[Congressional Record Volume 149, Number 34 (Tuesday, March 4, 2003)]
[Senate]
[Pages S3074-S3076]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            EXPRESSING SUPPORT FOR THE PLEDGE OF ALLEGIANCE

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of S. Res. 71.
  Mr. REID. Mr. President, I have no objection to the Senator, the 
chairman of the Judiciary Committee, using his 5 minutes any way he 
wants. I will reserve the 5 minutes for Senator Leahy and the majority 
leader.
  Mr. HATCH. Mr. President, I see the distinguished Senator from Alaska 
is in the Chamber.
  The PRESIDING OFFICER. Does the Senator yield the floor?
  Mr. HATCH. I reserve my time.
  Mr. REID. Mr. President, this resolution, which resolves that the 
Senate strongly----
  The PRESIDING OFFICER. Will the Senator permit the clerk to report 
the resolution.
  The legislative clerk read as follows:

       A resolution (S. Res. 71) expressing support for the Pledge 
     of Allegiance.

  The Senate proceeded to consider the resolution.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I support what I am confident the Senate's 
position will be, to strongly disapprove the decision of the panel of 
the Ninth Circuit in the Newdow case and the decision of the full court 
not to consider this case en banc.
  The reason I wanted the floor for a few minutes this afternoon is 
there have been statements made today by the majority that the whole 
problem with the Pledge of Allegiance case has been caused by 
Democratic appointees. There could not be anything further from the 
truth.
  The original Ninth Circuit panel opinion holding that the Pledge of 
Allegiance violated the first amendment was authored by a person who 
was appointed by a Republican President. Several Ninth Circuit judges, 
nominated by Republican Presidents, such as Judges Trott, Rymer, and 
Nelson, did not join in the dissent that criticized the original 
petition. Before the Ninth Circuit, they were holding a hearing to 
determine if they would rehear this. That would have been something 
that would support the position we are taking here on the Senate floor 
today.
  Now, Mr. President, listen to this. The majority of the judges who we 
know voted to rehear the case en banc--and the only reason we are able 
to determine this is because of dissenting opinions filed, because the 
hearing was, in effect, off the record--were, in fact, Clinton 
appointees. Six out of nine dissenting judges were Clinton nominees.
  So, Mr. President, simple arithmetic says there were 24 active 
sitting judges who were allowed to vote on this rehearing. If we had 
seven of the Republican nominees, there would have been a majority, and 
there would have been a rehearing. I repeat, if we had seven judges, 
who were appointed by Republicans, together with the six judges who 
were appointed by President Clinton, there would have been a rehearing.
  So let's decide this matter, not on what we do not know but what the 
facts are. Six of the nine dissenting judges were Clinton nominees. 
These six judges, appointed by Clinton, either authored or joined 
dissenting opinions that advocated for a rehearing of the Newdow case 
by an en banc panel.
  So, Mr. President, I disagree with what the Ninth Circuit did, but 
let's not blame it on judges appointed by Democratic Presidents. In 
fact, the reverse is true.
  Mr. HATCH. Mr. President, I yield 2 minutes to the distinguished 
Senator from Alaska.

[[Page S3075]]

  The PRESIDING OFFICER. The Senator from Alaska.


                           Amendment No. 249

  Ms. MURKOWSKI. Mr. President, I have a technical amendment at the 
desk to S. Res. 71. I ask unanimous consent that it be in order at this 
time, and I send it to the desk.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Alaska (Ms. Murkowski) proposes an 
     amendment numbered 249:
       On page 3, line 7 of the resolution strike ``again'' and 
     insert ``either''
       On page 3, line 9 of the resolution strike ``and, if unable 
     to intervene,'' and insert ``or''

  Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the 
amendment be agreed to, and the motion to reconsider be laid upon the 
table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 249) was agreed to.
  Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the list 
of 43 cosponsors be added to my resolution.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MURKOWSKI. Mr. President, I think all of us can agree that last 
week's decision by the full Ninth Circuit refusing to review an earlier 
decision that bars children in public schools from voluntarily reciting 
the Pledge of Allegiance was fundamentally wrong.
  Unfortunately, citizens in the States who are within the Ninth 
Circuit's jurisdiction have had to contend for decades with the court's 
dysfunctional jurisprudence. The pledge decision highlights how out of 
touch this court is from common sense and constitutional values. We who 
live within the court's jurisdiction know that the judges on this court 
too often ignore the law and the Constitution and, instead, seek to 
substitute their values for constitutional values.
  I think Judge O'Scannlain, writing for six judges in dissent, said it 
best. He 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.

  The judge 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,'' a verse of which says: ``And this our motto: In God 
is our trust.''
  I have no doubt that the Supreme Court will hear the appeal of this 
case. And if one considers that the Ninth Circuit is the court with the 
highest reversal rate in the country, I expect the Court will summarily 
overturn this ill-conceived decision.
  I urge all of my colleagues to support the resolution.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Ms. MURKOWSKI. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I compliment the distinguished Senator from 
Alaska for her work in this regard and for getting so many cosponsors 
in such a short period of time.
  A panel in the Ninth Circuit declared the Pledge of Allegiance to be 
unconstitutional. This is so, two of the three judges decided, because 
it contains the words ``under God.'' It did not matter to the judges 
that these two words endorse no particular religion or denote any 
specific being. Nor did it matter to the majority that no student is 
required to recite these words--much less any other portion of the 
Pledge of Allegiance. And worse yet, the majority completely failed to 
explain how its remarkable ruling could be squared with out 
government's long-established reference to God in other areas.
  The United States Supreme Court begins each session with the phrase: 
``God save the United States of America and this Honorable Court.'' 
``God Bless America'' is routinely sung at many Government functions. 
And this body not only elects a Chaplin, but also has begun every 
session for 207 years with a prayer.
  This activist ruling is--as so many of the Ninth Circuit's rulings 
have been--bad law. It is flatly inconsistent with a unanimous, decade-
old ruling of the Seventh Circuit, where the court held that ``schools 
may lead the Pledge of Allegiance daily, so long as pupils are free not 
to participate.'' The Ninth Circuit disagreed, citing the supposed 
``coercive effect'' on a child from being required to listen every day 
in school to the phrase ``one nation under God.'' And from this 
purported coercion, the Ninth Circuit went on to divine 
unconstitutionality. This is truly a remarkable feat of judicial 
activism.
  This country was founded on religious freedom by founders, many of 
whom were deeply religious. For this reason, the first amendment does 
not prohibit religion, but an ``establishment'' of religion. In fact, 
it also plainly guarantees to each American the freedom of religion and 
the free exercise of religion. As every court prior the Ninth Circuit's 
decision has recognized, the mere reference to a higher being does not 
amount to a religious act or a formal religious observance.
  The Ninth Circuit is the biggest and most ungainly federal circuit 
court of appeals. It is also a court that is seriously out of balance, 
with 17 of its 24 active judges appointed by Democratic Presidents. The 
Ninth Circuit is also the most reversed circuit court of appeals in the 
nation--by a wide margin. I would like to say that rulings like Newdow 
represent an anomaly, but I can't do that because there have been so 
many other recent rulings in the Ninth Circuit that were unanimously 
reversed by the Supreme Court.
  I fully expect the Supreme Court to review this decision and, yet 
again, reverse the Ninth Circuit and set this ludicrous ruling right. 
While we wait for that to happen, however, millions of students in the 
Ninth Circuit will be prevented from pledging allegiance to our flag 
and our Nation. It is truly regrettable that they will be prevented 
from doing so at a time when our Nation is under attack by terrorists 
and when we particularly need everyone to come together and support our 
President and our troops all over the world.
  It is about time we let the Ninth Circuit Court of Appeals know, as 
the most reversed court in the country, that they really ought to think 
twice before they do something like this. Just think about it. The 
Constitution does not prohibit religion; it prohibits the establishment 
of religion. In fact, it plainly guarantees to each American the 
freedom of religion and the free exercise of religion.
  As every court prior to the Ninth Circuit decision has recognized, 
the mere reference to a Higher Being does not amount to a religious act 
or a formal religious observance. The Ninth Circuit is the largest and 
most ungainly Federal circuit court of appeals.
  It is also a court that is seriously out of balance, with 17 out of 
its 24 active judges appointed by Democratic Presidents. Thirteen of 
those 17 were appointed by President Clinton. And the Ninth Circuit is 
also the most reversed circuit court of appeals in the Nation--by a 
wide margin.
  The PRESIDING OFFICER. Time controlled by the Senator from Utah has 
expired.
  Mr. HATCH. Let me just say, this is a very important resolution. It 
shows how important it is to have good judges on the bench rather than 
activists. This decision was made by activists.

  The PRESIDING OFFICER. All time has expired.
  The question is on agreeing to the resolution, S. Res. 71, as 
amended.
  The yeas and nays have been ordered. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FRIST. I announce that the Senator from New Mexico (Mr. 
Domenici), and the Senator from Kentucky (Mr. McConnell) are 
necessarily absent.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Florida (Mr. Graham), the Senator from 
Massachusetts (Mr. Kerry), the Senator from

[[Page S3076]]

Louisiana (Ms. Landrieu) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
North Carolina (Mr. Edwards), the Senator from Massachusetts (Mr. 
Kerry) would each vote ``Aye''.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 94, nays 0, as follows:

                      [Rollcall Vote No. 39 Leg.]

                                YEAS--94

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--6

     Domenici
     Edwards
     Graham (FL)
     Kerry
     Landrieu
     McConnell
  The resolution (S. Res. 71), as amended, was agreed to, as follows:

                               S. Res. 71

       Whereas a 3-judge panel of the Ninth Circuit Court of 
     Appeals has ruled in Newdow v. United States Congress that 
     the words ``under God'' in the Pledge of Allegiance violate 
     the Establishment Clause when recited voluntarily by students 
     in public schools;
       Whereas the Ninth Circuit has voted not to have the full 
     court, en banc, reconsider the decision of the panel in 
     Newdow;
       Whereas this country was founded on religious freedom by 
     the Founding Fathers, many of whom were deeply religious;
       Whereas the First Amendment to the Constitution embodies 
     principles intended to guarantee freedom of religion both 
     through the free exercise thereof and by prohibiting the 
     Government establishing a religion;
       Whereas the Pledge of Allegiance was written by Francis 
     Bellamy, a Baptist minister, and first published in the 
     September 8, 1892, issue of the Youth's Companion;
       Whereas Congress, in 1954, added the words ``under God'' to 
     the Pledge of Allegiance;
       Whereas the Pledge of Allegiance has for almost 50 years 
     included references to the United States flag, the country, 
     to our country having been established as a union ``under 
     God'' and to this country being dedicated to securing 
     ``liberty and justice for all'';
       Whereas Congress in 1954 believed it was acting 
     constitutionally when it revised the Pledge of Allegiance;
       Whereas the 107th Congress overwhelmingly passed a 
     resolution disapproving of the panel decision of the Ninth 
     Circuit in Newdow, and overwhelmingly passed legislation 
     recodifying Federal law that establishes the Pledge of 
     Allegiance in order to demonstrate Congress's opinion that 
     voluntarily reciting the Pledge in public schools is 
     constitutional;
       Whereas the Senate believes that the Pledge of Allegiance, 
     as revised in 1954 and as recodified in 2002, is a fully 
     constitutional expression of patriotism;
       Whereas the National Motto, patriotic songs, United States 
     legal tender, and engravings on Federal buildings also refer 
     to ``God''; and
       Whereas in accordance with decisions of the United States 
     Supreme Court, public school students are already protected 
     from being compelled to recite the Pledge of Allegiance: Now, 
     therefore, be it
       Resolved, That the Senate--
       (1) strongly disapproves of a decision by a panel of the 
     Ninth Circuit in Newdow, and the decision of the full court 
     not to reconsider this case en banc; and
       (2) authorizes and instructs the Senate Legal Counsel again 
     to seek to intervene in the case to defend the 
     constitutionality of the words ``under God'' in the Pledge, 
     and, if unable to intervene, to file an amicus curiae brief 
     in support of the continuing constitutionality of the words 
     ``under God'' in the Pledge.

  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask unanimous consent that I be 
recognized for 5 minutes to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I thank the Chair.

                          ____________________