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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. SPECTER. Mr. President, I have sought recognition to comment on the reasons for my vote for the nomination of Solicitor General Elena Kagan to the Supreme Court and to comment more broadly on the status of the Court and the nomination process, which I have seen during my tenure in the Senate, where some 14 nominees have been submitted by Presidents.

I have sought 1 hour, which is the longest I can recollect asking to speak, because of the wide scope of issues which the Senate faces in its constitutional responsibility for the confirmation of Supreme Court Justices.

Early on, as I observed the nominees, I came to the conclusion that nominees would answer only about as many questions as they thought they had to to be confirmed. The nomination process during my tenure reached the most extreme point of nonanswers during the confirmation in 1986 of Justice Scalia.

Justice Scalia stated in advance that he would not talk about ideology or philosophy. I saw Justice Scalia at the 90th birthday party of a distinguished American, former Secretary of Transportation, Bill Coleman, and in a group of people I joked a little and I said: Mr. Justice Scalia, even prisoners of war have to give name, rank, and serial number. When your nomination was up you would only give your name and rank--which was in a light spirit, and he took it that way. But virtually no answers were given during the course of that proceeding, and he was confirmed unanimously, 98 to nothing.

At that time, Senator DeConcini and I were considering a resolution to establish standards for the Senate to require responses by nominees. But then, in 1987, the confirmation proceeding of Judge Bork occurred. In that proceeding Judge Bork answered many questions which, in fact, he had to because he had such an extensive so-called paper trail. He had written a very famous Law Review article in 1971 in the University of Indiana Law Review on the doctrine of original intent. If we look to original intent, for example, when the 14th amendment was adopted, equal protection, the galleries in this Chamber were segregated. That was hardly a standard that could be applied in an era of Brown v. Board of Education, and it was not. We have a Constitution which evolves in accordance with the changing values of our society, and Judge Bork was compelled to answer a great many questions.

So Senator DeConcini and I shelved our idea to try to find some standards, but then in the intervening nominations we had nominees revert to form, answering only as many questions as they thought they had to in order to be confirmed and not to have any significant disclosures on ideology or philosophy. I thought, when we had the nomination of Elena Kagan, that there would be an opportunity for greater insights because she had written a now famous Law Review article for the University of Chicago, in 1995, sharply criticizing Supreme Court nominees by name and sharply criticizing the Senate. She said in that article that Justice Ginsburg and Justice Breyer had stonewalled, had not given any meaningful answers. She criticized the Senate for, in effect, letting them get away with that.

But during the confirmation proceedings of Ms. Kagan, it was a repeat performance, and the issue was brought and I shall illustrate it with one line of questioning which I asked her. It was about what was the requisite record that Congress had to have to uphold the constitutionality of legislation it passes. The standard had been, for decades, that if there was a rational basis for the legislation, it would be upheld. That was the standard in the Wirtz case in 1968, articulated by Justice Harlan.

Then, in a sharp departure, in 1997 in a case captioned City of Boerne, the Supreme Court plucked out of thin air a new standard for the adequacy of a record. They said the standard had to be proportionate and congruent. Justice Scalia later criticized that standard as being a ``flabby test,'' which enabled the Court to in effect legislate. They decided it however their predilections would call for. In two cases under the Americans with Disabilities Act--in the case of Tennessee v. Lane and in the case of Alabama v. Garrett--the Supreme Court came to opposite conclusions, interpreting two sections of that same act which had a very voluminous record, which illustrates the vagueness of the standard and further illustrates the words of Justice Scalia that it was a ``flabby standard'' which enabled the Court to, in effect, legislate.

So the question which I asked Ms. Kagan was, What is the standard? In her Law Review article she had been explicit in saying that standards involving how you decide a case were well within the ambit of appropriate senatorial inquiry in a confirmation proceeding. I asked her the question, and she declined to answer, as she did repeatedly not just for my questions but for questions of other Senators.

I raised the issue in those confirmation proceedings as to whether we could find some way to get reasonable answers short of voting no.

I noted Senator Kyl in his presentation yesterday cited that question, which is on his mind as well.

In the final analysis, as I stated during the course of the Judiciary Committee deliberations, I have decided to vote for Ms. Kagan because she was following an accepted pattern. That is what nominees have been doing, and it has been accepted by the Senate. I did not think it appropriate to cast a protest vote for her testimony. There were facets about her nomination which I found very appealing. I found it very important that she cited Thurgood Marshall as a role model. With that in mind, and with the fact that she was replacing a Justice on the liberal wing, it seemed to me that her confirmation would maintain the current balance.

I am also impressed with the President's nominating another woman. I think that is very salutary. When I came to the Senate, prior to the 1980 election, we only had one woman Senator, Senator Nancy Landon Kassebaum. Now our body is much improved with the 17 women we now have in this body. I thought that was a desirable trait. I also thought it was good to have somebody on the Court who had not been on the circuit court of appeals. All of the other eight Justices come from the circuit courts of appeals, and I have urged Presidents in the past to nominate somebody with a broader background, broader diversity of experience. I think Ms. Kagan represents that quality and that attribute.

I have been asked about the distinction I make between my negative vote for Solicitor General contrasted with my affirmative vote for Supreme Court. It is based on the fact that I thought for the Solicitor General we were entitled to answers. In that proceeding in the Judiciary Committee she refused to answer questions which I thought were requisite.

I asked her what her position would be on the case involving an appeal by Holocaust victims to the Supreme Court of the United States. The Court looks to the Solicitor General for the position of the government. It seemed to me that case should have been heard by the Supreme Court. The argument was made that the courts ought to be foreclosed from deciding it because it ought to be governed by an international pact between governments. It seems to me the Holocaust victims were entitled to their day in court.

Ms. Kagan would not answer the question.

I similarly raised what position she would take as Solicitor General on an appeal taken by the survivors of victims of 9/11. The Court of Appeals for the Second Circuit had said there was not State-sponsored terrorism involved because Saudi Arabia was not on the list. This is in the face of voluminous evidence that Saudi princes and Saudi charities had financed the terrorists on 9/11. There is nothing in tort exception to the Foreign Sovereign Immunities Act which requires a country to be on the list of state sponsors of terrorists.

The Solicitor General said the Second Circuit was wrong but used the reason, well, the acts occurred outside the United States, which seemed to be insufficient when the consequences were devastating within the United States, with airplanes being flown into skyscrapers in New York City. Her refusal to answer those questions led to my negative vote in that situation.

The nominations which I have seen, especially the last four nominations, bring into very sharp focus two major problems which confront Senators in seeking to exercise our constitutional responsibility on confirmation. As I have already commented to some extent, one is the difficulty of getting answers to get some significant idea of the nominee's ideology or philosophy. The second problem is the factor that when nominees have testified in response to questions--as Justice Alito and Chief Justice Roberts did--on issues such as deferral to congressional factfinding and to stare decisis, what recourse do we have when the nominees, once seated, do a 180-degree reversal.

I believe there is an approach we can undertake on that, and that is to inform the public as to what is going on and to have a public understanding of those positions as a factor, which I think, realistically viewed, could influence Justices to stand by, at least in a respectable way, their testimony at the confirmation hearing.

The difficulty with the recent trend in the Supreme Court decisions, as I see it, is that there has been an abrogation of the fundamental doctrine, constitutional doctrine of separation of powers. When the Constitution was formulated, as is well known, there were three branches of government--article I, the Congress; article 2, the executive; and article 3, the court system.

The separation of powers was viewed as an indispensable element in appropriate governance, providing for the checks and balances.

But we have seen in recent decades that the decisions of the Court have taken a great deal of power from the Congress and a great deal of power has been shifted to the Court. There have been very significant cases where the Court has declined to act where significant power has shifted to the executive branch.

I will be very specific. In United States v. Lopez, decided in 1995, the Supreme Court altered 60 years of uniform interpretation of the commerce clause which has been the basis from the 1930s for declaring New Deal legislation unconstitutional. In the face of a Court packing plan President Roosevelt was articulating to raise the number of Justices to 15, the Court had given broader latitude to congressional authority under the commerce clause, and that was abruptly changed in the Lopez case.

The case of United States v. Morrison involved a further abrogation of congressional authority. That case involved legislation protecting women against violence. There, the Supreme Court of the United States, in the face of a mountain of evidence, as specified in the dissent by Justice Souter, ruled that the act was unconstitutional. The reason for the ruling, according to the opinion of the Court, written by Chief Justice Rehnquist, was the congressional ``method of reasoning.'' When I saw that in the opinion, I wondered what transformation there was on method of reasoning when a nominee stepped outside of the Senate hearing room on a nomination to walk across Constitution Avenue and sit on the Supreme Court. I wondered what was the method of reasoning which distinguishes what goes on in this Chamber from what happens a few hundred yards to the east in the Supreme Court of the United States. But that is what the Supreme Court decided--it was our method of reasoning which was faulty. Method of reasoning. Another way of saying: You are stupid. Method of reasoning. Another way of saying: You don't know what you are doing. Well, the Congress's power, under the Constitution, is to legislate, and it has been regarded for decades--really, centuries--that when Congress has a rational basis for what we do, it is upheld by the Supreme Court of the United States.

A few minutes ago, I referred to the cases of Tennessee v. Lane and Alabama v. Garrett, two cases which were decided under the Americans with Disabilities Act. Once again, there were hearings held in many States, enormous records, but the Supreme Court of the United States decided in Tennessee v. Lane, which involved access to public facilities--a paraplegic was unable to get to an elevated floor in a Tennessee courtroom. They had no elevator. The Supreme Court said that was a violation of the Americans with Disabilities Act under the standard of congruence and proportionality. Then in Alabama v. Garrett--same act, same kinds of voluminous hearings--which raised the issue of employment discrimination, the Supreme Court of the United States decided by five to four that it was unconstitutional.

It was in the Lane case that Justice Scalia articulated his now often quoted comment that congruence and proportionality is a ``flabby test'' which calls upon the Supreme Court to check the homework of the Congress. That is the way he put it. What we do over here requires someone else to check on our homework, as a parent would on a fifth grader, and Justice Scalia commented that was not the way to treat a branch of coordinate authority as the Constitution requires.

The Supreme Court in those cases has taken power to themselves to disagree with our factfinding and to declare acts unconstitutional under this standard which is not understandable on any rational basis, proved by the Court itself on those two cases, Garrett and Lane.

The Court has further significantly affected the balance of power and the separation of power by deciding not to decide certain cases. In exercising their discretion not to take cases, they have let rulings stand which have given an enormous amount of what is legitimately, in my opinion, congressional authority to the executive branch of government.

I cite first the situation involving the terrorist surveillance program--
warrantless wiretaps put into effect after 9/11--contrasted with congressional authority under the Foreign Intelligence Surveillance Act, which establishes, by act of Congress, that the exclusive means to invade privacy on a wiretap is by going to a court, having an affidavit stating probable cause, having judicial review and the judge deciding that the requirements of the fourth amendment prohibiting unreasonable search and seizures are satisfied. Well, the Supreme Court of the United States has declined to hear that case.

A Federal judge in Detroit declared the terrorist surveillance program unconstitutional. The case went on appeal to the Court of Appeals for the Sixth Circuit. The defense was interposed of lack of standing, and in a split decision--two to one--the Sixth Circuit decided that there was not the requisite standing. Well, standing is a very fluid doctrine, and it is used from time to time to avoid deciding an issue. Common parlance would say that is a good way to duck a case. The dissent in that case was powerful, I think by any fair reading, had much more legal authority behind it that there was standing to raise this issue.

Certiorari was sought from the Supreme Court of the United States, and they denied cert. As is the custom, they didn't say why. That inaction by the Supreme Court--and the Supreme Court has tremendous impact by its inaction, contrasted with cases it does decide--that leaves the President with the power which the President asserts under article II of the Constitution as Commander in Chief, contrasted with the authority of Congress under article I to legislate with the Foreign Intelligence Surveillance Act. That is a case which we really ought to have an answer to one way or another. The Court ought to make a decision in a case such as that.

Another case which illustrates the concession of legislative authority to the executive branch by inaction of the Court involves the lawsuit brought by survivors of the victims of 9/11 where the Government of Saudi Arabia was sued, as were Saudi princes, as was a Saudi charity, for financing the 19 Saudis who were among the 20 terrorists directing the planes which crashed into the Trade Centers in New York and in Somerset County in my State, Pennsylvania, and into the Pentagon in Virginia. And the evidence there was overwhelming.

Recently, the Judiciary Committee held a hearing, which I chaired, on legislation to cure the problems that were articulated by the Second Circuit and by the Solicitor General. But in that case, the Court declined to take jurisdiction, denied cert. So here you have the Congress of the United States, in a very important piece of legislation--the Foreign Sovereign Immunities Act--saying that foreign states were not immune for tortuous conduct, like crashing into a building.

As I had alluded to very briefly earlier, the Second Circuit found against the survivors of the victims on the grounds that Saudi Arabia was not a state which had been designated by the State Department as a terrorist state. Well, there is nothing in the legislative enactment which requires a state to be on the terrorist list in order to establish liability.

The Solicitor General said the Second Circuit was wrong but in opposing a grant of certiorari, came up with a different theory, and that was that the acts occurred outside of the United States in financing the terrorists. Well, how much more direct impact could conduct have than financing terrorists coming to the United States to hijack planes and to do what the 9/11 terrorists did? Well, that case remains unresolved, and we are looking for a legislative change to deal with that case. But here is another illustration where the Court, by not deciding a case, shifted a tremendous amount of authority to the Federal Government to decide as a matter of foreign policy not to anger the Saudis, under the great proposition, under the great legal holding of oil, oil, oil. But there we are--more power in the executive, less power in the Congress.

So these are issues which we really need to understand and get answers from nominees if we are to maintain the balance in the separation of powers, which is a very fundamental point in our system of constitutional governance.

In considering the nomination of Elena Kagan, as I said, concerned with maintaining the balance on the Court--and the Court has really become an ideological battleground. Chief Justice Roberts, in an interview with C-SPAN, recently said: We are not a political branch of government. We are not a political branch of government. I will return to that in some greater detail in a few moments.

Richard Posner, Judge Richard Posner, a distinguished judge on the Court of Appeals for the Seventh Circuit, in a very noted book on the judiciary, devoted an entire chapter, chapter 10--which the title is: The Supreme Court Is a Political Court.

The Court decides political issues. The Court decides political governance, political values, political rights, and political power.

The status of an ideological battleground is illustrated by the decision of the Supreme Court of the United States in a case captioned Citizens United, which upset 100 years of precedents in permitting corporations to pay for political advertising. This is a case which came to the Court on a grant of certiorari to examine the McCain-Feingold Act to decide whether the application of that act was constitutional as it applies to a movie about Hillary Clinton. Well, that was under the standard of ``as applied.''

The case was argued in the Supreme Court. Then, sua sponte--the Latin expression which means ``on the court's own authority''--after the case was argued, the parties were then notified that the Court was going to consider the constitutionality of McCain-Feingold facially, which means whether it would be unconstitutional in any context. But that is an unusual reach by the Court.

Then, in a 5-to-4 decision, the Supreme Court decided to overrule a relatively recent case, the Austin case, and to overrule certain portions of McConnell v. the Federal Election Commission. The case was noteworthy in two respects. One is, the Court disregarded a 100,000-page record, which had been amassed in congressional hearings, showing the undesirable consequences of money in politics, how it raises the skepticism of the American people about the integrity of government and raises issues of corruption in government and the collateral issue of the appearance of corruption in government.

The case was especially problemsome from the point of view that Chief Justice Roberts and Justice Alito had testified at great length about deference to Congress on congressional findings, and all that was ignored in the Court's decision. Chief Justice Roberts and Justice Alito had testified extensively. Twenty-eight minutes of my first round of 30 minutes of the Roberts confirmation hearing was addressed to the issue of stare decisis. Chief Justice Roberts, as a nominee, was emphatic about respect for stare decisis, observing precedents, as was Justice Alito, and the stability of the law and, as Chief Justice Roberts said, not jolting the system but to have modest decisions.

In a concurring opinion--only Chief Justice Roberts and Justice Alito signed the concurring opinion; the other three Justices in the majority did not--but in that concurring opinion was a 180-degree reversal as to what both nominees had testified to during their confirmation proceedings.

I have said in discussing this issue in the past that I appreciate the difference between answers in a nomination proceeding and what a sitting Justice has a responsibility to do on the bench and in deciding cases and I do not, in any way, impugn the good faith of Chief Justice Roberts and Justice Alito. But from the perspective of a Senator asking questions about how nominees are going to approach judicial philosophy and judicial ideology, there ought to be some approach which would give some greater consideration to that testimony and those commitments made to Senators who then vote for their confirmation.

This issue was taken up by circuit judge Richard Posner, whom I quoted earlier on the proposition that the Supreme Court is, in fact, a political body and makes political decisions, makes decisions on political governance and political values and political rights and political power. This is what Judge
Posner had to say about the decisions of Chief Justice Roberts. The Chief Justice has ``demonstrated by his judicial votes and opinions that he aspires to remake significant areas of constitutional law.'' The ``tension'' between what he had said at his confirmation hearing and ``what he is doing as a Justice is a blow to Roberts' reputation. . . .''

The issue of who understands what happens in complex cases such as Citizens United--it has a very limited impact. For those who study the confirmation testimony closely and for those who study the opinions closely, there is an issue raised as to reputation, and I do believe it is a fact that Justices, similar to all the rest of us, are concerned about their reputations.

So the issue then is, What can be done to acquaint the public with what happens in the Supreme Court of the United States? What is going on with the balance of power and the separation of power? What is happening with the constitutional responsibility of Senators to ask questions, to use that as a basis for confirmation?

I believe one step which can be taken of real significance would be the televising of the Supreme Court. Is it an absolute answer? Well, of course not. But Justice Brandeis, in a very famous article written in 1913, said that sunlight was the best disinfectant, and he analogized the disinfectant quality of sunlight with publicity on solving social problems and social ills.

There was an article by Stuart Taylor which appeared in the Washington Post, captioned ``Why the justices play politics.'' This, I think, is very weighty in the observation of an astute commentator on the Supreme Court and what is happening on the precise issues which I am raising today about the Court taking over congressional power and the Court acting in a political way on the Court's decisions. This is what Stuart Taylor, Jr., had to say:

The key is for the justices to prevent judicial review from degenerating into judicial usurpation. And the only way to do that is to have a healthy sense of their own fallibility and to defer far more often to the elected branches in the many cases in which original meaning is elusive.

Then, Mr. Taylor comments about nominee Kagan:

Elena Kagan professed such a modest approach in her confirmation testimony. Yet so did the eight current justices, and once on the court, all eight have voted repeatedly to expand their own powers and to impose policies that they like in the name of constitutional interpretation.

So that is in line with the title of this article: ``Why the justices play politics.''

Mr. Taylor goes on to say this:

Why so modest?

That is, why is the Court so modest?

Perhaps because the justices know that as long as they stop short of infuriating the public, they can continue to enjoy better approval ratings than Congress and the president even as they usurp those branches' powers.

This is an interesting test--more even than interesting, it is intriguing--the test of infuriating the public. There have been substantial efforts made to acquaint the public with the gridlock in the Congress of the United States, that we are failing to act on matters of enormous importance because of raw, partisan politics. There is an effort in the New Yorker magazine, current edition, about what is happening in the Congress, which would infuriate anybody who reads it, and we are waiting for more of the mainstream press to tell the American people how raw the politics are here, how partisan it is, and the gigantic wall which separates the two parties here. We call it an aisle. Well, it would more accurately be called a wall, taller and tougher than the Berlin Wall. That wall has come down.

But we are undertaking enormous delays on extending unemployment compensation, in an economy where people cannot find jobs, and it is a matter of being sustained, avoiding eviction from their houses, buying groceries for their families. But I think what we have here, realistically viewed, is a test of infuriating the public before you get some response. But that is a pretty tough job to do, to infuriate the public.

Chief Justice Roberts was interviewed recently by C-SPAN and had this to say in elaboration on his contention of the Court is not a political body. On that point, Chief Justice Roberts may be right, or Chief Justice Roberts may be wrong. Judge Richard Posner and Stuart Taylor may be right in specifying political activity in the Court, and the observation of many of us is that it is an ideological battleground, a political ideological battleground. But this is what Chief Justice Roberts had to say on a C-SPAN interview a few months ago:

I think the most important thing for the public to understand is that we are not a political branch of government. They didn't elect us. If they don't like what we're doing, it's more or less just too bad.

Well, it is true that ``they didn't elect us'' and that they don't have standing to legislate. That is up to the Congress. But I am not prepared to accept the statement ``if they don't like what we're doing, it's more or less just too bad.'' I am not prepared to accept that in a democracy. I am not prepared to accept that when we have the learning of Justice Brandeis and know from our own practical experience that sunlight is the best disinfectant. Publicity has a tremendous effect on the way government operates on all levels, including, I submit, the Supreme Court of the United States.

They made a drastic departure in the New Deal legislation in the 1930s in the face of overwhelming public opinion. When we have observers such as Judge Posner commenting about the impact on the reputations of Justices, I think if there were a general understanding as to what goes on, there could be an effect on that. We could get more out of nominees in the confirmation process, and we could have a greater likelihood of having Justices, once confirmed, follow what they have said during their confirmation hearings.

I have pressed this idea of televising the Court for a long time--more than a decade. I have introduced legislation calling for the Court to be televised unless in a specific case there is cause showing why, in that one case, there should not be television. The bill has been reported out of the Judiciary Committee on a number of occasions and is now on the agenda. I have reason to believe we will have a chance to vote on the Senate amendment. I have talked to the leadership in the House of Representatives and have gotten favorable responses there. The Judiciary Committee voted it out recently 13 to 6, so that is more than the 2 to 1. I believe there is adequate legal basis for the legislation.

Congress cannot tell the Court how to decide cases, but the Congress does have the authority to establish administrative matters in the Court. For example, the Congress has the authority to decide how many Justices will be on the Court. In response to the restrictive interpretations of the Supreme Court in the 1930s, President Roosevelt floated a court-packing plan to raise the number of Justices to 15. That was defeated, and I think wisely so.

I think the principle of judicial independence is the hallmark of our society governed as a rule of law, and I think we have to maintain that judicial independence within the existing framework. But I think televising the Court would still respect that.

Just as Congress has the authority to determine how many Justices there will be, Congress has the authority to decide what a quorum of the Court is, how many members must be present for the Court to act. We set that number at six. The Congress sets the date when the Court will start its session--on the first Monday in October. The Congress has established time limits on judicial decisions. Habeas corpus has been delayed tremendously; Congress has that authority. Congress has the authority to tell the Court what cases to hear--not how they decide them but what cases to hear--illustratively, on McCain-Feingold, part of the legislation on the flag burning case. The Congress has the authority to establish the jurisdiction of the Supreme Court on discretionary matters.

The Justices are frequently televised. Quite a number of them appear on television, on ``60 Minutes.''

I ask unanimous consent to have printed in the Record a listing of situations where Justices have appeared on television.

There being no objection, the material was ordered to be printed in the Record


Mr. SPECTER. Mr. President, there has been an objection by the Court on grounds that it would interfere with the collegial dynamics of the Court, that somebody might be reaching for a 30-second sound bite. Well, I think that, in the first place, is unlikely and wouldn't be very well received and wouldn't be repeated. Even so, the objections which have been raised to televising the Court are minimal, de minimis, contrasted with the advantages to televising the Court.

If the Court were televised, there would also be an understanding of the limited docket of the Court, and the Court could undertake the decision in more cases if the public understood how few cases they hear. In 1886, the Supreme Court decided 451 cases. In 1987, a little more than two decades ago, the Court issued 146 opinions. In 2006, that number was down to 78; in 2007, 67; 2008, 75; 2009, 73. When Chief Justice Roberts testified, he said the Court could undertake more decisions. He has been the Chief for 5 years and the number is at 73.

The Court, in its discretionary authority, leaves many circuit splits undecided. Most people don't have the foggiest notion of what a circuit split is, so for the few people who are watching on C-SPAN 2, a very brief explanation. The country is divided up into circuits, different courts of appeals. The Third Circuit, for example, has jurisdiction over my State, Pennsylvania, as well as New Jersey and Delaware. The Second Circuit has jurisdiction over New York and, I believe, Vermont. Frequently, the Third Circuit will differ from the Second Circuit. A matter arises in Philadelphia governed by different law than arises in New York City. An issue arises in the Sixth Circuit in Detroit, there is no definitive resolution. People there don't know what the law is. The Supreme Court could undertake those decisions. They have sufficient time.

These are matters of very substantial importance. For example, the circuit splits are left unresolved by the Court when a Federal agency may withhold information in response to a request under the Freedom of Information Act on the grounds that it would disclose the agency's ``internal deliberations.'' The Court has left undecided when a civil lawsuit must be dismissed or may be dismissed as involving a state secret. Left undecided circuit splits, should national community standards or local community standards be applied to Internet obscenity cases; left undecided circuit splits, does a constitutional decision regarding the exclusionary rule apply retroactively to evidence obtained from illegal searches undertaken prior to that constitutional decision.

I ask unanimous consent that a fuller list be printed in the Record at the conclusion of my statement.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 1.)

Mr. SPECTER. Mr. President, the authority which we are exercising in confirming Solicitor General Elena Kagan is a very important constitutional authority, and we take it very seriously. During my tenure on the 14 nominations which the President has made, we have found a pattern which has become the accepted standard of answering about as many questions as nominees believe they have to answer in order to be confirmed. If you can't get someone like Elena Kagan to answer questions after her forceful statement from the University of Chicago Law Review criticizing Justice Ginsburg and Justice Breyer for stonewalling and criticizing the Senate for not getting information, I think that is the standard which is going to prevail. And where you have nominees coming into the nominating process and testifying under oath about important philosophical underpinnings, ideological underpinnings of congressional authority on factfinding and stare decisis, and then doing a 180-degree turn, we need to look for some response.

I do not believe requiring the Court to be televised is a denigration of their authority. I think that is within the authority of Congress, as I have delineated on so many administrative matters such as the size of the Court, the quorum, when they convene, and what cases they must hear.

I approach the Court with more than respect. I approach the Court with reverence. I have had the privilege of arguing in that Court. I am the first to acknowledge--there is no one faster on acknowledging--the importance of the Court as the final arbiter under Marbury v. Madison and the importance of judicial independence.

I do not think this idea is on a level with what the Court had to say about Congress in the Morrison case, declaring the act protecting women against violence as unconstitutional because of our method of reasoning. As I said earlier, another polite way of calling us stupid or saying we don't know what we are doing--no polite way really to say that on method of reasoning. What wisdom accrues from walking across Constitution Avenue from the hearing room in the Judiciary Committee or what great wisdom lies across the green a few hundred yards to the east of this Chamber.

I do believe television would be a step in the right direction. Would it be a cure? No. But when we have someone such as circuit judge Richard Posner criticizing a named Chief Justice on reputation, I think that would have an ameliorating effect.

I thank the Chair and yield the floor.


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