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Public Statements

Executive Session - Part Two

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Date:
Location: Washington, DC

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Mr. SANTORUM. Mr. President, to be referred to as an extreme Member of the other side of the aisle, I would like to suggest that this extreme Member on the other side of the aisle never voted against cloture on a judicial nomination. How extreme is this Member versus the Member who just spoke, who has voted repeatedly and repeatedly and repeatedly and repeatedly and repeatedly against cloture? Who is the extremist?

I will posit that to the American people. Who is the extremist? The Senator from Pennsylvania, who never in his career voted, ever, against a cloture petition for a judicial nomination or the Senator from Illinois, who has led the effort, organized the posse, to filibuster, for the first time in American history, nominations for the court?

This is only 168 to 4. When the rules are changed, upon changing the rules you have to start with one. Then you do two. Then you do three. Then you do four. And today we do five. Today we do six. Next month it will be seven. Then it will be eight. Years from now, it will be 127, and then 3,455. It starts with one. It starts with the change.

There have been 2,372 nominations since the filibuster rule was put in place; zero blocked on the Senate floor. It has never been done in history.

Oh, it is only four, just a few. We are doing great. "We just started," is what they are not saying-we have only just begun. We just started this, folks. Not the Senator from Pennsylvania, not the Senator from South Carolina, not the Senator from Missouri. The Senator from Missouri opposed a judge. He said, look, have an up-or-down vote and then I will vote no. That has been the way it has been done here. This idea that we have filibustered nominations by folks not getting a vote in committee, let us look at the record.

Fifty-four Bush nominees under the Democratic Senate got no hearing, did not get confirmed. Have we complained that they were filibustered? No, because they were not. Every President at the end of his term has judicial nominations in committee who have not gotten through, for a variety of reasons. It is just the flow of the Senate. In this case, 54 Bush nominations. How many Clinton nominations, after 8 years? Forty-one.

Let me repeat this again because we are saying this is different; Clinton was treated so unfairly. There were 377 nominations, 1 defeated on the floor, up-or-down vote. No filibuster.

I remember-the Senator from Missouri, I am sure, can remember this-Richard Paez. I do not know if the Senator from Missouri voted against him or not, but I sure did. I did not vote against cloture because the Senator from Mississippi, Mr. Lott, and the chairman, Senator Hatch, said: Do not set this precedent. Do not change the rules. It is going to come back and bite us. We cannot do this. It is too important to the future of the Senate. It is going to undermine the judiciary. The Ruth Bader Ginsburgs of this world, the Antonin Scalias of this world will not have a prayer getting through this place. The best and the brightest are going to get knocked away or scared away if we raise this bar, if we allow the extreme elements of either party to start to run the Senate. We cannot let this happen.

As much as we may want to, as much as we did not want Richard Paez to be a Ninth Circuit Court judge, you have to hold back. You cannot let the passion of the moment completely destroy the precedent that has served this body and this country so well. Do not succumb to the special interest groups who are pleading with you. Come on.

The Senator from South Carolina said just in the last hour that for every one liberal special interest group there is one conservative one. Guess what. When the shoe is on the other foot, do you think we are going to say, oh, well, we are going to go back to the way it was; we are going to let you have all of your liberal judges; we are only going to require 51 votes? Fat chance. Fat chance.

Mr. GRAHAM of South Carolina. Will the Senator yield for a question?

Mr. SANTORUM. I will yield the floor to the Senator from South Carolina.

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Mr. SESSIONS. With regard to that matter, Attorney General Pryor did file a brief on behalf of Judge Moore and argued that the Ten Commandments were legitimate because there are three depictions of the Ten Commandments in the Supreme Court. And right on this wall are the words "In God We Trust." He defended that.

When the case was lost, the judicial inquiry commission brought a charge against the chief justice because he did not comply with the court order, and it was the duty of the attorney general to bring that case under Alabama law. So he was required to present the case that had been brought by something akin to a grand jury.

Mr. SANTORUM. Will the Senator from Alabama say that is following the law?

Mr. SESSIONS. It is absolutely following the law. There are a host of other examples to a degree I have never seen before in America. Bill Pryor always does what he believes the law compels him to do. Many times it is something he does not personally like to do.

Mr. GRAHAM of South Carolina. Senator Leahy said in 1998:

[I]f we don't like somebody the President nominates, vote him or her down or up.

He was right then. I am very afraid that we are opening the darkest chapter in the history of the Senate when it comes to judges. I don't want to be a part of it. I reject the past. I embrace a better future. Please, for God's sake, let's not continue to do this because we will all regret it.

The PRESIDING OFFICER. The majority has 30 seconds remaining.

Mr. SANTORUM. Maybe what we are finding out here is the minority doesn't want someone who is going to follow the law. I think what they really want is someone who is going to make the law, make the law politically, exactly maybe as the Senator from Vermont would like it to be made. Maybe there are things he or other Members on his side can't accomplish in the legislative chamber, so they want judges who will make the law they want. That is why the litmus test. They want activist judges on the court not to follow the law but to make it the way they really want it. That is what is at issue here.

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Mr. SANTORUM. Mr. President, this is a very historic time for our country. Until this Congress there had never been a filibuster of a circuit court nominee in the history of this country. Thus far we have had four filibusters of highly qualified judicial nominees this year and may have two more by the end of this week. It is not the intent of the Constitution to confirm a nominee with 60 votes but to confirm with a simple majority. Whether we vote a nominee up or we vote them down, it is our duty to bring them for a vote and to represent the will of the majority in the advice and consent role of the Senate in relation to the President's nominees. If the minority would like to create a 60-vote requirement, then they should respect the Constitution and introduce a constitutional amendment to do so-and build the necessary support for it around the Nation-rather than through this backdoor assault. The precedent that is being set through this abuse of the filibuster is a dangerous and destructive one for future Presidents, future nominees, and most importantly the future of the Judiciary.

As we look at the nominees that have faced obstruction, I ask what makes these nominees ripe for such unprecedented obstruction in our country's history? The most recent judicial nominee to experience this assault is California Supreme Court Justice Janice Rogers Brown. I spoke on the floor a few weeks ago of the cruel treatment that Justice Brown has had to endure. Ms. Brown was recently degraded by a stereotypical cartoon on blackcommentator.com. The cartoon has President Bush and Justice Brown walking into a room and the President saying, "Welcome to the Federal bench, Ms. Clarence-I mean Ms. Rogers Brown, you'll fit right in." In the background are Justice Thomas, Colin Powell, and Condoleeza Rice. The bottom says, "News item: Bush nominates Clarence-like conservative to the bench." Left oriented groups opposing the President's nominees did not condemn this distortion.

In Justice Brown's Judiciary Committee hearing, she responded to this cartoon saying, "But while I've been having those meetings, people have said to me: 'Well, you know, it's not personal, it's just politics, it's not personal.' And I just want to say to you that it is personal, it's very personal-to the nominees, and to the people who care about them." It doesn't get more personal than this. Brown is a very intelligent woman who is a Supreme Court Justice in our Nation's largest State, was re-elected to her seat with 76 percent of the public vote, possesses a stellar educational record and has a great judicial reputation. However, in order to fulfill her dream and the President's wishes, she must subject herself to unfair personal attacks and embarrassing degradation.

Carolyn Kuhl, another female judicial nominee, also faces harsh and unwarranted criticism in her nomination for the Ninth Circuit Court of Appeals, a circuit court that even Senator Schumer admits is way too liberal and is the most overturned circuit of the 13 circuits. The Judicial Conference of the United States has declared this vacant seat a "judicial emergency." But this is not even the main crisis for this court. This court gave us the notorious Pledge of Allegiance decision that Democrats joined Republicans in disavowing. Our friends on the other side of the aisle stress the importance of appropriate balance on the court. This court has 17 judges appointed by a Democratic President and 8 appointed by a Republican President. It seems apparent that Judge Kuhl would be a perfect candidate to better balance a court tipped extremely to the left. Judge Kuhl, like the overwhelming majority of President Bush's nominees, has received a "Well Qualified" rating from the ABA, the "Gold Standard," previously deferred to by Democrats in the Judiciary Committee. However, Judge Kuhl has been receiving unfair treatment from leftist special interest groups seeking to control the nominations process through the historically unprecedented misuse of the filibuster. They criticize Kuhl's role in a 1986 case in which the Government filed a brief stating President Reagan's position that Roe v. Wade was wrongly decided.

Rather than be criticized, Judge Kuhl should be praised for fulfilling her ethical duty to her client. Her job was to represent the President's position before the Supreme Court. Rule 1.2b of the Model Rules of Professional Conduct state that "[a] lawyer's representation of a client, including representation by appointment does not constitute an endorsement of the political, social, or moral views or activities." The hypocrisy of those opposing her nomination lies in the fact that they have not objected to past nominees who were attorneys on the same government brief. Furthermore, Judge Kuhl is supported by a wide range of pro-choice supporters who strongly believe that she will uphold the law. So, as I have asked before, what makes Judge Kuhl so special that warrants obstruction as a judicial appointee?

Then, there is Priscilla Owen. Justice Owen was nominated for the Fifth Circuit Court of Appeals by President Bush in May of 2001. Justice Owen was elected by 84 percent of the voters of Texas to the Texas Supreme Court. This vacancy has been declared a "judicial emergency" by the Judicial Conference of the United States. She has yet to have an up-or-down vote. She has significant bipartisan support, including from three former Democrat judges on the Texas Supreme Court and a bipartisan group of 15 past Presidents of the State Bar of Texas. Owen is yet another nominee who has received a unanimous "Well Qualified Rating" from the ABA. Critics argue that she has strong views on abortion, but she has always interpreted the law faithfully by applying statutes enacted by the Texas Legislature.

Abortion-rights activists claim that Owen's decision to uphold a new statute that requires girls under the age of 18 to notify their parents of an abortion is an example of judicial activism. Never mentioned by these organizations is that not only was Owen upholding a statute enacted by the Texas Legislature, the U.S. Supreme Court has long held that parental notification is permissible under the constitutional right of abortion as dictated by Roe v. Wade. The claims that Owen is a judge who has and will continue to practice judicial activism are not true and unwarranted. As of today it will be 917 days since President Bush nominated Justice Owen. You will not find a more qualified candidate.

Another nominee who has been waiting more than two years is Charles Pickering. A nominee for the Fifth Circuit of Appeals, another vacant seat declared a "judicial emergency," Judge Pickering has been labeled by some of those across the aisle as "racially insensitive", and that his "poor" judicial record reflects this. How is it then that Pickering has received a "Well Qualified" rating by the ABA, the "Gold Standard" according to Democrats on the Judiciary Committee, to serve on the Fifth Circuit Court of Appeals? Many of Pickering's colleagues, civil rights leaders, and Democratic leaders from his own State attest to Pickering's remarkable record on race. James Charles Evers, brother of slain civil rights leader Medgar Evers, has endorsed Pickering by saying "As someone who has spent all my adult life fighting for equal treatment of African Americans, I can tell you with certainty that Charles Pickering has an admirable record on civil rights issues. He has taken tough stands at tough times in the past, and the treatment he and his record are receiving at the hands of certain interest groups is shameful." Along with the false accusations of racial insensitivity, activists also accuse Pickering as not being fit to hear abortion cases. Pickering has testified that he is committed to following Supreme Court Precedent in Roe v. Wade and Planned Parenthood v. Casey.

Abortion rights activists in their assault on some of the President's nominees have especially focused their attacks on Alabama Attorney General William Pryor, nominee for the 11th Circuit Court of Appeals. General Pryor has been criticized by these organizations as well as from colleagues across the aisle for what they term "deeply held beliefs." Earlier this year, I spoke on the floor about General Pryor's "deeply held beliefs." Criticism of Pryor's beliefs stem from his views on abortion. These views are, in large part, due to his background as a devoted Catholic. Being a devoted Catholic requires one to oppose the practice of abortion, and General Pryor is indeed a devoted Catholic. As a practicing Catholic myself, I am disturbed at what is being conceived here. If the Catholic philosophy of having no leeway on the concept of abortion is preventing General Pryor from an up or down vote, then we have a constitutional crisis on our hands which would eliminate tens of millions of Americans from being considered for Federal judgeships. General Pryor's record speaks for itself. Though he has criticized the Supreme Court's decisions on abortion, which is well within his rights as an American citizen, he has demonstrated a commitment over the years to enforce and uphold the law as one of the longest serving attorneys general in the Nation.

I fear for the future of the judicial nomination process. Good, decent people who have outstanding records of upholding the law are being put through unfair, unjust and unnecessary attacks by people do not agree with their conservative values. One must ask my colleagues, why they think the politicization of the Judiciary is in anyone's interests. At what price do we continue this unfair degradation of judicial nominees?

We all know the sad ending of Miguel Estrada's nomination. His qualifications remain outstanding. He came to the United States at age 17 after being born and raised in Honduras. He graduated magna cum laude from Harvard Law School where he was editor of Harvard Law Review. He is a former assistant to the Solicitor General and argued 15 cases before the U.S. Supreme Court. He clerked for Supreme Court Justice Anthony Kennedy, a Justice who does not share Estrada's conservative philosophies. He received strong support from prominent members of the Clinton administration whom he worked for.

Are we to believe that documents the administration is unwilling to share from the Solicitor General's Office are what blocked his nomination, when all previous living Solicitors General, Republican and Democrat, signed a letter saying such work products should not be required to be provided? To do so would only undermine the ability of the office to represent the Federal Government and the President and would negatively impact the ability to attract quality lawyers to the office. We have also discussed time and again the appropriateness of Estrada's reluctance to prejudge cases at committee hearings. Opponents knew that they had no basis to oppose his nomination so they chose to place the burden on the nominee to prove a negative or else to have the Office of the Solicitor General undermine its independence and effectiveness.

So what is the answer to why these nominees are receiving unprecedented unfair treatment? Why are we spending time here arguing for these candidates that are so well qualified for judgeships? I have voted for dozens of judicial nominees whose philosophies I do not share in deference to the President and to the Constitution. I fear the answer is the belief by a minority of Senators that there is short-term political gain in filibustering these nominees because some special interest groups are demanding this. But the long-term cost of this short-term thinking is tremendous. This unfair obstruction is setting a dangerous precedent and direction for the future of the Judiciary. The Constitution has given the Senate the responsibility to defend the judiciary there is no one else.

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Mr. SANTORUM. Mr. President, I plead with the Members on the other side of the aisle to stop this. I have folks on our side of the aisle saying: Don't plead with them. Don't plead with them. Let them do it. Because we will have our opportunity someday, and we will make sure there is not another liberal judge ever, ever, to get on that-no more Richard Paezes, no more Ruth Bader Ginsburgs-never, because what is good for the goose is good for the gander. Let them up the ante. We will take all those activist judges they send up and we will shoot them down.

Is that what they want? Anybody who gives a political opinion in America no longer will be eligible for the judiciary. We are going to sanitize the judiciary? We are going to send it to "Mediocrityville"? Is that what we really want here?

Because let me assure you, as I live and breathe, that is what will happen. If we keep this up-it is 4 today; it will be 6-in 2 hours it will be 6. The Senator from Utah said pretty soon it will be 12. Why it is only 4? Because you just started. You always start with 1.

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

Mr. SANTORUM. Stop now. You have a chance to save this country and this judiciary. Stop now.

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