Executive Session

EXECUTIVE SESSION

NOMINATION OF WILLIAM H. PRYOR, JR., TO BE UNITED STATES CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, today the Senate is considering the nomination of William Pryor for the U.S. Court of Appeals for the Eleventh Circuit. This is a nomination which I have considered many times in the Senate Judiciary Committee and outside the regular business of Congress. Senator JEFF SESSIONS and I occasionally get up early in the morning and go to the Senate gym. And on several occasions he has raised with me his heartfelt support for William Pryor. I have expressed to him my reservations and concerns about Mr. Pryor, and he has tried to assure me, in different ways, that the public image of this man is much different than who he really is. I struggle with this because I do count Senator Sessions as a friend despite our many political differences. I would like to give him the benefit of the doubt on this nominee who is so important to him personally.

Unfortunately, the debate that leads up to today's consideration on the floor has raised a myriad of questions that need to be resolved, questions which go to the heart of this nomination.

Mr. Pryor was recess-appointed by President Bush when both he and Judge Pickering of Mississippi were not approved by the Senate. It was historic. It was a decision by the President to use his recess appointment power to put Mr. Pryor on the bench, despite the Senate's decision on his nomination. I agree with Senator Kennedy that Mr. Pryor's recess appointment, which occurred during a brief recess of Congress, could easily be unconstitutional. It was certainly confrontational. Recess appointments lack the permanence and independence contemplated by the Framers of the Constitution. To confirm Mr. Pryor now would validate the President's regrettable decision to defy the Senate.

I am afraid that many aspects of the debate, relative to the Pryor nomination, mark a low point in Congress. Many of Mr. Pryor's supporters allege that those of us who questioned his nomination or opposed him did so because of his religious beliefs. The same ugly allegation was raised more broadly at the recent Justice Sunday event which took place in a church in Kentucky and featured remarks by Majority Leader WILLIAM FRIST. The allegation that any Member of the Senate is opposing this nomination because of the nominee's religious beliefs is just wrong. In fact, it is not only wrong, it is outrageous.

Article 6 of the Constitution, which we keep at hand here on the floor, makes it clear that it is unconstitutional to use any form of religious test for a person who is seeking an office of public trust. To suggest that those of us who oppose Mr. Pryor--or any of the President's judicial nominees--are violating this article of the Constitution is out of line.

I am troubled, too, by the logic of this position. It appears that Mr. Pryor's supporters believe that if he can answer any of our questions about public policy, if the position he takes is based on his religious belief, then at that point we can't pursue the question, that it is a matter of his personal conscience. But think about that for a moment. I am a member of the Catholic Church. Some Catholics do not support the death penalty. The late Pope John Paul II himself strongly opposed capital punishment. Some Christian Scientists do not support many aspects of medical treatment. Some Quakers do not support war. Some people because of their religious beliefs have strong views on the role of women in society, strong views on divorce, on sexual orientation. I can't believe it is the position of Mr. Pryor's advocates that Senators could not raise legitimate concerns about positions on public issues if there is any nexus to a nominee's religious belief.

Think of all of the areas where we would, frankly, be unable to even ask a question because the person could say: I am sorry. That is my religious belief, and you can't ask about that.

The reality is that certain important issues at the center of legal and legislative activity are public issues and religious issues. To suggest the Senate cannot ask a nominee questions about these public issues would prohibit us from fulfilling our constitutional obligation. It is not Mr. Pryor's religious affiliation that is troubling. It is his history of putting his own personal beliefs ahead of the Constitution. He is a staunch judicial activist. Maybe he doesn't reach the level of Janice Rogers Brown, who was approved yesterday--the most radical nominee sent to us by the Bush White House--but, sadly, some of his public comments are close.

William Pryor believes it is the job of a Federal judge to carry out the political agenda of the President. How else could you interpret his comment about the Bush v. Gore case in 2000, when he said:

I'm probably the only one who wanted it 5-4. I wanted Governor Bush to have a full appreciation of the judiciary and judicial selection so we can have no more appointments like Justice Souter.

These are the words of William Pryor. Does that suggest to you that he is looking for a nonpartisan judiciary? Sadly, it suggests the opposite. He is looking for a bench filled with partisans of his stripe, and he used that case as a lesson to the White House: Be careful, if you pick someone who is independent, they may just rule against you on a political issue. Those are hardly the kind of words you want coming from the mouth of a man who wants to ascend to the second highest court in America.

On another occasion, Mr. Pryor stated:

[O]ur real last hope for federalism is the election of Gov. George W. Bush as president of the United States, who has said his favorite justices are Antonin Scalia and Clarence Thomas.

Although the ACLU would argue that it is unconstitutional for me, as a public official, to do this in a government building, let alone at a football game, I will end my prayer for the next administration: Please God, no more Souters.

He was referring again to Justice Souter on the Supreme Court. I asked Mr. Pryor, a Federalist Society member, whether he agrees with the mission statement of the Federalist Society, where he pays his dues and attends meetings. It reads:

Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.

I have asked this question of almost every Federalist Society member nominated by President Bush, and there have been quite a few. Mr. Pryor is the only person who gave me a one-word answer: ``Yes.''

I appreciate his honesty, but I am troubled by his beliefs. Mr. Pryor is just over 40 years old. If confirmed, he will have the chance to put this philosophy into practice well into the 21st century with a lifetime appointment.

It is not just law and politics that Mr. Pryor has problems keeping separate. He has problems with the separation of church and State. I am concerned about his blurring of a very important line when it comes to the conduct of government vis-a-vis religion. He is so ideological about this issue that he has confessed:

I became a lawyer because I wanted to fight the ACLU.

The ACLU is one of the main defenders of the separation of church and State. I asked Mr. Pryor if he would be willing to recuse himself in cases involving the ACLU because he has made his views very clear that he cannot be objective. He said no. But he pledged:

As a judge, I would fairly evaluate any case brought before me in which the ACLU was involved.

It is hard to believe that he could follow that pledge. This is a man who, by his own admission, became a lawyer so that he could ``fight the ACLU.'' Now he tells us he will be objective on their cases.

Many of you remember Alabama Chief Justice Roy Moore and his midnight installation a few years ago of a 6,000-pound granite Ten Commandments monument in the middle of the Alabama State courthouse. Mr. Pryor and his supporters like to point out that Mr. Pryor criticized Chief Justice Moore for defying a Federal court order to remove the monument. What they don't like to talk about nearly as much or nearly as openly is the fact that Mr. Pryor was an early supporter of Chief Justice Roy Moore. He represented Moore vigorously in the litigation of this issue.

The Eleventh Circuit ruled that the display was patently unconstitutional, and a district court subsequently issued an injunction to have the monument removed. Had Mr. Pryor continued to side with Moore and refused to comply with this injunction, he would have exposed the State of Alabama to substantial monetary sanctions and possible criminal liability. This is what Mr. Pryor and his supporters offer as proof that he understands and respects the venerated, historic, and traditional wall between church and State.

Mr. Pryor's advocates call him a ``profile in courage'' for enforcing the Eleventh Circuit decision that the monument must be removed from the Alabama State courthouse. I call it doing your job.

Let me provide another example of his insensitivity. At Mr. Pryor's confirmation hearing, Senator Feinstein asked him to explain his statement that ``[t]he challenge of the next millennium will be to preserve the American experiment by restoring its Christian perspective.'' He ducked the question.

If you are going to serve this Nation and its Constitution, you have to have some sensitivity to the diversity of religious belief in America. Many of us are Christians. But to impose a so-called Christian perspective on everything is to, frankly, take a position which many of different religious faiths would find offensive and intrusive by their Government.

Our Founders may have been mostly Christian, but America today is a nation of religious diversity and this diversity is protected by the Constitution. Judge Pryor has difficulty in grasping this concept.

On the issue of federalism, Mr. Pryor has been a predictable, reliable voice for those who seek to limit the people's rights in the name of States' rights. It is an old ploy in America. As the Alabama Attorney General, he filed brief after brief with the U.S. Supreme Court arguing that Congress has virtually no power to protect State employees who are victims of discrimination. Under his leadership, Alabama was the only State in the Nation to challenge the constitutionality of parts of the Violence Against Women Act. Thirty-six States filed briefs urging this important law be upheld in its entirety, while William Pryor, attorney general of Alabama, was the only one who used his position to try to tear down the Violence Against Women Act.

Mr. Pryor also filed a brief in the Supreme Court case Nevada v. Hibbs. In it, he argued that Congress has no power to ensure that State employees have the right to take unpaid leave from work under the Family Medical Leave Act. Think about it. Mr. Pryor, as Alabama attorney general, said Congress had no power to enforce a Federal law.

The Supreme Court rejected his argument and said: Mr. Pryor, this time you have gone too far.

On the issue of women's rights, he clearly opposes a woman's right to choose. He once called Roe v. Wade ``the worst abomination of constitutional law in our history.'' At Mr. Pryor's hearing, Senator Specter asked him if he stood by his statement. He said he did. He went on to say that Roe v. Wade is ``unsupported by the test and structure of the Constitution'' and ``has led to the slaughter of millions of innocent unborn children.''

We are not talking about a nominee who made an overheated statement 30 years ago as a college student. Mr. Pryor said this at his own confirmation hearing.

Understand the constitutional principle that underlies Roe v. Wade. I know abortion is an issue that is very divisive. People feel very strongly one way or the other. But most people concede that underlying that Roe v. Wade decision is the right to privacy, a right which was enshrined in the Supreme Court case of Griswold v. Connecticut 40 years ago this week.

The State of Connecticut, urged by religious groups, had banned the sale of contraceptives and family planning to anyone in the State of Connecticut. If you purchased any family planning--a birth control pill, for example--it was a violation of the law, and the pharmacist who filled that prescription could be arrested and prosecuted.

Think about it. Only 40 years ago that was the case. There was a group who believed that their religious beliefs were so compelling about birth control that they installed it as a State law.

The law was challenged. It came before the Supreme Court. The Supreme Court came down with what has now become a time-honored decision that said, no, built into this Constitution there may not be the word ``privacy,'' but the concept of privacy. There are certain things that we, as individuals, should be protected to make decisions about--the intimacy of marriage, the privacy of our personal life.

What I hear in the language of Mr. Pryor, and many others of his point of view, is really questioning this fundamental concept of protecting individual, personal privacy. It is their belief, many of them, that the Government should rule on these decisions.

On the issue of voting rights, Mr. Pryor has urged Congress to take steps that would undermine the right of African Americans to vote. While testifying before the Judiciary Committee in 1997, he urged Congress to ``consider seriously ..... the repeal or amendment of section 5 of the Voting Rights Act.'' This is a key provision that guarantees the right of African Americans and other racial minorities to achieve equal opportunity in voting.

Section 5 requires certain States to obtain preapproval before changing their voting rights standards, such as redistricting or the location of polling places. It is clearly a vestige of America in transition from racial division and discrimination to a more open, equal policy.

Mr. Pryor, as attorney general of Alabama, raised questions as to whether or not the Federal Government should continue to try to meet that standard. I strongly disagree with that sentiment. He called section 5 ``an affront to federalism and an expensive burden that has far outlived its usefulness.''

I say to Mr. Pryor and others who are white Americans that we cannot possibly understand how much this means, what it means to an individual to have the right to vote, particularly a person of color, a minority in America, and section 5 is there to guarantee it.

As attorney general of Alabama, Mr. Pryor testified that it had outlived its usefulness. I disagree with his sentiment. Thankfully, so did the Supreme Court and most Members of Congress.

There are so many other issues. Tobacco is another one. When it comes to tobacco, Mr. Pryor has been one of the Nation's foremost opponents of a critical public health issue--compensation for the harms caused by tobacco companies. He has ridiculed lawsuits against tobacco companies saying:

This form of litigation is madness. It is a threat to human liberty, and it needs to stop.

Remember, those are the lawsuits against tobacco companies that had openly deceived Americans into believing their product was safe, leading to addictions, disease, and death. And when lawsuits were brought by attorneys general across America against the tobacco companies, they settled, knowing they would lose in court, and paid billions of dollars, confessing, in the process, their own wrongdoing.

Despite that, Attorney General Pryor, in Alabama, said this was a threat to human liberty to bring these lawsuits against tobacco companies. What was he thinking?

His fellow State attorneys general have been highly critical of him for his comments on these tobacco lawsuits. Former Mississippi Attorney General Michael Moore said:

Bill Pryor was probably the biggest defender of tobacco companies of anyone I know. He did a better job of defending the tobacco companies than their own defense attorneys.

Former Arizona Attorney General Grant Woods, a Republican, said this of Mr. Pryor:

He's been attorney general for about 5 minutes, and already he's acted more poorly than any other attorney general.

These are his colleagues commenting on his view of the law and his personal philosophy.

Gun control is another issue where Mr. Pryor has demonstrated disregard, if not downright hostility, to even reasonable firearm restrictions.

In United States v. Emerson, he filed an amicus brief with the Supreme Court, arguing the man who was the subject of a domestic violence restraining order should be allowed to possess a firearm.

I can tell you, from my life experience and legal experience, that is a very bad position to take. We know that if someone has a restraining order against them because they are going to commit domestic violence, the last thing we want to give them is a gun. That is what the case is about. Mr. Pryor in that case said, no, they have a right to have a firearm, even if they have a domestic abuse restraining order against them.

He called the Government's position a ``sweeping and arbitrary infringement on the second amendment right to keep and bear arms.''

I will stand here and defend to the end the right of an individual to own a firearm legally in America, to use it for legitimate purposes--for self-defense, for hunting, for sport--but to think Mr. Pryor believes the second amendment right is so absolute that we should give guns to men who batter their wives, I just do not understand it. It does not show common sense, let alone an understanding of the law.

Incidentally, he was the only attorney general in the United States of America who took that position.

Mr. Pryor once called those who exercised their legal rights against gun dealers and manufacturers ``leftist bounty hunters.'' The list goes on and on.

On environmental protection, Mr. Pryor was the only State attorney general in the country to file a brief with the U.S. Supreme Court arguing that the Constitution does not give Congress the authority to protect waters that provide a habitat for migratory birds.

In another case, he was the only State attorney general to file a brief urging the Supreme Court to declare unconstitutional Federal efforts to protect wildlife on private lands under the Endangered Species Act.

He has written that his ``favorite victory of the 2000 term'' was the Supreme Court ruling in Alexander v. Sandoval, an infamous decision that made it more difficult to bring environmental justice cases under title VI of the Civil Rights Act.

Judge Pryor has served as a recess appointment on the Eleventh Circuit for about a year now. Senator Specter, chairman of the Judiciary Committee, whom I respect very much, has now tried to make the case that he would be a moderate, fairminded judge based on 1 year of service, under the glare of spotlights, as people watched every decision handed down. He suggests he is going to change, he is not going to be the old William Pryor, if we give him an appointment to the Eleventh Circuit. He will be less political. Chairman Specter said he will be less of an activist.

I am not persuaded. He has not really had an opportunity to rule on the full spectrum of issues he will face in a lifetime on the bench.

There have been only so many cases which he has considered. Some you can consider liberal in his decisionmaking, some conservative, but to take this 1 year of a probationary period, with this close scrutiny, and say that is what he is all about, I think is to overstate the case.

Mr. Pryor and his supporters have a simple strategy to try to convince the Senate to grant him a lifetime position as a Federal judge. Rather than talk about his troubling record or radical views, they focus on his religious affiliation and accuse anyone who questions him of religious discrimination. I think that is wrong.

We should take care and understand what the Constitution says very directly about religion. There are three references, and the three references have really done a good job for America in over 200 years. The first is each person is entitled to his or her religious beliefs. Believe what you want to believe in the name of religion or do not believe anything. That is your right, your freedom of conscience to make that decision.

Secondly, this Government will not establish a church. We are not going to say this is a Christian nation and everything we do will be handled by the standards of Christ's teachings. We cannot do that under our Constitution. We should not do that because of diversity of religious belief.

Finally, that there be no religious test under the Constitution for anyone seeking office, as I mentioned earlier.

I think we have to be careful here about the use of religion in the debate about William Pryor and careful about it as we speak on the floor. It is not Mr. Pryor's ideas about religion that trouble me. It is his views and record on women's right, voting rights, inmates' rights, consumers rights, the constitutional principle of separation of church and State. Time and again, as Alabama attorney general, Mr. Pryor has taken extreme positions, made extreme statements on such a wide range of issues that the 25 to 30 minutes I have spoken here cannot possibly cover it.

He and his supporters say he will be a changed person. He will go through the so-called confirmation conversion. This will be the new William Pryor. Sadly, I believe, given a lifetime appointment, he will revert to form. He will follow the pattern of his life, the pattern of his statements, and the pattern of his beliefs.

Based on review of his record, it is a risk I cannot, in good conscience, take, and I will vote against Mr. Pryor's nomination.

BIG TOBACCO

Mr. DURBIN. Mr. President, on a separate subject, there was a decision reached this week by the Department of Justice which was very troubling. A lawyer sold out his client. It happens all the time. It is wrong, but it happens. What makes this case unique is the lawyer is the Attorney General and the client is the people of America. In a lawsuit that had been brought against the tobacco companies, there was expert testimony to the fact these tobacco companies should pay up to $130 billion over 25 years for lying to the American people and for all the medical expenses their deadly product created. A similar lawsuit was brought by the States not that long ago. So the Department of Justice, slow to begin this process, was taking the tobacco companies to court.

Then, out of the blue, came the following, and this was reported in the press:

After 8 months of courtroom argument, Justice Department lawyers abruptly upset a landmark civil racketeering case against the tobacco industry yesterday by asking for less than 8 percent of the expected penalty.

Suing for $130 billion, the lawyer for the people of the United States walked into the courtroom this week and said: Oh, we just want $10 billion. The story goes that this Justice Department lawyer, Stephen Brody, even shocked the tobacco company representatives by announcing that he only needed $10 billion over 5 years. The Government's own expert said $130 billion over 25 years. What a discount. Here is the lead from the story:

Government lawyers asked two of their own witnesses to soften recommendations about sanctions that should be imposed on the tobacco industry if it lost a landmark civil racketeering case, one of the witnesses and sources familiar with the case said yesterday.

Matt Myers, a person I know and worked with in the past, said he was asked to basically change his testimony to lighten up on the tobacco companies. He confirmed in this article. The second witness declined comment, but four separate sources familiar with the case said the Justice Department asked the same of him.

By the time the Government opened its racketeering case against tobacco companies last September, it had already spent $135 million to develop its case. Why, at the 11th hour, would the Government's own lawyers, the people's own lawyers, fold under the pressure of the tobacco companies and give away so much potential recovery for the taxpayers of America?

Why would they ignore the advice of their own expert witness to seek a penalty of $130 billion and reduce their demand to $10 billion over 5 years?

Even the lawyer for Philip Morris tobacco company coordinating the case said as follows:

They've gone down--

Meaning the Government, your lawyer, the attorney-- from $130 billion to $10 billion with absolutely no explanation. It's clear the Government hasn't thought through what it's doing.

End of quote from Dan Webb, the lawyer from the tobacco company, who could not believe what he had heard when the Department of Justice walked into the courtroom and said: We are going to deeply discount the amount we are trying to recover.

Why is this money important? There are 45 million smokers in America. Many of them want to quit. The money was going to be used for cessation programs, reducing disease and death in America, and the Bush administration walked away from it, walked away from the vast amount already established in court as the amount necessary to move these programs forward.

In court yesterday, a Philip Morris lawyer tried to explain away the reduced fine by claiming that the Government's case was in disarray. The judge in the case interrupted the tobacco lawyer who was trying to put some credibility into the new position of the Bush administration by saying that was not true.

So what is the reason? Sadly, it is because there is too much political impact by the tobacco lobby on this administration, particularly on Associate Attorney General Robert McCallum, Jr.

Who is he? This is what the L.A. Times said about him:

Before his appointment in the Justice Department ..... he had been a partner at Alston & Bird, an Atlanta-based firm that had done trademark and patent work for R. J. Reynolds Tobacco. In 2002, McCallum signed a friend-of-the-court brief by the administration urging the Supreme Court not to consider an appeal by the Government of Canada to reinstate a cigarette smuggling case against R. J. Reynolds that had been dismissed. The Department's ethics office had cleared McCallum to take part in the case.

Let me point out, in fairness to Mr. McCallum, that he is not the only friend of the tobacco industry in the Bush administration. There are many.

Does this have something to do with the surprise announcement yesterday that the Justice Department was selling out its client, the American people, those addicted to tobacco? That is why Senators LAUTENBERG, KENNEDY, WYDEN, and I have sent a letter to the inspector general of the Justice Department, asking him to investigate this reversal of position by the Attorney General.

Just why in the world has the Attorney General of the United States thrown in the towel, given up, when he was supposed to be fighting for people across America who need this public health assistance?

I think that is a critical and unanswered question, which I hope the inspector general will address.

I yield the floor and I suggest the absence of a quorum.

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