Federal News Service - Hearing of the Senate Judiciary Committee - Transcript

Federal News Service October 5, 2004 Tuesday

SECTION: CAPITOL HILL HEARING

HEADLINE: HEARING OF THE SENATE JUDICIARY COMMITTEE

SUBJECT: MAXIMIZING VOTER CHOICE: OPENING THE PRESIDENCY TO NATURALIZED AMERICANS

CHAIRED BY: SENATOR ORRIN G. HATCH (R-UT)

WITNESSES PANEL I:

SENATOR DON NICKLES (R-OK);

REPRESENTATIVE JOHN CONYERS (D-MI);

REPRESENTATIVE VIC SNYDER (D-AR);

REPRESENTATIVE BARNEY FRANK (D-MA);

REPRESENTATIVE DANA ROHRABACHER (R-CA);

REPRESENTATIVE DARRELL ISSA (R-CA);

PANEL II: PROFESSOR AKHIL AMAR, SOUTHMAYD PROFESSOR OF LAW, YALE LAW SCHOOL;

DR. MATTHEW SPALDING, DIRECTOR, CENTER OF AMERICAN STUDIES, THE HERITAGE FOUNDATION;

PROFESSOR JOHN YINGER, SYRACUSE UNIVERSITY

LOCATION: 226 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.

BODY:

REP. ORRIN G. HATCH (R-UT): We're happy to welcome all of you out here this morning for this hearing. Grateful to have all four of you here and we hope the others will be here as soon as they can. Here comes John. Good morning and welcome to the Judiciary Committee's hearing entitled "Maximizing Voter Choice: Opening the Presidency to Naturalized Citizens."

(BREAK IN TRANSCRIPT)

REP. DARRELL ISSA (R-CA): I would be happy to yield to Barney.

(BREAK IN TRANSCRIPT)

REP. ISSA: Thank you. I was wondering when Mr. Rohrabacher was going to reclaim his time. (Laughs.) Thank you, Senator. Thank you for holding this hearing, Senator, and all of the Senators here. Obviously our senior Senator from California, I really appreciate your being here.

Often in these hearings, when you're the last person, everything that can be said has been said now. I think that's not the case here, but I will dispense with my prepared comments so that I can go only to those areas that perhaps have been touched on lightly, or not at all. Certainly, like each of the previous speakers, I have a member of my staff who was adopted from Korea at age 2, and 27 years later, he knows no other country but America, and yet he's not eligible to be president.

In California we are often faced with the interesting anomaly that people who come to our state illegally and have a child-perhaps even come legally and have a child during a short visa stay, that child is eligible to be president, and yet somebody who waits in line and perhaps doesn't arrive in America until their child is 2 or 3 years old, that child is ineligible. So we penalize those who wait, who wait in line.

And I think that goes to my first and most important point. This piece of constitutional amendment-and, unlike the Senator, I very much believe that we have to have a constitutional amendment-is about fairness.

The framers of the Constitution were fair to the people of their time. At that time, they felt it was fair to grant Native Americans less than full citizenship. They felt a compromise that granted African-Americans less than full citizenship, in fact, less than freedom, was acceptable. They felt that granting men full freedom and rights but women less than full freedom was acceptable.

That doesn't make those people bad men. It makes them men and leaders of their time. But we are the men and women that are leaders of our time. And just as the Native Americans now enjoy full rights, including presidency and including the right to vote and including the right to be counted in the census fully, as do African-Americans, as do women, we have one group that has been left out. And I think that's where fairness is the most important part of your proposal for this constitutional amendment, Senator.

However, to Senator Nickles, and contrasting the two major differences between his legislation and your constitutional legislation, I disagree with the Senator's theory that we can take care of this by legislation. We live in an era-it was mentioned perhaps slightly a minute ago-in which anything can be challenged and taken to nine men and women on the Supreme Court. Any law that we pass here is open to challenge at the Supreme Court.

So we could pass a law today allowing someone to be president that previously was in doubt. That would include obviously those born abroad of U.S. citizens, such as Senator McCain, who was born in an area that is no longer the United States. It was the United States when he was born, the Panama Canal district. Today, it isn't.

That doubt certainly could be challenged after an election, challenged to the U.S. Supreme Court and the U.S. Supreme Court would not have the ability to say do we go with the will of the people? They would have to go, what is the Constitution and what does it say? So, I think that, as much as we could envelop for feel good purposes, more and more people into the system of being defined as natural-born, I don't believe that it would exempt a presidential candidate, if elected, from being open to that challenge. And the possibility certainly exists that someone could be elected president and their vice president could be sworn in because the men and women of the Supreme Court would have to interpret the Constitution as un-amended rather than amended by simple legislation or statute.

I think that's the most important reason that this constitutional amendment is necessary. Each and every one of the points brought to us here today of uncertainty, uncertainty even the question of Hamilton's exemption certainly no longer germane today. But Senator McCain, who's to say that Senator McCain, if he had been the Republican nominee for president in 2000, if he had won by a narrow margin in so few states with hundreds or a few thousand votes, who's to say that the Supreme Court wouldn't have been faced with two questions. One question about whether or not he won the election and a second one about whether he was eligible to be president.

And certainly, in this day and age, anyone can bring a case and the Supreme Court would have an obligation to hear it. So since that hasn't been previously decided, each and every one of the people that we want to include hasn't been decided, I believe that we should decide it in clear and definitive language that will be unambiguous for the future for all those we want to be eligible.

Lastly, because people have talked about the period of time, I'm a co-sponsor of both pieces of legislation in the House. I will add that, if I were going to pick times, and since Congressman Frank said an hour and-a-half might be too short, I would only say that, as this legislation goes through the House and the Senate, the truth of the matter is-the simple statement is-we needed a president by the founding fathers to be 14 years a resident. And if I were going to pick a single date, 35 years old should stand but also realistically, with all due respect, Senator, I might suggest that even 14 years a citizen and a resident would be a fairly understandable requirement. Because we are going to let stand the fact that you have to not just be a citizen but that you can't have essentially left the country for years and then be-what do they say-parachuted back in.

So whether you use an hour and-a-half, 14 years, 20 years or 35 years, I think, is less important than the two guiding principles, one of fairness, the other of clarity and your legislation brings both. So I want to thank you and thank you for holding this hearing.