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Mr. SPECTER. Madam President, I have sought recognition to comment about the serious erosion of the doctrine of separation of powers during the course of the past two decades. With the pendency of the confirmation of Solicitor General Elena Kagan for the Supreme Court of the United States, this is a particularly apt time to discuss this matter since these issues were a part of the confirmation process.
What we have found in the course of the past two decades is that Congress has lost considerable institutional authority, with the Court taking over on congressional authority or by refusing to decide certain cases, leaving the executive branch a great deal of what had been congressional authority. We find, for example, that the Foreign Intelligence Surveillance Act--where the Congress of the United States determined that the exclusive way for obtaining a wiretap on the invasion of privacy was through a court order--has been abrogated to a substantial extent by the terrorist surveillance program, which I shall speak about at a later time.
Similarly, when you have the Foreign Sovereign Immunities Act, again by deciding not to take the case involving the survivors of 9/11, the Court has left the executive branch with considerable authority which, I would submit, rightfully belongs to the Congress.
But today the issue I want to discuss, and I will turn to others at a later time, is the question of how the Court has taken over more of congressional authority by moving into the area of fact finding, which is a traditional legislative responsibility.
Chief Justice Roberts, in his confirmation hearings, testified extensively, as did Justice Scalia in his confirmation hearings, about it being a legislative function to find the facts. Congress has the institutional competence to have hearings, to examine witnesses, to go into evidence, and to make a factual determination about what public policy should be. As Chief Justice Roberts said in his confirmation hearing, when the Court moves into that area, the Court is, in effect, legislating.
I submit that where the traditional doctrine of separation of powers is being altered, it is a very fundamental and serious change in our constitutional structure. Separation of powers is an integral part of the structure of the Constitution: article I for the legislative branch, article II for the executive branch, and article III for the judicial branch. This separation of powers has provided the checks and balance in our system.
But in the course of the past two decades, the Court has moved into an area where Congress had traditionally been in charge. In the case of United States v. Lopez, a 5-to-4 decision decided in 1995, the Supreme Court of the United States said legislation which limited someone from carrying a gun on school property was unconstitutional because it was not justified under the commerce clause. This was a very surprising decision because there had not been a successful challenge to the exercise of Congressional authority legislating under the commerce clause for some 60 years.
This is what Justice Souter had to say, for a four-Justice dissent, the case being a 5-to-4 decision, as so many of them are. In dissent, Justice Souter said the Court should defer to ``congressional judgment ..... that its regulation addresses a subject substantially affecting interstate commerce if there is any rational basis for such a finding. ..... The practice of deferring to rationally based legislative judgments is a paradigm of judicial restraint. ..... [I]t reflects our respect for the institutional competition of Congress on a subject expressly assigned by the Constitution to the Congress and our appreciation of the legitimacy that comes from Congress's political accountability in dealing with matters open to a wide range of possible choices. ..... The modern respect for the competence and primacy of Congress in matters affecting commerce developed only after one of the Court's most chastening experiences. .....'' Justice Souter was referring to what happened to the Supreme Court during the New Deal era when the Supreme Court in the 1930s struck down a great many of the congressional enactments, leading to a great deal of controversy, leading to proposals to expand the number of Justices, and the famous President Roosevelt Court-packing plan. But within what Justice Souter says, and what I have just quoted, it is a matter of legislation when the Court moves into the fact-finding process.
The Lopez case was followed 5 years later by the case of United States v. Morrison. There, the Supreme Court of the United States invalidated portions of the Violence Against Women Act, holding that they were not constitutional because of the congressional method of reasoning. Again, Justice Souter sounded the clarion call, speaking for four Justices when he said:
Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce. ..... The fact of such a substantial effect is not an issue for the courts in the first instance ..... but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceed ours. ..... The business of the courts is to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact.
Justice Souter then went on to point out that there was a mountain of evidence in support of what the Congress had decided to do.
The Supreme Court of the United States later invalidated congressional legislation in Kimel v. Florida Board of Regents, largely on the same ground. The case involved allegations of violations of age discrimination in employment, and, in the Kimel case as in the Morrison case, the Court relied upon a test where it said the act of Congress should be judged in terms of its proportionality and congruence. This test of congruence and proportionality was articulated by the Supreme Court in the City of Boerne case. It had never been a part of constitutional doctrine, and the grave difficulty is in inferring what is meant by congruence and proportionality.
In a later floor statement, I will take up two decisions of the Supreme Court of the United States, each 5 to 4, involving the Americans with Disabilities Act.
One of the problems which has been found in the confirmation process is the grave difficulty of getting an idea of the ideology of the nominees because of the refusal of the nominees to answer questions. It was thought that the confirmation proceeding of Solicitor General Elena Kagan would provide an opportunity to find out something about the approach, the ideology or philosophy of the nominee because Ms. Kagan had written so critically, in a 1995 article in The University of Chicago Law Review, about the nomination proceedings involving Justice Ginsburg and Justice Breyer.
Ms. Kagan, in that argument, criticized them for stonewalling and not answering any questions. Also, Ms. Kagan in that article criticized the Congress--the Senate, really--for not doing its job in the confirmation process and finding out where the nominees stood.
When Ms. Kagan appeared before the Judiciary Committee, it was a repeat performance. One question which I asked her brought the issue into very sharp focus. I asked her what standard would she apply, if confirmed, on judging constitutionality? Would she use the ``rational basis'' standard, which had been the standard of the Supreme Court for decades, the standard which Justice Souter talked about in the two dissenting opinions I have just referenced? Or would she use the ``congruent and proportional'' standard, which had everybody befuddled.
Justice Scalia said that the standard of proportionality and congruence is a ``flabby standard,'' which was so indefinite, vague, and unsubstantial that it left the Supreme Court open to make any determination it chose and in effect to legislate.
In later floor statements, I will take up the question as to what might be done to try to stop this erosion of the doctrine of separation of powers, what might be done to stop the reduction of Congressional authority. One line which had been suggested was to defeat nominees. As I will comment later in more detail, there does not seem to be much of a Senate disposition to defeat nominees for failure to answer questions. Based upon what has happened in every confirmation proceeding since Judge Bork's confirmation proceeding in 1987, the practice has evolved of no answers and confirmation.
Another idea was explored by Senator DeConcini and myself after the Scalia hearings, where Justice Scalia answered virtually nothing. Justice Scalia was confirmed in 1986. Justice Bork's confirmation proceeding followed in 1987, and after Judge Bork did answer questions, as he really had to with such an extensive paper trail, Senator DeConcini and I decided we didn't need to pursue the idea of a Senate standard. But that is an option which might be considered.
Another potential method of dealing with the issue would be the idea of televising the Supreme Court--which I have talked about and will talk about in some detail at a later date. Taking off on what Justice Brandeis said about sunlight being the best disinfectant, and publicity being the way, as Justice Brandeis put it in a famous article in 1913--being the way to deal with social ills.
In an article in the Washington Post on July 14, just a couple of weeks ago, a noted commentator on the Supreme Court, Stuart Taylor, said that the only way the Supreme Court would change its ways is if there was an infuriated public. To infuriate the public, the first thing that has to happen is for the public to understand what the Supreme Court is doing.
In light of the lateness of the hour, that is a subject which I will take up at a later time in detail. But the focus today is on the three cases: the Lopez case, the Morrison case, and the Kimel case.
I thank the staff for staying overtime. I know there had been a hope to conclude a few minutes earlier, by 6, but we are not too far gone considering tradition on the Senate floor of extended presentations.
I believe there is an announcement the clerk would like me to make in concluding the proceedings today?