Judicial Nominees

JUDICIAL NOMINEES -- (Senate - June 14, 2005)

Mr. KERRY. Mr. President, for the past several weeks, the Senate has been consumed with President Bush's judicial nominations. We have debated the constitutionality of the nuclear option, and we have debated the merits of the judicial nominees themselves. In the past 2 weeks, the Senate has confirmed 6 nominees bringing the total of confirmed judges to 214 out of 218.

I voted for two of these nominees: Richard A. Griffin and David W. McKeague, both of whom were nominated to the Court of Appeals for the Sixth Circuit. These two individuals were highly rated by the American Bar Association, and, although I disagree with their politics, I believe they will be fair and impartial jurists.

I voted against the other four nominees, none of whom I believe deserved lifetime appointments to the Federal bench. Each one has demonstrated an unwillingness to follow the law when it conflicts with his or her extreme conservative political ideology, and each one embraces a judicial philosophy which would severely curtail constitutionally protected civil rights and civil liberties. Confirming these nominees was a mistake, and their appointments diminish the strength and integrity of the Federal judiciary.

Take, for example, Priscilla Owen. While on the Texas Supreme Court, Priscilla Owen repeatedly attempted to rewrite the law from the bench as her dissent in an abortion case concerning parental consent and judicial bypass clearly demonstrates. Justice Owen did not like the fact that the Texas law permitted abortions without parental consent in certain circumstances. As it turns out, she was not the only one. The majority did not like the law either, but, unlike Justice Owen, they honored their sworn duty to uphold it. In their words, they:

recognize that judges' personal views may inspire inflammatory and irresponsible rhetoric. Nevertheless, the [abortion] issue's highly-charged nature does not excuse judges who impose their own personal convictions into what must be a strictly legal inquiry. We might personally prefer, as citizens and parents, that a minor honor her parents' right to be involved in such a profound decision. But the Legislature has said that Doe may consent to an abortion without notifying her parents if she demonstrates that she is mature and sufficiently well informed. As judges, we cannot ignore the statute or the record before us. Whatever our personal feelings may be, we must respect the rule of law.

Then Justice--and now Attorney General--Alberto Gonzales was much more direct in his criticism of Justice Owen's decision in this matter. He chastised Owen for rewriting the Parental Notification Act in a way that created nonstatutory hurdles to obtaining a judicial by-pass. He called it ``an unconscionable act of judicial activism'' and noted that:

[a]s a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so.

Entrusting Priscilla Owen with a lifetime appointment to the Court of Appeals for the Fifth Circuit did not strengthen the Federal judiciary, Mr. President, it weakened it.

Janice Rogers Brown has not only shown her willingness to re-write our Federal laws but has also indicated a desire to re-interpret the U.S. Constitution, even if doing so would reverse 70-year-old precedent. Justice Brown has publicly supported a return to the era of Lochner v. New York, one of the most discredited Supreme Court cases in history. Without going into the details, it is fair to say that even staunch conservatives view Lochner as a clear case of the worst kind of judicial activism. Justice Scalia has criticized it, stating that Lochner was discredited because it sought to impose a particular economic philosophy on the Constitution.

Justice Brown thinks Justice Scalia is wrong. She explained, I quote, that it

dawned on me that the problem may not be judicial activism. The problem may be the world view--amounting to altered political and social consciousness--out of which judges now fashion their judicial decisions.

Justice Brown brought that same kind of activism to bear on her lone dissent in the 2001 case of San Remo Hotel v. California, when she interpreted the Constitution--in this case the Takings Clause--to advance her personal economic theories.

Placing Janice Rogers Brown on the Court of Appeals for the District of Columbia Circuit did not strengthen our Federal judiciary, Mr. President, it irreversibly damaged it.

William H. Pryor Jr. has been a constant and outspoken advocate for scaling back constitutionally guaranteed rights. Pryor opposes abortion even in cases of rape or incest, and has called Roe v. Wade a creation out of thin air of a constitutional right to murder an unborn child.

As the attorney general of Alabama, Pryor filed an amicus brief with the Supreme Court equating private consensual sex between same-sex couples with activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.

The Supreme Court rejected Pryor's arguments when it found the Texas law criminalizing private, consensual sexual intimacy between same-sex adults to be unconstitutional. The Supreme Court also rejected Pryor's argument, filed in another amicus brief, that the eight amendment permits the execution of mentally retarded offenders.

William Pryor's consistent pursuit of extreme and incorrect legal views should have been a red flag for my colleagues. It should have demonstrated how dangerous placing him on the Federal bench with lifetime tenure would be. Unfortunately, Mr. President, it did not. As a result, our Federal judiciary will have less ability to protect the constitutional rights we hold so dear.

Thomas B. Griffith presents a similar threat to our constitutional rights, particularly to the rights of women. As a member of the President's Commission on Opportunity and Athletics, Mr. Griffith made a radical proposal to eliminate the ``proportionality test'' in title IX cases. The proportionality test has long been used for determining compliance with title IX and requires that the school in question demonstrate that the athletic opportunities for males and females are in substantial proportion to each gender's representation in the student body of the school. As support for his proposal, Mr. Griffith stated that he was unilaterally opposed to the use of numeric formulas to evaluate title IX compliance. He added that, in his view, the proportionality test--and the use of numeric formulas--violates the equal protection clause, despite the fact that eight Circuit Courts of Appeals have rejected that very position.

Mr. Griffith's statement demonstrates a lack of respect for previous court rulings and raises questions about whether, as a judge, he would follow established precedent. In fact, the ABA has rated him partially not qualified. With legal views so clearly out of the mainstream, Mr. Griffith's confirmation seriously undermines the strength of the Federal judiciary. His confirmation is particularly problematic given the fact that his voice will be added to that of Janice Rogers Brown, both of whom have been confirmed to the D.C. Circuit.

Thus, after months of debate, we are left with a Federal judiciary less likely to protect individual rights and more likely to undermine the legal principles which Americans hold so dear. And, because we have spent so much time debating these unqualified judges, we, as U.S. Senators, have not been able to address the very real problems facing the American people. Problems like ensuring people have adequate health care and top-notch educations. Problems like securing our energy independence and providing for our Nation's military families.

Currently, 44 million Americans do not have health care, and as a result, many middle-class Americans are one doctor's bill away from bankruptcy. This is particularly troublesome given that eleven million of those uninsured are children--sons and daughters of working parents.

Our education system is terribly underfunded. Teachers are being asked to provide more with less, and, as a result, students of every age from head start to higher education--are getting sub-par educations.

Our Nation is now more dependent on foreign oil than ever before. We rely heavily on Middle East countries that do not share our values--a reliance that makes us more vulnerable every day--yet still, Americans are suffering at the pump, paying $2.12 a gallon.

Our military families, the people who are the front line in the war on terror and allow us to live life as we know, struggle unnecessarily to pay the bills and deal with lost benefits when loved ones are called to duty.

Our country has amassed record deficits, mounting debts that cede a dangerous amount of control over America's economic future to central bankers in Asia and oil cartels in the Middle East.

These are the issues that we should be debating. These are the problems that plague Americans daily. The judicial confirmation process should be quick and easy, allowing us the time we need to work on the real problems facing this great Nation. All we need is for the President to take seriously the Senate's role of providing advice and consent. We need the President to nominate more individuals like Richard A. Griffin and David W. McKeague, principled jurists who are committed to following the law and upholding our constitutional rights, and less individuals like Priscilla Owen, Janice Rogers Brown, William Pryor, and Thomas Griffith, conservative ideologues who are not afraid to rewrite our laws to further their political agenda. I can only hope that he will do so in the future, sparing the Senate from endless hours of debate on unqualified, dangerous judges.

Thank you, Mr. President.

http://thomas.loc.gov