[Congressional Record Volume 149, Number 33 (Monday, March 3, 2003)]
[Senate]
[Pages S3005-S3014]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                            Social Security

  Let me talk about our friend, Alan Greenspan, the Chairman of the 
Federal Reserve. He came out last week and suggested Congress consider 
switching to an inflation measurement that would trim billions of 
dollars from all cost-of-living adjustments provided to the 46 million 
Social Security recipients.
  He said:

       Lawmakers should consider trimming the benefits, raising 
     the retirement age, or other ideas before raising the payroll 
     tax.

  Chairman Greenspan also debunked the idea advanced by some 
conservatives that faster economic growth alone would be able to deal 
with the shortfalls in the Government's two biggest benefits.
  He finally came out against this so-called voodoo or economic growth. 
The buzzword is growth. It is cut the taxes to grow the economy. We can 
only go back to what Mr. Greenspan said in 1983 in his annual report 
from the National Commission on Social Security Reform, section 21. I 
ask unanimous consent to print that section of the report in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Report of the National Commission on Social Security Reform--January 
                                  1983


                 social security and the unified budget

       (21) A majority of the members of the National Commission 
     recommends that the operations of the OASI, DI, HI, and SMI 
     Trust Funds should be removed from the unified budget. Some 
     of those who do not support this recommendation believe that 
     the situation would be adequately handled if the operations 
     of the Social Security program were displayed within the 
     present unified Federal budget as a separate budget function, 
     apart from other income security programs.
       Before fiscal year 1969, the operations of the Social 
     Security trust funds were not included in the unified budget 
     of the Federal Government, although they were made available 
     publicly and were combined, for purposes of economic 
     analysis, with the administrative budget in special summary 
     tables included in the annual budget document. Beginning 
     then, the operations of the Social Security trust funds were 
     included in the unified budget. In 1974, Congress implicitly 
     approved the use of a unified budget by including Social 
     Security trust fund operations in the annual budget process. 
     Thus, in years when trust-fund income exceeded outgo, the 
     result was a decrease in any general budget deficit that 
     otherwise would have been shown--and vice versa.
       The National Commission believes that changes in the Social 
     Security program should be made only for programmatic 
     reasons, and not for purposes of balancing the budget. Those 
     who support the removal of the operations of the trust funds 
     from the budget believe that this policy of making changes 
     only for programmatic reasons would be more likely to be 
     carried out if the Social Security program were not in the 
     unified budget. Some members also believe that such a 
     procedure will make clear the effect and presence of any 
     payments from the General Fund of the Treasury to the Social 
     Security program. (Under present procedures, such payments 
     are a ``wash'' and do not affect the overall budget deficit 
     or surplus.)
       Those who oppose this recommendation believe that it is 
     essential that the operations of the Social Security program 
     should remain in the unified Federal budget because the 
     program involves such a large proportion of all Federal 
     outlays. Thus, to omit its operations would misrepresent the 
     activities of the Federal Government and their economic 
     impact. Furthermore, it is important to ensure that the 
     financial condition of the Social Security program be 
     constantly visible to the Congress and the public. 
     Highlighting the operations of the Social Security program as 
     a separate line function in the budget would allow its impact 
     thereon to be seen more clearly.

  Mr. HOLLINGS. Mr. President, section 21 said to put Social Security 
off budget in trust, not to be expended on anything other than Social 
Security. We spend Social Security trust funds on any and everything 
but Social Security. Has Mr. Greenspan thought of that solution: Just 
do not spend the Social Security taxes on every endeavor that we could 
possibly imagine but Social Security?
  I had a dickens of a time trying to get that written into law. It 
took me 7 years, and finally on November 5, 1990, George Walker Herbert 
Bush signed into law section 13301 of the Budget Act. It is the law of 
the land: You shall not report from the Congress or the President a 
budget including Social Security. But we do, and Alan Greenspan started 
that nonsense back in the eighties because he wanted to cover taking 
those moneys to go along with what Vice President Bush at that 
particular time called voodoo.
  Let me get up to voodoo 2 because we ought to understand, when this 
recession in the economy started. I am not an economist, but I am a 
politician. I have been chairman of the Budget Committee. I have worked 
with Alan Greenspan. I went over in 1980, right after the elections, to 
brief President-elect Reagan on the budget. We walked in the snow over 
to the Blair House. I will never forget it. President Reagan said he 
was going to balance the budget in 1 year, and after the briefing he 
said: Oops, I never realized how bad it was. It is going to take me 3 
years. That is when we went from 1-year budgets to 3 years, and then 
under Gramm-Rudman-Hollings we went to 5 years, and later under Vice 
President Bush we went to 10 years. I suggest for this irresponsible 
Congress, let's go to 20. You can project anything and just keep on 
spending because that is exactly what we are doing.
  But let's jump back to September of the year 2000 when Governor Bush, 
now President Bush, was running. He said he was going to cut taxes. I 
knew how we had just gotten the best 8 years of economic growth in the 
history of the United States: with an increase in taxes. We were on the 
tail end of our recovery. We still had a deficit. We were trying to 
work toward a balanced budget, and I will give my colleagues the facts 
and figures.
  The point is, when he talked about cutting taxes, I thought, oh, 
heavens, we can't start that again; we are just getting back into the 
black. We had not gotten into the black in September 2000 nor in 
November, the Friday after the Tuesday election, when Vice President 
nominee Cheney, our good friend, said: Yes, that is exactly what we are 
going to do--cut taxes. When Vice President Cheney made that statement, 
go back and look at the market in October, November, December, and into 
January.
  The Republicans are trying to say the recession started in March 
2000. No, it started in the fall of 2000 because of this tax cut idea 
and running up these enormous deficits and running up the interest 
costs and the borrowing.
  So what happened was, on January 25, Alan Greenspan appeared before 
the Budget Committee. What did the gentleman say? We were paying off 
too much debt. When he said we were paying off too much debt, that was 
right, title, and interest to this young new President, George W. Bush, 
coming into office for him to spend up to the ceiling. On February 27, 
I'll be darned if he didn't do just that. The new President came before 
the Senate in a joint session on February 27 and said: Here is my 
budget. I have $2.6 trillion to protect Social Security. I have $2 
trillion for domestic and defense programs, and that leaves another $1 
trillion for unforeseen circumstances.
  We had an unforeseen circumstances on September 11, later that year, 
but let's go down now and find out when this recession started and when 
we were really in the black and in the red. I have here the public debt 
to the penny as reported by the Secretary of the Treasury. The latest 
we have--February 27, 2003--is $218 billion. That is this fiscal year--
including September, October, November, December, January, and 
February, we got this country another $218 billion in debt.
  I ask unanimous consent to have this printed in the Record.

[[Page S3006]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                          The debt to the penny
 
                                                         Amount
 
Current:
    2/27/2003................................      $6,446,165,774,125.26
Current month:
    2/26/2003................................       6,445,970,533,267.53
    2/25/2003................................       6,446,004,668,324.03
    2/24/2003................................       6,446,038,803,864.15
    2/21/2003................................       6,446,140,296,660.54
    2/20/2003................................       6,446,175,354,465.78
    2/19/2003................................       6,442,718,474,145.91
    2/18/2003................................       6,437,926,287,364.49
    2/14/2003................................       6,414,086,191,317.72
    2/13/2003................................       6,414,860,990,193.10
    2/12/2003................................       6,400,775,460,992.07
    2/11/2003................................       6,403,775,445,922.86
    2/10/2003................................       6,400,363,175,585.80
    2/7/2003.................................       6,398,607,223,793.01
    2/6/2003.................................       6,401,330,573,005.21
    2/5/2003.................................       6,387,332,567,273.92
    2/4/2003.................................       6,388,239,504,295.45
    2/3/2003.................................       6,379,432,578,400.38
Prior months:
    1/31/2003................................       6,401,376,662,047.32
    12/31/2002...............................       6,405,707,456,847.53
    11/29/2002...............................       6,343,460,146,781.79
    10/31/2002...............................       6,282,527,974,378.50
Prior fiscal years:
    9/30/2002................................       6,228,235,965,597.16
    9/28/2001................................       5,807,463,412,200.06
    9/29/2000................................       5,674,178,209,886.86
    9/30/1999................................       5,656,270,901,615.43
    9/30/1998................................       5,526,193,008,897.62
    9/30/1997................................       5,413,146,011,397.34
    9/30/1996................................       5,224,810,939,135.73
    9/29/1995................................       4,973,982,900,709.39
    9/30/1994................................       4,692,749,910,013.32
    9/30/1993................................       4,411,488,883,139.38
    9/30/1992................................       4,064,620,655,521.66
    9/30/1991................................       3,665,303,351,697.03
    9/28/1990................................       3,233,313,451,777.25
    9/29/1989................................       2,857,430,960,187.32
    9/30/1988................................       2,602,337,712,041.16
    9/30/1987................................       2,350,276,890,953.00
 


                                                         THE DEBT TO THE PENNY AND WHO HOLDS IT
                                                [Debt held by the public vs. intragovernmental holdings]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Debt held by the public     Intragovernmental holdings               Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current:
    02/27/2003................................................         $3,683,531,753,393.98         $2,762,634,020,731.28         $6,446,165,774,125.26
Current month:
    02/26/2003................................................          3,681,995,211,660.54          2,763,975,321,606.99          6,445,970,533,267.53
    02/25/2003................................................          3,680,546,956,577.64          2,765,457,711,746.39          6,446,004,668,324.03
    02/24/2003................................................          3,683,950,348,867.13          2,762,088,454,997.02          6,446,038,803,864.15
    02/21/2003................................................          3,684,518,370,236.10          2,761,621,926,424.44          6,446,140,296,660.54
    02/20/2003................................................          3,684,115,204,633.82          2,762,060,149,831.96          6,446,175,354,465.78
    02/19/2003................................................          3,681,097,230,200.83          2,761,621,243,945.08          6,442,718,474,145.91
    02/18/2003................................................          3,680,397,155,161.57          2,757,529,132,202.92          6,437,926,287,364.49
    02/14/2003................................................          3,662,059,553,599.40          2,752,026,637,718.32          6,414,086,191,317.72
    02/13/2003................................................          3,661,984,456,977.19          2,752,876,533,215.91          6,414,860,990,193.10
    02/12/2003................................................          3,648,984,143,809.81          2,751,791,317,182.26          6,400,775,460,992.07
    02/11/2003................................................          3,649,088,081,850.16          2,754,687,364,072.70          6,403,775,445,922.86
    02/10/2003................................................          3,648,737,478,114.74          2,751,625,697,471.06          6,400,363,175,585.80
    02/07/2003................................................          3,648,857,135,353.53          2,749,750,088,439.48          6,398,607,223,793.01
    02/06/2003................................................          3,648,874,717,654.07          2,752,455,855,351.14          6,401,330,573,005.21
    02/05/2003................................................          3,636,289,414,701.92          2,751,043,152,572.00          6,387,332,567,273.92
    02/04/2003................................................          3,635,972,465,674.76          2,752,267,038,620.69          6,388,239,504,295.45
    02/03/2003................................................          3,635,739,981,303.79          2,743,692,597,096.59          6,379,432,578,400.38
Prior months:
    01/31/2003................................................          3,636,978,106,813.83          2,764,398,555,233.49          6,401,376,662,047.32
    12/31/2002................................................          3,647,939,770,383.73          2,757,767,686,463.80          6,405,707,456,847.53
    11/29/2002................................................          3,649,352,539,575.36          2,694,107,607,206.43          6,343,460,146,781.79
    10/31/2002................................................          3,586,523,556,148.57          2,696,004,418,229.93          6,282,527,974,378.50
Prior fiscal years:
    09/30/2002................................................          3,553,180,247,874.74          2,675,055,717,722.42          6,228,235,965,597.16
    09/28/2001................................................          3,339,310,176,094.74          2,468,153,236,105.32          5,807,463,412,200.06
    09/29/2000................................................          3,405,303,490,221.20          2,268,874,719,665.66          5,674,178,209,886.86
    09/30/1999................................................          3,636,104,594,501.81          2,020,166,307,131.62          5,656,270,901,633.43
    09/30/1998................................................          3,733,864,472,163.53          1,792,328,536,734.09          5,526,193,008,897.62
    09/30/1997................................................          3,789,667,546,849.60          1,623,478,464,547.74          5,413,146,011,397.34
--------------------------------------------------------------------------------------------------------------------------------------------------------

  Mr. HOLLINGS. Mr. President, on January 25, 2001, when Chairman 
Greenspan spoke, we were $65 billion in the red according to the 
Secretary of the Treasury. On February 27, 2001, when the distinguished 
new President gave his speech before the Senate--we were $53 billion in 
the red.
  On April 15, 2001, taxpaying day, we were $94 billion in the red. We 
had collected all that income tax on April 15 and on April 30, 2001, 
according to the Secretary of the Treasury, we had a surplus. And 
remember, they had been babbling all during the Christmas holidays and 
January and February of $5.6 trillion in surplus money, that we are 
paying off too much debt. There was all kinds of surplus talk.
  Let's go to May 1, 2001. We were $23 billion in the black. On June 1, 
we were $4 billion in the black. But on June 7, the President signed 
the $1.5 trillion tax cut, voodoo 2--we had voodoo 1, so he gave us 
voodoo 2. And what happened? What happened after June 7? By June 28, we 
were $52 billion in the red, and on September 10, one day before the 
tragic September 11, we were $99 billion in the red. We only had 20 
more days of that fiscal year. If you go into their lingo, their little 
song and dance routine, they are trying to say they inherited a 
recession--they did not cause it, but they inherited a recession. They 
tell you we had corporate corruption, and we had 9/11, and on and on, 
and everybody is beginning to believe it. They have said it again and 
again.
  The truth is, as I've illustrated with these numbers, George Bush 
caused this economic downturn, and it is going to stay in a downturn 
with his newest tax cutting scheme, voodoo 3. Whoever heard of cutting 
taxes on the dividends, the marriage penalty, and all of these other 
things they have been coming up with and saying it is going to 
stimulate the economy? They know there is enough stimulus. They are 
under subterfuge, hiding, camouflaging tax reform under the auspices of 
a stimulus. The truth is, on September 30 last year, we ended up $428 
billion in the red. President Bush, by his own budget, without the 
costs in Iraq, has already projected a $554 billion deficit this year, 
and his budget proposal for next year is $569 billion in the red. That 
is $1.5 trillion that we have not paid for, that we are infusing as a 
stimulus to the economy. We know we have to get ourselves on track as 
quickly as we possibly can.
  I ask unanimous consent that section 13301 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      Subtitle C--Social Security

     SEC. 13301. OFF-BUDGET STATUS OF OASDI TRUST FUNDS.

       (a) Exclusion of Social Security From All Budgets.--
     Notwithstanding any other provision of law, the receipts and 
     disbursements of the Federal Old-Age and Survivors Insurance 
     Trust Fund and the Federal Disability Insurance Trust Fund 
     shall not be counted as new budget authority, outlays, 
     receipts, or deficit or surplus for purposes of--
       (1) the budget of the United States government as submitted 
     by the President,
       (2) the congressional budget, or
       (3) the Balanced Budget and Emergency Deficit Control Act 
     of 1985.
       (b) Exclusion of Social Security From Congressional 
     Budget.--Section 301(a) of the Congressional Budget Act of 
     1974 is amended by adding at the end the following: ``The 
     concurrent resolution shall not include the outlays and 
     revenue totals of the old age, survivors, and disability 
     insurance program established under title II of the Social 
     Security Act or the related provisions of the Internal 
     Revenue Code of 1986 in the surplus or deficit totals 
     required by this subsection or in

                           *   *   *   *   *

  We said it is the law now we are not supposed to use Social Security, 
and they continue to do so. What we really have, in essence, is Enron 
accounting.

[[Page S3007]]

Why do I call it Enron accounting? Well, turn to page 1 of the budget. 
We will find on page 1 the Bush Administration saying they firmly 
believes in controlling the deficit and reducing it as the economy 
strengthens and our national security interests are met. They go on to 
say that compared to the overall Federal budget and the $10.5 trillion 
national economy, the budget gap is small by historical standards.
  What did Kenny boy Lay do? The same thing. On page 1, he made his 
stockholders feel good, by saying the company and the corporation are 
doing fine.
  What is the Bush Administration doing? Trying to make all the 
taxpayers feel good by saying this deficit is small on page one.
  But if we turn to page 332 in the Historical Tables, we will see the 
overall deficit is $554 billion--not what they had, $159 billion on 
page 1. It is actually $554 billion. So rather than a deficit of 2.7 
percent of the GDP, it is 5 percent. In fact, it is 5.2 percent to be 
accurate.
  If they are trying to talk in historical terms, let's talk--we are 
complaining about everybody in Europe, and we are saying in Europe the 
trouble with those folks is they are not being responsible. I say to 
the Senator from Vermont, on page 117 of the same budget tables, we 
find out that the debt is 64.8 percent of the GDP.
  Under the Maastricht Treaty, one cannot be a member of the European 
Community unless their annual deficit is less than 3 percent. Ours is 
up to 5 percent. They can be subject to fines if their debt exceeds 60 
percent of the GDP. But by the Bush Administration's own facts and 
figures ours is 64.8 percent. We could not even become members of the 
European Community, but we are running around criticizing them about 
not doing this and not doing that.
  Let me say about the French--I fought under the French, and they were 
brave in World War II. Do not give me this stuff. They had a heyday 
with the PR thing on the weekend shows about the French, that we do not 
care, we will go in any way. But the main thing is to realize that we 
have worked ourselves into a situation, as Senator Dorgan says, where 
it does not make sense to produce in the United States of America.
  As politicians, Republican and Democrat, we say: Before you open up a 
manufacturing company you have to have a minimum wage, clean air, clean 
water, Social Security, Medicare, Medicaid, safe working place, safe 
machinery, plant closing notice, parental leave. Or you can go to China 
and open your plant their for wages of 58 cents an hour, and there is 
none of that.
  I asked a high-tech friend of mine on the west coast, when he was 
expanding, to give us a chance and come back to South Carolina. He said 
he does not produce anywhere in the United States. He said he produces 
in China for 10 percent of what it would cost in California.
  That is the whole situation. The Secretary of Commerce has the duty 
of listing 500 critical items to our national security. Senator, we 
have a $5 billion deficit in the balance of trade in those critical 
items. We will not be able to go to war the next time because we are 
not producing. We will have to call other nations up and ask them to 
please send the goods to us so we can gear up and get ready to go to 
war.
  If my friends want to stimulate the economy, let's give $30 billion 
back to the States. We passed Leave No Child Behind, but we left the 
money behind. The States are really strained paying educational 
budgets. We passed the Disabilities Act, but we have never funded it. 
Now we have homeland security, the first responders. I fought like the 
dickens to get the seaport security bill funded for a whole year. I got 
the authorization, but I could not get the money.
  The States need it back at the ports, they need it back at the public 
schools. They need the money. While we think we will stimulate the 
economy to create jobs, they are doing everything to downsize, fire, 
let the teachers go, and creating unemployment as fast as we are trying 
to create employment.
  The best stimulus, money that will have to be spent one way or the 
other, is $30 billion back to the Governors. That is not partisan 
because the majority of the Governors are Republican. I am trying to 
help reelect those Republican Governors.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Alabama is 
recognized under the previous order.
  Mr. SESSIONS. I appreciate the comments of Senator Hollings, and I 
understand clearly, and I am glad he speaks with no accent, which I 
appreciate.
  He has always been very rigorous on this issue. I appreciate that. We 
need to watch spending around here and need to watch it in all areas. 
Of course, the amount of money we are spending on this war--it is 
estimated from $40 to $95 billion--compared to the economic loss and 
the internal expenditures we have had to put out as a result of the 
attack of September 11, is very small. So we have to do something and I 
don't think the Senator suggests otherwise there.
  We are here talking about one of the finest nominees to come before 
the Senate, Miguel Estrada, for the Circuit Court of Appeals for the DC 
Circuit. Miguel Estrada is a stunningly qualified person. He came here 
at age 17 from Honduras, top of his class at Columbia, magna cum laude, 
Phi Beta Kappa, on to Harvard Law, editor of the Harvard Law Review, 
clerk for a Second Circuit Court of Appeals, the sister court to the DC 
court he would be sitting on. He served in the Solicitor General's 
Office of the Justice Department where he wrote appellate briefs and 
argued cases before the United States Supreme Court. He has been at one 
of America's greatest law firms since.
  He received the highest possible ratings of his supervisors in the 
Department of Justice almost his entire time. In the Department of 
Justice he was being supervised by President Clinton's supervisors. 
They gave him the highest rating they could give. They even noted how 
he was disciplined and followed all the policies and procedures of the 
Department of Justice.

  The American Bar Association checked him out. They interviewed 
lawyers on the other side of his cases; they interviewed judges before 
whom he practiced; they talked to friends. They came up with a rating, 
unanimously ``well qualified,'' the highest possible rating the 
American Bar Association gives. They did not give it by a split vote 
but unanimously. That is very rare. They do not do that very often. He 
is exceptionally well qualified.
  I heard his testimony before the Senate Judiciary Committee. I 
thought he was responsive and intelligent and courteous and kept his 
composure on the tough questioning. Having argued 15 cases before the 
Supreme Court of the United States places him in a very select group of 
lawyers. I am sure there are not more than 20 practicing lawyers in 
America today who have argued 15 cases before the Supreme Court of the 
United States. You are not selected for that unless people believe you 
are very good at your business. The average guy cannot walk in and 
argue a case before the Supreme Court under normal circumstances. We 
have an exceptionally qualified nominee.
  What is this brouhaha all about? What is causing us to be subjected 
to the first filibuster in the history of the United States involving a 
nominee for a circuit court of appeals judge, or a district court judge 
for that matter, in the history of this country? We are not able to 
identify a single active filibuster, as we have seen today, on a 
nominee for circuit court of appeals or for the district court. It is 
stunning this is so in light of the fact we have an individual who 
lived the American dream, who has been a success in every category of 
life, whose integrity has never been questioned, and whose 
professionalism and skill is doubted by no one.
  I ask, what is it all about, Alfie? What is this about? The real deal 
here is the question of the role of judges: To what extent are they 
empowered to be activists? Should they be able to utilize and employ 
their own best judgment about matters and read that into the statutes 
and the Constitution they interpret, or should they be bound by the 
plain meaning of those statutes? This is a fundamental question.
  There is in the law schools of America, in many of the outspoken 
professors and proponents of law in America, a belief that judges have 
a duty to act

[[Page S3008]]

and to make decisions and even so act politically. In fact, they say it 
is a myth and a falsehood to suggest and even to believe that judges 
are above politics. They say it is all politics. Why do they say that? 
This is part of a dangerous trend in America. Is politics in 
everything?
  The Critical Legal Studies Group that has been afoot in law schools 
over a number of years believes you cannot tell anything about law; 
that you can take words and statutes and they can mean anything you 
want them to mean, and they believe those laws were just written by 
those in power to oppress those not in power. They do not believe there 
are rules of the game all of us must live by that are critical to our 
economic development. They believe it is all politics, it is all power, 
and there is no truth and there is no order fundamentally. Some call it 
deconstructionism, and others call it the trends in America as opposed 
to modernism, the idea that there is no truth; one person's opinion is 
just as good as another; We can say what we want; I'm OK, you're 
OK. That kind of idea is really at the heart of some of the problems we 
are having.

  I often tell the story of Hodding Carter, who used to work for 
President Carter. He was on Meet The Press, where he used to be a 
regular member. He made a comment the other day where he said we 
liberals have to admit it, we are asking the courts to do for us that 
which we can no longer win at the ballot box. That is basically what 
President Bush has been unhappy with. That has been the concern he has 
expressed with the legal system. He simply wants judges who will 
follow, first, the Constitution, and then the statutes and lawful acts 
that are enacted pursuant to the Constitution. If the lawful acts that 
are adopted violate the Constitution, the Constitution trumps and the 
court should say so. The Constitution controls much of what goes on in 
this country, and it ought to be the No. 1 thing. So we follow that.
  It is academic when we talk about those words, but there are various 
cases that come along that point out the matter to us very clearly, 
none more significant than the ruling in California over the Pledge of 
Allegiance, striking down the pledge as being unconstitutional because 
it had the words in it ``under God.'' They said that was an 
establishment of a religion that is prohibited by the Constitution; 
that these two words established a religion.
  That is beyond my comprehension. It appears to be clearly contrary to 
the view of the U.S. Supreme Court, although the U.S. Supreme Court, I 
will admit, tends to be inconsistent on this issue.
  I remember when that happened it caused quite a stir, particularly on 
both sides of the aisle here. But I noticed my friends across the aisle 
were particularly concerned about it and were vocal. So after the panel 
in California struck down the Pledge of Allegiance, we met that day. 
People came down on the floor and spoke out. The majority leader at 
that time, Senator Tom Daschle, said:

       But this decision is nuts. This decision is just nuts.

  He talked about it a little bit there. He gave up the floor, and my 
good friend Senator Reid from Nevada, the assistant Democratic leader, 
spoke and this is what he said:

       I have the good fortune that two of my sons have been law 
     clerks for the chief judge of the Ninth Circuit.

  That is where these panel members were, they were a part of the ninth 
circuit.

       In fact, one of my sons was his administrative assistant. 
     He was a judge from Nevada, served on the very prestigious 
     Ninth Circuit. I have had calls from my sons today. They are 
     embarrassed about what has taken place in that Ninth Circuit. 
     They said: Dad, don't worry about it because the court will 
     meet en banc [the whole court will] and reverse it. These are 
     two of the most liberal members on the Court. They come up at 
     random. It was by chance Goodwin and Reinhardt were thrown 
     together [on this panel] . . .

  But it wasn't Goodwin and Reinhardt on the panel. Mr. Reid was in 
error about that. But Mr. Reid said:

       I have great faith the court will reverse itself when they 
     sit en banc.

  Well, I had hoped so, too. But I spoke on that day. I made clear I 
was not at all sure the full Ninth Circuit Court would reverse that 
opinion because I have been studying the Ninth Circuit. I have observed 
its irrational and activist behavior for some time. I have noted its 
problems. I was not at all certain it would be reversed. In fact, I 
said as much. I said:

       I hope on full rehearing en banc the court will reverse the 
     opinion. I am not absolutely sure it will because there are 
     others on the court I have no doubt will join in this 
     opinion.

  I made other references to that. So the Ninth Circuit was--it was a 
test here. Everybody says don't worry about this random opinion.
  I have been reminded that Goodwin and Reinhardt were on that panel, 
along with another judge. It was a three-judge panel.
  So I wondered, will they reverse it? The way it works is if a panel 
of a larger court, the 24 judges on the Ninth Circuit, if a three-judge 
court rules and that opinion is significant and may implicate the rest 
of the law, and the full court, 24 judges, might disagree, they have an 
en banc hearing, they review the panel's decision, and they render an 
opinion, either affirming it or not affirming it.
  What happened here just Friday was that the Ninth Circuit decided not 
to rehear the ruling made by three-judge panel--in effect, affirming 
the opinion striking down the constitutionality of the Pledge of 
Allegiance of the United States, not a totally surprising thing to me.
  It is surprising that we are this far along. It is surprising we have 
gone this far in distorting the original intent of our Constitution 
concerning the separation of church and State and what that actually 
means.
  People say it says we must have a wall of separation between the 
church and State. The Constitution never said that. Thomas Jefferson 
said that late in his life, long after he had left public office. He 
wrote the Baptist Association and used that phrase--there should be a 
wall of separation between church and State. No one knew precisely what 
he meant. It was never ratified by the people. He was not even at the 
Constitutional Convention, Jefferson wasn't, when the Constitution was 
written.
  What we must do to determine what the Founding Fathers thought is 
look at that document, look at the Constitution itself. They debated 
the issue. They were concerned about it. Virginia had an established 
church. It was the Episcopal Church, the Anglican Church, the Church of 
England. The Americans didn't like that. They said, We are going to put 
in our Constitution; no one religion is going to be given a 
predominance over the other. So they wrote the first amendment and they 
said Congress--that's us, the U.S. Congress--shall make no law 
respecting an establishment of a religion nor prohibiting the free 
exercise thereof.
  They forget all about the free exercise clause. They simply say 
everything that even mentions God in public life is an establishment of 
a religion. That is a misreading of the Constitution.
  Why they have it in their heads that these things should be so 
closely scrutinized and should be so scrutinized by the courts and 
struck down by the courts is beyond me. We have been on a trend for a 
little over 50 years. It was not a function or a problem for the first 
150 years of this country's existence, but in recent years it has 
developed in that way.
  As a result of the history of the Supreme Court rulings over the last 
50 years, there is a real ambiguity concerning the meaning of the 
separation of church and State.
  I am going to show how I think activism plays a role in these 
decisions. People make out it does not make any difference here what 
kind of judges we have on courts, unless they happen to be judges who 
show restraint, who believe in following the law. They get attacked by 
our friends over here. But judges who advocate utilizing law and 
judicial opinions as a method to carry on a political agenda, they are 
quite all right. Then, when they strike down the Pledge of Allegiance, 
they run down here and say how awful it is. ``We are just shocked.'' 
And it is the judges and the philosophy of law that supports them that 
has led us to this point.
  Let me just read what Judge Paez said one time in a written article. 
Judge Paez has been referred to as a judge who was not fairly treated 
here. He was confirmed. Thirty-nine Senators voted against him. He does 
sit on

[[Page S3009]]

the Ninth Circuit Court of Appeals today. And from what I can tell from 
this opinion, he joined in the opinion affirming the striking down of 
the Pledge of Allegiance.

  So this is what he wrote about his philosophy as a judge. He said it 
includes: ``an appreciation of the courts to act when they must, when 
the issue has been generated as a result of the failure of the 
political process to resolve a certain political question. Because in 
such instance,'' he says, ``there is no choice but for the courts to 
resolve the question that perhaps ideally and preferably should be 
resolved through the legislative process.''
  Do you see what Judge Paez said there? And I opposed his nomination 
for several reasons. But this was a core reason. What he said was, if 
the legislature does not act on something we enlightened ones think 
they should act on, then the courts are empowered to act.
  You show me where that is in the Constitution. Let's put it really 
simply: When a legislature does not act on a matter, that represents a 
decision of a legislature. It decided not to act. That is a decision of 
that legislative branch just as certainly as if they had voted to make 
a change.
  Legislatures are not required to act. If they do not do something 
that judges think ought to be done, where does it become the idea that 
judges can impose that by reinterpreting the meaning of the statutes 
and words of the Constitution to impose their agenda? That is a big 
deal for me.
  Now, Judge Reinhardt wrote a part of this recent opinion on the 
Pledge of Allegiance. Let me tell you what he said. I just picked this 
up. It jumped right out at me because I am sensitive to this issue. I 
have to run for election. I have to go back to Alabama and defend what 
I did and what I voted on, just as the Presiding Officer did in his 
State. We have to defend what we do. We are accountable.
  But judges are given lifetime appointments. Their position is for as 
long as they live, with good behavior. They would have to virtually be 
convicted of a felony before they could be removed from office. They 
can hold their position for as long as they want to hold it. And 
sometimes they hold it for longer than their health and ability.
  But I want to make clear one thing: That most of our Federal judges 
do an excellent job, and most of them do show restraint. But there has 
been a continual battle over this philosophy, that you can make 
statutes say whatever you want them to say, and ``good'' judges should 
deliberately use their power to effect the public good as some group of 
people, whoever they are, think they should.
  So there was some political uproar over the striking down of the 
Pledge of Allegiance, and Judge Reinhardt, on the Ninth Circuit, said 
we ought not to pay attention to that. But then he said:

       This is not to say that Federal judges should be completely 
     sequestered from the attitudes of the Nation we serve. Even 
     though our service is accomplished not through channeling 
     popular sentiment but through strict adherence to 
     constitutional principles, the Constitution contemplates 
     occasions when we must be responsive to long-term societal 
     trends when determining, for example, that which is cruel and 
     unusual.

  So the court says they have been empowered now to determine ``long-
term societal trends,'' and that they can use those societal trends now 
to go back and take words such as ``cruel'' and ``unusual,'' and give 
them a new meaning.

  Let's talk about that very one. That is the first one he mentioned. I 
think it is a good one for us to talk about because cruel and unusual 
punishment is prohibited by our Constitution. You cannot impose cruel 
and unusual punishment.
  A number of years ago, we had two members of the Supreme Court--they 
are no longer there; both are deceased now--Justice Brennan and Justice 
Marshall, who concluded that due to evolving social trends, cruel and 
unusual punishment meant we should not have the death penalty. And they 
dissented on every single case that came before them imposing death 
because they believed it violated the constitutional provision 
concerning cruel and unusual punishment--a breathtaking position to 
take. I call it the high water mark of judicial activism.
  Where did they get this idea there had been evolved standards? It was 
not from polling data, because the American people overwhelmingly 
favored the death penalty. It was not from the legislative actions of 
legislatures around the country, because very few had eliminated any 
death penalty statutes over the years. In fact, it was a law in a 
majority of the States in the country. It was a law in the United 
States of America. So I do not know where they came up with this idea.
  They did not like it. Justice Brennan and Justice Marshall decided in 
their heart that America ought no longer to have a death penalty, so 
they set about combing the Constitution, and they came up with the idea 
that it was cruel and unusual.
  The Constitution has to be fairly interpreted. It said: cruel and 
unusual. Even if you considered it cruel, was it unusual? Every State 
and every Colony in America and the British Empire had the death 
penalty at the time the Constitution was written.
  Within the very corners of the Constitution itself are multiple 
references--six or more, as I recall--to the death penalty. It talks 
about capital crimes. It talks about that you cannot deprive one of 
life, liberty, or property. How do you deprive them of life except by 
the death penalty without due process of law?
  So this was thunderous. So we have this judge voting to strike down 
the Pledge of Allegiance, saying that he is empowered to utilize 
``long-term societal trends.''
  I guess that is the way the EU votes. Maybe we ought to take a vote 
in the UN. Is that what we want to do? Let's take the EU, and we will 
let the Europeans decide what our societal trends are.
  I will tell you one thing: The murder rate in Great Britain is going 
through the roof. And since the death penalty has come back into 
fashion in America, the murder rate has been plummeting. Thousands of 
people, on a percentage basis, today are alive, not murdered, because 
of the crackdown on violent crime in this country. I do not think 
anyone can dispute that. He talks about also, ``this broader long-term 
social conscience'' should guide us in deciding how to interpret 
statutes. Well, of course, that is bogus. Who empowered this lifetime-
appointed person to do that?
  See, that is an antidemocratic act. Judges, by being given lifetime 
appointments, are unaccountable. They serve a great function in that 
they can enforce the law, even though it might be, in the short term, 
unpopular. But we depend on them very deeply. We depend on them to show 
restraint, to not impose their views, but to honestly and fairly 
interpret the law.
  We have some real problems here with the Supreme Court, too. The 
Supreme Court is very confused about the opinions on separation of 
church and state. But they never went this far.
  In fact, according to Judge O'Scannlain, who wrote a dissenting 
opinion from the refusal of the court to even consider the matter en 
banc, Justice O'Scannlain details at least four references in previous 
Supreme Court opinions in the line of cases on which they relied to 
strike down the school Pledge of Allegiance recitation as affirmatively 
blessing or okaying the Pledge of Allegiance.
  He quotes a number of those cases. Justice O'Connor and others have 
made that quite clear. So the question is, Does this phrase, ``under 
God,'' in the Pledge of Allegiance establish a religion or is it a 
religious act?
  Justice O'Scannlain says: Common sense would seem to dictate 
otherwise, as the public and political reaction should show and make 
clear. If reciting the pledge is truly a religious act in violation of 
the establishment clause, then so is the recitation of the Constitution 
itself or the Declaration of Independence.
  We hold these truths to be self-evident, that all people are created 
equal. They are endowed by their Creator with certain inalienable 
rights.
  That is not something we earned here on Earth, but part of the 
philosophy of the founding of our country is in the heart of the most 
famous words in the Declaration of Independence. ``Without our aid He 
did us make.'' That is how we got here.
  That is what a majority of the American people believe. Some 93 
percent believe in God. They are not trying to impose their will on 
everybody. But

[[Page S3010]]

they do not believe, and I do not believe, the Constitution prohibits 
any reference in the public sphere to a higher being.
  He goes on and says: Are we going to eliminate the Constitution, 
which makes references to God, the Declaration of Independence, the 
Gettysburg Address, which uses the phrase ``under God''? Are we going 
to prohibit that? The national motto, ``In God We Trust''? How about 
those words right up there, ``In God We Trust,'' in letters 6 inches 
high? Are they going to come down here with a chisel? I guess we will 
bring our friends from the Ninth Circuit over here with a chisel and 
let's see them chop away at that.
  That doesn't make sense, does it? But that is what we have in this 
opinion. How about the national anthem? Justice O'Scannlain continues:

       Such an assertion would make hypocrites out of our founders 
     and would have the effect of driving any and all references 
     to our religious heritage out of our schools and eventually 
     out of our public life.

  I don't think that is an exaggeration at all.
  How are we going to stop this?
  In this Senate, we have the odd event that we have a paid Chaplain, 
as we have in the military. Our Chaplain comes in before we start the 
day, and we have a prayer. I am surprised they haven't sent the 82nd 
Airborne over here from across the street to stop that. They begin 
every session of the Supreme Court of the United States with the words: 
``God save these United States and this honorable court.'' Every court 
I have been in uses those words. ``God save these United States and 
save this honorable court'' is what the clerk says when he calls the 
court to order all over America today. But children in the Ninth 
Circuit, the largest circuit in America, including some 9 million 
schoolkids, are prohibited now from saying the Pledge of Allegiance.
  This opinion was written, although I am not sure legally how much it 
meant, but after this Congress voted on the matter a few months ago. If 
Justice Reinhardt believes his evolving social consciousness has gotten 
to the point that America no longer wants to say ``under God,'' he 
ought to listen to his elected representatives because right after it 
happened, we voted by 99 votes last June on the floor of this Senate to 
reaffirm the Pledge of Allegiance and the words ``under God.'' Every 
Senator in here voting that day voted for it. Maybe one didn't or one 
was absent. It is impossible for me to believe that they think this is 
a result of any societal evolution that causes this.
  Justice O'Scannlain goes on and talks about the Engel v. Vitale case 
which eliminated prayer in schools, the first such case. They said they 
could not say a prayer written by the State. They said that was 
inconsistent with the establishment clause. The State wrote a prayer, 
and the kids were supposed to say it. They could refuse to, but they 
said it, and they said that was too much. That was the establishment of 
a religion effect. That could be something we could debate, but 
certainly there is some basis for that reasoning.

  Then he goes on to note, in a footnote, the court said this in 
Vitale:

       There is of course nothing in the decision reached here 
     that is inconsistent with the fact that school children and 
     others are officially encouraged to express love for our 
     country by reciting historical documents such as the 
     Declaration of Independence which contain references to the 
     Deity or by singing officially espoused anthems which include 
     the composer's professions of faith in a Supreme Being, or 
     with the fact that there are many manifestations in our 
     public life of belief in God. Such patriotic or ceremonial 
     occasions bear no true resemblance to the unquestioned 
     religious exercise that the State of New York had sponsored 
     [by mandating a State prayer.]

  Then the next case in this line of cases came, Abbington School 
District v. Schempp. They required in Pennsylvania that at least 10 
verses from the Holy Bible shall be read without comment at the opening 
of every public school each day. I guess they would probably put them 
in jail today for even expressing that. So they read the bible verses 
every day in the school. This was followed by a recitation of the 
Lord's Prayer, and finally the class would recite the Pledge of 
Allegiance. The court struck down the Bible reading and the practice of 
reciting the school prayer as a State-proscribed religious ceremony but 
said nothing at all about the Pledge of Allegiance. Why didn't they 
strike that down?
  Here we have the Ninth Circuit going off on a tangent, clearly by 
implication contrary to the views even of the U.S. Supreme Court, which 
have gone too far in their hostility to religious expression. Even 
Justice Brennan, who I noted earlier was the leader of the activist 
group at the high water mark of activism, said this in that case:

       For Justice Brennan, ``religious exercises in the public 
     schools present a unique problem'' but ``not every 
     involvement of religion in public life violates the 
     Establishment Clause.'' He warned that ``[a]ny attempt to 
     impose rigid limits upon the mention of God . . . in the 
     classroom would be fraught with dangers.'' Specifically, he 
     wrote that ``[t]he reference to divinity in the revised 
     pledge of allegiance . . . may merely recognize the 
     historical fact that our Nation was believed to have been 
     founded `under God.' Thus reciting the pledge may be no more 
     of a religious exercise than the reading aloud of Lincoln's 
     Gettysburg Address, which contains illusions to this 
     historical fact.''

  Historically, it is a fact that we believe in this country, or most 
Americans believe, this country was founded under God.
  Then we had one of the more bizarre cases that came out of Alabama. 
Apparently out of pique, the Supreme Court became angered that the 
State of Alabama passed a law that prescribed a moment of silence or 
meditation before each day as school commenced. Can you imagine that? 
How horrible this is. It took the attention of the U.S. Supreme Court 
in Wallace v. Jaffree, 1985. It dealt with the constitutionality of an 
Alabama statute authorizing a 1-minute period of silence in public 
schools for ``meditation or voluntary prayer.''
  The Supreme Court said that was unjustified and struck that down. 
What a ridiculous opinion that was. When I was a lawyer practicing 
before courts, I never said those kinds of words about courts. I took 
my lumps if I didn't agree with opinions, and I accepted the rulings of 
the court. I think we ought to be respectful. Here I am in a coequal 
branch, and I am an elected politician now and, I am telling you, there 
is no basis for that opinion.
  So the Supreme Court is all confused about this. Some of the problems 
in the Ninth Circuit are due to their confusion. It is time for them to 
straighten up and figure this thing out and give us decent principles 
that will guide us. It is clear under Supreme Court law today that 
conducting a formal religious observance conflicts with the subtle 
rules pertaining to prayer and the religious exercise of students. 
Prayer was considered an overt religious exercise and that ``prayer 
exercises in public schools carry a particular risk of indirect 
coercion.''
  But the Court, in a third case, Lee v. Weisman, discussed this very 
issue again. It took pains in the Lee case, which is the last of the 
cases I am citing here. The Court took pains to stress the confines of 
its holding; that is, how the holding was limited, concluding that ``we 
do not hold that every State action implicating religion is invalid if 
one or a few citizens find it offensive,'' and that ``a relentless and 
all-pervasive attempt to exclude religion from every aspect of public 
life could itself become inconsistent with the Constitution.''
  Now, that is strong and important language. ``A relentless and all-
pervasive attempt to exclude religion from every aspect of public life 
could itself become inconsistent with the Constitution.'' I certainly 
agree with that. Now, I will point out that the Ninth Circuit, oddly, 
failed to accept even rehearing by the full Court. Why did they do 
that? The Senator has expressed some ideas about why. They were not 
very complimentary and did not suggest it was because of high ideals 
that they refused to even have the full Court review this panel. But I 
point out that the Seventh Circuit Court of Appeals, a coequal circuit 
with the Ninth Circuit, already considered the pledge case, and it has 
found it did not establish a religion.
  So, normally, when a circuit is wrestling with whether or not a case 
is important and whether or not there is a dispute in the law, they 
would much more normally ask for and allow a rehearing to occur en 
banc.
  The Seventh Circuit, when they considered it, framed the question 
precisely this way: ``Does `under God' make the Pledge a prayer whose 
recitation violates the establishment clause

[[Page S3011]]

of the first amendment?'' They answered that question in the negative. 
The Supreme Court, according to Justice O'Scannlain, has insisted that 
interpretations of the establishment clause must comport ``with what 
history reveals was the contemporaneous understanding of its 
guarantees.'' ``The line we must draw between the permissible and the 
impermissible is one which accords with history and faithfully reflects 
the understanding of the Founding Fathers.''
  So we are going to interpret the first amendment to prohibit the 
establishment of a religion and also prohibit Congress from passing any 
law that would restrict the free exercise of religion. We have to ask 
ourselves what did it mean when they wrote it? As Judge Fernandez, who 
dissented on the original opinion, so eloquently points out in his 
dissent: Only the purist exercise in sophistry could save multiple 
references to our religious heritage in our national life from Newdow 
II's--that is the case in California--axe. Of course, the Constitution 
explicitly mentions God--this is Justice O'Scannlain's opinion quoting 
Judge Fernandez--as does the Declaration of Independence, the document 
which marked us as a separate people, declared us independent. The 
Gettysburg Address, inconveniently for the majority, contains the same 
precise phrase--``under God''--found to constitute an Establishment 
Clause violation in the pledge.

  After Newdow II, are we to suppose that, were a school to permit--not 
require--the recitation of the Constitution, the Declaration of 
Independence, or the Gettysburg Address in public schools, that, too, 
would violate the Constitution? Were the ``Founders of the United 
States . . . unable to understand their own handiwork?'' Were the 
Founders themselves unable to understand? When they put in the 
Constitution that we would not establish a religion, did they have any 
idea we were going to be striking down any references in their own 
Declaration of Independence to God, or in their own Constitution of 
which this was just a part? Of course, they didn't.
  What that says is, of course, that was not what they intended. They 
never intended, when they passed the first amendment to the 
Constitution of the United States of America, that we would eliminate 
all references to a higher being in America.
  Well, as Justice O'Scannlain notes, somewhat ingeniously indeed, that 
the recitation of the Declaration of Independence would seem to be a 
better candidate for the chopping block than the pledge, since the 
pledge does not require anyone to acknowledge the personal relationship 
with God to which the declaration speaks. So, too, with the National 
Anthem or our national motto, ``In God We Trust.''
  What about our national celebration of Thanksgiving Day? It goes back 
to President George Washington's time when Congress stated that there 
was ``to be observed by acknowledgement with grateful hearts the many 
and signal favours of Almighty God.'' Congress made Thanksgiving a 
permanent holiday in 1941, and Christmas has been a national holiday 
since 1894. Are Newdow's constitutional rights violated when his 
daughter is told not to attend school on Thanksgiving? On Christmas 
Day? Must school outings to Federal courts be prohibited, lest the 
children be unduly influenced by the dreaded intonation ``God save 
these United States and this honorable Court.''? Are the schoolchildren 
not to go to the Supreme Court to hear arguments because it invokes God 
before Court starts every day?
  Justice O'Scannlain says:

       A theory of the Establishment Clause that would have the 
     effect of driving out of our public life the multiple 
     references to the Divine that run through our laws, our 
     rituals, and our ceremonies is no theory at all.

  Of course, the Supreme Court, as I mentioned earlier, in several 
different cases, has directly, and by implication, affirmed the Pledge 
of Allegiance.
  A full hearing of this case, which I am sure the Supreme Court will 
hear, will make clear this pledge will stand. I hope also they will 
take it upon themselves to deal with the confusion they have created in 
this inconsistent body of law.
  Even Justice Brennan, that most stalwart supporter of separation of 
church and State, acknowledges that some official recognition of God is 
appropriate ``if the Government is not to adopt a stilted indifference 
to the religious life of the people.''
  The decision reached in this case, I submit, does precisely that: 
Justice O'Scannlain says it adopts a stilted indifference to our past 
and present realities as a predominantly religious people.
  Justice O'Scannlain goes a little further. He raises another point. 
Really, when it is all said and done, this opinion does not stand for 
neutrality in religion; this decision stands for and, in fact, favors 
atheism over religion. The absolute prohibition of any mention of God 
in our schools creates a bias against religion. The majority simply 
cannot credibly advance the notion that it is neutral with respect to 
belief versus nonbelief. It affirmatively favors nonbelief over belief. 
One wonders, then, does atheism become the default religion protected 
by the establishment clause?
  We have people who object to putting in one clause in textbooks. I am 
not one who thinks church people ought to write the creation story or 
the evolution story in our textbooks. I think it would be appropriate, 
however, that our textbooks say that many believe the creating of life 
on this planet was conducted by a higher being. I do not see any 
problem with that. But some oppose even such a statement as that.
  We have a lot of weird actions going on out there today by our 
courts. We have, as I mentioned--hopefully, we do not have any left--
those who believe the Constitution itself, which prescribed how the 
death penalty should be conducted, prohibited death penalties. We have 
a problem in America in our legal system. It is the greatest legal 
system in the world. It is a system that has protected us in 
extraordinary ways, but we have to have judges who show restraint and 
who follow the law.
  I notice two judges about whom people expressed concern, both 
nominated by President Clinton and confirmed, both of whom I opposed, 
although I voted for 95 percent of President Clinton's nominees--they 
have on separate panels, for example, authored opinions to overturn 
California's three-strikes-and-you're-out law. That has been on the 
books for years. As soon as they get on the Federal bench, they say the 
U.S. Constitution says your three-strikes-and-you're-out law passed by 
the people of California that has helped precipitate a rapid decline in 
crime in California and save thousands and thousands of lives is 
unconstitutional.
  I think these are activist opinions. I think they will be reversed. 
In Andrade v. the Attorney General of California, Judge Paez ruled a 
lifetime sentence for a seven-time repeat offender was cruel and 
unusual. Seven times, Mr. President, and that number includes only his 
Federal offenses. Andrade also had more than a few convictions in State 
court. While he was on probation for a 1982 conviction, he burglarized 
three separate residences. Still, a lifetime sentence under the three-
strikes-and-you're-out rule was too much for Judge Paez. He found the 
statute that provided for it unconstitutional.
  In Brown v. the Attorney General of the State of California, Judge 
Berzon held that a 25-year term of imprisonment for two defendants 
convicted of petty thefts, Ernest Bray and Richard Brown, constituted 
cruel and unusual punishment. The reality is each defendant deserved 
their 25-year term of imprisonment. Each had a laundry list of offenses 
on their record. Defendants Bray and Brown are the type of career 
criminals that California's three-strikes law attempted to keep off the 
streets. Bray had four separate robbery convictions. Robbery is the 
taking of property through force and violence. One of those robberies 
was a situation in which shots were fired at the victim, and one where 
the victim was hit and kicked, not even considered by the jury. The 
jury did not get to consider his other offenses--obstructing and 
resisting a public officer, and trespass in 1979, possession of a 
dangerous weapon in 1985, being under the influence of a controlled 
substance in 1991, and petty theft with a prior conviction while out on 
bail for the three-strikes offense.
  Brown's prior convictions included two counts of second-degree 
burglary, two counts of assault with a deadly weapon, and a robbery 
conviction--two counts of assault with a deadly weapon

[[Page S3012]]

and a robbery conviction. Additionally, he had eight other convictions 
on his record. Judge Berzon said it was cruel and unusual to put these 
offenders away for this period of time.
  I am glad to see my distinguished colleague from Vermont in the 
Chamber. I supported a judge from Vermont. He had a good name, William 
Sessions. He has been on the bench only a few years and he has declared 
that the way the Federal death penalty is conducted to be 
unconstitutional. I can tell you how it is conducted.
  Mr. LEAHY. Mr. President, I would hope that the distinguished 
Senator, my good friend from Alabama, would state Judge Sessions' 
ruling accurately. Judge Sessions has stated he feels the death penalty 
is constitutional. He has a matter that has been very thoroughly ruled 
on in a particular case and the way it was handled in that particular 
case and did it in a way so that the courts of appeals can rule on it, 
not the least of which has been done by a number of other judges. In 
fact, among those judges who would rule on it, several were appointed 
by President Reagan and by former President Bush and the current 
President Bush.
  I am sure if the Senator suggests there might be something political 
in this, it is being set up in such a way that still the ultimate 
decision would be decided by a majority of judges appointed by 
Republican Presidents.
  Mr. SESSIONS. I think we should be correct. As I understand his 
ruling, it was not that the act was unconstitutional, Senator Leahy is 
correct, and I do not think I said that, but the way it was carried out 
raised constitutional implications.
  I will note, having been a Federal prosecutor myself for 15 years, I 
know Janet Reno personally set up a committee to approve any death 
penalty case in Federal court, and that committee was charged with the 
responsibility of making sure it was fairly and objectively 
administered.
  She made the final decision on it. I know she opposed the death 
penalty herself personally. So I do not believe the Federal justice 
system of handling the death penalty is unfair.
  Going further than that, in July of last year, Judge Jed Rakoff of 
the Federal District Court in Manhattan ruled more broadly that the 
Federal Death Penalty Act was unconstitutional, saying the death 
penalty is:

       Tantamount to a foreseeable state-sponsored murder of 
     innocent human beings.

  Mr. LEAHY. Mr. President, will the Senator yield briefly for a 
question?
  Mr. SESSIONS. I will be pleased to yield.
  Mr. LEAHY. In that case, when that went on appeal to the same court 
that will be hearing the Sessions case, they overruled the judge the 
Senator referred to; is that not correct?
  Mr. SESSIONS. They absolutely did. That was my next point I was going 
to make.
  Mr. LEAHY. My point being, there are checks and balances in here.
  Mr. SESSIONS. Well, the checks and balances did not work in the Ninth 
Circuit, as Senator Reid guaranteed virtually it would when he made 
remarks suggesting that panel was going to override the three-judge 
panel.
  The problem is, and the reason it is important, is these are rulings 
that reflect a person's personal views. A judge should not overcome the 
law. If he wants to go out and write letters and argue that the death 
penalty is unfair and should be repealed, I guess if he can do that 
consistent with his ethical standards, that is all right. He certainly 
can make reasoned remarks on it. I do not think he should use the power 
of his bench to strike it down.
  There are many more examples of recent rulings with which most 
Americans would not agree. Take for example a recent ruling concerning 
the Ohio State motto, ``With God all things are possible.'' The Sixth 
Circuit recently told Ohio its motto was unconstitutional. What about 
ours, ``In God We Trust''?
  It would take a Philadelphia lawyer to distinguish why ``In God We 
Trust'' is OK and the Ohio motto ``With God all things are possible,'' 
is not. The Sixth Circuit told Ohio its motto was unconstitutional 
because it established a religion, and that is really weird.
  There are many cases around the country where you cannot have 
Christmas decorations put up. We have death penalty laws being struck 
down. We have three-strikes-and-you're-out laws being struck down. If 
they violate the Constitution, that is all right; they should be 
stricken. If someone passes a death penalty law in a fashion that is 
violative of the U.S. Constitution, a Federal court--or a State court, 
for that matter--should strike it down on the spot. If a three-strikes-
and-you're-out law is unconstitutional, it ought to be stricken. But so 
far as I have been able to ascertain, States are empowered to set 
penalties for crimes in their States. They can enhance penalties for 
multiple offenses, and judges can give enhanced penalties for multiple 
offenses.
  In my view, there is no law, no basis, for us declaring that these 
acts are unconstitutional.
  The point of all of that is to say: This is what activism is. This is 
what President Bush has said in his campaign he does not want. He is 
not asking the judges he nominates to carry out his agenda politically. 
He is prepared to fight it out in this Congress and with the American 
people. He does not want those judges conducting and carrying out their 
political agendas through the interpretation, misinterpretation, or the 
reinterpretation of the meanings of words and statutes in our 
Constitution. It is a very big deal.

  I hope the Supreme Court will take seriously its responsibility to 
guide us out of this thicket it has gotten us in with regard to its 
confused and inconsistent rulings on the separation of church and 
state, on the observance of an issue of any kind of reference to God in 
public life.
  I did have a church group that came and visited me. They said they 
were in the Supreme Court. They were very sincere, wonderful young 
people. They took their faith seriously and they took a moment over to 
the side and all huddled around and had a prayer for these United 
States of America and the legal system of America. The guard in the 
Supreme Court came along and shooed them out and said they could not be 
praying in the Supreme Court.
  So this is the kind of example of overreaching that we hear about in 
our schools, in our public affairs, on our courthouse squares, and even 
in the opinions of Federal judges. We can do better.
  We need to appoint judges who are committed to following the law. 
Miguel Estrada is that kind of person. That is the only thing he stands 
for. That is the only thing in his record he is known for; that he 
believes we ought not to abuse the system; that judges ought to show 
restraint. That is what he will do if confirmed. That is why the 
American Bar Association unanimously gave him the highest rating they 
give, which is received by only a very few nominees. That is why 
President Bush has asked the American people to allow him to do what he 
ran for office to do. He said this is what we are going to do. This is 
how I look at the courts and that is what we are going to try to do.
  I do not see why anybody should be afraid of a judge who follows the 
law. What we should be afraid of is judges who believe they have a 
right to reinterpret the law and impose their own views on all the rest 
of us.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. The pending question is the nomination of 
Miguel Estrada.
  Mr. LEAHY. I am sorry. I thought when I came we were having a debate 
on the Ninth Circuit, which I understand has now put the Pledge of 
Allegiance case on the fast track to the U.S. Supreme Court, which has 
a majority of conservative Republicans. I am sure the distinguished 
Senator from Alabama will be very happy with whatever way they rule on 
that.
  In the meantime, I say to those in my State of Vermont who ask, there 
has been no challenge to the law in Vermont. We are not within the 
Ninth Circuit, and I expect children in Vermont will continue to say 
the pledge as we have been saying it since sometime in the 1950s, I 
believe, when the words ``under God'' were added to it.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page S3013]]

  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, we have spent a lot of time talking about 
the Pledge of Allegiance, which is important to the American people, 
and about the Estrada nomination, something that could be settled very 
quickly if the White House wanted to settle the matter. They have made 
it very clear that they do not. In fact, they have even gone so far as 
to publicly reject calls from a distinguished Republican, a Senator in 
this body, to do so. That has been in keeping with the attitude we have 
seen more and more on such judicial matters by the White House. They 
take the attitude that the Senate is irrelevant, that we should simply 
do whatever they say--and sometimes do.

  The Senate majority replaced their majority leader at the request of 
the White House, something unprecedented. And now they seem willing to 
also take the attitude that if they confirm someone, just do it without 
even asking questions about the person.
  The fact is, we would probably have this debate over now if they 
brought forward the writings of Mr. Estrada, which he said under oath 
he was perfectly willing to bring forward. If it weren't for that, we 
would have had the hearings and be finished by now.
  As I go around the country, my own State or other parts of the 
country, I have not had an awful lot of people come to me and say: 
Thank God the Senate is debating one judge.
  Since President Bush took office we have confirmed 105 or 106 or 107 
of his judges anyway. We are going to spend weeks debating that.
  What I hear from people is: Why is there not any discussion about a 
possible war against Iraq? The British Parliament has had a major 
debate on it. The Turkish Parliament had a major debate on it. The 
Canadian Parliament had a major debate on it. Country after country is 
debating this issue.
  What is the Senate, the most deliberative body in the world, the body 
that considers itself the leading parliamentary body in the world, what 
have we done?
  The impression of the American people is, both Republicans and 
Democrats, is that the Senate does not want to discuss a war with Iraq. 
I guarantee that if any one of 100 Senators go home--go into any 
restaurant, any diner, any gas station, any grocery store in their own 
State, they will find that most people are asking each other if we are 
going to war or we are not going to war. They are not discussing 
whether instead of 105 judges having been confirmed so far for 
President Bush, it will be 106 judges. That is not what they are 
concerned about.
  On February 26, we listened to the distinguished senior Senator from 
West Virginia, Mr. Byrd, who pointed out with characteristic clarity 
and eloquence the President's failure to request a single dime in his 
fiscal year 2004 budget, which he sent to Congress recently, to finance 
a war with Iraq. It is almost as if the White House believes we can 
fight a war and somehow sprinkle fairy dust and the money will just 
miraculously appear to pay for it.
  As I listened to the Senator's remarks, I could not help but be 
struck again about the cavalier and dismissive way the administration 
has dealt not only with our allies and friends on the issue of 
disarming Iraq but also with the Congress and the American people. 
Essentially their attitude has been: We do not need you. We do not have 
to tell you, but you better support us.
  We have seen administration officials globe trotting, in some cases 
offering billions of dollars and even trade concessions to the 
disadvantage of American workers, to other governments, in support of a 
war against Iraq. They will not ask Congress for a dime to pay for the 
war, but they are running around the world offering billions of dollars 
to other countries so they will support us.
  When I see the billions of dollars being promised to Turkey and 
everywhere else, I ask: What about the first responders at home on the 
front line, protecting our security? They have been promised money. The 
President gave a good speech in New York City about how the first 
responders will be prepared to respond to terrorism, and that U.S. 
Government will be there to support them. But it is the old ``the check 
is in the mail.''
  I look at my own State of Vermont. Like the State of the 
distinguished Presiding Officer, it borders Canada. We have unique 
problems because there we have an international border. We need to do a 
lot more to protect our borders and to respond, but we do not have the 
money to do it.
  I say to the distinguished Presiding Officer, if there is a terrorist 
attack, God forbid, against a nuclear power plant on the border between 
Vermont and New Hampshire, the first calls, the first 9-1-1 calls will 
not go to the Office of Homeland Security. They will go to the local 
sheriffs and the local fire departments and the local hospitals. But we 
are not giving them the money that was promised.
  The President acknowledged when he signed the huge omnibus 
appropriations bill--a bill, incidentally, that was scrubbed carefully 
all its way through by the White House, that it did not include 
sufficient funds for local and State governments to protect their 
citizens against terrorism. That is something Senator Byrd and I and 
others had been saying for months. There is not enough money in there. 
I guess the White House thought no one would read it.
  Secretary Rumsfeld was asked what is the cost of a war against Iraq? 
His response was that it is ``unknowable.''
  Senator Byrd mentioned this last week, and then Deputy Secretary 
Wolfowitz told Congress the same thing.
  No one can predict with certainty how long a war will last or 
precisely what it will cost, not to mention the potentially immense 
cost of caring for an estimated 2 million refugees and of rebuilding 
Iraq.
  But to say we do not have any idea, that is maybe convenient, but it 
is totally unacceptable.
  The American people should not be asked to send their sons and 
daughters into battle without an even rudimentary understanding of what 
the potential costs are, both in dollars and American lives. None of us 
expect the Pentagon to calculate these costs with precision, but there 
is no doubt that a war, and its aftermath, would cost tens if not 
hundreds of billions of dollars, as the President's former economic 
adviser predicted.
  If we are going to commit American taxpayers to a war costing 
hundreds of billions of dollars, let us say so. If we are going to 
promise American taxpayers that there will be first responders to 
protect them in their local communities, let us also be honest and say 
that we provided the money.
  In fact, the cost of a war, at least one in which Saddam Hussein's 
army is quickly defeated as the administration optimistically predicts, 
has been estimated by the administration. So what was to prevent the 
President from at least requesting the best-case scenario, somewhere 
between $60 billion and $95 billion at last count, in his fiscal year 
2004 budget?
  I think there is only one explanation. The President does not want to 
ask the American people whether--in the midst of a recession with no 
end in sight, with millions of jobs already lost, more jobs lost during 
this President's term than that of any other President in my lifetime, 
and more Americans becoming unemployed every week--he did not want to 
ask the American people whether we can afford to spend tens or hundreds 
of billions of dollars on a war that fully half the American people do 
not support.
  We did this during Vietnam. Nobody wanted to say what it cost because 
they knew what the reaction would be.
  I want to see Saddam Hussein disarmed as much as anyone. His despotic 
reign and his obsession with acquiring weapons of mass destruction 
while his people suffer has been disastrous for his country and for 
Iraq's neighbors.
  But, if we look back over the past several months, this 
administration's handling of the Iraq issue has been notable for its 
secrecy, its doublespeak, and its arrogance. One day they are 
dismissing the United Nations as irrelevant. The next day they are 
making either threats or billion-dollar deals with allies or members of 
the Security Council to win their support for a resolution authorizing 
the use of force.

[[Page S3014]]

  Depending upon who the messenger is, or whether they are speaking 
publicly or behind closed doors, the President first said the goal was 
regime change, then disarmament, and now both, but that one cannot 
occur without the other.
  The President has told the American people he has not yet made a 
decision to attack Iraq, but his advisers are telling the rest of the 
world that the decision has been made, and the Security Council of the 
United Nations doesn't matter because we are going ahead, no matter 
what. This is the administration's attitude, even while some of our 
closest allies work to explore alternative options that could avoid 
war.

  The administration's rhetoric and actions have damaged key alliances 
and weakened our ability to work with allies and friends, not only to 
disarm Iraq but to solve many other global problems. They have 
recklessly squandered the reservoir of good will our Nation had around 
the world in the aftermath of September 11. Never in generations has 
the world been as united behind the United States as it was after 
September 11. In only one year, we have squandered that support.
  How are we going to pay for this war? Apparently not by requesting 
the funds in the budget. They have not done that. Again, as Senator 
Byrd pointed out, the amount of money requested in the budget, to plan 
and carry out a war, and for its aftermath, is zero.
  It is reminiscent of Afghanistan, the country the President said he 
is committed to for as long as it take to keep it from again becoming a 
haven for terrorists. The amount of money requested by the 
administration last year was zero. It is like promising the money for 
first responders in Texas or Vermont or New Hampshire or anywhere else, 
and then leaving it out of the budget.
  So how will they do? By paying for it with red ink, cranking up the 
printing presses and adding to the deficit. This President inherited 
the largest surplus of any President in history. He is now building up 
the largest deficit of any President in history: Another hundred 
billion, what is the difference? That is the way they talk.
  Yet these are the same people who were giving great speeches just a 
few years ago about why we need a constitutional amendment to balance 
the budget. They ought to be darned glad they didn't get what they 
wished for.
  So, a balanced budget doesn't make any difference, the deficit 
doesn't make any difference, and don't look behind the curtain because 
we are not going to tell you how much it is going to. Let us hope the 
President's advisers are right and the war is over in a matter of 
weeks. Sometimes wars do end quickly.
  I remember my son, a young marine, was called up in Desert Storm. 
Like his fellow marines, this young lance corporal answered, ``Aye, 
aye,'' and set off with his fellow marines. The war ended very quickly. 
He was not in harm's way, unlike others who were.
  I am proud of him for volunteering to go. I am proud of all America's 
men and women who will answer the Commander in Chief's call to go. But 
I believe we ought at least know what we are asking them to do and why.
  Let us hope the war is over in a matter of weeks. Let us hope the 
Iraqi Army does crumble like a house of cards. Let us hope Saddam 
Hussein does not blow up his oil wells and refineries. Let us hope he 
does not use his chemical or biological weapons. Let us hope our troops 
do not become bogged down in hand-to-hand urban combat, and that there 
will be few Iraqi civilians killed. Let us hope that predictions of 
massive unrest throughout the Muslim world in protest at the U.S. 
invasion of Iraq, and increases in the number of terrorist attacks 
against Americans, will be proven groundless. Let us hope the ethnic 
and religious factions within Iraq, some of which hate each other, will 
put aside their differences and join together to build the 
representative, democratic government the President has promised. And 
let us hope the President's grand vision, about which we have been 
given no details, to make the entire Middle East democratic, will be 
off to a successful start. Let us hope so.
  But let us also understand it is possible that any one of these dire 
predictions could come true and any one of them could be disastrous for 
our soldiers, for innocent civilians, for the U.S. economy, for our 
national interests abroad, for the Middle East, for the world, and for 
the fight against terrorism.
  Wars are unpredictable. The real costs of a war against Iraq may not 
be known until long after this President's term is over.
  Who knew, back in 1991, that thousands of gulf war veterans would 
suffer from unexplained, debilitating medical problems years after the 
war ended and that many would never be able to work again? Who can say 
this war will not be the spark that ignites more terrorism against the 
United States--perhaps not this year or even next year, but in 3 years 
or 4 years? By that time, it will be too late.
  We have to think about these things even if the President would 
rather not talk about them. We have a duty to ask what are the 
administration's real motivations for this war. Is it to get rid of 
weapons of mass destruction from Iraq? If so, why not give the U.N. 
inspectors the time they need and a plan for enforcing disarmament? Is 
it to promote democracy in Iraq? If so, then why not begin with Kuwait, 
which we liberated a decade ago but which even today remains a 
monarchy, where women still are not allowed to vote?
  We have a duty to ask these questions, and to warn the American 
people of the risks, even if the President will not. And we must do 
everything we can to be sure that if war comes, it is supported by the 
broadest possible coalition.
  So I commend the senior Senator from West Virginia for his remarks 
last week, and for the other statements he has made on this issue. He 
has asked the questions that need to be asked. I hope the 
administration, finally, will give the answers before the country goes 
to war, and not after.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.