Nomination of William H. Pryor, Jr., to be United States Circuit Judge

NOMINATION OF WILLIAM H. PRYOR, JR., TO BE UNITED STATES CIRCUIT JUDGE

Mr. SCHUMER. Thank you, Madam President. I thank our great leader of the Judiciary Committee, PAT LEAHY, leader on our side, for his stalwart defense of having a mainstream Judiciary and for his leadership on so many other issues.

I will note what we all start by noting: We have now confirmed 168 of the President's nominees and opposed 4. The President is getting his way 98 percent of the time on judicial nominations. To say that is obstructionism is to rewrite Webster's Dictionary. We have bent over backwards to be fair.

In fact, in many of our States, including my own State of New York, when the President and the White House ask for an agreement, we do agree; we are in the process of filling every vacancy in New York. I don't agree with many of the judges we are nominating on particular issues but they meet the fundamental test. The only litmus test I have is not on any one issue but, rather, will the judge interpret the law, not make it. That is what the Founding Fathers wanted judges to do in their infinite wisdom. I say "infinite" because my hair stands on edge; the longer I am around, the more I respect the wisdom of our Founding Fathers. In their infinite wisdom, they wanted judges to interpret law, not make it; they wanted the Senate, in its infinite wisdom, to be a check-a real check, not a rubberstamp-on the President's power to nominate. The Senate is a cooling saucer.

The other side says, let the majority rule. We know what will happen. Every single one of the President's nominees, so many chosen through ideological prisms, will be approved. I don't think we have had a situation, since the President has nominated anyone-I may be wrong-where a single Republican opposed any of the President's nominees. Is that the open, grand debate the Founding Fathers envisioned? I may be off by an instance here and an instance there, but I am sure if you tabulate all the votes taken by Republicans on all of the nominees, the number of "no" votes, the percentage of "no" votes, is infinitesimal.

Yes, we are blocking judges by filibuster. That is part of the hallowed process around here of the Founding Fathers saying the Senate is the cooling saucer. We do not work as quickly as the House. We are not as restricted as the House. That is how it was intended to be. I don't believe in tit for tat. This is not a tit-for-tat comment, but the other side did not even let 50 judges come up for a vote in committee. They blocked a far higher percentage of President Clinton's judges than we have blocked of President Bush's judges.

The means is not the issue here; it is the end. So that is how it is. We have been very careful when we have opposed nominees. We have tried to give the President-it makes sense to do it-the benefit of the doubt. But some nominees are so far out of the mainstream, it is so clear they are going to make law, not interpret law, that we believe it is our constitutional obligation to our country and to the next generation of Americans to oppose them. Mr. Pryor is one of those nominees.

What the other side has tried to do is two types of things. One, they say we are opposing someone because of their race or sex, his or her religion. Those are cheap shots. We are opposing people because they are ideologically out of the mainstream, without any discrimination. If they are Black and out of the mainstream, or a woman and out of the mainstream, or Protestant, Catholic, or Jewish and out of the mainstream, we are going to oppose them.

The second thing they try to do is say it is because of one particular issue. There is a litmus test on Justice Brown; they are saying it is on affirmative action. On Attorney General Pryor, they are saying it is because of the issue of abortion.

Let's look at the record. I, myself, Senator Leahy, and just about every Democrat have voted for a majority of judges who disagree with our views on affirmative action and abortion. The number of judges I have voted for who are pro-life in the last 2 years far exceeds the number I have voted for who are pro-choice. That demolishes any argument of a litmus test. I have not asked too many judges their views on affirmative action, but my guess is, how ideologically driven the President's nominees are, that I have voted for a large number of nominees who disagree with my view on affirmative action as well. But it is not a litmus test. It is again a question, Will they make law or will they interpret law?

If we look at Attorney General Pryor's record, he is not a mainstream conservative. He is far out of the mainstream. Let me give some examples.

On criminal justice issues, I tend to be conservative. I tend to agree often with my Republican colleagues on criminal justice and other such issues. But, again, there are limits. He defended his State's practice of handcuffing prisoners to hitching posts in the hot Alabama summer for 7 hours without giving them a drop of water to drink, and when the conservative supreme court said this violated the 8th amendment ban on cruel and unusual punishment, he criticized the court's decision, saying they were applying their "own subjective views on the appropriate methods of prison discipline."

How about States rights? Attorney General Pryor has been one of the staunchest advocates of the Reagan court's efforts to roll back the clock not just to the 1930s but to the 1890s. He is an ardent supporter of an activist Supreme Court agenda cutting back Congress's power to protect women, workers, consumers, the environment, and civil rights.

As Alabama attorney general, why was he the only one of 50 attorneys general urging the Supreme Court to undo significant portions of the Violence Against Women Act? The Violence Against Women Act is not out of the mainstream. In fact, it has overwhelming support from both parties. But here is Pryor, way beyond.

How about on the case of child welfare? At the same time he was conceding that Alabama had failed to fulfill the requirements of a Federal consent decree regarding the operation of the State's child welfare system, he was demanding that the State be let out of the deal. It is not so much the position he took but the comments he made afterward. Attorney
General Pryor said:

My job is to make sure the State of Alabama isn't run by federal courts. . . . My job isn't to come here and help children.

I wonder how many Alabamians would agree with that statement.

When it comes to the environment, more of the same concerns. We have had a consensus for 40 years that the Constitution allows the Federal Government to regulate interstate waters. Not Attorney General Pryor-again, the lone attorney general to file an amicus brief arguing the Constitution does not give the Federal Government the power to regulate interstate waters. He took this position despite decades of precedent and the Federal Clean Water Act, standing for the contrary position.

He has been probably the staunchest advocate of States rights of all the attorneys general, of the ability of the States to do what they want and the Federal Government cannot tell them what to do. But then, all of a sudden, when the Supreme Court in Bush v. Gore made a decision that overruled the State of Florida, only one attorney general intervened on behalf of either side; 49 attorneys general, whatever their views, had the good sense not to intervene in that highly charged case. Not Attorney General Pryor. It is so contrary to everything he believed in, everything else, that when he says, I will interpret the law-which he has stated before us; every nominee does, and some do, and some don't, and we have to make a judgment whether, when they say it to us, it will actually happen. As we all know, once we appoint them, the horse is out of the barn-lifetime appointment; they are there forever. But when he goes through a pretzel-like contortion-

The PRESIDING OFFICER. The Senator's time has expired.

Mr. SCHUMER. Madam President, I ask my colleague to yield me another 2 minutes.

Mr. LEAHY. I yield the Senator 2 minutes.

The PRESIDING OFFICER. The Senator from New York.

Mr. SCHUMER. But when he goes through such a contortion to advocate against States rights on Bush v. Gore, you say this is not a man interpreting law; this is a man who is outcome determinative. He comes to the result he wants and then takes the law in that direction.

I do not have an easel here, so I thank my staff aide for helping me hold up this very heavy sign. It is heavy in its words.

Here is what Grant Woods, a former Republican attorney general of Arizona, said:

I would have great question of whether Mr. Pryor has an ability to be nonpartisan. I would say he was probably the most doctrinaire and most partisan of any attorney general I dealt with in 8 years. So I think people would be wise to question whether or not he's the right person to be nonpartisan on the bench.

That did not come from some wild-eyed, crazy, liberal Democrat. It came from the attorney general-a Republican-of a conservative State, Arizona. He makes the case as good as anybody.

Let me say, in conclusion, Bill Pryor is a proud and distinguished ideological warrior. I respect him for it. But ideological warriors, whether from the left or from the right, are bad news for the bench. They want to make law, not interpret it. That is not what the Founding Fathers wanted and that is not what the American people want from their judges. I oppose the nomination.