Expressing Support for The Pledge of Allegiance

CONGRESSIONAL RECORD
SENATE

EXPRESSING SUPPORT FOR THE PLEDGE OF ALLEGIANCE

The PRESIDING OFFICER. The Senator from Texas is recognized.

Mr. CORNYN. Madam President, I congratulate the Senator from Alaska who has kindly taken the chair so I may speak briefly in support of the resolution that she and Senator McConnell have offered this morning.

The reason I do so is that I think we see a remarkable confluence of themes this morning. First, as we know, we are in the fourth week of debate on the nomination of Miguel Estrada to the DC Circuit Court of Appeals, and the debate has often been about what is the proper role for a judge to play under our Government of separated powers, where the legislative branch, executive branch, and judicial branch play distinctive roles, not the same role.

Then we heard from the distinguished Senator from Tennessee this morning offering a bill sponsored on a bipartisan basis, trying to put history and civics back in our classrooms so that American children can grow up knowing what it means to be an American. And then we have this sad, but not totally unexpected, incident of the Ninth Circuit's refusal to reconsider the three-judge panel decision striking the words "under God" from the Pledge of Allegiance. I think these three themes are connected. I want to speak briefly on that.

Madam President, I rise this morning, after an entire month of Senate debate on the nomination of Miguel Estrada to serve on the Federal court of appeals, in continued dismay over what I see as a politicization of our judicial confirmation process. In my view, it is profoundly dangerous to have a judicial confirmation process that, in effect, tells nominees their personal political beliefs will determine whether or not they get to serve as a judge. Such a judicial confirmation process sends exactly the wrong signal and a dangerous message to judges that it is perhaps OK to decide cases based on their personal beliefs, or a political and social agenda and not based on settled law.

Indeed, Miguel Estrada, during the course of these debates, has been criticized. When asked what his judicial philosophy is, he said: I will apply the law as written by the Congress and as decided by precedents of the U.S. Supreme Court. One Senator said: Well, that is not a philosophy. I want to know how Mr. Estrada personally feels about the equal protection clause, about the fourth amendment, the first amendment, and such questions. But, indeed, I think the Senator has it exactly wrong, and Mr. Estrada has it exactly right. It is the judicial philosophy we ought to embrace and look for.

Indeed, I believe the President has chosen a nominee who says I won't impose my own views or my own political agenda, or what I think the law should be; I will submit to the law of the land, which is what Congress has said the law is, through the laws that are passed and signed by the President, and the decisions made by a higher court and the precedents so established.

Madam President, the Ninth Circuit's decision last Friday to strike down, for a second time, the voluntary recitation of the Pledge of Allegiance as unconstitutional demonstrates exactly what will happen when we politicize the judiciary. It demonstrates what happens when we tell judges you can ignore the law, because what is really important is how you personally feel about these issues. The Ninth Circuit's decision on the Pledge of Allegiance is without any basis in law or in fact. It is a blatantly political decision.

As one of the judges noticed in his dissent, "it doesn't take an Article III judge to recognize that the voluntary recitation of the Pledge of Allegiance in public school does not violate the First Amendment." Surely, he is right. Heaven help us if he is not.

The First Amendment of the Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These words represent a solemn commitment by our Founders, indeed by all of us, that our Government cannot interfere with the ability of an individual to practice his or her faith or express it in a public forum—no more, and no less. Government shall neither establish an official State religion, nor shall Government interfere with the ability of private citizens to exercise their chosen religion.

Notice what the first amendment does not say. It does not say the Government must be hostile to religion. But, indeed, is that not what has happened? I think about our children and what they are exposed to on a daily basis: Sex, violence, degradation of women, other dangerous influences. And we expect them to sort that out in their own way, hopefully under the guidance and tutelage of parents, teachers, and others.

The one thing people cannot talk about, they cannot talk about the Creator, they cannot talk about their religious faith. That is prohibited. And that is absurd.

The PRESIDING OFFICER. The Senator's time has expired.

Mr. CORNYN. Madam President, I ask unanimous consent that morning business be extended by 5 minutes on this side of the aisle and likewise extended on the other side of the aisle.

The PRESIDING OFFICER. Without objection, it is so ordered.

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Mr. CORNYN. As Justice William O. Douglas explained in his decision in Zorach v. Clauson, "[t]he First Amendment . . . does not say that in every and all respects there shall be a separation of Church and State. . . . Otherwise . . . [p]olicemen who help parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls," such as we observed in this Chamber this morning and do every time the Senate meets, "the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 'so help me God' in our courtroom oaths—these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment."

The Founders of the Constitution did not ratify a Constitution or a Bill of Rights so hostile to religion. To the contrary, the very first day that the first Congress approved the Establishment Clause, it also passed the Northwest Ordinance which declared that "religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

Our Founders thus believed this new Nation could endorse and promote religion and encourage its citizens voluntarily to practice the faith of their own choosing. They are not mutually exclusive.

The Ninth Circuit's decision to strike down the Pledge of Allegiance finds no basis in the text of the Constitution or the original understanding of our Founding Fathers. Indeed, it defies common sense.

I urge this body to support the resolution offered this morning by the Senator from Alaska and the Senator from Kentucky because the Ninth Circuit's decision, like far too many decisions coming from our Federal courts, replaces the Constitution with an altogether new and made-up rule preferred by judges who may personally prefer a government that is actively hostile to all expressions of faith in a public forum.

I yield the floor.

The PRESIDING OFFICER (Mr. CORNYN). Under the previous order, the final 60 minutes shall be under the control of the Democratic leader or his designee.

The Senator from Oregon.