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Executive Calendar

Location: Washington, DC

EXECUTIVE CALENDAR -- (Senate - September 05, 2006)


Mr. SANTORUM. Mr. President, I am happy to see that we are scheduled to confirm today the nomination of Kimberly Ann Moore, of Virginia, to be U.S. Circuit Judge for the Federal Circuit. It is about time that we get back to confirming judges, and I am glad to see that our leader is putting this issue back on the Senate's agenda.

It is of utmost importance that the Senate continue to confirm President Bush's judicial nominees. Just last month, we saw what can happen when an ideologically driven activist judge attempts to create national security policy. Judge Anna Diggs Taylor, a Federal district judge in Michigan appointed by President Carter in 1979, ruled that the Terrorist Surveillance Program was unconstitutional. This program, administered by the National Security Agency, has been a critical component in ensuring the safety of millions of Americans. Despite that, Judge Diggs Taylor ruled that the program, which the Government only uses to intercept international telephone and internet communications, violates the first and fourth amendments to the Constitution, the Administrative Procedures Act, and the Separation of Powers doctrine, in other words the veritable legal kitchen sink.

While some on the other side of the aisle have rejoiced in this decision, this opinion has been attacked from both ends of the political spectrum. The Washington Post, in an editorial on August 18, noted that the decision is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work--that is, as a guide to what the law requires and how it either restrains or permits the NSA's program--her opinion will not be helpful.

Legal scholars have also criticized Judge Diggs Taylor's opinion. Let me give you just a few of these criticisms. David B. Rivkin, a former Justice Department official in Reagan's and George H.W. Bush's administrations, noted in a New York Times op-ed on August 18 that ``[i]t is an appallingly bad opinion, both from a philosophical and technical perspective, manifesting strong bias.''

Harvard Law Professor Laurence Tribe has written ``[i]t's altogether too easy to make disparaging remarks about the quality of the Taylor opinion, which seems almost to have been written more to poke a finger in the President's eye than to please the legal commentariat or even, alas, to impress an appellate panel........''

Howard Bashman, an appellate attorney and editor of the How Appealing legal blog, wrote in the New York Times on August 19 that ``[i]t does appear that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.''

UCLA Law Professor Eugene Volokh wrote on his widely read blog: ``the judge's opinion ..... seems not just ill-reasoned, but rhetorically ill-conceived. ..... [B]y writing an opinion that was too much feeling and too little careful argument, the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law.''

In contrast to Judge Anna Diggs Taylor, both of President Bush's nominees to the Supreme Court, Justices Roberts and Alito, understand that it is not the role of the judicial branch to make policy. During his confirmation hearings last year, Supreme Court Chief Justice John Roberts said, ``I don't think you want judges who will decide cases before them under the law on what they think is good, simply good policy for America.'' He also noted, ``[T]he Court has to appreciate that the reason they have that authority is because they're interpreting the law, they're not making policy, and to the extent they go beyond their confined limits and make policy or execute the law, they lose their legitimacy, and I think that calls into question the authority they will need when it's necessary to act in the face of unconstitutional action.''

Similarly, Justice Samuel Alito remarked during his confirmation hearing that ``results-oriented jurisprudence is never justified because it is not our job to try to produce particular results. We are not policy makers and we shouldn't be implementing any sort of policy agenda or policy preferences that we have.''

Yes, Justices Roberts and Alito have it right. It is not the role of a judge to seek to replace the legislature, or the President, State legislatures, and the Governors, township supervisors, county councils with his or her own views. It is the role of a judge to apply the law and to do justice based on the facts in solving the dispute that has been presented.

A court is not a place for zealous advocates to impose their will upon the American public. It is not a place for people who believe their views as judges are superior to the views of the democratically elected officials in this country--better put, that their views are better than the people's views because we are, in fact, accountable to the people we represent. It is and should continue to be a place for those public servants who seek to do justice under the law and facts of each case and a place to interpret the law, rather than make law.

The PRESIDING OFFICER. Under the previous order, the question is, Will the Senate advise and consent to the nomination of Kimberly Ann Moore, of Virginia, to be United States Circuit Judge for the Federal Circuit?

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