Executive Session - Nomination of William H. Pryor to be United States Circuit Judge for the Eleventh Circuit

EXECUTIVE SESSION
NOMINATION OF WILLIAM H. PRYOR, OF ALABAMA, TO BE UNITED STATES CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT

Mr. LEAHY. Mr. President, I thank the Senator from Massachusetts. It is interesting that we are in this debate. We are told we want to finish the Energy bill, yet we have been talking about everything but energy. We have a number of judicial nominations that have been brought up that are obviously controversial, obviously not ripe for debate. That takes time. At the same time, we have ignored a number of judicial nominations that could have been voted on in a series of 10-minute rollcall votes had the leadership wanted that.

Maybe they don't really want to finish the Energy bill before the recess. Or perhaps, as we now read in the paper, the White House has ordered Republican leadership to have four cloture votes, a very busy week.

When I came here and when the distinguished Presiding Officer, my friend from Alaska, and the very highly respected President pro tempore, we tended to be more independent around here, independent of the White House. The Senate was its own body. Now the White House tends to run things, even picking the Republican leadership. It is a strange time.

I am going to yield quickly to the Senator from New York, but I just want to say one thing. One of the most despicable things in this debate has been the charges made by supporters of the administration that Democratic Senators are anti-Catholic because we oppose Mr. Pryor, notwithstanding his far right, way out of the mainstream ideology and past actions; notwithstanding the fact that we asked questions about whether he was soliciting campaign contributions from the same companies he was supposed to be suing and prosecuting. Notwithstanding that, because we raised these questions, the answers are not given to the questions we raise. Instead, we are called anti-Catholic.

This charge is despicable. I have waited patiently for more than 2 years for my counterparts on the other side to disavow such charges. They stay silent, and of course the best way for a lie to take root is for people to stay silent about it. They stayed silent about this lie—actually that is not true. They haven't just stayed silent about it. Many have gone on and repeated it.

The slander in the ads recently run by a group headed by the President's father's former White House counsel and a group whose funding includes money raised by Republican Senators and the President's family is personally offensive. They have no place in this debate or anywhere else.

I challenged Republican Senators, who are so fond of castigating special interest groups and condemning every statement critical of a Republican nominee as a partisan smear, to condemn this ad campaign and the injection of religion into these matters. Only one of the newest Members of the Senate on the Republican side responded to the challenge.

Other Republican members of the Judiciary Committee and of the Senate have either stood mute in the case of these obnoxious charges or, worse, have fed the flames. Last night, at least three Republican Senators came to the floor, not to condemn this campaign of calling Democrats anti-Catholic—including this lifelong Catholic—but they have come here to fan the flames, to stoke this divisive, harmful, and destructive campaign. I have rarely been more disappointed in the Senate.

Where are the fair-minded Republican Senators? What has silenced them? Are they so afraid of the White House that they would allow this religious McCarthyism to take place? Why are they allowing this to go on? The demagoguery, divisive and partisan politics being so cynically used by supporters of the President's most extreme judicial nominees needs to stop.

I remember when one of the greatest Senators of Vermont, Ralph Flanders, stood up on this floor, even though he was a Republican, sort of the quintessential Republican—he stood up and condemned what Joseph McCarthy was doing. And it stopped. I hope some will stand up and condemn this charge of anti-Catholicism leveled against the members of the Senate Judiciary Committee.

A few days ago we heard from a distinguished group of members of the clergy from a variety of churches and synagogues who serve as members of the Interfaith Alliance. They were willing to do what the Republican Senators will not, and held a forum to discuss the recent injection of religion into the judicial nominations process. The Alliance is a national, grassroots, non-partisan, faith-based organization of 150,000 members who come from over 65 religious traditions. These men and women of faith promote the positive and healing role of religion in public life, and challenges all who seek to manipulate or otherwise abuse religion for sectarian or partisan political purposes. They came to the United States Capitol to denounce the despicable charges made against Senators, and to urge, as many of us have, that this involvement of religion in the confirmation process come to an end. I would like to enter into the record the remarks of participants in the forum on July 29, 2003, including statements by Rev. Dr. C. Welton Gaddy, the President of the Interfaith Alliance, Rabbi Jack Moline, the Vice-chair of the Alliance, and the Right Reverend Jane Holmes Dixon, the Immediate Past President of the Alliance.
These statements are moving and persuasive and important. I would hope that my Republican colleagues would read them and take them to heart.

Mr. President, I ask unanimous consent to print the remarks of the Interfaith Alliance forum in the RECORD.

Senator LEAHY. First I want to thank everybody who has come here today, and I certainly appreciate so much the religious leaders who have really come together and united on one thing, to condemn the injection of religious smears into the judicial nomination process.

Partisan political groups have used religious intolerance and bigotry to raise money and to publish and broadcast dishonest ads that falsely accuse Democratic senators of being anti-Catholic. I cannot think of anything in my 29 years in the Senate that has angered me or upset me so much as this. One recent Sunday I emerged from Mass to learn later that one of these advocates had been on C-SPAN at the same time that morning to brand me an anti-Christian bigot.

Now, as an American of Irish and Italian heritage, I remember my parents talking about days I thought were long past, when Irish Catholics were greeted with signs that told them they did not need apply for jobs. Italians were told that Americans did not want them or their religious ways. This is what my parents saw, and a time that they lived to see be long passed. And my parents, rest their souls, thought this time was long past, because it was a horrible part of U.S. history, and it mocks the pain—the smears we see today mock the pain and injustice of what so many American Catholics went through at that time. These partisan hate groups rekindle that divisiveness by digging up past intolerances and breathing life into that shameful history, and they do it for short-term political gains. They want to subvert the very constitutional process designed to protect all Americans from prejudice and injustice.

It is saddening, and it's an affront to the Senate as well as to so many, when we see senators sit silent when they are invited to disavow these abuses. These smears are lies, and like all lies they depend on the silence of others to live, and to gain root.
It is time for the silence to end. The Administration has to accept responsibility for the smear campaign; the process starts with the President. We would not see this stark divisiveness if the President would seek to unite, instead of to divide, the American people and the Senate with his choices for the federal courts. And those senators who join in this kind of a religion smear: they may do it to chill debate on whether Mr. Pryor can be a fair and impartial judge, but they do far more.
They hurt the whole country. They hurt Christians and non-Christians. They hurt believers and non-believers. They hurt
all of us, because the Constitution requires judges to apply the law, not their political views, and instead they try to subvert the Constitution. And remember, all of us, no matter what our faith—and I'm proud of mine—no matter what our faith, we are able to practice it, or none if we want, because of the Constitution. All of us ought to understand that the Constitution is there to protect us, and it is the protection of the Constitution that has seen this country evolve into a tolerant country. And those who would try to put it back, for short-term political gains, subvert the Constitution, and they damage the country.

Now this nominee, Mr. Pryor, is an active politician. He has been particularly active on several political issues that divide Americans. And this administration has acknowledged that it selects nominees on the basis of their ideologies. So when this or other nominees are asked about their views and statements, whether it's about Roe v. Wade or the flawed administration of the death penalty, they are being asked legitimate questions that the White House itself has already considered in their selection. Senators of course have an equal right to inform themselves about their ideologies. And those senators do us all a disservice, they do a disservice to this great and wonderful institution, when they charge that there is a religious test for nominees. The record itself reputes that. Democratic senators have joined in confirming 140 of President Bush's judicial nominees. Now you'd have to guess that most of these nominees, chosen by President Bush and confirmed by Democratic senators, have been Republicans. Most, presumably, share the Administration's right-to-life philosophy. No doubt, a large number of the 140 are Christians, and of course, we would have to assume some are Catholics.

I appreciated Senator Durbin's courage when he spoke the truth about these falsehoods, and I appreciate the courage of the religious leaders we will hear from today, and I welcome Reverend Dr. Welton Gaddy, the president of The Interfaith Alliance. The Alliance has stood up on important legal issues on behalf of Americans of many different faiths. Remember, as Americans, this is one of the things that makes us free and the nation that we are—the diversity that comes from our various religious beliefs. The first Amendment encompasses so many different things: the freedom of speech, the freedom to practice any religion you want, or none if you want. We are not a theocracy, we are a democracy. And because we are a democracy, all of us, especially those who may practice a minority religion, get a chance to practice it. I'm glad to see Father Drinan here. Father Drinan is a professor of law at Georgetown and has been a member of Congress, but more importantly than that he has been a friend of mine since I was a teenager. We first met when I was a college student, and we talked about the fact that I wanted to go to law school. And we're fortunate to have with us today the Reverend Carlton Veazey, and the Right Reverend Jane Holmes Dixon, retired Episcopal Bishop from Washington National Cathedral. And the Bishop has told me she now has a son in Vermont. I admired her before, and I admire her even more now, for that. And Rabbi Jack Moline of Northern Virginia has joined us. So Revered, why don't I turn it over to you now.

The Rev. C. WELTON GADDY. Welcome to this Press and Hill Staff Briefing. My names is Welton Gaddy. I serve as President of The Interfaith Alliance, a national, grassroots, non-partisan, faith-based organization of 150,000 members who come from over 65 different religious traditions. The Interfaith Alliance promotes the positive and healing role of religion in public life and challenges all who seek to manipulate or otherwise abuse religion for sectarian or partisan political purposes.

Last Wednesday, the Senate Judiciary Committee's discussion on William Pryor's nomination to the 11th Circuit Court of Appeals in Atlanta deteriorated into a dramatic demonstration of the inappropriate intermingling of religion and politics that raised serious concerns about the constitutionally guaranteed separation of the institutions of religion and government.
Such a meshing of religion and politics in the rhetoric of the Senate Judiciary Committee cheapens religion and diminishes the recognized authority of the Committee to speak on matters of constitutionality. The debate of that day, though alarming and disturbing, has created a teachable moment in which we will do well to look again at the appropriate role of religion in such a debate. That is why we are here this morning.

Religion plays a vital role in the life of our nation. Many people enter politics motivated by religious convictions regarding the importance of public service. Religious values inform an appropriate patriotism and inspire political action. But a person's religious identity should stand outside the purview of inquiry related to a judicial nominee's suitability for confirmation. The Constitution is clear: There shall be no religious test for public service.

Within a partisan political debate, it is out of bounds for anyone to pursue a strategy of establishing the religious identity of a judicial nominee to create divisive partisanship. That, too, is an egregious misuse of religion and a violation of the spirit of the constitution. Even to hint that a judiciary committee member's opposition to a judicial nomination is based on the nominee's religion is cause for alarm. How did we get here?

In recent years, some religious as well as political leaders have advanced the theory that the authenticity of a person's religion can be determined by that person's support for a specific social-political agenda. So severe has been the application of this approach to defining religious integrity that divergence from an endorsement of any one issue or set of issues can lead to charges of one not being a "good" person of faith.

The relevance of religion to deliberations of the Judiciary Committee should be twofold: one, a concern that every judicial nominee embraces by word and example the religious liberty clause in the constitution that protects the rich religious pluralism that characterizes this nation and, two, a concern that no candidate for the judiciary embraces an intention of using that position to establish a particular religion or religious doctrine. In other words the issue is not religion but the constitution. Religion is a matter of concern only as it relates to support for the constitution.

Make no mistake about it, there are people in this nation who would use the structures of government to establish their particular religion as the official religion of the nation. There are those who would use the legislative and judicial processes to turn the social-moral agenda of their personal sectarian commitment into the general law of the land. The Senate Judiciary Committee has an obligation to serve as a watchdog that sounds no uncertain warning when such a philosophy seeks endorsement within the judiciary.

It is wrong to establish the identity of a person's religion as a strategy for advancing or defeating that person's nomination for a judgeship. However, it is permissible, even obligatory, to inquire about how a person's religion impacts that person's decisions about upholding the constitution and evaluating legislation. When a candidate for a federal bench has said, as did the candidate under consideration last Wednesday, in an address in the town in which I pastor, "our political system seems to have lost God" and declares that the "political system must remain rooted in a Judeo-Christian perspective of the nature of government and the nature of man," there is plenty for this Committee to question.

Every candidate coming before this Committee should be guaranteed confirmation or disqualification apart from the candidate's religious identity as a Baptist, a Catholic, a Buddhist or a person without religious identification. What is important here is a candidate's pledge to defend the constitution. And, that pledge should be buttressed by a record of words and actions aimed not at attacking the very religious pluralism that the candidate is being asked to defend but rather to continuing a commitment to the highest law of the land.

I felt grimy after listening to distinctions between a "good Catholic" and a "bad Catholic." I know that language; I heard it in the church of my childhood where we defined a "good Baptist" as one who tithed to the church, didn't smoke, didn't dance and attended church meetings on Sunday evening and a "bad Baptist" as one who didn't fit that profile. The distinctions had nothing to do with the essence of the Christian tradition and the content of Baptist principles. It is not a debate that is appropriate or necessary in the Chamber of the United States Senate.

The United States is the most religiously pluralistic nation on earth. The Interfaith alliance speaks regularly in commendation of "One Nation—Many Faiths." For the sake of the stability of this nation, the vitality of religion in this nation, and the integrity of the Constitution, we have to get this matter right. Yes, religion is important. Discussions of religion are not out of place in the judiciary committee or any public office. But evaluations of candidates for public office on the basis of religion are wrong and there should be no question that considerations of candidates who would alter the political landscape of America by using the judiciary to turn sectarian values into public laws should end in rejection.

The crucial line of questioning should revolve not around the issue of the candidate's personal religion but of the candidate's support for this nation's vision of the role of religion. If the door to the judiciary must have a sign posted on it, let the sign read that those who would pursue the development of a nation opposed to religion or committed to a theocracy rather than a democracy need not apply.

In 1960, then presidential candidate John F. Kennedy addressed the specific matter of Catholicism with surgical precision and political wisdom, stating that the issue was not what kind of church he believed in but what kind of America he believed in. John F. Kennedy left no doubt about that belief: "I believe in an America where the separation of church and state is absolute." Kennedy pledged to address issues of conscience out of a focus on the national interest not out of adherence to the dictates of one religion. He confessed that if at any point a conflict arose between his responsibility to defend the constitution and the dictates of his religious, he would resign from public office. No less a commitment to religious liberty should be acceptable by any judicial nominee or by members of the Senate Judiciary Committee who recommend for confirmation to the bench persons charged with defending the Constitution.

We have an impressive group of religious leaders here to address various issues relating to this topic. Also, another member of the Senate Judiciary Committee has joined us, Senator Durbin, and I wanted to say, as I recognize him for some comments, Senator how grateful we are, not only for your words in session on this committee, but for the tireless work you've done on charitable choice legislation.