Executive Session

By:  Mitch McConnell
Date: June 9, 2005
Location: Washington, DC




Mr. McCONNELL. Mr. President, I say to my friend from Alabama, I understand that Judge Pryor has been criticized because he has sincerely held beliefs against abortion and has also criticized the ruling in Roe v. Wade?

Mr. SESSIONS. That is correct. He answered questions about that, clearly and directly.

Mr. McCONNELL. But it is also true, is it not, I say to my friend from Alabama, that Judge Pryor swore under oath--under oath--at his hearing that he would faithfully apply the law, and included in that, of course, is Supreme Court precedent?

Mr. SESSIONS. As a matter of fact, he was asked explicitly about that in the Judiciary hearings. I am a member of that committee, and the phrase he used, I say to you, Senator McConnell, was ``Senator, you can take it to the bank.'' And he is the kind of man who, when he says it, he means it.

Mr. McCONNELL. Well, he has had an opportunity to demonstrate that, has he not, I say to my friend from Alabama, with respect to the laws regulating abortion? He has been in a position to demonstrate that he is willing to set aside his personally held views and apply the law as it is, has he not?

Mr. SESSIONS. He really has. I think that is so important for us here as we consider a nominee. Surely, we can't vote for or against a nominee on whether they agree with us on any number of a host of moral and religious issues. But these are the facts on it. Although he is a pro-life individual--in 1997, Alabama banned partial-birth abortion by State statute. As attorney general, Judge Pryor was aware that parts of that statute had gone too far under the current state of the law, so he issued a letter, a directive, to the district attorneys throughout the State of Alabama telling them that they could only construe that statute narrowly because it would violate, otherwise, the Constitution as defined by the U.S. Supreme Court.

As a matter of fact, the ACLU praised him at that time in 1997 for his directive. And, as a matter of fact, one of the pro-life leaders said he gutted the statute.

Then, I say to you, Senator McConnell, a few years later, in 2000, when the Supreme Court ruled on the Stenberg case, in which they really overruled many State statutes involving the partial-birth abortion law, Attorney General Pryor recognized and advised the district attorneys that statute was not sound and called on the State legislature to craft a statute consistent with the Supreme Court. And when he wrote the State officials, he said that they ``are obligated to obey [the Stenberg decision].''

Mr. McCONNELL. The attorney general of Alabama is an elected position; is it not?

Mr. SESSIONS. It is an elected position.

Mr. McCONNELL. So Judge Pryor did not have the protection of a lifetime appointment or even a lengthy term. Here is an official in Alabama basically telling a bunch of Alabama local officials they ought to comply with a Supreme Court decision that was overwhelmingly unpopular in Alabama; is that correct?

Mr. SESSIONS. That is exactly correct, I say to the Senator, absolutely correct. People in Alabama, I think as most Americans, believe that partial-birth abortion, at any rate, is a particularly gruesome procedure, and he had a lot of pressure on him to declare otherwise. In fact, he was criticized by friends who thought he had not been supportive of their view.

Mr. McCONNELL. It would have been very politically convenient for him to do that; would it not?

Mr. SESSIONS. Absolutely. I think the point is that he understands the importance of adhering to the rule of law even though it may disagree with positions you feel strongly about.

Mr. McCONNELL. With regard to his criticism of Roe v. Wade, I ask my friend from Alabama, is it not also the case that some very prominent liberals in this country, who probably no doubt liked the outcome of Roe v. Wade, were, nevertheless, highly critical of the Supreme Court's reasoning and rationale for issuing that particular judgment?

Mr. SESSIONS. That is correct.

Mr. McCONNELL. So there is nothing particularly unusual or unique about a good lawyer, or certainly a lawyer in a prominent position like attorney general, at the time, Bill Pryor, critiquing the decision, wholly aside from what their personal views were, because a number of prominent liberals, I think, have done the same thing; have they not?

Mr. SESSIONS. That is exactly right. And the attorney general is an elected person in Alabama. He has a right to comment on decisions of the Supreme Court. I think attorneys general and lawyers and laymen all over the country do that on a daily basis. The question is, Will you follow it even if you do not agree?

Mr. McCONNELL. In fact, Supreme Court Justice Ruth Bader Ginsburg criticized the Supreme Court's approach in the Roe case. I bet many of our colleagues would be surprised to learn that she described Roe as a ``breathtaking'' decision whose ``[h]eavy-handed judicial intervention was difficult to justify.'' That is Ruth Bader Ginsburg, who, no doubt, liked the outcome in Roe, but found the decision, as she put it, ``breathtaking'' and a ``[h]eavy-handed judicial intervention [that] was difficult to justify.''

So here was someone whose personal views were probably opposite of Judge Pryor's, but who reached the same conclusion as Judge Pryor did about the rationale for the decision, the basis of the decision.

Mr. SESSIONS. I think that is a very good point, I say to you, Senator McConnell. I know that, for example, Justice Ginsburg was an ACLU, American Civil Liberties Union, lawyer. Yet she was troubled by the reasoning and rationale in some of the matters in Roe v. Wade. And she did not mince words about it in terms of the public policy result in Roe, nor did she condemn people who criticized Roe. She fully understood it was legitimate to discuss that important Supreme Court case. In fact, she wrote:

I appreciate the intense divisions of opinion on the moral question and recognize that abortion today cannot fairly be described as nothing more than birth control delayed.

So I think she was expressing real sympathy and respect for those who may disagree with the decision, even as she expressed concern with the decision.

Mr. McCONNELL. I ask my friend from Alabama if he is aware that liberal constitutional scholar and current Harvard law professor, Laurence Tribe--often quoted by Members on the other side as the authority on many issues of constitutional law--described Roe as a ``verbal smokescreen,'' and noted that ``the substantive judgment on which it rests is nowhere to be found.'' This is Laurence Tribe commenting on Roe v. Wade. Even though, no doubt, he likes the result of Roe v. Wade, he is nevertheless criticizing the rationale for it.

Mr. SESSIONS. Well, the Senator is exactly correct. Conservatives and liberals alike have raised questions about different aspects of Roe v. Wade. It is perfectly natural that they would do so, I think.

Mr. McCONNELL. I believe liberal law professor Cass Sunstein from the University of Chicago--who was reported to have advised our Democratic colleagues on the need to ``change the ground rules'' on judicial nominations, which led us into the impasse we were in last Congress--noted that there are ``notorious difficulties'' with Roe v. Wade. Is my friend from Alabama familiar with that, as well?

Mr. SESSIONS. Yes, I am.

Mr. McCONNELL. I could go on with a list of liberal scholars and commentators who criticized Roe very directly, but I think my friend from Alabama and I hope all of our colleagues get the drift.

I do have just one more question for the Senator from Alabama. Does he remember President Bush's nomination of Michael McConnell to the Tenth Circuit?

Mr. SESSIONS. Yes, I do. I believe he was confirmed by unanimous consent.

Mr. McCONNELL. Unanimous consent. Out here on the Senate floor, passed on a voice vote.


Mr. McCONNELL. Although I am not on the Judiciary Committee now, I was at the time of the McConnell nomination. I recall that Judge McConnell was then a law professor who had criticized Roe frequently and at great length; is that correct?

Mr. SESSIONS. That is correct.

Mr. McCONNELL. But just like Judge Pryor, he swore to uphold Supreme Court precedent; did he not?

Mr. SESSIONS. He did.

Mr. McCONNELL. So I want to make sure I have this correct. Both Judge Pryor and Judge McConnell criticized Roe v. Wade, both swore under oath they would follow Supreme Court precedents, including those they may personally disagree with, but unlike Judge McConnell, who was a law professor at the time of his nomination and did not have the opportunity as an academic to enforce the law, Judge Pryor has been a public official who has had the chance, on repeated occasions, to put his money where his mouth was, and he has consistently followed the law?

Our Democratic colleagues confirmed Judge McConnell by unanimous consent but are vigorously objecting to Judge Pryor; is that the case?

Mr. SESSIONS. That is the case.

Mr. McCONNELL. I am puzzled. On this record, our friends' objections to Judge Pryor seem inconsistent and arbitrary.

I thank the Senator from Alabama for his time and remind our colleagues that we have confirmed Democratic nominees who have had deep personal objections to Supreme Court precedent. I recall we confirmed Janet Reno 98 to 0, even though her personal views on the death penalty were at odds with Supreme Court precedent. We ought not have a double standard. We should applaud Judge Pryor for his forthrightness and his commitment to the rule of law, and we ought to confirm this distinguished nominee.

I also want to say to my friend from Alabama, I know he probably knows Judge Pryor better than anybody else in the Senate and has had a greater opportunity to evaluate his integrity, his intellect, and has really seen him in action. I think our colleagues ought to listen to the junior Senator from Alabama because he really knows Bill Pryor and can attest to the fact that Bill Pryor took actions much like Judge Pickering did in the 1960s, to which Senator Alexander was referring, that took extraordinary courage given the climate of public opinion in the State of Alabama.