A Cry to Freedom in the U.S. Senate

Remarks by U.S. Senator Robert C. Byrd

U.S. Senator Robert C. Byrd, D-W.Va., delivered the following remarks Thursday in the Senate, urging his colleagues to back away from the so-called "nuclear option" that would stifle debate first on judicial nominees, and then, perhaps, on all legislation.

“Freedom is a fragile thing and never more than one generation away from extinction. It is not ours by inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people. Those who have known freedom and then lost it have never known it again.” -- Ronald Reagan

I rise today to discuss freedom. Not the grandiose world-wide “freedom talk” one hears so much of. No. Not far-flung foreign policy goals. Rather my concern today is preserving our freedoms right in our own backyard here at home. Freedom, like a good garden, needs constant tending. One must watch for the worms in the wood. As Wendell Phillips, the abolitionist, orator, and columnist once said, “Eternal Vigilance is the price of liberty.” One must pay the price if one wants the blessing.

In a culture where sports metaphors are more common public parlance than historical analogies, our unique form of government, carefully restraining powers while protecting rights, presents a special challenge to maintain. The “winning is everything” philosophy so beloved by Americans may, without careful balance, obscure the goal of justice for all that must be the aim of a representative democracy. Demeaning minority views, characterizing opposition as obstructionist, these are first steps down the dark alley of subjugating rights.

Majorities can prevail by numerical force; they do not need protection from minorities. Yet, some would have us believe that minority voices threaten the larger public good in the case of presidential judicial appointments. The opposite is true. It is minorities who are most in jeopardy without fairness from the Federal bench. The persecuted, the disadvantaged, the poor, the downtrodden - - these are the very citizens who need the strong protection of an unbiased legal system. Appointees to the Federal Bench should be scrutinized for traces of ideological rigidity, or allegiance to political movements which could cloud impartial judgment. I, for one, do not favor activist judges of any stripe. I do not think that the proper role for a judge is to make new law from the bench, and my own preference is usually for strict Constitutionalists. “Conservative” judges can hold activist views just as can “liberal” judges. Such labels tell us very little. What we should strive for on the Federal bench is blind justice, that is justice absent a political agenda.

Judicial appointments must never be a “sure thing” for the bench, simply because they please the majority party, whether that majority is Democratic or Republican. Federal judges enjoy life tenure, making decisions of huge importance to the lives and livelihoods of our citizens. They are accountable to no one and no President can fire them. It is ridiculous to suggest that mere superiority of numbers in the Senate should, alone, guarantee confirmation. Such a claim reduces the Constitutional advice and consent function of the Senate to a pro forma rubber stamping of presidential judicial appointments, whenever the President’s party controls the Senate. We are talking about a separate branch of the Federal government here which wields tremendous power. There is no God-given right to a seat on the Federal bench. Should a minority have only the recourse of delay to defeat a judicial candidate of concern, that minority is well within its rights to filibuster. In fact, they would be derelict in their duty if they did not. There is no shortage of candidates for the Federal bench. Another name can always be offered. Our aim should be to select excellent judges acceptable across a wide spectrum of political views.

There was a time in this country when men and women of opposite political parties could reason together to achieve such goals. There was a time when the concerns of honorable men and women serving in this Senate received the respect of fellow members of the Senate, even though they were in the minority. Now, I am very sorry to observe, the Senate and the country are so polarized and politicized that nearly all dissent is discarded as obstructionist and politically motivated. Get out of the way is the cry. Few take the time to consider other views. If 41 members of the Senate have objections to any judicial candidate, perhaps those objections should be heeded. Perhaps that nominee should not serve. Perhaps the minority is right. Senate service often reminds me of a game of “red rover.” We line up like two opposing camps and run as hard as we can at each other to score points. The talk show mavens keep the fires fanned, and through the din honest discourse is nearly impossible. I worry about a country whose major political pastime is not finding compromise, but seeking conflict. The people are not well-served. The courage to speak out about one’s convictions is in scarcer and scarcer supply. Where are the 21st century’s profiles in courage? President John F. Kennedy’s Pulitzer Prize winning book, Profiles in Courage, lionized public servants who did not fear to stand alone, like Senator George Norris of Nebraska.

From 1806 to 1917, there was no ability to invoke cloture in the Senate. But, in 1917 a cloture rule passed after a filibuster by twelve determined Senators who opposed U.S. intervention in World War I. That debate began when President Wilson asked Congress for the authority to arm U.S. merchant ships against Germany. The House of Representatives passed Wilson’s bill -- the “Armed Ship” bill -- by a vote of 403 to 13. But a handful of determined United States Senators who opposed U.S. intervention in World War I, including Republican George W. Norris of Nebraska, launched a filibuster with far-reaching consequences. George Norris’ filibuster killed President Wilson’s bill, though Wilson resurrected its contents by Executive Order shortly after the filibuster ended.

Nebraskans and in fact, the entire nation, were consumed with rage at George Norris because of public disclosures that Germany had promised Mexico several U.S. states if Mexico would align itself with Germany in war against the United States.

The New York Times called Norris and others, “perverse and disloyal obstructionists,” and editorialized that, “the odium of treasonable purpose will rest upon their names forevermore.” The Hartford Courant called them, “political tramps.” The New York Sun called them “a group of moral perverts.” The Providence Journal called their action “little short of treason,” and the Portland Free Press said they should be “driven from public life.”

Senator George W. Norris, this Nebraskan from the heart of America, suffered merciless abuse, vicious invective, and public scorn, tarred by public sentiment, savaged by a strident press in the grip of a public filled with hate of Germany at the start of World War I. Yet, he was and is an American hero.

George Norris was “fearful of the broad grant of authority” that President Wilson sought to go to war, and “resentful of the manner in which that authority was being ‘steam rolled’ through the Congress.” How history repeats itself.

In Senator Norris’ words:

I will not . . . even at the behest of a unanimous constituency, violate my oath of office by voting in favor of a proposition that means the surrender by Congress of its sole right to declare war. . . I am, however, so firmly convinced of the righteousness of my course that I believe if the intelligence and patriotic citizenship of the country can only have an opportunity to hear both sides of the question, all the money in Christendom and all the political machinery that wealth can congregate will not be able to defeat the principle of government for which our forefathers fought.

When George Norris went home to explain why he had filibustered in the face of universal criticism, he sought an open meeting in Lincoln, Nebraska. “I had expected an unfriendly audience,” Norris wrote. “And,” he said, “it was with some fear that I stepped forward. When I stepped out on the stage, there was a deathlike silence,” he said.

Senator Norris began, President Kennedy tells us, by stating simply: “I have come home to tell you the truth.”

After more than an hour, the crowd in Lincoln, Nebraska, Kennedy wrote, roared its approval.

Many have written extensively -- and with legitimate fear -- of what could happen if men without the courage of their convictions simply sat back and let themselves be swept away by a powerful majority, including George Orwell writing of the horrors of power run rampant, of a world run by “thought police,” who seek to control not just information, but the speech and thoughts of every individual citizen. In 1984, Orwell recorded what life would be like under the thumb of Big Brother, with no autonomy of thought or speech. George Orwell’s fictional warning against Big Brother should encourage us all to ponder, cherish, and protect our precious freedom to think and speak freely. And the means to that end is protecting the right to dissent. Orwell said of liberty, “If liberty means anything at all, it means the right to tell people what they do not want to hear." That right will be in jeopardy if a misguided attempt to eliminate the filibuster succeeds.

Robert Caro, winner of the Pulitzer Prize for his renowned book about Lyndon Johnson, made Orwell’s point in a letter to the Senate Rules Committee in June 2003. “Many times in America’s history, the right of extended debate has been used to defend causes with which I profoundly disagree. . .” “Nonetheless,” he said, “great care should be taken in placing new restrictions on that right. Senators who are considering doing so should understand that they will be taking a step that has significant implications for the balance of powers created under the Constitution, and also for another very fundamental concern in a democracy: the balance between majority and minority rights.”

Caro stressed that the Framers gave the Senate strong protections from transient public passions or executive pressure, and that the Constitutional Convention kept the Senate small, so that it would have, in Madison’s words, less propensity “to yield to the impulse of sudden and violent passions, and to be secluded by factious leaders into intemperate and pernicious resolutions.” Madison believed that, “. . . there are more instances of the abridgement of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.” Madison was right.

The loss of freedom will not come as a thunderclap. Rather, if it goes, it will slip silently away from us, little by little, like so many grains of sand sliding softly through an hour glass. The curbing of speech in the Senate on judicial nominations will most certainly evolve to an eventual elimination of the right of extended debate. And that will spur intimidation and the steady withering of dissent. An eagerness to win -- win elections, win every judicial nomination, overpower enemies, real or imagined, with brute force -- holds the poison seeds of destruction of free speech and decimation of minority rights. The ultimate perpetrator of tyranny in this world is the urge by the powerful to prevail at any cost. A free forum where the minority can rise to loudly call a halt to the ambitions of an over zealous majority must be maintained. We must never surrender that forum, the United States Senate, to the tyranny of any majority.’

This House is a sanctuary; a citadel of law, of order, and of liberty; and it is here - - it is here, in this exalted refuge; here, if anywhere, will resistance be made to the storms of political phrensy and the silent arts of corruption; and if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor. -- Aaron Burr, March 2, 1805

The so called nuclear option, if successful, will begin the slow and agonizing death spiral of freedom and speech and dissent and it will be witnessed on this Floor.

Published on Friday, March 11, 2005 by CommonDreams. For more information, go to U.S. Senator Robert C. Byrd.





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