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Public Statements

Judicial Nominees

Location: Washington, DC


Mr. CHAMBLISS. Mr. President, I rise this morning to discuss an issue that is very dear to my heart. I practiced law for 26 years before I came to Congress and I had the pleasure of trying many cases before any number of judges, both at the State and Federal level, and I am very much concerned about what is happening with our judiciary today. For the last 2 years, I served on the Senate Judiciary Committee and have observed what obviously happened during those 2 years, but during the last few months, as we entered into this new session and approached the confirmation of nominees who are being put forward by the President, I remain concerned about some things that are happening.

I will start by noting again that never before in the history of the Senate has a minority of 41 Senators held up confirmation of a judicial nominee where a majority of Senators has expressed their support for that nominee. It is for this reason, if given the opportunity, I will vote in favor of changing our rules to allow confirmation of a judicial nominee by a simple majority because under the Constitution of the United States, the Senate is required to give its advice and consent to the President on his judicial nominees.

The Senate can say no in regard to any particular nominee, but to do so we need an up-or-down vote to decide what advice we give the President. Failing to answer the question is shirking our constitutional role in the separation of powers scheme. The Constitution spells out in certain areas, such as passage of constitutional amendments and ratification of treaties, where more than a simple majority of Senators is required. Confirmation of judges is not one of these areas.

The Senate rules have changed on several occasions over the years as to whether and in what circumstances a filibuster is allowed, but we have, unfortunately, come to a point in time where the filibuster is being abused to hold up judicial nominees on which we are required to act; that is, to say yes or no. I believe it is in violation of the Constitution.

I want to take a point in fact relative to the circuit in which I practiced for a number of years, and that is what is happening today with regard to the judicial nominee to the Eleventh Circuit Court of Appeals. The Democrats have held up confirmation of the only nominee President Bush has made to the Eleventh Circuit Court which handles Federal appeals in my home State of Georgia as well as Alabama and Florida.

As a result, on February 20 of last year, President Bush exercised his constitutional authority to make a recess appointment of Judge Bill Pryor, the former attorney general of the State of Alabama. This recess appointment is temporary in nature, but President Bush has renominated Judge Pryor in the 109th Congress for a permanent position on the Eleventh Circuit Court of Appeals.

As a former member of the Senate Judiciary Committee, I know we need to review with great care the qualifications of judicial nominees to ensure that they have established a record of professional competence, integrity, and the proper temperament for judicial service. I intend to vote for confirmation of Judge Pryor's nomination to the Eleventh Circuit for the following reasons: Since his recess appointment, Judge Pryor has gained the respect of his colleagues on the Eleventh Circuit without regard to political persuasions. This is no surprise to me because Judge Pryor is a tremendously selfless public servant who has worked very hard to help others both within and outside the scope of his official duties.

In private life, he established a program called Mentor Alabama which provides adult role models for at-risk children, and he has personally acted as such a mentor. In his service as attorney general for the State of Alabama, Bill Pryor established a record of evenhanded enforcement of the law. A noteworthy example of his fairminded treatment of his public duties is his enforcement of Alabama abortion laws.

Bill Pryor is personally opposed to abortion based on his deeply held faith as a Roman Catholic. However, in 1997, the Alabama Legislature enacted a ban on partial birth abortion that did not comport with the Supreme Court's decision in Planned Parenthood v. Casey. The Alabama statute prohibited abortions prior to as well as following viability of the fetus. Attorney General Pryor ordered law enforcement officials to enforce the law only insofar as it was consistent with the Supreme Court's precedents which encompassed only postviability situations. In so doing, he adopted the narrowest possible construction of the Alabama statute.

Moreover, in the wake of September 11, 2001, many abortion clinics were receiving letters with threats of anthrax exposure. In response, Attorney General Pryor held a press conference in which he asserted that the Alabama law ``provides stern felony penalties for those who now prey upon the public anxiety over fears of anthrax and other potential dangers. We warn anyone who is tempted to do so that their deeds are not a joke and will not be treated as mild misbehavior, but as a despicable crime against their fellow citizens that will not be tolerated.'' At this crucial time in history, Bill Pryor's statement sent a clear message that anthrax threats against abortion clinics would be prosecuted vigorously.

Despite his personal religious convictions, Bill Pryor has a keen knowledge of the Constitution's requirement that the Government make no law respecting the establishment of religion or prohibiting the free exercise thereof.

In Chandler v. Siegleman, as attorney general he persuaded the Eleventh Circuit to vacate a district court injunction that prohibited student-initiated prayers in school. Acknowledging the constitutional distinction between student-led prayers and teacher-led prayers, Bill Pryor refused to argue on appeal in favor of the constitutionality of teacher-led prayers as was the position of then Alabama Governor Fob James. In addition, General Pryor rejected Governor James' suggestion that the State of Alabama argue that the first amendment was never incorporated by the 14th amendment and thus does not apply to the States.

In sum, Bill Pryor has established an impressive record as a fair, diligent, and competent public servant. His nomination to the Eleventh Circuit enjoys strong bipartisan support in his home State of Alabama, and in my home State, our attorney general, the Honorable Thurbert Baker, a Democrat, has written in support of Bill Pryor's nomination.

I urge my Democratic colleagues to stop holding up the confirmation of President Bush's only nominee to the Eleventh Circuit by voting to move forward with Judge Pryor's nomination when it reaches the floor.

Now let us look at another circuit. I just explained what the situation is with the Eleventh Circuit. Opposition to some of President Bush's nominees in other areas of the country such as the Ninth Circuit strikes me as odd because it directly contradicts what some Democrats have said in the past about the concept of balance on the courts.

My friend from the other side of the aisle, the senior Senator from New York, acknowledged a couple of years ago in a speech on the Senate floor that the Ninth Circuit was ``by far the most liberal court in the country.''

To quote from the Congressional Record of March 13, 2003, Senator Schumer stated:

I believe there has to be balance, balance on the courts. And I have said this many times, but there is nothing wrong with a Justice Scalia on the court if he is balanced by a Justice Marshall. I wouldn't want five Scalias, but one might make a good and interesting and thoughtful court with one Brennan. A Rehnquist should be balanced by a Marshall.

Four of President Bush's nominees to the Ninth Circuit--Richard Clifton, Jay Bybee, Consuelo Callahan, and Carlos Bea--have been confirmed and are now sitting on the Ninth Circuit. That is the good news. But Democrats refused to give an up-or-down vote to two of President Bush's nominees to the Ninth Circuit, or one-third of the judges he has nominated. When one considers that 14 out of the 26 active sitting judges on the Ninth Circuit Court of Appeals were appointed by President Clinton and 2 of them were confirmed in the last year of his Presidency, the Judiciary Committee and the Senate in general treated President Clinton fairly with respect to the Ninth Circuit. Moreover, of the 28 total seats on the Ninth Circuit, 17 were Democratic nominees, 14 by President Clinton and 3 by President Jimmy Carter.

We now have two remaining seats on the Ninth Circuit to fill, and we have seen two nominees from President Bush to fill these seats. The fairness that the Senate showed President Clinton's nominees has not been applied to all of President Bush's nominees, as the two nominees, Carolyn Kuhl and Bill Myers, have been filibustered despite their tremendous qualifications.

President Clinton had 8 years in office and was able to put in over half the active judges on the Ninth Circuit Court of Appeals. I might add that some of these active judges turned out to be activist judges. But with due respect to my colleagues on the other side, it is time to balance out 17 Clinton and Carter nominees with qualified individuals such as Carolyn Kuhl and Bill Myers. That is the kind of balance we need on the Ninth Circuit.

One of the reasons the Ninth Circuit needs some balance is the outrageous nature of some of the decisions coming from that bench. For example, in the 1996-1997 term, Judge Reinhart, a Carter appointee, was overturned six times in cases where he was the author of the majority opinion.

To cite specific examples of outrageous cases of judicial activism, the Ninth Circuit Court of Appeals has, first, barred children in public schools from voluntarily reciting the Pledge of Allegiance--that was in Newdow v. U.S. Congress, a 2002 case; second, initially barred California from holding a gubernatorial recall election notwithstanding a clear State statutory scheme and widespread popular support, which was a 2003 decision in the case of Southwest Voter Registration Education Project v. Shelley; third, invented a constitutional right to commit suicide, a 1996 decision, Compassion in Dying v. Glucksberg; and fourth, made it far more difficult to prosecute those who give material support to foreign terrorist organizations, the case of Humanitarian Law Project v. U.S. Department of Justice, a 2003 case.

Also, this court struck down California's three strikes criminal sentencing law in the case of Andrade v. California in 2001 and only implemented the Supreme Court's reversal of that decision by a divided panel with Judge Reinhardt upholding the defendant's sentence only under the Supreme Court's ``compulsion'' and Judge Pregerson stating that ``in good conscience'' he could not follow the Supreme Court's decision.

Lastly, that court held that a foreign national criminal apprehended abroad pursuant to a legally valid indictment was entitled to sue the U.S. Government for money damages, a 2003 case, Alvarez-Machain v. United States.

I could go on, but there is no small wonder, then, that even Senator Schumer has stated:

The Ninth Circuit is by far the most liberal court in the country. Unless this is the kind of activist court that Democrats want to preserve, it's time to at least allow an up-or-down vote on nominees like Carolyn Kuhl and Bill Myers to restore some balance.

There have been two issues that have been raised by the other side during the debate and the filibuster by the other side of the aisle relative to the judicial nominees sent up by the President. One of those is the fact that filibustering Federal judges is not something that is new, and it is a contention of the other side of the aisle that Republicans initiated a filibuster on the nomination of Judge Abe Fortas back in the Johnson administration. I will once again set the record straight relative to exactly what happened, and I will quote because I want to make sure that we get this exactly right. This is from a statement made by the former chairman of the Judiciary Committee, Senator Orrin Hatch, in some remarks that were made on the Senate floor on March 1, 2005. Senator Hatch stated as follows:

Some have said that the Abe Fortas nomination for Chief Justice was filibustered. Hardly. I thought it was, too, until I was corrected by the man who led the fight against Abe Fortas, Senator Robert Griffin of Michigan, who then was the floor leader for the Republican side and, frankly, the Democratic side because the vote against Justice Fortas, preventing him from being Chief Justice, was a bipartisan vote, a vote with a hefty number of Democrats voting against him as well. Former Senator Griffin told me and our whole caucus there never was a real filibuster because a majority would have beaten Justice Fortas outright. Lyndon Johnson, knowing that Justice Fortas was going to be beaten, withdrew the nomination. So that was not a filibuster. There had never been a tradition of filibustering majority-supported judicial nominees on the floor of the Senate until President Bush became President.

I think that factual statement by Senator Hatch says it all relative to any issue concerning the contention that this is not the first time we have seen filibusters on the floor of the Senate. As we move into the consideration of these judges for confirmation, I am not sure what is going to come out from the other side.

I have great respect, first of all, for this institution in which we serve. I am very humbled by the fact, as is every one of the 100 Senators here, that our respective States have seen fit to send us here to represent them. But as I traveled around the country last year, campaigning for President Bush, as well as for Senate nominees, I continuously heard from individuals--whether it was in a formal gathering or whether it was in an informal gathering such as, on a lot of occasions, being in airports, or sometimes even walking down the street--it was unbelievable the number of Americans, and I emphasize that these were not Republicans or Democrats in every instance, they were just Americans who were very much concerned about what is happening with respect to the judicial nominees on the floor of the Senate.


This body has a number of rules which have been in place for decades. Those are good and valid rules and need to be followed in most instances. But there comes a time when you have to look the American people in the eye and say: I know Americans sent a majority party to the Senate, and I know you want us to carry out the will of the American people but, unfortunately, even though it only takes 51 votes to confirm one of President Bush's judicial nominees, we have a Senate rule that says you have to have 60 votes before you get to the point where you only have to have 51 votes. It doesn't take a Philadelphia lawyer to figure out something is wrong with that rule, and it needs to be corrected.

As we move into the consideration of these judges, I hope we will reach an accord so the integrity of this institution will be maintained. Hopefully, our rules can be maintained intact. But it is imperative we do the will of the American people, which is move toward the confirmation of the President's judicial nominees as required by the Constitution of the United States.

I yield the floor.

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