[Congressional Record Volume 141, Number 103 (Thursday, June 22, 1995)]
[Senate]
[Pages S8854-S8855]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   THE NOMINATION OF DR. HENRY FOSTER

  Mr. COHEN. Mr. President, I would like to offer a few comments on the 
nomination of Dr. Foster to be Surgeon General. We are going to have 
further debate this afternoon. We are going to have one more rollcall 
vote in terms of whether or not the proceedings should come to a close 
and a vote take place on Dr. Foster.
  I must say that this is one of those issues which has really 
galvanized the American people, those who are interested in this issue. 
We have letters and calls pouring into our offices from those who are 
strongly in favor, and those who are equally determined to oppose his 
nomination. The rhetoric is hot. It is, in fact, intemperate. I think 
the passion of the letters finds its voice right here in the U.S. 
Senate. That voice, at times, is angry, raw, and even ugly.
  Mr. President, the charge has been made that we are sacrificing Dr. 
Foster on the altar of right-wing radicalism. I must say that there 
have been a number of good and decent people who have found their 
integrity and character shredded on the altar of left-wing liberalism. 
That is one of the problems that I see taking place in this Chamber and 
elsewhere. There seems to be a double standard on display, what we 
might call a case of situational ethics.
  What comes to mind is the debate that took place when Ronald Reagan, 
for example, nominated Robert Bork to be a member of the Supreme Court. 
I recall that debate very well. Judge Bork's writings were plucked from 
the past. Those writings were provocative. He was, in fact, a 
provocative professor who challenged conventional wisdom. He disagreed 
with the rationale that was found and articulated in Roe versus Wade. 
He found no right of privacy lurking or hidden in the penumbra of the 
Constitution.
  What took place with Bob Bork is that he was demonized. It was 
charged that he would take us back to the boneyard of conservatism, to 
the dark ages, maybe even to hell itself. I say that by virtue of a 
photograph that I remember that was on the cover of Time magazine.
  It was a portrait, a photograph, of Robert Bork with his judicial 
robes on looking much like a cape. Of course, he had the beard. There 
was a red glow to the entire cover. And one could almost see the hint 
of horns emerging from the top of his head. One would have thought that 
Mephistopheles himself was about to be appointed to the Court, would 
corrupt the Court, would rip up the Constitution and shred our rights 
of privacy.
  I might point out, sometime thereafter Judge Ruth Bader Ginsburg, who 
actually was endorsed by Robert Bork, also found fault with the Court's 
reasoning in Roe v. Wade. She said the Court had reached the right 
result but for the wrong reason. Yet we did not hear much criticism 
coming from the left, the liberal element in our society, at that time.
  I mention that because I think we are reaching a point in the 
confirmation process in which it is going to be very difficult to have 
good and decent people willing to step forward and subject themselves 
to the confirmation process. My own friend, John Tower --I think what 
took place in this Chamber against John Tower was a disgrace. I saw a 
good man who had his character shredded by allegations and innuendo and 
false charges. He was so bloodied up that the critics said, ``He has 
been too damaged to be a successful Secretary of Defense. President 
Bush, why don't you just cut him down from that tree that he is 
swinging from and take him back to Texas?'' So we saw another challenge 
to an individual which I felt was unwarranted.
  How many Republican nominees were rejected because of membership at 
all-white clubs? It did not matter that they were not racist. It did 
not matter that they had employed blacks or Hispanics or other 
minorities in their businesses or even in their homes. If they were 
members or had memberships in an all-white club, that was enough to 
bring down their nomination.
  The same rule, however, was not applied when it came to people like 
Webster Hubbell, who also belonged to an [[Page S 8855]] all-white club 
at that particular point. But we had a different standard imposed.
  So I suggest we have to get away from this double standard that when 
those who raise questions about someone's nomination by virtue of their 
difference of philosophy, that we not charge it is based upon right-
wing radicalism any more than it is based on left-wing radicalism. We 
have to put a stop to this situation. We have to remember that Bill 
Clinton won the election. He is the President of the United States. It 
is my own judgment he is entitled to the nominees of his choice.
  We may disagree with those nominees, but every time we disagree with 
Bill Clinton's philosophy, President Clinton's philosophy, or that of 
the individuals he nominates, we should not then, by virtue of our 
disagreement with their ideology or practice, turn it into a character 
issue and then begin an all-out assault on character.
  We obviously have a duty to challenge philosophy and policies when 
they are fundamentally in conflict with our own. But we also have to 
deal fairly with these individuals. We have to remember, also, the 
axiom that bad appointments make bad politics. The President of the 
United States, when he makes an appointment, is held accountable for 
that individual's record, that individual's character, that 
individual's performance. And, barring evidence of incompetence as far 
as technical qualifications are concerned, professional qualifications, 
barring clear and convincing evidence of moral deficiencies that would 
prevent that person from occupying that position, I think we have an 
obligation to confirm the President's nominees.
  What we have to stop in this system is, really, shredding the 
character of the individuals who come before the body for confirmation. 
If we disagree philosophically, let us be very up front about it and 
base it on that. What I see taking place is something of a variation of 
what Senator Moynihan of New York talked about in his brilliant piece a 
couple of years ago, called ``Defining Deviancy Down.'' What he was 
talking about at that time was events that took place in the 1920's or 
1930's, some decades ago, that we would look at and say, ``What a 
horrible thing that was.'' The Saint Valentine's Day massacre was one 
he pointed to. There were, as I recall, seven people involved in that. 
Four were killed by three others, or vice versa. That incident made 
worldwide news. It has gone in the history books. Today, it is likely 
that might not appear in bold headlines in the Metro section of the New 
York Times or the Post or elsewhere.
  We have seen so much violence spread in our society we have become 
inoculated against it, almost. We have been immunized against a sense 
of outrage about the level of deviancy because we defined it down.
  It seems to me we have to also talk about defining civility down. We 
have, I think, lost some of our moorings. We now resort not only to 
challenges of philosophy but to challenges of character. In doing so, I 
think we have lowered the standard for civil debate and discourse in 
this country.
  The anger we see outside of these Chambers is being reflected inside 
the Chambers. We do not want to tolerate or promote barbarism outside 
the gates. We do not want to promote it inside the gates. I think what 
we have to do is lower the rhetoric and the charges and the 
countercharges about who is sacrificing whom on which altar and stop 
imposing double standards and situational ethics and come back to what 
I believe to be the correct standard. Either we find Dr. Foster to be 
medically, professionally unqualified to serve in this position, or we 
find him to be so morally bankrupt that it would be a discredit and an 
injustice to have him serve in that position.
  Frankly, I do not find that we have measured up to that burden of 
proof. I believe Dr. Foster is a good and decent man. I believe 
President Clinton is entitled to have his nominee confirmed, even 
though we might disagree or I might disagree with his particular views 
or practice. Nonetheless, that is not the test that should be imposed. 
The test should be, Is he professionally qualified and does he have a 
moral character to serve in that position?
  There are those on this side who believe fundamentally he has 
misrepresented the number of abortions that he performed during the 
course of a long practice. That is, perhaps, a legitimate issue to be 
raised. But I do not think we ought to be engaged in savaging each 
other, in attacking each others' motives. This is a serious issue and 
is one that ought to be debated in that fashion without resorting to a 
lot of hurtling of invective.
  Mr. President, I hope my colleagues will in fact allow a 
consideration of Dr. Foster on the merits. That was in fact allowed for 
Judge Bork. He was defeated. It was allowed for Senator Tower, whose 
nomination was also defeated, and others whose names never really made 
it to the floor by virtue of their membership in what were described as 
racist clubs or organizations.
  My hope is that we can return to a level of civil discourse in this 
society of ours, rather than the shouting and the anger that we see 
being displayed from day to day, and really try to deal with these 
issues on the merits.
  I think Dr. Foster is entitled to have his name considered on the 
merits. We hope there will be enough Members who will vote to terminate 
any attempt to filibuster his nomination.
  Seeing the hour of 11:30 is about to be reached, I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________