Executive Session

By:  Jeff Sessions III
Date: May 18, 2005
Location: Washington, DC


EXECUTIVE SESSION -- (Senate - May 18, 2005)

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Mr. SESSIONS. Mr. President, we are debating in the Senate today a very important issue. It is an issue that we must deal with and one that may take days of debate.

For a series of reasons, it has become more and more of interest to the American people the nature and quality of judges that we appoint. That has resulted in a serious concern about the role of courts, the critical doctrine of separation of powers; that is, what judges do and what they should do and what their prerogatives are and what their responsibilities are as a judge.

President Bush, in his campaigns both times, made absolutely clear that he believed the judge should be a neutral arbiter, a fair referee and, as such, not have an agenda when they go on the bench. He has appointed and nominated judges that share that view. And they have been doing splendid jobs--the judges that have been confirmed. He has not asked that they promote his agenda, his politics, his view of the social policies of America, he has simply asked that they do the jobs they were appointed to do--that they serve in the judicial branch of our government.

It is true, however, that the American people have seen some things in the judicial branch that have troubled them. They have seen, for a number of years, two judges on the Supreme Court consistently dissent in death penalty cases. They don't like the death penalty so they dissent in cases that uphold its use. They declare, in every case they consider, that the death penalty cruel and unusual, and therefore, prohibited by the Constitution of the United States. But they failed to note that in that very same Constitution there are eight or more references to capital crimes, permitting the taking of a person's life with due process of law, there are multiple references to the death penalty in the Constitution and I think it is important to note that every State, at the time the Constitution was adopted, had a death penalty and virtually every country had one as well.

Therefore, it is inconceivable to me how a judge who would follow his oath to obey the commands of the Constitution could ever interpret the phrase ``cruel and unusual''--certainly it was not unusual if it was the law of every State in the Nation at that time and the Federal Government had laws supporting the death penalty. So we know that some judges continue to conclude that the death penalty is cruel and unusual. That is activism. They have allowed their personal opposition to the death penalty to solely drive them, and they have manipulated the words of the Constitution to make it say something it plainly does not say.

Now we are seeing cases of judicial activism on a whole raft of issues. We have seen the Pledge of Allegiance struck down by a Federal court. We have seen the erosion of rights of property protected by the fifth amendment that says you cannot take someone's property without paying them for it. We have had courts redefine the meaning of marriage under the guise of interpreting a constitutional phrase that absolutely was never ever intended to affect the definition of marriage. It was probably the last thing in their minds when the people ratified the Constitution.

We have had judges cite as authority proceedings in the European Union, but it is our Constitution we ratified. It is our Constitution, not some other. How can they define and make rulings based on opinions in Europe when they go against the very document that orchestrates and organizes our Government?

We have consent decrees in prisons and schools and mental health hospitals where Federal judges dominate whole Government agencies and state legislatures for 30 years. We have had judges say you cannot have a Christmas display because it violates the first amendment. And, we know that jackpot verdicts are all too common.

The American people are concerned about these things. These things are bigger than Republican and Democrat, they go to the heart of the separation of powers doctrine. President Bush was honest and direct, and many of the people he has nominated have had an objection to their nomination because, on occasion, they have written something or have made a speech that indicates they share the view that a judge should show restraint and not promote their own personal agenda from the bench.

That is the way it has been for 200 years. I remember when this debate got kicked off, I saw ``Meet the Press,'' when Hodding Carter was on it, and used to be on the staff of President Carter, and he said: Well, I have to admit we liberals are at the point we are asking the courts to do for us that which we can no longer win at the ballot box.

Too often that is what this is about. A lot of these issues that are being decided by courts and judges would never ever prevail at the ballot box. They would not be passed by the Congress.

People say they are nice folks. They are smart people. If you criticize a judge, you are doing something that is highly improper; you should never criticize a judge. That is not the history of the Republic. What the American people need to understand, I cannot emphasize this too much, the principle on these issues I have just talked about is very deep. What we are suggesting is, and what is being implicated here is, that unelected judges who are given a lifetime appointment by which they are independent and unaccountable to the public, should not set social and political policy in this country.

Is that too much to ask? We have seen too much of that. It is being taught in the law schools that the good judges are the ones that step out in a bold way and move the law forward to higher realms, they would say. But have they forgotten that the people, if they wish to have a death penalty and it is consistent with a Constitution, their opinion makes little difference? They have one vote in the election, as everyone else does. If their views do not get ratified, so what?

Some people say: Well, the courts had to act because the legislature did not act. But when the legislature does not act, that is an act. That is a decision, a decision not to change an existing law, and it deserves respect.

Our judges are people who take their office on trust. We have some exceedingly fine ones and most do show discipline, but I do believe this is a point in our history when the American people and the Congress need to decide together what we expect out of judges. Do we expect them to be the avant-garde of social and political policy? Or do we expect them to be faithful and true arbiters of legitimate disputes to interpret the law as they find it?

There is only one way, consistent with our Constitution and our history and our body politic, for our system to continue to work, and that is that judges show restraint. That is what this debate is about. It is not about Republicans. It is not about Democrats or such things.

One of the things that has occurred in this confirmation process, for now nearly 20 years, has been the influence of outside hard-left activist groups who have a clear agenda with regard to the Judiciary. They know exactly what they want from the Judiciary, and they are determined to get it. They have banded together. They build dossiers on nominees. They systematically take out of context their comments and their statements and their positions. They release that to the public. Frequently, they have support from the major liberal news organizations in the country to the sensational charges they make and they sully the reputations of nominees who are good and fine nominees.

It is a very difficult to turn the tide on that. It is unfair. We will talk about that some today. But we have to recognize this.

If I criticize my colleagues on the other side of the aisle, I would say this: Those people were not elected to the Senate. They have not taken an oath to advise and consent and to do so honestly and with intellectual integrity. They did not do that. They are advocates. They raise money by trying to demonstrate to those who would contribute to them that President Bush's nominees are extreme and out of the mainstream. They should not be calling the shots here. Frankly, my view is, too often they have. Too often they have taken nominees, and they have smeared them up, muddied them up, and then our Senators have not stepped back and given them a fair shake. I do not mean that personally to my colleagues, but I think that is a fair observation. I believe too often that has occurred.

Two of the things that are typical of that can be seen in an ad now being run on television against Priscilla Owen--I don't know in how many States--by People For the American Way. Let me remind you that Justice Priscilla Owen, from Texas, was given the highest possible rating by the American Bar Association. She finished at the top of her class in law school. She made the highest possible score on the Texas bar exam. A lot of people take that exam. That is a big deal, in my opinion. She got 84 percent of the vote in her reelection. She had the support of every major newspaper in Texas, and many of them are not Republican newspapers. She is a superb, magnificent nominee.

However, the People for the American Way TV ad wants you to believe that she is an activist judge, even though we know that for her whole career her whole philosophy of law is that judges should follow the law and not legislate from the bench. That is her deepest abiding principle--be faithful to it and not depart from it, whether or not she agrees with it.

The People for the American Way cites as proof of her activism a fellow justice on that court, now the Attorney General of the United States of America, Alberto Gonzales, who they say accused her of being an activist in an opinion he wrote. So they declare: Ah, she is an activist. The President's own Attorney General said she is an activist. That is simply not so.

Let me just talk about the facts of this opinion for a minute. We need to drive this home because so far as I can tell that is the only charge that has been made against her that amounts to anything at all that has ever been consistently raised by those who oppose her nomination.

In the opinion the People for the American Way cites as their evidence, what happened was this--the Texas Supreme Court was evaluating the meaning of the Texas parental notification law on abortion for a teenager or a minor. Minors in Texas have to notify at least one of their parents before they undergo the significant medical procedure of an abortion, unless there is a bypass to the parental notification requirement granted by a court. And minors are allowed to ask for that judicial bypass for many reasons. This process allows them to set forth the reasons and not have to tell their parents that they are going to have an abortion.

Well, in this circumstance, a trial judge heard the case. He saw the child who wanted to bypass and not tell her parents, and he concluded that she did not meet the statutory requirements and should tell her parents. Lets be clear--the Texas parental notification requirement does not give the parents veto power, it does not mean they have to ``consent.'' She could still have the abortion, just as long as she told them, ``notified'' them, of what she was about to do. The reason to have this kind of law is simple--there is a serious concern that if you cannot give a child an aspirin at school without parental permission, surely we ought not to be having doctors perform abortions on children without at least having the parents notified of it.

That is what Texas voted to have as their law. The Supreme Court has upheld parental notification statuses as constitutional. So, in Texas, there became a fuss over the meaning of the law and Justice Owen concluded that the trial judge was correct in their decision that the girl did not meet the requirements for parental notification and should notify her parents before the abortion. Justice Owen dissented from the main opinion and concluded that the trial judge was correct and the child should notify her mama or daddy that she was going to have an abortion. Whereas, Judge Gonzales's opinion said that he had studied the Texas statute and I have concluded that--it is not perfectly clear, but I have concluded the legislature intended A and B. Therefore, if I don't rule the other way, since I have concluded the legislature intended A and B, then I will be an activist even though I personally hate to see this child not tell her parents.

So, to help us clear up this matter, he came before the Judiciary Committee, of which I am a member, and testified about this case. Senator Brownback, who is in the Chamber, asked him about it as Attorney General. And he was rock solid. He has written a letter saying he was not referring to Justice Owen when he made that comment in his opinion about activism; certainly, did not mean to. He was referring to his own self, that if he had concluded that the legislature meant these things, then he was compelled to rule against the trial judge or he would be labeling himself an activist. Justice Owen did not agree, she had not concluded the same things about the legislation that Judge Gonzalez had.

An SMU law professor wrote a beautiful letter on behalf of Justice Owen. She said:

I am pro-choice, absolutely, but I believe she followed the law carefully. She was a scholar. She thought it through like a judge should think it through, and, absolutely, this is not evidence of activism and it, absolutely, should not be held against her.

Mr. President, I want to know what the time agreement is and where we are.

The PRESIDING OFFICER (Mr. SUNUNU). The Senator has 43 1/2 minutes remaining.

Mr. SESSIONS. Mr. President, I see Senator Brownback is in the Chamber. I will finish within my 30 minutes. I believe he will be speaking in the next 30 minutes; is that correct--or in that 40 minutes?

The PRESIDING OFFICER. That is an appropriate division of time.

Mr. SESSIONS. I wish to share a little bit about Justice Janice Rogers Brown. She grew up not too far from where I grew up in rural Alabama, in Greenville, AL. She, as a young African-American child, had parents who were sharecroppers. They had a tough life. She ended up moving, as a teenager, to California, where she went through the school system there, did exceedingly well, went to UCLA Law School and achieved great success there, and eventually became a judge. It is terrific, the story of her life and her achievements.

She has served for 9 years now on the California Supreme Court. She does, every day on the California Supreme Court, the same kind of things which President Bush has nominated her to do on the Court of Appeals here in DC. As such, she reviews the transcripts of the trials of cases conducted by trial judges under them to see if there was an error in the conduct of that trial. The California Supreme Court does not conduct trials. They do not make opinions. They review trials below them to make sure they were conducted properly, that the judge followed the law and did not commit errors.

I think she has been trained exceedingly well. As a member of the California Supreme Court she reads briefs. She listens to arguments by counsel, and then writes opinions as they make those judgments. Those opinions should be unbiased and I believe hers have been and will continue to be. We need judges who write well and follow the law and rule consistent with the law. If you look at Justice Brown's career, I do not think anyone can contend she has performed other than admirably on the bench. She has written beautifully and thoughtfully. She graduated from UCLA, one of the Nation's finest law schools.

In February of 2004, last year, the alumni of that not so conservative law school presented Justice Brown with an award for public service. In recognizing her, her fellow UCLA alumni--the people who know her--they did not condemn her for being some extremist. They said this:

Janice Rogers Brown is a role model for those born to prejudice and disadvantage, and she has overcome adversity and obstacles and, since 1996, has served as a member of the California Supreme Court. The professional training she received at UCLA Law School has permitted her, even now, when decades remain to further enhance her career, to have already a profound and revitalizing impact upon the integrity of American jurisprudence.

I will repeat that:

She has even now been found to have already a profound and revitalizing impact upon the integrity of American jurisprudence.

I could not agree more. They go on to say this:

Despite her incredible intellect, work ethic, determination, and resultant accomplishments, she remains humble and approachable.

That is important in a judge. A lot of judges get to the point they think they were anointed and not appointed, but she has been on the bench for 9 years, and they still say she keeps her perspective and remains approachable to all. That is not the Janice Rogers Brown you will be hearing about from those who want to tar and feather her.

I will take the word of the people who know her, who have actually studied her record, over the rhetoric of the interest groups who are not the least bit interested in the integrity of the judiciary. They are interested in their agenda. From my observation, one of their guiding principles is that the ends justify the means.

After law school, Justice Brown served as a deputy legislative counsel in California for 2 years. She then spent 8 years as a deputy attorney general in the office of the California Attorney General, where she wrote briefs and participated in oral arguments before appellate courts on behalf of the State's criminal appeals. So she learned a lot about criminal law, and she prosecuted criminal cases in court and litigated a variety of civil issues. Her keen intellect and work ethic made her a rising star on the California legal scene.

In 1994, then-Governor Pete Wilson tapped her as his legal affairs secretary. Governor Pete Wilson came to Washington last week. For the most part, he was here to affirm Justice Brown. He thinks she is a magnificent nominee. He absolutely supports her. He said he couldn't be more proud of her service on the court and that it was outrageous what they were saying about this fine nominee's record.

She was then nominated and confirmed as an associate justice on the California Third District Court of Appeals. And in 1996, as a result of her superior performance on the appellate court, Governor Wilson elevated her to the California Supreme Court.

I ask to be notified after 30 minutes have been consumed.

The PRESIDING OFFICER. The Senator has 7 minutes remaining.

Mr. SESSIONS. Since she was appointed to the Supreme Court, a couple things have happened that provide confidence in her good performance.

During the 1998 election, she was on the ballot and had to win the majority of the vote to stay on the bench. The people of California, who didn't vote for President Bush and certainly are not a rightwing electorate, voted to keep Justice Janice Rogers Brown on the court with 76 percent of the vote. That is a big vote by any standard. Probably 20 percent of the people in California vote against anybody on the ballot. Other judges were on the ballot. She got a higher percentage of the vote than any of the other four judges on the ballot. That is an affirmation by the people of California.

In 2002, for example, Justice Brown's colleagues on the supreme court relied on her to write the majority opinion for the court more times than any other justice. What happens on a court, such as a supreme court, once the court votes on how a case should be decided, they appoint a member of the court to write the opinion. If you write the opinion, you have to be on the majority side. If some don't agree and the majority agrees, then somebody writes the majority opinion for the court.

We have had the suggestion that this justice of the California Supreme Court is somehow out of the legal mainstream, but in 2002, more than any other justice on the court, she was called on to write the majority opinion. That speaks volumes for the fact that she is not out of the mainstream. And there are few courts in the United States more liberal than the California Supreme Court.

Professor Gerald Ullman, who is a law professor in California, wrote a beautiful letter supporting her. His statement sums up what we ought to think about as we consider this nomination. He said:

I don't always agree with her opinions.

And then he said this:

I have come to greatly admire her independence, her tenacity, her intellect, and her wit. It is time to refocus the judicial confirmation process on the personal qualities of the candidates, rather than the hot button issues of the past. We have no way of predicting where the hot buttons will be in the years to come, and our goal should be to have judges in place with a reverence for our Constitution who will approach these issues with independence, an open mind, and a lot of commonsense, a willingness to work hard, and an ability to communicate clearly and effectively. Janice Rogers Brown has demonstrated all these qualities in abundance.

Her colleagues support her. A bipartisan group of Justice Brown's former judicial colleagues, including all of her colleagues on the court of appeals for the Third Circuit in California, have written in support of her nomination. Twelve current and former colleagues wrote a strong letter to the committee stating:

Much has been written about Justice Brown's humble beginnings, and the story of her rise to the California Supreme Court is truly compelling. But that alone would not be enough to gain our endorsement for a seat on the Federal bench. We believe that Justice Brown is qualified because she is a superb judge. We who have worked with her on a daily basis know her to be an extremely intelligent, keenly analytical, and a very hard worker. We know that she is a jurist who applies the law without favor, without bias, and with an even hand.

That was received by the committee October 16, 2003, when this process began.

Justice Owen and Justice Brown are both immensely qualified to serve on the Federal bench. They deserve fair consideration by this body. That should come in the form of an up-or-down vote, not a filibuster. I trust we will have that soon. They certainly deserve it.

I yield the floor.

The PRESIDING OFFICER. The Senator from Kansas.

Mr. BROWNBACK. Mr. President, I thank my colleague from Alabama for his presentation and his work on the Judiciary Committee since the time we have both been in the Senate. He has served for some time and has done an excellent job. He brings a lot of good sense to it. We are both very familiar with Janice Rogers Brown and Justice Owen. They have been in front of us for years now. Priscilla Owen was in front of us when I was last on the Judiciary Committee over 2 years ago. I can remember that during her confirmation hearing, she gave a law school professor dissertation to almost every question that came up. She had the answers. She responded directly to our colleagues. She is a brilliant lady, both on resume and in person.

Something you said earlier caught my attention, because it is what a lot of this battle is about. The left in America doesn't get this agenda through the legislative or executive branch, so they go through the courts.

And that is really what we are fighting about now, it seems to me--you have judges we are putting forward for confirmation who are strict constructionists, meaning they will rule within the letter of the law of the Constitution. The left wants people who will be super legislators, legislating from the bench. In your experience on the Judiciary Committee, have you heard that debate taking place, or is it always pretty much underneath the water, you really don't see it? Have you heard that debate rise up where people say, well, we cannot change the marriage definition in the U.S. Congress or in the States, so we are going to do it through the courts?

Mr. SESSIONS. This motive is not talked about regularly in an open way, but in a way it did become open. Shortly after Justice Owen was nominated, the Republicans lost a majority in the Senate. I was chairing at that time the Court Subcommittee of the Judiciary Committee, and that changed and Senator Schumer became chairman of the committee. He announced that all judges were basically driven by their politics, and they all had ideologies, and that we ought to just consider their politics when we are confirming them. We had a hearing on the politics of ideology and how we should handle it. I thought the witnesses were uniform, including Lloyd Cutler, counsel to Jimmy Carter and to President Clinton, in their rejection of that principle.

They all agreed that the classical American rule of law says that judges are to be nonpartisan, that they are referees and arbiters and objective interpreters of the law, and it would undermine that principle to start treating them like politicians. So it was discussed in a way that was honest, actually, and I think the overwhelming result from the ABA and the witnesses was that considering politics during the judicial confirmation process would not be a good way to go.

I know Senator Brownback is aware that a lot of the groups that drive the objections to these nominees are very agenda-driven groups, they are activists, and I think that is pretty obvious to anybody who is watching.

Mr. BROWNBACK. Mr. President, that has been my view of what has been taking place recently. Individuals increasingly have said we cannot win this legislative fight in the States or in the Congress, so we are going to take it to the courts. A judge who is a strict constructionist would ask, is this within our purview under the Constitution? And if it is not, the case would be thrown out, rather than the judge saying that the Constitution is an organic, living document, and I can look at this law imaginatively, how I want to, and then somehow find a way to reach the conclusion I want.

To me, that is what the frustration of the public has been--that somehow they are now thrown out of the process. They can vote for or against the Senator from Alabama or the Senator from Kansas or the Senator from New Hampshire or the Senator from Massachusetts on the basis of a policy issue. But they don't have any right or ability to be able to contact a judge. Yet you have these massive issues that directly impact people regarding marriage and life. We have a bill up now where a Federal court has said that the Congress has appropriated this money and that is inappropriate and they must give these moneys out. Under the Constitution, the appropriation powers are clearly given to the Congress. The court is now stepping into that.

My question to my colleague would be, Where does this stop if you don't start putting on judges who are judges rather than super legislators? Where does it stop?

Mr. SESSIONS. I could not agree more with the Senator. He stated that so beautifully and, I believe, so fairly. It is the real question here. As you know--and I am not sure most of the people in our country have fully thought it through--once a judge says the Constitution means that marriage should be redefined and every legislative finding to the contrary is void, the only recourse the American people have is to try to pass a constitutional amendment that requires, as you know, a two-thirds vote of both Houses of Congress and three-fourths of the States. It is a monumental task. And then if you criticize the judge for their ruling, people say: Oh, you are violating the separation of powers. I think when the courts tread into those areas and start imposing political views, they can only expect that there will be criticism in return.

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