[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.