Swing State Project

Biden Floor Statement on the "Nuclear Option"

May 23, 2005

Mr. BIDEN: Mr. President, my friends and colleagues, I've not been here as long as Senator Byrd, and no one fully understands the Senate as well as Senator Byrd, but I've been here for over three decades.

I think this is the single-most significant vote any one of us will cast in my 32 years in the Senate, and I suspect the senator would agree with that.

And 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's nothing more or nothing less.

And let me take a few minutes 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, as a consequence, would undermine the protections of the minority point of view in the heat of majority excess.

We've 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 seven 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. Mr. President, I think it's 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 court's independence and changing one of the unique foundations of the united states senate. That is, the requirement that 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?

But, quite frankly, it's the ultimate act of unfairness to alter the unique responsibility of the United States Senate and to do so by breaking the very rules of the united states senate. Mark my words, what's at stake here is not the politics of 2005 but the federal judiciary and the united states senate of 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 Justice Ginsburg's "Constitution in Exile," the name of a work he wrote, the framework of that "Constitution in Exile" 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 5th Amendment's taking clause, the Non-delegation Doe Doctrine, the 11th amendment and the 10th amendment.

I suspect some listening to me and some in the press will think I'm exaggerating. I would respectfully suggest they read Justice Ginsburg's work, "Constitution in Exile." Read it. Read it and understand what is at work here.

As I said, if you doubt what I'm saying, then 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, as it relates to federal----eliminate it as it relates to federal judges for the circuit court or supreme court?"

If you doubt what I say, please read what Justice Ginsburg has written.
Greve says "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." End of quote.

Read: social security, workmans comp. National labor root relations board. Read. F.D.A., read what all the byproduct of that shift in Constitutional authority meant.

If you want to hear more of what I'm -- I characterize as radical view -- and maybe it is unfair to say "radical." A fundamental view and what at least must be characterized as a stark departure from current Constitutional jurisprudence, then click onto American Enterprise Institute's web site. Read what they say.

Read what the purpose is. It's 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, Bush I and Bush II -- seven of nine. 10 of 13 federal circuit court of appeals dominated by Republican appointees appointed by presidents Nixon, Ford, Reagan, Bush I and Bush II. 58% of the circuit court judges appointed by either presidents Nixon, Ford, Reagan, Bush I and Bush II.

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 like those who sat on the court in 1910 and 1920.

Those who believe shall as Justice Rogers does of California, that the Constitution has been in exile, 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 tow 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.

DeLay declared, and I quote, "the time will come for men responsible for this to answer for their behavior" -- end of quote.

Even current conservative Supreme Court justices are looking over their shoulder with one extremist recalling the despicable slogan of Josef Stalin -- and I am not making this up -- in reference to a Republican appointee, 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 a fundamental part of our Constitutional system of checks and balances, as there is today literally the envy of the world, 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's their time to be in absolute political control because it's there. It's like why did Willie Sutton rob banks? He said because that's 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's the very reason why we have the 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's a second reason why they're focusing on the courts and that is because they've been unable to get their agenda passed through the legislative body. Think about it. All the talk about how they represent -- represent the majority of the American people. None of their agenda has passed as is it relates to the 5th Amendment, as it relates to zoning laws, as it relates to the ability of federal agencies like the food and drug administration, the E.P.A. to do their job.

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 E.P.A. the authority to set limits on how many carcinogens, how much of a percentage of carcinogens can be admitted into the air or admitted into the water.

They'd 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 works have to vote on any and all drugs that are approved or not approved.

You think I'm exaggerating this. Look at these web sites. These aren’t 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's going on. They're too smart and they're too practical. They may not know the meaning of the nondelegation doctrine. They may not know the clause of the 5th Amendment relating to property. They may not know the meaning of the 10th and 11th Amendment as interpreted by Mr. Ginsburg and others. But they know that the strength of our country lies in the 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 that we are not allowing to be passed, one of the ostensible reasons for this nuclear option being employed has decried the supreme court's -- quote -- "socialist revolution of 1930."

Read what they say. Read what they mean. The very year that a 5-4 court upheld the Constitutional -- 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's a legitimate argument. But one rejected by the supreme court in 1937 that Janice Rogers Brown refers to as the "socialist revolution" of 1937.

If it hadn't been for some of the things they've already done, no one would believe anything I'm saying here. These guys mean what they say. And the American people are going to soon learn that one of the leaders of the "Constitution in Exile" school, the group that wants to reinstate the Constitution as it existed in 1920, said that another -- said of another filibustered judge, William Pryor, that -- quote -- "Pryor is the key to this puzzle. There's nobody like him. I think he's sensational. He gets almost all of it." That's the reason why I oppose him. He gets all of it.

And you're about to get all of it if they prevail. We'll not have to debate about Social Security on this floor. So the radical right makes its power play now and they control all centers of political power, however temporary. The radicals push through the nuclear option and then pack the courts with unimpeded judges who by -- unimpeded judges who by current estimations will serve an average of 25 years.

The right focused on packing the courts because their agenda is so radical that they're 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 but perhaps three or four supreme court nominations then 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 H.M.O. that denies you your rights, the ability to keep strip clubs out of your neighborhood because they un -- make zoning laws unconstitutional without you paying to keep the person from not 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 here 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've had a majority of judges who's disagreed with that over the past 70 years. But hang on, folks.

The fight over judges at bottom is not about abortion and a God. It's 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's about Social Security.

What is really at stake in this debate point blank is the shape of our Constitutional system for the next generation. And the nuclear option is a two-fer.

It excises independence from our courts into the -- and at the same time emasculates the Senate. Put simple, 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've heard a lot in recent weeks about the rights of the majority and of obstructionism. But the Senate is not meant to be a place of pure majoritarianism. Is majority rule really what you want?

Do my Republican colleagues really want majority rule in this Senate?
Well, let me remind you, 44 of us Democrats represent 161 million people. 161 million Americans voted for these 44 Democrats. Do you know how many Americans voted for the 55 of you? 131 million. If this were about pure majorities, my party represents more people in America than the Republican party does.

But that's not what it's about. Wyoming, the home state of the Vice President of this body, gets one senator for every 246,000 citizens. California gets one senator, one senator for 17 million Americans.

More Americans voted for Vice President Gore than they did Bush by majoritarian logic, Gore won the election. The Republicans control the Senate and they've decided that they're going to change the rule. At its core, it is filibuster's not -- the filibuster's not about stopping a nominee or a bill.

It's about compromise and moderation. That's 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 you have to deal with me as one senator. It doesn't mean I get my way. It means you may have to compromise. You may have to see my side of the argument. That's what it's about.

Engendering compromise and moderation. Ladies and gentlemen, the nuclear option extinguishes the power of independence and moderates in this senate. That's it. They're 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 my Republican colleagues. I've been here 32 years. Most of the time in the majority.

And whenever you're in the majority, it's frustrating to see the other side block a bill or a nominee you support. I've walked in your shoes. And I get it. I get it so much that what brought me to the United States 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.

There's one thing I've learned in my years here, once you change the rules and surrender the senate's institutional power, you never get it back. And we're about to break the rules to change the rules. I don't want to hear about fair play from my friends. Under our rules, you're required to get a two-thirds vote -- I mean, excuse me, 60 votes to change the rules.

Watch what happens, watch what happens when the Majority Leader stands up and says to the Vice President, if we go forward with this, and he calls the question. And one of us, I expect our leader on the Democratic side, will stand up and say, "parliamentary inquiry, Mr. President. Is this parliamentary appropriate -- parliamentarily appropriate?" and in every other case that I've been here in 32 years, the presiding officer leans down to the parliamentarian and says, "what's the rule, Mr. Parliamentarian?" the parliamentarian turns and tells him. Hold your breath, parliamentarian.

He's 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.

If any of you think I'm exaggerating, watch on television. Watch when this happens. And watch the vice president ignore -- he's 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 really going on here, the majority doesn't want to hear what others have to say, even if it's the truth?

Senator Moynihan, my good friend who I served with for years, said "you're entitled to your own opinion but not your own facts."

The nuclear option abandons America's sense of fair play. It's 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. And I pray god when the Democrats take back control, we don't make the kind of naked power grab you are doing

But I'm afraid you will teach my new colleagues the wrong lessons. We're only temporary custodians of the Senate. But the Senate will go on. And I can see my time is up. Let me conclude by saying again, mark my words. History will judge this Republican majority harshly if it makes this catastrophic move.

I yield the floor.