[Congressional Record Volume 149, Number 34 (Tuesday, March 4, 2003)]
[Senate]
[Pages S3046-S3049]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            EXPRESSING SUPPORT FOR THE PLEDGE OF ALLEGIANCE

  Ms. MURKOWSKI. Mr. President, I send a resolution to the desk and ask 
unanimous consent that it be held at the desk.
  Before the Chair rules, I add that it is my hope, and the hope of 
many Members on this side of the aisle, that we can get this resolution 
cleared for adoption today.
  The PRESIDING OFFICER. Without objection, the resolution will be held 
at the desk.
  Ms. MURKOWSKI. I thank the Chair.
  Mr. President, I am pleased to be joined by the Republican whip, 
Senator McConnell, in introducing a resolution disapproving last week's 
Pledge of Allegiance ruling by the full Ninth Circuit Court of Appeals.
  The full court refused to review a three-judge panel ruling that bars 
children in public schools from voluntarily reciting the Pledge of 
Allegiance.
  Last week's decision is symptomatic of a court that has become 
dysfunctional and out-of-touch with American jurisprudence, common 
sense, and constitutional values. The full Ninth Circuit decision on 
the pledge represents a type of extremism carried out by individuals 
who want to substitute their values in place of constitutional values. 
What they want to do is simply eradicate any reference to religion in 
public life. That is not what the First Amendment mandates.
  In his dissent from the court's decision, Judge O'Scannlain, writing 
for six judges, called the panel decision ``wrong, very wrong--wrong 
because reciting the Pledge of Allegiance is simply not a `religious 
act' as the two-judge majority asserts, wrong as a matter of Supreme 
Court precedent properly understood, wrong because it set up a direct 
conflict with the law of another circuit, and wrong as a matter of 
common sense.''
  He went on to say: ``If reciting the pledge is truly `a religious 
act' in violation of the Establishment Clause, then so is the 
recitation of the Constitution itself, the Declaration of Independence, 
the Gettysburg Address, the National Motto or the singing of the 
national anthem,'' verse of which says, `And this is our motto: In God 
is our trust.'' I believe the reasoning of Judge O'Scannlain is 
absolutely correct.
  One should not be surprised that the full Ninth Circuit refused to 
reconsider this ill-conceived decision. The recent history of the Ninth 
Circuit suggests a judicial activism that is close to the fringe of 
legal reasoning.
  During the 1990s, almost 90 percent of cases from the Ninth Circuit 
reviewed by the Supreme Court were reversed.
  In fact, this is the court with the highest reversal rate in the 
country. In 1997, 27 of the 28 cases brought to the Supreme Court were 
reversed--two-thirds by a unanimous vote.
  Over the last 3 years, one-third of all cases reversed by the Supreme 
Court came from the Ninth Circuit. That's three times the number of 
reversals for the next nearest circuit and 33 times higher than the 
reversal rate for the 10th Circuit.
  Last November, on a single day, the Supreme Court summarily and 
unanimously reversed three Ninth Circuit decisions. In one of those 
three cases, the Supreme Court ruled that the circuit had overreached 
its authority and stated that the Court ``exceed[ed] the limits imposed 
on federal habeas review . . . substitut[ing] its own judgment for that 
of the state court.''
  One of the reasons the Ninth Circuit is reversed so often is because 
the circuit has become so large and unwieldy. The circuit serves a 
population of more than 54 million people, almost 60 percent more than 
are served by the next largest circuit. By 2010, the Census Bureau 
estimates that the Ninth Circuit's population will be more than 63 
million.
  According to the Administrative Office of the U.S. Courts, the Ninth 
Circuit alone accounts for more than 60 percent of all appeals pending 
for more than a year. And with its huge caseload, the judges on the 
court just do not have the opportunity to keep up with decisions within 
the circuit, let alone decisions from other circuits.

  In a New York Times article last year it was pointed out that judges 
on the court said they did not have time to read all of the decisions 
issued by the court. According to a 1998 report, 57 percent of judges 
in the Ninth Circuit, compared with 86 percent of Federal appeals court 
judges elsewhere, said they read most or all of their court's 
decisions.
  Another problem with the Ninth Circuit is that it never speaks with 
one voice. All other circuits sit as one entity to hear full-court, or 
en banc, cases. The Ninth Circuit sits in panels of 11. The procedure 
injects randomness into decisions. If a case is decided 6 to 5, there 
is no reason to think it represents the views of the majority of the 
court's 24 active members.
  Last week, some legal experts suggested that the Ninth Circuit's 
unique 11 member en bank panel system may have contributed to the 
courts' decision on the pledge. It has been suggested that even a 
majority of the 24 members of the court might have disagreed with the 
pledge decision but feared that a random pick of 11 members of the 
court to hear the case might have resulted in the decision being 
affirmed.
  That is not the way the law should be interpreted by the circuit 
courts of this country. I believe this decision highlights the need for 
this Congress to finally enact legislation that will split the Ninth 
Circuit. It has just become dysfunctional.
  Later this week I will be introducing such legislation, and I hope my 
colleagues on both sides of the aisle will join me in that legislation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I rise to join my colleague, the Senator 
from Alaska, in raising my voice in concern and dismay about the recent 
decision of the 24-judge U.S. Court of Appeals for the Ninth Circuit 
declaring the phrase ``under God'' in the Pledge of Allegiance to be 
unconstitutional. You have to ask yourself: What is the problem? Is the 
problem the pledge or is the problem the Ninth Circuit?
  The distinguished Senator from Tennessee today in his maiden speech 
talked about what it is to be an American and made reference to this 
particular issue. The Pledge of Allegiance does speak to what is great 
about America, our sense of unity and--to quote the Senator from 
Tennessee--our sense of faith, our value of freedom. It is who we are 
as Americans that joins us.
  If we reflect on the prayer that opened the session today, the pastor 
talked about prayer and whether it is Allah or whether it is Jesus, 
whether it is Yahweh, we are joined with a common sense in faith. 
Walking through the doors to the Chamber across from where the 
Presiding Officer sits is the phrase: ``In God We Trust.'' We 
acknowledge that. We accept that. We understand it is not the State 
saying this is State-sponsored religion. It is simply our recognition 
of faith as being part of who we are and that it is OK.
  If I would take out a dollar bill, if I had one in my pocket, we 
would see reference to God. This decision defies common sense. It is 
because we have a court that substitutes its judgment, its own perhaps 
personal political perspective in ruling from the bench, and that is 
not what courts are supposed to be.
  I speak as a former Solicitor General of the State of Minnesota. I 
understand the Constitution. I respect the Constitution. I revere the 
Constitution. Clearly, our Founders and Framers, in their brilliance, 
in their foresight, and I believe in their being divinely inspired, 
understood that it was in God we trust. A decision somehow that says it 
is unconstitutional truly defies common sense.

[[Page S3047]]

  If I may, I think this decision highlights the importance of 
confirming Miguel Estrada to the Second Circuit Court of Appeals. I say 
that because if you look at the criticism that Mr. Estrada is getting 
from some of my distinguished colleagues on the other side, they are 
concerned that he is not articulating his personal political 
perspective on a given issue.
  When Mr. Estrada is asked about legal precedent, he says: I will 
follow it if it is the established law of the land. That is what judges 
are supposed to do. They are not supposed to take their own personal 
political belief, a belief that may defy common sense, and bring it to 
the fore, in this case the Ninth Circuit Court of Appeals ruling that 
the phrase ``under God'' is unconstitutional.
  When Mr. Estrada was asked about the divisive issue of abortion--
clearly divisive, and I am one who would love to find common ground. I 
believe in America today there is common ground over banning the horror 
of partial-birth abortion. Most people find common ground.
  On this divisive issue, when Mr. Estrada was probed and pushed to say 
what his personal beliefs are, he stepped back and said: It is the 
established law of the land. It is a constitutional right to privacy. 
It is not within the province or responsibility of a judge to bring 
their personal political perspective or belief to the table. To do that 
would constitute judicial activism. That is not what I believe the 
Constitution intended judges to be. They are supposed to interpret the 
Constitution.
  I truly believe this decision of the Ninth Circuit Court of Appeals, 
which I am hopeful, if not confident, will be overturned--I am 
supportive of the efforts of the Senator from Alaska and this body 
speaking out and saying this is the wrong decision; this does not 
reflect common sense; this does not reflect American values.
  This is the wrong lesson to be sending our children about what it 
means to be an American and the greatness of America. Clearly, we 
cannot have courts substituting their judgment. We cannot have 
decisions that are so devoid of common sense that they cut away at the 
core of the fabric and the heart of what it means to be an American.
  I join in speaking out. I join in support of the resolution that says 
this is wrong, and the Senate recognizes it is wrong.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, I rise to congratulate the Senator from 
Alaska and to associate myself with the remarks of the Senator from 
Minnesota. I mentioned a few moments ago that if our future Federal 
judges had a few more courses in American history and civics, we might 
not have these decisions.
  I see the Senator from Alabama is in the Chamber. I think of the 
pivot point of the Revolutionary War when all the Europeans on the 
western side of the mountain in Tennessee were enraged. They were tired 
of paying taxes to support the bishop of a church to which they did not 
belong. So they helped fight the Revolution; that is separation of 
church and state. They did not want to pay taxes to support another 
church.
  Before they went over the mountain to the Battle of King's Mountain 
in Watauga, they went down on their knees to pray. The great pioneer 
preacher, Samuel Doke, prayed about the sword of the Lord and Gideon. 
They knew how to separate church and state and still be a religious 
country. If they knew it, why don't Federal judges know it? Why don't 
they know that George Washington went down on his knees at Valley 
Forge, and that Abraham Lincoln turned the war over to the Lord, and 
General Pershing advised troops to pray? Did they not see President 
Bush take America to church after 9/11 and then walk across the street 
to a mosque?
  We know how to be a religious country and separate church and state, 
and our Federal judges ought to know how to do that. I suggest one more 
lesson for teaching American history and civics in our public schools, 
as the Senator from Alaska suggests, is that we have more Federal 
judges grow up understanding we are a country that can be as religious 
as any country in the world and still separate church and state.
  Those principles can work together.
  Mr. SESSIONS. Mr. President, will the Senator yield for a question?
  Mr. ALEXANDER. Yes, of course.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Does the Senator, based on his broad experience in 
affairs, conclude that this country has the unique history of being a 
genuinely religious country, but a country that knows how to handle 
different religions and faiths? As a matter of history, is it not 
almost unique in the history of the world how we have been able to 
affirm religious faith and, at the same time, avoid sectarian violence?
  Mr. ALEXANDER. The Senator from Alabama is exactly right. One of the 
most remarkable aspects about America is we have a country that is 
filled with people from everywhere. If one goes to a naturalization 
ceremony in any Federal court in America and looks at the men and women 
coming into our country from everywhere, one will see the variety and 
diversity of our country. We know how to do that.
  Our country is distinguished because despite our diversity, we do not 
have religious wars in our country. We respect everybody's right. The 
greatest aspect of our country is not all that diversity; it is the 
fact we figured out how to turn all that diversity into one country.
  Federal judges need to know we have two principles running through 
this country: We have the Pilgrims who arrived here and saw the shining 
city on the hill, and we have the great diversity where we are more 
religious virtually than any country, but we separate church and state. 
When the chaplain starts every day here with a prayer, he is not 
establishing a church in the United States of America; he is 
recognizing the religious nature of our country, and judges should know 
that.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Alabama.
  Mr. SESSIONS. I thank the Chair. Madam President, first, I appreciate 
the remarks of the Senator from Alaska. It was a very effective and 
thoughtful speech about a very important subject, and that is the Ninth 
Circuit Court of Appeals and how this Pledge of Allegiance matter 
highlights the problems we have had there for a long time. I express my 
appreciation for a wonderful analysis that the Senator from Alaska 
made. The Senator laid it out very well.
  I chair the Subcommittee on Courts of the Senate Judiciary Committee. 
I have looked at this issue since I have been in the Senate. I was 
present in Atlanta the day the Eleventh Circuit Court of Appeals was 
created. The old Fifth Circuit Court of Appeals was divided. It went 
from Miami to Texas, from El Paso to Miami. It was too big and it could 
not work well. The judges themselves believed that a division was 
necessary. The Congress approved. Not one single judge today who is on 
the new Eleventh Circuit and was on the old Fifth Circuit, would ever 
want to try to put that monstrosity back together. And it was not 
nearly as big as the Ninth Circuit.
  We had hearings several years ago during which we called chief judges 
of several circuits as witnesses. Those judges told us they did not 
want to see the size of their court get any bigger than 10 or 12 
judges. When it got any bigger than that, collegiality broke down, the 
ability to maintain consistency of opinions broke down, and the ability 
to promote harmony and consistency in law broke down.
  The Senator from Alaska is exactly correct, the Ninth Circuit is a 
particular problem. It is out of the mainstream of American law, and 
that is one reason I urged and pleaded with this Senate not to put more 
left-wing activist judges on the Ninth Circuit. I dealt with the 
question of Judge Marsha Berzon and Judge Paez. We did not filibuster 
those nominees. We debated those nominees. I voted against those 
nominees. Both of them were confirmed. Both of those judges, by all 
apparent indication, voted for this opinion that struck down the Pledge 
of Allegiance in this country. Both of those judges, Berzon and Paez, 
in separate opinions have voted to strike down California's three-
strikes-and-you're-out law, the law that broke the back of a surging 
crime rate in California, and we have seen the crime rate go down. 
Why? Because they targeted repeat dangerous offenders. In a Rand Cor-

[[Page S3048]]

poration study of prisoners in California, the prisoners admitted they 
were involved in as many as 200 crimes per year. So when you target 
repeat offenders under the three-strikes-you're-out law, it brings the 
crime rate down. The Ninth Circuit has real problems. They have no 
business striking down California's law. California has a right to set 
the penalty standards in their State.

  The problems in the Ninth Circuit are broadly known. Several years 
ago, the New York Times, in a piece on the problem, noted that a 
majority of the United States Supreme Court considers the Ninth Circuit 
to be a rogue circuit, a circuit out of control. One year they reversed 
the Ninth Circuit 27 out of 28 times. Another year it was 13 out of 17 
times. They have the highest reversal rate of any circuit in America. 
But to have so many cases, there is no way the Supreme Court of the 
United States can control that circuit, unless it is under control to 
begin with. We need judges there who follow the law.
  This is precisely why, as Senator Coleman indicated, we need judges 
like Miguel Estrada who show restraint. That is what this debate is 
about. That is what the President is committed to do. He said we are 
not going to turn criminals loose without a basis. We are not going to 
be taking down the Pledge of Allegiance. We are not going to be taking 
down Christmas decorations because of these nutty decisions coming out 
time and time again. Many of these decisions are under the guise of 
interpreting the Constitution in ways it has never been interpreted 
before.
  That is what this debate is about. That is why it is important. We 
need judges who will simply follow the law. Who can be afraid of that? 
How is our liberty endangered when we have judges who follow the law 
dutifully? What you have when you have a judge like Judge Reinhardt on 
the Ninth Circuit, who says that evolving, long-term trends of social 
conscience enable judges to redefine the meaning of the Constitution to 
make what they think is correct occur, is very dangerous policy. In 
fact, that idea undermines democracy.
  I could go on and talk about this circuit. I have made probably as 
many as nine speeches on the floor delineating the problems they have. 
I strongly believe that reform is needed. I thank the Senator from 
Alaska for raising that again. Her State is part of the Ninth Circuit. 
I know she cares deeply about it. We have had a number of proposals to 
fix it. The way the opponents of reform operate, and the way I have 
seen them do it, is whatever the proposal is, is not good enough. So 
they don't deny we need reform, but any time somebody proposes reform, 
they come along and say it isn't correct, and they turn it into a 
confused mess.
  But it is time for us now to confront this issue, it is time for us 
to confront the problem of judicial activism in its entirety. 
Unfortunately, the Pacific coast has drifted further than any from 
being a disciplined interpreter of the law. So I will just say, Madam 
President, thank you for your leadership, thank you for your important 
first speech. I believe it will help us go forward. It is going to 
encourage me to push the issue in my committee. So I thank the Senator 
from Alaska. I look forward to working with you and others who 
sincerely want to improve the rule of law in America, who want to 
improve consistency in the rule of law to avoid decisions that 
embarrass this country, and embarrass the rule of law.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Madam President, I congratulate the Senator from Alaska 
who has kindly taken the chair so I may speak briefly in support of the 
resolution that she and Senator McConnell have offered this morning.
  The reason I do so is that I think we see a remarkable confluence of 
themes this morning. First, as we know, we are in the fourth week of 
debate on the nomination of Miguel Estrada to the DC Circuit Court of 
Appeals, and the debate has often been about what is the proper role 
for a judge to play under our Government of separated powers, where the 
legislative branch, executive branch, and judicial branch play 
distinctive roles, not the same role.
  Then we heard from the distinguished Senator from Tennessee this 
morning offering a bill sponsored on a bipartisan basis, trying to put 
history and civics back in our classrooms so that American children can 
grow up knowing what it means to be an American. And then we have this 
sad, but not totally unexpected, incident of the Ninth Circuit's 
refusal to reconsider the three-judge panel decision striking the words 
``under God'' from the Pledge of Allegiance. I think these three themes 
are connected. I want to speak briefly on that.
  Madam President, I rise this morning, after an entire month of Senate 
debate on the nomination of Miguel Estrada to serve on the Federal 
court of appeals, in continued dismay over what I see as a 
politicization of our judicial confirmation process. In my view, it is 
profoundly dangerous to have a judicial confirmation process that, in 
effect, tells nominees their personal political beliefs will determine 
whether or not they get to serve as a judge. Such a judicial 
confirmation process sends exactly the wrong signal and a dangerous 
message to judges that it is perhaps OK to decide cases based on their 
personal beliefs, or a political and social agenda and not based on 
settled law.
  Indeed, Miguel Estrada, during the course of these debates, has been 
criticized. When asked what his judicial philosophy is, he said: I will 
apply the law as written by the Congress and as decided by precedents 
of the U.S. Supreme Court. One Senator said: Well, that is not a 
philosophy. I want to know how Mr. Estrada personally feels about the 
equal protection clause, about the fourth amendment, the first 
amendment, and such questions. But, indeed, I think the Senator has it 
exactly wrong, and Mr. Estrada has it exactly right. It is the judicial 
philosophy we ought to embrace and look for.
  Indeed, I believe the President has chosen a nominee who says I won't 
impose my own views or my own political agenda, or what I think the law 
should be; I will submit to the law of the land, which is what Congress 
has said the law is, through the laws that are passed and signed by the 
President, and the decisions made by a higher court and the precedents 
so established.
  Madam President, the Ninth Circuit's decision last Friday to strike 
down, for a second time, the voluntary recitation of the Pledge of 
Allegiance as unconstitutional demonstrates exactly what will happen 
when we politicize the judiciary. It demonstrates what happens when we 
tell judges you can ignore the law, because what is really important is 
how you personally feel about these issues. The Ninth Circuit's 
decision on the Pledge of Allegiance is without any basis in law or in 
fact. It is a blatantly political decision.
  As one of the judges noticed in his dissent, ``it doesn't take an 
Article III judge to recognize that the voluntary recitation of the 
Pledge of Allegiance in public school does not violate the First 
Amendment.'' Surely, he is right. Heaven help us if he is not.

  The First Amendment of the Constitution states that ``Congress shall 
make no law respecting an establishment of religion, or prohibiting the 
free exercise thereof.'' These words represent a solemn commitment by 
our Founders, indeed by all of us, that our Government cannot interfere 
with the ability of an individual to practice his or her faith or 
express it in a public forum--no more, and no less. Government shall 
neither establish an official State religion, nor shall Government 
interfere with the ability of private citizens to exercise their chosen 
religion.
  Notice what the first amendment does not say. It does not say the 
Government must be hostile to religion. But, indeed, is that not what 
has happened? I think about our children and what they are exposed to 
on a daily basis: Sex, violence, degradation of women, other dangerous 
influences. And we expect them to sort that out in their own way, 
hopefully under the guidance and tutelage of parents, teachers, and 
others.
  The one thing people cannot talk about, they cannot talk about the 
Creator, they cannot talk about their religious faith. That is 
prohibited. And that is absurd.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. CORNYN. Madam President, I ask unanimous consent that morning 
business be extended by 5 minutes on this side of the aisle and 
likewise extended on the other side of the aisle.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S3049]]

  Mr. CORNYN. As Justice William O. Douglas explained in his decision 
in Zorach v. Clauson, ``[t]he First Amendment . . . does not say that 
in every and all respects there shall be a separation of Church and 
State. . . . Otherwise . . . [p]olicemen who help parishioners into 
their places of worship would violate the Constitution. Prayers in our 
legislative halls,'' such as we observed in this Chamber this morning 
and do every time the Senate meets, ``the appeals to the Almighty in 
the messages of the Chief Executive; the proclamations making 
Thanksgiving Day a holiday; `so help me God' in our courtroom oaths--
these and all other references to the Almighty that run through our 
laws, our public rituals, our ceremonies would be flouting the First 
Amendment.''
  The Founders of the Constitution did not ratify a Constitution or a 
Bill of Rights so hostile to religion. To the contrary, the very first 
day that the first Congress approved the Establishment Clause, it also 
passed the Northwest Ordinance which declared that ``religion, 
morality, and knowledge, being necessary to good government and the 
happiness of mankind, schools and the means of education shall forever 
be encouraged.''
  Our Founders thus believed this new Nation could endorse and promote 
religion and encourage its citizens voluntarily to practice the faith 
of their own choosing. They are not mutually exclusive.
  The Ninth Circuit's decision to strike down the Pledge of Allegiance 
finds no basis in the text of the Constitution or the original 
understanding of our Founding Fathers. Indeed, it defies common sense.
  I urge this body to support the resolution offered this morning by 
the Senator from Alaska and the Senator from Kentucky because the Ninth 
Circuit's decision, like far too many decisions coming from our Federal 
courts, replaces the Constitution with an altogether new and made-up 
rule preferred by judges who may personally prefer a government that is 
actively hostile to all expressions of faith in a public forum.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Cornyn). Under the previous order, the 
final 60 minutes shall be under the control of the Democratic leader or 
his designee.
  The Senator from Oregon.

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