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Public Statements

Executive Session

Location: Washington, DC

EXECUTIVE SESSION -- (Senate - July 25, 2006)


Mr. COBURN. Mr. President, I don't know quite where to begin. If you are sitting out in America today and you heard what you just heard, what you heard was, I am going to point out how bad you are. Here is what is wrong, here is the choice. What you heard was a partisan rant about the situation we find ourselves in today rather than a constructive hand that says, let's work together to get things done.

We heard a debate about stem cells so it could be used politically. We heard a lot of words that were interchanged, stem cells versus embryonic stem cells. We heard words that President Bush does not care about people with illnesses, Republicans do not care about people with illnesses. We heard words that 70 percent of Americans support stem cell research. The fact is when you as Americans are asked, do you think your taxpayer dollars ought to be used to destroy embryos for embryonic research, that number changes to 38 percent.

Half truths are just that. The time we are supposed to be using is on the nomination of a great American by the name of Jerome Holmes. What we saw is, Members are going to vote against him because they have a litmus test. That is what is going to drive our country farther apart rather than bring us together. If you don't match up and you don't pass the litmus test, then you can't be voted for.

The problem is, that works both ways. If the Senate is going to change its approach to judicial nominees, and you have to match either a liberal or conservative dogma, what will happen to our courts? What will happen to our country?

The fact is Jerome Holmes is a man of absolute character, impeccable credentials, and has integrity that nobody questions. Except by a sleight of hand and backhanded inference that he doesn't care about minorities, even though he is African American, he does not care about minorities because he happens to have published a difference of opinion on the legal basis for affirmative action, that is the litmus test. That is why he is not going to be voted on.

Here is a man who grew up in less than ideal circumstances, graduated cum laude, went to Georgetown University, has advanced degrees from Harvard, has been a prosecutor, has been a defender, has been an advocate for those who are less fortunate, and will be the first African American ever to be on the Tenth Circuit Court of Appeals.

Yet as we heard, he measures up in everything except one thing: He doesn't buy into what some want him to buy into on one issue. Who better to question his own opinion--not his legal opinion but his own personal opinion? Is it the fact that you can't have a personal opinion about anything and become a judge in this country? How would we know anything about them?

It takes great courage for an African American, a lawyer, to say, I think there are some things that are wrong with the affirmative action plan.

He did not say: I don't think we should have equality. He did not say: I don't think we should make up for past deeds that have not been rectified. What he said was: Here is what the Supreme Court did. I think they should have gone a little further. And on that basis alone he does not meet the absolute litmus test that is going to be required.

Well, think what happens if every judge who is conservative has to be pro-life. Do they have to be pro-life? No. We have to get away from this idea that you have to fit a certain mold politically before you can be a judge in this country. And, if we do not, we are going to destroy this country.

What we want is people of integrity who understand the limited role of a judge; and that is not to put your personal opinions in but to, in fact, take the Constitution, take the statutes, and take the treaties, follow Supreme Court precedent, and make sure everybody who comes into your courtroom gets a fair chance, given what those rules are. They are not to make new law. They are not to put their opinions in. They are not to change based on what they feel rather than what the law says.

The only way we can have blind justice is to make sure those litmus tests are not a part of the selection. And what we heard today was the opposition--wouldn't go into details--come and aggressively tell us why you do not want Jerome Holmes to be an appellate judge on the Tenth Circuit. We are not going to hear that. We are not going to hear that at all. Instead, we are going to hear a political debate about the politics of division in our country rather than the healing hand of reconciliation that should be about the leadership in this body and Congress. How do we reconcile our differences to move the country forward instead of divide? How do we gain advantage in the next election by making somebody look bad.

That is what we just heard. How do we make somebody look bad? It is easy to make somebody look bad. It is a lot harder to build them up and say, in spite of our differences, we can walk down the road together to build a better America for everybody. We did not hear that this morning. What we heard was the politics of division. First of all, I think it is improper to do that when we are considering the nomination of such a great American as Jerome Holmes.

I want to comment a minute on the stem cell debate. I am a physician. I think it is so unfortunate that we are gaming this. All of us, as families and members of this society, have members in our families who have diseases for which future research is going to unlock wonderful and magnificent cures. There is no question about that. But there is a question about an embryo. I personally believe to destroy an embryo is to take a life. That is my personal belief. You can have a different position than that, and it does not make you a bad person. It just means we have different positions. It does not make you incapable of making good decisions in the future if you have a different position than I do.

But there are some facts that are not out, and I would hope the American public would listen to them. Embryonic stem cells have tremendous potential. There is no question about it. But they also have potential tremendous danger. And there will be no cure that will come from embryonic stem cells that does not come along with potential danger, and that is called rejection because it will not be your tissue, it will be the tissue of a clone, which will still have foreign DNA in it that is foreign to you. So any cure that comes out of embryonic stem cell research will be faced with a lifelong utilization of medicines to keep you from rejecting that treatment.

Now, the difference between an embryonic stem cell and a cord blood or adult stem cell or an amniotic membrane stem cell or chorionic stem cell is that it is your tissue, there is no rejection. There is no potential for rejection if you use your own stem cells to treat yourself so you do not have to have a lifelong utilization of medicines. And the complication of those medicines is tremendous.

The other thing we did not hear today, which is the most promising for everything that we have in terms of research, is called germ cell stem cells, that have absolutely all the potential of embryonic stem cells with none of the downside and none of the rejection and none of the carcinogenesis or teratogenesis, which means the forming of tumors--has none of the downside--so, in fact, we now have in front of us, in the last 9 months, in this country an ethical alternative that solves all the problems associated with embryonic stem cells and gives us all the potential. But we did not hear a thing about that today.

We did not hear it because we were creating a wedge issue for the elections rather than solving the problems of health care in this country. We did not hear about the fact that you can take a stem cell from the duct of the pancreas and recreate beta islet cells to have people--children and adults--who are insulin dependent today have reproduction of their insulin on their own from their own cells. We did not hear that. What we heard was division rather than reconciliation.

I think it is highly unfortunate that we take time when we should be talking about the merits of what do we want in our judges. I do not care if a judge is liberal or conservative. I do not care if a judge is a Republican or a Democrat. What I do care about is do they buy the fact that they have a limited role? Do they understand what that role is, that they are there to follow stare decisis, precedent set by the Supreme Court, and the only books they get to look at is what the law, the Constitution, and the treaties say? That is what they get to decide it on, and the facts of the case.

It should not matter what their political affiliation is. It should not matter what their philosophy is of life. What should matter is, how do they see their role? Jerome Holmes is a man who understands the role of a judge. He will make a fine judge. There is not anybody who knows this man who has come forward, in any of the testimony or any of the history, who has raised an issue about his integrity, his competence, or his character. But we have one issue. He has written his real opinion.

If we say judges cannot have an opinion outside of their job, then we are going to have terrible judges--terrible judges. And if we use only political marks--you have to line up on all the politically correct stuff from my viewpoint or somebody else's viewpoint to be a judge--we are going to have terrible judges. But, more importantly, we are going to have a divided country.

What we need in our country today is leadership that brings us together, not leadership that divides us. We need leadership that looks at a vision of America as to what we need 30 years from now, and what do we do today to get there, rather than to concentrate on our differences today so we can have a political advantage in the next election. The American people understand that. They can be manipulated. We saw that today.

But America is great when America embraces its heritage. And that heritage is self-sacrifice and service for the next generations. It is not about, how do I make myself better today; how do I create an advantage for me politically today. It is about putting me second and our country first. It is about putting my party second and our country first. It is about creating a future for the very lives we are saying we want to cure with stem cells so they have something to look forward to.

Those who vote against Jerome Holmes do not have that vision for America. They have a vision of alienation, of division, of failure for our country.

Mr. President, I yield the floor.


Mr. COBURN. I thank the Chair.

I ask unanimous consent that letters from judges, Democrats, Republicans, businesses, the Governor of Oklahoma, be printed in the RECORD in support of Mr. Holmes.

There being no objection, the material was ordered to be printed in the RECORD, as follows:


Mr. COBURN. Mr. President, I want to take a few moments to discuss the comments we just heard. I will go back to the litmus test.

My belief is there is no way Jerome Holmes could have given an answer in response to questions that were asked by Senator Leahy that would have met with Senator Leahy's approval. We had a hearing on Mr. Holmes. The great concerns we have heard on the floor, nobody came to ask any of those questions. No one showed up other than myself and two other Members to hear Jerome Holmes' response, both in terms of his comments and beliefs about affirmative action, but also about the beliefs he has. This is a man who has experienced racial discrimination. This is a Black man who rose to heights without the assistance of anyone else other than his sheer will and great effort on his part and the character instilled in him by his parents.

There are multiple allegations that have been raised. I will hold back on answering those specifically with Mr. Holmes' responses.

I yield to the senior Senator from Utah 20 minutes. If he needs additional time, I will be more than happy to yield that to him. Would the Chair please notify us when we have 10 minutes remaining?


Mr. COBURN. Mr. President, it is amazing the way things get twisted. I want to read exactly what Jerome Holmes said in his comments about racial bias. The Senator from Massachusetts just stated that he would ignore reality. Here is what he said in his article.

One need not doubt the lingering effects of racism in our society to reject the above claims. Harvard law professor Randall Kennedy and other scholars remind us that racial prejudice still exists in the jury box.

He didn't deny it. He said it did. You just heard the opposite of that. What he said is: As an African American, I am among the first to condemn it.

We did not hear any of that. And what was just said about what Jerome Holmes wrote, he condemns it. He can't be trusted. That was what we just heard. What you just heard was a litmus test that if he doesn't agree down the line with those who have a completely different political philosophy, he is unqualified. Here is a Black man who has been discriminated against tons in his life. It makes no intuitive sense that he would oppose a jury system that ferreted out racial discrimination. So that is unfounded.

His comments on the death penalty, Judge Holmes said we should use DNA but that should come through the legislature as direction, as a directive of the legislative bodies in terms of creating parameters, also, which you would say is to his credit because what he said is: I recognize the limited role of the judiciary in how we make decisions. We should be dependent in certain areas on directions from the legislative body. In other words, what we rule on is the laws of this country which the legislative body and the executive branch determine. So all he is doing is deferring. It has nothing to do with whether DNA should be used to protect the life of somebody wrongly convicted and under threat of the death penalty.

The other quote we heard is it is impossible for him to have an open mind because he disagrees with the Senator from Massachusetts on an issue. Well, if we use that standard in this body, nothing would ever happen. If we disagree, then we can't have an open mind, we can't listen, we can't learn.

He won't come unbiased to the court. There is not one judge anywhere in this country who does not have biases. The question is can they separate their biases through the commitment of their oath of office to say: Here is our function. Here is how we function. Here is how we carry out our obligations.

Nobody meets the standard that the Senator from Massachusetts just set up. There would be nobody with whom I might have a philosophical difference that I could not raise that same example.

I am hopeful that the Members of this body will overwhelmingly endorse Jerome Holmes, the first African American to be appointed to the Tenth Circuit Court of Appeals. For the very reasons that Senator Kennedy raised, Jerome Holmes disproves every one of those arguments.

It gives me great pleasure to yield to the senior Senator from Oklahoma at this time and to thank him in the process and to also recognize and thank the President for the nomination of Jerome Holmes.


Mr. COBURN. I thank the Chair. I will not take all the time. I want to go back to what we said earlier this morning. If we are going to do a litmus test on judges, if we are going to say a judge cannot have an opinion outside of his role of a judge, we will destroy this country, whether it is a conservative litmus test or a liberal litmus test.

The fact is, as to Jerome Holmes, there have been very few appointments or nominees for this position at the appellate level that compare to the qualifications of Mr. Holmes. He also has the life experiences that will make him even more valuable on the court in terms of his compassion. He has experienced discrimination as an African male. He has risen to heights on his own, struggled--advanced degrees from Harvard, law degree from Georgetown, cum laude from his alma mater. There are very few people who will measure up to him.

Now, does he fit every litmus test? No, he doesn't fit every litmus test that I might have for a judge, but that is not the basis under which we should be considering judges.

He does, in fact, have the one key characteristic that is necessary, and it has been attested to by the people who know him. It has been attested to if you just heard him in the hearings. But of all those who have come to the floor to oppose him, members of the Judiciary Committee wouldn't even come and confront him with concern. They didn't come to the hearing. They didn't hear what he had to say. They had their minds made up.

The fact is, this is an excellent nomination. It is someone of whom we in our country should be proud, who recognizes the diversity of our country, and despite what the Senator from Massachusetts said, he can be entrusted with the future of this country, our Constitution, and the limited role of a judge in applying the law.

With that, Mr. President, I yield back the remainder of our time and suggest the absence of a quorum.

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