and other consultation inquiries. They managed over 600 cases of prolonged adverse events, which means literally over 58,000 pages of medical information reviewed. These are very complex and specialized medical cases. They require personnel with expertise and the ability to dedicate significant time. Since beginning operations in 2001, the total number of cases managed through fiscal year 2004 is 1,341. Without the centers, that is over one thousand military personnel who would not have gotten the care they deserve. The best possible care we can provide. In addition to providing care and consultative services, the centers developed clinical guidelines and aids for physicians and nurses giving vaccines. Over 28,000 immunization ``tool kits'' were distributed. They have also provided ongoing education at bases through lectures and training. In addition, they have worked collaboratively with outside researchers to get the best possible analysis of the trends in cases that they do see. This has all been done by an extremely small staff--only one full- time doctor, three nurse practitioners, and five educators and support staff at each of the four regional facilities. The value and medical services they have provided to the entire military family--Army, Navy, Air Force, Marines, and Coast Guard--has been extraordinary. Military personnel and their dependents are more confident in the vaccination programs and reports from those who do suffer adverse reactions are extremely positive regarding the care they now get from the centers. Why do we need to provide $6 million on the emergency supplemental for this? The reason is simple. The centers are in danger of losing part of their funding this fiscal year. They are currently funded with Army global war on terror money. I applaud the Army for recognizing the need for the centers and providing those funds from their wartime allocation. But the Army is only the executive agent for what is a defense-wide service. They cannot be the sole funder. I am very concerned that the funding this year is being redirected because other services have not budgeted for the centers' work, despite the fact that 46 percent of their cases were related to Air Force, Navy, and Marines personnel. Clearly, force protection in this time of war demands a good vaccination program. Equally clear, that program must include quality care for those who suffer adverse events in every service, not just the Army. In addition, as we look ahead, we all anticipate a growing need for biological defenses, particularly vaccines. We established Project BioShield for that very reason. At this point, there is no civilian equivalent to the Vaccine Health Care Centers Network, but I think we are going to need to consider setting up some collaborative effort to take advantage of their knowledge should a mass civilian inoculation become necessary. Let me also remind my colleagues that the Department of Defense asked for and received an emergency authority from the Department of Health and Human Services to begin administering the anthrax vaccine. I will not go into the technicalities of that, but it basically allows the military to vaccinate personnel with informed consent. If the Department believes it is an emergency to resume that vaccine, how can we consider preserving the Vaccine Health Care Centers any less? At the end of the day, this is very simple. We simply cannot mandate that military personnel take these vaccines and then abandon them when a problem arises. This is the same as providing a prosthesis to someone who loses a limb. If military personnel are injured because of their service to this Nation, we have an absolute obligation to give them the best possible care. Anything less is unconscionable. I urge my colleagues to support this amendment.

Mr. BIDEN

Mr. BIDEN. Mr. President, I rise today to commemorate the 200th anniversary of a true Delaware institution, Ezion-Mount Carmel United Methodist Church. Ezion-Mount Carmel stands as a testament to the power of faith and community. It has survived through several incarnations to become a beacon of light in Wilmington, and a constant reminder that we can--and we must--triumph over adversity. Ezion-Mount Carmel's history is as complex as one might expect from such a venerable institution. Its genesis was when the African-American members of the Old Asbury Methodist Church, unsatisfied with being forced to worship from the church's balcony, founded their own congregation and helped establish the freedom to worship in Delaware. That congregation would ultimately come to be known as Ezion-Mount Carmel United Methodist Church, and it has survived war, fire and community strife with a clear purpose and mission. Beyond its extraordinary past, Ezion-Mount Carmel is a dynamic force for good today. One of Wilmington's community outreach leaders, the church offers numerous programs which have a real, positive effect on the often troubled community in which it resides. As it has for two centuries, Ezion-Mount Carmel continues to be a place of refuge and hope for those in need. It is where a congregation and a community gather to gain strength from each other and from God, and to continue a legacy of remarkable achievement. For its noble past, its exciting present and its promising future, I ask that the Senate join me in congratulating Ezion-Mount Carmel United Methodist Church on its 200th anniversary.

Mr. BIDEN

Mr. BIDEN. Mr. President, this amendment implements what President Bush is requesting. Specifically, the President requested that for the next 2 years we keep our assessment at 27 percent. Mr. President, 10,000 forces are being sent to the Sudan under the auspices of the United Nations. They are responding as we are asking them to respond. We are in the process of making genuine progress. The last thing we need to do is start to build up arrearages again; it took years to work ourselves out of the hole, both politically and financially. If my colleague from Indiana is correct that the administration wants room to negotiate, the President is going to be President for 3\1/2\ more years, God willing and the creek not rising, as my grandpop used to say. The truth is, this lasts for 2 years. It gives all the negotiating room possible. To now go ahead and change the deal in the minds of every Ambassador to the United Nations--here they go again--at the very time we are sending the worst person we can possibly send, not in terms of morality but in terms of his attitude to the U.N.--the double whammy of sending Bolton to the United Nations and cutting our commitment that we have kept to for the past years, and over the request of the President we cut by 2 percent our commitment, would be a very serious problem. I strongly urge my colleagues to support the Biden amendment. I fully appreciate the position of my friend from Indiana, but I think he is mistaken on this point. We do not often disagree that much, but on this one we do disagree. I urge my colleagues to vote yes on the Biden amendment to keep the President's request in this legislation.

Mr. BIDEN. Does the Senator from Delaware have any time remaining?

Mr. BIDEN. Mr. President, the leader has much better access to the President than I do, but to the best of my knowledge there is no negotiation, has been no negotiation, no discussion, no comment whatsoever about changing the U.S. provision from 27 percent to 25 percent. I know of nothing. The State Department has never said anything to me. The Defense Department, the White House, Kofi Annan, nobody has raised this, except my friends on the conservative right in the Republican Party. If we do not want to send a mixed signal, do not vote against the President. The President of the United States, not our conservative friends on the right side of the aisle, says 27 percent. Do not undercut the President and send a mixed signal. I yield whatever time I have remaining, and I ask for the yeas and nays.

Mr. BIDEN. Mr. President, how much time do I have?

Mr. BIDEN

Mr. BIDEN. Mr. President, I rise to introduce the State and Local Law Enforcement Discipline, Accountability, and Due Process Act of 2005, along with Senator Specter, Senator McConnell, Senator Chambliss, Senator Dayton, Senator Murray, Senator Corzine, and Senator Cantwell. These are trying times for the men and women on our front lines who provide our domestic security and public safety--our Nation's law enforcement personnel. In fact, our men and women in blue are facing what I have called a perfect storm. First, they are being called upon to undertake more responsibilities than ever before. They are being required to undertake homeland security duties that weren't required before September 11, and, at the same time, the FBI is reprogramming its field agents from crime to terrorism cases. While I don't disagree that this shift in resources is appropriate, it undoubtedly leaves a gap in law enforcement efforts to combat drugs and crime, and State and local agencies must fill this gap. At the same time, budget shortages at the local level are forcing personnel lay-offs, an increasing use of overtime to meet demand, and the forced elimination of critical crime prevention programs. Local law enforcement is struggling to keep up with service calls. To add insult to injury, Federal assistance for State and local law enforcement has been reduced by billions over the last 2 years--with the proposed elimination of the COPS hiring program--a proven initiative that has been hailed as one of the keys to the crime-drop of the nineties. Quite simply, we are asking law enforcement to do more with less, and I believe that public safety is being compromised as a result of Congress's unfortunate choices on the Federal budget. We may argue about the Federal responsibility to provide financial assistance to State and local law enforcement, however, few will dispute the sacrifices that our men and women in law enforcement make for our nation. Indeed, they face one of the most difficult work environments imaginable--an average of 165 police officers are killed in the line of duty every year. Our Nation's law enforcement officers put themselves in harms way on a daily basis to ensure the safety of their fellow citizens and the domestic security of our Nation. Nevertheless, many times these brave officers do not receive basic rights if they become involved in internal police investigations or administrative hearings. According to the National Association of Police Organizations, ``[i]n roughly half of the states in this country, officers enjoy some legal protections against false accusations and abusive conduct, but hundreds of thousands of officers have very limited due process rights and confront limitations on their exercise of other rights, such as the right to engage in political activities.'' Similarly, the Fraternal Order of Police notes that, ``[i]n a startling number of jurisdictions throughout this country, law enforcement officers have no procedural or administrative protections whatsoever; in fact, they can be, and frequently are, summarily dismissed from their jobs without explanation. Officers who lose their careers due to administrative or political expediency almost always find it impossible to find new employment in public safety. An officer's reputation, once tarnished by accusation, is almost impossible to restore.'' The legislation that we introduce today, which is endorsed by the Fraternal Order of Police and of the National Association of Police Organizations, seeks to provide officers with certain basic protections in those jurisdictions where such workplace protections are not currently provided. First, this bill allows law enforcement officials to engage in political activities when they are off-duty. Second, it provides standards and procedures to guide State and local law enforcement agencies during internal investigations, interrogations, and administrative disciplinary hearings. Additionally, it calls upon States to develop and enforce these disciplinary procedures. The bill would preempt State laws which confer fewer rights than those provided for in the legislation, but it would not preempt any State or local laws that confer rights or protections that are equal to or exceed the rights and protections afforded in the bill. For example, my own State of Delaware has a law enforcement officers' bill of rights, and those procedures would not be impacted by the provisions of this bill. This bill will also include important provisions that will enhance the ability of citizens to hold their local police departments accountable. The legislation includes provisions that will ensure citizen complaints against police officers are investigated and that citizens are informed of the outcome of these investigations. The bill balances the rights of police officers with the rights of citizens to raise valid concerns about the conduct of some of these officers. In addition, I have consulted with constitutional experts who have opined that the bill is consistent with Congress' powers under the Commerce Clause and that it does not run afoul of the Supreme Court's Tenth Amendment jurisprudence. I would also like to note that I understand the objections that many management groups, including the International Association of Chiefs of Police, have to this measure. I have discussed this with them, and I've pledged that their views will be heard and considered as this bill is debated in Congress. It is my view that we must bridge this gap. Without a meeting of the minds between police management and union officials, the enactment of a meaningful law enforcement officers' bill of rights will be difficult. Law enforcement officials are facing unprecedented challenges, and management and labor simply must work together on this issue and the numerous other issues facing the law enforcement community. I urge my colleagues to join Senators Specter, McConnell, Chambliss, Dayton, Murray, Corzine, Cantwell, and me in providing all of the Nation's law enforcement officers with the basic rights they deserve. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. BIDEN

Mr. BIDEN. Mr. President, I rise to introduce the State and Local Law Enforcement Discipline, Accountability, and Due Process Act of 2005, along with Senator Specter, Senator McConnell, Senator Chambliss, Senator Dayton, Senator Murray, Senator Corzine, and Senator Cantwell. These are trying times for the men and women on our front lines who provide our domestic security and public safety--our Nation's law enforcement personnel. In fact, our men and women in blue are facing what I have called a perfect storm. First, they are being called upon to undertake more responsibilities than ever before. They are being required to undertake homeland security duties that weren't required before September 11, and, at the same time, the FBI is reprogramming its field agents from crime to terrorism cases. While I don't disagree that this shift in resources is appropriate, it undoubtedly leaves a gap in law enforcement efforts to combat drugs and crime, and State and local agencies must fill this gap. At the same time, budget shortages at the local level are forcing personnel lay-offs, an increasing use of overtime to meet demand, and the forced elimination of critical crime prevention programs. Local law enforcement is struggling to keep up with service calls. To add insult to injury, Federal assistance for State and local law enforcement has been reduced by billions over the last 2 years--with the proposed elimination of the COPS hiring program--a proven initiative that has been hailed as one of the keys to the crime-drop of the nineties. Quite simply, we are asking law enforcement to do more with less, and I believe that public safety is being compromised as a result of Congress's unfortunate choices on the Federal budget. We may argue about the Federal responsibility to provide financial assistance to State and local law enforcement, however, few will dispute the sacrifices that our men and women in law enforcement make for our nation. Indeed, they face one of the most difficult work environments imaginable--an average of 165 police officers are killed in the line of duty every year. Our Nation's law enforcement officers put themselves in harms way on a daily basis to ensure the safety of their fellow citizens and the domestic security of our Nation. Nevertheless, many times these brave officers do not receive basic rights if they become involved in internal police investigations or administrative hearings. According to the National Association of Police Organizations, ``[i]n roughly half of the states in this country, officers enjoy some legal protections against false accusations and abusive conduct, but hundreds of thousands of officers have very limited due process rights and confront limitations on their exercise of other rights, such as the right to engage in political activities.'' Similarly, the Fraternal Order of Police notes that, ``[i]n a startling number of jurisdictions throughout this country, law enforcement officers have no procedural or administrative protections whatsoever; in fact, they can be, and frequently are, summarily dismissed from their jobs without explanation. Officers who lose their careers due to administrative or political expediency almost always find it impossible to find new employment in public safety. An officer's reputation, once tarnished by accusation, is almost impossible to restore.'' The legislation that we introduce today, which is endorsed by the Fraternal Order of Police and of the National Association of Police Organizations, seeks to provide officers with certain basic protections in those jurisdictions where such workplace protections are not currently provided. First, this bill allows law enforcement officials to engage in political activities when they are off-duty. Second, it provides standards and procedures to guide State and local law enforcement agencies during internal investigations, interrogations, and administrative disciplinary hearings. Additionally, it calls upon States to develop and enforce these disciplinary procedures. The bill would preempt State laws which confer fewer rights than those provided for in the legislation, but it would not preempt any State or local laws that confer rights or protections that are equal to or exceed the rights and protections afforded in the bill. For example, my own State of Delaware has a law enforcement officers' bill of rights, and those procedures would not be impacted by the provisions of this bill. This bill will also include important provisions that will enhance the ability of citizens to hold their local police departments accountable. The legislation includes provisions that will ensure citizen complaints against police officers are investigated and that citizens are informed of the outcome of these investigations. The bill balances the rights of police officers with the rights of citizens to raise valid concerns about the conduct of some of these officers. In addition, I have consulted with constitutional experts who have opined that the bill is consistent with Congress' powers under the Commerce Clause and that it does not run afoul of the Supreme Court's Tenth Amendment jurisprudence. I would also like to note that I understand the objections that many management groups, including the International Association of Chiefs of Police, have to this measure. I have discussed this with them, and I've pledged that their views will be heard and considered as this bill is debated in Congress. It is my view that we must bridge this gap. Without a meeting of the minds between police management and union officials, the enactment of a meaningful law enforcement officers' bill of rights will be difficult. Law enforcement officials are facing unprecedented challenges, and management and labor simply must work together on this issue and the numerous other issues facing the law enforcement community. I urge my colleagues to join Senators Specter, McConnell, Chambliss, Dayton, Murray, Corzine, Cantwell, and me in providing all of the Nation's law enforcement officers with the basic rights they deserve. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. BIDEN

Mr. BIDEN. Mr. President, very shortly there will be a unanimous consent request on how to proceed on the Boxer amendment, which has not been introduced yet but will be spoken to shortly. I would like, with the permission of my friend from California, to make a brief opening statement relative to the overall bill.

Mr. BIDEN. Mr. President, I say to my friend, we are just clearing it with the leadership. We are working that out. I am sure we will be able to move the amendment immediately after my statement which I don't think will take more than a few minutes. Mr. President, under the leadership of Chairman Lugar, we tried very hard to move this bill in the last couple of years. I hope the third time is a charm. As I believe the chairman has explained, the bill contains the basic authorization for all the major foreign affairs agencies and programs at the Department of State, foreign assistance programs, the Broadcasting Board of Governors, and the Peace Corps. The bill contains several initiatives I would like to briefly highlight. I am glad the bill includes the Global Pathogen Surveillance Act, which we have been trying to enact over 3 years. In recent years, the SARS epidemic and the avian flu epidemic have made us acutely aware of how vulnerable the world is to a rapid spread of infectious diseases. We face that same vulnerability for diseases that might be used as weapons of bioterrorism. The Global Pathogen Surveillance Act will combat the bioterrorism threat by improving other countries' capabilities to detect and limit disease outbreaks and by improving international investigation of disease outbreaks. Because these diseases--whether they are natural occurrences or man-made--have no respect for borders, we are only as safe as the weakest link in the chain is strong. This bill will go a long way to help other countries at an early stage detect the existence of these diseases, these potential biodiseases that can be spread via what we call bioterrorism. The majority leader, who cosponsored the original version of the act in 2001, is once again pressing for action on this bill. He added a very useful provision to the act, which Chairman Lugar and I have happily endorsed, calling for the executive branch to develop a real- time data collection and analysis capability to serve as a warning sign for a possible bioterrorism event. With the majority leader's support, I hope and believe this year we will finally enact this important measure. I am also proud of the work the committee has done, with the chairman's leadership, to help the U.S. Government strengthen its capacity to handle postconflict reconstruction. In the last decade, the United States has taken on stabilization missions in countries such as Bosnia, East Timor, Haiti, Somalia, Afghanistan, and Iraq. In the decade to come, whether we like it or not, nation-building and postconflict resolution and reconstruction will remain important to our security. As the Presiding Officer knows because of all the work he has done in the Balkans, this is not something that gets done in a day and we are able to leave behind in a year. We should not attempt to reinvent the wheel every time we are faced with a stabilization crisis, such as the one we faced in the last decade. It is inefficient and ineffective. Rather than address crises by cobbling together plans and personnel each time they occur as we have been doing, we need to be better prepared. This bill establishes a special office in the State Department for reconstruction and stabilization. It establishes a special corps of civilian reconstruction experts who would be ready to be deployed on short notice. The bill also creates a special emergency fund to deal with such crises. Finally, I am pleased the chairman and I are able to agree on the inclusion of a provision to protect vulnerable persons during humanitarian emergencies--an undated version of a bill I first introduced in 2003 called the Women and Children in Conflict Protection Act. I have been concerned about the vulnerability of women and children affected by conflict and humanitarian emergencies for some time now. Since the accusations were made about sexual exploitation of refugees by humanitarian workers in west Africa nearly 3 years ago, that concern has been heightened. Most recently, we have been confronted with cases of rape used as a weapon of war in Darfur, sexual exploitation and abuse by U.N. peacekeepers in the Democratic Republic of Congo, and concerns that the children affected by the tsunami in Asia could be vulnerable to human trafficking. This provision in the bill establishes a coordinator at the Department of State or AID specifically charged with ensuring that our assistance programs not only provide food and shelter, but also support programs to prevent sexual exploitation and abuse of those living in refugee and internally displaced persons camps. It prohibits U.S. funding of humanitarian organizations that do not sign a code of conduct prohibiting improper relations between aid workers and beneficiaries. Finally, the provision authorizes the President to provide aid specifically for things such as security for refugee camps or something as simple and inexpensive as buying firewood so women will not have to leave these camps, which they have to do now, in order to find material with which they can make a fire to cook and find themselves subject to rape and exploitation outside the confines of these camps. We have a very good bill that was passed out of our committee 18 to 0. I urge my colleagues, as Senator Boxer is about to do, to come forward with their amendments because I, like the chairman, would very much like to move this bill forward. It is within the budget. It is right on the button of the President's budget number. It has, as I said, unanimous support out of our committee. I believe it is a solid bill, and I hope we can move it forward this year. I yield the floor.