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Public Statements

Executive Session - Part 2

Location: Washington, DC

Mr. GRAHAM of South Carolina. Mr. President, I wish to acknowledge Senator Pryor's commitment to moving this process forward. He did write a letter a while back trying to find a way to better handle the problems we are having with judges. I think he has a very good heart about this. I respect him as a person. He has truly become a friend.

With that kind of attitude, maybe we will find a way out of this down the road. Right now, unfortunately, we are stuck in the quicksand, not mud. The more we fight each other, the deeper into it we get. The atmosphere in the Senate right now about judges I think has taken a turn for the worse.

There are probably many things one can point to in the past on the Republican side. I am not here to defend the past. I am here to talk about the future, and we have to deal with the present. Here is what about the present bothers me the most.

There is an effort to filibuster judges in a way that has never occurred before in the history of the country. I think it is very unhealthy and constitutionally impermissible and will only be answered in kind. We are going to set the future course of the Senate down a road where it will be hard to get good men and women to apply. Let me tell you why I think they will not apply.

I read a fundraising e-mail that concerned Charles Pickering. As one can tell when I spoke, it bothered me greatly what they are trying to do to Judge Pickering because I come from the South. I know how easy it is to be associated with the sins of the past, to be, for lack of a better word, sometimes stereotyped. Here are the accusations in the e-mail:

Why must the Democrats continue their fight against Charles Pickering? While in law school, Mr. Pickering wrote an article suggesting ways Mississippi can better enforce its ban on interracial marriage.

That statement clearly tries to make the reader believe this is a person who has supported interracial marriage bans and is racially insensitive. I ask the country to look at it in these terms. He was unanimously confirmed by this body 12 years ago. Not one person objected. I can't believe the whole body was asleep at the switch and this law school article was not known. He didn't advocate the ban on interracial marriage. It was under attack, and he wrote a scholarly dissertation about it.

If you believe what the statement says, the entire Senate either didn't know about this or ignored it because the entire Senate unanimously approved Judge Pickering 12 years ago, long after he got out of law school, to sit on the Federal bench as a district court judge.

The second point:

As a State senator in the 1970s, Mr. Pickering worked to repeal important provisions of the Voter Rights Act.

The reader of this e-mail who is being asked to give money to help Democrats fight President Bush's nominees-what is the message you are trying to convey to the reader of this e-mail? That yet again in the 1970s this same person, while holding public office in Mississippi was working to undermine laws that protected African Americans in the State of Mississippi. There is no other fair interpretation of why that is in this e-mail and trying to cast him in that light.

Again, it is beyond my understanding and real belief, if that were true, if this man used his office in Mississippi in 1960 to undermine the Voting Rights Act, that this body 12 years ago would have unanimously approved him to be a district court judge.

I believe these two statements were designed to emotionally charge the reader and to unfairly label Judge Pickering in a way that is not deserved and flies in the face of the fact that the Senate confirmed him unanimously 12 years ago.

The last point:

In 1994, he went out of his way to seek a more lenient sentence for a convicted cross burner.

My colleague from Minnesota very eloquently spoke about that case. I am on the Judiciary Committee. When I heard that accusation, it really did pique my interest. I wondered what was going on because none of us want a judge who is going to be sympathetic to such a horrible crime.

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Here is what actually happened. There were three defendants, not two-three defendants. The ringleader and the second oldest man, I believe, received a probationary sentence. The youngest of the three was charged with a crime of arson.

What this judge did is he looked at the way the prosecutor handled three defendants, and he said: That is not fair. You are letting two of the worst guys go and impounding the youngest guy.

That is what I want a judge to do. I want a judge to make sure the people who come before his court are treated in an apportioned manner.

The third person, the youngest one, was given a speech and a lecture by Judge Pickering about the act of cross burning that should make us all very proud. The youngest defendant went to jail, but his sentence was adjusted in light of what happened to the other two people who basically got away with it because the prosecutor did a deal I don't understand myself.

I do understand why Judge Pickering wanted to adjust the sentence, but if you listened to the words and read the transcript, he didn't go out of his way to do anything other than to make the sentences apportioned. He went out of his way to let the defendant know what a sleazy person he was by engaging in this activity, but he brought balance to the people before him.

The reason I keep talking about this situation and Justice Brown is I am trying to let the record reflect for future review that I believe very sincerely these judicial nominees are having a tremendous hatchet job done on their lives. They are trying to make up reasons to justify a filibuster, and there is no good reason to have a filibuster.

Senator Pryor is a very fairminded person. If he disagrees with me about Judge Pickering or anybody else, that is just life; he is right. All I am asking him and other Senators to do is to follow the Constitution, and the advice and consent clause for the entire history of the country when it comes to judges has been interpreted in a manner that the majority of the Senate will advise and consent, not a minority.

What is happening to these four people-and we will talk more about the others-is very unhealthy for the country. The reason I say that is they are taking statements and articles, speeches, and letters to their church out of context, and liberal special interest groups are trying to oppose conservatives coming on the bench in an unfair way.

These four individuals' lives have been distorted. That is what bothers me the most. If you don't like their philosophy, vote them up, vote them down, just vote, is the saying. If we continue what we are doing today into the future, no reasonable person is going to feel good about wanting to go on to the Federal bench given what is happening to these people, and that will be a huge loss to the country.

The process we are engaged in today has no upside; it only has downsides, and the downsides I think are extremely dire for the country. Not only are you going to drive good people away because nobody is going to want to go through this-and I assure you it will be answered in kind, and that is sad because I know politics.

The other downside is special interest groups, liberal or conservative, are going to have more power than they deserve over individual lives because all they need to do is get 41 votes.

Special interest politics is part of our political landscape. The Constitution has checks and balances against each branch. One of the checks and balances I like the most about the way the judicial nominating process works is if a majority of us feel a person is qualified, they get to sit on the bench.

Please, let's not as a group empower special interest groups to the point that 41 of us can stop somebody from sitting on the bench because we will have rewritten the Constitution, not only in its letter but its spirit.

I end with this. Federalist Paper No. 66 has the following comment:

It will be the Office of the President to nominate and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the executive and oblige him to make another, but they cannot themselves choose. They can only gratify or reject the choice of the President.

For the sake of the future of law in this country, for the sake of the future of the Senate, let's not let a small group make it impossible for good people to serve.

I yield the rest of the time to my good friend from Kansas, whom I have known since I have been in politics at the Federal level, Senator Brownback.


Mr. GRAHAM of South Carolina. Well, to the best I can, to the Senator from Pennsylvania, for the last year-this is my first year-I have seen a trend that seems to be getting worse and worse. I can assure you, as the Senator from Pennsylvania has indicated, that for every liberal special interest group there is a conservative special interest group that feels just as passionately as the People for the American Way.

The Senator is absolutely right. I have been trying to say this all night. We are in political quicksand. You have put us in a place we have never gone before, and the more we fight and the more we fuss, the quicksand takes you deeper and deeper, quicker and quicker.

The truth is, the Senate will never be the same if this stands because the Senator from Pennsylvania is exactly right. There will be so much pressure on people on our side to stand up against anybody who is perceived to be liberal-not just whether or not they can follow the law, but they may have written an article when they were in law school. They maybe made a speech somewhere about the philosophy of life. And it will be seized upon, it will be touted, and it will be shouted, and 41 of us may buy into that.

The advise and consent clause has stood the test of time. But the formula that you are imposing upon the Senate is a formula for disaster, and a big loser. Who loses? It is average, everyday people who will be shut out because of special interest politics on the left and the right. The real big loser is somebody who loves the law who wants to be a judge but has said: I am not going to put myself and my family through that.

So Senator Santorum is exactly right.

The PRESIDING OFFICER (Mr. BOND). The Senator's time has expired.

Mr. GRAHAM of South Carolina. There will be no turning back, and this will destroy us over time in terms of the rule of law.


Mr. GRAHAM of South Carolina. Will the Senator yield for a question?

Mr. SANTORUM. I will yield the floor to the Senator from South Carolina.

The PRESIDING OFFICER. The Senator from South Carolina.

Mr. GRAHAM of South Carolina. For something that is a waste of time, it has been hard as heck to get to say anything around here because everybody is so fired up about talking, which I think is good. We have been in almost 39 hours, and if Senators get 15 minutes to express themselves they are lucky, which I think is a testament to how important this is to people.

[Page S14753]

I am very proud of what the Senator from Pennsylvania has tried to tell the body about what the future will be like. The Senator from Minnesota and the Senator from Georgia, my two good friends, my classmates, we were not here during a lot of these problems of the past. We are worried about the future.

I want to very quickly respond to my good friend from Illinois. Here is what I am willing to do-and I do not know who the Capitol Hill policeman was, God bless him for serving-I am willing to stand by a poll of all the cops in America and see whether they think appointing a judge is a big deal. It is my belief that most cops in America have had experiences in court that they really would like us to pick judges wisely. As a prosecutor, I can assure my colleagues who the judge is matters. I can assure my colleagues that most police officers do watch how the court operates, and they are concerned about the quality of judges because many of them have made cases risking their lives only to see it bounced.

So I totally disagree that this police officer is speaking for the mainstream of cops. Cops care about judges.

The Washington Post-I am not a great fan of the editorial page, but I read the Washington Post about what they think is going on here today. On February 5, 2003, the Washington Post said this filibustering of judges-Miguel Estrada-is really not a good thing. A world in which filibusters serve as an active instrument of nomination politics is not one either party should want.

Well, the extreme Senator from Pennsylvania shares the same views as the Washington Post, which begins to bother me a little bit. Maybe he should be a little more extreme. But what he is saying is what the Post said back in February. You do not have to be a rocket scientist to figure this out because I figured it out. I am not a rocket scientist.

This is about manufactured controversies. Judge Pickering, oh, this is no big deal. Why are the Senate Democrats sending out urgent e-mails saying send us money, my God, the country is about to blow up because the Bush administration is devoted to using the courts to its political advantage? If that does not get your blood boiling, what would? It would scare me if I got a memo from somebody who is a responsible member of the Senate Democratic leadership saying, send money quickly. The Bush people are taking over the courts, and they are going to put a guy on the court named Charles Pickering. While he was in law school, he wrote an article about making sure the ban on interracial marriage in Mississippi was not stricken down.

As a State senator in the 1970s, Pickering worked to repeal the important provisions of the Voter Rights Act. That ought to scare you to death if you believe in racial harmony and justice.

This e-mail is totally in contradiction of what has been said on the Senate floor. The e-mail says that Senate Democrats have launched an unprecedented effort. If you have listened to everybody for the last 33 hours, this is just business as usual. The e-mail is the best evidence of what is going on over there. They have picked a few judges, for whatever reason. They have manufactured controversies about who these people are, and they are ruining their lives.

Judge Pickering was approved by this body 12 years ago. I would daresay this body would not have unanimously put him on the district court as a Federal judge if they believed he was writing articles supporting interracial marriage bans and that while he was a State senator he actively undermined the rights of African Americans in Mississippi. That makes no sense. That means this place is totally asleep and worthless when it comes to screening, or they are manufacturing controversies about this judge.

Judge Pickering was voted well qualified, the highest rating one can get from the American Bar Association. I am convinced that the ABA is not putting people on the bench well qualified if they believe they are a bunch of racists. It goes on and on with all four of these people, and it soon will become 12. That is why I am so upset.

Special interest groups who do not live in Mississippi have declared war on the basic essence of who Charles Pickering is, defying all of the evidence out there by people who know him the best and what he has done with his life. That is a sad state. That will lead to chaos, and the Senator from Pennsylvania is absolutely right. You are going to have people applying for these jobs in the future who will have never uttered a word about anything because if they say anything that may get a liberal or a conservative special interest group mad at them, they will come and knock their head off. That is why we are here at 10 minutes after 7 and you have to really watch it to make sure you do not deny your colleagues a chance to speak because contrary to what they say over there, this is a big deal to everybody, and, my God, it ought to be. If it gets to be where it is not a big deal to how a judge is appointed and nominated, and whether you follow the Constitution, our problems with the economy pale in comparison with our problems as a nation. When politics enters the judicial arena and the judicial arena just becomes another form of politics, then we have drifted far astray from where our forefathers wanted us to be.

I will yield to my colleague from Missouri.


Mr. GRAHAM of South Carolina. Mr. President, I thank the Senator for yielding. It has been a real pleasure to talk with him throughout the night. It has been a great debate. For something considered a waste of time, so many Senators have participated. It has not been a waste of your time or the country's time. We have a good record the people can look upon and make a decision about what we are doing here in this Senate.

If I had to boil it down to what all this means to me, which I have to do between now and a quarter after, here is what I think is the down side of what we are doing in the Senate: Special interest politics is being given a green light to go after people they may disagree with because they think the nominee doesn't share their philosophy or political persuasion.

You are giving them a green light to manufacture controversies, to go after people in a personal way, and we are going to rue the day we did that. The left is doing it today. The right will do it tomorrow. We are unleashing special interest forces. We should be deterring them. Right now we are emboldening them, and the country will be worse for the wear.

There are people at the end of the process. We are talking about individuals. Miguel Estrada has claimed to be outside the mainstream. All I can tell you is that the Washington Post on February 5, 2003, not exactly a right-wing rag, said:
Estrada is well qualified for the bench. This should not be a tough case for confirmation. Democrats who disagree should vote against him.

I think that pretty well sums up the idea that he can't be that far out of the mainstream or the Washington Post would not have said that about him.

If you disagree with me and think he is out of the mainstream, vote against him. Please don't continue the process of filibustering people because we are going to change the Senate forever, for the worst, and the future nominees to come, whatever they said in law school, whatever letter they may have written to their wife, whatever decision they made about going on a trip, if they said something that offends the left or offends the right, people are going to come after them like gangbusters, knock their heads off, and you are going to keep good men and women from wanting to serve. That is going to happen, sure as I am standing here. It will be a great tragedy. Please let's turn this around.

Judge Brown will be No. 5. She sits on the Supreme Court of California. She is objected to. She is out of the mainstream allegedly. I would argue that 76 percent of the voters in California are not right-wing zealots, and that anybody who can get 76 percent of the vote in California has to have some sort of moderation about them. She has written the majority of the court's opinions. She is respected by her peers. You wouldn't get 76 percent of the vote in California if you were out of the mainstream in any real way.

Justice Owen from Texas, No. 1 in everything. She serves on the State supreme court. She received 84 percent of the vote. The only people left who didn't vote for her are probably the extreme people. I would argue that 84 percent of the people who chose to vote in Texas is probably our best evidence about who she is and the way she conducts herself.

Pryor: If you read in the paper today, the attorney general of Alabama has just successfully removed the chief justice of Alabama. It was his job to bring the case to the grievance committee in the State of Alabama, and the reason the chief justice was removed was that he defied a Federal court order to remove the Ten Commandments out of a courtroom in Alabama.

Whatever you want to say about Attorney General Pryor being out of the mainstream, let me tell you that the Ten Commandments are popular in Alabama. He chose the less traveled route for a politician. He chose to enforce the law against a rogue judge who is pandering to the political moment. He followed his constitutional duty, and I bet you he agrees the Ten Commandments have a right to be displayed, but he said: It is not about me; it is about the law.

Mr. SESSIONS. Mr. President, will the Senator yield?

Mr. GRAHAM of South Carolina. Yes.


Mr. GRAHAM of South Carolina. Senator Leahy said in 1998:

[I]f we don't like somebody the President nominates, vote him or her down or up.

He was right then. I am very afraid that we are opening the darkest chapter in the history of the Senate when it comes to judges. I don't want to be a part of it. I reject the past. I embrace a better future. Please, for God's sake, let's not continue to do this because we will all regret it.

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