[Congressional Record Volume 146, Number 138 (Saturday, October 28, 2000)]
[Senate]
[Pages S11314-S11315]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                UPCOMING ELECTION AND THE FEDERAL COURTS

  Mr. LEAHY. Mr. President, it is not often that the President of the 
United States, the editorial board of the Washington Times, People for 
the American Way and Gary Bauer all agree. They all do about the 
importance of the upcoming election to the rights of Americans in the 
decades ahead because of its impact on the third branch of the Federal 
Government, our federal judiciary.
  This first national election of this new century will give the 
American people a choice--a clear choice for President and for 
Congress. Also at stake is the third branch of our Federal Government, 
the judiciary. It is this branch of government, headed by the Supreme 
Court, that is the guardian of our rights under the Constitution.
  The next President is likely to nominate not only the next Justice on 
the United States Supreme Court, but possibly as many as four of the 
nine members of the Supreme Court over the course of his term. The next 
Senate will be called upon to vote to confirm or reject the President's 
nominations to the Supreme Court and the federal courts throughout the 
country.
  These are the judges who can give meaning to the Bill of Rights in 
cases they decide every day or who can take away our rights and the 
authority of our elected representatives and impose their own narrow 
view of our Constitution. The rights of free speech, to practice any 
religion or no religion as we choose, the right to be treated equally 
by the government, the right to privacy and a woman's right to choose 
are fundamental rights that require constant vigilance and protection. 
This new century will pose challenges to our fundamental rights. Will 
we have a President and a Senate who will combine to provide judges to 
protect those rights, or ideologues who will erode them?
  Nothing is more sharply at stake this November than the future of our 
constitutional rights.
  Five-to-four--five-to-four is how closely the Supreme Court is now 
dividing on fundamental issues. One or two votes on the Supreme Court 
can, for the next half century, tip the balance away from the right to 
choose,

[[Page S11315]]

away from rights of privacy, away from equal rights and toward 
government establishment of religion and government orthodoxy over free 
expression. One or two votes could make it much harder to protect the 
environment or pass meaningful campaign finance reform.
  This last year by a five-to-four majority the Supreme Court held that 
a rape victim can bring no claim in federal court and that Congress was 
wrong to provide that remedy in the Violence Against Women Act. By 
five-to-four majorities the Supreme Court held that state employees 
have no rights to be paid for overtime work and have no protection from 
age discrimination, in spite of the laws passed by Congress. What will 
this mean for other laws prohibiting discrimination in the workplace, 
regulating wages and hours and health and providing safety standards 
for working Americans? And by a mere five-to-four vote, the Supreme 
Court decided that a Nebraska law imposed an undue burden on a woman's 
right to choose when it sought to prohibit medical procedures by vague 
language and without regard to the health of the woman.
  I am confident that Al Gore and Joe Lieberman will nominate women and 
men who understand the proper role of judges as protectors of our 
rights and the proper limits on judicial power. On Tuesday evening the 
President of the United States spoke about the importance of the 
election to the Supreme Court, to the federal courts generally, to our 
rights and to the distribution of power in our country. The President 
noted that ``the American people will make a decision in this election 
which will shape the Supreme Court and the other federal courts, and 
the range of liberty and privacy, and the range of acceptable national 
action for years to come'' and that ``whether we have a new form of 
ultra-conservative judicial activism that rejects the government's 
authority to protect the rights of our citizens and interests of our 
citizens'' is at stake in the November election. As the President 
explained:

       Now we're just a vote or two away from reversing Roe v. 
     Wade in the United States Supreme Court, and I think it's 
     inevitable that the next President will have two appointments 
     to the Supreme Court, could be more. Beyond that, as I 
     intimated in my opening remarks, there has already been a 
     majority in this Court for restricting the ability of 
     Congress, even a bipartisan majority in Congress, to get the 
     states to help implement public interest legislation that 
     protects people.

  There is much at state in the next election and in the appointment of 
our Supreme Court Justices and other federal judges. In June, the 
People for the American Way Foundation published an extensive report 
called ``Courting Disaster: How a Scalia-Thomas Supreme Court Would 
Endanger Our Rights and Freedoms'' that considered the future makeup of 
the Supreme Court and its likely effects on our fundamental rights. In 
his message accompanying that report, Ralph Neas observed:

       The United States Supreme Court is just one or two new 
     Justices away from curtailing or abolishing fundamental 
     rights that millions of Americans take for granted.

  The Washington Times lead editorial on Thursday noted pointedly:

       Before the Supreme Court could overturn Roe vs. Wade, it 
     would take the appointment of two pro-life justices to 
     replace two pro-choice jurists--and their successful 
     confirmation in what would undoubtedly be among the most 
     explosive battles in U.S. Senate history.

  Mr. Bauer made much the same point in a recent appearance on NBC's 
Today Show, in which he said: ``I think if Governor Bush gets to put a 
couple of justices on the court, we will be more likely to protect our 
unborn children under the Constitution.''
  The Republican party platform talks of ideological litmus tests for 
judges and the end of a woman's right to choose. The Republican 
candidate for President says that his models for judicial nominees are 
the most conservative current Justices, Antonin Scalia and Clarence 
Thomas. If they formed the majority in the years ahead, our rights 
would be greatly diminished, protections approved by Congress would be 
routinely invalidated and our Constitution would be harshly 
reinterpreted.
  While the other party's platform is filled with calls for rewriting 
the Constitution, we Democrats seek to preserve the Constitution and 
protect our fundamental rights as the guaranties of our freedoms. While 
the Republican Senate has delayed and dissembled over judicial 
nominations during the last six years--to the point that the Chief 
Justice of the United States chastised them for refusing to vote up or 
down--Vice President Gore, Senator Daschle and I have pressed for 
action on outstanding judicial nominees, including historic levels of 
women and minorities.
  While Republican Senators all voted lockstep against the confirmation 
of the first African-American Justice on the Missouri Supreme Court to 
become a federal judge, Democrats voted for Ronnie White of Missouri, 
for Richard Paez and Marsha Berzon of California, for Sonia Sotomayor 
of New York, for Julio Fuentes of New Jersey, and for Barbara Lynn and 
Hilda Tagle of Texas.
  While the Republican leadership of the Congress sought to intimidate 
federal judges, Vice President Gore and Democrats have been working for 
fair up or down votes on the nominations of qualified women and 
minorities such as Enrique Moreno of Texas, Judge James Wynn of North 
Carolina, Roger Gregory of Virginia, Judge Helene White and Kathleen 
McCree Lewis of Michigan, Judge Legrome Davis of Philadelphia, Dolly 
Gee of California, and Rhonda Fields of the District of Columbia.
  While the Republican candidate for President made a fine statement in 
which he called for votes on judicial nominations within 60 days, he 
has not prevailed upon the Senate Republican majority to treat nominees 
fairly now. Instead of 60 days, we see Judge Helene White's nomination 
to the Sixth Circuit pending more than 1400 days; Elena Kagan, U.S. 
Court of Appeals for the District of Columbia, pending 500 days; Judge 
James Wynn, U.S. Court of Appeals for the Fourth Circuit, pending more 
than 440 days; Kathleen McCree Lewis, U.S. Court of Appeals for the 
Sixth Circuit, pending more than 400 days; Enrique Moreno, U.S. Court 
of Appeals for the Fifth Circuit, pending more than 400 days; Bonnie 
Campbell, U.S. Court of Appeals for the Eighth Circuit, pending more 
than 240 days; Roger Gregory, U.S. Court of Appeals for the Fourth 
Circuit, pending more than 115 days; Lynette Norton, U.S. District 
Court for the Western District of Pennsylvania, pending more than 1300 
days; Judge Legrome Davis, U.S. District Court for the Eastern District 
of Pennsylvania, pending more than 800 days; Patricia Coan, U.S. 
District Court for the District of Colorado, pending more than 500 
days; Dolly Gee, U.S. District Court for the Central District of 
California, pending more than 500 days; Rhonda Fields, U.S. District 
Court for the District of Columbia, pending more than 350 days; Linda 
Riegle, U.S. District Court for the District of Nevada, pending more 
than 180 days; Ricardo Morado, U.S. District Court for the Southern 
District of Texas, pending more than 165 days. The Senate is adjourning 
leaving 33 judicial nominees whose nominations have been pending 
without Senate action for more than 60 days.
  And while the Republican majority in the Senate refused for over 
three years to vote up or down on the confirmation of Bill Lann Lee to 
head the Civil Rights Division, this outstanding American continued to 
do his job on behalf of all Americans. With Vice President Gore's 
support, this Senate slight has finally been made right by the recess 
appointment of the first Asian-Pacific American to lead the Civil 
Rights Division.
  The election next month presents a clear choice. The choice the 
American people make will determine what kind of judges sit on the 
Supreme Court and on federal courts all across the country. Those 
elected by the American people in November will select the judicial 
guardians of our liberties and the enforcers of our constitutional 
protections next year and in the decades to come. The future for our 
children and grandchildren hangs in the balance. I am proud that to 
support Al Gore and Joe Lieberman. They will nominate judges who 
understand the Constitution and the Bill of Rights.

                          ____________________