Executive Session

EXECUTIVE SESSION

Mr. CORNYN. Will the Senator yield for a question?

Mr. SCHUMER. I will be happy to yield for a question. I give the Senator from Texas the courtesy I was not given.

Mr. CORNYN. I would like to ask the Senator from New York, of the individuals he has listed on his chart, isn't it true that all but Judge Fortas were ultimately confirmed to the positions to which the President appointed them?

Mr. SCHUMER. Yes, reclaiming my time, that is exactly the point. I haven't gotten up to this chart, but I will go to it now.

Mr. CORNYN. If I may-

Mr. SCHUMER. Let me please answer my colleague's question. The bottom line is the other side has said-and in the chart of the Senator from Pennsylvania, he was careful. He said "successfully filibustered, none." Then when it was repeated by many of the other colleagues, they said there has never been a filibuster.

As my good colleague from Nevada pointed out, there have been filibusters. Here are some of the judges who have been filibustered.

Don't claim there has never been a filibuster. In fact, I would ask anyone on the other side, when you filibustered just 3 years ago, did anybody object and say the Constitution is being defiled? Judge Berzon was filibustered in 2000. Judge Paez was filibustered in 2000. Judge Sarokin was filibustered in 1994.

I didn't hear the outcries from the Senator from Pennsylvania or others that filibuster is constitutionally wrong. Oh, no. Oh, no. So the one difference-

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Mr. CORNYN. The Senator has talked about Miguel Estrada and his admirable qualities, the fact he emigrated here as a young man at 17, barely spoke the English language, and yet rose to the top of his profession and, indeed, represented the United States Government before the highest Court in the land in 15 cases, which is a remarkable professional accomplishment. But you also alluded to the comments made by our colleague from New York, and you gave us some quotes about the nature of President Bush's judicial nominees. I believe at another time he accused the President of loading up the judiciary with rightwingers who want to turn the clock back to the 1890s and warning that America is under attack from the hard right, the mean people. They have the sort of patina of philosophy, but underneath it is meanness, selfishness, and narrowmindedness.

If I may ask the Senator, how in the world can you reconcile the public record of Miguel Estrada and this sort of characterization? Do you have an explanation for what is happening here?

Mr. ALLEN. There is no justifiable explanation. Miguel Estrada is a person of very calm demeanor. He is very mild mannered and soft spoken. He is one who, throughout the entire nomination process, was willing to subject himself to whatever written interrogatories submitted to him by Senators. He was willing to and did meet one on one with Senators. So that characterization is not accurate.

Do you know what that characterization is? It is pure politics. It doesn't matter what the truth is because they have not justified it. What is unfortunate about statements such as that is that it is the politics of personal destruction. We should rise above that.

I say to the Senator that my very first speech on the Senate floor was about judges. I said that I care about treating people as individuals rather than partisans. I spoke about Roger Gregory. President Clinton had appointed him as an recess appointment. This had many Republicans, understandably, infuriated. I examined and talked to Roger Gregory to determine his judicial philosophy. I studied his records of accomplishment, considered his temperament, and all of the attributes judges who are appointed for life should have. You have to be sure you are not going to end up with some judge who is a radical one way or the other, an activist, but rather one who interprets the law and applies the facts of the case, rather than inventing or creating laws. My first speech was to say, "let's rise above that and to be statesmen."

I found Roger Gregory to be very qualified. The first thing I said to President Bush when he asked me my thoughts on this nomination was that I had interviewed judges for various positions when I was Governor and that one can never be absolutely sure about a nominee. But I told President Bush that I felt that Roger Gregory truly had the right philosophy and capabilities, and I hoped he would appoint him. And President Bush did.

That is an example of rising above partisanship, rising above this picky, partisan process in the Senate, which denies an opportunity for me, as a Senator, to vote up or down. But it also denies the American people the accountability and responsibility they expect for their Senators.

Mr. CORNYN. Will the Senator yield for one other question?

Mr. ALLEN. Yes.

Mr. CORNYN. The Senator has characterized what he thinks is happening here in terms of these attacks on qualified nominees, such as Miguel Estrada. I just wish to ask the Senator this. We all know, in order to get to the Senate, we have to run for election; and I just ask the Senator what his reaction is, or whether he would include this in the category of petty partisan politics that he just described in terms of the way Miguel Estrada has been attacked.

Most recently, in a fundraising electronic newsletter to potential donors, the chairman of the Democratic Senatorial Campaign Committee, our colleague from New Jersey, recently acknowledged-he boasted that the current blockade of judicial nominees is "unprecedented." But the context in which he used that is to raise money for Democratic candidates to the Senate and the statement we are hearing on the floor regarding the figure 168 to 4, that they have only blocked 4. But at the same time we see they are using these unprecedented filibusters to block the highly qualified nominees of the President. Is that what you would characterize as a political use of this obstructionism of President Bush's nominees?

Mr. ALLEN. It is worse than that. I was not aware of that, I say to the Senator from Texas. That is more than just petty partisan politics. That is disgusting. This will lead to a continual downward spiral of our constitutional responsibilities.
You can say you are against a judicial nominee, but to use it to brag and to admit that it is unprecedented in an attempt to raise money-to me, that is the sort of retaliation and retribution that is a real loser, and not just to Republicans or Democrats; the real loser is the justice system of the United States, which has been the pinnacle of the protection of our liberties and freedoms under the Constitution, which was created and designed to protect our God-given rights.

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Mr. CORNYN. Mr. President, I have to give my colleague from New York credit. He is a determined, articulate advocate of his point of view. The problem is the facts just don't sustain that point of view. This has been refuted time and time again, but we see the same charts being trotted out time and time again that just are proven not true by the facts that we all know. I want to talk a little bit about those facts. I want to talk a little bit about what Democrats in the past have said about filibusters and their conviction that they should never occur and that they are, in fact, unconstitutional. In fact, those are the arguments we are making today, and we will use their own words to prove it.

My colleague from New York time and time again trots out a chart that claims that a number of judicial nominees have been filibustered by Republicans when in fact, those same nominees have been confirmed and are today sitting on the Federal court. How he can claim that what a Democrat minority is doing to Miguel Estrada or Priscilla Owen, Janice Brown, Carolyn Kuhl, Bill Pryor, and Charles Pickering is somehow the same thing Republicans did in the past is just disingenuous at best.

He claims that Stephen Breyer was filibustered. The last time I checked, Stephen Breyer sits on the U.S. Supreme Court. You go down his list, and, frankly, the chart is not worth the paper it is printed on.

Don't take my word for it. Listen to the words of Tom Daschle on January 30, 1995. The minority leader said:

The Constitution is straightforward about the few instances in which more than a majority of the Congress must vote: A veto override, a treaty, and a finding of guilt in an impeachment proceeding. Every other action by the Congress is taken by majority vote.

That is our position. They are denying those very words here today.

I just hope the American people are listening, even though the hour is early and even though we have been talking for a long time now.

My question is, should we believe you today or should we believe what you said in 1995, Senator Daschle, when you said, other than a veto override, a treaty, or a finding of guilt in an impeachment proceeding, every other action in Congress is taken by majority vote?

I believe he was correct then and because of the politics of the moment he is not correct today.

Senator Tom Harkin, in 1994, said:

I really believe that the filibuster rules are unconstitutional. I believe the Constitution sets out five times when you need majority or supermajority votes in the Senate for treaties, impeachment.

We could go down the list:

Lloyd Cutler, White House Counsel under President Carter and President Clinton; Senator Biden; Senator Boxer; Senator Feinstein; and Senator Kennedy. Senator Kennedy said: "Nominees deserve a vote." He is not saying that here today. He is voting to obstruct a vote where a bipartisan majority of the Senate stands ready to confirm these nominees. Senator Kennedy said: "Nominees deserve a vote. If our colleagues do not like them, vote against them."

I would prefer the Senator Kennedy of that era because I think he was right then. None of our colleagues on the other side of the aisle have made any explanation for why they have changed their position on what the Constitution means. But yet we have heard from Senator Allen and others that the characterization we are hearing from the other side about these fine judicial nominees is nothing more than politics.

The Senator from New Jersey, Mr. Corzine, in a moment of stark candor, had this to say. This was an e-mail he sent to prospective donors to the Democratic Senatorial Campaign Committee. He said:

Senate Democrats have launched an unprecedented effort.

How he could call it unprecedented if, in fact, as Senator Schumer and others have said, it hasn't happened in the past? Senator Corzine, I guess, is guilty of telling the truth here. He said:

Senate Democrats have launched an unprecedented effort by mounting filibusters against the Bush administration's most radical nominees. Senate Democrats have led the effort to save our courts.

Of course, we understand what is going on. This is about raising money. This is about stirring people up by throwing them some red meat. We all understand what is going on. The American people understand what is going on, that this is about politics. This is not about politics as usual, this is about politics at its worst.

The reason I say that is not because it is unusual for us to disagree in this body. In fact, that is one of the things I love about this body-that any Senator can stand up and talk about what they truly believe to be in the best interests of this country. We know many times there are disagreements. But then ultimately we have a vote because we believe in majority rule in this country. That, in fact, is what distinguishes this form of government from others-that sooner or later, after we have talked-and we have talked about some of these nominees for 2½ years or more-but sooner or later, we vote. Sooner or later, we vote. That is what democracy is about. That is not what is happening with regard to these filibusters, and it is wrong.

The thing that really concerns me-there are a lot of things that concern me about this process. I believe it is not simply in need of tinkering. I think the system is broken down completely and we need a fresh start.

Together, myself along with my colleagues who are new Members of this body who have been here now for just about a year, we sent a letter to the majority leader and the minority leader, the chairman and ranking member of the Judiciary Committee, and said: We are really not interested in this game of tit for tat or recrimination, pointing to the past and saying we were entitled to treat President Bush's nominees today badly because we believe you treated President Clinton's nominees badly. Frankly, I wasn't here then. I don't endorse treating any nominee badly. These are honorable men and women who have been chosen by the President to serve in positions of important public service, and they deserve to be treated better than the nominees we are talking about today have been treated. Perhaps there were excesses in the past. I regret that. Unfortunately, I wasn't here to do anything about it. But I am here today.

What I believe is that we need a fresh start. We need to agree among ourselves that what has happened in the past in terms of the way judicial nominees have been treated does not reflect credit on this institution, and the people we are talking about, people who have risen to the very top of the legal profession and who should be treated with honor, it is wrong to treat them as common criminals. It is wrong to treat them as a caricature of their true selves. It is wrong to call them names.
We can disagree with them. We can have a great debate. But ultimately, we need to treat them respectfully.

That doesn't mean a Senator has to vote for them. Every Senator has a clear right to vote their conscience-to vote up or down. That is really all we are asking for today and last night and for the remainder of this day, and as long as it takes to make clear that what is happening is wrong. It is unconstitutional, as Democrat leaders have said in the past-a fact which they have apparently forgotten, to put it charitably.

But I think the thing that really concerns me more than anything else-and as I have said, there is a lot to be concerned about-is the tactics used against some of these nominees, and the way they are treated after they have volunteered to offer their services to the American people on the bench.

We have seen charts that say 168 to 4. As we pointed out before, the real number, if we are being honest, should be zero to 4, zero being the number of filibusters against judicial nominees from 1789 to 2002. That is right. It never happened before-never in the history of the United States of America. It has never happened before, until this year. This year we have seen four filibusters. What has changed? Has the Constitution somehow changed? For those Senators who decried filibusters in the past and who now embrace them, what has changed to cause their change of opinion and change of view? I think we know what has happened.

That is why the number should be zero to 4-zero filibusters since 1789 until 2002 and 2004, in this last year, in an attempt to block President Bush's highly qualified nominees.

But as I was saying, where I come from we don't treat people as statistics. Where I come from, if you are going to attack someone and call them names, you at least give them a chance to meet with you and sit down and talk face to face. Yet obstructionists have time and time again refused to even meet with these nominees. Any Member of the Senate who would like to meet with these nominees and talk about their concerns and to see if they are justified, to listen to the response, has that right, and indeed every Senator has had that opportunity, but many have turned it down rather than take advantage of that opportunity and reach understandings and then vote.

We have even had this process sink to a new low when it comes to embracing the idea that a nominee's personal views on religious issues should play a role in determining whether or not they are fit to serve as a judge.

I strongly disagree with that concept, and I think all of us should reject it. I believe that when a nominee's personal theological beliefs become a legitimate course of debate before the judiciary and before the Senate, when we insert ourselves somehow between the relationship between an individual and their God, we violate both our conscience and our Constitution.

I have sensed in the Judiciary Committee that some of my colleagues are genuinely alarmed and uncomfortable when a nominee speaks about his or her faith in honest terms in the public arena. Indeed, it is so rare today where people feel free to talk about things that are most important to them.

I would like to read a comment that unnerves some of these folks, who are uncomfortable with such frank and honest discussions.

We are inspired by a faith that goes back through all the years to the first chapter of the Book of Genesis. God created man in his own image. We on our side are striving to be true to that divine heritage. We are fighting, as our fathers have fought, to uphold the doctrine that all men are equal in the eyes of God. There never has been, there never can be, a successful compromise between good and evil. Only total victory can reward the champions of tolerance and decency and freedom and faith.

This was not the comments or the testimony of a nominee to the Federal bench. These were the words of President Franklin Delano Roosevelt. I seriously doubt that anyone in this body at that time took President Roosevelt to task for speaking frankly and honestly about his deeply held personal religious beliefs. President Roosevelt was certainly within his rights to say that in 1942, and it is just as right and proper that our nominees today express their deeply held religious beliefs when they are talking about things that concern them in response to questions, whether it be about abortion or any other issue. I wonder today if, testifying before the Judiciary Committee, President Roosevelt himself would be challenged for these very remarks.

We have most recently witnessed the strident animus directed toward Judge Carolyn Kuhl and Attorney General Bill Pryor who have faced challenges over their religious beliefs, particularly concerning the matter of abortion. Both nominees have, from a legal scholar's point of view, criticized the legal analysis used to support the Roe v. Wade decision. These nominees personally hold beliefs that are absolutely consistent with their faith and the doctrine of their church. Their understanding of religion holds to the doctrine that abortion is wrong. Yet, still, the obstructionists have argued that for both of these nominees-and Bill Pryor, in particular, who is repeatedly challenged over his philosophy and deeply held views above all those arising from his religious beliefs, rendered them simply unqualified to be confirmed.

I would point out that these nominees are hardly alone in criticizing the Roe decision as a legal matter. Numerous legal scholars and jurists across the political spectrum who call themselves pro-choice and pro-life have publicly criticized the legal analysis in Roe, and indeed that is what lawyers do and judge us do. They parse words. They challenge an analysis to try to sharpen legal thinking. But Supreme Court Justice Ruth Bader Ginsberg, who was overwhelmingly approved by the Senate, has described Roe as "heavy-handed judicial intervention" that was "difficult to justify." Allan Dershowitz, a law professor from the Harvard Law School, described Roe as a "case of judicial activism more appropriately left to the political process." Edward Lazarus, former law clerk to Justice Blackmun, the author of Roe, said that "Roe borders on the indefensible as a decision and, at its worst, is disingenuous and results oriented."

I read these quotes not for any other reason except to show that there has been over time serious scholarly concern about the legal justification for that decision.

But perhaps more to the point, even though Attorney General Pryor and Judge Kuhl have criticized the reasoning of Roe, they recognize that Roe v. Wade is the law of the land. Indeed, one of the things I admire most about Attorney General Bill Pryor, as the Senator from Tennessee noted in his comments last evening, is that he has said: "No matter what my personal beliefs are, I believe in the morality of enforcing the law."

Indeed, I believe as a public servant, as attorney general, as a judge, it is the obligation of a judge to interpret the law as written, not as I would have it be. Indeed, some of the problem we have had is judges who have elevated their personal beliefs, their political agenda above the law. I submit that a judge who is a lawmaker is, in fact, a law breaker.

We understand in this country what was settled well over 200 years ago at the Constitutional Convention in Philadelphia; that is, we have three branches of Government. We have the Congress or legislative branch, which everyone understands. That is the reason we run for election, tell people what we believe, and then we are either accepted or rejected by the public because they believe that same way or not. But then we have a President, the executive branch, whose job it is to execute the law that Congress has written. Indeed, they are servants of the law as well because we recognize they, too, must comply with the law and that no President is above the law; that we are a nation of laws, not of men.

Then there is the judicial branch of Government. The Federalist Papers refer to the judicial branch as the "least dangerous branch." I wonder whether James Madison and Alexander Hamilton are spinning in their graves today when they see what the Federal judiciary has become in too many instances, where judges have assumed the role of lawmaker, something that was anathema to the Framers.

My point is simply this: People such as Priscilla Owen, with whom I served for 4 years on the Texas Supreme Court, understand that no matter what their personal beliefs are, when they put their hand on the Bible and they take an oath to uphold the law of their State and of the United States of America, they have a sacred obligation not to elevate their personal views above the law. Indeed, the judicial philosophy we should all embrace is that of a judge who interprets the law and not makes law.

As I said earlier, a judge who is a lawmaker is indeed a law breaker because they violate the fundamental commitment that all of us have made to enforce and uphold the law, including the Constitution that dictates those respective roles for the various branches of Government.

When I see people such as Priscilla Owen, who received 84 percent of the vote in her last election by the people of Texas and who has been twice selected to the Texas Supreme Court; when I see people such as Justice Janice Rogers Brown, who was supported by 76 percent of Californians in the last election in 1998, the highest of four justices on the ballot; these are not out-of-the-mainstream judges, unless words no longer have meaning.

I agree with Senator Santorum who has said, to many it appears that their definition of "mainstream" is extreme. But these are mainstream judges who have received the support of the people they currently serve, both in Texas and California, because they have faithfully interpreted the law. They have been true to their oath. They have been true to the Constitution.

We live in a pluralistic society. People across this country have a variety of different beliefs on a variety of different matters. Indeed, that is what makes this country so great and so strong because we believe everyone is entitled to believe as they wish, to speak and say what they want, but that ultimately we are all governed by the same rules: the rule of law.

It does my heart great sadness to see that people who have dedicated their life to upholding the law are treated so shabbily
in this, the world's greatest deliberative body, and that reputations that have been earned with a lifetime of public service are degraded and denigrated to the point that we would not recognize them; that their families, who listen to these unfair and, in some instances, scurrilous attacks, must certainly suffer when they hear the name calling and the unfair characterization of these good and decent human beings.

Just one example of this, perhaps, has taken us to a new low. This cartoon appeared in the Black Commentator on September 4, 2003. This was displayed at the hearing of Janice Rogers Brown before the Judiciary Committee, someone who currently serves on the California Supreme Court. I had the honor to introduce her to the committee because her two home State Senators refused to do so. But it was my honor to do so.

This is the kind of scurrilous, mean attack that is embraced by some who oppose these nominees. I know it is not necessarily easy to see, but this depicts a caricature of President Bush, a picture of Janice Rogers Brown in the most extreme sort of racial stereotype you can imagine, Justice Clarence Thomas, Secretary of State Colin Powell, and Condoleezza Rice, National Security Adviser to the President. The President is saying: "Welcome to the Federal bench, Ms. Clarence . . . I mean, Ms. Rogers Brown. You'll fit right in."

Our colleagues on the other side would do well to disavow this kind of support for the obstruction of these judicial nominees. Indeed, I would think every fairminded and decent human being would decry and denounce these sort of vial and loathsome tactics. We can disagree. We can have different points of view. Indeed, I think that is what makes this body so unique and so important. But we should agree to maintain a certain minimum level of civility in our discourse and, indeed, when there are those who inject this sort of scurrilous attack on President Bush's nominees, or anyone else for that matter, we ought to stand up and say: Unfair, unjustified, and we repudiate it.

Frankly, I have not heard the kinds of repudiation that I would expect for those who are joining in this obstruction against Janice Rogers Brown and denying her the right to a vote.

That is all we are asking for, an up-or-down vote.