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Senator Edward M. Kennedy Statement at the Business Meeting of the Judiciary Committee

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Location: Washington, DC

SENATOR EDWARD M. KENNEDY STATEMENT AT THE BUSINESS MEETING OF THE JUDICIARY COMMITTEE

Mr. Chairman. It's disappointing that we still have not received the Sergeant at Arms' interim report on the confidential computer files investigation. (Mr. Pickle's report has been delayed to some extent by his injury last week, and we all hope he is feeling better.)

It's even more disappointing, in the light of the obvious impropriety, that six of the ten Republican members of the Committee haven't yet criticized the years of unethical and perhaps illegal behavior by some staff members.

In fact, the Chairman of the Republican Conference and the Chairman of the Rules Committee, have not, as far as I know, retracted their own initial statements of support for these serious breaches of trust and comity in this body.

Nothing has changed since our last meeting. We have not seen the interim report. We have not had a chance to review it and discuss it among ourselves. We have not even been briefed on the new information in the reportedly massive forensic data. We don't know who else the active participants in taking the files were or who else knew of the ongoing operation, or who else benefited from the information they produced. It went on for years and no one stopped it.

So we are certainly not ready to go back to business as usual. We must resolve this priority issue first, so we can restore the fundamental confidence that both sides need to have with each other for the Committee to put this behind us.

I hope we will get some of the answers we need next week, along with an estimate from the Sergeant at Arms as to how much more time he needs to digest the mountain of information he has received and follow it to its conclusion, as his commitment to a thorough investigation requires. We haven't even received copies of all the files taken from our offices. I am told that much more work needs to be done before the remaining files can be identified and returned to us, and we are prepared to assist in that process. But if some of our files have not even been identified yet, the task of determining where they ended up cannot be complete.

I'm not criticizing the Sergeant at Arms or his investigators. It's not their fault that the thefts lasted years rather than days, that thousands instead of dozens of files were taken, that the materials may have been disseminated far and wide. That is the fault of those who took the files and those who tolerated it for so long. It is certainly no reason to cut off the investigation before it runs its course.

For this committee to resume its normal operations, we need to get the interim Report and decide what our further course of action will be, whether it is further investigation by Mr. Pickle's office or referral for an outside investigation.

We also need to come to an understanding with the White House that we will not face further attempts at unilateral court-packing by the President. When we have accomplished those tasks, then we can hope that a new seed of respect and cooperation can be planted here.

Because it is so central to the operation of this Committee and the role of the Senate on judicial nominations, I want to address in more detail President Bush's recess appointment of William Pryor to the Eleventh Circuit Court of Appeals last week. Once again, President Bush has undermined the independence of the federal judiciary by appointing a judge with an extreme activist agenda to the federal bench and bypassing the Senate in doing so.

The Senate has refused to confirm Mr. Pryor for this life-time position for obvious reasons. He's an ideologue whose views are far outside the mainstream of America and at odds with much of the Supreme Court's precedents over the past 40 years. Apparently, the President is so determined to put reactionary judges on the federal courts that he is willing to bypass the Senate and invoke the recess appointment power even during a one-week recess of Congress. The President's action raises serious doubts about the constitutionality of Mr. Pryor's appointment during such a brief recess, and his service on the court will be under a cloud as a result.

The Framers understood the importance of an independent judiciary to our democracy. That is why they provided for judges to be appointed with the advice and consent of the Senate. They wanted to prevent any President from turning the courts into a political extension of his Administration. Alexander Hamilton described the Senate's role in judicial confirmations as "an excellent check upon a spirit of favoritism in the President," intended to deter a President from naming "candidates who had no other merit than of . . . being in some way or other personally allied to him . . . ."

Unfortunately, William Pryor is exactly such a candidate. He clearly is allied to a narrow segment of the most conservative far-right elements in society, to which the President now caters in the hopes of winning reelection.

The issue is not that Mr. Pryor is conservative. We expect a President from a conservative party to prefer conservative nominees. But Mr. Pryor has spent his career using the law to further a radical ideological agenda. His extreme agenda conflicts with important decisions that have made our country more inclusive and fair for all Americans over the past forty years.

Mr. Pryor is an aggressive supporter of rolling back the power of Congress to remedy violations of civil rights and individual rights. He has urged the repeal of provisions of the federal Voting Rights Act. He vigorously opposes the constitutional right to privacy and a woman=s right to choose. He is an aggressive advocate of the death penalty, even for individuals with mental retardation.

Recently, the Supreme Court rejected Mr. Pryor=s argument that it was constitutional for Alabama prison guards to handcuff prisoners to "hitching posts" for hours in the summer heat. The Court also rejected his argument that states could not be sued for money damages when they violate the Family and Medical Leave Act. Mr. Pryor's position would have left workers who are fired in violation of that Act without meaningful recourse.

The Court also rejected Mr. Pryor's view on what constitutes cruel and unusual punishment in the context of the death penalty. The Court held, contrary to Mr. Pryor's arguments, that subjecting mentally retarded persons to the death penalty violated the Eighth Amendment. And just this spring, the Eleventh Circuit, an appellate court controlled by conservative, Republican appointees, rejected Mr. Pryor=s attempt to evade that Supreme Court decision. He had tried to prevent a prisoner with an IQ of 65 B whom even the prosecution had agreed was mentally retarded B from raising a claim that he should not be executed.

In another case, when the Supreme Court granted a stay to consider whether a particular execution would violate the Constitution, Mr. Pryor ridiculed the court, saying that the issue of whether an Alabama execution would be cruel and unusual punishment Ashould not be decided by nine octogenarian lawyers who happen to sit on the Supreme Court.

This is not a nominee within the legal mainstream. His words and deeds in seeking to evade the Supreme Court's decision speak volumes about whether he will obey Supreme Court precedent when he decides cases as a federal judge.

Mr. Pryor's nomination was also under challenge because of ethical questions. An investigation into his role in connection with the Republican Attorney General's Association raised serious questions about his testimony to the Judiciary Committee, but that investigation is still incomplete. Although most of the committee's members agreed that the investigation raised serious questions which deserved answers, Mr. Pryor's nomination was rushed through the Committee before the investigation could be completed.

Nor is Mr. Pryor the only example of the President's attempt to stack the courts with activist judges who will promote a political agenda. Just last month the President made a recess appointment of Charles Pickering to the Court of Appeals for the Fifth Circuit. Judge Pickering had also been denied confirmation by the Senate because of his extreme ideology, and his demonstrated failure to follow the rule of law.

Unlike the recess appointment of Judge Pickering, Mr. Pryor's appointment also violates the Constitution, because the Recess Appointments Clause does not allow the President to make a recess appointment whenever the Senate takes a week-long recess. In the context of an actual court case, Mackie v. Bush, the Senate Legal Counsel advised us in July 1993 that the President lacks the power to make recess appointments when the Senate takes a brief mid-session break, as we did last week. I ask unanimous consent that the July 1, 1993 brief of Senate Counsel be entered in the record. Nothing has changed in the law since then.

Certainly the President cannot argue that a judicial emergency required him to make this appointment without the Senate's advice and consent on a Friday afternoon, when the Senate would be back in session the following Monday. The fact that Mr. Pryor had already failed to win confirmation from the Senate makes a mockery of any argument that the President was just seeking to fill a gap in the courts until the Senate could consider the nomination.

The Recess Appointments Clause in the Constitution is clearly intended to permit the President to fill vacancies when practical circumstances have created a real need in the courts, and the Senate is unavailable to provide advice and consent. This was not such a circumstance. This was a deliberate end-run around the Constitution in the name of judicial activism.

The Recess Appointment Clause was not intended to permit the President to use a recess of only five business days to appoint a nominee so controversial that the Senate had twice refused to proceed to a vote on his confirmation. Are we expected to believe that circumstances were such that the President could not wait from last Friday afternoon until Monday morning for the Senate to resume regular business?

It is essential for our democracy that we have a free and independent judiciary that will uphold the law and protect the values of freedom and justice and opportunity for all that are so important to our judiciary system. The American people understand this. Why doesn't the President?

Senators of both parties should be deeply concerned by President Bush's abuse of the recess appointment power to bypass the Senate on this appointment. Whatever the merits of Mr. Pryor's nomination, surely we can agree that the President should not have ignored the requirement of the Constitution that judicial nominees must be appointed with the "advice and consent" of the Senate. I hope we will take appropriate steps to ensure that no such Presidential abuse of the Senate's constitutional power will be repeated.

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