Mr. SPECTER. Mr. President, I have sought recognition to address the subject of televising the Supreme Court of the United States. Legislation is pending on the Senate docket which was voted out of the Judiciary Committee by a vote of 13 to 6, and it is particularly appropriate to consider this issue at a time when we are examining the nomination of Solicitor General Elena Kagan for the Supreme Court.
We have seen, in a series of nomination proceedings, the grave difficulties of getting answers from nominees as to their philosophy or ideology, and that is particularly important when the Supreme Court has become an ideological battleground. There is a great deal of lip service to the proposition that the courts interpret the Constitution and interpret legislation as opposed to making law, but the reality is that on the cutting edge of the decisions made by the Supreme Court, the decisions are based on ideology. Therefore, for the Senate to discharge its constitutional duty on advise and consent--on the consent facet, to have an idea of where nominees stand--there is an adjunct to that consideration; that is, to find a way to have the nominees follow the testimony they give.
We have found that in notable cases--the most recent of which is Citizens United--two of the Justices made a 180 degree about-face. Both Chief Justice Roberts and Justice Alito testified extensively about reliance upon Congress for factfinding under the obvious proposition that Congress has the ability to hear witnesses and make factual determinations. Chief Justice Roberts was explicit in his testimony that when the Court takes over the factfinding function, that it is legislation which is coming from the Court decisions.
Similarly, those two Justices were emphatic on their view of stare decisis, and there was a 180-degree about-face in Citizens United on precedent which lasted for 100 years, and now corporations may engage in political advertising. So the issue is one of trying to deal with some level of accountability.
The principle of judicial independence is the bulwark of our Republic. It is the rule of law which distinguishes the United States from most of the other countries of the world. The independence of the judiciary is assured by the fact they serve for life or good behavior. The suggestion that the Court be televised is in no way an infringement upon judicial independence.
We are not suggesting how the Justices should decide cases, we are saying to the Justices that the public ought to know what is going on. Recent public opinion polls show that 63 percent of the American people favor televising the Supreme Court. When the other 37 percent was informed that the Supreme Court Chamber only holds a couple hundred people and that when someone arrives there they can only stay for 3 minutes, that number in favor of televising the Court rose to 85 percent.
The highest tribunal in Great Britain is televised. The highest tribunal in Canada is televised. Many State supreme courts are televised. The press--the print media have an absolute right to be present in the proceedings under Supreme Court decision. So why not the Supreme Court?
This comes into sharp focus on the factor that there has been an erosion of congressional authority by what the Supreme Court has done. In the course of the past two decades--really, 15 years--the Congress has lost a considerable amount of its authority--some taken by the Court and some taken by the executive branch. The Court has taken greater authority.
In 1995, with the decision of United States v. Lopez, on the issue of caring guns into a school yard, for 60 years there had been no challenge to the authority of Congress under the commerce clause. That followed the legislation declared invalid under the New Deal of Franklin Roosevelt in the 1930s and led to the move to pack the Court. But since that time, the commerce clause has been respected.
The case of United States v. Morrison, involving legislation protecting women against violence, was another case diminishing the power of Congress. In a 5-to-4 decision, the Supreme Court declared that act unconstitutional because of Congress's ``method of reasoning.'' One may wonder what the method of reasoning is in the Supreme Court Chamber, a short distance beyond the pillars of the Senate. What happens when a nominee leaves the confirmation proceedings and walks across Constitution Avenue? Do they have some different method of reasoning?
The fact is, there has been a reduction in the authority of the Congress. The Court has further taken authority from the Congress in a series of decisions interpreting the Americans with Disabilities Act. Two cases--Alabama v. Garrett and Tennessee v. Lane--came to opposite results with 5-to-4 decisions. In the case of Tennessee v. Lane, the Americans with Disabilities Act was upheld when a paraplegic sued because he couldn't gain access to a courtroom because there was no elevator. With a shift in the vote of Justice Sandra Day O'Connor in Alabama v. Garrett, the section of the Americans with Disabilities Act was declared unconstitutional dealing with employment.
In the case of Alabama v. Garrett, the Court applied a test called congruence and proportionality. Up until the case of City of Boerne in 1997, the standard had been a rational basis. But a new standard was articulated--congruence and proportionality--which is impossible to understand.
Justice Scalia correctly asserted that it was a ``flabby test,'' designed to give the court flexibility to engage in judicial legislation.
When nominee Elena Kagan was asked which standard she would apply, the rational basis test or the congruence and proportionality test, she declined to answer. That certainly fell within the ambit of Ms. Kagan's now famous 1995 Law Review article, where she chastised Justice Ginsburg and Justice Breyer for stonewalling in their nomination hearings, and also the Senate for not getting information to help in discharging our duty to consent to Supreme Court nominations.
One approach with television would be to hold some level of accountability when the public understands what is going on. Louis Brandeis, before he came to the Supreme Court, in a famous article in 1913 advocated that the sunlight was the best disinfectant and publicity was to deal with social ills. Stuart Taylor, noted commentator on the Supreme Court, said the only way to have the Court stop taking away power from the Congress and from the executive branch is by infuriating the public.
To infuriate the public, the public has to be informed, and television would be a significant step forward.