Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2010

Floor Speech

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Mr. SESSIONS. Mr. President, I rise to speak on the President's nomination of Mr. William Martinez to the United States District Court for Colorado. I will oppose the nomination, and I have several reasons for doing so. He has a lot of good friends and people who respect him and like him, but we are trying to make a decision about a lifetime appointment to the federal district court. There are some concerns with this nomination that are serious and, in particular, trends of the President to nominate individuals with judicial philosophies outside the mainstream.

There is one reason in particular that concerns me about Mr. Martinez. It is his longtime affiliation with the American Civil Liberties Union and the questions we asked him about that were answered insufficiently for me. We have had a number of ACLU nominations. I have supported some and opposed others. The ACLU is a very leftwing organization. It seeks openly to defy the will of the American people in many lawsuits while at the same time they endeavor to undermine and oppose traditions and institutions that make up the very fabric of our culture, our national identity, and who we are as a people, assuming those things are insignificant and only pure philosophical approaches, as they have, of an extreme nature should guide our Nation.

Mr. Martinez has been a member of the ACLU in Colorado for nearly a decade, and since 2006 served on its legal panel. In this role he reviews memorandum prepared by ACLU staff and attorneys and decides whether to pursue litigation, a very significant post in that organization. Of course that is not disqualifying. One can be a member of an organization, even though some of us might not like it or agree with the organization. But any nominee from a conservative organization who takes extreme positions would certainly have to answer those positions and justify why they might take them. Likewise it is fair and appropriate to ask questions about this nominee and about this organization and whether the nominee agrees with them or why, if they don't agree, they are a member.

A lot of people say they didn't agree with this position or that position. I was left asking: Why are you a member? It is on their Web site.

When asked about some of the positions on important issues, he failed to clearly respond and repeatedly refused to answer questions in a direct and clear manner. For example, at his hearing I asked whether he agreed with the ACLU's position that the death penalty was unconstitutional in all circumstances. He refused to answer. Instead he noted that the Supreme Court has held the death penalty constitutional, adding:

What my view would be as a sitting Federal district judge is something that would be quite different from my views as a personal citizen or an advocate or a litigant and member of the ACLU.

I asked him whether he personally thinks the death penalty violates the Constitution and whether he had ever expressed that view. He again failed to answer, stating only that he had never expressed any view.

So I put the question to him again, and again he did not answer.

Let me stop and say why I think this is a very important issue. The Constitution was passed as a unified document with 10 amendments. The American people ratified it. Some people, in recent years, have come up with the ingenious idea that they could disqualify and eliminate the death penalty without a vote of the people, without the popular will to change laws that exist all over the country. They decided they could change it by finding something in the Constitution that would say the death penalty is wrong, and they reached out to the provision that says you should not have cruel and unusual punishment. They said the death penalty is cruel and unusual and is unconstitutional, which is not sound. Let me be respectful.

Why is that not a sound policy? There are multiple references in the Constitution to a death penalty. It talks about capital crimes, taking life without due process. it is in the Constitution. How could one say, when there are multiple provisions explicitly providing for the death penalty, how could we reach over here and take a position on

cruel and unusual punishment which was designed to prevent people from being hung on racks and tortured and that kind of thing? But that is the ACLU position.

This nominee, who is going to be given a lifetime appointment, the power to interpret the Constitution on this very real issue of national import that good lawyers know about, refused to state that the Constitution is clear, that the death penalty is legal.

In fact, I note parenthetically that every Colony, every State had a death penalty at the time, and so did the United States Government. Surely the people, when they ratified it, had no idea that somebody coming along in 2000 would create the view that the Constitution prohibits the death penalty.

I also asked Mr. Martinez whether he agreed with the President's so-called empathy standard, but rather than state flatly that empathy should play no role in decisionmaking, as did Justice Sotomayor when she came up--she flatly said no, a judge has to be impartial; one should decide it on the facts and the law, not on feelings--he said that empathy ``can provide a judge with additional insight and perspective as to the intent and motivations of the parties appearing before the court.'' Empathy, to me, is far too much like politics, far too much like something other than law. It is certainly not law.

When a nominee such as Mr. Martinez, who has dedicated so much time and legal expertise to the ACLU, refuses to answer basic questions about these issues, it is fair and appropriate to conclude that perhaps he agrees with the other positions of the ACLU. I have done a little checking on that.

What is this organization of which he is a member? Some people like the position they take on this issue or that issue. But what overall are some of the policy and legal positions taken by the ACLU? Over the last several decades it has taken positions far to the left of mainstream America and the ideals and values the majority of Americans hold dear. Roger Baldwin, the ACLU's founder, was openly vocal about his support and belief in ``socialism, disarmament, and ultimately for abolishing the State itself as an instrument of violence and compulsion.''

He was quoted as saying:

I seek social ownership of property, the abolition of the profited class and sole control by those who produce wealth. Communism is the goal.

Mr. Baldwin's influence and impact on the ACLU could not be overstated. As former ACLU counsel Arthur Hays says:

The American Civil Liberties Union is Roger Baldwin.

As I mentioned earlier, the ACLU opposes the death penalty under any circumstances, even for child rapists. They filed a brief recently in Kennedy v. Louisiana arguing that a State could not apply the death penalty to a child rapist regardless of the severity of the crime or the criminal history unless the child died from his or her injuries. Here the defendant had raped his own 8-year-old stepdaughter and caused horrific injuries that a medical expert said were the most severe he had ever seen. The defendant had done the same thing to another young girl within the family a few years earlier. Even President Obama, when the case came before the Supreme Court, said he opposed that view. Yet President Obama continues to nominate a host of ACLU lawyers to the Federal bench and presumably has some sort of sympathy with the views they have been taking.

In recent years, the ACLU has litigated on behalf of sex offenders, including suing an Indiana city on behalf of a repeat sex offender who was barred from the city's park after he admitted stalking children who played there. Even though the convicted offender had admitted that he thought about sexually abusing the children in the park, the ACLU sued to give him full access to the park and the children. I agree with the mayor of the city who said:

Parents need to be able to send their children to a park and know they are going to be safe, not being window shopped by a predator.

I would hope all nominees would share this view rather than the ACLU's position on the subject. Although many view the ACLU as a neutral defender of the Bill of Rights, the ACLU takes a very selective view of the rights it advocates.

That is just a fact.

Otherwise, if they were defending the Constitution and what it says plainly, they would defend the constitutionality of the death penalty. It should not take them 2 seconds to figure that out. They have an agenda.

As it explains on its Web site, the ACLU openly disagreed with the Supreme Court's landmark ruling in the Heller case--the right to keep and bear arms--in Washington because the ACLU does not believe the second amendment confers an individual right to keep and bear arms. Well, OK. So the lawyers might disagree on that. But if this institution, this ACLU, is so committed to constitutional rights and opposes the power of the State, why would they not read the plain words of the second amendment: The right to keep and bear arms shall not be infringed. Why wouldn't they defend that individual right of free Americans to be armed and oppose the power of the State to take away what has historically been an American right? I think it represents and reveals a political agenda as part of this organization.

It also has a selective view of what exactly is protected by the first amendment. It has done some good work on the first amendment, the ACLU has, but it has gone to great lengths to limit freedom of religion, as provided for in the first amendment, suing religious organizations and groups such as the Salvation Army and even individuals and supported the removal of ``under God'' from the Pledge of Allegiance and ``in God we trust'' from our currency. It sued the Virginia Military Institute to stop the longstanding tradition of mealtime prayer for cadets. You do not have to bow your head if you go to lunch and somebody wants to have a prayer. Nobody makes you pray. But if other people want to take a moment before they partake of their meal and, say, acknowledge a bit of appreciation for the blessings they have received, what is wrong with that? I do not believe it violates the first amendment.

The Constitution says that you cannot establish a religion in America, and we cannot prohibit the free exercise of religion either. The establishment clause and the free exercise clause are both in that amendment. But the ACLU only sees one. They see everything as an establishment of religion.

The ACLU has also argued for the removal of religious symbols and scriptures from national parks and monuments and cemeteries that have stood for years regardless of how innocuous they may be.

I am very surprised we do not have the ACLU filing a lawsuit to deal with those words right over that door: ``In God We Trust.'' It won't be long. They will want to send in gendarmes with chisels to chisel it off the wall. It is an extreme view of the first amendment, and has never been part of what we understood the Constitution to be about. The reference in a public forum to a ``higher being'' is not prohibited by the Constitution--except in the minds of some extremists.

So the ACLU has argued for the removal of all vestiges of Christmas, going so far as to sue school districts to bar them from having Santa Claus at school events and threatening to sue if Christmas carols are sung anywhere on school grounds. Give me a break.

In addition, the ACLU has sought to limit or remove the rights of children to salute the U.S. flag, recite the Pledge of Allegiance, and openly pray.

It has sued the Boy Scouts--I am honored to have been an Eagle Scout at one time in my life--and government entities that have supported this honorable institution. It has sued them.

It has fought for the rights of child pornographers and against statutes seeking to stop its production and distribution or limit children's exposure to it. The ACLU absolutely not only opposes adult pornography laws, they oppose laws that prohibit child pornography, which is where so much of the problem of pedophilia occurs.

The ACLU has sought to overturn the will of the people by challenging numerous State laws that define marriage as between a man and a woman and has encouraged city mayors across the country to openly defy State law by granting same-sex marriage licenses, even in contradiction to law.

It has vehemently opposed the 1996 Defense of Marriage Act, calling it ``a deplorable act of hostility unworthy of the United States Congress.'' That passed a year before I came here--not too long ago. It just said that if one State allows a marriage to be between members of the same sex, another State would not be forced to acknowledge it and recognize it. That is what the Defense of Marriage Act did, and it passed here not too many years ago.

The ACLU has consistently opposed all restrictions on abortion--all restrictions--including partial-birth abortion, the Unborn Victims of Violence Act, and statutes requiring parental notification before a minor child can have an abortion. If they want to defend the innocent against wrongdoing, what about defending a child partially born whose life is taken from them? The ACLU's extreme advocacy on abortion would force even religious health care providers--doctors and nurses--to perform abortions as a condition of Medicare or Medicaid reimbursement eligibility. A doctor could not say: I will treat you, but I don't do abortions. Oh, if you take Medicare or Medicaid money, then under the ACLU's position, you would have to do so.

According to the ACLU:

There is no basis for a hospital to impose its own religious criteria on a patient to deny [her] emergency care.

So this type of religious liberty is not, I think, what the Founders said. I do not think a hospital that is founded on personal values and has certain moral values should be required to give them up as a capitulation to State domination, which is what they were asking for actually, having the State be able to tell a hospital that did not believe in abortion.

What about other issues that may come up, such as end-of-life issues. Hospitals ought to be able to have--and doctors and nurses should be able to have moral views about those matters and not do something they think is wrong and not have to give up their practice or their hospital in order to comply with what this group thinks is the right way to do business.

So those are some of the examples of the ACLU's out-of-the-mainstream point of view. It is no secret that this administration shares this kind of legal reasoning. This is, of course, one of a long line of ACLU nominees whom we have seen, and this kind of reasoning and legal thought is well to the left of and out of touch with the American people and, I think, for the most part, established law. It seeks to impose its liberal progressive agenda any way it can, including by filing lawsuits and having judges--unelected lifetime appointed judges who have been popped through the Senate--ratify what the people who filed the lawsuits want to achieve as a matter of policy, not being neutral umpires who adjudicate disputes and decide them narrowly but to try to use the courts as a vehicle to advance an agenda. That is what has really been at the core of the debate in recent years over judicial nominations.

So it is not surprising that many of the President's judicial and executive branch nominees have been deeply involved in the ACLU--many of them. For example, President Obama's first nominee, Judge David Hamilton, who was confirmed to the Seventh Circuit last year, was a leading member of the Indiana Civil Liberties Union for 9 years, where he served as a board member and its vice president for litigation. Judge Gerard Lynch, who now sits on the Second Circuit, was a cooperating attorney and member of the ACLU for 25 years. Judge Rogeriee Thompson, who was confirmed to the First Circuit earlier this year, had been a member of the ACLU for 10 years. Judge Dolly Gee, who now sits on the District Court for the Central District of California, had been a member of the ACLU for 9 years. Carlton Reeves, who was confirmed two days ago to the Southern District of Mississippi, was a member for 12 years and served as a board member.

Three of President Obama's most controversial judicial nominees have had extensive involvement with the ACLU. Edward Chen, nominated to the Northern District of California, was a staff attorney on staff and member of the ACLU of Northern California for 16 years.

Goodwin Liu, a professor, one of the most extreme nominees now pending, was nominated to the Ninth Circuit, already the most activist circuit in America. He was a member of the board of directors of the ACLU of northern California for years. Jack McConnell, nominated to the district of Rhode Island, was a volunteer lawyer for the ACLU as recently as last year.

A number of nominees who were recently considered by the Judiciary Committee also have significant ties to the ACLU. Amy Totenberg, nominated to the Northern District of Georgia, has been a member for 21 years. Robert Wilkins, nominated to the District of DC, was also a member. Michael Simon, nominated to the District of Oregon, has been a member since 1986. He served on the lawyers committee and the board of directors and as its vice president for legislation and vice president for litigation.

That is more than I thought when we started going back and looking at this. I am sure less than 1 percent of the lawyers in America are members of the ACLU, but it seems if you have the ACLU DNA, you get a pretty good leg up on being nominated by this President. It is clear the President, our President, a community activist, a liberal progressive, as his own friends have described him, and former law professor is attempting to pack the courts with people who share his views and who will promote his vision of, as he has said about judges, what America ``should be.'' That was his phrase. He said, We want judges who help advance a vision of what America should be.

But that is not good. We all have visions of what America should be. I wish to see us be a more frugal nation, more local government, more individual responsibility. I do not support cradle-to-grave government. His vision is what? That we want judges on the bench promoting an agenda because they were picked by a President who shares that agenda? That is not the classical American heritage of what judges should be about. Judges should take the bench and they should attempt, as objectively as they possibly can, having put on that robe and having taken an oath to do equal justice to the poor and the rich, and to be not a respecter of persons, but to analyze that case objectively and decide it based on the law and the facts, not on their empathy and not on what their vision of what America should be because it may not be what the people's vision is.

Democracy is undermined if a judge gets on the bench and feels that they can promote visions. I have to tell my colleagues, they are not appointed to be vision promoters. They are appointed to decide the strict matters of law and fact, to the best of the ability the Lord gives them.

We can't stand idly by and allow that heritage of law that benefits us so greatly, the American rule of law and the greatest strength this Nation has, in my opinion, to be altered by promoting a Federal judiciary that is agenda oriented. Any individual--regardless of the position to which they have been nominated, to what kind of court position they are nominated to--who demonstrates unwillingness to subordinate his or her personal views, religious, political, ideological, social, liberal, or conservative. Conservatives can't promote their views, either--if they can't be faithful to the law and the Constitution, they should not be on the bench.

I am not going to support such nominees and no Senator should support them. I have given it a lot of thought. I know Mr. Martinez has had a long affiliation with the ACLU. He refused to give clear answers to these questions I posed to him. I am not convinced that those views, which I think are outside legitimate constitutional theory, have been objected to and are not by Mr. Martinez--indeed, it appears he supports them because he has not with clarity rejected a single one. He has not made any defense to participating in an organization that openly advocates these kinds of legal views.

We ask a lot of the nominees: Do you believe the Constitution prohibits the death penalty? They said, No. Even though they were part of an organization and some of them--a lot--have been confirmed and I have voted for a number of them, but I am not able to vote for this one.

I have to say this: We are paid to judge and to vote, and when it comes down to some of the positions taken by the ACLU--let's take the one that the Constitution prohibits the death penalty--are so extreme and are so nonlegal that if a person can't understand that, I have serious doubt that they can understand any other significant constitutional principle.

Therefore, I have concluded I would not be able to support the nominee, although I respect my colleagues who think he will do well. I certainly don't think he is a bad person. I think he is an able person who has a wonderful background, but his legal history evidences an approach to law that I think is outside the mainstream and I will oppose the nomination. We are not blocking a vote. We will allow him to have his up-or-down vote and Senators will cast their vote based on how they conclude it should be decided.

I thank the Chair and I yield the floor.

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