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.